Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924067605471 INDEX DIGEST OF BANKRUPTCY DECISIONS CONTAINIKra THE DECISIONS OP THE SUPREME COURT OP THE UNITED STATES FROM 1800 TO 1899, AND OP THE FEDERAL AND STATE COURTS OP LAST RESORT UNDER THE ACT OF 1867. BY EDWIN C. BRANDENBURG, LL. M., Atjthob of the "Law of BAUKauPTor." Editob op "The Opihiohs of the Attorney Gbneeal," "The Stipplembnt TO THE United States Revised Statutes," one of the Revisehs OF "BonviEB's Law Diotionaht," and Membeb of the Bar OF the United States Supreme Court and the Courts of the District of Columbia. CHICAGO: CALLAGHAN AND COMPANY. 1899. COPYEIGHT, 1899, BY EDWIN C. BRANDENBURG. BTATB JOURNAL PRINTING COMPANY, PniNTBHS AND StBBKOTXPKKS, UADISON, WIS. preface; • The recent enactment of the Federal Statute on Bankruptcy finds a large proportion of the legal profession without practical experience in that branch of the law. The growth of this practice within the past few months has been so material that the need of the aid afforded by the decisions under the act of 1867, to which the present act bears a close resemblance, has already been felt. Bearing this in mind and the necessity for a compre- hensive digest of the decisions under the former act, so as to make them readily available to the busy lawyer, this book has been prepared. The work of preparation has been one of unusual magnitude, as every case has been carefully digested, resort being had to original investigation instead of relying upon the prepared syllabi, text-books or partial digests. All relevant decisions of the Supreme Court of the United States, to- gether with aU decisions reported in the National Bankruptcy Ilegistel"S, are included in the digest. The citations to the first four volumes of the National Bankruptcy Eegisters are to the paging- of the quarto volumes. Where cases were found in the octavo volumes and not in the original reports, that fact is indicated. If a case is reported elsewhere than in the National Bankruptcy Kegister, a citation is given to all of the books where it is found. Opportunity is here taken to publicly express the obligations of the author for valuable assistance to Messrs. Irving U. Townsend, Edward F. CoUaday, H. F. "White and H. P. Heath of the District of Columbia Bar. E. 0. B. WASmNGHON, D. C, April, 1899. ABBREVIATIONS USED IN THIS DIGEST. Abb. (17. S.) Abbott, U. S. Courts. Alb. Law J. Albany Law JournaL Amer. Law Reg. (N. S.) American Law Register. Amer. Law Rev. . American Law Review. Amer. Law T. Rep. Bankr. American Law Times Repori;s,' Bankrwptey. Amer. Law T. Rep. IT. S. Cts. American Law Times Reports, U. S. Courts. Bait. Law T. Baltimore Law Transcript. Ben Benedict, U. S. Coiirts. Biss. Bissell, U. S. Courts. Blatchf. Blatchford, TJ. S. Circuit Court. Cent. Law J. Central Law JournaL Chi. Leg. News Chicago Legal News. Cin. Law BuL Cincinnati Law Bulletin. Cliff. Clifford, U. S. Circuit Court. Dill Dillon, U. S. Circuit Court. Hask. HaskeU, U. S. Court. How. Pr. Howard's Practice, New York. Hughes Hughes, U. S. Circuit Court. Int. Rev. Re& Internal Revenue Record. Leg. Int. Legal Intelligencer. Leg. Op. Legal Opinions. Lowell Lowell, U. S. Courts. N. B. R National Bankruptcy Register. N. Y. Wkly. Dig. New York Weekly Digest. Phila. Philadelphia Reports. Pittsb. Leg. J. Pittsburg Legal Journal. Sawy. Sawyer, U. S. Circuit Court. -, WalL Wallace, IT. S. Supreme Court, West. Jur. Western Jurist. Wkly. Notes Cas. Weekly Notes of Cases, Philadelphia. Woods Woods, IT. S. Circuit Court. Woolw. Woolworth, IT. 8. Circuit Court TABLE OF CASES. Abbe, In re (3 N. B. R. 26; 7 Amer. Law Reg. (N. S.) 824; 15 Pittsb. Leg. J. 589; Fed. Cas. 4). Partners, 59. Abendroth v. Van Dolsen (131 U. S. 66). Dis- charge, 263; Partners, 26; Stay of Pro- ceedings, 24. Adams, In re (2 N. B. R. 33; 3 Ben. 503; 36 How. Pr. 51 ; Fed. Cas. 89}. Examination of Bankrupt, 32. Adams, In re (3 N. B. R. 93; 3 Ben. 7; 36 How Pr. 370; 1 CM. Leg. News, 107; Fed. Cas. 40). Examination of Bankrupt, 6. Adams, In re (3 N. B. R. 139; Fed. Cas. 43). Conveyances, 48; Discharge, 173. Adams v. Boston, Hartford & Erie R. R. Co. (4 N. B. R. 99; 1 Holmes, 30; 5 Amer. Law Rev. 375; 18 Pittsb. Leg. J. 154; Fed. Cas. 47). Corporations, 3; Estate, 300; Sales, 21. Adams v. Collier (122 U. S. 383). Limitations, Statute of, 55; Mortgages, 71; Schedules, 17; Trustees, 187. Adams v. Meyers, Ass. (8 N. B. R. 314; 1 Sawy. 306; Fed. Cas. 63). Claims, 34, 203; Confusion of Goods; Proof, etc., 77. Ahl, Jr., et al.. Ass., v. Thorner (3 N. B. R. 39; 3 Bond, 287; 16 Pittsb. Leg. J. 78; 2 Amer. Law T. 104; 1 Chi. Leg. News, 337; 1 Amer. Law T. Rep. Bankr. 139; Fed. Cas. 103). Fraud, 31; Preferences, 156. Aiken v. Edrington, Sr., et al. (15 N. B. R. 271; Fed. Cas. 111). Estate, 11, 49, 50; Trustees, 21, 311. Alabama & Chattanooga R. R. Co., In re (6 N. B. R. 107; 9 Blatchf. 390; 5 Amer. Law T. Rep. 76; 6 Amer. Law Rev. 577; Fed. Cas. 134). Corporations, 3, 13, 14, 44^48; Courts, 115; Definitions, 4. Alabama &; Chattanooga R. R. Co. v. Jones (5 N. B. R. 97; Fed. Cas. 126). Attorneys, 7; Bankrupt Law, 6; Corporations, 2, 13, 14, 44-48; Pleading and Practice, 79, 833; Statutory Construction, 50. Alabama & Chattanooga R. R. Co. v. Jones: (7 N. B. R. 145; Fed. Cas. 127). Amend- ment, 35; Courts, 5,94; Receiver, 3; Rec- ord, 6. Albrecht, In re (17 N. B. R. 387; Fed. Cas. 145). Attachment, 51; Discharge, 266> Alden, In re (16 N. B. R. 39; 23 Int. Rev. Ree. 234, 382; 9 Chi. Leg. News, 346; 25 Pittsb. Leg. J. 4; Fed. Cas. 151). Sales, 53. Alden v. Boston, Hartford & Erie R. R. Co. (5 N. B. R. 330; Fed. Cas. 153). Receiver, 4. Alderdice, Ass., v. The State Bank of Va. et al. (11 N. B. R. 398; 1 Hughes, 47; Fed. Cas. 154). Estate, 15; Insolvency, 43;. Preferences, 97. Alexander, In re (3 N. B. R. 6; Chase, 295; 8 Amer. Law Reg. (N. S.) 423; 3 Amer. Law T. Rep. Bankr. 81; 16 Pittsb. Leg. J. 91: 3 Bait. Law Trails. 759; Fed. Cas. 160). Appeals and Writs of Error, 18; Courts,. 150; Review, 1. Alexander et al.. In re (4 N. B. R. 45; 1 Low- ell, 470; 18 Pittsb. Leg. J. 81; 3 Amer.. Law T. 280; 1 Amer. Law T. Rep. Bankr. 238; Fed. Cas, 161). Petition, 56; Pref- erences, 65. Alexander, In re (3 N. B. R. 20; 2 Amer. Law T. 137; Fed. Cas. 163). Costs and Fees, 97, 114. Allen et al.. In re (17 N. B. R. 157; 17 Alb. J. 170; 6 N. Y. Wkly. Dig. 43; 25 Pittsb. Leg. J. 143; 2 Month. Jur. 58; Fed. Cas. 210).. Composition, 17. Allen & Co. v. Ferguson (9 N. B. R. 481; 18 WalL 1). Claims, 7; Limitations, Stat- ute of, 35. Allen & Co. v. Montgomery et al. (10 N. B. R. 503). Conveyances, 9; Courts, 64; Es- tates, 91; Liens, 124; Pleading and Prac- tice, 204; Sales, 91; Stay of Proceedings, 3; Suits, 23. Allen, Ass. etc., v. Massey et al. (4 N. B. R. 75; 2 Abb, (N. S.) 60, 1 Dill, 40; 3 Chi. vm TABLE OF CASES. Leg. News, 309; 3 Anier. Law T. Rep. Bankr. 188; 1 Amer. Law T. Eep. Bankr. 218; Fed. Cas. 231). Preferences, 2, 169. Allen, Adni'x, etc., v. The Soldiers' Business Messenger & Despatch Co. (4 N. B. R. 176). Stay of Proceedings, 16. Allen V. Ward (10 N. B. R 285). Statutory Construction, 59; Stockholder, 20. Allen V. Whittemore, Ass. (14 N. B. E. 189; 8 Ben. 485; Fed. Cas. 241). Sales, 94. Alsberg, In re (16 N. B. R. 116; Fed. Cas. 261). Fraud, 62; Habeas Corpus, 4; Sales, 71. Alston V. Robinett (9 N. B. R. 74). Conflict of Laws, 6; Courts, 201; Discharge, 215. American File Co. v. Garrett (110 U. S. 288). Trustees, 225, 234. American Plate Glass & Fire Ins. Co. (12 N. B. E. 56; Fed. Cas. 314). Claims, 169. American Waterproof Cloth Co., In re (3 N. B. E. 74; 1 Ben. 526; Fed. Cas. 318). Pleading and Practice, 276. Ames, Ex parte. In re McKay & Aldus (7 N. B. R. 230; 1 Lowell, 561; Fed. Cas. 323). Mortgages, 44, 108, 148, 149; Pref- erences, 15, 80. Ames V. Moir (138 U. S. 206). Discharge, 247, 248. Amsink et al. v. Bean, Ass. (11 N. B. R. 495; 22 Wall. 395). Marshaling Assets, 5; Partners, 41, il3, 116, 117, 182, 183, 187; Petition, 20; Trustees, 181. Anderson, In re (12 N. B. E. 502; 7 Biss. 233; Fed. Cas. 350). Claims, 204; Secured Claims, 25. Anderson, In re (9 N. B. R. 360; 2 Hughes, 378; Fed. Cas. 351). Trustees, 5, 73. Anderson, In re (3 N. B. E. 166; Fed. Cas. 352). Costs and Fees, 50, 54. Andrews, Ass., v. Dole et al. (11 N. B. R 353; Fed. Cas. 373). Equity, 10; Estate, 119; Limitations, Statute of, 1. Andrews & Jones, In re (11 N. B. E. 59; 22 Pittsb. Leg. J. 41; Fed. Cas. 370). Costs and Fees, 88. Angell, In re (10 N. B. E. 73; 1 Cent. Law J. 368; 6 Chi. Leg. News, 841; 31 Leg. Int. 254; 21 Pittsb. Leg. J. 206; Fed. Cas. 386). Petition, 91. Angier, In re (4 N. B. E. 199; 10 Amer. Law Reg. (N. S.) 190; 4 Amer. Law T. 63; 1 Amer. Law T. Rep. Bankr. 248; Fed Cas. 388). Dower, 8; Sales, 68. Anketell, In re (19 N. B. R. 268; Fed. Cas. 394). Books of Account, 39; Definitions, 33. Anonymous (1 N. B. R. (8 vo. ed.)123; Bankr. Reg. Supp. 37; Fed. Cas. 457). Discharge, 84; Trustees, 189. Anonymous (2 N. B. E. 680). Discharge, 8& Anonymous (3 N. B. E. 100). Trustees, 85. Anonymous (3 N. B. E. 58). Eeferee, 56. Anonymous (3 N. B. E. 15; 15 Pittsb. Leg. J. 81; IN. B. R. 215; Fed. Cas. 471). Peti- tion, 160. Ansonia Brass & Copper Co. v. The New- Lamp Chimney Co. (10 N. B. R 355). Div- idends, 34. Ansonia Brass & Copper Co. v. Pratt, Ass. etc. (16 N. B. R. 170). Courts, 92; Estate, 153. Antisdel, In re (18 N. B. R. 289; Fed. Cas. 490). Books of Account, 1, 38 ; Conveyances, 56 ; Discharge, 58, 101, 103; Res Ad judicata, 3. Antrims, Ass., v. Kelly et al. (4 N. B. R. 189; Fed. Cas. 494). Conveyances, 49, 58. Appleton V. Bowles et al. (9 N. B. R. 854). Estate, 123; Pleading and Practice, 203; Preferences, 81 ; Trustees, 190. Appold, In re (1 N. B. R. 178; 7 Amer. Law Reg. (N. S.) 634; 6 Phila. 469; 25 Leg. Int. 180; 1 Amer. Law T. Rep. Bankr. 83; Fed. Cas. 499). Claims, 96, 97; Estate, 21. Arohenbrown, In re (8 N. B. R. 429; Fed. Cas. 503). Claims, 217; Costs and Fees, 40. Arohenbrown, In re (11 N. B. R. 149; 7 Chi. Leg. News, 99; Fed. Cas. 504). Claims, 115; Courts, 65, 98; Discharge, 200. Arohenbrown, In re (12 N. B. E. 17; 7 Chi. Leg. News, 331 ; Fed. Cas. 505). Books of Account, 14. Arledge, In re (1 N. B. R. 195; Fed. Cas. 533). Assignments, 58; Trustees, 202. Armstrong, In re (16 N. B. E. 275; 9 Ben. 212; Fed. Cas. 539). Insolvency, 37; Mort- gages, 22; Notice, 36. Armstrong, Ass., v. Eickey Bros. (3 N. B. R. 150; 1 Chi Leg. News, 145; 2 Amer. Law T. Rep. Bankr. 65; Fed. Cas. 546). Judg- ment, 10; Liens, 14, 15; Preferences, 359. Arnold, In re (3 N. B. E. 61; Fed. Cas. 551). Claims, 39; Preferences, 171. Ash, In re (17 N. B. R. 19; Fed. Cas. 571). Ex- amination of Bankrupt, 5. Ashley, In re (19 N. B. R. 237; F^d. Cas. 581). Estate, 128. Askew, In re (3 N. B. R. 143; Fed. Cas. 585). Exemptions, 20. Aspinwall, In re (10 N. B. R. 448; 7 Ben. 483; 31 Leg. Int. 365; 23 Pittsb. Leg. J. 75; TABLE OF CASES. IX Fed. Cas. 591). Attorneys, 17-SO; Evi- dence, 50, A.sten et al., In re (14 N. B. E. 7; 8 Ben. 350; Fed. Cas. 594). Composition, 111. Atkinson, In re (7 N. B. E. 143; 3 Pittsb. Rep. 433; 5 Amer. Law T. Eep. 330; Fed. Cas. 606). Contempt, 11; Injunction, 50a. Atkinson v. Kellogg (10 N. B. E. 535; 7 Chi. Leg. News, 9; Fed. Cas. 613). Dividends, 33; Estate, 338; Partners, 118; Trustees, 16. Atlantic Mutual Life Ins. Co., In re (16 N. B. E. 541; 9 Ben. 270; 16 Alb. Law J. 453; 34 Int. Eev. Eec. 13; Fed. Cas. 628). Cor- porations, 17,40; Insolvency, 6; Petition, 141. Atlantic Mutual Life Ins. Co., In re (17 N. B. R 368; 9 Ben. 337; Fed. Cas. 629). Ar- rest, 33; Contempt, 6; Costs and Fees, 106. Atlas Nat. Bank v. The B. F. Gardner Co. et al. (19 N. B. R 313; 8 Biss. 537; Fed. Cas. 635). Corporations, 49. Atwood, Ass., et aL v. Kettel et al. (17 N. B. R 406: 9 Ben. 473; Fed. Cas. 641). Es- tate, 82. Auflmordt v. Easin ((103 U. S. 630). Time, 7. Augenstein, In re (16 N. B. R. 353). Dis- charge, 311, 331; Notice, 48. August et aL, In re (19 N. B. E. 161; Fed. Cas. 645). Estate, 306. Augustine, Ass., v. McFarland et al. (13 N. B. E. 7; 1 N. Y. Wkly. Dig. 318; Fed. Cas. 648). Mortgages, 76. Austin et al., In re (16 N. B. R. 618; Fed. Cas. 663). Intervention, 8. Austin V. Markham (10 N. B. R. 548). Dis- charge, 346; Jury Trials, 3; Nonsuit, 2; Pleading and Practice, 47. Austin V. O'Reilly, Ass: (8 N. B. E. 139; Fed. Cas. 664). Liens, 68; Eent, 37. Austin v. O'Eeilly, Ass. (13 N. B. E. 339; 3 Woods, 670; 3 Cent. Law J. 455; 1 N. Y. Wkly. Dig. 36; Fed. Cas. 665). Eent, 33. Avery y. Cleary (133 U. S. 604). Limitations, Statute of, 9. Avery v. Johann, In re (8 N. B. E. 36; 3 Amer. Law T. Eep. Bankr. 93; 4N. B. R. 143; 1 Chi. Leg. News, 361; Fed. Cas. 675). Dividends, 36; Pleading and Prac- tice, 191; Secured Claims, 9. Avery, Ass., v. Hackley, Ex'x (11 N. B. R 341; 30 Wall. 407). Estate, 81. Avery, Ass. etc., v. Ryerson et al. (16 N. B. R. 389). Mortgages, 88; Trustees, 323. B. Babbitt, Ass., v. Burgess (7 N. B. R. 561; 3 Dill. 169; 5 Chi. Leg. News, 326; Fed. Cas. 693). Courts, 39; Estate, 188; Evi- dence, 1; Payment, 13; Pleading and Practice, 199; Trustees, 175. Babbitt, Ass., v. Walbrun & Co. (4 N. B. E. 30; 1 Dill. 19; 3 Chi. Leg. News, 285; Fed. Cas. 694). Fraud, 35, 75; Sales, 38. Babbitt, Ass., v. Walbrun & Co. (6 N. B. E. 359; Fed. Cas. 695). Notice, 17. Baohman, In re (13 N. B. E. 233; 3 Cent. Law J. 119; 33 Int. Rev. Rec. 19; Fed. Cas. 707). Corporations, 37, 35-37 ; Definitions, 8. Bachman, Ass., v. Packard (7 N. B. R. 353; 3 Sawy. 264; 4 Pao. Law Rep. 193; Fed. Cas. 709). Courts, 256, 257. Badenheim et al.. In re (15 N. B. R. 370; Fed. Cas. 716). Attachment, 1; Estate, 66. Baer, In re (14 N. B. R. 97; Fed. Cas. 723). ' Exemptions, 28, 95; State Laws, 23; Time, 4. Bailey, In re (15 N. B. E. 48; Fed. Cas. 727). Verification, 9. Bailey, Ass. etc., v. Comings (16 N. B. E. 383; 4 Law & Eq. Eep. 684; 10 Chi. Leg. News, 49; 35 Pittsb. Leg. J. 51; Fed. Cas. 733). Exemptions, 66, 67. Bailey, Ass., v. Loeb & Bro. (11 N. B. E. 371; 3 Woods, 578; 3 Cent. Law J. 43; Fed. Cas. 739). Liens, 63; Eent, 23. Bailey, Ass., v. Nichols et al. (3 N. B. E. 151; 3 Amer. Law T. Eep. Bankr. 60; 1 Chi. Leg. News, 185; Fed. Cas. 741). Claims, 198; Commercial Paper, 44. Bailey, Ass., v. Weir et al. (13 N. B. R. 34). Limitations, Statute of, 13. Bailly, In re (1 N. B. R. 177; 2 Ben. 437; Fed. Cas. 753). Definitions, 3; Sales, 39. Baily v. Washington & L, University (106 U. S. 11). Composition, 154. Baker, In re (14 N. B. E. 433; 14 Alb. Law J. 394; Fed. Cas. 763). Preferences, 105. Bake well. In re (4 N. B. R 199; 18 Pittsb. Leg. J. 289; 3 Pittsb. Rep. 333; Fed. Cas. 788). Proof, etc., 28. Balch, Ex parte. In re Elliott Felting Mills (13 N. B. R. 160; 3 Lowell, 440; Fed. Cas. 789). Claims, 157; Estoppel, 3. Baldwin, In re (19 N. B. R. 53; 8 Cent. Law J. 183; Fed. Cas. 796). Claims, 194; Se- cured Claims, 66. TABLE OF CASES. Baldwin, Ass., v. Eapplee (5 N. B. R. 19; Fed. Cas. 803). Appeals and Writs of Error, 6. Baldwin et al. v. Wilder et aL (6 N. B. R. 85; Fed. Cas. 806). Payments, 16. Ballard et al., In re (3 N. B. R. 84; 1 Chi. Leg. News, 103; Fed. Cas. 816). Fraud, 79. Ballow, In re (3 N. B. E. 177; 4 Ben. 185; Fed. Cas. 818). Estate, 361; Pleading and Practice, 86; Preferences, 116. Baltimore County Dairy Ass'n, In re (11 N. B. R. 253; 3 Hughes, 250; 3 Md. Law Rep. '297; Fed. Cas. 838). Laches, 5. Bamberg et.al. y. Stern (18 N. B. E. 74). Ar- rest, 17; Composition, 84. Bank of Columbia v. Overstreet et al. (18 N. B. R 154). Attachment, 9. Bank of Madison, In re (9 N. B. R 184; 5 Biss. 515; Fed. Cas. 890), Banks, 38; Es- tate, 159; Fiduciary Debt, 6. Bank of North Carolina, In re (10 N. B. R. 289, 290; 2 Hughes, 869; Fed. Cas. 894). Interest, 9. Bank of North Carolina, In re (19 N. B. R. 164; Fed. Cas. 896), Choses in Action, 8; Sales, 119. Bank of North Carolina v. Dewey, In re (19 N. B. R. 315; Fed. Cas. 897). Banks, 5. Bank of North Carolina, In re. (12 N. B. R 130; 1 N. Y. Wkly. Dig. 127; Fed. Cas. 895). Dividends, 23; Interest, 6. Barber v. Sterling, Jr. (17 N. B. R. 218). Part- ners, 6. Barbour v. Priest (103 U. S. 293). Prefer- ences, 38. Barbour et al. v. Priest, Ass. etc. (19 N. B. R. 518; 103 U. S. 293). Preferences, 40. Barker v. Smith et al. (13 N. B. R 474; 3 Woods, 87; Fed. Cas. 986). Conveyances, 3,22,59; Deeds, 5. Barman et al. In re (14 N. B. R 125; 3 N. Y. Wkly. Dig. Ill; Fed. Cas. 999). Mort- gages, 136. Barnard et al.. Ass., v. Norwich & Worcester R. R. Co.' et al. (14 N. B. R. 469; 4 Clifif. 351; 3 Cent. Law J. 608; 5 Amer. Law Eec. 361; 23 Int. Re-v. Rec. 312; Fed. Cas. 1,007). Conveyances, 70; Estate, 17; Liens, 75; Mortgages, 43. Barnert, Berry, Reed & Co. v. Hightower & Butler (10 N. B. R. 157; Fed. Cas. 1,009). Statutory Construction, 8, 15. Barnes' Appeal (13 N. B. R. 543; 91 U. S. 531). Judgment, 5; Rent, 38. Barnes v. Moore (3 N. B. R. 174). Discharge, ■ 234. Barnes, Ass., v. United States (13 N. B. R. 536; 21 Int. Rev. Rec. 313; 1 N. Y. Wkly. Dig. 177; Fed. Cas. 1,033). Claims, 109, 305. Barnewall & Gaynor, Ass., v. Jones, Dunn & Crawford (14 N. B. R. 378; Fed. Cas. 1,037). Estate, 255; Preferences, 19; Stat- utory Construction, 38, 63; Trustees, 38. Barrett, In re (11 N. B. R. 527; 1 Cent. Law J. 556; Fed. Cas. 1,044). Discharge, 65. Barrett, In re (3 N. B. R. 165; 3 Hughes, 444; 1 Chi. Leg. News, 203; 2 Amer. LawT. Rep. 182; 11 Int. Rev. Rec. 31; 1 Amer. Law T. Rep. Bankr. 144; Fed. Caa 1,043). Attorneys, 8; Partners, 133; Powers of Attorney, 1; Trustees, 153. Barron et al. v. Morris, Ass. (14 N. B. R 371; Fed. Cas. 1,055). Appeals and Writs of Error, 26; Claims, 159; Liens, 117; Mort- gages, 122; Preferences, 87. Barrow, In re; Loeb, Simon & Co., In re; Winter, In re (1 N. B. R 135; 1 Amer. Law T. Rep. Bankr. 63; Fed. Cas. 1,057). Courts, 44; Estate, 1; Sales, 19. Barstow v. Peokham, Ass., et al. (5 N. B. R 73; Fed. Cas. 1,064). Courts, 50, 51; Mortgages, 151; Pleading and Practice, 141, 187. Bartenbach, In re (11 N. B. R. 61; 3 Amer. Law T. Rep. (N. S.) 33; Fed. Cas. 1,068). Contracts, 30; Costs and Fees, 56; Dower, 2; Interest, 8; Sales, 103. Bartholomew, Ass., v. West et al. (8 N. B. R. 13; 3 Dill. 390; 7 West. Jur. 441; Fed. Cas. 1,071). Exemptions, 43, 43; Part- ners, 69; Trustees, 120. Bartholow et al. v. Bean, Ass. (10 N. B. R 841; 18 Wall. 635). Payment, 5, 6; Pref- erences, 153. Bartlett, Ass., v. Russell (16 N. B. R 311; 4 Dill. 267; 9 Chi. Leg. News, 377; 6 Amer. Law Rec. 13; 4 Law & Eq. Rep. 497; 34 Pittsb. Leg. J. 206; Fed. Cas. 1,080). Liens, 7. Bartusch, In re (9 N. B. R. 478; Fed. Cas. 1,086).. Pleading and Practice, 7; Ref- eree, 22. Bashford, In re (2 N. B. R 26j Fed. Cas. 1,090). Discharge, 116, 118. TABLE OF CASES. XI Bashore et al. v. Bhoads et al. (16 N. B. R. 72). Commercial Paper, 65; Set-off, 10. Bass, In re (15 N. B. R. 453; 3 Woods, 382; 9 Chi. Leg. News, 803; Fed. Cas. 1,091). Ex- emptions, 70. Bassett et al. v. Baird (17 N. B. R. 177). Liens, 24. Batchelder, In re (3 N. B. R. 37; 1 Lowell, 373; Fed. Cas. 1,098). Preferences, 159, 160. Batchelder, Adm'r, v. Low (8 N. B. R 571). Discharge, 235; Notice, 50; Schedules, 27. Batchelder v. Putnam (13 N. B. R. 404). At- tachment, 63. Bates V. Tappan (8 N. B. R. 159). Attach- ment, 19. Baum, In re (1 N. B. R (8 vo. ed.) 5; 1 Ben. 274; Bankr. Reg. Supp. 2; Fed. Cas. 1,116). Discharge, 56; Pleading and Practice, 28. Baxter et al.. In re (18 N. B. R. 62; Fed< Cas. 1,119). Partners, 175. Baxter et al.. In re (18 N. B. R. 497; 26 Pittsb. Leg. J. 140; Fed. Cas. 1,120). Commer- cial Paper, 17. Baxter et al., In re (18 N. B. R. 560; Fed. Cas. 1,121). Evidence, 99; Rules, 2. Baxter et al., In re (19 N. B. R. 295; Fed. Cas. 1,122). Committee, 5; Costs and Fees, 94. Bayly et al.. In re (19 N. B. R. 73; 26 Pittsb. , Leg. J. 173; Fed. Cas. 1,144). Composi- tion, 83. Beal, In re (2 K B. R. 178; 1 Lowell, 323; 2 Amer. Law T. Rep. Bankr. 95; 1 Chi. Leg. News, 326; Fed. Cas. 1,156). Books of Account, 40; Discharge, 182; Sched- ules, 30. Beall V. Harrell et al. (7 N. B. R. 400; Fed. Cas. 1,163). Bona Fide Transfer, 3; Con- veyances, 73; Estate, 29. Beals et al., In re (17 N. B. R. 108; 9 Ben. 233; Fed. Cas. 1,165). Courts, 119; Discharge, 93; Partners, 130; Petition, 109; Plead- ing and Practice, 265. Bean, In re (14 N. B. R. 182; 3 Wkly. Notes Cas. 432; Fed. Cas. 1,166). Claims, 166; Evidence, 9. Bean v. Amsink (8 N. B. R. 228; 10 Blatchf. 361; 12 Amer. Law Reg. (N. S.) 379; Fed. Cas. 1,167;. Composition, 120; Estate, 86; Fraud, 23. Bean, Ass., v. Brookmire & Rankin (7 N. B. R. 568; 3 Dill. 108; 5 Chi. Leg. Lews, 314; 2 Amer. Law Rea 222; 6 Amer. Law T. Rep.' 418; 7 West. Jur. 324; Fed. Cas. 1,170). Composition, 31, 60, 118; Estop- pel, 8; Fraud, 33. Bean, Ass., v. Brookmire & Rankin (4 N. B. R. 57; 1 Dill. 25; 10 Amer. Law Reg. (N. S.) 181; 4 West. Jur. 392; Fed. Cas. 1,168). Limitations, Statute of, 45; Plead- ing and Practice, 84; Preferences, 18. Bean, Ass., v. Laflin (5 N. B. R. 333; Fed. Cas. 1,172). Commercial Paper, 49; Trustees, 183. Bear & Steinberg, In re (11 N. B. R. 46; 1 Cent. Law J. 607; Fed. Cas. 1,178). In- surance, 8, 9. Beardsley, In re (1 N. B. R. 121 ; 1 Amer. Law T. Rep. Bankr. 94; Fed. Cas. 1,184). Dis- charge, 130; Estate, 187; Pleading and Practice, 145. Beardsley, In re (1 N. B. R. 53; 1 Amer. Law T. Rep. Bankr. 46; Fed. Cas. 1,183). Dis- charge, 18; Pleading and Practice, 39. Beams, In re (18 N. B. R. 500: Fed. Cas. 1,191). Stoppage in Transitu, 1, 3. Beattie, Ass., v. Gardner et al. (4 N. B. R. 106; 4 Ben. 479; Fed. Cas. 1,195). Courts, 159; Fraud, 57; Preferences, 1, 134. Beatty et al.. In re (2 N. B. R. 177; 3 Ben. 233; 1 Chi. Leg. News, 326; Fed. Cas. 1,196). Beck, In re (1 N. B. R. 163; 6 Phila. 475; 25 Leg. Int. 164; Fed. Cas. 1,205). Execu- tion, 27. Beckerford, In re (4 N. B. R. 59; 1 Dill. 45; 10 Amer. Law Reg. (N. S.) 57; 4 Amer. Law T. 14; 1 Amer. Law T. Rep. Bankr. 241; Fed. Cas. 1,209). Constitutional Law, 11; Exemptions, 50. Becket, In re (12 N. B. R. 201; 2 Woods, 173; 7 Chi. Leg. News, 243; Fed. Cas. 1,310). Composition,' 150; Discharge, 80. Beebe v. Pyle (18 N. B. R. 163). Composition, 49, 55; Interest, 7; Schedules, 15. Beecher, Ass., v. Clark et al. (10 N. B. R. 385; 12 Blatchf. 256; Fed. Cas. 1,223). Con- veyances, 35, 36. Beede, In re (19 N. B. R. 68; 26 Pittsb. Leg. J. 172; Fed. Cas. 1,226). Exemptions, 49. Beers et al.. In re (5 N. B. R. 211; Fed. Cas. 1,329). Claims, 138; Partners, 154. Beers et al., Ass.^ v. Place & Co. et al. (4 N. B. R. 150; 36 Conn. 578; 4 Amer. LawT. 136; 1 Amer. Law T. Rep. Bankr. 263; Fed. Cas. 1,283). Execution, 19; Liens, 42; Trustees, 108. xu TABLE OF CASES. Beeson et al. v. Howard (11 N. B. E. 486). Pleading and Practice, 54. Belcher, In re (1 N. B. R. 202; 3 Ben. 468; Fed. Cas. 1,237). Courts, 126; Petition, 96; Place of Business, 11. Belden, In re (6 N. B. R. 443; 5 Ben. 476; Fed. Cas. 1,239). Discharge, 207; Stay of Pro- ceedings, 10, 27. Belden, In re (3 N. B. R. 14; 2 Amer. Law- Rev. 771 ; 15 Pittsb. Leg. J. 547; Fed. Cas. 1,240). Discharge, 109. Belden & Hooker, In re (4 N. B. R. 57; Fed. Cas. 1,241). Examination of Bankrupt, 1. Belden, Ass. etc., v. Smith et al. (16 N. B. R 303; Fed. Cas. 1,242). Assignments, 33; Estate, 67, 68, 69; Judgment, 20, 21. Bellamy, In re (1 N. B. R. (8 vo. ed.) 64; 1 Ben. 390; 15 Pittsb. Leg. J. 1; Fed. Cas. 1,366). Discharge, 61; Examination of Bank- rupt, 35. Bellamy, In re (1 N. B. R. 96; 1 Ben. 426; Bankr. Reg. Supp. 21 ; 15 Pittsb. Leg. J. 1 ; Fed. Cas. 1,267). Discharge, 86. Bellis & Milligan, In re (3 N. B. R. 65; 38 How. Pr. 88; 1 Amer. Law T. Rep. Bankr. 178; Fed. Cas. 1,276). Courts, 238; Evi- dence, 70. Bellis & Milligan, In re (3 N. B. R. 49; 3 Ben. 386; 8 Amer. Law Reg. (N. S.) 747; 38 How. Pr. 79; 8 Amer. Law T. 170; Fed. Cas. 1,274). Evidence, 51. Bellis & Milligan, In re (3 N. B. R. 134; 4 Ben. 53; Fed. Cas. 1,275). Books of Ac- count, 26. Benham, A., In re (8 N. B. R. 94). Pleading and Practice, 230. Benjamin, Ass., v. Graham (4 N. B. R. 130; Fed. Cas. 1,301). Pleading and Practice, 200. Benjamin, Ass., v. Hart (4 N. B. R. 138; 4 Ben. 454; Fed. Cas. 1,302). Appeals and Writs of Error, 18; Bond, 1; Execution, 38; Pleading and Practice, 221-223. Bennett, In re (12 N. B. R. 257; 2 Hughes, 156; Fed. Cas. 1,313). Mortgages, 157; Rent, 12. Bennett et al. In re (13 N. B. R. 181 ; 2 Lowell, 400; Fed. Cas. 1,314). Partners, 31, 137. Bennett, In re; In re Erben (2 N. B. R. 66; 8 Amer. Law Reg. (N. S.) 34; 6 Phila. 473; 25 Leg. Int. 816; 1 Bait. Law Trans. 21; 1 Chi. Leg. News, 23; Fed. Cas. 1,315). Exemptions, 30. Benson, In re (16 N. B. R. 877; 8 Biss. 116; Fed. Cas. 1,328). Estate, 289; Married Woman, 19. Benton & Bro., In re (16 N. B. R. 75; 8 WkJy. Notes Cas. 547; Fed. Cas. 1,838). Judg- ment, 70; Preferences, 144. Bergeron, In re (12 N. B. R. 385; 3 Cent. Law J. 507; 1 N. Y. Wkly. Dig. 178; Fed. Cas. 1,342). Attachment, 61; Petition, 74; Pleading and Practice, 4. Berryman v. Allen (15 N. B. R. 113). Con- tracts, 19; Conveyances, 23; Sales, 33. Betts, In re (15 N, B. R. 536; 4 Dill. 98; 7 Re- porter, 532j 4 Cent. Law J. 558; 24 Pittsb. Leg. J. 195; Fed. Cas. 1,371). Courts, 109; Fraud, 81 ; Mortgages, 153. Biddle's Appeal (9 N. B. R. 144). Estate, 225. Bid well. In re (3 N. B. R. 78; Fed. Cas. 1,392). Discharge, 304; Partners, 60. Bieler, Francis J., In re (7 N. B. R. 553; Fed. Cas. 1,394). Courts, 95; Pleading and Practice, 64. Biesenthal et al.. In re (18 N. B. R. 120). Es- tate, 73. Biesenthal et al.. In re (15 N. B. R. 228). As- signments, 38; Estate, 59. Bigelow et al., In re (1 N. B. R. 203; 3 Ben. 469; Fed. Cas. 1,395). Banks, 13; Liens, 109; Stockholder, 11. Bigelow et al.. In re (1 N. B. R 186; 3 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1,396). Banks, 13; Sales, 93; Secured Claims, 57. Bigelow et al.. In re (2 N. B. R 121; 8 Ben. 146; 3 Amer. Law T. Rep. Bankr. 41 ; Fed. Cas. 1,897). Claims, 150; Partners, 174 Bigelow et al.. In re (2 N. B. R 170; 3 Ben. 198; 3 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 1,398). Claims, 165; Set-off, 30. Bigler v. Waller (4 N. B. R 86; Chase, 81&; 8 Amer. Law T. Rep. (U. S. Cts.) 157; 3 Chi. Leg. News, 36; 5 Amer. Law Rev. 570; Fed. Cas. 1,404). Claims, 314. Bill, Ass., V. Beck with et al. (3 N. B. R. 83; 1 Chi. Leg. News, 103; Fed. Cas. 1,406). Conveyances, 39; Jury Trials, 3; Plead- ing and Practice, 169. Billings, In re (3 N. B. R. 161; 3 Ben. 313; 3 Amer. Law T. Rep. Bankr. 87; Fed.- Cas. 1,408). Discharge, 139. Binford, In re (17 N. B. R. 353; 8 Hughes, 295; Fed. Cas. 1,411). Notice, 28; Sales,. 99, 100, TABLE OF CASES. XUl Bingham v. Claflin et al. (7 N. B. E. 412). Courts, 138, 269. Bingham v. Frost et al. (6 N. B. E. 130; Fed. Cas. 1,413). Mortgages, 160. Bingham, Ass., v. Richmond & Gibbs (6 N. B. R. 137; Fed. Cas. 1,415). Claims, 211; Preferences, 41, 213. Bininger et al.. In re (3 N. B. R. 131 ; 7 Blatchf. 159; 1 Amer. Law T. Rep. Bankr. 183; 17 Pittsb. Leg. J. 177; 9 Amer. Law Reg. (N. S.) 397; Fed. Cas. 1,417). Pleading and Practice, 243. Bininger et al.. In re (3 N. B. R. 133; 7 Blatchf. 165; 1 Amer. Law T. Rep. Bankr. 186; Fed. Cas. 1,418). Injunction, 60; Plead- ing and Practice, 114. Bininger et al.. In re (3 N. B. R. 133; 7 Blatchf. 108; 1 Amer. Law T. Rep. Bankr. 187; Fed. Cas. 1,419). Injunction, 60; Plead- ing and Practice, 114. Bininger & Clark, In re (9 N. B. R. 568; Fed. Cas. 1,431). Referee, 21. Bjornstad, In re (18 N. B. R. 283; 9 Biss. 13; Fed. Cas. 1,453). Courts, 4; Exemptions, 119; Partners, 78. Black et al.. In re, Ex parte Skilton et aL (17 N. B. E. 399; Fed. Cas. 1,459). Claims, 54; Estate, 90; Preferences, 303; Statu- tory Construction, 67. Black V. Blazo (13 N. B. R. 195). Discharge, 333. Black & Secor, In re (1 N. R E. 81; 3 Ben. 196; 1 Amer. Law T. Eep. Bankr. 39; Fed. Cas. 1,457). Definitions, 3; Estate, 368; Insolvency, 16; Preferences, 63, 100, 126, 137, 165. Black & Secor, In re (3 N. B. E. 65; Fed. Cas. 1,458). Execution, 30; Liens, 3. Black V. McClelland (13 N. B. R. 481; 7 Chi. Leg. News, 420; i N. Y. Wkly. Dig. 174; Fed. Cas. 1,462). Claims, 360, 261; Judg- ment, 36; Torts, 6. Blackwell v. Clay well et al. (15 N'. B. R. 300). Limitations, Statute of, 6; Partners, 133, 301. Blair et al.. In re (17 N. B. R. 493; 10 Chi. Leg. News, 378; 25 Pittsb. Leg. J. 123, 149; Fed. Cas. 1,481). Petition, 81; Proof, etc., 15. Blaisdell et al., In re (6 N. B. R. 78; 5 Ben. 420; 43 How. Pr. 374; Fed. Cas. 1,488). Pleading and Practice, 159; Referee, 47; Trustees, 48. Blake, In re (2 N. B, R. 2 ; Fed. Cas. 1 ,493). Evi- dence, 46; Examination of Bankrupt, 68. Blake v. The Alabama & Chattanooga E. R. Co. et al. (6 N. B. R. 331; Fed. Cas. 1,493). Courts, 81; Receiver, 1. Blandin, In re (5 N. B. R. 39; 1 Lowell, 543; Fed. Cas. l.MT). Claims, 164. Blasdel v. Fowle et al. (17 N. B. R. 412). Dis- charge, 198; Married Woman, 11; Mort- gages, 18. Bledsoe, In re (13 N. B. R. 403; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 1,533). Rent, 43. Blennerhassett v. Sherman (105 U. S. 100). Mortgages, 15. Block et al.. In re (18 N. B. E. 338; Fed. Cas. 1,551). Composition, 138; Vote, 14. Blodget & Sanford, In re (5 N. B. E. 473; Fed. Cas. 1,552). Trustees, 100. Blodgett & Sanford, In re (10 N. B. R. 145; Fed. Cas. 1,555). Exemptions, 113, 131. Bloom, In re (17 N. B. R. 425; 17 Alb. Law J. 434; 24 Int. Rev. Rec. 166; 35 Leg. Int. 165; Fed. Cas. 1,557). Mortgages, 130. Bloss, In re (4 N. B. R. 87; Fed. Cas. 1,562). Pleading and Practice, 241 ; Preferences, 48; Secured Claims, 27, 73; Waiver, 8. Blue Ridge E. E. Co., In re (13 N. B. R. 315; 3 Hughes, 334; 8 Chi. Leg. News, 390; 4 Amer. Law Rec. 456; Fed. Cas. 1,570). Courts, 225: Sales, 14. Blum, Ex'r, v. Ellis (13 N. B. E. 345). Courts, 164; Proof of Claims, 1. Blumenthal, In re (18 N. B. E. 555; Fed. Cas. 1,575). Books of Account, 9; Discharge,. 185; Partners, 9. Blumenthal, In re (18 N. B. R. 575; Fed. Cas. 1,576). Books of Account, 5. Boatman's Sav. Bank v. State Sav. Ass'n (114 U. S. 365). Claims, 113. Bodenheim et al.. In re (2 N. B. R. 133; 3 Amer. Law T. Eep. Bankr. 64; 1 Chi. Leg. News, 195; Fed. Cas. 1,504). Dis- charge, 66. Boese v. King (108 U. S. 379). Preferences, 37a. Bogert et al.. In re (3 N. B. E. 139: 38 How. Pr. Ill; 1 Chi. Leg. News, 311; Fed. Cas. 1,598). Certification, 10; Eeferee, 34. Bogert et al., In re (3 N. B. E. 161; Fed. Cas. 1,600). Trustees, 148. Bogert & Evans, In re (3 N. B. E. 178; 1 Chi. Leg. News, 343; Fed. Cas. 1,599). Plead- ing and Practice, 163; Surrender, 3, :xiv TABLE OF CASES. Bolander v. Gentry (2 N. B. B. (8 vo. ed.) 656). Estate, 113; Pleading and Practice, 307; Trustees, 208. Boltoj, In re (1 N. B. E. 83; 3 Ben. 189; 1 Amer. Law T. Eep. Bankr. 120; Fed. Cas. 1,614). Secured Claims, 49; Vote, 1. Bond, In re (3 N. B. E. 3; Fed. Cas. 1,618). Examination of Bankrupt, 25. Bonesteel, In re (2 N. B. E. 106; Fed. Cas. 1,628). Examination of Bankrupt, 13. bonesteel, In re (3 N. B. E. 187; 7 Blatchf. 175 ; Fed. Cas. 1,637). Pleading and Prac- tice, 176. Bonnett et al.,In re (19 N. B. E. 309;' Fed. Cas. 1,684). Committee, 1. Bonnett et al.. In re (19 N. B. E. 168; Fed. Cas. 1,633). Sales, 31. Booth, Jno. K., In re (14 N. B. E. 233; 8 Chi. Leg. News, 307; 1 Cin. Law Bui. 131; Fed. Cas. 1,645). Testimony, 3. Booth V. Clark (17 How. 333). Conflict of Laws, 13. Booth V. Meyer et el (14 N. B. E. 575). Claims, 5; Partners, 20S; Payment, 13. Boothe, Ass., v. Brooks, Neely & Co. (13 N. B. E. 398; 1 N. Y. Wkly. Dig. 125; Fed. Cas. 1,650). Mortgages, 27; Notice, 20; Statutory Construction, 33. Boothroyd et al.. In re (15 N. B. E. 368; 3 Cin. Law Bui. 139; Fed. Cas. 1,653). Es- tate, 397; Exemptions, 76; Mortgages, 33. Boothroyd & Gibbs, In re (14 N. B. E. 333; Fed. Cas. 1,653). Exemptions, 19, 56, 115 ; Partners, 74. Borden & Geary, In re (5 N. B. E. 128; 5 Ben. 338; Fed. Cas. 1,654). Appraise- ment, 1; Discharge, 187. Borst, In re (11 N. B. E. 96; Fed. Cas. 1,666). Discharge, 47; Proof, etc., 79. Borst, In re (3 N. B. E. 63; 1 Gaz. 18; Fed. Cas. 1,665). Arrest, 19. Boston, Hartford & Erie E. E. Co., In re (6 N. B. E. 333; 9 Blatchf. 409; 6 Amer. Law Eev. 583; Fed. Cas. 1,678). Adjudi- cation, 33; Pleading and Practice, 103; Time, 3. .Boston, Hartford & Erie E. E. Co., In re (6 N. B. E. 209; 9 Blatchf. 101; 6 Amer. Law Eev. 365; Fed. Cas. 1,677). Conflict of Laws, 19; Courts, 53; Intervention, 1; Petition, 163; Pleading and Practice, 148, 346, 283; Stay of Proceedings, 9; Suits, 1. Boston, Hartford & Erie E. E. Co., In re (5 N. B. E. 233; Fed. Cas. 1,680). Trustees, 147. Boston, Hartford & Erie R E. Co., In re (5 N. B. E. 233; Fed. Cas. 1,679). Pleading and Practice, 379. Bo.stwiok, Ass. etc., v. Foster (18 N. B. E. 128; 14 Blatchf. 436; Fed. Cas. 1,682). Estate, 101 ; Mortgages, 52. Bound, In re (4 N. B. E. 164; Fed. Cas. 1,697). Books of Account, 17. Bousfield & Poole, In re (16 N. B. R 481; Fed. Cas. 1,702). Sales, 60, 61, 134 Bousfield & Poole Mfg. Co., In re (17 N. R E. 153; Fed. Cas. 1,704). Claims, 107, 178; Conflict of Laws, 1, 15; Interest, 2; Judg- ment, 40; Pleading and Practice, 156. Bousfield & Poole Mfg. Co., In re (16 N. B. E. 489; Fed. Cas. 1,703). Claims, 135; Fraud, 18, 65; Preferences, 83, 236; Sales, 45, 125. Boutelle, In re (2 N. B. E. 51; 15 Pittsb.Leg. J. 616; 1 Chi. Leg. News, 30; Fed. Cas. 1,70,5). Discharge, 41. Bowie, In re (1 N. B. R 185; 15 Pittsb. Leg. J. 448; 1 Amer. Law T. Eep. Bankr. 97; Fed. Cas. 1,728). Courts, 45; Injunction, 38; Petition, 155. Bowman v. Harding (4 N. R R 5). Assign- ments, 86; Estate, 48; Liens, 133. Bowne & Ten Eyck, In re (13 N. B. E. 529; 1 N. Y. Wkly. Dig. 100; Fed. Cas. 1,741). Eent, 31, 33. Boyd, Wm., In re (5 N. R R 199; 2 Hughes, 349; Fed. Cas. 1,745). Choses in Action, 2-4; Estate, 381. Boyd, In re (16 N. R R 137, 204; 4 Sawy. 362; 9 Chi. Leg. News, 385; 10 Chi Leg. News, 1; 4 Law & Eq. Eep. 488; 6 Amer. Law Eec. 311; Fed. Cas. 1,746). Courts, 147, 373; Judgment, 68, 63; Liens, 53. Boynton, In re (10 N. B. R 135). Fraud, 44; Partners. 178. Boynton v. Ball (131 U. S. 457). Stay of Pro- ceedings, 15. Bracken v. Johnston (15 N. B. R 107; 4 Dili 518; 5 Amer. Law Eec. 461; 3 Month. Jur. 639; 4 Cent. Law J. 9; 3 Amer. Law T. Eep. (N. S.) 587; 11 Amer. Law Eev. 609; 3 N. Y. Wkly. Dig. 573; 1 Cin. Law Bui. 358; Fed. Cas. 1,761). Attachment, 37; Courts, 316; Suits, 21. Bradbury, Ass., v. Galloway (12 N. B. R 299; 3 Sawy. 346; 1 N. Y, Wkly. Dig. 34; TABLE OF CASES. xr Fed. Cas. 1,764). Statutory Construc- tion, 33. Bradshaw, Ass., v. Klein et al. (1 N. B. R. 146; 3 Biss. SO; 7 Amer. Law Eeg. (N. S.) 805; 1 Amer. Law T. Kep. Bankr. 72; 15 Pittsb. Leg. J. 433; Fed. .Cas. 1,790). Cou- veyanoes, 17. Brady v. Otis et al. (14 N. B. E. 345). Assign- ments, 56; Estate, 196, 197; Notice, 21. Braley v. Boomer et al. (13 N. B. R. 308). At- tachment, 49. Brand, In re (8 N. B. E. 85; 2 Hughes, 334; 3 Amer. Law T. Eep. Bankr. 66; Fed. Cas. 1,809). Claims, 99; Intent, 6; Se- cured Claims, 48; Testimony, 1. Brandies v. Cochrane (113 U. S. 344). Trustees, 171a. Brandon Mfg. Co. v. Frazer & Co. (13 N. B. E. 362). Proof, etc., 43. Brandon Nat. Bank v. Hatch (16 N. B. E. 468). Arrest, 9. Brandt, In re (3 N. B. E. 109; Fed. Cas. 1,813). Examination of Bankrupt, 34; Pleading and Practice, 95. Brandt, In re (3 N. B. E. 76; Fed. Cas. 1,813). Examination of Bankrupt, 40. Bratton v. Anderson (14 N. B. E. 99). Judg- ment, 4. Bray, In re (3 N. B. E. 58; 1 Chi. Leg. News, 30; Fed. Cas. 1,818). Courts, 7. Brack & Schermerhorn, In re (18 N..B. R. 216: Fed. Cas. 1,833). Eeferee, 41, 43, 54. Brack & Schermerhorn, In re (13 N. B. E. 215; 8 Ben. 93; Fed. Cas. 1,833). Lease, 8; Eent, 15. Brent, In re (8 N. B. E. 444; 3 Dill. 129; 18 Int. Eev. Eeo. 159; Fed. Cas. 1,832). Com- position, 99; Discharge, 50, 123; Pay- ment, 4 Brett V. Carter, 14 N. B. E. 301; 2 Lowell, 458; 3 N. Y. Wkly. Dig. 831; 23 Int. Eev, Eec. 153; 13 Alb. Law J. 361; 10 Am. Law Eev. 600; Fed. Cas. 1,844). Mort- gages,.H6, 139, 131; Preferences, 184, 353. Brick, In re (19 N. B. E. 508). Estate, 116; Partners, 86; Torts, 3. Bridgman, In re (1 N. B. E. 59; 1 Amer. Law T. Eep. Bankr. 48; Fed. Cas. 1,866). Pleading and Practice, 183; Liens, 116; Secured Claims, 33. Bridgman, In re (3 N. B. R. 84; 1 Chi. Leg. News, 103; Fed. C^s. 1,867). Attachment, 28; Courts, 343. B Briggs, In re (3 N. B. E. 157; 3 Chi. Leg- News, 318; Fed. Cas. 1,869). Estate, 366. Brightman et al.. In re (15 N. fe. E. 313; 14 Blatohf. 130; Fed. Cas. 1,878). Discharge, 1, 163; Pleading and Practice, 18. Brightman et al.. In re, Ex parte Cox et al. (18 N. B. E. 566; 19 Alb. Law J. 55; Fed. Cas. 1,879). Claims, 36. Brinker et al., }n re (19 N. B. E. 195; Fed. Cas. 1,883). Costs and Fees, 93, 96. Trus- tees, 75. Brinkman, H., In re (6 N. B. E. 541; Fed. Cas. 1,883). Injunction, 55; Sales, 17. Brinkman, Henry, In re (7 N. B. E. 431; Fed. Cas. 1,884). Courts, 235; Injunction, 63; Mortgages, 78. Brisco, In re (3 N. B. E. 78; 1 Gaz. iS; Fed, Cas. 1,886). Discharge. 81. Bristol, Ass., v. Sanford (13 N. B. R 78; 13 Blatchf. 341; Fed. Cas. 1,893). Trustees, 33, 39. Britton, Ass., v. Payen & Brennan (9 N. B. E. 445; 7 Ben. 319; Fed. Cas. 1,906). Pref- erences, 343. Brock V. Hoppock (3 N. B. E. 3; Fed. Cas. 1,913). . Acts of Bankruptcy, 7; Pleading and Practice, 13; Proof, etc., 6. Brock V. Terell (3 N. B. R. 190; 1 Chi. Leg. News, 349; Fed. Cas. 1,914), Liens, 65; Preferfences, 166; Rent, 23. Brook way, W. E*, In re (7 N. B. R. 595; 6 Ben. 326; Fed. Cas. 1,917). Books of Account, 7, 13; Evidence, 82. Brodhead, In re (2 N. B. R. 93; 3 Ben. 106; 1 Chi. Leg. News, 107; Fed. Cas. 1,918). As- signments, 51; Discharge, 171; Fraud, 6. Broich et al.,In re (15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1,921). Definitions, 23; Inter- est, 10; Petition, 37; Preferences, 38; Secured Claims, 33, 23, 70; Waiver, 7. Bromley & Co., In re (3 N. B. R. 169). Ex- amination of Bankrupt, 31. Bromley, Ass., v. Smith et al. (5 N. B. E. 153; 3 Biss. 511; 3 Chi. Leg. News, 397; Fed. Cas. 1,922). Claims, 278; Trustees, 60, 77, 231; Usury, 4. * Bromley v. Goodrich et al. (15 N. B. R. 289). Attachment, 43; Conveyances, 24; Courts, 135; Sales, 109. Brooke, Ass., v. McCraken (10 N, B. R. 461; 7 Chi. Leg. News, 10; Fed. Cas. 1,933). ' Courts, 37, 133; Evidence, 133; Fraud, 74; Statutory Construction, 9, 18, 48. XVI TABLE OF CASES. Brooke, Ass., v. Scoggins (11 N. B. E. 209; Fed. Cas. 1,936). Estate, 193. Brookmire'& Rankin v. Bean, Ass. (13 N. B. E. 217; 3 Dill. 136; S Cent. Law J. 365; Fed. Cas. I,9i2). Claims, 31; Composi- tion, 58. Brooks, In re (3 N. B. E. 149; 3 Amer. Law T. Eep. Bankr. 66; Fed. Cas. 1,943). Com- mercial Paper, 89; Liens, 74. Broome, In re (3 N. B. E. 113; Fed. Cas. 1,967). Assignments, 63. Broome, In re (3 N. B. E. 90; 3 Ben. 488; Fed. Cas. 1,966). Mortgages, 105. Brown et al. v. Broach at al. (16 N. B. E. 296). Discharge, 3, 272, 305; Partners, 67; Pleading and Practice, 41. Brown, In re (3 N. B. E. 177; 4 Ben. 142; Fed. Cas. 1,974). Claims, 83; Operatives, 6; Wages, 2. Brown, In re (3 N. B. E. 145; 5 Ben. 1 ; Fed. Cas. 1,975). Claims, 180. Brown, In re (3 N. B. E. CO; 2 Amer. Law T. 122; 1 Chi. Leg. News, 409; Fed. Cas. 1,980). Exemptions, 48. Brown, In re (15 N. B. E. 416; 9 Chi. Leg. News, 191; Fed. Cas. 1,981). Pleading and Practice, 146. Brown, In re (19 N. B. E. 270; Fed. Cas. 1,982). Injunction, 36. Brown, In re (19 N. B. E. 312; Fed. Cas. 1,983). Discharge, 214. Brown v. Gibbons (13 N. B. E. 407). Mort- gages, 70; Pleading and Practice, 260. Bruce, In re (16 N. B. E. 318; 9 Ben. 286; Fed. Cas. 2,045). Growing Crops, 2; Mort- gages, 39. Brunquest, Wm., In re (14 N. B. E. 539; 7 Biss. 208; Fed. Cas. 3,055). Liens, 54, 99. Bryan, Ass., Ex parte; In re Majoe (14 N. B. E. 71; 3 Hughes, 273; 23 Pittsb. Leg. J. 196; Fed. Cas. 2,061). Notice, 59; Sales, 55. Bryan, In re (3 N. B. E. 28; Fed. Cas. 2,062). Liens, 71. Bryoe et al.. In re (19 N. B. E. 287; Fed. Cas. 2,069). Composition, 96. Buchanan, In re (10 N. B. E. 97; Fed. Cas. 2,073). Adjournment, 9; Intervention, 2; Petition, 158; Pleading and Practice, 66, 296. Buchanan et al. v. Smith (7 N. B. E 513; 16 Wall. 277). Corporations, 54; Estate, 56; Insolvency, 39; Judgment, 25; Notice, 27, 28, 31. Buchstein, In re (17 N. B. E. 1; 9 Ben. 215; Fed. Cas. 2,076). Appeals and Writs of Error, 13; Discharge, 212, 220, 228; Laches, 3. Buck V. Winters (15 N. B. E. 140). Evidence, 83. Buckhouse & Gough, In re (10 N. B. R 206; 2 Lowell, 331; Fed. Cas. 3,086). Claims, 149. Buckingham v. McLean (13 How. 151). Pref- erences, 137. Bucknam v.' Dunn et al. (16 N. B. E. 470; a Hask. 315; Fed. Cas. 2,096). Courts, 142, 143; Estoppel, 23; Liens, 98. Bucknam, Ass., v. Goss (13 N. B. R 337; 1 Hask. -630; Fed. Cas. 3,097). Convey- ances, 10; Preferences, 181. Buckner v. Jewell & Norton (14 N. B. E. 286)> Jury Trials, 1; Eent, 5, 6. Buckner v. Street, Ass. (7 N. B. E. 355; 1 Dill. 248; 13 Int. Eev. Eec. 114; Fed. Cas. 2,098). Claims, 269. Bucyrus Machine Co., In re (5 N. B. E. 303j Fed. Cas. 3,100). Partners, 169. Buffington v. Harvey, Ass. etc. (17 N. B. E. 474; 95 U. S. 99). Conveyances, 40; In- junction, 68; Pleading and Practice, 80,. 347, 261. Bugbee, In re (9 N. B. E. 358; Fed. Cas. 2,115). Dividends, 8; Judgment, 41; Secured. Claims, 5; State Laws, 23. Bunster, In re (5 N. B. E. 82; 5 Ben. 342; 41 How. Pr. 406; Fed. Cas. 2,136). Dis- charge, 100, 138. Burbank v. Bigelow et al., Ass. (14 N. B. R. 445; 93 U. S. 179). Courts. 121, 171. Burch, In re (10 N. B. E. 150; Fed. Cas. 3,138). Amendment, 6. Burdick, Ass. etc., v. Jackson et aL (15 N. B. E. 318). Estate, 100; Guardian, etc., t; Mortgages, 29, 30, 50. Burfee, Ass., v. First Nat Bank of Janes- ville (9 N. B. R 314). Claims, 42; Judg- ment, 78; Pleading and Practice, 300; Preferences, 183. Burgess, In re (3 N. B. R 47; Fed. Cas. 2,153). Books of Account, 30; Discharge, 124. Burk, In re (3 N. B. R. 76; Deady, 425; i Amer. Law T. Rep. Bankr. 45; Fed. Cas. 2,156). Discharge, 46, 111; Limitations^ Statute of, 23; Place of Business, 3. Burk v. Winters, Ass. (15 N. B. R 140).. Trustees, 177o. TABLE OF CASES. XVU 'Burke & MoKee (15 N. B. R. 40; Fed. Cas. 2,157). Notice, 61 Buvkholder et al. v. Stump (4 N. B. R. 191; 28 Leg. Int. 125; 8 Phila. 172; Fed. Cas. 2,165). Costs and Fees, 8; Estate, 74; Pleading and Practice, 158. Burlingame, Ass. etc., v. Parce et al. (17 N. B. R. 246). Courts, 231 ; Mortgages, 150 ; Receiver, 8; Suits, 26. Burnell Bros., In re (14 N. B. R 498; 7 Biss. 275; 9 Chi. Leg. News, 84; 3 Cent. Law J. 750; 22 Int. Rev. Reo. 386; Fed. Cas. 2,171). Costs and Fees, 49, 101; Mar- shal, 17. Burnhisel v. Firman, Ass. (11 N. B. R. 505; 23 Wall. 170). Commercial Paper, 25. Burr V. Hopkins, Ass. (13 N. B. R. 211; 6 Biss. 845; 7 Chi. Leg. News, 266; Fed. Cas. 2,193). Claims, 38; Preferences, 204. BuiTill, Ass. etc., v. Lawry (18 N. B. R. 367; 2 Hask. 228; 11 Chi. Leg. News, 33; 24 Int. Rev. Rec. 342; Fed. Cas. 2,199). Con- veyances, 7, 34. Burt & Towne, In re (13 N. B. R. 137; 12 Blatchf. 252; Fed. Cas. 2,209). State Laws, 16, 17. Burton et aL, In re (17 N. B. R. 212; 9 Ben. 324; Fed. Cas. 2,214). Alien, 1; Attach- ment, 59; Courts, 120; Intervention, 9. Buse, In re (3 N. B. R. 52; Fed. Cas. 2,221). Pleading and Practice, 172; Secured Claims, 3. Bush, L., In re (6 N. B. R 179; 6 West. Jur. 274; Fed. Cas. 3,222). Adjudication, 21, 24; Notice, 56. Bush V. Crawford, Ass. (7 N. B. R 299; 9 Phila. 392; 20 Pittsb. Leg. J. 65; Fed. Cas. 2,224; Claims, 140; Commercial Paper, 37. Bush V. Lester et al., Adm'rs (15 N. B. R. 36). Constitutional Law, 20; Exemptions, 102; Liens, 82, 83; State Laws, 25. Bush V. Person (18 How. 83). Estoppel, 19. Bushey, In re (3 N. B. R. 167; 27 Leg. Int. Ill; Fed. Cas. 2,224). Referee, 53; Trust- ees, 49. Butler, H. L., In re (6 N. B. R. 501; 19 Pittsb. Leg. J. 146; 3 Pittsb. Rep. 369; Fed. Cas. 2,236). Rent, 13, 35. Butler, In re (4 N. B. R. 91). Insolvency, 29. Butterfleld, In re (14 N. B. R 147; 5 Biss. 120; Fed. Cas. 2,a47). Discharge, 14, 126. Butterfleld, D. C, In re (6 N. B. R 257). Pe- tition, 113, Butterfleld & Burr, In re (14 N. B. R. 195; Fed. Cas. 2,248). Powers of Attorney, 4. Buxbaum, In re (13 N. B. R 477; 2 Hughes, 339; Fed. Cas. 2,259). Discharge, 35. Byrd, Ass. etc., v. Harrold et al. (18 N. B. R. 433; 26 Pittsb. Leg. J. 128; Fed. Cas. 2,269). Estate, 5; Exemptions, 69. Byrne, In re (1 N. B. R. 122; 7 Amer. Law Reg. (N. S.) 499; 1 Amer. Law T. Rep. Bankr. 122; 15 Pittsb. Leg. J. 315; Fed. Cas. 2,270). Conveyances, 8 ; Dividends, 12; Marshaling Assets, 6; Partners, 97, 107; Proof, etc., 4 0. California Pacific R R Co., In re (11 N. B. R. 193; 3 Sawy. 240; 2 Cent. Law J. 79; Fed. Cas. 2,315). Agent, 17; Constitutional Law, 13, 14; Corporations, 4; Pleading and Practice, 324; Secured Claims, 69. Camden Rolling Mill Co., In re (3 N. B. R 146; Fed. Cas. 2,338). Petition, 146. Cameron v. Canieo & Co. (9 N. B. R 527; Fed. Cas. 2,340). Courts, 170; Place of Busi- ness, 15. Camp, In re (1 N. B. R 18; Fed. Cas. 2,346). Injunction, 3. Campbell, In re (1 N. B. R 165; 1 Abb. (U. S.) 185; Bankr. Reg. Supp. 36; 15 Pittsb. Leg. J. 13; Fed. Cas. 2,349). Discharge, 319. Campbell, In re. Ex parte Campbell et al. (17 N. B. R 4; 3 Hughes, 276; Fed. Cas. 2,348). Claims, 71; Courts, 237; Divi- dends, 29; Estate, 290; Evidence, 11; Examination of Bankrupt, 24; Married Woman, 3, 16; Meetings, 17; Notice, 13, 14; Pleading and Practice, 294, 295; Ref- eree, 27; Sales, 101; Trustees, 40, 41. Campbell, Ass., v. The Traders' Nat. Bank of Chicago et al. (3 N. B. R 124; 3 Biss. 423; 2 Chi. Leg. News, 148; 1 Md. Law Rep. 169; Fed. Cas. 2,370). Estate, 263; Preferences, 145, 256. Campbell, Ass., v. Waite et al. (16 N. B. R. 93; 9 Ben. 166; Fed. Cas. 2,374). Evi- dence, 36; Fraud, 70; Mortgages, 5; Notice, 22; Preferences, 33; Statutory Construction, 82. Canaday, In re (3 N. B. R. 3; 2 Biss. 75; 1 Chi. Leg, News, 113; Fed. Cas. 2,377). Discharge, 68. Canby, Ass., v. MoLear (13 N. B. R. 33; Fed. Cas. 2,378); Commercial Paper, 18; Ex- xvm TABLE OF CASES. amination of Bankrupt, 71; Married Woman, 13; Proof, etc., 7, 60; Trust, 5. Capelle, Ass., v. Hall (12 N. B. R 1; Fed. Cas. 2,391). Partners, 204. Capelle, Ass., v. The Trinity M. E. Church of Chester (11 N. B. E. 537; Fed. Cas. 2,393). Claims, 127; Limitations, Statute of, 3. Capital Publishing Co., In re (18 N. B. E. 319). Definitions, 15, 21; Pleading and Prac- tice, 134. Card well v. The Republic Fire Ins. Co. (13 N. B. E. 353; 7 Chi. Leg. News, 383; Fed. Cas. 3,396). Claims, 315. Carow, In re (4 N. B. E. 178; 41 How. Pr. 112; Fed. Cas. 2,426). Costs and Fees, 23; Courts, 244; Estate, 220; Pleading and Practice, 166; Marshal, 1; Eeferee, 33. Carpenter, In re (1 N. B. R. 51; Fed. Cas. 2,427). Contempt, 3. Carr v. Phillips (18 N. B. E. 527). Warrant, 2. Carrier & Baum, In re (13 N. B. E. 208; 23 Pittsb. Leg. J. 57; Fed. Cas. 3,443). Stat- utory Construction, 11. Carson, James, In re (5 N. B. E. 290; 5 Ben. 377; Fed. Cas. 2,460). Pleading and Prac- tice, 179; Schedules, 35, 36; Trustees, 99. Carson & Hard, In re (2 N. B. E. 41 ; Fed. Cas. 3.461). Carstens, In re (15 N. B. E. 350; 14 Blatchf. 117: Fed. Cas. 2,469). Costs and Fees, 113. Carter, W., In re (6 N. B. E. 399; 3 Biss. 195; 4 Chi. Leg. News, 187; 3 Leg. Op. 221; 6 Amer. Law Eev. 755 ; Fed. Cas. 3,470). Acts of Bankruptcy, 44; Commercial Paper, 93. Case V. Phelps et al. (5 N. B. R. 453). Con- veyances, 28, 51 ; Married Woman, 9. Casey, In re (8 N. B. E. 71; 10 Blatchf. 876; Fed. Cas. 3,495). Appeals and Writs of Error, 18; Mortgages, 63; Pleading and Practice, 210; Review, 5; Statutory Con- struction, 54. Cassard et al. v. Kroner (4 N. B. R 185). State Laws, 5. Castle, Ass., v. Lee (11 N. B. R. 80; Fed. Cas. 3,506). Preferences, 46, 322. Catlin, Ass., v. Foster (3 N. B. E. 134: 1 Sawy. 37; 3 Amer. Law T. 134; 1 Amer. Law T. Eep. Bankr. 192; Fed. Cas. 3,519). Costs and Fees, 64; Set-off, 32. Catlin, Ass., v. Hofflman (9 N. B. E. 342; 3 Sawy. 486; 21 Pittsb. Leg. J. 159; Fed. Cas. 2,521). Evidence, 81 ; Judgment, 52 ; Notice, 25; Preferences, 63, 133, 225. Cavan et al., In re (19 N. B. R. 303; Fed. Caa 2,528). Composition, 115; Laches, 9. Central Bank, In re (6 N. B. E. 207; Fed. Cas. 3,547). Courts, 205, 212. Central Bank of Brooklyn, In re (13 N. B. E. 286; 8 Ben. 114; 7 Chi. Leg. News, 371; 1 N. Y. Wkly. Dig. 55; Fed. Cas. 2,549). Courts, 169. Cerf, In re (11 N. B. E. 143; 7 Chi. Leg. News, 79; Fed. Cas. 2,556). Discharge, 188. Chamberlaines, In re (13 N. B. R 230; 3 Hughes, 364; Fed. Cas. 4,855). Agent, 14. Chamberlain et al.. In re (8 N. B. R 174; Fed. Cas. 2,574). Claims, 40; Conveyances, 15; Intent, 2; Proof, etc., 68. Chamberlin, In re (17 N. B. R 49; 9 Ben. 149; Fed. Cas. 2,580). Claims, 65, 66, 103; Com- position, 56; State Laws, 18. Chandler, In re (9 N. B. E. 514; 18 Amer. Law Eeg. (N. S.) 310; 6 Chi Leg. News, 239; Fed. Cas. 2,590). Claims, 268. Chandler, In re (4 N. B. R 66; 1 Lowell, 478; Fed. Cas. 2,591). Acts of Bankruptcy, 39; Commercial Paper, 3; Definitions, 14. Chandler, Eec, et al. v. Siddle (10 N. R R 236; 8 Dill. 477; 1 Cent Law J. 341; Fed. Cas. 3,594). Conflict of Laws, 14; Courts, 310; Receiver, 15; Stockholder, 4. Chapman v. Brewer (114 IT. S. 158). Trustees, 51, 179. Chapman v. Forsyth (3 How. 203). Agent, 34; Fiduciary Debt, 14; Proof, etc., 46; Schedules, 9. Chappel, In re (4 N. B. R 176; Fed. Cas; 3,613). Acts of Bankruptcy, 46. Chartered Bank of India, etc. v. Evans et al. (4 N. B. E. 46). Estate, 234. Cheney et al.. In re (19 N. B. R 16; Fed. Cas. 2,637). Eeferee, 17. Christley, In re (10 N. B. R 268; 6 Biss. 154; Fed. Cas. 3,793). Attorneys, S; Powers of Attorney, 3. Christman v. Haynes (8 N. B. R 528; Fed. Cas. 3,703> Estate, 259; Execution, 11; Trustees, 209. Chubb V. Upton, Ass. etc. (16 N. B. R 537; 95 U.S. 665). Stockholders, 16a; Trustees, 60a. Citizens' Nat. Bank v. Cass et al. (18 N. B. R 279; 6 Wkly. Notes Cas. 871; 6 Re- porter, 579; 19 Alb. Law J. 119; 26 Pittsb. Leg. J. 25; Fed. Cas. 3,733). Part- ners, 65; Petition, 33. TABLE OF CASEa XIX Citizens' Bank v. Ober (13 N. B. E. 328; 1 Woods, 80; Fed. Cas. 3,731). Sales, 15, 51. Citizens' Savings Bank, In re (9 N. B. R. 152; Fed. Cas. 2,735). Conflict of Laws, 9; Courts, 260; Injunction, 4. City Bank of Harrisburg v. Sherlock (16 N. B. R. 62). Banks, 21; Estate, 79; Set- off, 9). City Bank of New Orleans, Ex parte (8 How. 293). Mortgages, 83, 84. City Bank of Savings, Loan & Discount, In re (6 N. B. E. 71; 4 Chi. Leg. News, 81; 6 West. Jur. 65; Fed. Cas. 2,743). Claims, 274; Set-off, 24, 25. Claflin V. Houseman, Ass. (15 N. B. E. 49; 98 U. S. 130). Courts, 43, 69, 189. Claflin et al. v. Torlina et al. (11 N. B. E. 523). Contracts, 8. Clairmont, In re (1 N. B. R 48; 1 Lowell, 230; 1 Amer. Law T. Eep. Bankr. 6; Fed. Cas. 3,781). Trustees, 146. ' Clancy, In re (10 N. B. E. 315; Fed. Cas. 3,782). Claims, 129; Evidence, 141; Lease, 6. Clapp & Co., In re (14 N. B. E 191; 3 Lowell, 468; Fed. Cas. 2,785). Composition, 110. Clark, In re (8 N. B. E. 8; 2 Biss. 73; 1 Chi. Leg. News, 113; Fed. Cas. 2,800). Dis- charge, 99. Clark, In re (9 N. B. E. 67; Fed. Cas. 2,810). Accounts, 4; Eeferee. 31; Trustees, 4. Clark et al., In re (17 N. B. E. 554; Fed. Cas. 3,811). Coats and Fees, 98. Clark et al.. In re (19 N. B. E. 301; 30 Leg. Int. 414; Fed. Cas. 3,813). Discharge, 103. Clark & Bininger, In re (6 N. E. E. 197; 5 Ben. 389; Fed. Cas. 2,799). Accounts, 1-3. Clark & Bininger, In re (8 N. B. E. 123, 130; 4 Ben. 88; 1 Amer. Law T. Eep. Bankr. 189; Fed. Cas. 3,798). Courts, 175, 176, 181 ; Injunction, 32; Partners, 119. Clark & Bininger, In re (8 N. B. E. 133; 1 Amer. Law T. Rep. Bankr. 186; Fed. Cas. 2,804). Courts, 31; Review, 8. Clark & Bininger, In re (5 N. B. E. 355; Fed. Cas. 2,806). Secured Cl^^ims, 54. Clark & Bininger, In re (6 N. B. E. 194; Fed. Cas. 3,807). Meetings, 16; Referee, 45; Trustees, 46. Clark & Bininger, In re (6 N. B. R. 302; Fed. Cas. 2,808). Certification, 8. Clark & Bininger, In re (6 N. B. E. 204; Fed. Cas. 2,809). Eeferee, 51, 53. Clark V. Burton (4 N. B. E 2), Courts, 47. Clark, Asa. etc., v. Foss et al. (17 N. B. R. 261; 7 Biss. 640; 10 ChL Leg. News, 211; Fed. Cas. 2,852). Agent, 10; Contracts, 5, 14; Mortgages, 18. Clark, Ass,, v. Iselin et al. (11 N. B. R. 387; 31 Wall. 360). Insolvency, 2,43; Pledge, 4; Preferences, 29, 339, 347. Clark, Ass,, v. Iselin et al. (9 N. B. R. 19; 10 Blatchf. 304; 31 Pitlsb, Leg. J. 82; Fed. Cas. 2,835). Preferences, 17; Secured Claims, 10. Clark et al. v. Wilson et al. (16 N. B. E. 356). Trustees, 25, 36. Clark et al.. In re (4 N. B. E. 70; Fed. Cas. 2,805). Examination of Bankrupt, 11. Clark V. Bininger (3 N. B. E. 129). Injunc- tion, 49. Clark V. Clark (17 How. 315). Estate, 314; Sales, 127. Clarke, In re (2 N. B. E. 44; Fed. Cas. 3,844). Discharge, 115, 118. Clarke, In re (10 N. B. E 141). Costs and Fees, 116. Clarke & Daughtrey, In re (10 N. B. E. 31; 2 Hughes, 405; Fed. Cas. 3,848). Claims, 57. Classen v. Schoeneman (16 N. B. E. 98). Dis- charge, 253, 841; Limitations, Statute of, 38. Clay V. Smith (3 Pet. 411). Partners, 214. ' Cleary v. Ellis Foundry Co. (132 U. S. 612). Limitations, Statute of, 58. Clemens, John, In re (8 N. B. E. 279; 5 Chi. Leg. News, 511; 5 Leg. Op. 116; 3 Amer. Law Eec. 171; Fed. Cas. 2,878). Acts of Bankruptcy, 40. Clemens, In re (9 N. B. E. 57; 3 Dill. 538; 21 Pittsb. Leg. J. 30; Fed. Cas. 3,877). Acts of Bankruptcy, 66; Commercial Paper, 3i Cleveland Ins. Co. v. Eeed (34 How. 384). Es- tate, 104. Clews et al.. In re (19 N. B. R. 109; Fed. Cas. 3,891). Fraud, 97; Proof, etc., 34. Clifton et al. v. Fofeter et al. Ass. (3 N. B. R. 163). Liens, 103; Petition, 134. Clinton et al. v. Mayo (13 N. B. R. 39; Fed. Cas. 3,899). Petition, 90. Clough, In re (3 N. B. R. 59; 2 Ben. 508; 16 Pittsb. Leg. J..25; Fed. Cas. 2,905). Evi- dence, 100. Coan & Ten Broeke Carriage Mfg. Co., In re (12 N. B. R. 203; 6 Biss. 315; 7 Chi. Leg. , News, 260; Fed. Cas. 3,915). Estate, 373, XX TABLE OF CASES. Cobb, In re (1 N. B. E. 106; 1 Amer. Law T. ■Rep. Bankr. 59; Fed. Cas. 3,920). Ex- emptions, 83. Cogdell, Ass., V. Exum (10 N. B. E. 827). Amendment, 34; Courts, 96; Limita- tions, Statute of, 50; Trustees, 170. Cogswell, In re (1 N. B. E. (8 vb. ed.) 63; 1 Ben. 888; Ba«k. Eeg. Supp. 14; 14 Pittsb. Leg. J. 616; 6 Int. Eev. Eec. 85; Fed. Cas. 2,959). Trustees, 131. Cohen, In re (19 N. B. R 133; Fed. Cas. 3,961> Discharge, 203. Cohn, B., In re (7 N. B. E. 31; 6 Alb. Law J. 276; 20 Pittsb. Leg. J. 29; 29 Leg. Int. 309; 5 Chi. Leg. News, 13; Fed. Cas. 3,967). Arrest, 10. Cohn, J. S., In re (6 N. B. E. 379; Fed. Cas. 3,966). Assignments, 16; Costs and Fees, 60 ; Trustees, 35. Coit V. Eobinson et al. (9 N. B. E. 289; 19 Wall. 274). Appeals and Writs of Error, 31, 33; Courts, 36; Discharge, 78, 94, 95; Pleading and Practice, 117, 198. Colby V. Ledden (7 How. 626). Attachment, 37. Cole V. Eoach (10 N. B. E. 288). Courts, 214; Discharge, 287; Pleading and Practice, 45. Coleman, In re (3 N. B. E. (8 vo. ed.) 173; 7 Blatchf. 193; Fed. Cas. 3,979). Prefer- ences, 125. Colie V. Jamison (13 N. B. E. 1). Estate, 125. Collateral Security Bank v. Fowler, Trust. (13 N. B. E. 389). Intervention, 4; Suits, 24. Collier, Taylor & Co., In re (13 N. B. E. 266; Fed. Cas. 3,002). Partners, 83, 155, 156, 166. Collins, In re (1 N. B. R. 153; 3 Araer. Law T. Eep. Bankr. 7; Fed. Cas. 3,008). Ex- amination of Bankrupt, 56. Collins, In re (10 N. B. E. 835; 3 Biss. 415; Fed. Cas. 8,006). Married Woman, 33. Collins, In re (13 N. B. E. 379; 12 Blatchf. 548; 1 N. Y. Wkly. Dig. 78; Fed. Cas. 3,007). Mortgages, 54 Collins et al.. Ass., v. Bell et al. (3 N. B. E. 146; Fed. Cas. 3,010). Preferences, 174. Colman, In re (3 N. B. R, 172; 7 Blatchf. 192; Fed. Cas. 3,979). Claims, 259. Columbian Metal Works, In re (3 N. B. E. 18; Fed. Cas. 3,039). Courts, 151; Liens, 89; Pleading and Practice, 173; Sales, 108, 131. Colwell, In re (15 N. B. R. 93; 3 Lowell, 533r Fed. Cas. 17,539). Costs and Fees, 59, 61. Comegys v. Vasse (1 Pet. 193). Estate, 333. Comstock & Co., In re (10 N. B. R. 451; 3 Sawy. 138; 6 Chi. Leg. News, 413; 33 Pittsb. Leg. J. 25; Fed. Cas. 3,077). Pe- tition, 139; Statutory Construction, 17. Comstock & Co., In re (13 N. B. R. 193; 3 Sawy. 517; 8 Chi. Leg. News, 82; Fed. - Cas. 8,080). Attorneys, 6, 12; Trustees, 3. Comstock & Co., In re (13 N. B. R. 110; 3 Sawy. 320; Fed. Cas. 8,079). Claims, 46; References, 38, 221. Comstock et al. In re (9 N. B. E. 88; Fed. Cas. 8,075). Costs and Fees, 82; Marshal, 15. Comstock & Co., In re (11 N. B. E. 169; 3 Sawy. 218; 7 Chi. Leg. News, 126; Fed. Cas. 8,078). Corporations, 59; Estoppel, 20. Comstock V. Wheeler (3 N. B. E. 171; 3 Amer. Law T. Eep. Bankr. 87; Fed. Cas. 3,084). Adjudication, 18; Referee, 13. Comstock & Young (5 N. 1B. R. 191; Fed. Cas. 3,074). Costs and Fees, 76. Condict, In re (19 N. B. R. 143; 2 N. J. Law J. 83; Fed. Cas. 3,094). Discharge, 19. Cone, Ass., v. Purcell (11 N. B. E. 490). Trustees, 173. Cone, In re (2 N. B. E. (8 vo. ed.) 21; 2 Ben. 503; Fed. Cas. 3,095). Pleading and Practice, 121. Connell, Jr., In re (3 N. B. E. 113; Fed. Cas. 3,110). Discharge, 184 Conner v. Long (104 U. S. 238). Attachment, 15-17; Trustees, 51, 67. Conner v. Southern Express Co. (9 N. B. E. 138). Pleading and Practice, 288. Conover et al. v. Dumahaut et al. (17 N. B. E. 659). Composition, 85; Estate, 99; Judg- ment, 89. Cook et al. v. Eogers, Garnishee of Bow (13 N. B. E. 97). State Laws, 8; Trustees, 216. Cook et al., Ass., v. TuUis (9 N. B. R 433; 18 Wall. 332). Banks, 26; Estate, 171; Liens, 88; Preferences, 238; Eatification, 1,2; Trust, 10. Cook V. Waters, Whipple et al. (9 N. B. R 155). Accounts, 5; Courts, 19, 20, 185; Estate, 124, 136; Judgment, 47, 48; Plead- ing and Practice, 386; Preferences, 261; Statutory Construction, 31; Suits, 23; Trustees, 61. TABLE OF CASES. SXl Cooke & Co., In re (10 N. B. R. 126; Fed. Cas. 3,168). Examination of Bankrupt, 4, 26. Cooke & Co., In re (12 N. B. E. 30; 1 Wkly. Notes Cas. 818; Fed. Cas. 8,170). Part- ners, 161, 185, 186. Cooke & Co., In re (11 N. B..E. 1; 10 Phila. 262; 31 Leg. Int. 357; 1 Wkly. Notes Cas. 51; 9 West. Jur. 157; 22 Pittsb. Leg. J. 59; 1 Cent. Law J. 580; Fed. Cas. 3,169). Trustees, 228. 'Cookinham et al. v. Morgan et aL (5 N. B. R. Ifi; 7 Blatchf. 480; Fed. Cas. 3,183). Claims, 239; Preferences, 170. Cooper, In re (16 N. B. R. 178; Fed. Cas. 3,190). Injunction, 45; Mortgages, 38. ■Corey et al. v. Perry et al. (17 N. B. E. 147). Discharge, 161, 238. Corey et al. v. Ripley (4 N. B. R. 163). Dis- charge, 223. Corner v. Miller & Moore (1 N. B. R. 98). Attachment, 10, 26; Constitutional Law, 26. Corn Exchange Bank, In re (15 N. B. R. 431 ; 7 Biss. 400; 9 Chi. Leg. News, 254; 4 Law & Eq. Rep. 29; 15 Alb. Law J, 351; Fed. Cas. 3,242). Banks, 3; Claims, 104 Corn Exchange Bank, In re (15 N. B. R. 216; Fed. Cas. 3,243). Banks, 42. Cornwall, In re (6 N. B. R. 305; 9 Blatchf. 114; 6 Amer. Law Rev. 365; Fed. Cas. 3,350). Claims, 232 ; Conflict of Laws, 35 ; Conveyances, 80; Gift, 2; Limitations, Statute of, 31, 32, 36; Petition, 102; Plead- ing and Practice, 137; Review, 11. Cornwall, In re (4 N. B. R. 134; Fed. Cas. 3,251). Commercial Paper, 40. Cor win. In re (19 N. B. R. 422; Fed. Cas. 3,259). Discharge, 225; Pleading and Practice, 35. Cote, In re (14 N. B. R. 503; 3 Lowell, 374; Fed. Cas. 3,267). Books of Account, 16, 39; Definitions, 25. Coulter, In re (5 N. B. R. 64; 2 Sawy. 42; 1 Amer. Law T. Rep. Bankr. 257; 3 Chi. Leg. News, 377; 4 Amer. Law T. 131; Fed. Cas. 3,276). Adjudication, 8; Liens, 95. Court et al., In re (17 N. B. R. 555; Fed. Cas. 3,284). Fraud, 5; Laches, 7. Cowles, In re (1 N. B. R. 42; 1 West. Jur. 367; Fed. Cas. 3,297). Acts of Bankruptcy, 45; Commercial Paper, 47; Definitions, ■ 51; Intent, 8. Cox V. Wilder et al. (7 N. B. E. 341; 3 DilL 45; 5 Amer. Law T. Rep. (U. S. Cts.) 500; Fed. Cas. 3,308). Conveyances, 37; Dower, 9; Exemptions, 45. Cox V. Wilder et al. (5 N. B. E. 443; Fed. Cas. 3,309). Dower, 13; Exemptions, 57. Coxe V. Hale (8 N. B. R. 563; 10 Blatchf. 56; 19 Int. Rev. Rec. 30; 21 Pittsb. Leg. J. 77; Fed. Cas. 3,310). Costs and Fees, 7; Execution, 10; Petition, 6; Preferences, 249; Trustees, 33. Cozart, In re (3 N. B. R. 126; Fed. Cas. 3,313). Claims, 87; Judgment, 17. Craft, In re (1 N. B. R. 89; 3 Ben. 214; Fed. Cas. 3,316). Amendment, 7; Insolvency, 1; Powers of Attorney, 5; Preferences, 119, 245. Craft, In re (2 N. B. R. 44; 6 Blatchf. 177; Fed. Cas. 3,317). Pleading and Practice, 139, 140. Cragin v. Carmichael (11 N. B. R. 511; 2 Dill. 519; Fed. Cas. 3,319). Mortgages, 49; Pleading and Practice, 310; Trustees, 199. Cragin, Ass., v. Thompson (if N. B. R. 81; 3 Dill. 513; Fed. Cas. 3,320). Acts of Bank- ruptcy, 18; Trustees, 213. Craig, In re (4 N. B. R. 52; Fed. Cas. 3,324). Craig, In re (4 N. B. E, 50; Fed. Cas. 3,323). Evidence, 68; Examination of Bankrupt, 10. Craig, In re (8 N. B. E. 36; 3 Ben. 353; Fed. Cas. 3,323). Examination of Bankrupt, 9. Craig et al. v. State of Mississippi (4 Peters, 410). Constitutional Law, 36. Cram, In re (1 N. B. E. 133; 1 Hask. 89; 1 Amer. Law T. Eep. Bankr. 65, 120; Fed. Cas. 3,343). Attachment, 47; Secured Claims, 35, 45. Cramer, In re (13 N. B. R 225; 8 Chi. Leg. News, 106; Fed. Cas. 3,345). Claims, 53. Crane & Co., In re (15 N. B. E. 130; -1 Tex. Law J. 41; Fed. Cas. 3,353). Costs and Fees, 121; Evidence, 79. Crane, Ass. etc., v. Morrison et al. (17 N. B. E. 393; 4 Sawy. 138; Fed. Cas. 3,355). Claims, 70; Estate, 253. Crawford, Francis, In re (5 N. B. E. 301; Fed, Cas. 3,364). Claims, 241; Commercial Paper, 56. Crawford, In re (3 N. B. E. 171; 3 Amer. Law T. 169; 1 Amer. Law T. Eep. Bankr. 310;> xxu TABLE OF CASES. Fed. Cas. 3,363). Claims, 188; Judgment, 77. Crawford v. Halsey (124 U. S. 648). Trustees, 114, 189. Crawford v. Points (13 How. 11). Appeals and Writs of Error, 40. Creditors v. Cozzens et al. (3 N- B. R. 73; 2 West. Jur. 349; 16 Pittsb. Leg. J. 236; Fed. Cas. 3,378). Pleading and Practice, ' 242. Creditors v. Williams (4 N. B. R. 187; Fed. Cas. 3,379). Discharge, 48, 73. Cretiew, J., In re (5 N. B. R. 423; Fed. Cas. 3,390). Bankrupt Law, 9; Discharge, 38; Statutory Construction, 53. Crockett, In re (2 N. B. R. 20). Estate, 115. Crockett et al.. In re (2 N. B. R. 75; 2 Ben. 514; 2 Amer. Law T. Rep. Bankr. 21; Fed. Cas. 3,403). Partners, 45; Petition, 49; Torts, 1. Croft Brothers, In re (17 N. B. R. 324; 8 Biss. 188; 6 N. Y. Wkly. Dig. 218; 10 Chi. Leg. 204; 6 Amer. Law Reo. 597; Fed. Cas. 3,404). Acts of Bankruptcy, 8; Assign- ments, 49; Discharge, 176; Exemptions, 122; Partners, 71. Crompto'n et al. v. Conkling, Jr., et al. (15 N. B. R. 417; Fed. Cas. 3,408). Partners, 66. Cross, In re (16 N. B. R. 294; 25 Pittsb. Leg. J. 35; 5 Cent. Law J. 313; Fed. Cas. 3,487). Discharge, 71. Crossette et al.. In re (17 N. B. R. 208; Fed. Cas. 3,435). Secured Claims, 38, 73; Waiver, 11. Croughwell, In re (17 N. B. R. 337; 9 Ben. 360; Fed. Cas. 3,440). Assignments, 31; Estate, 76. Crowley, In re (1 N. B. R. 137). Amend- ment, 4. Crump, Ass., v. Chapman (15 N. B. R. 571; 1 Hughes, 183; 1 Va. Law J. 309; 24 Pittsb. Leg. J. 169; Fed. Cas. 3,455). Pleading and Practice, 90. Gumming v. Clegg (14 N. B. R. 49). Exemp- tions, 100; Mortgages, 64. Cunningham, In re (19 N. B. R. 276; 9 Cent. Law J. 208; 20 Alb. Law J. 257; Fed. Cas. 3,478). Attachment, 28; Estate, 223. Cunningham t. Cady (13 N. B. R. 535; 8 Chi. Leg. News, 165; 4 Amer. Law Reo. 510; Fed. Cas. 8,480). Evidence, 106; Plead- ~ ing and Practice, 71 ; Proof, etc., 58. Curran et al. v. Hunger et al. (6 N. B. R. 33; Fed. Cas. 3,487). Acts of Bankruptcy, 39; Pleading and Practice, 235; Prefer- ences, 63; Review, 10. Currier, In re (13 N. B. R. 68; 2 Lowell, 436; Fed. Cas. 3,493). Claims, 59, 280; Peti- tion, 75. Cutter et al. v. Evans (11 N. B. R. 448), Judg- ment, 3. Cutter, Ass. etc.,, v. Dingee (14 N. B. R. 294; 8 Ben. 469; Fed. Cas. 3,518). Mortgages,. 61; Sales, 95. D. Daggett et al., In re (8 N. B. E. 287; Fed. Cas. 3,535). Pleading and Practice, 120a. Daggett, In re (8 N. B. R. 433; Fed. Cas. 3,536)^ Courts, 313; Partners, 34. Dakin, In re (19 N. B. R 181; Fed. Cas. 3,539). Claims, 53; Mortgages, 35. Dalrymple v. Hillenbrand (17 N. B. E. 434>, Preferences, 37, 319. Dambmann v. White et al. (13 N. B. R. 438). Conveyances, 43; Courts, 187; Estate, 375; Evidence, 80; Pleading and Prac- tice, 73, 74, 157. Daniels, In re (13 N. B. R. 46; 6 Biss. 405; I N. Y. Wkly. Dig. 271; 8 Chi. Leg. News, 17; Fed. Cas. 3,566). Claims, 216. Darby, In re (4N. B. R 61, 98; 18 Pittsb. Leg. J. 154; Fed. Cas. 3,570). Proof, etc., 78; Trustees, 43, 47, 55, 329. Darby's Trustees v. Boatman's Saving Insti- tution (4 N. B. R. 195; 1 Dill. 141; 3 Chi. Leg. News, 249; 4 Amer. Law T. 117; 1 Leg. Op. 146 ; 1 Amer. Law T. Rep. Bankr. 251; Fed. Cas. 3,571). Preferences, 77, 266; Usury, 9. Darby's Trustees v. Lucas (5 N. B. R 437; Fed. Cas. 3,572). Preferences, 49, 78. Darsey v. Mumpford (17 N. B. R 181). Dis- charge, 358; Exemptions, 77, 101; Liens,, 81. Davenport, In re (3 N. B. R 18; 3 Amer. Law T. 136; Fed. Cas. 3,587). Costs and Fees, 68. Davidson, In re (3 N. B. R 49; 3 Ben. 506; Fed. Cas. 3,598). Courts, 14; Injunction, 1. Davidson, In re (3 N. B. R 106; 4 Ben. 10;, Fed. Cas. 3,599). Preferences, 108. Davis, In re (8 N. B. R. 167; Fed. Cas. 3,619)., Courts, 86; Mortgages, 81 ; Pleading and Practice, 103. Davis, In re (3 N. B. R 89; 3 Ben. 483; Fed^ Cas. 3,615). Acts of Bankruptcy, 6, 37. TABLE OF CASES. XXUV Davis V. Armstrong (3 N. B. E. 7; 2 Amer. Law T. 138; Fed. Cas. 3,624). Acts of Bankruptcy, 41. Davis, Ass., et al., In re (2 N. B. R. 125; 2 Amer. Law T. Rep. Bankr. 52; 1 Chi. Leg. News, 171; Fed. Cas. 3,618). Liens, 86; Sales, 86. Davis et al.. Trust., v. Railroad Co. et al. (13 N. B. R. 258; 1 Woods, 661: Fed. Cas. 3,648). Sales, 59, 93; Secured Claims, 6. Davis V. Anderson et al. (6 N. B. R. 145; Fed. Cas. 3,623). Assignments, 17 ; Claims, 33 ; Estate, 47, 143; Evidence, 84; Execution, 18; Fraud, 102; Record, 5. Davis V. Assignee of Stitzer (19 N. B. E. 61 ; 7 Reporter, 484; 36 Leg. Int. 176; 27 Pittsb. Leg. J. 115; Fed. Cas. 3,654). Liens, 46. Davis V. Friedlander (104 U. S. 570). Attach- ment, 23-25; Collateral Attack, 14. Davis & Son, In re (1 N. B. R (8 vo. ed.) 120; 7 Amer. Law Reg. (N. S.) 30; 15 Pittsb. Leg. J. 103; Fed. Cas. 3,614). Secured Claims, 24. Day V. Bardwell et al. (3 N. B. R 115). Bank- rupt Law, 3. Dean, In re (1 N. B. R 26; 1 Amer. Law T. Rep. Bankr. 9; Fed. Cas. 3,699). Costs and Fees, 57; Referee, 44. Dean, In re (3 N. B. R. 188; Fed. Cas. 3,701). Examination of Bankrupt, 52; Pleading and Practice, 96; Sales, 27. Deane, In re (2 N. B. R. 29; 15 Pittsb. Leg. J. 581, 583; Fed. Cas. 3,700). Affidar vits, 3; Evidence, 107; Fraud, 25; Sales, 36. Deckert, In re (10 N. B. R. 1; 2 Hughes, 183; 3 Amer. Law Rec. 96; 1 Cent. Law J. 316, 320; 6 Chi. Leg. News, 310; 1 Amer. Law T. Rep. (N. S.) 336; 13 Amer. Law Reg. (N, S.) 624; 8 Amer. Law Rev. 786; Fed. Cas. 3,728). Constitutional Law, 4, 10; Exemptions, 5, 6, 26. Deford et al. v. Hewlett (18 N. B. R. 518). Bankrupt Law, 4; Composition, 130; In- solvency, 5. De Ford, In re (18 N. B. R. 454; Fed. Cas. 3,744). Referee, 1. De Forest, In re (9 N. B. R. 278; Fed. Cas. 3,745). Courts, 24; Pleading and Prac- tice, 147. Deighton v. Kelsey et al. (4 N. B. R. 155). Discharge, 318; Attachment, 2\ Derby, In re (12 N. B. E. 241; 8 Ben. 118; 4 Amer. Law Reo. 33; Fed. Cas. 3,816). Dis- charge, 148. Derby, Walter S., In re (8 N. B. R. 106; 6 Ben. 232; 6 Alb. Law J. 423; Fed. Cas. 3,815). Acts of Bankruptcy, 59; Adjudication, 16; Petition, 54; Pleading and Practice,, 323. Detert, In re (11 N. B. E. 293; 7 Chi.. Leg. News, 130; 14 Amer. Law Reg. (N. S.) 166; Fed, Cas. 3,829). Prefer- ences, 3,306. Detroit Car Works, In re (14 N. B. R. 343: S- N. Y. Wkly. Dig. 140; Fed. Cas. 3,833).. Petition, 48. Devoe, In re (2 N. B. R. 11; 1 Lowell, 251; 1 Amer. Law T. Rep. Bankr. 90; 7 Amer. Law Reg. (N. S.) 690; Fed. Cas. 3,843), Arrest, 4; Courts, 266; Evidence, 2; Habeas Corpus, 3; Record, 1. Devore, In re (16 N. B. R. 56; 24 Pittsb. Leg. J. 185, 187 ; Fed. Cas. 3,847). Claims, 177;. Costs and Fees, 41, 42; Courts, 230; In- terest, 3; Liens, 87; Mortgages, 58, 59; Sales, 23. Dewey, In re (4 N. B. R. 139; 1 Lowell, 493; Fed. Cas. 3,849). Courts, 48; Trustees, 97. Dewey v. Kelton, Ass. etc. (18 N. B. E. 217; Fed. Cas. 3,850). Liens, 77: Dewey et al. v. Moyer et al. (18 N. B. E. 114).. Discharge, 344; Evidence, 134; Pleading and Practice, 49; Limitations, Statute of, 40. Dewey et al. v. Moyer et al. (16 N. B. E. 1). Conveyances, 44; Discharge, 331; Judg- ment, 76; Waiver, 23. Dey, In re (33 N. B. E. 81; 3 Ben. 450; Fed. Cas. 3,870). Liens, 101. Dibblee et al.. In re (3 N. B. E. 185; 3 Ben. 283; 1 Chi. Leg. News, 355; Fed. Cas. 3,884). Fiduciary Debt, 9; Insolvency, 27; Powers of Attorney, 7; Preferences, 147, 151. Dibblee et al.. In re (3 N. B. E. 185; 4 Ben. 137 ; Fed. Cas. 3,886). Pleading and Prao tice, 164. Dibblee et al.. In re (3 N. B. E. 17; 3 Ben. 354 j Fed. Cas. 3,885). Claims, 27; Compro- mise, 3. Dickerson v.. Spaulding et al., Ass. etc. (15 N. B. E. 313). Attachment, 4; Courts,, 166; Pleading and Practice, 337. XXIT TABLE OF CASES. Bickinson, In re (18 N. B. R. 514; 36 Pittsb. Leg. J. 143; Fed. Cas. 3,895). Adjourn- ment, 4; Referee, 3. Dickinson v. Adams (17 N. B. R. 380; 4 Sawy. 357; Fed. Cas. 3,896). Estate, 139; Fraud, 77; Preferences, 30. Dillard, In re (9 N. B. R. 8; 2 Hughes,. 190; 6 Amer. Law T. Rep. 490; 31 Pittsb. Leg. J. 82; Fed. Cas. 3,912). Constitutional Law, 10; Courts, 249; Estate, 166; Ex- emptions, 33; Liens, 111; Petition, 137; Sales, 63. ©imick V. Coleman (17 N. B. R. 479; 95 U. S. 266). Pleading and Practice, 314 Dingee v. Becker (9 N. B. R. 508; Fed. Cas. 3,919). Discharge, 12; Proof, etc, 40. Doan V. Compton et al. (3 N. B. R. 182; Fed. Cas. 3,940). Acts of Bankruptcy, 71; Preferences, 314. Dobbins, In re (18 N. B. R. 368; Fed. Cas. 3,943). Evidence, 75. Dodge, In re (1 N. B. R. 115; 3 Ben. 347; 7 Amer. Law Reg. (N. S.) 488; 1 Amer. Law T. Rep. Bankr. 120; Fed. Cas. 3,947). Dis- charge, 186. Dodge et al.. In re (17 N. B. R. 504; 9 Ben. 480; Fed. Cas. 8,948). Commercial Pa- per, 33; Estoppel, 5, 17; Proof, etc., 5; Usury, 7. Doe, In re (3 N. B. R (8 vo. ed.) 808; 1 Chi. Leg. News, 133; Fed. Cas. 3,957). Trust- ees, 139. Doe V. Hyde (114 U. S. 247). Limitations, Statute of, 54 Dole,'Nathaniel, In re (7 N. B. R. 538; 7 West. Jur. 629; Fed. Cas. 3,965). Contempt, 4; Discharge, 209; Estate, 55; Examination of Bankrupt, 50, 73; Pleading and Prac- tice, 23; Referee, 36. Dole, In re (9 N. B. R. 193; 11 Blatchf. 499; Fed. Cas. 3,964). Courts, 59; Examina- tion of Bankrupt, 50. Doll V. Harlow (11 N. B. R 350). Marshal, 12. Dolson et al. v. Kerr, Sherifif, etc. (16 N. B. R. 405). Assignments, 45; Judgment, 50. Donahue, Patrick, and John Page, In re (8 N. B. R. 453; Fed. Cas. 8,979). Costs and Fees, 105; Interest, 12; Marshal, 14; Plead- ing and Practice, 326. Donaldson, In re (11 N. B. R. 460; 3 Dill. 546; Fed. Cas. 3,982). Discharge, 69. Donaldson, Ass., v. Farwell et al. (15 N. B. R. 277; 93 U, S. 631). Estate, 40. Doody, In re (2 N. B. R. 74; Fed. Cas., 3,995). Discharge, 120. Doty, In re (16 N. B. R. 202; 1 N. W. Rep. (O. S.) 165; 10 Chi. Leg. News, 1; 25 Pittsb. Leg. J. 24; Fed. Cas. 4^017). Lim- itations, Statute of, 25. Douglass V. Schooner Davis and Cargo (3 N. B. R. 3). United States, 8. Dow, In re (6 N. B. R. 10; Fed. Cas. 4036). Appeals and Writs of Error, 14 15; Es- tate, 19; Mortgages, 143; Preferences, 88, Record, 4; Review, 9; Trustees, 324 Downing, In re (3 N. B. R. 182; 1 DilL 33; 17 Pittsb. Leg. J. 169; 3 Amer. Law T. 165; 3 Chi. Leg. News, 365; 1 Amer. Law T. Rep. Bankr. 207; Fed. Cas. 4044). Claims, 136; Partners, 100. Downing, In re (3 N. B. R. 181; 3 Chi Leg. News, 313; Fed. Cas. 4,045). Costs and Fees, 45. Downing, Ass., v. Traders' Bank (11 N. B. R. 371 ; 3 DilL 1 36 ; Fed. Cas. 4046). Banks, 6. Doyle, In re (3 N. B. R. 190; Fed. Ca& 4053). Discharge, 93. Doyle, In re (3 N. B. R. 158; Fed. Cas. 4051> Discharge, 178; Preferences, 155. Doyle et al. v. Sharp, etc. (19 N. B. R. 144). Estate, 380. Drake, In re (14 N. B. R. 150; 3 N. Y. Wkly. Dig. 50; Fed. Cas. 4058). Costs and Fees, 88. Dresser, In re (3 N. B. R. 138; Fed. Cas. 4,077). Estate, 179. Dreyer, In re (2 N. B. R. 76; Fed. Cas. 4,083). Discharge, 14 Dreyfus, Ex parte (13 N. B. R. 43; 2 Lowell, 305; 1 N. Y. Wkly. Dig. 396; Fed. Cas. 8,043). Claims, 378; Trustees, 24 Driggs, Ass., v. Moore et al. (3 N. B. R. 149; 1 Abb. (U. S.) 440; Fed. Cas. 4083). Es- tate, 363; Fraud, 18; Mortgages, 119. Driggs, Ass., v. Russell (3 N. B. R. 39; 1 Chi. Leg. News, 353; 2 Amer. Law T. 206; 1 Amer. Law T. Rep. Bankr. 160; Fed. Cas. 4,084). Estate, 391; Married Wom- an, 15. Drisco et al.. In re (14 N. B. R. 551; Fed. Cas. 4,086). Discharge, 156; Petition, 154; Pleading and Practice, 40. Drisko, In re (18 N. B. R. 112; 2 Lowell, 430; Fed. Cas. 4090). Petition, 153. Drummond, In re (1 N. B. R. 10; 1 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 4,098). Acts TABLE OF CASES. xsr of Bankruptcy, 49; Pleading and Prac- tice, 78; Preferences, 24. Dudley v. Easton (104 U. S. 99). Trustees, 53,54. Duerson, In re (13 N. B. E. 183; Fed. Cas. 4,117). Constitutional Law, 7, 8; Ex- emptions, 18, 21, 53. Duffield, Ass. etc., v. Horton et al. (19 N. B. R. 13). Estate, 127; Preferences, 103. Duffield et aL, Ass. etc., v. Horton et al. (16 N. B. E. 59). Attachment, 8 ; Estate, 144. Dumahaut & Co., lu re (17 N. B. E 517; Fed. Cas. 4,125). Dumahaut et al., In re (19 N. B. E. 393; Fed. Cas. 4,136). Costs and Fees, 4; Pleading and Practice, 204a. Dumont, In re (4 N. B. E. 4; Fed. Cas. 4,127). Mortgages, 26. Duncan et al.. In re (18 N. B. R. 42; Fed. Cas. 4,183). Pleading and Practice, 41a. Duncan et al.. In re (14 N. B. E. 18; 8 Ben. 365; Fed. Cas. 4,131). Discharge, 151; Petition, 12,140. Dundore v. Coates & Bros. (6 N. B. E 304; Fed. Cas. 4,143). Costs and Fees, 53, 78. Dunham et al. v. Welch et al. (3 N. B. E. 9; 2 Ben. 488; 1 Amer. Law T. Eep. Bankr. 89; Fed. Cas. 4,143). Pleading and Prac- tice, 289, 292; Preferences, 92; Secured Claims, 16. Dunkerson & Co., In re (13 N. B. E. 413; 4 Biss. 253; Fed. Cas. 4,157). Secured Claims, 28. Dunkerson & Co., In re (12 N. B. E. 391; 4 Biss. 333; 1 N. Y. Wkly. Dig. 179; Fed. Cas. 4,159). Claims, 253; Partners, 91. Dunkle & Driesbach, In re (7 N. B. E. 107; Fed. Cas. 4,161). Fraud, 47; Partners, 144, 146. Dunkle & Dreisbaoh, In re (7 N. B. E. 72; Fed. Cas. 4,160). Adjudication, 7; Claims, 93; Evidence, 129; Execution, 9, 26; In- junction, 76; Preferences, 67. Dunn et al., In re (9 N. B. E. 487; Fed. Cas. • 4,173). Evidence, 109, 160. Dunn, In re (11 N. B. E. 270; 2 Hughes, 169-; Fed. Cas. 4,172). Courts, 66. Dupee, In re (6 N. B. E. 89; 2 Lowell, 18; Fed. Cas. 4,188). Courts, 8; Discharge, 218. Durant, Ass., v. The Massachusetts Hospital Life Ins. Co. (16 N. B. E. 324; 2 Lowell, 575; 15 Alb. Law J. 436; Fed. Cas. 4,188). Estate, 168. Duryea, In re (17 N. B. R. 495; S Nat. Bank Cas. (Browne), 170; Fed. Cas. 4,196). Costs and Fees, 48; Injunction, 69; Pleading and Practice, 194. Dusenbury v. Hoyet (10 N. B. R. 313). Dis- charge, 283, 345; Waiver, 23. Dushane v. Bevel (161 U. S. 513). Sched- ules, 47. Dutoher, Ass., v. Marine Nat. Bank of New York et al. (11 N. B. R. 457; 12 Blatohf. 435; Fed. Cas. 4,303). Stockholder, 30; Trustees,. 59. Dutcher v. Wright, Ass. etc. (16 N. B. E. 331; 94 U. S. 553). Insolvency, 32, 33; Notice, 87, 38; Petition, 95; Preferences, 10; Suits, 9; Time, 6. Dwight, Foster et al., Ass., v. Ames et al. (3 N. B. E. 147; 3 Amer. Law T. Eep. Bankr. 65; Fed. Cas. 4,314). Sales, 139. Dyke & Marr, In re (9 N. B. R. 430; Fed. Cas. 4,327). Lease, 5; Rent, 19. E. Earle, In re (3 N. B. E. 81; Fed. Cas. 4,344). Evidence, 41. Eastman v. Hibbard (13 N. B. E. 360). Dis- charge, 264. Eb^rsole & McCarty v. Adams, et al. (13 N. B. E. 141). State Laws, 13. Ecfort & Petring v. Greely (6 N. B. E. 433; 4 Chi. Leg. News, 209; Fed. Cas. 4,260). Definitions, 10; Insolvency, 16. Eoker v. Bohn (16 N. B. E. 544). Contraofs, 20; Petition, 39. Ecker v. McAllister (17 N. B. E 43). Assign- ments, 42; Claims, 57; Contracts, 18, 21; Insolvency, 44; Petition, 40, 164, 165; Preferences, 308. Edith, In re (6 N. B. E. 449; 5 Ben. 433; 11 Amer. Law Eeg. (U. S.) 214; Fed. Cas. 4,283). Liens, 105; Marshaling Assets, 2. Edmondson v. Hyde, Ass. (7 N. B. E. 1; 2 Sawy. 205; 5 Amer. Law T. Eep. (U. S. Cts.) 380; Fed. Cas. 4,385). Conveyances, 5; Estate, 107; Mortgages, 110; Pay- ment, 13; Trustees, 37. Edwards, In re (3 N. B. R 109; Fed. Cas. 4,293). Exemptions, 46. Eidom, In re (8 N. 3. R. 39; Fed. Cas. 4,315). Costs and Fees, 34. Eidom, In re (3 N. B. R. 27; Fed. Cas. 4,314). Discharge, 28; Pleading and Practice, 37. XXVl TABLE OF CASES. Elder, In re (3 N. B. E. 165; 1 Sawy. 73; 17 Pittsb. Leg. J. 178; 3 Amer. Law T. 140; 2 Chi. Leg. News, 241; 1 Amer, Law T. Eep. Bankr. 198; Fed. Cas. 4,326). Claims, 263; Proof, etc., 56. Eldred, In re (3 N. B. R. 61; 1 Chi. Leg. News, 389; Fed. Cas. 4,328). Fraud, 39. Eldridge, In re (4 N. B. R. 163; 2 Biss. 362; 3 Chi. Leg. News, 177; Fed. Cas. 4,380), Costs and Fees, 43; Estate, 106; Fxtures, 3; Mortgages, ift 4; Preferences, 176. Eldridge & Co., In re (13 N. B. R. 540; 2 Hughes, 256; 1 N. Y. Wkly. Dig. 243; Fed. Cas. 4,331). Adjudication, 27; Courts, 90; Limitations, Statute of, 17- 19, 42. Elfeldt et al. v. Snow et al. (6 N. B. R. 57; 2 Sawy. 94; Fed. Cas. 4,342). Agent, 23; Composition, 34, 141; Fraud, 35, 90. Ellerhorst et al.. In re (7 N. B. R. 49; 2 Sawy. 219; Fed. Cas. 4,380). Costs and Fees, 43; Mortgages, 56; Sales, 107. Ellerhorst & Co., In re (5 N. B. R. 144; 6 Amer. Law Rev. 163; Fed. Cas. 4,381). Claims, 156; Dividends, 7. Elliott, In re (3 N. B. R. 44; Fed., Cas. 4,391). Discharge, 115. Ellis, In re (1 N. B. R. 154: Fed. Cas. 4,400). Attachment, 11; Estate, 177; Exemp- tions, 88; Sales, 117. Emery et al., Ass., v. Canal Nat. Bank (7 N. B. R. 317; 3 Cliff. 507; 6 West. Jur. 515; 5 Amer. Law T. Rep. (U. S. Cts.) 419; Fed. ' Cas. 4,446). Dividends, 18. Emison, In re (3 N. B. R. 179; 1 Chi. Leg. News, 343; Fed. Cas. 4,459). Proof, etc., 83. Erie R. R. Co. et al. v. Heath et al. (4 N. B. R. 177; 8 Blatohf. 413; Fed. Cas. 4,513). Stockholders, 31. Erwin & Hardee, In re (3 N. B! R. 143; Fed. Cas. 4,524). Claims, 189. Erwin v. United States (19 N. B. R. 173; 97 U. S. 392). Estate, 315, 316. Ess & Clarendon, In re (7 N. B. R. 133; 3 Biss. 301; 4 Chi. Leg. News, 357; 30 Pittsb. Leg. J. 34; 2 Md. Law Rep. 353; 1 Amer. Law Rec. 356; 6 Alb. Law J. 277; 6 West. Jur. 447; Fed. Cas. 4,530). Acts of Bank- ruptcy, 43; Commercial Paper, 83; Part- ners, 47. Estes & Carter, In re (19 N. B. R. 430; Fed. Cas. 4,536). Estate, 256. Ettinger, In re (18 N. B. R. 223; Fed. Cas. 4,543). Estate, 189; Mortgages, 153; Plead- ing and Practice, 171. Euwer, Ass. etc., v. Van Giessen et al. 19 N.. B. R. 263). Estate, 35. Evans, In re (3 N. B. R. 62; Fed. Cas. 4,552). Claims, 161; Statutory Construction, 48. Evans et al. v. Gallantine (18 N. B. R. 312). Composition, 11. Everitt, Jared, In re (9 N. B. R. 90; Fed, Cas. 4,579). Constitutional Law, 10, 34; Ex- emptions, 74, 106. Ewing et al.. In re (17 N. B. R. 109; Fed. Cas. 4,588). Composition, 38; Partners,. 50. Exchange National Bank of Columbus v. Harris, Ass. (14 N. B. R. 510; 1 Cin. Law Bui. 357; Fed. Cas. 4,595). Preferences, 11. Eyster v. Gaff et al. (13 N. B. R. 546; 91 U. S. 521). Courts, 358; Sales, 77. F. Factors, etc. Ins. Co. v. Murphy (111 U. S. 738). Mortgages, 85. Falkner, In re (16 N. B. R. 503; Fed. Cas. 4,634). Partners, 137; Trustees, 128, 161. Fallon, In re (2 N. B. E. 92; 1 Chi. Leg. News, 107; Fed. Cas. 4,628). Adjudication, 13; Res Adjudicata, 1. Faneway, In re (4 N. B. R 36). Estate, 235. Parish, In re (2 N. B. R. 63; Fed. Cas. 4,647). Exemptions, 63. Farmer et al.. In re; Ex parte GrifBn (18 N. B. R. 307; 10 Chi. Leg. News, 395; Fed. Cas. 4,650). Partners, 85. Farmer v. Taylor et al. (15 N. B. R. 515). Ex- emptions, 9, 14 Farmers' & Mechanics' Bank of Pennsyl- vania v. Smith (6 Wheat. 131). Con- tracts, 35, 39. Farnsvvorth, Brown & Co., In re (14 N. B. E. 148; 5 Biss. 333; Fed. Cas. 4,673). Banks, 16. Farrar v. Walker, Ass. etc., et al. (13 N. B. E. 82; 3 Dill. 506, note; 1 N. Y. Wkly. Dig. 329; 2 Cent. Law J. 670; Fed. Cas. 4,679). Contracts, 3; Laches, 4. Farrell, In re (5 N. B. R. 125; Fed. Cas. 4,680).. Discharge, 164. Farrin v. Crawford et al. (3 N. B. R. 181; 7 Chi. Leg. News, 343; Fed. Cas. 4,686). TABLE OF CASES. XXVU Acts of Bankruptcy, 19; Assignments, 14; Preferences, 153. Fay et al.. In re (3 N. B. R. 163; Fed. Cas. 4,708). Evidence, 44. Feely, In re (3 N. B. R. 15; 15 Pittsb. Leg. J. (O. S.) 391; Fed. Cas. 4,714). Exemptions, 27. Feeny, In re (4 N. B. R. 69; 1 Hask. 804; Fed. Cas. 4,715). Injunction, 50. Feinberg et al., In re (3 N. B. E. 137). Evi- dence, 6, 53. Fendley, In re (10 N. B. R. 300; 3 Amer. Law Rec. 105; Fed. Cas. 4,728). Agent, 4; Courts, 63; Injunction, 65, 73; Verifica- tion, 8. Fenton, Ass., v.CoIlerd (11 N. B. R. 535; 8 Ben. 27; Fed. Cas. 4,731). Trustees, 110. Ferguson etux. v. Peckham, Ass., et al. (6 N. , B. R. 569; 29 Leg. Int. 285; 6 Alb. Law J. 291; Fed. Cas. 4,741). Mortgages, 159; Pleading and Practice, 178. Ferguson, In re (16 N. B. R. 530; 2 Hughes, 286; Fed. Cas. 4,738). Discharge, 334; Laches, 8. Fernberg et aL, In re (3 N. B. R. 114; 1 Chi. Leg. News, 163; 3 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 4,743). Trustees, 3. Fiebelman v. Packard (108 U. S. 14). Mar- shal, 4. Field, Ass., v. Baker (11 N. B. R. 415; 13 Blatchf. 488; Fed. Cas. 4,763). Commer- cial Paper, 26; Sales, 46. Fillingin v. Thornton (12 N. B. R. 92). In- junction, 25. Findlay, In re (9 N. B. R 83; 5 Biss. 480; 6 Chi. Leg. News, 94; Fed. Cas. 4,789). Pleading and Practice, 398; Verifica- tion, 1. Finn, Michael, In re (8 N. B. R. 525; Fed. Cas. 4)795). Discharge, 165; Mortgages, 111. Firemen's Insurance Co., In re (8 N. B. R. 123; 3 Biss. 462; 5 Chi. Leg. News, 265; 6 Amer. Law T. Rep. Ill; 7 Amer. Law Rev. 567; Fed. Cas. 4,796). Insurance, 1, 2; Pleading and Practice, 8; Waiver, 16. First Nat. Bank of Clarion v. Jones, Ass. (11 N. B. R. 381; 31 Wall. 835). Insolvency, 4; Preferences, 140-143. First Nat. Bank of Troy v. Cooper et al. (9 N. B. R 539; 30 Wall. 171). Pleading and Practice, 10, 218; Proof, etc., 13; Trustees, 9. Fisher, Ass., v. Henderson et al. (8 N. B. R. 175; Fed. Cas. 4,830). Conveyances, 55. Fitch et al. v. McGie, Ex parte Sanger (3 N. B. R. 164; 3 Ataer. Law T. Rep. Bankr. 80 ; Fed. Cas. 4,835). Judgment, 43 ; Pref- erences, 148. Flanagan, In re (18 N. B. R. 439; 5 Sawy. 313; 36 Pittsb. Leg. J. 128; Fed. Cas. 4,850). Admission, 1; Composition) 41; Peti- tion, 83. Flanagan v. Pearson (14 N. B. R. 37). Ap- peals and Writs of Error, 5; Attorneys, 13; Fiduciary Debt, 5; Fraud, 39; In- junction, 40; Judgment, 37; Pleading and Practice, 205. Flannagans, Ex parte. In re Chamberlaines (13 N. B. R. 230; 3 Hughes, 364; 14 Amer. Law Reg. (N. S.) 688; 4 Amer. Law Rec. 304; Fed. Cas. 4,855). Claims, 14; Sales, 110. Fleitas v. Richardson (147 IT. S. 550). Dis- charge, 393, 310. Fogerty v. Gerrity, In re (4 N. B. R. 148; 1 Sawy. 333; 5 Amer. Law Rev. 163; Fed. Cas. 4,895). Adjudication, 9; Courts, 111; Place of Business, 6. Fogg Bros. V. Stickney, Ass. (11 N. B. R. 167; Fed. Cas. 4,898). Commercial Paper, 42. Foot et al.. In re (13 N. B. R. 337; 8 Ben. 338; 1 N. Y. Wkly. Dig. 76; Fed. Cas. 4,906). Dividends, 17; Marshaling Assets, 3; Partners, 94; Secured Claims, 65. Foot et al.. In re (11 N. B. R. 153; 11 Blatchf. 530; Fed. Cas. 4,907). Sales, 47,123. Ford et al., In re (18 N. B. R. 436; Fed. Cas. 4,933). Arbitration, 3, 3; Proof, etc., 25; Set-off, 23. Foreman, Ass. etc., v. Bigelow et al. (18 N. B. R. 457; 4 Cliff. 508; 7 Cent. Law J. 430; 7 Reporter, 137; 26 Pittsb. Leg. J. 138; Fed. Cas. 4,934). Corporations, 25; Fraud, 89; Limitations, Statute of, 16. Forest, In re (9 N. B. R. 378). New Trials, 1. Forsaith, Ass., v. Merritt et al. (3 N. B. R 11; 1 Lowell, 386; 3 Amer. Law T. 133; 1 Amer. Law T. Rep. Bankr. 168; Fed. Cas. 4,946). Preferences, 194. Forsyth & Murtha, In re (7 N. B. R. 174; Fed. Cas. 4,948). Claims, 57, 351; Costs and Fees, 39; Execution, 12; Notice, 1; Part- ners, 176; Payment, 8; Preferences, 50, 139. Forsyth v. Woods, Ass. (5 N. B. R. 78; 11 Wall. 484). Partners, 145; Surety, 15; Trust, 13. Fortune, In re (3 N, B. R, 83). Evidence, 103. xxvm TABLE OF CASES. Foster, In re (3 N. B. E. 81 ; 1 Amer. Law T. Rep. Bankr. 127; 1 Chi. Leg. News, 103 Fed. Cas. 4,961). Discharge, 167; Prefer- ences, 172. Foster, In re (18 N. B. R. 64; 10 Chi. Leg. News, 315; Fed. Cas. 4,964). Fraud, 16 Mortgages, 128; Preferences, 89, 189. Foster et al., In re (3 N. B. R. 57; 3 Ben. 386 Fed. Cas. 4,963). Courts, 274; Partners, 141; Statutory Construction, 47, Foster, Ass., v. Ames (2 N. B. R. 147; 1 Low- ell, 313; Fed. Cas. 4,965). Equity, 3 Liens, 93. Foster, Ass., v. Hackley et al. (2 N. B. R. 131 3 Amer. Law T. Rep. Bankr. 8; 1 Chi Leg. News, 137; Fed. Cas. 4,971). Estate 134; Preferences, 4. Foster v. Estate of Rhodes (10 N. B. R. 538 Fed. Cas. 4,981). Liens, 63; Mortgages, 65. Foster et al., Ass., v. Inglee, Collector of Taxes (13 N. B. R. 239; Fed. Cas. 4,973). Claims, 131. Fourth Nat. Bank of Chicago v. City Nat. Bank of Grand Rapids, Mich. (10 N. B. R. 44). Banks, 17, 43; Commercial Paper, 15; Estate, 18, 229. Fowler, Ass., v. Dillon et al. (12 N. B. R. 308; 1 Hughes, 232; Fed. Cas. 5,000). Courts, 145, 146; Interest, 13. Fowler, In re (1 N. B. R. (8 vo. ed.) 680; 1 Lowell, 161; Fed. Cas. 4,998). Adjudi- cation, 4; Partners, 23. Fowler, In re (1 N. B. R. (8 vo. ed.) 677), Proof, etc., 11. Fox V. Eckstein (4 N. B. R 123; Fed. Cas. 5,009). Adjudication, 6; Bona Fide Transfer, 4; Sales, 49. Fox et al. v. Gardner (12 N. B. E. 137; 21 Wall. 475). Commercial Paper, 34; Es- tate, 236; Preferences, 228. Francis & Buchanan, In re (7 N. B. R. 359; 4 Leg. Op. 493; 7 Alb. Law J. 13; 3Sawy. 286; 5 Pac. Law Rep. 213; Fed. Cas. 5,031). Evidence, 33; Partners, 1. Francke & Francke, In re (10 N. B. R. 438; 7 Ben. 420; 6 Chi. Leg. News, 414; 3 Amer. Law Rec. 298; Fed. Cas, 5,046). Discharge, 147; Statutory Construction, 71. Frank, In re (5 N. B. R. 194; 5 Ben. 164; Fed. Cas. 5,050). Compromise, 4; Proof, etc., 26; Trustees, 154, 155; Vote, 17. Frazier & Fry v. McDonald (8 N. B. R. 387; 30 Pittsb. Leg. J. 185; Fed. Cas. 5,073). Death, 1. Frear, In re (1 N. B. R. 201; 3 Ben. 467; 85^ How. Pr. 249; 1 Amer. Law T. Eepi. Bankr. 133; Fed. Cas. 5,074). Claims, 133, 239; Partners, 101, 318. Fredenburg, In re (1 N. B. R. 34; 3 Ben. 138.; Fed. Cas. 5,075). Attorneys, 11; Certifi- cation, 1; Definitions, 19; Evidence, 59;. Waiver, 3. Freelander & Gerson v. HoUoman et al. (^ N. B. R. 331; Fed. Cas. 5,081). Convey- ances, 53; Costs and Fees, 46; Limita- tions, Statute of, 46; Proof, etc., 33. Freeman, In re (4 N. B. R. 17; 4 Ben. 345; Fed. Cas. 5,083). Conveyances, 1; Dis- charge, 132; Pleading and Practice, 34. Freeman et al.. Trustee, v. Fort et aL (14 N, B. R. 47). Estate, 131. Freiderick, In re (3 N. B. R. 117; 8 Amer. Law T. Rep. Bankr. 71; 2 Chi. Leg. News, 139; 1 Amer. Law T. Rep. Bankr. 181; Fed. Cas. 5,092). Discharge, 11. French, Ass., v. The First Nat. Bank of New York (11 N. B. R. 189; 7 Ben. 488; Fed. Cas. 5,099). Corporations, 43; Equity, 9; Pleading and Practice, 269, 299. Friedberg, In re (19 N. B. R. 302; Fed. Cas. 5,116). Books of Account, 8, 35. Friedlob, In re (19 N. B. R 122; 11 Chi. Leg. News, 189; Fed. Cas. 5,118). Discharge, 157; Notice, 52. Frisbie, In re (18 N. B. R. 349; Fed. Cas. 5,131). Examination of Bankrupt, 36. Frisbie & McHugh, In re (15 N. B. R. 523; 14 Blatohf. 185; Fed. Cas. 5,129). Interven- tion, 15; Petition, 85, 86. Frizelle, In re (5 N. B. R. 122; Fed. Cas. 5,183). Mortgages, 62; Secured Claims, 84. Frizelle et al.. In re (5 N. B. R. 119; Fed. Cas. 5,133). Examination of Bankrupt, 74; Pleading and Practice, 25. Frost et al.. In "re (3 N. B. R. 180; Fed. Cas. 5,135). Claims, 143. Frost, In re (11 N. B. R. 69; 6 Hiss. 313; 7 Chi. Leg. News, 43; Fed. Cas. 5,134). Peti- tion, 67. Frost, Trustee, v. Hotchkiss (14 N. B. R. 443). Conflict of Laws, 33; Courts, 223. Frostman et al. v. Hicks et al. (15 N. B. R. 41). Stay of Proceedings, 13. TABLE OF CASES. sxrs. THiUer, In re (4 N. B. E. 29; 1 Sawy. 243; 18 Pittsb. Leg. J. 83; 3 Chi. Leg. News, 373; Fed. Cas. 5,148). Courts, 153; Injunc- tion, 13; Judgment, 51, 54; Petition, 161; Usury, 1, Funkenstein, In re (14 N. B. E. 213; 8 Sawy. 605; 8 Chi. Leg. News, 345; Fed. Cas. 6,158> Fraud, 1. G. Gage et aL v. Gates (15 N. B. R 145). Ad- judication, 1 ; Pleading and Practice, 138 ; Sheriff, 4. Gainey, In re (2 N. B. E. 163; Fed. Cas. 5,181). Exemptions, 10; Trustees, 20. Gallagher et al., In re (19 N. B. R. 224; Fed. Cas. 5,197). Estate, 54. Gallison et al.. In re (5 N. B. E. 353; 2 Low- ell, 72; Fed. Cas. 5,303). Claims, 258; Discharge, 52, 359; Judgment, 74; Plead- ing and Practice, 101. Gardner v. Cook, Ass. (7 N. B. E. 346; Fed. Cas. 5,326). Claims, 93; Costs and Fees, 15, 32; Liens, 60. Garrett, In re (11 N. B. E. 493; 2 Hughes, 235; Fed. Cas. 5,253). Courts, 236; Exemp- tions, 103. Garrison, Edward, In re (7 N. B. E. 287; 5 Ben. 480; Fed. Cas. 5,254). Books of Ac- count, 23; Definitions, 29. Garrison, Ass., v. Markley (7 N. B. E. 246; Fed. Cas. 5,256). Equity, 5; Evidence, 57; Pleading and Practice, 231. Gates, Ass., v. American & Smith (14 N. B. E. 141; Fed. Cas. 5,269). Suits, 8. Gates V. Goodloe (101 U. S. 612). Trustees, 112. Gates, Ass., v. The Winooski Lumber Co. (18 N. B. R 31; Fed. Cas. 5,370). Pleading and Practice, 255a. Gattman & Co. v. Honea, Ass. (13 N. B. E. 493; 7 Chi. Leg. News, 395; Fed. Cas. 5,271). Bona Fide Transfer, 1; Convey- ances, 30, 65; Preferences, 331. Gay, In re (2 N. B. E. 114; 1 Hask. 108; 1 Amer. Law T. Eep. Bankr. -73; 2 Amer. Law T. Eep. Bankr. 52; Fed. Cas. 5,279). Books of Account, 26; Discharge, 166; Insolvency, 7; Preferences, 158. Gebhardt, In re (3 N. B. E. 63; Fed. Cas. 5,294). Pleading and Practice, 252. Geery's Appeal (17 N. B. E. 196). Conflict of LawS; 3; Petition, 13; State Laws, 24. Gettleston, In re (1 N. B. E. 170; Fed. Cas. 5,373). Discharge, 6; Eeferee, 6. Ghirardelli, In re (4 N. B. E. 42; 1 Sawy. 343;- Fed. Cas. 5,376). Discharge, 201; In- junction, 81 ; Pleading and Practice, 19. Gibson, Ass., v. Dobie et al. (14 N. B. E. 156; 5 Biss. 198; Fed. Cas. 5,394). Mortgages, 23. Gibson et al. v. Lewis, Trustee (11 N. B. E. 247; 11 Phila. 476; 33 Leg. Int. 23; Fed. Cas. 5,398). Corporations, 26; Stock- i holder, 6. Gies, In re (12 N. B. E. 179; 7 Chi. Leg. News, 379; 1 N. Y. Wkly. Dig. 101; Fed. Cas.. 5,407). Claims, 90; Costs and Fees, 85. Gifford, In re (16 N. B. E. 135; Fed. Cas, 5,408). Discharge, 189. Gifford et al. v. Helms et al. (19 N. B. E. 113j 98 U. S. 348). Limitations, Statute of, 48; Sales, 118. Gilbert, In re (3 N. B. E. 37; 1 Lowell, 340;- Fed. Cas. 5,410). Examination of Bank- rupt, 13. Gilbert v. Priest (8 N. B. E. 159). Courts, 84,- 85; Fraud, 104; Trustees, 192. Gilday, In re (11 N. B. E. 108; 7 Ben. 491;. Fed. Cas. 5,423). Composition, 100. Gillespie v. McKnight et al. (3 N. B. E. 117;. Fed. Cas. 5,435). Mortgages, 104. Gillies et al. v. Cone et al. (2 N. B. E. 10). Acts of Bankruptcy, 63. Glaser, In re (1 N. B. E. 73; 2 Ben. 180; 1 Amer. Law T. Eep. Bankr. 57; 15 Pittsb.. Leg. J. 265; Fed. Cas. 5,474). Arrest, 25 ^ Courts, 28. Glaser, In re (1 N. B. E. 18; Fed. Cas. 5,475). Glaser, In re (2 N. B. R. 129; Fed. Cas. 5,476).- Contempt, 3; Evidence, 61. Glenny v. Langdon et al. (19 N. B. R 34; 98 U. S. 30). Courts, 30; Pleading and Practice, 160; Suits, 16. Globe Ins. Co. v. Cleveland Ins. Co. (14 N. B.. R 311; 8 Chi. Leg. News, 258; 4 Amer. Law Eec. 653; 13 Alb. Law J. 305; Fed- Cas. 5,486). Acts of Bankruptcy, 15. Glyn, In re; Ex parte Heidelbach, etc. (15 N. B. R 495). Commercial Paper, 87, 88; Place of Business, 8. Goddard, Ass., v. Weaver (6 N. B. R 440; 1 Woods, 257; Fed. Cas. 5,495). Estate, 146r Execution, 5. Goedde & Co., In re (6 N. B. E. 295; Fed. Cas- 5,500). Partners, 93. XXX TABLE OF CASES. Claims, 16; Collateral Attack, 3; Discharge, 375, 323; Seduction, 1; Torts, 5. Hoyt, In re (3 N. B. R 13; Fed. Cas. 6,806). Estate, 204. Hoyt et al. v. Freel et al. (4 N. B. R 34). Pleading and Practice, 118; Statutory Construction, 1. Hubbard, In re (1 N. B. E. (8 vo. ed.) 679; 1 Lowell, 190; Fed. Cas. 6,818). Proof, etc., 81. Hubbell et al.. In re (9 N. B. R 523; 19 Int. Eev. Rec. 150; Fed. Cas. 6,820). Costs and Fees, 81; Meetings, 15. Hubert v. Horter (14 N. B. R 430). Arrest, 34; Courts, 322; Discharge, 371; State Laws, 1. Hudgins v. Lane & Smithson (11 N. B. R. 463; 3 Hughes, 361; Fed. Cas. 6,837), Partners, 54, 136, 185; Proof, etc., 35. Hudson, Ass. etc., v. Adams et al. (18 N. B. R 103; 3 Cin. Law Bui. 1066; Fed. Cas. 6,833). Attachment, 33 ; Claims, 78 j Liens, 11. Hudson et al. v. Bingham et al. (8 N. B. R 494). Evidence, 137; Pleading and Prac- tice, 81, 83. Hudson, Ass., v. Schwab et al. (18 N. B. R 480; 26 Pittsb. Leg. J. 140; Fed. Cas, 6,835). Injunction, 37. Hufnagel, In re (12 N. B. R 554; Fed. Cas. 6,837). Adjudication, 28; Eent, 18; Sales, 73, 74, 120. SXXVl TABLE OP CASES. Hughes, In re (1 N. B. E. 9; 3 Ben. 85; 1 Amer. Law T. Rep. Bankr. 45; Fed. Cas. 6,841). Costs and Fees, 113; Discharge, 76; Trustee.s, 15, 80. Hughes et al., In re (16 N. B. B. 464; 8 Biss, 107; Fed. Cas. 6,843). Exemptions, 116; Partners, 75. Hughes & Son, In re (11 N. B. R. 453; 7 Chi. Leg. News, 163; Fed. Cas. 6,843). Exe- cution, 16; Liens, 58. Hull, In re (18 N. B. R. 1; 14 Blatohf. 357; Fed. Cas. 6,857). Attachment, 33; Exe- cution, 17; Liens, 10. Humble & Co. v. Carson (6 N. B. R. 84). Dis- charge, 383; Suits, 33. Hummitsh, In re (3 N. B. R. 3; 15 Pittsb. Leg. J. (O. S.) 494; Fed. Cas. 6,866). Discharge, 90; Schedules, 16. Hunt, In re (3 N. B. R. 166; 1 Chi. Leg. News, 169; Fed. Cas. 6,881). Constitutional Law, 37; Estate, 8; Evidence, 138; Sales, 41. Hunt, C, In re (5 N. B. R. 493; 4 Chi. Leg. News, 5; 3 Pac. Law Rep. 146; Fed. Cas. 6,883). Exemptions, SO; Injunction, 41. Hunt, In re (17 N. B. R. 305; 35 Leg. Int. 71; Fed. Cas. 6,884). Proof, etc., 74; Referee, 36; Sales, 96; Secured Claims, 68; Trust- ees, 166. Hunt V. Holmes et al. (16 N. B. R. 101; Fed. Cas. 6,890). Composition, 70; Dividends, 35; Injunction, 44; Insolvency, 36; No- tice, 40; Set-off, 38. Hunt & Hornell, In re (5 N. B. R. 433; Fed. Cas. 6,883). Claims, 51; Courts, 93; Fraud, 38; Judgment, 45; Petition, 100. Hunt V. Taylor (4 N. B. R. 683). Discharge, 380. Hunt, Tillinghast & Co. v. Pooke & Steere (5 N. B. R. 161; Fed. Cas. 6,896). Adju- dication, 31; Partners, 5, 33, 33; Petition, 17, 113; Pleading and Practice, 131. Hunter, In re (18 N. B. R. 504; Fed. Cas. 6,903). Notice, 53. Hurst, In re (13 N. B. R. 455; 1 Flip. 463; 8 Chi. Leg. News, 147; 3 Cent. Law J. 78; Fed. Cas. 6,935). Composition, 135, 136, 133. Hurst V. Teft, Ass. (13 N. B. R. 108; 13 Blatchf. 317; Fed. Cas. 6,939). Claims, 340; Estate, 156; Pleading and Practice, 116. Hussman, In re (8 N. B. R. 140; 3 Amer. Law T. Rep. Bankr. 53; 1 Chi. Leg. News, 177; Fed. Cas. 6,951). Discharge, 181; Fraud, 53; Sales, 65. Hutchings et al., Ass., v. Muzzy Iron Works (8 N. B. R. 458; 6 Chi. Leg. News, 37; Fed.. Cas. 6,953). Mortgages, 55. Hutto, In re (3 N. B. R. 191; 3 Amer. LawT. Rep. Bankr. 197; 1 Amer. Law T. Rep. Bankr. 336; Fed. Cas. 6,960). Waiver, 9. Hyde, Ass., v. Bancroft & Steiner (8 N. B. R. 34; Fed. Cas. 6,966). Injunction, 51. Hyde, Ass., v. Cohen et al. (11 N. B. R. 461; Fed. Cas. 6,967). Estate, 46. Hyde, Ass., v. Corrigan (9 N. B. R 466; Fed. Cas. 6,968). Estate, 183. Hyde, Ass., v. Sontag & Eldridge (8 N. B. R. 335; 1 Sawy. 349; Fed. Cas. 6,974). Estate, 360; Limitations, Statute of, 51. Hyde, Ass., v. Woods et al. (10 N. B. R. 54; 3 Sawy. 655; 1 Amer. Law T. Rep. (N. S.) 354; Fed. Cas. 6,975). Claims, 74; Es- tate, 83. Hyde, Ass. etc., v. Woods et al. (15 N. B. R. 518 ; 94 U. S. 523). Corporations, 38; Prefer- ences, 318. Hyman, In re (3 N. B. R. 107; 3 Ben. 38; 36 How. Pr. 383; Fed. Cas. 6,984). Adjourn- ment, 1; Referee, 18. Hyman et al.. In re (18 N. B. R. 399; Fed. Cas. 6,985). Composition, 8, 143. Hymes, In re (10 N. B. R. 433; 7 Ben. 437; Fed. Cas. 6,986). Evidence, 96; Petition, 68, 89; Schedules, 40; Statutory Con- struction, 70; Verification, 8. Hyslop, Ass., V. Hoppock et al. (6 N. B. E. 553; 5 Ben. 447; Fed. Cas. 6,988). Plead- ing and Practice, 330, 321. Hyslop, Ass., V. Hoppock et al. (6 N. B. R. 557; 5 Ben. 533; Fed. Cas. 6,989). Plead- ing and Practice, 318, 819. I.. Independent Ins. Co., In re (6 N. B. R. 169; 3 Lowell, 97; Fed. Cas. 7,018). Corpora- tions, 7; Courts, 361. Independent Ins. Co., In re (6 N. B. R. 360; Holmes, 103; 1 Ins. Law J. 735; Fed. Cas. 7,017). Conflict of Laws, 31; Cor- porations, 7; Estate, 3; Receiver, 9, 30. Indianapolis, Cincinnati & Lafayette R. R. Co., In re (8 N. B. R. 303; 5 Biss. 387; 18 Int. Rev. Rec. 379; 2 Pittsb. Leg. J. TABLE OF CASES. xxxyii. 4; Fed. Cas. 7,033). Courts, 376; Plead- ing and Practice, 57; Stockholder, 37, Ingersoll v. Bourne (154 U. S. 645). Innes v. Carpenter (4 N. B. R 139; Fed. Cas. 7,049). Commercial Paper, 11. International Bank v. Sherman (101 IT. S. 403). Conveyances, 16 ; Limitations, Stat- ute of, 49; Trustees, 51. Iron Mountain Co., In re (4 N. B. E. (8 vo. ed.) 645; 9 Blatchf. 380; Fed. Cas. 7,065). Se- cured Claims, 37. Irons & Coon, In re; Ex parte Adler (18 N. B. R. 95; 36 Pittsb. Leg. J. 11; Fed. Cas. 7,067). Costs and Fees, 18. Irving et al., In re (17 N. B. R. 33; Fed. Cas. 7,074). Claims, 250; Commercial Paper, 36. Irving et aL, In re (14 N. B. R. 289; 8 Ben. 463; 3 N. Y. Wkly. Dig. 500; Fed. Cas. 7,073). Contempt, 10; Courts, 333; In- junction, 74; Mortgages, 73, 77. Irving V. Hughes (8 N. B. R. 80; 7 Amer. Law Reg. (N. S.) 309; 6 Phila. 451; 34 Leg. Int. 380; 15 Pittsb. Leg. J. 131; Fed. Cas. 7,076). Injunction, 14; Pleading and Practice, 87. Isaacs & Cohn, In re (6 N. B. R. 93; 3 Sawy. 35; Fed. Cas. 7,093). Partners, 171. Isett V. Stuart (16 N. B. R. 191). Courts, 3, 339; Fraud, 15; Partners, 46; Pleading and Practice, 335. Isidor & Blumenthal, In re (1 N. B. R. 33; 3 Ben. 133; Fed. Cas. 7,105). Examination of Bankrupt, 38; Laches, 6. Israel, In re (18 N. B. R. 204; 3 Dill. 511; 3 Cent. Law J. 319; Fed. Cas. 7,111). Peti- ,tion, 73. Ives et al.. In re (18 N. B. R. 28; Fed, Cas. 7,116). Rent, 4. Ives et al.. In re (19 N. B. R 97; 5 Dill. 146; Fed. Cas. 7,115). Discharge, 110; Place of Business, 4. Ives et al. v. Tregent (14 N, B. R. 60). Evi- dence, 48; Sales, 2, 3; Trustees, 115. Jack, In re (13 N. B. R 396; 4 Amer. Law Rec. 453; 1 Woods, 549; Fed. Cas. 7,119). Acts of Bankruptcy, 75; Pleading and Practice, 3. Jackson et al., In re (14 N. B. R. 449; 7 Biss. 280; Fed. Cas. 7,123). Agent, C; Plead- ing and Practice, 6; Proof, etc., 9, 28, 64-66; Referee, 7; Trustees, 130, 134, 135. Jackson, Alfred, In re (8 N. B. R. 434; Fed. Cas. 7,138). Costs and Fees, 31; Exami- nation of Bankrupt, 41. Jackson Iron Mfg. Co., In re (15 N. B. R 438; 2 Mich. Lawy. 435; 2 Cin. Law Bui. 154, 157; Fed. Cas. 7,153). Contracts, 13; Mortgages, 31, 117. Jackson, Ass., v. McCulloch et al. (13 N. B. R 283; 1 Woods, 433; 1 N. Y. Wkly. I?ig. 534; Fed. Cas. 7,140). Assignments, 5, 8,' 44; Insolvency, 7. Jackson & Pearce, In re (2 N. B. R. 158; Fed. Cas. 7,127). Exemptions, 22; Trustees, 18, Jackson v. Miller et al. (9 N. B. R 143). Courts, 178; Estate, 133; Receiver, 2. Jacobs, In re (18 N. B. R 48; Fed. Cas. 7,159). Composition, 57, 61; Statutory Construc- tion, 5. Jacoby, In re (1 N. B. R 118; Fed. Cas. 7,165). Discharge, 206. James, In re (3 N. B. R 78; 1 Gaz. 78; Fed. Cas. 7,175). Dividends, 31. James, Adm'x, v. The Atlantic Delaine Co. et aL (11 N. B. R. 390; Fed. Cas. 7,179), Partners, 13; Petition, 45; Stockholder, 23, 39. Janeway, In re (4 N. B. R 26; 18 Pittsb. Leg, J. 67; 4 Brewst. 250; Fed. Cas. 7,208). Trust, 11. Jaycox & Green, In re (7 N. B. R 578; Fed. Cas. 7,241). Claims, 237, 238; Commer- cial Paper, 5; Suits, 25. Jaycox & Green (7 N. B. R 303; 7 West. Jur. 18; Fed. Cas. 7,240), Dividends, 11; Pleading and Practice, 11; Referee, 23; Secured Claims, 60; Trust, 6. Jaycox & Green, In re (7 N. B. R 140; Fed. Cas. 7,339). Costs and Fees, 80. Jaycox & Green, In re (8 N. B. R. 341; Fed. Cas. 7,343). Secured Claims, 40, 53. Jaycox & Green, In re (13 N. B. R. 133; 13 Blatchf. 209; Fed. Cas. 7,337). Appeals and Writs of Error, 19. Jefferson Insurance Co., In re (11 N. B. R 287; 2 Hughes, 355; Fed. Cas. 7,S53). Cor- porations, 16. Jelsh & Dunnebacke, In re (9 N. B. R 413; Fed. Cas. 7,257). Courts, 25; Evidence, . 94, 117; Pleading and Practice, 377. Jenkins, Ass., v. Armour & Six Others (14 N. B. R 376; 6 Biss. 312; 8 ChL Leg, XXX VIU TABLE OF CASES. News, 267; Fed. Cas. 7,260). Stockholder, 26. Jenkins v. International Bank of Chicago (106 U. S. 571). Appeal and Writs of Error, 2; Debt, 3. Jenkins, Ass., v. Mayer (3 N. B. R. 189; 3 Biss. 303; Fed. Cas. 7,372). Pledge, 1, 3; Preferences, 237. Jenks, In re (15 N. B. E. 301; Fed. Cas. 7,276). Claims, 168; Costs and Fees, 44. Jenks V. Opp (12 N, B. E. 19). Discharge, 338 ; Evidence, 7, 123. Jerome et al.. Ass. etc., v. McCarter (15 N. B. E 546; 94 U. S. 734). Courts, 227; Mort- gages, 68, 74. Jersey City Window Glass Co., In re; Ex parte Wigton (1 N. B. E 113; 7 Amer. Law Eeg. (N. S.) 419; 1 Amer. Law T. Eep. Bankr. 61; Fed. Cas. 7,292). Acts of Bankruptcy, 60; Amendment, 8; Com- mercial Paper, 77, 78, 79. Jervis v. Smith (3 N. B. E. 147). Dividends, 11; Secured Claims, 30; Surety, 7. Jewell et al., In re (19 N. B. E. 383; Fed. Cas. 7,302). Evidence, 4; Lease, 7. Jewett, In re (1 N. B. E. 131; 7 Amer. Law Reg. (N. S.) 394; 3 Amer. Law T. Eep. Bankr. 7 ; Fed. Cas. 7,309). Dividends, 14 Jewett, In re (1 N. B. E. 130; 7 Amer. Law Eeg. (N. S.) 391; 15 Pittsb. Leg. J. (O. S.) 354; Fed. Cas. 7,304). Dividends, 15; Marshaling Assets, 1; Partners, 87, 88, 103. Jewett et al.. In re (16 N. B. E. 48; 7 Biss. 473; 4 N. T. Wkly. Dig. 494; 9 Chi. Leg. News, 345; 4 Law & Eq. Eep. 77; 33 Int. Eev. Rec. 233; Fed. Rep. 7,307). Part- ners, 35; Petition, 142. Jewett et al., In re (15 N. B. R. 126; 7 Biss. 328; Fed. Cas. 7,306). Partners, 10, 34. Jewett, Ex parte; In re Morris (1 N. B. E. 443; 3 Lowell, 393; 13 N. B. E. 170; Fed. Cas. 7,303). Petition, 123; Waiver, 13. Jobbins, Ass., v. Montague et al. (6 N. B, E. 509; Fed. Cas. 7,330). Courts, 54, 55, 116, 117; Pleading and Practice, 283. Jobbins, Ass., v. Montague et al. (6 N. B. E. 117; 5 Ben. 425; Fed. Cas. 7,329). Marshal, 7; Pleading and Practice, 317. Johann, In re (4 N. B. R. 143; 2 Biss. 139; Fed. Cas. 7,331). Conveyances,'60; Courts, 140; Judgment, 13; Liens, 110; Secured Claims, 12, Johnson v. Bishop (8 N. B. R. 533; Woolw. 324; 21 Pittsb. Leg. J. 77; Fed. Cas. 7,373).. Estate, 125. Johnson v. Collins, 13 N. B. E 70). Attach- ment, 50. Johnson, Ass. etc., v. Helmstaedter et aL (19- N. B. E. 71). Conveyances, 33; Suits, 20. Johnson, Ass. etc., v. May et al. (16 N. B. E.. 425; Fed. Cas. 7,397). Estate, 174; Ex- emptions, 73, 78; Married Woman, 30. Johnson et al. v. Price (13 N. B. R 533; Fed^ Cas. 7,407). Courts, 41. Johnson, Ass., v. Eogers et aL (15 N. B. R 1;. 5 Amer. Law Eec. 536; 14 Alb. Law J. 427; Fed. Cas. 7,408). Assignments, 39; Choses in Action, 7; Dividends, 30; Es- tate, 14; Estoppel, 11; Fraud, 8; Liens^ 23, 56, 57, 76; Notice, 24; Trustees, 71. Johnson v. Worden (13 N. B. R 335). Dis- charge, 251; Proof, etc., 37; Eeferee, 8. Johnston, In re (14 N. B. E. 569; Fed. Cas. 7,423). Evidence, 113; Pleading and Prac- tice, 83. Johnston & Hall, In re (13 N. B. E. 345; Fed. Cas. 7,422). Costs and Fees, 103, 103;: Eules, 3. Joliet Iron & Steel Co., In re (10 N. B. R 60? Fed. Cas. 7,436). Petition, 59, 70. Jonas, In re (16 N. B. E. 452; Fed. Cas. 7,442). Acts of Bankruptcy, 3; Intervention, 7. Jones, In re (6 N. B. R. 386; Fed. Cas. 7,449). Contempt, 12; Examination of Bank- rupt, 49, 63. Jones, In re (9 N. B. R. 491; Fed. Cas. 7,451). Costs and Fees, 63; Trustees, 29. Jones, B. F., In re (7 N. B. R. 506; Fed. Cas. 7,450). Trustees, 109. Jones, In re (13 N. B. R S86; 3 Lowell, 451; Fed. Cas. 7,446). Discharge, 135, 174. Jones, In re (2 N. B. R 20; Fed. Cas. 7,447). Amendment, 3; Notice, 8; Proof, eta, 30, 71; Trustees, 94. Jones, In re (4 N. B. R 114; Fed. Cas. 7,448). Contracts, 9; Estate, 374. Jones et al.. In re (9 N. B. R 556; 6 Biss. 68; 6 Chi. Leg. News, 371; Fed. Cas. 7,444). Claims, 256; Conveyances, 78; Evi- dence, 15. Jones V. Clifton (101 U. S. 235). Estate, 386. ' Jones, Ass., v. Clifton et al. (19 N. B. R 434;. 101 U. S. 325). Conveyances, 81. Jones, Ass., v. Clifton (18 N. B. R 135; 2- Flip. 191; 17 Amer. Law Reg. (N. S.) 713 ;.' TABLE OF CASES. XXXIX 6 Reporter, 324; 7 Cent. Law J. 89; Fed. Oas. 7,457). Assignments, 53; Estate, 160, 296; Fraud, 9; Married Woman, 4a. Jones et al. v. Coker et al (16 N. B. R. 843). Pleading and Practice, 46; Surety, 14. Jones & CuUom v. Knox (8 N. B. R. 559). Discharge, 300; Guardian, etc., 3. Jones & Hoyt, In re (13 N. B. R. 48; 7 Chi. Leg. News, 163; Fed. Gas. 7,453). Dis- charge, 36. Jones V. Leach et al. (1 N. B. R. 165; Fed. Cas. 7,475). Courts, 78; Estate, 4; Sales, 89; Stay of Proceedings, 1. Jones V. Miller, Ass. etc. (17 N. B. R. 316; 1 N. J. Law J. 113; Fed. Cas. 7,482). Estate, 105^ Suits, 19. Jordan, In re (8 N. B. R. 180; 5 Leg. Op. 169; 30 Leg. Int. 296; Fed. Cas. 7,514). Con- stitutional Law, 9, 23; Exemptions, 82; Judgjuent, 11. Jordan, In re (10 N. B. R. 437; Fed. Cas. 7,515). .Constitutional Law, 19; Exemptions, 7. Jordan, In re (3 N. B. R. 45; Fed. Cas. 7,513). Estate, 373. Jordan & Blake, In re (19 N. B. R. 465). Proof of Claim, 13a. Jordan, Ass., v. Downey (13 N. B. R. 427). Courts, 163; Pleading and Practice, 239, 397. Jordan, In re (9 N. B. R. 415; Fed. Cas. 7,539). Merger, 3; Mortgages, 101; Preferences, 187; Proof, etc., 49. Joslyn et al.. In re (3 N. B. R. 118; 3 Biss. 235; 3 Chi. Leg. News, 137; Fed. Cas. 7,550). Rent, 31. Judson, In re (1 N. B. R. 82; 2 Ben. 310; 35 How. Pr. 15; 1 Amer. Law T. Rep. Bankr. 120; Fed. Cas. 7,562). Examination of Bankrupt, 57, 53. Judson, Ass., v. Kelty et aL (6 N. B. R 165; 5 Ben. 348; Fed. Cas. .7,567). Mortgages, 47; Sales, 28. K. Eahley et al, In re (6 N. B. R. 189; 3 Biss. 169; 4 Chi. Leg. News, 121; 5 Amer. Law T. Rep. 175; Fed. Cas. 7,594). Discharge, 143; Estate, 186. Kahley et al.. In re (4 N. B. R. 134; 3 Biss. 383; 3 Chi. Leg. News, 85; 2 Leg. Gaz. 405; Fed. Cas. 7,593). Courts, 154; Evi- dence, 115; Mortgages, 9, 137; Sales, 39; Waiver, 14 Kaiser et al. v. Richardson (14 N. B. R. 391).. Attachment,- 7, 64 Kane, Ass., v. Jenkinson (10 N. B. R. 316; Fed, Cas. 7,607). Contracts, 15. Kane, Ass., v. Rice (10 N. B. R. 469; Fed. Cas, 7,609). Mortgages, 137. Kansas City Stone & Marble Mfg. Co., In re (9 N. B. R. 76; Fed. Cas. 7,610). Commer- cial Paper, 90; Corporations, 55; Prefer- ences, 13; Ratification, 3; Trust, 14; Trustees, 185. Karr v. Whittaker et al. (5 N. B. R. 133; Fed. Cas. 7,613). Pleading and Practice,. 340. Kasson, In re (18 N. B. R. 379; Fed. Cas. 7,617), Assignments, 6, 9. Kaufman et al.. In re (19 N. B. R. 383; 3 N; J, Law J. 231 ; Fed. Cas. 7,627). Proof of Claims, 13b. Keach, In re (3 N. B. R. 3; 1 Lowell, 335; 3 Amer. Law T. 123; 1 Amer. Law T. Rep. Bankr. 167; Fed. Cas. 7,629). Books of Account, 21; Definitions, 24. Kean & White et al., In re (8.N. B. R 367; 2 Hughes, 333; 2 Wash. Law Rev. 735; Z Amer. Law Rec. 330; Fed. Cas. 7,630). Constitutional Law, 10; Discharge, 312j Exemptions, 4, 41. Keating v. Keefer (5 N. B. R. 133; 4 Amer, Law T. 162; 1 Amer. Law T. Rep. Bankr. 266; Fed. Cas. 7,635). Conveyances, 37;. Estate, 293. Keefer, In re (4 N. B. R. 126; 3 Chi? Leg.. News, 125; Fed. Cas. 7,636). Discharge, 27, 113; Pleading and Practice, 36; Sales.. 40. Keeler, In re (10 N. B. R. 419; 20 Int. Rev,. Rec. 83; Fed. Cas. 7,638). Admission, 2; Petition, 105. Keenan v. Shannon et al. (9 N. B. R. 441; 10' Phila. 219; 31 Leg. Int. 85; Fed. Cas. 7,640). Injunction, 34 Kehr et al. v. Smith, Ass. (10 N. B. R. 49; 20 Wall. 31). Conveyances, 54; Dividends, 5. Keller, In re (18 N. B.R. 36; 10 Chi. Leg.. News, 299; Fed. Cas. 7,648). Collusion, 4;. Composition, 34, 43, 98. Keller et al., In re (18 N. B. R. 10; 7 Chi. Leg. News, 43; Fed. Cas. 7,647). Amendment;.. . 9; Confiict of Laws, 18; Courts, 71, 200; Fraud, 86, 92; Injunction, 70; Petition^. 167; Verification, 4. Keime v. Graff et al. (17 N. B. R. 319; 5 Re- porter, 489; 25 Pittsb. Leg. J. 118; Fed.. :d TABLE OF CASES. Cas. 7,650). Fiduciary Debt, 3; Statutory Construction, 63. Keller et al., In re (18 N. B. R. 331; Fed. Cas. 7,654). Composition, 31, 91; Referee, 35. Kelley, In re (19 N. B. R. 326; Fed. Cas. 7,656). Courts, 173; Petition, 29. Kellogg, Ass., and Quimby, XJ. S. Marshal, v. Russell & Barnard (11 N. B. R. 121; 11 Blatchf. 519; Fed. Cas. 7,666). Injunc- tion, 54. Kelly, In re (5 N. B. R. 214). Costs and Fees, 39. Kelly V. Strange, Ass. (3 N. B. R 3; Fed. Cas. 7,676). Conveyances, 71; Dower, 4 Kemmerer v. Tool (13 N. B. R. 834). Notice, 39; Preferences, 244. Kempner, In re (6 N. B. R. 531; Fed. Cas. 7,689). Contempt, 8; Estate, 178. Kennedy & Mackintosh, In re (7 N. B. R. 337 Fed. Cas. 7,699). Courts, 273; Marshal, 2; Pleading and Practice, 330, 331 Rules, 1. Kent & Co. v. Downing, Ass. (10 N. B. R 538), Attachment, 5. Kenyon & Fen ton. In re (6 N. B. R. 238), Acts of Bankruptcy, 27; Commercial Paper, 4; Definitions, 16; Operatives, 1; Pleading and Practice, 238; Wages, 5. Kerosene Oil Co., In re (3 N. B. R 164; 3 Ben. 35; 3 Amer. Law T. Rep. Bankr. 79; Fed. Cas. 7,725). Courts, 233; In- junction, 33. Kerr, In re (3 N. B. R. 134; 3 Amer. Law T. Rep. Bankr. 39; Fed. Cas. 7,728). Execu- tion, 6; Judgment, 8. Kerr & Roach, In re (9 N. B. R 566; Fed. Cas. 7,739). Adjudication, 12; Exemp- tions, 58. Kidder, Ass. etc., v. Horrabin et al. (18 N. B. R 146). Courts, 193. Kimball et al.. In re (16 N. B. R 188; Fed. Cas. 7,770). Assignments, 54; Estate, 73. Kimball, In re (3 N. B. R 74; 2 Ben. 554; Fed. Cas. 7,768). Arrest, 5; Claims, 12. Kimball, In re (3 N. B. R 114; 6 Blatchf. 393; 2 Amer. Law T. Rep. Bankr. 53; 1 Chi. Leg. News, 163; Fed. Cas. 7,769). Arrest, 5; Claims, 13. King, In re (9 N. B. R 140). Dividends, 31: Trust, 11. King, In re (10 N. B. R 103; Fed. Cas. 7,783). Evidence, 95. King, In re (10 N. B. R 566; 3 Dill. 3; 1 Cent. Law J. 506; 7 Chi. Leg. News, 36; 10 Alb. Law J. 249; Fed. Cas. 7,781). Discharge, 190; Statutory Construction, 71. King, John, In re (8 N. B. R 385). Estate, 333; Fraud, 59. King et al.. In re (7 N. B. R 379; 5 Ben. 453; Fed. Cas. 7,779). Notice, 55; Time, 5. King V. Loudon, Ass. (14 N. B. R 383). At- tachment, 39; Judgment, 55; Trustees, 107. Kingdom, In re (3 N. B. R. 113; 38 How. Pr. 393; Fed. Cas. 7,815). Pleading and Prac- tice, 153. Kingsbury, Abbott et al., In re (3 N. B. R 84; Fed. Cas. 7,816). Insolvency, 7; Evi- dence, 143; Preferences, 195. Kingsley, In re (16 N. B. R 301; Fed. Cas. 7,820). Discharge, 159; Examination of Bankrupt, 64. Kingsley, In re (7 N. B. R. 558; 6 Ben. 800; Fed. Cas. 7,818). Examination of Bank- rupt, 43. Kingsley, In re (1 N. B. R 52, 66; 1 Lowell, 316; 7 Amer. Law Reg. (N. S.) 433; 1 N. B. R 53; 15 Pittsb. Leg. J. 335, 377; Fed. Cas. 7,819). Claims, 336; Conflict of Laws, 34; Discharge, 381 ; Limitations, Statute of, 26, 37. Kinkead, In re (7 N. B. R 439; 3 Bench and Bar (N. S.), 41; 3 Biss. 405; 7 West. Jur. 110; 6 Amer. Law T. Rep. 45; 1 Amer. Law Rec. 533; 5 Chi. Leg. News, 317; Fed. Cas. 7,824). Claims, 72; Married Woman, 14; Partners, 8, 31, 150. Kintzing, In re (3 N. B. R 53; Fed. Cas, 7,833). Injunction, 80; Petition, 156, 157. Kinzie v. Winston (4 N. B. R 21; Fed. Cas. 7,835). Estate, 52, 398, 299. Kipp, In re (4 N. B. R 190; 4 Amer. LawT. 60; 1 Amer. Law T. Rep. Bankr. 246; Fed. Cas. 7,836). Preferences, 211. Kirkland et'al, In re (14 N. B. R 157). Kirkland, Chase & Co., In re (14 N. B. R 139; 2 Hughes, 308; Fed. Cas. 7,843). Claims, 110; Proof of Claims, 13c. Kitzinger et al., In re (19 N. B. R. 307; Fed. Cas. 7,863). Dividends, 1; Pleading and Practice, 68. Kitzinger et al., In re (19 N. B. R 152; Fed. Cas. 7,861). Claims, 158; Judgment, 67; Pleading and Practice, 9. Kitzinger et al., In re (19 N. B. R 338; Fed. Cas, 7,863). Interest, 5. Klancke, In re (4 N. B. R (8 vo. ed.) 648; 4 Ben. 336 ; Fed. Cas. 7,864). Judgment, 13. TABLE OF CASES, xli Kline v. Bauendahl (13 N. B. R. 57S). Choses in Action, 6. Knapp et al. v. Anderson et al. (15 N. B. R. 316). Bischarge, 267; Surety, 16. Knickerbocker Ins. Co. v. Comstook et al. (8 N. B. R. 145; 16 Wall. 358). Appeals and Writs of Error, 35; Pleading and Prac- tice, 318. ■Knickerbocker Ins. Co. v. Comstook (9 N. B. R. 484; 6 Chi. Leg. News, 143; Fed. Cas. 7,879). Petition, 34; Preferences, 365. Knight, In re (8 N. B. R. 486; 3 Biss. 518; 18 Int. Rev. Rec. 166; 30 Leg. Int. 338; 31 Pittsb. Leg. J. 48; Fed. Cas. 7,880). Con- flict of Laws, 3; Partners, 99. Knight V. Cheney (5 N. B. R. 305; Fed. Cas. 7,883). Appeals and Writs of Error, 33; Courts, 353; Sales, 116; Trustees, 176. Knoepfel, In re (1 N. B. R. (8 vo. ed.) 70; 1 Ben. 398; Fed. Cas. 7,893). Proof, etc., 13. Koch, In re (1 N. B. R. 153; 1 Amer. Law T. Rep. Bankr. 131; 15 Pittsb. Leg. J. 531; Fed. Cas. 7,916). Evidence, 77; Exami- nation of Bankrupt, 14, 33. Kohlsaat et al.. In re (18 N. B. R. 570; Fed. Cas. 7,918). Composition, 76, 131; In- junction, 13. Kohlsaat v. Hoguet et al. (5 N. B. R. 159; 4 Ben. 565; Fed. Cas. 7,919). Preferences, 39; Trustees, 198. Krogman, In re (5 N. B. R. 116; Fed. Cas. 7,936). Liens, 133; Limitations, Statute of, 2; Suits, 11. Krueger et al.. In re (5 N. B. R. 439; 3 Low- ell, 66; Fed. Cas. 7,941). Estoppel, 14; Partners, 143. Kurth, In re (17 N. B. R. 573; Fed. Cas. 7,948). Assignments, 28; Costs and Fees, 10. Kyler, In re (3 N. B. R. (8 vo. ed.) 650; 3 Ben. 414; Fed. Cas. 7,956). Costs and Fees, 136; Evidence, 63. Kyler, In re (3 N. B. R. 11; 6 Blatohf. 514; Fed. Cas. 7,957). Appeals and Writs of Error, 18; Pleading and Practice, 325. Laoey, Downs & Co., In re (10 N. B. R. 477; 13 Blatchf. 333; Fed. Cas. 7,965). Ad- journment, 10; Adjudication, 39; Inter- •vention, 3; Petition, 159; Pleading and Practice, 3, 366. Laohemeyer, In re (18 N. B. R. 370; 18 Alb. Law J. 243; Fed. Cas. 7,966). Alien, 6; Claims, 355. Lacy, In re (4 N. B. R. 15; 3 Amer. Law T. 215; 1 Amer. Law T. Rep. Bankr. 226; Fed. Cas. 7,970). Claims, 79; Liens, 107; Mortgages, 86. Lady Bryan Mining Co., In re (6 N. B. R. 353; Fed. Cas. 7,980). Conflict of Laws, 33; Courts, 160; Injunction, 17, 18, 58. Lady Bryan Mining Co., In re (4 N. B. R. 36; Fed. Cas. 7,979). Petition, 80. Lady Bryan Mining Co., In re (4 N. B. R. 181; 3 Abb. (U. S.) 537: 1 Sawy. 349; Fed. Cas. 7,978). Petition, 1, 31; Ratification, 5; Referee, SO. Lains, In re (16 N. B. R. 168; 1 N. W. Rep. (O. S.) 116; 6 Amer. Law Rec. 266; 34 Pittsb. Leg. J. 207; Fed. Cas. 7,989). As- signments, 37; Costs and Fees, 91. Lake, J. J., In re (6 N. B. R. 543; 3 Biss. 204; 6 West. Jur. 360; 4 Chi. Leg. News, 381; Fed. Gas. 7,993). Adjudication, 3; Evi- dence, 139; Notice, 26. Lake et al., Ex parte; In re Whiting et al. (16 N. B. R. 497; 3 Lowell, 544; Fed. Cas. 7,991). Rent, 16, 17. Lake Superior Ship Canal, Railroad & Iron Co., In re (7 N. B. R. 376; Fed. Cas. 7,997). Postponement, 1, 3; Proof, etc., 78; Trust- ees, 159; Vote, 5, 6. Lake Superior Ship Canal, Railroad & Iron Co., In re (10 N. B. R. 76; Fed. Cas. 7,998). Commercial Paper, 13; Evidence, 83; Se- cured Claims, 86. Lalor, In re (19 N. B. R. 353; Fed. Cas. 8,001). Discharge, 10; Fraud, 4. Lamb, Ass., v. Brown (12 N. B. R. 533; 7 Chi. Leg. News, 368; 1 N. Y., Wkly. Dig. 176; Fed. Cas. 8,011). Discharge, 396, 397. Lamb, Ass., v. Damron (7 N. B. R. 509; 5 Chi. Leg. News, 390; Fed. Cas. 8,014). Courts, 354; Statutory Construction, 3. Lamb, Ass., v. Lamb (13 N. B. R. 17; 6 Biss. 430; 7 Chi. Leg. News, 411; 31 Int. Rev. Rec. 317; 1 N. Y. Wkly. Dig. 818; Fed. Cas. 8,018). Commercial Paper, 85; Cor- porations, 60. Lambert, In re (3 N. B. R. 138; 1 Chi. Leg. News, 310; Fed. Cas. 8,036). Liens, 39. Lammer, In re (14 N. B. R. 460; 7 Biss. 269; 8 Chi. Leg. News, 386; Fed. Cas. '8,031). Exemptions, 54, 55. xlii TABLE OP CASES, Lane, In re (2 N. B. K. 100; 3 Ben. 98; 1 Chi. Leg. News, 123; Fed. Cas. 8,043). Costs and Fees, 134; Referee, 48. Lane & Co., In re; In re Boynton (10 N. B. E. 135; 2 Lowell, 333 ; Fed. Cas. 8,044). Com- mercial Paper, 27; Composition, 54; Part- ners, 184. Lane, Brett & Co., In re; Ex parte Dreyfus (13 N. B. R. 43; 3 Lowell, 305; 1 N. Y. Wkly.. Dig. 396; Fed. Cas. 8,043). Trust- ees, 24. Laner, In re (9 N. B. R. 494; Fed. Cas. 8,055). Acts of Bankruptcy, 48; Assignments, 4. Lang, In re (2 N. B. E. 151; Fed. Cas. 8,056). Time, 1. Langdon. In re (13 N. B. R. 60; 3 Lowell, 387; 1 N. y. Wkly. Dig. 865; Fed. Cas. 8,058). Composition, 133. Langley, In re; Ex parte Perry (1 N. B. E. 155). Acts of Bankruptcy, 11; Assign- ments, 3; Conflict of Laws, 16; Consti- tutional Law, 6; Estoppel, 13: Fraud, 10; Waiver, 6. Langley v. Perry (2 N. B. R. 180; 8 Amer. Law Reg. (N. S.) 427;- 16 Pittsb. Leg. J. 117; 3 Bait. Law Trans. 521; 3 Amer. Law T. Rep. Bankr. 84; Fed. Cas. 8,067). Assignments, 15; Intent, 4. Lanier, In re (3 N. B. R. 59; Fed. Cas. 8,070). Examination of Bankrupt, 75; Referee, 4; Veriiication, 5. Lansing v. Manton (14 N. B. R. 127; 8 N. T. Wkly. Dig. 112; Fed. Cas. 8,077). Estate, 169; Partners, 209; Receiver, 11-13. Lanz, In re (14 N. B. R. 159; Fed. Cas. 8,079). Commercial Paper, 6. Lathrop at al.. In re (5 N. B. R 43; 5 Ben. 199; Fed. Cas. 8,104). Claims, 148; Part- ners, 149. Lathrop et al., In re (8 N. B. R. 105; 3 Ben. 490; Fed. Cas. 8,103). Attorneys, 31; Claims, 123, 218; Fraud, 105. Lathrop et al.. In re (4 N. B. R. 93; Fed. Cas. 8,106). Evidence, 49. Lathrop et al.. In re (4 N. B. R. 94; Fed. Cas. 8,107). Lathrop v. Drake et al. (13 N. B. R. 473; 91 U. S. 516). Claims, 9; Courts, 40; Pleading and Practice, 391. Lathrop, Ludington & Co., In re (3 N. B. R. 11; 2 Amer. Law T. 124; Fed. Cas. 8,105). Discharge, 108; Evidence, 130. Latting v. Fassman et al. (17 N. B. R. 183), Partners, 125; Statutory CoiistructioUr 66. Laurie, Blood & Hammond, In re (4 N. B. R 7). Rent, 9, 10. Lavender v. Gosnell «fe Tripolett (12 N. B. R. 383). State Laws, 9, 10; Statutory Con- struction, 43. Lawrence et al.. In re (18 N. B. R. 516; la Ben. 4; 36 Pittsb. Leg. J. 143; Fed.. Cas. 8,133). Acts of Bankruptcy, 16; Assign- ments, 3; Execution, 7; Fraud, 8. Lawrence, Ass., v. Graves (5 N. B. R 279; Fed. Cas. 8,138), Evidence, 111; Jury Trials, 5a. Lawson, In re (2 N. B. R. 19; Fed. Cas. 8,149). Exemptions, 94. Lawson, In re (2 N. B. R 44; Fed. Cas. 8,150)^ Trustees, 150. Lawson, In re (2 N. B. R 135; Fed. Cas. 8,151). Fraud, 19; Intent, 5. Lazear v. Porter, Ass. etc. (18 N. B. R 549). Dower, 13. Leach v. Greene (13 N. B. R 376). Choses in Action, 5; Suits, 17. Leachman, In re (1 N. B. R 91 ; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 8,157). Ex- amination of Bankrupt, 59. Leavenworth Savings Bank, In re (14 N. B. R. 82; 33 Pittsb. Leg. J.. 196; Fed. Cas. 8, 1 66). Petition, 46 ; Statutory Construc- tion, 13. Leavenworth Savings Bank, In re (14 N. B. R 93; 4 Dill. 363; 3 Cent. Law J. 207p Fed. Cas. 8,165). Petition, 47. Lee, In re (14 N. B. R 89; 33 Pittsb. Leg. J. 196; Fed. Cas. 8,179). Claims, 41, 64j Preferences, 31 ; Statutory Construction, 25. Lee, Ass., v. Franklin Avenue German Sav- ings Institution et al. (3 K. B. R 53; 1 Chi. Leg. News, 370; Fed. Cas. 8,188). Mortgages, 1; Preferences, 257; Sales, 67; Secured Claims, 17. Leeds, In re (1 N. B. R 188; 35 Leg. Int. 140; 1 Amer. Law T. Rep. Bankr. 78; 7 Amer. Law Reg. (N. S.) 693; 6 Phila. 468; 15 Pittsb. Leg. J. 361 ; Fed. Cas. 8,205). Acts of Bankruptcy, 61; Commercial Paper, 80; Powers of Attorney, 6. Leggett V. Allen (110 U. S, 741). Claims, 30; Suits, 31, TABLE OF CASES. xliii l,pighton, J., In re (5 N. B. E. 95; 4 Ben. 457; Fed. Cas. G,331). Courts, 112; Place of Business, 5. lieighton v. Harwood (13 N. B. R. 360). Courts, 195; Replevin, 1. Leighton v. Kelsey et al. (4 N. B. E. 155). Pleading and Practice, 55a. Leipziger, In re (18 N. B. R. 264). Assign- ments, 29; Composition, 153; Trustees, 84. Leiter et al. v. Pay son, Ass. (9 N. B. R. 205; 6 Chi Leg. News, 157; Fed. Cas. 8,226). Attorneys, 9; Corporations, 33. Leland et al., In re (9 N. B. R. 209; 7 Ben. 156; Fed. Cas. 8,230). Preferences, 205, 2ia Leland et al.. In re (5 N. B. E. 323: 5 Ben. 168; 1 Amer. Law T. Rep. Baukr. 284; ■ 4 Amer. Law T. 185; Fed. Cas. 8,22G). Courts, 53; Estate, 240; Partners, 56, 198; Trustees, 68. Leland etal., Inre(16N. B. E. 505; 14Blatchf. 240; Fed. Cas. 8,335). Courts, 379; Pref- erences, 7. Lenihan v. Haman et aL (11 N. B. E. 471). Sales, 69. Lenihan v. Haman et al. (8 H B. R. 557). Courts, 219; Mortgages, 87. Lenke v. Booth (5 N. B. R. 351). Discharge, 243; Fiduciary Debt, 1. Leonard, In re (4 N. B. R. 182; Fed. Cas. 8,255). Amendment, 26; Pleading and Practice, 94, 193. Levin, In re (14 N. B. R. 385; 7 Biss. 231; Fed. Cas. 8,291). Discharge, 34. Levy et al.. In re (1 N. B. R. 66; 2 Ben. 169; 1 Amer. Law T. Rep. Bankr. 122; Fed. Cas. 8,397); Discharge, 45, 56, 263; Ex- amination of Bankrupt, 29; Judgment, 73; Notice, 62; Proof, etc., 38; Surren- der, 1. Levy V. Haake etal. (18 N. B. R. 544). Courts, 156. Levy V. Stewart & Co. (4 N. B. R. 193; 11 Wall. 244). Limitations, Statute of, 14; Pleading and Practice, 815. Lewis, In re (1 N. B. R. 19; 2 Ben. 96; Fed. Cas. 8,311). Notice, 41; Partners, 29. Lewis et al.. In re (3 N. B. R. 145). Insolv- ency, 15; Preferences, 193. Lewis,Inre(8N.B.R. 158; 4Ben.67; 39 How. Pr. 155 ; Fed. Cas. 8,312). Evidence, 45. Lewis et aL, In re (14 N. B. R. 144; Fed. Cas. 8,314). Composition, 131. Lewis, A. T., In re (8 N, B. R. 546; 3 Hughes, 830; 31 Pittsb. Leg. J. 77; Fed. Cas. 8,313). Judgment, 68. Lewis, Trustee, v. United States (14 N. B. R. 64; 92 U. S. 618). Alien, 4; Courts, 11; Marshaling Assets, 7; Partners, 162; Pleading and Practice, 120; Secured Claims, 2; Statutory Construction, 6; United States, 2, 5, 6. Libbey v. Strasburger (17 N. B. R. 468). Dis- charge, 246; Fraud, 96. Libby v. Hopkins (104 U. S. 303). Set-off, 37. Liebke v. Thomas (116 U. S. 605). Composi- tion, 89. Lightner, Ass., v. The First Nat. Bank of Strasburger et al. (15 N. B. R. 69). Es- tate, 34; Powers of Attorney, 12. Lincoln & Cherry, In re (7 N. B. E. 334; 20 Pittsb. Leg. J. 1; 3 Pittsb. Rep. 440; Fed. Cas. 8,353). Discharge, 137. Linder, Ass. etc., v. Lewis et al. (19 N. .B. R. 455). Assignments, 46; Replevin, 3; Trover, 3. Linforth et al.. In re; Ex parte The Furst & Bradley Mfg. Co. (16 N. B. R. 435; 4 Sawy. 370; 1 San Fran. Law J. 199; Fed. Cas. 8,369). Estate, 148. Linn et al. v. Smith (4 N. B. E 13; 3 Amer. Law T. 218; 1 Amer. Law T. Rep. Bankr. 239; Fed. Cas. 8,375). Petition, 4. Lissberger, In re (18 N. B. E 230; Fed. Cas. 8,384). Composition, 7, 67 ; Dividends, 26 ; Vote, 12. Litchfield, In re (9 N. B. R. 506; 7 Ben. 259; Fed. Cas. 8,385). Death, 3; Petition, 93; Pleading and Practice, 67; Warrant, 3. Litchfield, In re (18 N. B. E 347; 26 Pittsb. Leg. J. 76; Fed. Cas. 8,386). Costs and Fees, 92. Little, In re (1 N. B.E 74; 2 Ben. 186; 15 Pittsb. Leg. J. 368; Fed. Cas. 8,390). Amendment, 14; Partners, 38. Little, In re (3 N. B. R. 97; 3 Ben. 35; 1 Chi. Leg. News, 123; Fed. Cas. 8,391). Place of Business, 9, 14. Little, In re (19 N. B. E 234; 2 N. J. Law J. 211; Fed. Cas. 8,393). Composition, 103; Waiver, 1. Little, Ass., V. Alexander (13 N. B. R 184; 21 Wall. 500). Preferences, 72, 113. Littlefield, In re (3 N. B. E. 13; 1 Lowell, 331; 2 Amer. Law T. 122; 1 Amer. Law T. Rep. Bankr. 164; Fed. Cas. 8,398). xliv TABLE OF CASES. Books of Account, 26; Discharge, 104; Examination of Bankrupt, 37. Littlefield v. Delaware & Hudson Canal Co. (4 N. B. E. 77; 3 Cliff. 371; Fed. Cas. 8,400). Pleading and Practice, 107-109 ; Review, 6. Lloyd, In re (15 N. B. R. 257; 5 Amer. Law Rec. 679; 15 Alb. Law J. 293: 24 Pittsb. Leg. J. 113; Fed. Cas. 8,429). Claims, 345; Partners, 49, 195; Petition, 51, 80; Referee, 35 ; Secured Claims, 21 ; Surety, 8. Lloyd, Ass. etc., v. Hoo Lue et al. (17 N. B. R. 170; 5 Sawy. 744; 1 San Fran. Law J. 392; Fed. Cas. 8,433). Estate, 53; Judg- ment, 61; Mortgages, 41. Lloyd, Ass. etc., v. Strobridge (16 N. B. R. 197; 10 Chi. Leg. News, 1; 1 San Fran. Law J. 13; Fed. Cas. 8,435). Notice, 10, 11; Preferences, 16, 47. Locke, In re (2 N. B. R. 128; 1 Lowell, 293; Fed. Cas. 8,439). Discharge, 177; Pref- erences, 255. Lookett V. Hoge, Ass. (9 N. B. R 167; Fed. Cas. 8,444). Courts, 252; Powers of At- torney, 11; Sales, 83; Trustees, 125. Loder, In re (4 N. B. R. 50; 4 Ben. 305; Fed. Cas. 8,457). Commercial Paper, 58; Part- ners, 167. Loder, In re (3 N. B. R. 162; 4 Ben. 125; Fed. Cas. 8,456). Referee, 32. Loder et al.. In re 1,2 N. B. R. 161 ; 2 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 8,459). Trustees, 151. Loder Bros., In re (2 N. B. R. 162; 8 Ben. 211; 3 Amer. Law T. 106; 1 Amer. Law T. Rep. Bankr. 159; Fed. Cas. 8,455). Costs and Fees, 108. Long, In re (3 N. B. R. 66; 7 Phila. 578; 26 Leg. Int. 349; Fed. Cas. 8,477). Discharge, 91; Schedules, 29. Long & Co., In re (9 N. B. R. 227; 7 Ben. 141; Fed. Cas. 8,476). Claims, 134; Partners, 103, 160. Long V. Bullard (117 U. S. 617). Appeals and Writs of Error, 39 ; Liens, 30. Long, Ass,, V. Connor (17 N. B. R. 540; Fed. Cas. 8,479). Courts, 324; Sales, 90; Sher- iff, 3. Longfellow et al.. In re (17 N. B. R. 27; 2 Hask. 831; Fed. Cas. 8,486). Estate, 111, 140, 141; Mortgages, 51; Sales, 33. Longstreth, Ass., v. Pennock, Ex'r, et al. (7 N. B. R. 449; 9 Phila. 394; 30 Leg. Int. 29; 20 Pittsb. Leg. J. 107; Fed. Cas. 8,489). Liens, 64; Trustees, 43. Longstreth v. Pennock et al. (12 N. B. R. 95; 20 Wall. 575). Rent, 39. Lord, In re (3 N. B. R. 58; Fed. Cas. 8,502). Examination of Bankrupt, 61. Lord, F. C, In re (5 N. B. R. 818; Fed. Cas. 8,503). Fraud, 37; Powers of Attorney, 9; Preferences, 138; Trustees, 206. Louchheim Bros. v. Henzey (18 N. B. R. 173), Fraud, 30, 54. Loudon, Ass. etc., v. The First Nat. Bank of Wilmington (15 N. B. R. 476; 3 Hughes,. 420; Fed. Cas. 8,535). Corporations, 50; Notice, 44; Preferences, 59, 112. Louis et al.. In re (2 N. B. R. 145; 3 Ben. 153; Fed. Cas. 8,537). Assignments, 41. Lount et al., In re (11 N. B. R. 315; 7 Chu Leg. News, 155; Fed. Cas. 8,543). Proof, etc.; 54. Lowe & Richards, In re (11 N. B. R. 231; Fed. Cas. 8,564). Estate, 247; Partners, 98. Lowenstein, In re (18 N. B. R. 479; 3 DilU 145; 3 Cent. Law J. 83; 33 Leg. Int. 360; Fed. Cas. 8,573). Discharge, 70. Lowenstein et al.. In re (3 N. B. R. 65; S Ben. 433; Fed. Cas. 8,572). Costs and Fees, 23. Lowenstein et al. v. Katzenberg (3 N. B. E. 99; 1 Chi. Leg. News, 123; Fed. Cas. 8,574). Acts of Bankruptcy, 73. Loweree, In re (1 N. B. R. (8 vo. ed.) 74; 1 Ben. 406; 6 Int. Rev. Rec. 115; Fed. Cas^8,577), Proof, etc., 84. Lucius Hart Mfg. Co., In re (17 N. B. R. 459; Fed. Cas. 8,592). Claims, 201; Rent, 28, Ludeling v. Chaflfe (148 U. S. 301). Trustees, 105, 178. Ludeling v. Fulton et al. (17 N. B. R. 310). Discharge, 333, 339. Lukins v. Aird (2 N. B. R. 27; 6 Wall. 78), Conveyances, 12; Sales, 35. Lumpkin et al. v. Eason (10 N. B. R 549). Courts, 108; Estate, 64; Sales, 18. Lynch et al.. In re (16 N. B. R. 38; 34 Pittsb. Leg. J. 205; Fed. Cas. 8,635). Evidence, 108; Proof, etc., 59. Lyon, J. H.. In re (7 N. B. R. 183; 4 Chi. Leg. News, 421; Fed. Cas. 8,644). Estate, 27. Lyon, In re (1 N. B. R. (8 vo. ed.) Ill; Bankr. Reg. Supp. 34; Fed. Cas. 8,643). Exam- ination of Bankrupt, 80. TABLE OF CASES. xlv liytle & Co., In re (14 N. B. R 457; 11 Phila. 522; 3 N. Y. Wkly. Dig. 303: 33 Leg. Int. 349; 9 Chi. Leg. News, 18; 5 Amer. Law Eec. 306; 1 Cin. Law Bui. 246; 24 Pittsb. Leg. J. 14; Fed. Cas. 8,650). Composi- tion, 83, 158. M. McBride et al.. In re (19 N. B. E. 452; Fed. Cas. 8,662). Subrogation, 3. McBrien, In re (3 N. B. E. 90; 3 Ben. 481; Fed. Cas. 8,666). Evidence, 43. McBrien, In re (2 N. B. E. 78; 2 Ben. 513; Fed. Cas. 8,665). Examination of Bank- rupt, 33; Trustees, 6. McCabe, Ass. etc., v. Winship (17 N. B. E. 113; Fed. Cas. 8,668). Estate, 145; Set- off, 36; Waiver, 20. McClellan, In re (1 N. B. E 91; 1 Amer. Law T. Eep. Bankr. 48; Fed. Cas. 8,694). Trust- ees, 119. McConnell, In re (9 N. B. E. 387; 10 Phila. 287 ; 31 Leg. Int. 61 ; 21 Pittsb. Leg. J. 107 ; Fed. Cas. 8,713). Claims, 75, 81; Lease, 10; Proof, etc., 18; Secured Claims, 39; Statutory Construction, 35. McDermott Patent Bolt Manufacturing Co., In re (3 N. B. R 33; 3 Ben. 369; Fed. Cas. 8,750). Acts of Bankruptcy, 73; Com- mercial Paper, 3. McDonald, In re (14 N. B. E. 477; 24 Pittsb. Leg. J. 43; Fed. Cas. 8,758). Claims, 343; Commercial Paper, 55 ; Discharge, 59, 379 ; Intervention, 11. ■ Macdonald, Ass., v. Moore et al. (15 N. B. R 36; 8 Ben. 579; 1 Abb. N. C. 53; 23 Int. Eev. Eec. 35; 3 N. T. Wkly. Dig. 461; 34 Pittsb. Leg. J. 83; Fed. Cas. 8,763). As- signments, 33; Claims, 76; Costs and Fees, 9. McDonough White, Ass., v. Eaferty (3 N. B. R 53; 1 Chi. Leg. News, 361; 16 Pittsb. Leg. J. (O. S.) 110; Fed. Cas. 8,775). Pref- erences, 167. McDowell et al., In re (10 N. B. R 459; 6 Biss. 193; 6 Chi. Leg. News, 413; Fed. Cas. 8,776). Composition, 93. McDuffee, In re (14 N. B. E. 336; 2 Hask. 76; 9 Chi. Leg. News, 40; Fed. Cas. 8,778). Notary Public, 3; Powers of Attorney, 14 Mace V. Wells (7 How. 372). Commercial Paper, 14. MoEwen et al.. In re (19 N. B. R 445). Ap- peals and Writs of Error, 27. MoEwen & Sons, In re (12 N. B. R 11; 6 Biss, 394; 7 Chi. Leg. News. 231; 3 Cent. Law J. 333; Fed. Cas. 8,783). Claims, 248; Dividends, 16. MoFaden, In re (3 N. B. R 27; Fed. Cas, 8,785). Bond, 3; Married Woman, 13; Trustees, 1. McFarland & Co., In re (10 N. B. R 381; Fed.. Cas. 8,788). Partners, 136. McFarland v. Goodman et al. (11 N. B. R 134; 6 Biss. Ill; 18 Amer. Law Reg. (N. S.> 697; Fed. Cas. 8,789). Conveyances, 25. McGehee et al. v. Hentz et al. (19 N. B. R 136; Fed. Cas. 8,794). Courts, 74; Suits, 4.. McGilton, John, et al.. In re (7 N. B. R 294; 8 Biss. 144; 29 Leg. Int. 338; 5 Chi. Leg.- News, 1; 30 Pittsb. Leg. J. 39; Fed. Cas. 8,798). Judgment, 38. MoGrath & Hunt, In re (5 N. B. R 254; 5- Ben. 183; Fed. Cas. 8,808). Rent, 29. McGready v. Harris (9 N. B. E. 135). Deeds, 4;. Sales, 84. Machad, In re (3 N. B. R 113; 8 Ben. 131; 1 Chi. Leg. News, 163; 3 Amer. Law T, Eep. Bankr. 53; Fed. Cas. 8,819). Dis- charge, 37; Oath, 4. McHenry et al. v. La Sooifete Francaise (16- N. B. R 385; 95 U. S. 58). Courts, 328; Secured Claims, 34. Mclntire, In re (1 N. B. R 115; 1 Amer. Law T. Eep. Bankr. 130; Fed. Cas. 8,833). Amendment, 15; Discharge, 14. Mclntire, In re (1 N. B. E. 15). Discharge, 85.. Macintire, In re (1 N. B. R 11; Bankr. Eeg. Supp. 3; 1 Ben. 277; Fed. Cas. 8,821). Costs and Fees, 115. Mcintosh, In re (3 N. B. R 158; Fed. Cas. 8,826). Judgment, 6; Liens, 17; Proof, etc., 83. Mackay, In re (4 N. B. R 17; Fed. Cas. 8,837). Books of Account, 10. McKay & Aldus, In re (7 N. B. E. 230; 1 Low- ell, 561; Fed. Cas. 323). Fixtures, 1. McKay v. Funk (13 N. B. R 334). Injunc- tion, 66; Judgment, 2; Mortgages, 72. McKenna v. Simpson (139 U. S. 506). Trust- ees, 196. McKeon, In re (11 N. B. R 182; 7 Ben. 513; 3 Amer. Law Eec. 611; 11 Alb. Law J. 7; Fed. Cas. 8,858). Composition, 6; Plead- ing and Practice, 65; Statutory Con- struction, 10. xlvi TABLE OF CASES. McKercher & Pettigrew, In re (8 N. B. R. 409). Exemptions, 118. McKibben, In re (13 N. B. E. 97; Fed. Cas. 8,859). Acts of Bankruptcy, 23; Affida- vits, 3; Arrest, 8, 15; Collateral Attack, 12; Evidence, 98; Petition, 130. McKinsey et al.. Ass., v. Harding (4 N. B. E. 10; Fed. Cas. 8,866). Courts, 130; Evi- dence, 131, 133; Liens, 131; Usury, 13. McLean, In re (3 N. B. E. 173; Fed. Cas. 8,878). Constitutional Law, 31; Exemji- tions, 31. McLean et al.. Ass., v. Cadwalader (15 N. B. R 3S3). Estate, 103; Subrogation, 4. JHcLean et al., In re (15 N. B. R 333; Fed. Cas. 8,879). Partners, 96, 180, 181, 191. McLean et al. v. Brown et al. (4 N. B. R 188; Fed. Cas. 8,880). Acts of Bankruptcy, 64. M'Millan v. M'Neill (4 Wheat. 209). Con- tracts, 25, 26; Discharge, 233. McMillan v. Scott et al. (2 N. B. R 28). Mar- shal, 5. McNab & Harlin Mfg. Co., In re (18 N. B. R. 388; 31 Pittsb. Leg. J. 88; Fed. Cas. 8,906). Composition, 137, 139, 153; Waiver, 34 McNair, In re (2 N. B. R 77; Fed. Cas. 8,907). Costs and Fees, 130; Examination of Bankrupt, 77. McNair, In re (3 N. B. R 109; Fed. Cas. 8,908> Evidence, 110. McNaughton, Moses A., In re (8 N. B. R. 44; Fed. Cas. 8,913). Acts of Bankruptcy, 31; Pleading and Practice, 136; Waiver, 15. McVey, In re (3 N. B. R. 85; 1 Chi. Leg. News, 103; Fed. Cas. 8,933). Discharge, 26, 31. Magie, In re (1 N. B. R. 138; 3 Ben. 369; 1 Amer. Law T. Rep. Bankr. 132; Fed. Cas. 8,951). Courts, 113; Place of Busi- ness, 10. Magie, In re (1 N. B. R. 153). Place of Busi- ness, 7, Mallory, In re (4 N. B. R. 38; Fed. Cas. 8,990). Costs and Fees, 1 ; Trustees, 90-92. Mallory, In re (6 N. B. R 33; 1 Sawy. 88; Fed. Cas. 8,991). Conflict of Laws, 20; Injunction, 38, 61, 63; Pleading and Prac- tice, 248. Maltbie v. Hotchkiss (5 N. B. R 485). As- signments, 53; Attachment, 44, 56; Con- flict of Laws, 4, 17; Conveyances, 63. Manahan, In re (19 N. B. R. 65; Fed. Cas. 9,003). Estate, 78; Marshal, 9. M. & M National Bank of Pittsburgh, v. The Brady's Bend Iron Co. (5 N. B. R 491; 19 Pittsb. Leg. J. 5; 3 Chi. Leg. News, 403; 38 Leg. Int. 377; 4 Amer. Law T. 168; 8 Phila. 171; 3 Pittsb. Rep. 326; 1 Amer; Law T. Rep. Bankr. 372; 1 Leg. Op. 202; Fed. Cas. 9,018). Conveyances, 69; Trust- ees, 137. Manbeim, William, In re (7 N. B. R. 843; 6 Ben. 370; 7 West. Jur. 73; 5 Chi. Leg. News, 149; 5 Pac. Law Rep. 106; 4 Leg. Op. 539; 7 Alb. Law J. 13; Fed. Cas. 9,038). Acts of Bankruptcy, 68; Com- mercial Paper, 83; Courts, 196. Manley, In re (3 N. B. R 75; 3 Bond, 261; 3 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 9,031). Mortgages, 124. Mann, In re (14 N. B. R 572; 13 Blatchf. 401; Fed. Cas. 9,033). Petition, 108; Pleading and Practice, 133. Mansfield, In re (6 N. B. R. 388; Fed. Cas. 9,049). Discharge, 323; Judgment, 46; Merger, 3; United States, 7. Many et al., In re (17 N. B. R 514; Fed. Cas. 9,054). Claims, 197; Estoppel, 3;-Usury, 16. Many et al.. In re (17 N. B. R. 429; 9 Ben. 160; Fed. Cas. 9,053). Trustees, 28. Marcer, J. F., In re (6 N. B. R 351; 39 Leg. Int. 76; Fed. Cas. 9,060). Petition, 6. March, Ass., v. Heaton et al. (3 N. B. R 66; 1 Lowell, 278; Fed. Cas. 9,061). Fiduciary Debt, 8; Sales, 66. Marionneaux, In re (13 N. B. R. 223; 1 Woods, 37; Fed. Cas. 9,088). Discharge, 226; Evi- dence, 23, 33; Pleading and Practice, 207. Marks, In re (3 N. B. R. 175; 16 Pittsb; Leg. J. 13; 1 Chi. Leg. News, 345; Fed. Cas. 9,095). Injunction, 37; Marshal, 10. Markson et al. v. Haney (12 N. B. R 484). Liens, 94; Blortgages, 79; Sales, 26; Stay of Proceedings, 11. Markson & Spaulding, Ass., v. Heaney (4 N. B. R 165; 1 Dili. 497; 3 Chi. Leg. News, 153; Fed. Cas. 9,098). Courts, 318, 234; Estate, 41. Marrett, Ass., v. Atterbury (11 N. B. R 325; 3 Dill. 444; 2 Cent. Law J. 11; Fed. Cas. 9,102). Dividends, 9. Marrett, Ass., v. Murphy et al. (11 N. B. R 131 ; 1 Cent, Law J. 554; Fed. Cas.. 9,103). Partners, 77. Marsh et al.. In re (19 N. B. R. 297; Fed. Oias. 9,109). Books of Account, 82. TABLE OF CASEa xlvii Marsh & Palmer, Ex'rs, v. Armstrong (11 N. B. R. 125). Courts, 97; Evidence, 66; Marshal, 11; Mortgages, 125; Sales, 115; Stay of Proceedings, 25. Marshall, In re (4 N. B. R. 27; 1 Lowell, 462; Fed. Cas. 9,123). Discharge, 191. Marshall v. Knox et al.. Ass. (8 N. B. R 97 ; 16 Wall. 551). Attachment, 20 ; Courts, 248 ; Estate, 126; Execution, 1; Trustees, 184. Marter, In re (12 N. B. R. 185; Fed. Cas. 9,143). Acts of Bankruptcy, 21; Assignments, 12; Estoppel, 21; Pleading and Prac- tice, 192. Martin, In re (2N. B. R 169; Fed. Cas. 9,153). Discharge, 64. Martin, In re (13 N. B, R. 397; 2 Hughes, 418; Fed. Cas. 9,152). Exemptions, 83. Martin v. Berry (2 N. B. R. 188). Discharge, 9; State Laws, 6. Martin, Ass., v. Smith et al. (4 N. B. R. 83; 1 Dill. 85; 9 Amer. Law Reg. (N. S.) 694; 3 Amer. Law T. Rep. (U. S. Cts.) 199; Fed. Cas. 9,164). Fraud, 91; Limitations, Statute of, 58. Martin, Ass. etc., v. Toof et al. (4 N. B. R. 158; 1 DiU. 203; Fed. Cas. 9,167). Insolvency, 7, 14; Fraud, 80; Preferences, 42. Marvin, Ass., v. Chambers (13 N. B. R. 77; 12 Blatchf. 495; 1 N. Y. Wkly. Dig. 365; Fed. Cas. 9,179). Mortgages, 135. Mason et al. v. Warthen et al. (14 N. B. R. 346). Attachment, 54; Courts, 165; Part- ners, 200; Preferences, 241. Massachusetts Brick Co., In re (5 N. B. R. 408; 2 Lowell, 58; 4 Amer. Law T. 220; Fed. Cas. 9,259). Estoppel, 4; Vote, 18. Massey et al. v. Allen, Ass. (7 N. B. R. 401; 17 Wall. 357). Conveyances, 13; Estate, 135; Sales, 64; Statutory Construction, 77. Masterson, In re (4 N. B. R. 180; Fed. Cas. 9,268). Courts, 141. Masterson, Ass., v. Howard et al. (5 N. B. R. 130; 18 Wall 99). Appeals and Writs of Error, 11. Mathers et al.. In re (17 N. B. R. 225; Fed. Cas. 9,274). Claims, 19; Composition, 94. Matot et al.. In re (16 N. B. R. 485; 5 N. Y. Wkly. Dig. 529; Fed. Cas. 9,282). Acts of Bankruptcy, 25; Partners, 112; Peti- tion, 126, 143. Maurer, Ass., v. Frantz (4 N. B. R. 143). Pay- ment, 1 ; Pleading and Practice, 84; Pref- erences, 93, D Mawson, In re (1 N. B. R. 40; 1 Amer. Law T. Rep. Bankr. 46; Fed. Cas. 9,320). Ad- journment, 5; Discharge, 79; Examina- tion of Bankrupt, 54; Pleading and Prac- tice, 30. Mawson, In re (1 N. B. R. 153; 3 Ben. 413; Fed. Cas. 9,319). Discharge, 194. Mawson, In re (1 N. B. R. 115; 3 Ben. 332; 1 Amer. Law T. Rep. Bankr. 123; Fed. Cas. 9,318). Pleading and Practice, 30. Mawson, In re (1 N. B. R. 33; 2 Ben. 122; Fed. Cas. 9,317). Certification, 5; Dis- charge, 29; Pleading and Practice, 30. Maxwell et al. v. Faxton et al. (4 N. B. R. 60). Courts, 18, 211; Petition, 135; Stay of Proceedings, 18. Maxwell v. MoCune.et al. (10 N. B. R. 306). Commercial Paper, 41, 70; Courts, 203; Exemptions, 35. May et al.. In re (19 N. B. E. 101; Fed. Cas. 9,338). Estate, 351. May & Co., In re; Ex parte Massachusetts Hospital Life Ins. Co. (17 N. B. R. 192; Fed. Cas. 9,337). Partners, 147; Surety, 11, May V. Harper et al. (4 N. B. R. 156; 18 Pittsb. Leg. J. 105; 3 Leg. Gaz. 381; 4 Brewst. 253;, Fed. Cas. 9,333). Pleading and Practice, 81. May & Merwin, In re (9 N. B. R 419; 7 Ben. 338; Fed. Cas. 9,335). Claims, 231; Rent, 30. Maybin, In re (15 N. B. R 468; Fed. Cas, 9,337). Claims, 186; Dividends, 2; Guard- ian, etc., 1; Limitations, Statute of, 13; Trustees, 103. Maybin v. Raymond, Ass. etc. (15 N. B. R 353; 4 Amer. Law T. Rep. (N. S.) 31; Fed. Cas. 9,338). Claims, 133; Contracts, 10; Costs and Fees, 89; Discharge, 315; Limitations, Statute of, 44; Schedules, 21; Trustees, 101. Mayer et al. v. Hellman, Ass. (13 N. B. E. 440; 91 U. S. 496). Assignments, 31. Mayor et al. v. Walker et al. (11 N. B. R. 479). Claims, 11, Mays & Hornor v. Fritton (11 N. B. R 339; ' 20 Wall. 414). Courts, 99; Preferences, 31. Mays V. Manufacturers' National Bank of Phila. (4 N. B. R 147). Estate, 61; Pay- ment, 8. Mead, In re (19 N. B. R. 81; 3 N. J. Law J. 26; Fed. Cas. 9,365). Estate, 151; No- tice, 18, xlviii TABLE OF CASES. Mead, Ex parte (109 U. S. 230). Appeals and Writs of Error, 3. Mead, Ass., v. National Bank of Fayetteville (2N. B. R. 65; 6 Blatchf. 180; 7 Amer. Law Reg. (N. S.) 818; 1 Amer. Law T. Rep. Bankr. 108; 15 Pittsb. Leg. J. 187; Fed. Cas. 9,366). Claims, 141; Partners, 95. Mead v. Thompson (8 N. B. R. 539; 15 Wall. 635). Appeals and Writs of Error, 18, 36. Meade, In re (19 N. B. R. 335; Fed. Cas. 9,370). Adjudication, 33; Estoppel, 16; Notice, 58. Meador et al. v. Everett, Ass. (10 N. B. R. 331 ; 3 Dill. 214; 1 Cent. Law J. 453; Fed. Cas. 9,376). Assignments, 35; Estate, 97; Lease, 4. Meador et al. v. Sbarpe (14 N. B. R. 492). Discharge, 243; Fiduciary Debt, 2. Mealy, In re (3 N.B. R. 51; Fed. Cas. 9,378). Costs and Fees, 125; Evidence, 119. Mebane, In re (3 N. B. R. 91; Fed. Cas. 9,380). Liens, 18; Sales, 30. Medbury v. Swan (8 N. B. R 537). Discharge, 335; Equity, 6. Meddaugh v. Wilson (151 U. S. 333). Costs and Fees, 3. Meekins, Kelly & Co. v. Their Creditors (3 N. B. R. 136). Bankrupt Law, 1. Meeks v. Whatley (10 N. B. R. 498). Liens, 97; Sales, 24; Testimony, 4. Meliok, In re (4 N. B. R. 26; Fed. Cas. 9,399). Adjudication, 10; Claims, 135. Melvin et al.,In re (17 N. B. R. 543; Fed. Cas. 9,406). Fraud, 45. Mendelsohn, In re (12 N. B. R. 533; 3 Sawy. 343; Fed. Cas. 9,420). Acts of Bank- ruptcy, 17; Assignments, 1; Fraud, 43; Intervention, 5; Schedules, 6. Mendenhall, In re (9 N. B. R. 385; Fed. Cas. 9,433). Books of Account, 42 ; Courts, 60. Mendenhall, In re (9 N. B. R. 380; 19 Int. Rev. Rec. 86; 6 Chi. Leg. News, 192; Fed. Cas. 9,424). Pleading and Practice, 63, 136. Mendenhall, In re (9 N. B. R. 497; Fed. Cas. 9,425). Corporation, 13, 56; Partners, 14. Mendenhall v. Carter (7 N. B. R. 330; Fed. Cas. 9,426). Acts of Bankruptcy, 77; Commercial Paper, 10. Mercer, In re (6 N. B. R. 351 ; 29 Leg. Int. 76; Fed. Cas. 9,060). Payment, 17. Merchants' Insurance Co., In re (6 N. B. R. 43; 4 Chi. Leg. News, 73; 3 Biss. 163; 20 Pittsb. Leg. J. 33; Fed. Cas. 9,441). Acts- of Bankruptcy, 38; Conflict of Laws, 10;. Corporations, 5; Courts, 87, 88; Petition^ 3; Receiver, 7; Rent, -40; State Laws, 4>. 11. Merchants' Nat. Bank of Cincinnati v. Cook et al., Trust. (16 N. B. R. 391 ; 95 U. S. 343).- Banks, 30; Notice, 39; Preferences, 175- Merchants' Nat. Bank of Hastings v. Truax, Ass. (1 N. B. R. 146; 1 Amer. Law T. Rep. Bankr. 73; Fed. Cas. 9,451). Insolvency, 7; Mortgages, 35. Merchants' Nat. Bank of Syracuse v. Com- stock (11 N. B. R. 335). Commercial Paper, 69; Proof, etc., 44 Merrick, W. B., In re (7 N. B. R. 459; Fed- Cas. 9,463). Claims, 38, 39; Courts, 340^ Proof, etc., 31. Merrifleld, In re (3 N. B. R. 25; Fed. Cas- 9,465). Rent, 8. Merrill, In re (16 N. B. R. 35; 9 Ben. 165; 24 Pittsb. Leg. J. 205; Fed. Cas. 9,466);- Death,.6; Evidence, 10; Proof, etc., 8. Merrill et al.. In re (13 N. B. R. 91; 13 Blatchf. 321; 1 N. T. Wkly. Dig. 364; Fed. Cas- 9,467). Partners, 35. Merriman's Estate, In re (18 N. B. R. 411; 44. Conn. 587; 26 Pittsb. Leg. J. 120; Fed.- Cas. 9,479). Claims, 33; Composition, 151;. Discharge, 2; Limitations, Statute of, 41- Merritt v. Glidden et aL (5 N. B. R. 157)- Judgment, 72; Pleading and Practice, 59. Metcalf V. Duncan, In re (1 N. B. R (8 vo. ed.> 201; 3 Ben. 78; 6 Int. Rev. Rec. 323; Fed- Cas. 9,494). Injunction, 8. Metsker v. Bonebrake (108 U. S. 66). Deeds, 7. Metz, Adm'x, etc., v. Buffalo, Corry & Pitts- burgh R R. Co. (13 N. B. R 559). Corpo- rations, 57; Negligence, 1, 2. Metzger, In re (3 N. B. R 114; 1 Chi. Leg- News, 163; 3 Amer. Law T. Rep. Bankr, 53; Fed. Cas. 9,510). Mortgages, 53; Trust- ees, 221. Metzler et al.. In re (1 N. B. R (8 vo. ed.) 39; 1 Ben. 356; Bankr. Reg. Supp. 9; Fed. Cas. 9,513). Perishable Property, 1. Meyer, In re (3 N. B. R 137; 1 Chi. Leg. News, 310; Fed. Cas. 9,515). Assignments, 40; Estate, 70. Meyer v. Aurora Insurance Co. (7 N. B. E. 191). Corporations, 53; Discharge, 303. Meyers, In re (1 N. B. R 163; 3 Ben. 434; Fed- Cas. 9,518). Estate, 382 ; Injunction, 2U TABLE OF CASES. xliX Proof, etc., 83; Stay of Proceedings, 2; Trust, 7. Meyers, Ass. etc., v. The Valley Nat. Bank (18 N. B. R, 34; 3 Nat. Bank. Cas. (Browne), 156; Fed. Cas. 9,519). Banks, 28; Estate, 150; Preferences, 98. Michaels et al. v. Post, Ass. (12 N. B. R. 153; 21 Wall. 398). Collateral Attack, 5, 11; Es- tate, 376; Fraud, 2; Judgment, 31, 33,33; Petition, 8; Pleading and Practice, 1, 104. Michener v. Payson, Ass. (13 N. B. R. 49; 5 Ins. Law J. 116; IN. Y. Wkly. Dig. 273; 2 Wkly. Notes Cas. 439; 8 Chi. Leg. News, 17; 32 Leg. Int. 362; 23 Pittsb. Leg. J. 38; Fed. Cas. 9,524). Courts, 263; Evidence, 20, 21. Mickel et al., In re (19 N. B. R. 374; Fed. Cas. 9,529). Composition, 147; Injunction, 56. Migel, In re (2 N. B. R. 153; Fed. Cas. 9,538). Arrest, 6; Stay of Proceedings, 6. Miller, In re; Ex parte Monson Savings Bank (19 N. B. R. 78; 19 Alb. Law J. 40; 26 Pittsb. Leg. J. 175; Fed. Cas. 9,555). Claims, 219. Miller, In re (1 N. B. R. 105; 1 Amer. Law T. Rep. Bankr. 121; Fed. Cas. 9,553). Plead- ing and Practice, 62. Miller et al., In re (17 N. B. R 402; 26 Pittsb. Leg. J. 8; Fed. Cas. 9,554). Claims, 105; State Laws, 21. Miller v. Bowles et al., Appleton v. Stevers, Ass. (10 N. B. R. 515). Attachment, 6; Courts, 331; Receiver, 6. Miller v. Chandler (17 N. B. R. 351). Dis- charge, 98; Pleading and Practice, 195. Miller, Ass., v. Jones (15 N. B. R. 150; Fed. Cas. 9,576). Adjudication, 14; Contracts, 32; Fraud, 73; Mortgages, 139; Nonsuit, 1; Review, 13; Trustees, 219. Miller v. Keys (3 N. B. R. 54; Fed. Cas. 9,578). Commercial Paper, 91; Insolvency, 11; Preferences, 74. Miller v. Mackenzie et aL (13 N. B. R. 497). Attachment, 42. Miller v. O'Brien (9 N. B. R. 26 ; 9 Blatohf. 370 ; 21 Pittsb. Leg. J. 82; Fed. Cas. 9,580). Estate, 267; Sheriff, 1. Miller v. O'Kain (14 N. B. R. 145). Proof, etc., 39. Mills, In re (11 N. B. R. 74; Fed. Cas. 9,611). Claims, 143; Partners, 189. Mills, In re (17 N. B. R. 473; Fed. Cas. 9,612). Proof, etc., 55; Receiver, 17. Mills, In re (11 N. B. R. 117; 7 Ben. 453; Fed. Cas. 9,610). Dividends, 28. Mills et aL v. Davis et al. (10 N. B. R. 840). Execution, 35; Injunction, 39, 35. Milner, In re (1 N. B. E. 107). Claims, 365; Constitutional Law, 36. Milner, In re (1 N. B. E. 19). Claims, 264. Milner, Jr., v. Meek, Ass., et al. (17 N. B. R. 83; 95 U. S. 253). Appeals and Writs of Error, 8, 23; Liens, 44; Mortgages, 40; Pleading and Practice, 306; Surety, 9. Milwain, In re (13 N. B. E. 358; 1 N. Y. Wkly. Dig. 76; Fed. Cas. 9,623). Proof, etc., 72; Schedules, 5. Minon v. Van Nostrand et al. (4 N. B. E. 28; 1 Lowell, 458; Fed. Cas. 9,643). Judg- ment, 34; Stay of Proceedings, 19. Mitchell, J. C, In re (8 N. B. R. 47; 5 Chi. Leg. News, 271; Fed. Cas. 9,657). Costs and Fees, 25; Liens, 40; Waiver, 10. Mitchell, In re; Ex parte Sherwin (10 N. B. R. 535; 17 Alb. Law J. 26; Fed. Cas. 9,658). Estate, 224; Testimony, 2. Mitchell et al., In re (3 N. B. R. Ill; Fed. Cas. 9,656). Courts, 177; Petition, 15. Mitchell V. McKibbin (8 N. B. R. 548; 39 Leg. Int. 413; 31 Pittsb. Leg. J. 77; Fed. Cas. 9,666). Equity, 7; Fraud, 24; Trover, 2. Mitteldorfer & Co., In re; Ex parte Ruther glen. Ass. (3 N. B. R. 9; Chase, 276; Fed Cas. 9,674). Claims, 35; Courts, 46; No- tice, 12; Partners, 211. Montgomery, In re (3 N. B. R. 35; 3 Ben. 364 Fed. Cas. 9,726). Costs and Fees, 73. Montgomery, In re (3 N. B. R. 109; 3 Ben. 565 Fed. Cas. 9,737). Estate, 244; Partners, 140. Montgomery, In re (3 N. B. R 97; Fed. Cas. 9,728). Preferences, 203. Montgomery, In re (3 N. B. E. 109; Fed. Cas. 9,731). Commercial Paper, 20. Montgomery, In re (3 N. B. E. 108; Fed. Cas. 9,730). Commercial Paper, 12. Montgomery, In re (3 N. B. E. 108; Fed. Cas. 9,729). Evidence, 118; Proof, etc., 16. Montgomery, In re (12 N. B. E. 321; 2 Cent. Law J. 440; Fed. Cas. 9,732). Preferences, 451. Montgomery, Ass., v. Bucyrils Machine Works (14 N. B. E. 193; 93 U. S. 357). Es- tate, 85. Mooney.& Mooney, In re (15 N. B. R. 456; 14 . Blatchf. 204; Fed. Cas. 9,748). Appeals 1 TABLE OF CASES. and Writs of Error, 16; Examination of Bankrupt, 78; Schedules, 20. Moore, In re; Ex parte The National Ex- change Bank of Columbus (1 N. B. E. 133; 3 Bond, 170; 1 Amer. Law T. Eep. Bankr. 74; Fed. Cas. 10,041). Banks, 45; Claims, 178; Statutory Construction, 39, 30; Usury, 14 Moore & Bro. v. Harley (4 N. B. E. 71; 3 Bait. Law Trans. 666; Fed. Cas. 9,764). Petition, 137; Verification, 11. Moore et al. v. Walton et al. (9 N. B. E. 403; Fed. Cas. 9,779). Partners, 4. Moran et al. v. Bogert (14 N. B. E. 393). Claims, 116, 276; Eeferee, 28; Set-off, 1,34. Morgan v. Campbell, Ass. (11 N. B. E. 539; 33 Wall 381). Eent, 20. Morgan, Eoot & Co. v. Mastick (3 N. B.'Bv 163; Fed. Cas. 9,803). Bankrupt Law, 8; Evidence, 19; Fraud, 20; Insolvency, 17; Intent, 9; Preferences, 61; Trustees, 204. Morgan et aL v. Thornhill et al. (5 N. B. E. 1; 11 Wall. 65). Jury Trials, 8. Morganstern, In re (19 N. B. E. 111). Morganthal, In re (1 N. B. E. 98; 25 Leg. Int. 92; 6 Phila. 468; Fed. Cas. 9,813). Amend- ment, 17, 18; Eeferee, 13. Morrill, Geo. P., In re (8 N. B. E. 117; 3Sawy. 356; Fed. Cas. 9,831). Claims, 234; Com- mercial Paper, 28; Mortgages, 123; Sales, 87; Surety, 13. Morris, Ex parte; In re Foye (16 N. B. E. 572; 3 Lowell, 434; Fed. Cas. 9,833> Mort- gages, 92; Secured Claims, 46. Morris, Ex parte; Morris, In re (13 N. B. R. 170). Composition, 97, 119; Oath, 2; Vote, 10. Morris v. Davidson (11 N. B. R. 454). Com- position, 37, 104, 105; Estate, 65, 133, 270; Petition, 106. Morris, Ass., v. First Nat. Bank of New York (15 N. B. E. 281). Banks, 18; Estate, 231. Morris et al. v. Swartz (10 N. B. E. 305). Courts, 32, 206; Evidence, 28; Interven- tion, 14; Trustees, 10, 136. Morris & Morganstern, In re (19 N. B. E. Ill; 19 Alb. Law J. 381; 26 Pittsb. Leg. J. 131; 36 Leg. Int. 215; Fed. Cas. 9,824). Discharge, 112. Morrison, In re (10 N. B. E. 105; 6 Chi. Leg. News, 110; Fed. Cas. 9,839). Preferences, 330; Secured Claims, 64; Stockholder, 13, 21. Morse, In re (7 N. B. R 56; Fed. Cas. 9,853). Trustees, 95. Morse, In re (13 N. B. E. 377; Fed. Cas. 9,854). Claims, 147; Partners, 30, 142. Morse & Co., In re (11 N. B. E. 482; Fed. Cas. 9,853). Claims, 144, 249. Morss V. Gritmann, Ass. (10 N. B. E. 132). Appeals and Writs of Error, 10; Arbi- tration, 1; Costs and Fees, 47. Moseley, Wells & Co., In re (8 N. B. E 208; Fed. Cas. 9,868). Exemptions, 105; Plead- ing and Practice, 311. Moses, In re (19 N. B. E. 412; Fed. Cas. 9,870). Estate, 327. Moses et al., In re (3 N. B. E. 1). Costs and Fees, 72. Moses, S. J., In re (6 N. B. E. 181; Fed. Gas. 9,869). Contempt, 13; Injunction, 71, 73. Moss, In re (19 N. B. R 133; Fed. Cas. 9,877). Books of Account, 38; Definitions, 18. Mosselman & Poelaert, Trustees, v. Caen (10 N. B. E. 513). Courts, 330; Pleading and Practice, 270. Mott, In re (1 N. B. E. 9; Fed. Cas. 9,879). Sales, 57, 58; Trustees, 126. Moyer v. Dewey (103 IT. S. 301). Discharge, 349; Trustees, 171. Muirhead, Ass. etc., v. Aldridge et aL (14 N. B. E. 249; 3 N. Y. Wkly. Dig. 480; 33 Leg. Int. 213; Fed. Cas. 9,904). Estate, 283; Married Woman, 17. Muller & Brentano, In re (3 N. B. R 86; Deady, 513; 3 Amer. Law T. Eep. Bankr. S3; Fed. Cas. 9,913). Injunction, 57; Pe- tition, 32; Pleading and Practice, 249. Munger & Champlin, In re (4 N. B. R 00; Fed. Cas. 9,933). Fraud, 34; Preferences, 226; Sales, 48. Munn, In re (7 N. B. R 468; 3 Biss. 443; 7 Amer. Law Eev. 751; Fed. Cas. 9,925). Acts of Bankruptcy, 69; Commercial Paper, 92; Courts, 17; Partners, 11, 106, 163, 164. Munson v. Boston, Hartford & Erie R R Ca (14 N. B. R 173). Attachment, 55. Murdock, In re (3 N. B. E. 86; 1 Lowell, 363; Fed. Cas. 9,939). Claims, 153; Discharge, 39. Murdock et al.. In re (4 N. B. R 17). Books of Account, 10, 25. Murphy, In re (10 N. B. R 48; Fed. Cas. 9,946). Insanity, 4. Murphy v. Young (18 N. B. R 505). Pleading and Practice, 130. TABLE OF CASES. U Murray, In re (3 N. B. R. 187; 1 Hask. 267; Fed. Cas. 9,954). Claims, 207. Mutual Building Fund Society, etc.. In re ; Ex parte Beatty (15 N. B. E. 44; 3 Hughes, 374; 5 Amer. Law Rec. 571; Fed. Cas. 9,976). Banks, 4; Claims, 95. Myer et al. v. Crystal Lake Pickling & Pre- serving Works (14 N. B. R. 9). Injunc- tion, 78; Receiver, 5. Myers, Ass., v. Seeley et al. (10 N. B. R. 411 ; 1 Cent. Law J. 451; Fed. Cas. 9,994). Cor- porations, 33; Trustees, 226, 327. Myrick, In re (8 N. B. E. 38; Fed. Cas. 9,999). Estate, 93, 193. National Bank of Fredericksburg v. Conway et al. (14 N. B. R. 175; 1 Hughes, 37; Fed. Cas. 10,037). Deeds, 6; Preferences, 13. National Bank of Fredericksburg v. Conway et aL (14 N. B. R. 513; 1 Hughes, 37; Fed. Cas. 10,037). Mortgages, 106; Notary Public, 3, 4. National Iron Co., In re (8 N. B. R. 423; 10 Phila. 374; 30 Leg. Int. 373; 20 Pittsb. Leg. J. 308; Fed. Cas. 10,045). Sales, 35. National Mount Wollaston Bank v. Porter et al. (17 N. B. R. 839). Claims, 153; Com- position, 39, 64; Dividends, 3. Neal v. Scruggs et al., Ex'rs, etc. (17 N. B. R. 103; 95 U. S. 704). Fraud, 64. Neale, In re (3 N. B. R. 43; 1 Amer. Law T. Rep. Bankr. 295; Fed. Cas. 10,066). As- signments, 47; Record, 2. Nebe, In re (11 N.B. R. 289; Fed. Cas. 10,073). Costs and Fees, 133; Notary Public, 5; Proof, etc., 24. Nebenzahl et al., In re (17 N. B. R. 23; 9 Ben. 243; Fed. Cas. 10,074). Composition, 80; Injunction, 46. Needham, In re (2 N. B. R. 124; 1 Lowell, 309; 3 Amer. Law T. Rep. Bankr. 39; 16 Pittsb. Leg. J. 313; 1 Chi. Leg. News, 171; Fed. Cas. 10,081). Crimes and Of- fenses, 4; Schedules, 38. Neilson, J., In re (7 N. B. R 505; Fed. Cas. 10,090). Pleading and Practice, 105. Nelson, In re (16 N. B. R. 313; 9 Ben. 338; Fed. Cas. 10,100). Attachment, 35; Es- tate, 24; Liens, 6. Newoomb r. Launtz, Ass. etc. (18 N. B. E. 276). Estate, 149. Newcomer, In re (18 N. B. R. 85; 10 Chi. Leg. News, 347; 26 Pittsb. Leg. J. 3; Fed. Cas. 10,148). Claims, 63. New Lamp Chimney Co. v. Ansonia Brass & Copper Co. (13 N. B. R. 385; 91 U. S. 656). Corporations, 19, 53; Courts, 38; Petition, 8; Proof, etc., 43; Statutory Construction, 80; Suits, 37. Newland, In re (7 N. B. R. 477; 6 Ben. 343; Fed, Cas. 10,170). Claims, 170; Insur- ance, 5, 6, 7; Trustees, 79. Newland, In re (9 N. B. R. 63; 7 Ben. 63; 3 Ins. Law J. 860, 895; 4 Bigelow Ins. Cas. 383; Fed. Cas. 10,171). Courts, 850; Es- tate, 371 ; Pleading and Practice, 185. Newman, In re (3 N. B. R. 99; 3 Ben. 30; 1 Chi. Leg. News, 133; Fed. Cas. 10,175> Books of Account, 18, 19. New York Kerosene Oil Co., In re (3 N. B. R. 31; Fed. Cas. 10,306). Pleading and Practice, 178a. New York Mail Steamship Co., In re (3 N. B, R. 36; Fed. Cas. 10,309). New York Mail Steamship Co., In re (3 N. B, R. 137; 1 Chi. Leg. News, 310; Fed. Cas. 10,210). Costs and Pees, 68; Trustees, 34. New York Mail Steamship Co., In re (3 N. B. R. 170; Fed. Cas. 10,311). Costs and Fees, 69. New York Mail Steamship Co., In re (3 N. B. R. 155, 185; 7 Blatchf. 178; Fed. Cast 10,308). Costs and Fees, 74; Pleading and Practice, 164. New York Mall Steamship Co., In re (3 N. B. R. 73; Fed. Cas. 10,313). Claims, 4; Plead- ing and Practice, 69. Nicholas, Ass., v. Murray et al. (18 N. B. R. 469; 5 Sawy. 330; Fed. Cas. 10,223). Claims, 337; Courts, 370; Discharge, 219; Estate, 203; Limitations, Statute of, 15; Pleading and Practice, 21, 233, 284, 285. Nichols, In re (19 N. B. R. 419; Fed. Cas. 10,237). Courts, 77; Schedules, 34. Nichols, Ass. etc., v. Eaton et al. (13 N. B. R. 421; 91 U. S. 716). Estate, 93, 94; Will, 1,3. Nickodemus, In re (3 N. B. R. 55; 3 Chi. Leg. News, 49; 16 Pittsb. Leg. J. 333; 3 Amer. Law T. 168; 1 Amer. Law T. Rep. Bankr. 140; Fed. Cas. 10,254). Commercial Pa- per, 7; Petition, 98. Nimick v. Coleman (17 N. B. R. 479; 95 U. S. 3C8). Pleading and Practice, 226a. lii TABLE OF CASES. Nims et al., In re (18 N. B. R. 91; 10 Ben. 53; 26 Pittsb. Leg. J. 11; Fed. Cas. 10,368). Partners, 151. Noakes, In re (1 N. B. E. 164; Bank. Ct. Eep. 163; Fed. Cas. 10,381). Estate, 377; Trust- ees, 186. Noble, In re (3 N. B. E. 35; 3 Ben. 333; Fed. Cas. 10,383). Evidence, 73. Noble V. Hammond (129 U. S. 65). Discharge, 390. Noesen, In re (13 N. B. E. 433; 6 Biss. 443; 7 Chi. Leg. News, 419; 1 N. Y. Wkly. Dig. 135; 3 Cent. Law J. 570; Fed. Cas. 10,288). Claims, 228; Limitations, Statute of, 30. Nooman & Connolly, In re (3 N. B. E. 63; Fed. Cas. 10,291). Books of Account, 34. Noonan, In re (10 N. B. E. 330; 3 Biss. 491; 5 Chi. Leg. News, 557; 30 Leg. Int. 435; 21 Pittsb. Leg. J. 73; Fed. Cas. 10,292). Adjudication, 2; Courts, 173; Petitionj 18. Noonan v. Orton (13 N. B. E. 405). Estate, 117, 118. Norris, In re (4 N. B. E. 10; 1 Abb. (U. S.) 514; 1 Amer. Law T. Eep. Bankr. 227; 3 Amer. Law T. 316; Fed. Cas. 10,304). Pleading and Practice, 167. North, Ass., V. House et al. (6 N. B. E. 365; Fed. Cas. 10,310). Assignments, 63; Es- tate, 265. Northern Bank of Kentucky v. Cooke (18 N. B. R. 306). Commercial Paper, 61. Northern Iron Co., In re (14 N. B. E. 356; Fed. Cas. 10,322). Corporations, 41 ; Proof, etc., 53, 63; Trustees, 165. Norton, C. H., In re (6 N. B. E. 397; Fed. Cas. 10,848). Adjournment, 8 ; Meetings, 5, 7 ; Trustees/ 88. Norton, Ass., v. De La Villebeuve (13 N. B. E. 304; 1 Woods, 163; 8 N. Y. Wkly. Dig. 4; Fed. Cas. 10,350). Limitations, Stat- ute of, 5, 59. Norton v. Hood (134 U. S. 30). Trustees, 76. Nostrand v. Barr (3 N. B. E. 154). Courts, 241. Nounnan, J. F. &' Co., In re (6 N. B. R. 579). Claims, 67; Proof, etc., 36; Secured Claims, 33; Wages, 6; Waiver, 4. Nounnan, J. F. & Co., In re (7 N. B. E. 15). Claims, 88; Preferences, 91; Statutory Construction, 75. Noyes, In re (11 N. B. E. Ill; 2 Lowell, 352; Fed. Cas. 10,370). Examination of Bank- rupt, 8, 73. Noyes, B. B., In re (6 N. B. E. 277; Fed. Cas. 10,371). Costs and Fees, 62; Trustees, 31. Nudd & Noe v. Burrows, Ass. (13 N. B. E 289; 91 U. S. 426). Courts, 9; Evidence, 36, ] 114; Partners, 15; Preferences, 197. I o. Oakey v. Bennett (11 How. 33). Bankrupt Law, 10. O'Bannon, In re (3 N. B. R 6; Fed. Cas. 10,394). Estate, 180; Petition, 34; Schedules, 43. Obear, In re; In re Thomas (10 N. B. E. 151; 3 Dill. 37; 1 Cent. Law J. 363; Fed. Cas. 10,395). Statutory Construction, 14. OberhofEer, In re (17 N. B. R 546; 9 Ben. 485; Fed. Cas. 10,396). Trustees, 37; Waiver, 12. O'Brien v. Weld et al. (15 N. B. R 405; 93 U. S. 81). Injunction, 54; Sheriff, 6. Ocean Nat. Bank v. Wild (10 N. B. R 568; Fed. Cas. 3,571). Usury, 13. Odell et al.. In re (17 N. B. R 73; 9 Ben. 209; Fed. Cas. 10,426). Books of Account, 15. Odell et al.. In re (16 N. B. R 501; 9 Ben. 247; Fed. Cas. 10,437). Composition, 20; Courts, 363; Discharge, 160. Odell V. Wooten (4 N. B. R 46). Discharge, 303. O'Donohoe, In re (3 N. B. R 59; Fed. Cas. 10,435). Evidence, 53. O'Dowd, Michael, In re (8 N. B. R 451; Fed. Cas. 10,439). Estate, 33. O'Farrell et al.. In re (3 N. B. R 154; 3 Ben. 191; 3 Amer. Law T. 106; 1 Anier. Law T. Eep. Bankr. 159; Fed. Cas. 10,446). Death, 2; Discharge, 192. Ogden et al. v. Eedd (18 N. B. R 317)i Dis- charge, 347. Ogden V. Saunders (13 Wheat 313). Con- tracts, 37, 38. Okell, In re (1 N. B. R 5.3; 3 Ben. 144; 1 Amer. Law T. Eep. Bankr. 33; 3 Pittsb. Leg. J. (N. S.) 232; Fed. Cas. 10,474). Costs and Fees, 138; Examination of Bankrupt, 70. O'Kell, In re (2 N. B. R 85; Fed. Cas. 10,475).' Discharge, 87. Olcott, Ass., V. Maclean et al. (14 N. B. R 379). Alien, 3, 3; Courts, 133! Prefer- ences, 196; Suits, 10. Olcott, Ass., V. Maclean et al. (16 N. B. R 79). Statutory Construction, 34. Olds et al.. In re (4 N. B. R 37; Fed. Cas. 10,484). Discharge, 4. TABLE OF CASES. liii Oliver et al., In re (19 N. B. K. 291; Fed. Cas. 10,492). Estate, 108. •Oliver v. Cunningham et al. (19 N. B. R. 400; Fed. Cas. 10,493). Pleading and Prac- tice, 263. Olmsted, In re (4 N. B. E. 71; Fed. Cas. 10,505). Petition, 92; Pleading and Prac- tice, 139. Olney. etc. v. Tanner et al. (19 N. B. E. 178; Fed. Cas. 10,506). Courts, 75 ; Estate, 77 ; Pleading and Practice, 259. O'Neal, In re (6 N. B. R 435; Fed. Cas. 10,513). Limitations, Statute of, 56; Trust, 13. O'Neil, In re (14 N. B. R 210; 3 Lowell, 470; Fed. Cas. 10,538). Composition, 95; Oper- atives, 4. O'Neil V. Dougherty (10 N. B. R 394). Ap- peals and Writs of Error, 1. Opelousa & Great Western R R Co., In re; Ex parte Tucker et al. (3 N. B. R 31; Fed. Cas. 10,547). Petition, 43; Prefer- ences, 364. Opinion of Attorney-General (9 N. B. R 117). Estate, 83; Preferences, 150. -Qrcutt, In re (4 N. B. R 176; 5 Ben. 19; Fed. Cas. 10,550). Claims, 17; Discharge, 88. Ordvray Brothers, In re (19 N. B. R 171; 19 Alb. Law J. 482; Fed. Cas. 10,552). Dis- charge, 107; Petition, 144. Oregon Bulletin Printing & Publishing Co., In re (13 N. B. R 503; 1 Cin. Law Bui. 87; Fed. Cas. 10,559). Acts of Bank- ruptcy, 28; Claims, 213; Corporations, 20; Evidence, 3, 25, 86; Insolvency, 25; Pay- ment, 11; Preferences, 35, 363; Waiver, 18. Oregon Bulletin Printing & Publishing Co., In re (14 N. B. E. 405; 3 Sawy. 614; 11 Amer. Law Rev. 181; 3 Cent. Law J. 515; 14 Alb. Law J. 130; 3 Amer. LawT. Rep. (N. S.) 469; Fed. Cas. 10,561). Corpora- tions, 31; Petition, 107; Pleading and Practice, lll-113; Statutory Construc- tion, 78, 73. Oregon Bulletin Printing & Publishing Co., In re (14 N. B. R 394; 3 Sawy. 539; 8 Chi. Leg. News, 143; Fed. Cas. 10,560). Pleading and Practice, 254; Stay of Pro- ceedings, 31. Oregon Bulletin Publishing & Printing Co., In re (13 N. B. E. 199; 10 Amer. Law Rev. 380; 8 Chi. Leg. News, 81; Fed. Cas. 10,558). Definitions, 20; Petition, 10. Oregon Iron Works, In re (17 N. B. R 404; 4 I Sawy. 169; 26 Pittsb. Leg. J. 8; Fed. Cas, ' 10,563). Bond, 3; Trustees, 174. Orem et al. v. Harley (3 N. B. R 63; 3 Bait, Law Trans. 943; Fed. Cas. 10,667). Plead- ing and Practice, 127, 138. Osage Valley & S. Kans. R R Co., In re (9 N. B. R 281; 1 Cent. Law J. 33; Fed. Cas. 10,592). Claims, 130; Courts, 375; Peti- tion, 35. Osborn v. McBride (16 N. B. R 33; 3 Sawy, 590; Fed. Cas. 10,593). Estate, 350; Part- ners, 80; Sales, 70. Ouimette, In re (3 N. B. R 140; 1 Sawy. 47; Fed. Cas. 10,622). Petition, S3; Pleading and Practice, 303. Overman, Ass. etc., v. Quick, Adm'r, etc. (17 N. B. R 335; 8 Biss. 134; 10 Chi. Leg. News, 210; Fed. Cas. 10,624). Claims, 206; Mortgages, ISO. Overton, E., In re (5 N. B. R. 366; Fed. Cas. 10,625). Trustees, 132, 138. Owen & Murrin, In re (8 N. B. R 6; Fed. Cas. 10,627). Insurance, 10. Owens, In re (12 N. B. R 518; 6 Biss. 432; 7 Chi. Leg. News, 371; 1 N. T. Wkly. Dig. 175; Fed. Cas. 10,632). Constitutional Law, 17, 18; Contracts, 33; Exemptions, 3, 87, 99. Owsley et al. v. Cobin et al. (15 N. B. R. 489; 3 Hughes, 433; 4 N. Y. Wkly. Dig. 431; 9 Chi. Leg. News, 323; 4 Law & Eq. Eep. 49; 23 Int. Eev. Eec. 310; Fed. Cas, 10,636). Discharge, 395. Oxford Iron Co. v. Slafter, Ass. etc. (14 N. B. R 380; 13 Blatchf. 455; Fed. Cas. 10,637). Preferences, 36; Statutory Con- struction, 37, 38, 39. Paddock, In re (6 N. B. R 396; Fed. Cas, 10,658). Claims,- 31 ; Costs and Fees, 134; Courts, 377, Paddock, In re (6 N. B. R 133; Fed. Cas. 10,657). Claims, 266; Constitutional Law, 30. Paine, In re (17 N. B. R 37; 9 Ben. 144; Fed. Cas. 10,673). Estate, 28 ; Liens, 55; Sales, 6, Paine, Ass., v. Caldwell (6 N. B. R 558; 1 Hask 452; 29 Leg. Int. 284; 6 Alb. Law J. 291; 5 Amer. Law T. Eep. (U. S. Cts.) 311; Fed. Cas. 10,674). Courts, 118. liv TABLE OF CASES. Palmer, In re (14 N. B. E. 437; 2 Hughes, 177 ; Fed. Cas. 10,678). Discharge, 153, 197; Fraud, 63. Palmer, In re (3 N. B. R. 74; 3 Amer. Law T. 107; 1 Amer. Law T. Rep. Bankr. 139; Fed. Cas. 10,681). Mortgages, 91. Palmer, In re (1 N. B. R. 213; Bankr. Reg. Supp. 46; Fed. Cas. 10,680). Courts, 135. Palmer, In re (3 N. B. R. 77; Fed. Cas. 10,683). Claims, 247; Partners, 68. Palmer v. Hussey (119 U. S. 98). Discharge, 308. Paret v. Ticknor et al. (16 N. B. E. 815; 4 Dill. Ill; 5 Cent. Law J. 328; Fed. Cas. 10,711). Composition, 63; Sales, 97. Parham et al.. In re (17 N. B. R 300; Fed. Cas. 10,712). Preferences, 207. Parker et al.. In re (18 N. B. R. 43; 5 Sawy. 58; Fed. Cas. 10,724). Discharge, 74; Ex- emptions, 11, 92. Parker et al.. In re (19 N. B. R. 340; Fed. Cas. 10,731). Claims, 49; Contracts, 1; Evi- dence, 89; Partners, 203; Preferences, 28. Parker v. Bradford (17 N. B. R. 485). Claims, 126; Discharge, 285. Parkes et al.. In re (10 N. B. R. 82; Fed. Cas. 10,754). Amendment, 29 ; Proof, etc., 14; Secured Claims, 7, 41; Vote, 3. Parks et al.. In re (9 N. B. R. 270; Fed. Cas. 10,765). Estate, 343; Exemptions, 117; Partners, 78. Parrish, In re (9 N. B. R. 573; Fed. Cas. 10,769). Claims, 160; Discharge, 49; Vote, 16. Parsons v. ToplifE (14 N. B. R. 547). Attach- ment, 46; Preferences, 73. Partridge v. Dearborn et al. (9 N. B. R. 474; 2 Lowell, 286; Fed. Cas. 10,785). Liens, 52; Trustees, 66. Patterson, In re (1 N. B. R, 58; 2 Ben. 155; 15 Pittsb. Leg. J. 241; Fed. Cas. 10,817). Arrest, 1; Discharge, 246, 255; Exam- ination of Bankrupt, 69; Sheriff, 5; "Waiver, 23a. Patterson, In re (1 N. B. E. 135; 1 Ben. 508; Bankr. Reg. Supp. 37; 6 Int. Eev. Eec. 157; Fed. Cas. 10,815). Estate, 10. Patterson, In re (1 N. B. R. (8 vo. ed.) 101; 1 Ben. 448; Bankr. Reg. Supp. 33; Fed. Cas. 10,814). Proof, etc., 10. Pattison & Co. v. Wilbur (13 N. B. R 193). Discharge, 398; Notice, 47. Payne & Bro. v. Able et al. (4 N. B. R 61y. Discharge, 129; Pleading and Practice, 52. Payne et al. v. Solomon (14 N. B. R 162; Fed. Cas. 10,856). Acts of Bankruptcy,. 26; Fraud, 78, 94; Preferences, 14. Payson, Ass., v. Dietz (8 N. B. R 193; 3 Dill. 504; 13 Amer. Law Reg. (N. S.) 511; 5 Chi. Leg. News, 434; SO Leg. int. 313r Fed. Cas. 10,861). Courts, 34, 35. Peabody, In re (16 N. B. R 343; 9 Chi. Leg. News, 243; Fed. Cas. 10,866). Costs and' Fees, 37, 90; Courts, 107; Exemptions, ^85, 93; Fraud, 53; Referee, 10; Sales, 10; 63; Schedules, 46; Trustees, 13, 19. Pearsall v. Smith (149 U. S. 331). Limita- tions, Statute of, 10. Pearson, In re (3 N. B. R 151 ; 2 Amer. Law • T. Rep. Bankr. 66; Fed. Cas. 10,878). Trustees, 133; Vote, 9. Pease, In re (13 N. B. R. 168; Fed. Cas. 10,881), Claims, 137; Partners, 90, 139. Pease et al., In re (6 N. B. R 173; Fed. Cas; 10,880). Claims, 128. Peck, In re (3 N. B. R 186; Fed. Cas. 10,887). Certiiioation, 3. Peck, In re (16 N. B. R 43; 9 Ben. 169; Fed, Cas. 10,886). Attachment, 18. Peck V. Jenness, 7 How. 613), Attachment,. 37, 38; Liens, 137. Peebles, In re; Ex parte Watkins, Ass. (13- N. B. R 149; 3 Hughes, 394; Fed. Cas, 10,902). Banks, 10, 11; Courts, 239. Pegues, In re (3 N. B. R 19; 3 Amer. Law T. 136; Fed. Cas. 10,907). Costs and Fees, 58. Peiper v. Harmer (5 N. B. R 353). Trustees;' 169. Peltasohn et al., In re (16 N. B. E. 265; 4 Dill. 107; 10 Chi. Leg. News, 9; 4 Law &. Eq. Rep. 441; Fed. Cas. 10,912). Estate, 287. Penn et al., In re (5 N. B. R 288; Fed. Cas. 10,929). Discharge, 128. Penn et al., In re (8 N. B. R 93; 5 Ben. 500r Fed. Cas. 10,938). Res Ad judicata, 2. Penn et al.. In re (5 N. B. R 30; 5 Ben. 89; 3 Chi. Leg. News, 225; Fed. Cas. 10,937). Partners, 17, 18, 120; Petition, 16. Penn et al.. In re (3 N. B. R 145; 4 Ben. 99,- Fed. Cas. 10,926). Discharge, 75; Plead- ing and Practice, 119. TABLE OF CASES. It Pennington, Ass. of Bryan, v. Lowenstein et al. (1 N. B. R. 157; Fed. Cas. 10,938). At- tachment, 8; Liens, 90. Pennington, Ass. of Stewart, v. Sale & Phe- lan et al. (1 N. B. R. 157; 3 Amer. Law Rev. 776; Fed. Cas. 10,939). Estate, 23; Judgment, 7. Penny v. Taylor (10 N. B. R 200; Fed. Cas. 10,957). Conveyances, 6; Courts, 61, 63; Estoppel, 18; Injunction, 23; Judgment,!. People ex rel. Jennys v. Bryan (13 N. B. R. 567). Collateral Attack, 10; Courts, 68, 101 ; Waiver, 19. People's Mail Steamship Co., In re (2 N. B. R 170; 3 Ben. 226; Fed. Cas. 10,970). At- tachment, 57; Injunction, 15. People's Safe Deposit &'Savings Inst, of the State of New York, In re (18 N. B. R. 493; 10 Ben. 38; 26 Pittsb. Leg. J. 140; Fed. Cas. 10,971). Proof of Claims, 13d Perdue, In re (2 N. B. R 67; 2 West. Jur. 379; Fed. Cas. 10,975). Liens, 85. Perin & Gaff Mfg. Co. et aL v. Peale (17 N. B. R 377; Fed. Cas. 10,981). Acts of Bank- ruptcy, 42; Courts, 70; Petition, 66; Schedules, 18. Perkins, In re (8 N. B. R 56; 5 Biss. 354; Fed. Cas. 10,982). Courts, 6; Pleading and Practice, 180; Trustees, 96. Perkins et al.. In re (10 N. B. R. 529; 6 Biss. 185; 7 Chi. Leg. News, 9; 10 Alb. Law J. 347; 30 Int. Rev. Rec. 135; 1 Cent. Law J. 507; 22 Pittsb. Leg. J. 43; Fed. Cas. 10,983). Discharge, 146,288; Limitations, Statute of, 11; Statutory Construction, 19; Surety, 1, 3. Perkins v. Gay (3 N. B. R 189). Discharge, 333; Judgment, 35. Perrin & Hance, In re (7 N. B. R 388; Fed. Cas. 10,995). Mortgages, 16. Perry, In re (1 N. B. R. 3; 1 Amer. Law T. Rep. Bankr. 4; Fed. Cas. 10,998). Notice, 68; Schedules, 33, 33; Trustees, 82. Perry v. Lorillard Fire Ins. Co. (14 N. B. R 839). Insurance, 4. Perryman v. Allen (15 N. B. R 113). Prefer- ences, 9a. Petrie et al.. In re (7 N. B. E. 333; 5 Ben. 110; Fed. Cas. 11,040). Set-off, 7; Trustees, 188. Pettis, In re (3 N. B. R 17; 7 Amer. Law Reg. (N. S.) 695; Fed. Cas. 11,046). Ar- rest, 3; Courts, 367; Discharge, 245, 346; Judgment, 24 Pevear et al.. In re (17 N. B. R 461; Fed, Cas. 11,053). Claims, 84; Operatives, 3, Pfromm, John & Martin, In re (8 N. B. R 357; Fed. Cas. 11,061). Trustees, 156, 157; Vote, 8. Phelan, Ass., v. Iron Mountain Bank (16 ■ N. B. R 308; 4 Dill. 88; 5 Cent. Law J. 351; Fed. Cas. 11,069). Banks, 27; Estate, 257. Phelps, In re (17 N. B. R 144; 9 Ben. 286; Fed. Cas. 11,070). Claims, 354; Partners, 193. Phelps et al., In re (1 N. B. R 139; 3 Amer. Law T. Rep. 25; Fed. Cas. 11,071). Meet- ings, 8; Partners, 115, 170; Powers of Attorney, 13; Trustees, 137; Vote, 4 Phelps V. Clasen, In re (3 N. B. R 22; Woolw. 304; 3 West. Jur. 331; Fed. Cas. 11,074). Acts of Bankruptcy, 53; Evidence, 31. Phelps et al. v. Curts et al. (16 N. B. R 85). Discharge, 316, 326; Estate, 23; Plead- ing and Practice, 20, 51, 155. Phelps v. McDonald (99 IT. S. 298). Estate, 39, Phelps, Ass., V. McDonald et al. (16 N. B. R 317). Courts, 123; Estate, 172, 212, 313, 217, 218; Sales, 8, 9. Phelps, Ass., V. McDonald et al. (19 N. B. R 187; 99 U. S. 298). Estate, 219; Limita- tions, Statute of, 47; Sales, 56. Phelps, Ass., V. Selliok (8 N. B. R. 390; Fed, Cas. 11,079). Mortgages, 75. Phelps V. Sterns; Same v. Dudley (4 N. B. E. 7; Fed. Cas. 11,080). Preferences, 186. Phillips, Wm. W., In re (14 N. B. R 319; 8 Chi. Leg. News, 409; 22 Int. Rev. Rec. 306; Fed. Cas. 11,098). Notary Public,. 6,7. Phillips V. Bowdoin (14 N. B. R 43). Claims, 187; Judgment, 16, 80. Phipps et al. v. Sedgwick, Ass. etc. (18 N. B. R 64; 95 U. S. 3). Estate, 384; Judg- ment, 28; Married Woman, 10; Partners, 111. Pickering, In re (10 N. B. R 308; 1 Cent. Law J. 371; Fed. Cas. 11,130). Statutory Con- struction, 16. Pickett, Ass,, v. McGavick (14 N. B. R 336; 2 N. Y. Wkly. Dig. 378; 3 Cent. Law J; 303; 13 Alb. Law J. 318, 400; Fed. Cas^ 11,136). Discharge, 213; Limitations, Ivi TABLE OF CASES. Statute of, 57; Schedules, 35; Statutory Construction, 61. aPioton, In re (11 N. B. E. 420; 3 Dill. 548; Fed. Cas. 11,136). Pleading and Practice, 319. Pierce et al.. In re (3 N. B. E. 61; 26 Leg. Int. 333; 16 Pittsb. Leg. J. 204; Fed. Cas. 11,141). Assignments, 50; Discharge, 137. Pierce v. Shippee (19 N. B. E. 231). Fiduciary Debt, 10; Partners, 198. Pierce & Whaling, In re (15 N. B. E. 449; 7 . Biss. 426; 9 Chi. Leg. News, 300; 15 Alb. Law J. 517; Fed. Cas. 11,139). Married Woman, 31; Pleading and Practice, 367, 314 Pierson, In re (10 N. B. E. 10). Books of Ac- count, 34. Pierson, In re (10 N. B. E. 107; Fed. Cas, 11,153). Assignments, 18; Discharge, 169; Estate, 58; Partners, 7; Petition, 116; Preferences, 8, 34, 333; Schedules, 48; Trust, 8; Trustees, 50. Pierson, In re (10 N. B. E. 193; Fed. Cas. 11,154). Amendment, 33; Discharge, 43, 135, 138. Pioneer Paper Co., In re (7 N. B. E. 350; Fed. Cas. 11,178)., Evidence, 76; Examination of Bankrupt, 87; Eeferee, 3. Piper V. Baldy (10 N. B. E. 517; 10 Phila. 347; 31 Leg. Int. 316; 22 Pittsb. Leg. J. 29; Fed. Cas. 11,179). Judgment, 56. Pitt et al., In re (14 N. B. E, 59; 8 Ben. 889; 23 Pittsb. Leg. J. 196; Fed. Cas. 11,188). Partners, 86; Petition, 118; Pleading and Practice, 144. Pittook, Eobert, In re (8 N. B. E. 78; 2 Sawy. 416; Fed. Cas. 11,189). Claims, 373; Courts, 83. Pitts, In re (19 N. B. E. 63; Fed. Cas. 11,190). Judgment, 23. Place & Sparkman, In re (4N. B. E. 178; 8 Blatchf. 302; 8 Chi. Leg. News, 218; Fed. Cas. 11,200). Appeals and Writs of Error, 18; Pleading and Practice, 335; Eeview, 4u Piatt, Ass., V. Archer (6 N. B. E. 465; 9 Blatchf. 559; Fed. Cas. 11,318). Banks, 46; Corporations, 6, 18; Courts, 359; In- junction, 6; Pleading and Practice, 149, 339; Eeceiver, 18. Piatt V. Parker (13 N. B. E. 14). Schedules, 1. Piatt V. Preston et al. (19 N. B. E. 341; Fed. Cas. 11,319). Assignments, 7; Estate, 109; Fraud, 11. Piatt V. Stewart et al. (11 N. B. E. 191; Fed, Cas. 11,321). Costs and Fees, 130. Player, Ass., v. Lippincott et aL (16 N. B. E. 208; 4 Dill. 135, note; 5 Cent Law J. 860; Fed. Cas. 11,324). Mortgages, 103. Plumb, In re (17 N. B. E. 76; 9 Ben. 379; 6 N. Y. Wkly. Dig. 70; Fed. Cas. 11,331). Discharge, 162, 268; Partners, 57, 58; Pe- tition, 22. Poleman, In re (9 N. B. E. 376; 5 Biss. 526; 19 Int. Ebv. Eec. 94; 6 Chi. Leg. News, 181; Fed. Cas. 11,247). Estate, 175; Ex- emptions, 68. Pollard, Ex parte; In re The Eliot Felting Mills (17 N. B. E. 328; 2 Lowell, 411; Fed. Cas. 11,352). Claims, 117, 118, 119; Con- tracts, 11; Petition, 166; Set-oflf, 17. Pollard V. Bailey, Ass. (11 .N. B. E. 377; 20 Wall 520). Estate, 208; Stockholder, 18-20, 38. Pomeroy, In re (3 N. B. E. 3; Fed. Cas. 11,358). Schedule, 48. Pool V. McDonald et al. (15 N. B. E. 560; 9 Chi. Leg. News, 332; 4 Law & Eq. Rep. 27 ; 2 Cin. Law Bui. 151 ; Fed; Cas. 11,268). Assignments, 35; Composition, 43. Port Huron Dry Dock Co., In re (14 N. B. E. 253; Fed. Cas. 11,293). Evidence, 101. Portsmouth Savings Fund Society, In re (U N. B. E. 303; 2 Hughes, 239; Fed. Cas. 11,298). Costs and Fees, 84; Estate, 6. Post, Ass., V. Corbin (5 N. B. E. 11; Fed. Cas. 11,299). Equity, 3. Potter et al. v. Coggeshall, Trust (4 N. B. R. 19; Fed. Cas. 11,322). Estate, 103; Pref- erences, 88. Powell, In re (3 N. B. E. 17; Fed. Cas. 11,354). Agent, 35; Powers of Attorney, 3; Eel- ative of Bankrupt, 1; Trustees, 140, 143. Prankard et al., In re (1 N. B. E. 51; Fed. Cas. 11,366). Courts, 180; Partners, 131. Pratt Edward D., In re (9 N. B. R. 47; 6 Ben. 165; 31 Pittsb. Leg. J. 83; Fed. Cas. 1 1,869). Acts of Bankruptcy, 67 ; In j unc- tion, 77. Pratt In re (6 N. B. R. 276; 2 Lowell, 96; Fed. Cas. 11,371). Insanity, 1; Petition, 58. Pratt Jr., v. Curtis et al. (6 N. B. R. 139; 3 Lowell, 87; Fed. Cas. 11,875). Convey- ances, 38, 57; Courts, 133; Pleading and Practice, 336; Trustees, 300, 201. TABLE OF CASES. Ivii I'rescott, In re (9 N. B. E. 385; B Biss. 593; 6 Chi. Leg. News, 151; Fed. Cas. 11,389). Claims, 371; Proof, etc., 3; Trustees, 333; Usury, 3, 6. Preston, In re (6 N. B. R. 546; Fed. Cas. 11,394). Attachment, 14; Costs and Fees, 5, 14; Exemptions, 97; Liens, 84 Preston, In re (3 N. B. R. 37; Fed. Cas. 11,393). Amendment, 19; Schedules, 38, 39. Preston, Charles H., In re (5 N. B. R. 398; Fed. Cas. 11,393). Claims, 167. Prewit et al. v. Wilson, Ass. etc. (19 N. B. R. 461; 103 U. S. 23). Fraud, 43; Married Woman, 8. Price, In re (4 N, B. R. 137; Fed. Cas. 11,409). Pleading and Practice, 181 ; Trustees, 98. Price et al., In re (fi N. B. R. 400; 1 Md. Law Rec. 336; Fed. Cas. 11,410). Exemptions, 111; Partners, 73. Price & MUler, In re (8 N. B. R. 514; Fed. Cas. 11,411). Adjudication, 6; Evidence, 93. Princeton, In re (1 N. B. R 178; 3 Biss. 116; 1 Amer. Law T. Rep. Bankr. 135; Fed. Cas. 11,433). Preferences, 37, 199, 310. Proby, In re (17 N. B. E. 175; 13 Amer. Law Rev. 598; 17 Alb. Law J. 167; Fed. Cas. 11,439). Evidence, 74; Examination of Bankrupt, 44; Referee, 19. Providence County Savings Bank et aL v. Frost, Trust. (13 N. B. R. 356; 8 Ben. 293; Fed. Cas. 11,453). Commercial Paper, 8, 31. Puffer, In re (3 N. B. R. 17; 15 Pittsb. Leg. J. 534; Fed. Cas. 11,459). Discharge, 58. Pullman v. Upton, Ass. etc. (17 N. B. R 489; 96 U. S. 338). Estate, 207. Pulver, In re (1 N. B. R 47; 1 Ben. 381; 14 Pittsb. Leg. J. 589; Fed. Cas. 11,466). Evidence, 144; Warrant. 4. Pulver, In re (3 N. B. R 101; 3 Ben. 65; 1 Chi. Leg. News, 139; Fed. Cas. 11,467). Discharge, 77; Notice, 3. Purcell, In re (18 N. B. R. 447; Fed. Cas. 11,470). Composition, 28; Dividends, 33; Set-off, 16, 33; Vote, 15. Purcell & Robinson, In re (3 N. B. E. 10; 3 Ben. 485; 36 How. Pr. 43; Fed. Cas. 11,469). Mortgages, 96; Trustees, 124. Purviance, Ass., v. Union Nat. Bank of Pitts- burgh (8 N. B. R. 447; 30 Leg. Int. 352; 21 Pittsb. Leg. J. 33; Fed. Cas. 11,475). Estate, 332; Fraud, 106; Trustees, 63. Pusey, In re (6 N. B. R. 40; Fed. Cas. 11,477). Sales, 113; Waiver, 5. Pusey, A., In re (7 N. B. R 45; Fed. Cas. 11,478). Estate, 378. e; Raffauf, In re (10 N. B. R. 69; 6 Biss. 150; 1 Cent. Law J. 364; 6 Chi. Leg. News, 341; 31 Pittsb. Leg. J. 206; Fed. Cas, 11,525). Statutory Construction, 13. Rainsford, D. A., In re (5 N. B. R. 381; Fed. Cas. 11,537). Conveyances, 30, 50; Dis- charge, 308. Randall & Sutherland, In re (3 N. B. R. 4; Deady, 557; 3 Amer. Law T. Rep. Bankr. 69; 1 Chi. Leg. News, 309; Fed. Cas. 11,551). Acts of Bankruptcy, 10, 47; In- solvency, 8, 34; Petition, 99. Randolph & Co. v. Oanby, Ass. (11 N. B. R. 396; Fed. Cas. 11,559). Commercial Paper, 51, 64; Trustees, 58. Rankin, Ass. etc., v. The Third Nat. Bank et al. (14 N. B. E. 4; 3 Cent. Law J. 156; Fed. Cas. 11,568). Preferences, 235, 254. Rankin & PuUan et al. v. The Florida, At- lantic & G. C. R R Co. (1 N. B. R. 196; 1 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 11,567). Acts of Bankruptcy, 78; Claims, 111; Corporations, 1, 15. Ratcliffe, In re (1 N. B. R 98; 25 Leg. Int. 92; 6 Phila. 466; 1 Amer. Law T. Rep. Bankr. 47; 15 Pittsb. Leg. J. 343; Fed. Cas. 11,578). Amendment, 16, 31 ; Sched- ules, 34. Rathbone, In re (1 N. B. R 50; 3 Ben. 138; 15 Pittsb. Leg. J. 338; 25 Leg. Int. 60; Fed. Cas. 11,580). Discharge, 15, 16; Plead- ing and Practice, 29. Rathbone, In re (1 N. B. R 145; 1 Amer. Law T. Rep. Bankr. 70; Fed. Cas. 11,583). Discharge, 180. Rathbone, In re (1 N. B. R. 65; 1 Amer. Law T. Rep. Bankr. 44; Fed. Cas. 11,583). Dis- charge, 17. Rathbone, In re (2 N. B. R. 89; 3 Ben. 50; 1 Amer. Law T. Rep. Bankr. 114; 1 Chi. Leg. News, 107; Fed. Cas. 11,581). Fraud, 55; Partners, 3. Ray, In re (1 N. B. R. (8 vo. ed.) 303; 8 Ben. 53; Bankr. Reg. Snpp. 44; Fed. Cas. 11,589). Claims, 330; Examination of Bankrupt, 3; Limitations, Statute of, 33. Iviii *ABLE OF CASES. Bay V. Brigham et al. (13 N. B. R. 145). Es- tate, 30; Mortgages, 86; Sales, 16; State Laws, 15. Eay et al. v. Wight et al. (14 N. B. R. 563). Attachment, 34; Discharge, 204, 360. Eayl, Adm'x, etc., v. Lapham (15 N. B. R. 508). Collateral Attack, 3; Discharge, 334, 339; Notice, 49; Schedules, 26. Raynor, Jacob, In re (7 N. B. R. 527: 11 Blatohf. 43; 1 Amer. Law Bee. 736; Fed. Cas. 11,597). Acts of Bankruptcy, 38; Adjudication, 17; Commercial Paper, 84; Costs and Fees, 88; Petition, 103, 114; Verification, 10. Read, In re (19 N. B. R. 331; 11 Chi. Leg. News, 288; 4 Gin. Law Bui. 894; Fed. Cas. 11,600). Proof, etc., 80. Reade et al. v. Alerhouse et aL (10 N. B. R. 277). Trustees, 33. Reakirt, In re (7 N. B. R. 339; Fed. Cas. 11,614). Certification, 9; Evidence, 78; Referee, 37. Receiver of The Ocean Nat. Bank v. The Es- tate of Wild (10 N. B. R. 568; Fed. Cas. 11,634). Banks, 34; State Laws, 3. Redmond & Martin, In re (9 N. B. R. 408; Fed. Cas. 11,633). Acts of Bankruptcy, 81; Partners, 108; Pleading and Prac- tice, 339. Reed, In re (11 N. B. E. 94; 6 Biss. 250; 7 Chi. Leg. News, 76; Fed. Cas. 11,685). Limita- tions, Statute of, 31, 60. Reed, In re (12 N. B. R. 390; 1 N. Y. Wkly. Dig. 100; Fed. Cas. 11,639). Books of Ac- count, 4. Reed, In re (3 N. B. R. 3; Fed. Cas. 11,638). Appeals and Writs of Error, 17; Plead- ing and Practice, 317. Reed et al., In re (1 N. B. R. 137; 1 Amer. Law T. Rep. Bankr. 79; Fed. Cas. 11,644). Amendment, 10, 12. Reed v. BuUington (11 N. B. R. 408). Courts, 168; Estate, 88; Liens, 93, 114, 115; Plead- ing and Practice, 333; Trustees, 117. Reed v. Molntyre, Ass. etc. (19 N. B. E. 45; 98 U. S. 507). Liens, 30. Reeser v. Johnson (10 N. B. R. 467). Injunc- tion, 43. Reily v. Lamar (2 Cranch, 344). Discharge, 807. Eeiman & Friedlander, In re (11 N. B. R. 21 ; 7 Ben. 455; Fed. Cas. 11,673). Commer- cial Paper, 67; Composition, 149; Con- etitutional Law, 1, 15. Eeiman & Friedlander, In re (13 N. B. R. 138f; 13Blatchf. 562; Fed. Cas. 11,675). Claims, ' 30; Composition, 46, 134^136; Exemp- tions, 1; Statutory Construction, 79. Rein, In re (13 N. B. R. 551; 8 Ben. 384; Fed. Cas. 11,678). Costs and Fees, 104; Mar- shal, 16; Notice, 16; Referee, 43. Reitz V. The People (16 N. B. R. 96). Dis- charge, 300; Surety, 12. Republic Ins. Co., In re (8 N. B. R. 317; Fed. Cas. 11,706). Attorneys, 4; Pleading and Practice, 5. Republic Ins. Co., In re (8 N. B. R. 197; 3 Ins. Law J. 390; 5 Chi Leg. News, 385; Fed. Cas. 11,705). Claims, 171, 172; Cof- porations, 39; Estoppel, 15; Insurance, 3. Revere Copper Co. v. Dimoct (19 N. B. R, 372). Discharge, 330. Eeynolds, In re (16 N. B. R. 158; Fed. Gas, 11,734). Claims, 69; Surety, 6. . Eeynolds, In re (9 N. B. E 50; Fed. Gas. 11,733). Conflict of Laws, 13; Constitu- tional Law, 3. Eeynolds, In re (16 N. B. R 176; 5 N. T. Wkly. Dig. 51 ; Fed. Cas. 11,725). Com- position, 124, 128; Pleading and Prac- tice, 14. Ehoads v. Blatt (16 N. B. R 83). Estate, 75; Fraud, 69; Sales, 33. Rice, In re (9 N. B. E. 373; 31 Pittsb. Leg. J. 159; Fed. Cas. 11,750). Claims, 146. Rice et al. v. Grafton Mills (13 N. B. R 309). Preferences, 316. Richards, In re (4 N. B. E. 25; 4 Ben. 303; Fed. Cas. 11,769). Examination of Bankrupt, 15. Eichards, In re (17 N. B. E. 563; 10 Chi. Leg. News, 375; Fed. Cas. 11,770). Evidence,. 13; Married Woman, 4. Eichards v. Maryland Ins. Co. (8 Cranch, 84). Trustees, 4. Richardson & Co., In re (11 N. B. R 114; 7 Chi. Leg. News, 63; Fed. Cas. 11,776). Exemptions, 109. Richardson et al., In re (2 N. R R 74; 2 Ben. 517; 3 Amer. Law T. Rep! Bankr. 20; Fed. Cas. 11,774). Courts, 114; In- junction, 89. Richmond et al., In re (18 N. B. R. 862; Fed. Cas. 11,798). Vote, 13. Richter's Estate, In re (4 N. B. R. 67; 1 DHL 544; 3 Chi Leg. News, 33; Fed. Cas. 11,803). Claims, 45; Fraud, 22; Prefer- ences, 20, 209. TABLE OF CASES. lix «iggin V. Magwire (8 N. B. R. 484; 15 Wall. 549). Discharge, 277. Riggs, Leohtenberg & Co., In re (8 N. B. E. 90). Claims, 175; Interest, 11; Usury, 5. Riker, In re (18 N. B. R. 393; Fed. Cas. 11,833). Commercial Paper, 16; Petition, 83, 111. •Riorden, In re (14 N. B. R. 332; Fed. Cas. 11,852). Claims, 63, 199; Fraud, 18, 93; Preferences, 56. Bison, Ass., V. Knapp (4 N. B. E. 114; 1 Dill. 186; Fed. Cas. 11,861). Bona Fide Trans- fer, 8; Estate, 201; Insolvency, 23, 28,40; Preferences, 57, 58, 157, 162, 193; Trover, 1. Robinson, In re (1 N. B. R 49; 3 Ben. 145; 1 Amer. Law T. Rep. Banljr. 25; Fed. Cas. 11,937). Judgment, 23; Meetings, 11; Referee, 39. Robinson, In re (2 N. B. E. 108; 36 How. Pr. 176; 6 Blatchf. 253; 3 Amer. Law T. Rep. Bankr. 18; Fed. Cas. 11,939). Arrest, 7; Discharge, 246. Robinson, In re (14 N. B. R 130; 8 Ben. 406; Fed. Cas. 11,938). Proof, etc., 75. ■Robinson & Chamberlin, In re (3 N. B. R. 163; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 11,942). Examination of Bankrupt, 7. Robinson & Chamberlain, In re (3 N. B. E. 17; Fed. Cas. 11,943)., Costs and Fees, 20; Discbarge, 83. ■Robinson et aL v. Elliott, Ass. (11 N. B. R. 554; 33 Wall. 513). Estate, 110; Mort- gages, 154; Preferences, 198. Robinson et al. v. Han way (19 N. B. R 289; 27 Pittsb. Leg. J. 21; Fed. Cas. 11,953). Courts, 174; Petition, 42. Robinson et al. v. Pesant et al. (8 N. B. R. 426). Discharge, 31 1 ; Pleading and Prac- tice, 50. Robinson et al. v. Wilson (14 N. B. R 565). Discharge, 261; Exemptions, 104 Robinson, Ass. etc., v. The Wisconsin Marine & Fire Ins. Co. Bank (18 N. B. R343; 9 Biss.117; Fed. Cas. 11,969). Preferences, 220. Eoby V. Colehour (146 H. S. 153). Trustees, 53. Roche et al. v. Fox, In re (16 N. B. R 461; Fed. Cas. 11,974). Petition, 133; Pleading and Practice, 143. ■JJookett, Ex parte; In re Taylor (15 N. B. R 95; 3 Lowell, 533; Fed. Cas. 11,977). Claims, 86. Eockf ord. Rock Island & St. Louis E. R Co., In re McKay & Aldus (3 N. B. R 13; 1 Lowell, 845; 2 Amer. Law T. 105; 1 Chi. Leg. News, 337; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 11,978). Estate, 195; Estoppel, 6; Trustees, 72. Rockwell & Woodruff, In re (4 N. B. R 74; Fed. Cas. 11,987). Discharge, 141 ; Plead- ing and Practice, 163. Rodger etal.. In re (18 N. B. R 253; Fed. Cas. 11,991). Composition, 9; Fiduciary Debt, 13. Rodger et al.. In re (18 N. B. R 381 ; Fed. Cas. 11,993). Composition, 113; Injunction, 79. Eoese v. King (108 U. S. 379). Acts of Bank- ruptcy, 9. Eogers, In re (3 N. B. R 139; 1 Lowell, 433; Fed. Cas. 12,001). Books of Account, 31 ; Discharge, 106, 119; Fraud, 58; Petition, 26. Eogers, In re (10 N. B. R 444; 1 Cent. Law J. 470; Fed. Cas. 13,003). Evidence, 133; Petition, 138; Pleading and Practice, 98, 135;. Statutory Construction, 60. Eogers et al.. In re (3 N. B. E. 129; 1 Chi. Leg. News, 195; Fed. Cas. 13,002). Pref- erences, 188. Rogers, Ass. etc., v. Palmer (19 N. B. R. 471; 102 U. S. 363). Attorneys, 33; Notice, 45; Preferences, 107. Rogers, Ass., v. Winsor (6 N. B. R 346; Fed. Cas. 13,033). Books of Account, 41; Es- tate, 12; Petition, 163; Pleading and Practice, 175. EoUins, Ass., v. Twitchell& Co. (14 N. B. R. 201; 2 Hask. 66; 5 Amer. Law Eec. 247: Fed. Cas. 12,027). Assignments, 59; Choses in Action, 9; Set-off, 36, 27, 35. Rooney, In re (6 N. B. R. 163; Fed. Cas. 12,032). Deeds, 1; Evidence, 63, 64; Fraud, 40; Time, 3. Rose, Lyon & Co., In re (3 N. B. R 63; 1 Bait. Law Trans. 635; Fed. Cas. 12,043). Claims, 98. Roseberry et al., In re (16 N. B. R 340; 8 Biss. 112; Fed. Cas. 13,052). Agent, 16; Sales, 98, 122. Rosenbaum v. Garnett, Ass. etc. (19 N. B. R 370; 3 Hughes, 663; Fed. Cas. 12,053), Courts, 183. Rosenberg, In re (3 N. B. R 81; 3 Ben. 14; 1 Chi. Leg. News, 103; Fed. Cas. 12,054). Claims, 133; Discharge, 199; Statutory Construction, 46; Stay of Proceedings, 5; Suits, 3. Ix TABLE OF CASES. Rosenberg, In re (3 N. B. R. 33; 8 Ben. 866; Fed. Cas. 12,055). Estate, 43. Rosenberg, In re (8 N. B. R. 18; Fed. Cas. 13,056). Assignments, 24; Costs and Fees, 18, 19; Pleading and Practice, 165. Rosenfeld, Jr., In re (3 N. B. R 49; 1 Amer. Law T. Rep. Bankr. 100; 8 Amer. Law Reg. (N. S.) 44; Fed. Cas. 13,057). Con- veyances, 66, 83; Discharge, 89, 133; Oper- atives, 2; Preferences, 333; Wages, 1. Rosenfield, In re (1 N. B. R. 161; 7 Amer. Law Reg. (N. S.) 618; 1 Amer. Law T. Rep. Bankr. 81; Fed. Gas. 13,058). Con- veyances, 19; Discharge, 21, 117; Exam- ination of Bankrupt, 47; Preferences, 54, 84; Statutory Construction, 44, 45. Rosenfield, Jr., In re (1 N. B. R; 60; 15 Pittsb. Leg. J. 345; 1 Amer. Law T. Rep. Bankr. 47; Fed. Cas. 13,059). Bankrupt Law, 9; Evidence, 72; Examination of Bankrupt, 19, 20, 21, 67. Rcfsenfields, In re (11 N. B. R. 86; .3 Amer. Law Rec. 724; 1 Cent. Law J. 583; Fed, Cas. 13,061). Agent, 30; Evidence, 105;. Petition, 60, 130, 131, 148. Rosenthal et al., In re (10 N. B. R. 191; 1 Cent. Law J. 364, note; 6 Chi. Leg. News, 343; 31 Leg. Int. 254; Fed. Cas. 13,062). Dividends, 33; Schedules, 3. Rosenthal v. Walker (111 U. S. 185). Acts of Bankruptcy, 51. Rosey, Louis H., In re (8 N. B. R. 509; 6 Ben. 507; Fed. Cas. 12,066). Claims, 106, 183; Judgment, 75. Rowe et al., In re (18 N. B. R. 439; Fed. Cas. 13,093). Compromise, 1, 3. Rowe V. Page (18 N. B. R. 366). Attachment, 40; Estate, 26; Liens, 2, 84, 35; Notice, 15; State Laws, 3; Waiver, 25. Ruddick v. Billings (3 N. B. R. 14; Woolw. 330; 3 West. Jur. 375; Fed. Cas. 13,110). Appeals and Writs of Error, 18; Plead- ing and Practice, 320. Euehle, In re (3 N. B. R. 175; 3 Amer. Law T. Rep. Bankr. 59; 16 Pittsb. Leg. J. (O. S.) 5; 1 Chi. Leg. News, 186; Fed. Cas. 13,113). Secured Claims, 51. Rugsdale, In re (16 N. B. R. 815; 35 Pittsb. Leg. J. 64; Fed. Cas. 13,128). Definitions, 26. Rundle & Jones, In re (3 N. B. R. 49; 1 Chi. Leg. News, 30; Fed. Cas. 12,138). Claims, 10; Fraud, 87; Stay of Proceedings, 3. Rupp, In re (4 N. B. R. 25; Fed. Cas. 12,141), Exemptions, 108. Russell, Ex parte; In re Paul & Son (16 N. B. R. 476; Fed. Cas. 12,148). Commercial Paper, 73; Notice, 43; Partners, 148. Russell, Ass. etc., v. McCord, Ass. etc. (17 N. B. R. 508; 3 Flip. 139; 3 Cin. Law BuL 594; Fed. Cas. 12,157). Liens, 78; Part- ners, 105. Russell, Ass. etc., v. Owen (15 N. B. R. 323), Courts, 190; Set-off, 14. Russell V. Thomas, In re (10 N. B. R. 14; 10- Phila. 339; 81 Leg. Int. 189: Fed. Cas. 13,163). Constitutional Law, 31. Ruth, In re (1 N. B. R. (8 vo. ed.) 154; 7 Amer. Law Reg. (N. S.) 157; 6 Phila. 438; 15 Pittsb. Leg. J. 63; Fed. Cas. 12,172). Ex- emptions, 36. Ryan & Griffin, In re (6 N. B. R. 235; Fed. Cas. 12,182). Sales, 1; Trustees, 6i, 116. S. Sabin, In re (9 N. B. R. 383; Fed. Cas. 13,198). Petition, 115; Pleading and Practice, 189; Secured Claims, 84 Sabin, In re (18 N. B. R. 151; 10 ChL Leg. News, 364; 8 Cin. Law BuL 625; Fed. Cas. 12,195). Courts, 110; Suits, 5. Sabin, In re (12 N. B. R. 143; 1 N. T. Wkly. Dig. 101; Fed. Cas. 12,194). Liens, 100. Sacchi, In re (6 N. B. R. 398; 43 How. Pr. 350; Fed. Cas. 13,201). Trustees, 89. Sacchi, In re (6 N. B. R. 497; 10 Blatchf. 29; 4 Chi. Leg. News, 389; 43 How. tr. 353; Fed. Cas. 12,300). Mortgages, 82; Trust- ees, 88. Safe Deposit & Savings Institution, In re (7 N. B. R. 392; Fed. Cas. 12,211). Con- stitutional Law, 2; Courts, 83; Stata Laws, 7. Safe Deposit & Savings Institution, In re (18 N. B. R 493). Claims, 130. Safford et al., Ex parte; In re Downing (15 N. B. R. 564; 3 Lowell, 563; 15 Alb. Law J. 328; 24 Pittsb. Leg. J. 159; Fed. Cas. 12,213). Claims, 203; Fraud, 83, 83. Safford et al. v. Burgess, Ass. etc. (16 N. B. R. 402; Fed. Cas. 12,213). Agent, 13, 21, 22; Estate, 198-200. Sage V. Wyncoop (104 U. S. 319). Prefer- ences, 59. TABLE OF CASES. Ixi Sage, Jr., v. Wynkoop, Ass. etc., et al. (16 N. B. R. 363; Fed. Cas. 12,315). Agent, 11; Liens, 5; Notice, 46; Preferences, 115. St. Helen's Mill Co., In re (10 N. B. R. 414; 8 Sawy. 88; 8 West. Jur. 597; Fed. Cas. 12,283). Corporations, 43; Evidence, 67; Liens, 113; Trustees, 167. St. John V. Stephenson (19 N. B. R. 227). Dis- charge, 843; Limitations, Statute of, 89. Salkey & Gerson, In re (9 N. B. R. 107; 5 Biss. 486; 6 Chi. Leg. News, 69; 3 Amer. Law Rec. 503; 31 Pittsb. Leg. J. 56; Fed. Cas. 13,252). Courts, 58; Examination of Bankrupt, 42. Salkey & Gerson, In re (11 N. B. R. 423; 6 Biss. 269; 7 Chi. Leg. News, 178; Fed, Cas. 12,353). Courts, 67, 137. Salkey & Gerson, In re (11 N. B. R. 516; 6 Biss. 380; 7 Chi. Leg. News, 195; Fed. Cas. 12,254). Courts, 27; Examination of Bankrupt, 66. Sallee, In re (2 N. B. R. 78; 2 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 12,256). Sched- ules, 7. Salmons, In re (2 N. B. R. 19; 15 Pittsb. Leg. J. (O. S.) 541; Fed. Cas. 12,268). Courts, 149; Liens, 91. Samson, Ass., v. Blake et aL (6 N. B. R. 410). Review, 2, 8, 12. Samson, Ass., v. Blake et al. (6 N. B. R. 401 ; Fed. Cas. 12,284). Appeals and Writs of Error, 18. Samson, Ass., v. Burton et aL (5 N. B. R. 459; 5 Ben. 343; Fed. Cas. 12,286). Collusion, 1; Preferences, 111. Samson, Ass., v. Burton et al. (4 N. B. R. 1; 5 Ben. 343; Fed. Cas. 12,285). Courts, 80, 157; Pleading and Practice, 150; Liens, 37. Samson, Ass., v. Clark & Burton (6 N. B. R. 403). Courts, 271; Evidence, 125; In- junction, 33. Sands Ale Brewing Co., In re (6 N. B. R. 101; 3 Biss. 175; 4 Chi. Leg. News, 187; 1 Bench & Bar (N. S.), 98; 6 Amer. Law Rev. 674; Fed. Cas. 12,307). Liens, 72; Mortgages, 37, 95. Sandusky, In re (17 N. B. R. 452; 10 Chi. Leg. News, 204; F?d. Cas. 12,808). Liens, 79. Sandusky v. The First Nat. Bank of Indian- apolis (13 N. B. R. 176; 33 Wall. 289). Appeals and Writs of Error, 28; Plead- ing and Practice, 197. Sanford, In re (7 N. B. R. 351; Fed. Cas^ 12,310). Acts of Bankruptcy, 57; Mort- gages, 2. Sanford v. Huxford et al. (17 N. B. R. 385). Partners, 40. Sanford v. Sanford (12 N. B. R. 565). Costs- and Fees, 21; Pleading and Practice, 216. Sanger & Scott, In re (5 N. B. E. 54; Fed. Cas. 12,818). Costs and Fees, 75. Sanger v. Upton, Ass. (13 N. B. R. 336; 91 , U. S. 56). Stockholders, 7-9, 16. Sargent, In re (13 N. B. R. 144; 1 N. Y. Wkly.. Dig. 435; Fed. Cas. 12,361). Attorneys, 3^ Petition, 124, 149; Referee, 34. Sargent v. Helton (115 U. S. 348). Sales, 58, Saunders, In re (13 N. B. E. 164; 2 Lowell, 444; Fed. Cas. 12,371). Agent, 12; Claims, 60,61; Proof, etc., 31, 53. SauthoflE & Olson, In re (16 N. B. R. 181; 8 Biss. 85; 5 Cent. Law J. 364; Fed. Cas. 12,380). Fraud, 48; Partners, 79. Sauthoff & Olson, In re (14 N. B. R, 364; 7 Biss. 167; 5 Amer. Law Rec. 173; 8 Chi, Leg. News, 370; 3 Cent. Law J. 554; 3- N. Y. Wkly. Dig. 96; Fed. Cas. 13,379). Claims, 6; Marshaling Assets, 4; Secured Claims, 4 Savage et al.. In re (16 N. B. R. 868; Fed.^ Cas. 12,381). Banks, 7; Claims, 246; Part- ners, 172, 196. Sawyer, In re (16 N. B. R. 460; 3 Lowell, 551? 15 Alb. Law J. 380; Fed. Cas. 12,896).. Claims, 83; Costs and Fees, 117; Oper- atives, 5; Referee, 50. Sawyer, James W., In re (14 N. B. R. 241; 3 Lowell, 475; 3 N. Y. Wkly. Dig. 143; Fed. Cas. 12,895). Composition, 33. Sawyer & Frazier v. Turpin et al. (13 N. B- E. 271; 91 U. S. 114). Preferences, 240? Sales, 111. Sawyer v. Hoag, Ass. (9 N. B. E. 145; 17 Wall. 610). Set-oflf, 3; Stockholders, 33; Trust, 2.. Sawyer et al. v. Turpin et al. (5 N. B. R. 339; 3 Lowell, 29; Fed. Cas. 13,410). Condi- tional Delivery, 1; Contracts, 16; Estate, 194; Insolvency, 23; Mortgages, 19, 103; Preferences, 340; Secured Claims, 18. Scammon, In re (10 N. B. R. 67; 1 Cent. Law J. 328; 20 Int. Rev. Rec. 33; Fed. Cas^ 13,430). Petition, 63, 63; Schedules, 4. Scammon, In re (11 N. B. R. 280; 6 Biss. 195? 7 Chi. Leg. News, 43; 9 West. Jur. 175,-- Ixii TABLE OF CASES. Fed. Cas. 13,429). Evidence, 135; Peti- tion, 7, 36, 64. «oammon, Ass., v. Cole et al. (5 N. B. R. 257; 3 Clifif. 473; Fed. Cas. 13,433). Appeals and Writs of Error, 18; Notice, 33, 33; Pleading and Practice, 306; Preferences, 180. «cammon. Ass., v. Cole et al. (3 N. B. E. 100; 1 Hask. 214; Fed. Cas. 13,433). Prefer- ences, 179. Soammon v. Kimball, Ass. (13 N. B. B. 445; 93 V. S. 363). Set-oflf, 38; Stockholder, 33. Soanimon v. Kimball, Ass. (8 N. B. R. 337; 5 Biss. 431; 6 Amer. Law T. Rep. 434; 18 Int. Rev. Reo. 118; 2 Ins. Law J. 775; 4 Chi. Leg. News, 284; Fed. Cas. 12,435). Set-off, 23. Schapter, In re (9 N. B. R. 324; Fed. Cas. 12,438). Trustees, 80, 81. ■Soheiffer & Garrett, In re (2 N. B. R. 179; 1 Chi. Leg. News, 261; Fed. Cas. 13,445). Referee, 14; Trustees, 153; Vote, 7. Schenck, P. C, In re (5 N. B. R. 93; Fed. Cas. 12,447). Discharge, 65. Schepeler et al., In re (3 N. B. R. 43; .3 Ben. 346; Fed. Cas. 13,453). Adjournment, 3; Notice, 4; Pleading and Practice, 333. Schnepf, In re (1 N. B. R. (8 vo. ed.) 190; 3 Ben. 73; Bankr. Reg. Supp. 41 ; 6 Int. Rev. Rec. 314; Fed. Cas. 13,471). Injunction, 20. Schuchardt & Wells, In re (15 N. B. R. 161; 8 Ben. 535; Fed. Cas. 13,483). Claims, 334; Partners, 158. . Schulze, Ass. etc., v. Bolting (17 N. B. R. 167; 8 Biss. 174; Fed. Cas. 13,489). Claims, 68; Mortgages, 43, 66, 134; Trustees, 317. Schuman, Ass., v. Fleckenstein (15 N. B. R. 234; 4 Sawy. 174; 9 Chi. Leg. News, 174; Fed. Cas. 13,836). Pleading and Practice, 91, 93; Torts, 7. ■Schumpert, In re (8 N. B. R. 415; Fed. Cas. 12,491). Books of Account, 23; Commer- cial Paper, 29; Growing Crops, 1; Sched- ules, 23. Schuyler, In re (2 N. B. R. 169; 3 Ben. 200; 16 Pittsb. Leg. J. 94; 3 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 13,494). Discharge, 51; Estoppel, 7. Schwab, Ex parte (18 N. B. R. 507; 98 U. S. 340). Mandamus, 1. Schwab, In re (3 N. B. R. 155; 3 Ben. 331; 3 Bait. Law Trans. No. 9; 16 Pittsb. Leg. J. 133; Fed. Cas. 13,498). Costs and Fees, 28. Schwartz, In re (4 N. B. R. 189; Fed. Cas. 13,503), Exemptions, 89. Schwarz, In re (15 N. B. R. 330; 14 Blatchf. 196; 53 How. Pr. 513; 15 Alb. Law J. 350; Fed. Cas. 12,503). Claims, 121; Fraud, 95; Injunction, 42; Proof, etc., 4S; Stay of Proceedings, 13; Suits, 3. Soofield et al.. In re (3 N. B. R. 137; Fed. Cas. 12,509). Partners, 55. Scofleld V. Moorhead (2 N. B. R. 1; Fed. Cas. 12,510). Costs and Fees, 137; Examina- tion of Bankrupt, 37. Scoggin, In re (19 N. B. R. 197; 5 Sawy. 549; 8 Reporter, 330; 11 Chi Leg. News, 367; Fed. Cas. 13,511). Costs and ^Fees, 95. Scott, In re (3 N. B. R. 181 ; 9 Amer. Law Reg. (N. S.) 349; 18 Pittsb. Leg. J. 53; 1 Abb. (N. S.) 336; 13 Int. Rev. Rec. 139; 3- Chi Leg. News, 398; Fed. Cas. 12,517), Liens, 103. Scott, Collins & Co., In re (15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12,519). At- torneys, 1; Composition, 18, 19, 87, 88, 107-109; Fraud, 31; Referee, 29; Secured Claims, 74; Vote, 11. Scott V. Ellery (143 U. S. 381). Mortgages, 57; Stay of Proceedings, 14. Scott & McCarty, In re (4 N. B. R. 139; Fed. Cas. 13,518). Claims, 55, 56; Secured Claims, 43; Statutory Construction, 8. Scott & Nasse v. Kelly (13 N. B. R 96; 23 Wall. 57). Courts, 186. Scovill V. Thayer (105 U. S. 143). Stock- holders, 10. Scrafford, In re (15 N. B. R, 104; 4 Dill. 376; 3 Month. Jur. 614; 3 Cent. Law J. 19; 3 N. Y. Wkly. Dig. 553; Fed. Cas. 13,556). Petition, 79. Scrafford, In re (14 N. B. R. 184; 3 Cent Law J. 253; Fed. Cas. 12,557). Claims, 114; Intervention, 6; Petition, 78, 87. Soroggin, In re (19 N. B. R. 197; 5 Sawy. 549; 8 Reporter, 330; 11 Chi. Leg. News, 867; Fed. Cas. 13,511). Liens, 39. Scull, In re (10 N. B. R. 166; 7 Ben. 371; 10 Alb. Law J. 314; 1 Amer. Law T. Rep. 416; 20 Int. Rev. Rec. 80; 22 Pittsb. Leg. J. 34; Fed. Cas. 13,568)i Petition, 69, 104; Preferences, 103. Seabury, Jr., In re (10 N. B. R. 90; Fed. Cas. 12,573). Adjournment, 11; Discharge, 55; Pleading and Practice, 34 TABLE OF CASES. Ixiu -Seaman, In re (19 N. B. R. 332; Fed. Cas. 13,580). Disoharge, 149; Pleading and Practice, 38. Seaver v. Spink, Ass. (8 N. B. E. 218). Deeds, 3; Mortgages, 107, 112; Record, 7. Seay, In re (4 N. B. R. 82; 4 Amer. Law T. 16; 1 Amer. Law T. Rep. Bankr. 244; Fed. Cas. 12,597). Disoharge, 136. Seckendorf, In re (1 N. B. R 185; 3 Ben. 463; 15 Pittsb. Leg. J. 450; 1 Amer. Law T. Rep. Bankr. 122; Fed. Cas. 12,600). Exam- ination of Bankrupt, 48; Pleading and Practice, 33. Second Nat. Bank of Leavenworth et al. v. Hunt, Ass. (4 N. B. R. 198; 11 Wall. 391). Conveyances, 2; Evidence, 40, 116; Mort- gages, 126, 142; Preferences, 45. Second Nat. Bank of Louisville v. Nat. State Bank of Newark (1 1 N. B. R 49). Banks, 14; Corporations, 33; Courts, 226; Trust- ees, 113. Sedgwick, Ass. etc., v. Casey (4 N. B. R. 161; 4 Ben. 562; 3 Chi. Leg. News, 177; Fed. Cas. 12,610). Pleading and Practice, 387; Wages, 4. Sedgwick, Ass., v. Lynch (8 N. B. R 389; 5 Ben. 489; Fed. Cas. 12,615). Fraud, 61; Intent, 1; Sales, 44. Sedgwick, Ass., v. Menck & Bostwick, Re- ceivers (1 N. B. R 108; Fed. Cas. 12,617). Injunction, 31. Sedgwick v. Menck & Bostwick (1 N. B. R. 204; 6 Blatchf. 156; Fed. Cas. 12,616). Assignments, 61 ; Estate, 142. Sedgwick, Ass., v. Mill ward (5 N. B. R. 347; Fed. Cas. 12,618). Trustees, 207. Sedgwick v. Place et al. (1 N. B. R. 204; 1 Amer. Law T. Rep. Bankr. 97; 34 Conn. 553; Fed. Cas. 12,633). Assignments, 10, 55. Sedgwick, Ass., v. Place et al. (10 N. B. R. 28; 13 Blatchf. 163; Fed. Cas. 13,621). Conveyances, 45, 46; Mortgages, 6. Sedgwick, Ass., v. Place et al. (5 N. B. R. 168; 5 Ben. 184; 3 Chi. Leg. News, 409; 4 Amer. Law T. Rep. (U. S. Cts.) 179; 6 Ameri Law Rev. l81; Fed. Cas. 12,620). Conveyances, 31, 75-77; Preferences, 66. Sedgwick, Ass., v. Place etal. (3 N. B, R. 78; Fed. Cas. 13,623). Dividends, 35. Sedgwick, Ass., v. Place et al. (3 N. B. R. 35; 3 Ben. 360; Fed. Cas. 13,619). Courts, 347. Sedgwick, Ass., v. Wormser (7 N. B. R. 186; Fed. Cas. 13,626). Fraud, 50; Sales, 42. Seeley, In re (19 N. B. R 1; Fed. Cas. 12,628), Disoharge, 131; Preferences, 55, 75; Stat- utory Construction, 68, 69. Serra 6 Hijo v. Hofifman & Co. (17 N. B. R. 124). Appeals and Writs of Error, 9; Courts, 204, 317; Discharge, 337, 338; Intervention, 16; Suits, 14. Sessions v. Johnson et aL, Ass. etc. (17 N. B. E. 64; 95 U. S. 347). Commercial Paper, 47; Estoppel, 33; Mortgages, 45, 46; Torts, 9. Sessions v. Romadka (145 U. S. 39). Trustees, 236. Seymour, In re (1 N. B. R. (8 va ed.) 39; 1 Ben. 348; 6 Int. Rev. Rec. 60; Fed. Cas. 12,684). Habeas Corpus, 3. Shafer et al.. In re (17 N. B. R. 116; 1 N. J. Law J. 66; Fed. Cas. 12,695). Composi- tion, 59, 77; Fraud, 36. Shafer & Hamilton, In re (2 N. B. R 178; 1 Chi. Leg. News, 326; Fed. Cas; 13,694). Estate, 181 ; Surrender, 3. Shaffer v. Fritchery & Thomas (4 N. B. R. 179; Fed. Cas. 13,697). Acts of Bank- ruptcy, 65; Bonus; Claims, 370; Insolv- ency, 35; Judgment, 53, 57. Sharpe v. Doyle (103 U. S. 686). Marshal, 3, Sharp, Ass. etc., v. The Philadelphia Ware- house Co. (19 N. B. R. 378). Fraud, 88; Preferences, 191; Suits, 15. Shaw et al.. In re (19 N. B. R. 512; Fed. Cas. 13,716). Composition, 32; Sales, 51 Shawhan v. Wherritt (7 How. 637). Acts of Bankruptcy, 50; Collateral Attack, 13; Pleading and Practice, 72; Preferences, 101. Shearman v. Bingham et al. (7 N. B. R. 490). Constitutional Law, 8, 34; Courts, 33, 57, 208, 209; Trustees, 194. Sheehan, Daniel, In re (8 N. B. R 353; Fed. Cas. 12,738). Costs and Fees, 33. Sheehan, Daniel, In re (8 N. B. R 345; Fed. Cas. 12,737). Adjudication, 15; Claims, 2, 190; Dividends, 36; Execution, 24. Sheflfer, In re (17 N. B. R 369; 4 Sawy. 363; 1 San Fran. Law J. 117; Fed. Cas. 12,742). Courts, 13; Petition, 84. Shelbourne, In re (19 N. B. R 359; Fed. Cas. 12,745). Claims, 196. Sheldon, In re (12 N. B. R. 63; 8 Ben. 67; Fed. Cas. 13,747). Discharge, 5. Shelley et al. v. Elliston, Ass. etc. (18 N. B. R. 375; S8 Pittsb. Leg. J. 93; Fed. Cas. 13,750). Attachment, 2, 30; Liens, 41. , Ixiv TABLE OF CASES. .Shepard, In re (3 N. B. E. 42; 3 Ben. 347; Fed. Cas. 13,754). Estate, 243. Sheppard, In re (1 N. B. R. 115; 7 Amer. Law Eeg. '(N. S.) 484; 1 Amer. Law T. Eep. Bankr. 49; Fed. Cas. 12,758). Discharge, 40, 239; Limitations, Statute of, 38, 29; Proof, etc., 19, 61. Sherburne, In re (1 N. B. R. 155; Fed. Cas. 12,758). Pleading and Practice, 61. Sherman et al. v. Bingham et al. (5 N. B. E. 34; 1 Lowell, 575; 3 Chi. Leg. New!3,258; Fed. Cas. 12,733). Courts. 49. Sherry, In re (8 N. B. E. 143). Adjournment, 7; Jury Trials, 4; Pleading and Prac- tice, 353. Sherwood, In re (17 N. B. E. 113; 9 Ben. 66; Fed. Cas. 12,773). Definitions, 17. Sherwood, In re (1 N. B. E. 74; 25 Leg. Int. 76; 1 Amer. Law T. Eep. Bankr. 47; 6 Phila. 461; Fed. Cas. 12,774). Certifica- tion, 3; Costs and Fees, 110, 111; Notice, 51; Eeferee, 40. Shields, 'In re (1 N. B. E. 170; 15 Pittsb. Leg. J. (O. S.) 391; Fed. Cas. 12,785). Plead- ing and Practice, 154; Trustees, 17. Shields, In re (15 N. B. E. 533; 4 Dill. 588; 4 Cent. Law J. 557; 24 Pittsb. Leg. J. 190; Fed. Cas. 1 2,784). Attachment, 41 ; Com- position, 75, 86. Shimer, Ass., v. Huber et al. (19 N. B. R. 414; 14 Phila. 402; 36 Leg. Int. 339; 3 Eep. 393; Fed. Cas. 12,787). Banks, 25; Execution, 4; Fraud, 26; Partners, 104; Preferences, 143. Shipman, In re (14 N. B. E. 570; 2 Hughes, 227; Fed. Cas. 12,791). Exemptions, 40. Shippen & Bobbins' Appeal (15 N. B. E. 553). Curtesy; Estate, 394; Life Tables, 1. Shower, In re (6 N. B. E. 586; 4 Chi. Leg. News, 299; Fed. Cas. 12,816). Discharge, 140. Shryock et al.. Ass., v. Bashore (15 N. B. E. 283). Assignments, 30; Banks, 33; Set- off, 8. Shryock & Ehodes, Ass. etc., v. Bashore (18 N. B. E. 481; Fed. Cas. 12,830). Assign- ments, 34; Conflict of Laws, 11; Set-oflf, 6; Suits, 80; Trustees, 313. Shuey, In re (9 N. B. E. 536; 6 Chi. Leg. News, 248; Fed, Cas. 13,831). Courts, 163; Es- tate, 123. Shuman v. Strauss (10 N. B. E. 800). Dis- charge, 256; Fraud, 100. Shurtlefif v. Thompson (13 N. B. R 534). At- torneys, 14; Discharge, 383. Sidle, In re (3 N. B. E. 77; Fed. Cas. 13,844). Breach of Promise; Discharge, 183, 274;. Evidence, 127; Preferences, 317. Sigsby, V. Willis (3 N. B. E. 51; 3 Ben. 371; 1 Amer. Law T. Eep. Bankr. 171; 3 Amer.. Law T. 169; Fed. Cas. 13,849). Partners,. 42, 43. Silverman, In re (4 N. B. E. 173; 3 Abb. (U. S.y 243; 1 Sawy. 410; 13 Int. Eev. Rec. 53; Fed. Cas. 12,855). Bankrupt Law, 7; Con- stitutional Law, 1; Pleading and Prac- tice, 290; Preferences, 69. Sime & Co., In re (7 N. B. E. 407; 2 Sawy. 320; 5 Pac. Law Eep. 317; Fed. Cas. 12,860). Courts, 33; Judge, 1. Sime & Co., In re (12 N. B. R 315; 3 Sawy. 805; Fed. Cas. 12,861). Claims, 243; Com- mercial Paper, 28. Simmons, In re (10 N. B. R 354; 1 Cent. Law J. 440; Fed. Cas. 12,864). Amendment, 3; Petition, 118, 119; Verification, 3. Simpson, In re (2 N. B. R 17; Fed. Cas. 12,879). Discharge, 318. Sims, In re (16 N. B. R 351; Fed. Cas. 13,888)* Mortgages, 31; Pleading and Practice, 88. Sims, In re (19 N. B. R 57; Fed. Cas. 12,889)i Mortgages, 24; Preferences, 190. Simpson v. The City Savings Bank (15 N. B. E. 885). Conflict of Laws, 8; Constitu- tional Law, 37. Singer, Ass., v. Sloan et al. (11 N. B. R 433; 3 Cent. Law J. 141: Fed. Cas. 13,899). Statutory Construction, 21. Singer, Ass., v. Sloan et al. (13 N. B. R 208t; 3 Dill. 110; 7 Chi. Leg. News, 331; 2 Cent Law J. 218; Fed. Cas. 12,898). Prefer- ences, 53. Six Penny Savings Bank et al. v. The Estate of the Stuy vesant Bank (10 N. B. R 399; Fed. Cas. 12,919). Bankrupt Law, 3; Banks, 8; Claims, 108; Constitutional Law, 33; State Laws, 13. Skelley, In re (5 N. B. R 314; 8 Biss. 260; Fed. Cas. 13,931). Acts of Bankruptcy, 34; Claims, 281; Payment, 9; Pleading and Practice, 75; Statutory Gonstruo tion, 51; Waiver, 3. SkoU, In re (16 N. B. R 175; 1 Month. Jur. 350; 1 N. W. Rep. (O. S.) 108; Fed. Cas.. 13,936). Assignments, 33; Fraud, 7. TABLE OF CASES. Ixv Slafter, Ass. etc., v. Greer Turner Sugar Re- fining Co. (13 N. B. R. 520). Statutory Construction, 34. Sleek et al. v. Turner's Ass. (10 N. B. E. 580). Judgment, 53; Preferences, S43. Slichter et al.. In re (3 N. B. R. 107; Fed. Cas. 13,943). Claims, 357; Married Woman, 23; Set-off, 29. Sloan, In re (13 N. B. R. 59; 13 Blatchf. 67; Fed. Cas. 13,945). Discharge, 65. Sloan V. Lewis (12 N. B. R 173; 22 Wall. 150). Adjudication, 25; Claims, 176; Collateral Attack, 8, 9; Petition, 71. Smith, In re (1 N. B. R 25; 2 Ben. 113; Fed. Cas. 12,971). Proof, etc., 62; Referee, 46. Smith, In re (3 N. B. R 15). Courts, 179; Partners, 133. Smith, In re (16 N. B. R 399; 10 Chi. Leg. News, 80; 5 N. Y. Wkly. Dig. 322; Fed. Cas. 12,993). Claims, 163. Smitli, In re (16 N. B. R. 113; Fed. Cas. 13,991). Partners, 188; Subrogation, 8. Smith, John W., In re (8 N. B. R. 401; 6 Chi. Leg. News, 38; 18 Int. Rev. Rec. 167; Fed. Cas. 12,986). Constitutional Law, 13; Exemptions, 7, 17, 34. Smith, In re (15 N. B. R 459; 3 Cin. Law Bui. 119; Fed. Cas. 12,990). Banks, 19; Com- mercial Paper, 50; Estate, 330. Smith, In re (15 N. B. R 97; 1 Tex. Law J. 43; Fed, Cas. 13,989). Dividends, 10. Smith, In re (18 N. B. E. 256; 1 Woods, 478; Fed. Cas. 12,995). Discharge, 131. Smith, In re (2 N.B. R. 98; 1 Chi. Leg. News, 123; Fed. Cas. 12,984). Claims, 192; Plead- ing and Practice, 58. Smith, In re (14 N. B. R. 395; 3 Woods, 458; 2 N. T. Wkly. Dig. 533; 8 Chi. Leg. News, 315; Fed. Cas. 13,996). Constitutional Law, 16, 25, 28; Contracts, 23; Exemp- tions, 2; Statutory Construction, 7. Smith, In re (14 N. B. R. 432; Fed. Cas. 12,988). Trustees, 45. Smith, In re (8 N. B. R. 98; 4 Ben. 1; 8 Amer. Law T. 7; 1 Amer. Law T. Rep. Bankr. 147; Fed. Cas. 12,974). Acts of Bank- ruptcy, 13. Smith et al.. In re (1 N. B. R. 169; 3 Ben. 433; 1 Amer. Law T. Rep. Bankr. 113; Fed. Cas. 13,973). Liens, 49; Sales, 88. Smith et al.. In re (18 N. B. R 24; 9 Ben. 494; Fed. Cas. 13,976). Arrest, 31. Smith & Bickford, In re (5 N. B. R. 20; Fed. Cas. 12,985). Discharge, 22, 23, 24, 25; Pleading and Practice, 26. Smith, Ass., v. Buchanan et al. (4 N. B. R. 132). Trustee, 54a. Smith, Ass., v. Buchanan et al. (4 N. B. R. 138; 8 Blatchf. 153; 8 Alb. Law J. 97; Fed. Cas. 13,016). Estate, 57; Petition, 136; Preferences, 104; Trustees, 63. Smith, Ass. etc., v. Claflin et al. (19 N. B. R. 533; Fed. Cas. 13,026). Estate, 155. Smith, Ass., v. Crawford (9 N. B. R. 38; 6 Ben. 497; Fed. Cas. 13,030). Estate, 154; Limitations, Statute of, 43. Smith, Ass. etc., v. Ely (10 N. B. R. 553; Fed. Cas. 13,044). Mortgages, 131; Trustees, 193. Smith, Ass., v. Kehr et aL (7 N. B. R. 97; 3 Dill. 50; 6 West. Jur. 451; Fed. Cas. 13,071). Conveyances, 36, 29, 58, 64; Div- idends, 5; Exemptions, 44; Married Woman, 5; Sales, 106; Secured Claims, 67. Smith et al. v. Krauskopf et al. (18 N. B. R. 6). Composition, 73. Smith, Ass., v. Little (9 N. B. E. Ill; 5 Biss. 490; 6 Chi. Leg. News, 86; Fed. Cas. 13,072). Pleading and Practice, 100; Pref- erences, 173. Smith, Ass., v. McLean et al. (10 N. B. R. 260; Fed. Cas. 13,074). Interest, 1; Mortgages, 20; Preferences, 185. Smith et al. v. Manufacturers' Nat. Bank (9 N. B. R. 122; Fed. Cas. 18,076). Petition, 44; Statutory Construction, 57. Smith V. Mason, Ass. (6 N. B. R. 1; 14 Wall. 419). Banks, 31; Estate, 157; Pleading andiPractioe, 280, 281. Smith V. Ramsey (15 N. B. R. 447). Collateral Attack, 4; Discbarge, 821, Smith V. Soholtz et al. (17 N. B. R. 520). Col- lateral Attack, 7; Estate, 92; Sales, 4-; Trustees, 121; Will, 3. Smith & Smith, In re (13 N. B. R. 500; Fed. Cas. 12,987). Dividends, 13; Partners, 93. Smith, Stebbins & Co. v. Engle et al. (14 N. B. R. 481). Composition, 14-16, 74 113, 133, 145; Courts, 198, 199, 265; Discharge, 306; Schedules, 13, 14. Smith et al. v. Vogdes, Ass. (13 N. B. R. 433; 93 U. S. 183). Conveyances, 79. Snedaker, In re (3 N. B. R 155). Mortgages, 80; Secured Claims, Ql. 1.x vi TABLE OF CASES. Snedaker, In re (4 N. B. R 43). Mortgages, 98. Snelling, In re (19 N. B. R. 120; Fed. Cas. 13,140). Composition, 25, 101. Sohoo, In re (3 N. B. R. 52; Fed. Cas. 13,163). Discharge, 154. Sohoo & Wells, In re (15 N. B. R. 161; 8 Ben. 585; Fed. Cas. 12,483). Fraud, 49. Soldiers' Business Messenger and Despatch Co., In re (3 N. B. E. 163; 3 Ben. 204; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 13,163). Mortgages, 109, 145. Solis, In re (3 N. B. R. 186; 4 Ben. 143; 4 N. B. R. 18; Fed. Cas. 13,165). Discharge, 7; Examination of Bankrupt, 28; Verifica- tion, 6. Solomon, In re (10 N. B. R. 9; 2 Hughes, 164; 8 Amer. Law Rec'. 236; 1 Amer, Law T. Rep. (N. S.) 351; Fed. Cas. 13,166). Ex- emptions, 23, 24, 71. Solomon, In re (3 N. B. R. 94; 6 Phila. 481; 25 Leg. Int. 364; 1 Chi. Leg. News, 77, 107; Fed. Cas. 13,167). Books of Account, 11, 20. Son, In re (1 N. B. R. 58; 3 Ben. 153; 15 Pittsb. Leg. J. 243; Fed. Cas. 13,174). Discharge, 14; Pleading and Practice, 70; Meetings, 10. Southard, Ass. etc., v. Benner et aL (19 N. B. R. 134).. Estate, 369; Mortgages, 118. Souther, In re (9 N. B. R. 503; 3 Lowell, 320; Fed. Cas. 13,184). Certification, 7; Com- mercial Paper, 48, 74; Suits, 18; Trust- ees, 7. Southern et al. v. Fisher, Trust, etc. (16 N. B. R. 414). Commercial Paper, 66; Courts, 194 Southern Minnesota E. R. Co., In re (10 N. B. R. 86; Fed. Cas. 13,188). Commercial Paper, 93; Corporations, 11; Evidence, 140. South Side R. R. Co., In re (10 N. B. R. 274; 7 Ben. 391; Fed. Cas. 13,190). Attorneys, 16; Injunction, 52. Southwestern Car Co., In re (19 N. B. R. 404; 9 Biss. 76; Fed. Cas. 13,193). Claims, 103; Contracts, 2; State Laws, 20. Spades, In re; In re Muir & Foley (13 N. B. R. 72; 6 Biss. 448; 8 Chi. Leg. News, 33; Fed. Cas. 13,196). . Composition, 13, 63, 98, 116. Spaulding v. New York (4 How. 21). Dis- charge, 269. Sparbawk et al. v. Drexel et al. (13 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13,304). Assignments, 64; Liens, 106; Partners, 199; Ratification, 4; Secured Claims, 58, 59. Sparhawk et aL, Ass., v. Richards & Thomp- son (12 N. B. R. 74; 1 Wkly. Notes Cas. 510; Fed. Cas. 13,205). Estate, 147; Se- cured Claims, 1. Sparhawk v. Terkes (143 U. S. 1), Estate, 45; Trustees, 335. Spaulding, Ass., v. McGovern et aL (10 N. B. R. 188; Fed. Cas. 18,217). Courts, 10; Pleading and Prjictice, 271. Spencer, In re (18 N. B. R. 199; Fed. Cas. 13,339). Adjournment, 3; Composition, 90; Meetings, 1, 13; Notice, 8; Referee, 55. Speyer et al., In re (6 N. B, R. 355; 43 How. Pr. 397; Fed. Cas. 18,339). Contempt, 1; Referee, 16. Spicer & Peckham v. Ward & Trow, In re (3 N. B. R. 137; Fed. Cas. 13,341). Acts of Bankruptcy, 13; Estoppel, 13. Spillman, In re (13 N. B. R. 314; 8 ChL Leg. News, 140; 28 Pittsb. Leg. J. 87; Fed. Cas. 13,242). Composition, 3, 12. Spilman v. Johnson (16 N. B. R. 145). Col- lateral Attack, 6; Liens, 130; Sales, 7. Spindle v. Shreve (111 U. S. 543). Assign- ments, 36. Stafford, In re (13 N. R R 378; Fed. Cas. - 13,274). Referee, 49. Stansell, In re (6 N. B. R 183; Fed. Cas. 13,293). Petition, 101 ; Pleading and Practice, 186; Secured Claims, 19, 71. Stansfield, In re (16 N. B. R 268; 4 Sawy. 3H4; Fed. Cas. 13,294). Claims, 185; Dis- charge, 42, 278; Judgment, 79; Pleadr ing and Practice, 87. Staplin, In re (9 N. B. R 142; 5 Chi. Leg. News, 528; 5 Leg. Op. 171; Fed. Cas. 13,304). Commercial Paper, 82; Pleading and Practice, 313; Usury, 15. Starkweather v. The Cleveland Ins. Co. (4 N. B. R. 110; 3 Abb. (U. S.) 67; 3 Chi. Leg. News, 77; 38 Leg. Int. 36; 10 Amer. Law Reg. (N. S.) 833; 5 Amer. Law Rev. 568; Fed. Cas. 13,308). Assignments, 57; Es- tate, 331; Trustees; 56. State Nat. Bank v. Dodge (124 U. S. 333). Banks, 32. State of North Carolina v. Trustees of Uni- versity et aL (5 N. B. R 466; 1 Hughes, TABLE OF CASES. Ixvii 133; 65 N. C. 714; Fed. Cas. 10,318). Courts, 134 Steadman, Enoch, In re (8 N. B. E. 319; Fed. Cas. 18,330). Lease, 9. Steadman v. Taylor (17 N. B. E. 283). Sales, 5. Steele, In re (19 N. B. R. 41; 2 Flip. 334; 8 Cent. Law J. 86; Fed. Cas. 13,346). Ex- emptions, 86. Steele et al., In re (16 N. B. E. 105; 7 Biss. 504; Fed. Cas. 13,345). Attachment, 31. Steele v. Moody (16 N. B. R. 558). Courts, 106; Exemptions, 13, 73; Limitations, Statute of, 4 Stein, In re (16 N. B. E. 569; Fed. Cas. 13,353). Claims, 43. Steinman, In re (10 K B. E. 314; 6 Biss. 166; 6 Chi Leg. News, 338; 31 Leg. Int. 369; 21 Pittsb. Leg. J. 200; Fed. Cas. 13,357). Petition, 117; Schedules, 41; Verifica- tion, 3. Stephens, In re (6 N. B. E 533; 3 Biss. 187; Fed. Cas. 13,365). Fraud, 17; Mortgages, 17, 132; Partners, 190; Preferences, 305; Surrender, 4 Stephenson v. Jackson, Ass. (9 N. B. E. 355; 2 Hughes, 204; Fed. Cas. 13,374). Claims, 139; Partners, 165. Stetson, In re (3 N. B. E. 179; 4 Ben. 147; Fed. Cas. 13,381). Discharge, 327. Stevens, E, In re (5 N. B. E. 113; 1 Sawy. 397; 1 Pac. Law Eep. 45; Fed. Cas. 13,393). Commercial Paper, 1 ; Partners, 63, 310. Stevens, W. S., In re (5 N. B. E 298; 3 Biss. 373; 10 Amer. Law Eeg. (N. S.) 523; Fed. Cas. 13,393). Attachment, 12; Exemp- tions, 16. Stevens, In re (4 N. B. E. 132; 4 Ben. 513; Fed. Cas. 13,391). Attachment, 45; Claims, 36, 183; Preferences, 110; Proof, etc., 47, 67. Stevens v. Brown (11 N. B. E. 568). Courts, 197; Discharge, 216; Pleading and Prac- tice, 43. Stevenson et al. v. McLaren et al. (14 N. B. E. 403). Conveyances, 43, 44 Stewart, In re (3 N. B. R 28; Fed. Cas. 13,419). Petition, 151. Stewart, In re (1 N. B. E. 42; 1 Amer. Law T. Eep. Bankr. 16; 15 Pittsb. Leg. J. 333; Fed. Cas. 13,418). Liens, 51; Mortgages, 94; Secured Claims, 13; Surety, 10. Stewart v. Emerson (8 N. B. E. 462). Fraud, 51 ; Pleading and Practice, 48. Stewart v. Isidor et al. (1 N. B. E. 129). Dis- charge, 336; Estate, 44; Liens, 73; Se- cured Claims, 39. Stewart & Newton, In re (13 N. B. E. 395; 3 N. Y. Wkly. Dig. 3; Fed. Cas. 13,420), Partners, 70. Stewart v. Piatt (101 U. S. 731). Preferences, 239. Stewart v. Piatt, Ass. etc. (19 N. B. E 347; 101 U. S. 731). Estate, 288; Mortgages, 99, 144 Stickney, In re (17 N. B. R. 305; 5 Dill. 91; 5 Eeporter, 586; 5 Cent. Law J. 365; Fed. Cas. 13,439). Definitions, 27, 28; Partners, 307. Stickney, Ass., v. Wilt (11 N. B. R 97; 23 Wall. 150). Appeals and Writs of Error, 13, 35; Courts, 38, 39. Stillwell, In re (3 N. B. E. 164; Fed. Cas. 13,447), Committee, 3; Meetings, 3; Trustees, 230. Stillwell, J. E., In re (7 N. B. E. 336; 11 Amer. Law. Eeg. (N. S.) 706; Fed. Cas. 13,448), Mortgages, 32; Vote, 3. Stillwell V. Walker, Ass. etc. (17 N. B. E. 569; 6 Cent. Law J. 406; Fed. Cas. 13,451). Judgment, 36; Pleading and Practice, 313; Trustees, 74 Stobaugh, Ass., v. Mills & Fitch, Tr. (8 N. B. R 361; 5 Chi. Leg. News, 526; 3 Amer. Law Eeo. 666; 5 Leg. Op. 139; Fed. Cas. 13,461). Claims, 44; Evidence, 138; Fraud, 73, Stockwell et al.. In re (18 N. B. R 144; 9 Ben, 365; Fed. Cas. 13,464). Liens, 12. Stoddard v. Locke et al. (9 N. B. R 71). At- tachment, 36; Judgment, 19. Stokes, In re (1 N. B. R 130; 1 Amer. Law T. Eep. Bankr. 122; Fed. Cas. 13,475). Trust- ees, 87. Stokes, In re (2 N. B. R 76; Fed. Cas. 13,476). Discharge, 117, ^46. Stokes & Leonard v. Mason (13 N. B. R 498). Claims, 15; Debt, 1; Definitions, 9; Dis- charge, 354. Stokes V. State of Georgia (9 N. B. R 191). Claims, 101 ; State Laws, 19. StoU V. Wilson (14 N. B. R 571). Discharge, 335; Pleading and Practice, 53. Storer et al. v. Haynes (18 N. B. R 354). Liens, 13, 23. Storrs et al. v. Engel et al. ; Ex parte Gar- nett. Ass. (19 N. B. R 90; 3 Hughes, 414; Fed. Cas. 13,494). Pleading and Practice, 170; Sales, 30, Ixviii TABLE OP CASES. Stowe, In re; Godfrey, Ex parte (6 N. B. R. 429; Fed. Gas. 13,513). Gontraots, 6; Mortgages, 8; Preferences, 178. Straohan, In re (3 N. B. R. 148). Discharge, ia5. Strain et al. v. Gourdin et al. (11 N. B. R. 156; 3 Woods, 380; Fed. Gas. 13,531). Banlss, 29; Commercial Paper, 53; Preferences, 164. Stranahan, Ass., v. Gregory & Go. (4 N. B. R. 143; Fed. Gas. 13,523). Insolvency, 13, 41. Strang v. Bradner (114 U. S. 555). Discharge, 350. Strauss, In re (3 N. B. R. 18; Fed. Gas. 13,583). Notary Public, 1; Proof, etc., 23. Streeper v. McKee (17 N. B. R. 419). Secured Claims, 50. Street v. Dawson, Ass. (4 N. B. R. 60; 3 Bait. Law Trans. 369; Fed. Gas. 13,533). Pref- erences, 109. Streeter v. Jefferson County Nat. Bank (147 U. S. 37). Fraud, 101; Preferences, 300. Stuart, Ass., v. Aumueller et al. (8 N. B. R. 541). Adjudication, 19; Pleading and Practice, 338. Stuart, Ass., v. Hines et al. (6 N. B. R. 416). Courts, 161; Liens, 48; Partners, 19; Pleading and Practice, 388. Stubbs, In re (4 N. B. R. 134; Fed. Gas. 13,557). Costs and Fees, 11. Stucky V. Masonic Savings Bank (108 U. S. 74). Insolvency, 31. Sturgeon, In re (1 N. B. R. 131; 3 Amer. Law T. Rep. Bankr. 7; Fed. Gas. 13,564). Cer- tification, 4. Sturges et al. In re (16 N. B. R. 304; 8 Biss. 79; 10 Chi. Leg. News, 83; Fed. Gas. 13,565). Composition, 143. Sturges V. Crowninshield (4 Wheat. 122). Con- tracts, 35, 28. Sturgis, Ass. etc., v. Colby et al. (18 N. B. R. 168; Fed. Cas. 13,574). Claims, 163. Stuyvesant Bank, The, In re (6 N. B. R. 273; 5 Ben. 566; Fed. Gas. 13,581). Committee, 4; Estate, 264; Preferences, 35; Receiver, 19; Trustees, 144, 145. Stuyvesant Bank, In re (7 N. B. R. 445; 6 Ben. 33 ; Fed. Gas. 18,583). Attorneys, 10 ; Evidence, 47, 64, 55; Examination of Bankrupt, 17. Stuyvesant Bank, In re (9 N. B. R. 818; 1 Cent. Law J. 88; Fed. Cas. 18,584). Pref- erences, 85, 99. Summers, In re (3 N. B. R. 31; Fed. Cas. 18,604). Exemptions, 64. Sutherland, In re (1 N. B. R. 140; Deady, 844; Fed. Gas. 13,638). Pleading and Practice, 318; Preferences, 36. Sutherland, In re (8 N. B. R. 83; Deady, 416; 8 Amer. Law Reg. (N. S.) 39; Fed. Cas. 13,639). Claims, 223. Sutherland v. Davis (10 N. B. R. 424). Estate, 164, 165; Pleading and Practice, 284. Sutherland et al. v. Lake Superior Ship Canal, Railroad & Iron Co. (9 N. B, R. 398; 1 Cent. Law J. 127; Fed. Cas. 13,648). Conveyances, 73 ; Courts, 155, 348 ; Equity, 8; Pleading and Practice, 373, 374; Re- ceiver, 14; Sales, 114; Trustees, 33. Svenson, In re (19 N. B. R. 329; 9 Biss. 69; 11 Chi. Leg. News, 367; 8 Rep. 361; 25 Int. Rev. Rec. 374; Fed. Caa 13,659). Dis- charge, 78. Swearinger et al., In re (17 N. B. R. 138; 5 Sawy. 53; Fed. Gas. 18,683). Sales, 128. Sweatt V. Boston, Hartford & Erie R. R. Co. (5 N. B. R. 234; 3 Cliff. 339; 1 Amer. Law T. Rep. Bankr. 873; 4 Amer. Law T. 174; 6 Amer. Law Rev. 168; Fed. Cas. 13,684). Appeals and Writs of Error, 7; Banks, 41; Common Carriers, 1; Constitutional Law, 39, 35; Corporations, 8-10; Defini- tions, 5; Pleading and Practice, 110; Statutory Construction, 53. Sweet et al.. In re (9 N. B. R. 48; 21 Pittsb. Leg. J. 83; Fed. Cas. 13,688). Costs and Fees, 139; Sales, 11; Trustees, 118. Swift, S. G., In re (7 N. B. R 591; 6 Ben. 334; Fed. Gas. 13,093). Rent, 42. Swope et al. v. Arnold, Ass. (5 N. B. R. 148; Fed. Gas. 18,702). Claims, 77; Execu- tion, 33. Symonds v. Barnes (6 N. B. R. 877). Dis- charge, 331 ; Schedules, 81. T. Taggert, In re (16 N. B. R. 351; Fed. Cas. 13,785). Estate, 184,190,191; Payment, 7. Talbot, In re (3 N. B. R. 98; 3 Amer. Law T. Rep. Bankr. 15; 1 Chi. Leg. News, 107; Fed. Cas. 18,737). Costs and Fees, 181, 133; Marshal, 18. Talcott, Ex parte; In re Souther (9 N. B. E. 503; 2 Lowell, 330; Fed. Cas. 18,184). Claims, 154, 286. TABLE OF CASES. Ixix Tallman, In re (1 N. B. R. 122; 2 Ben. 348; 1 Amer. Law T. Eep. Bankr. 123; Fed. Cas. 13,739). Claims, 18; Fraud, 68. Tallman, In re (1 N. B. R. 145; 2 Ben. 404; Fed. Cas. 13,740). Discharge, 54. Tanner, In re (1 N. B. R. 59; 1 Lowell, 315; 15 Pittsb. Leg. J. 244; 35 How. Pr. 20; 1 Amer. Law T. Rep. Bankr. 131; Fed. Cas. 13,745). Examination of Bankrupt, 60. Taylor, In re (3 N. B. E. 38; Fed. Cas. 13,775). Exemptions, 37, 65. Taylor, Ex parte (16 N. B. R. 40; 1 Hughes, 617; 24 Pittsb. Leg. J. 205; Fed. Cas. 13,773). Arrest, 20; Discharge, 300; Evi- dence, 131; Guardian, etc., 4; Surety, 17. Taylor, Ass., v. Rasoh & Bernart (5 N. B. R. 399; 4 Amer. Law T. 201; Fed. Cas. 13,801). Equity, 4; Partners, 110, 205; Pleading and Practice, 237. Taylor v. Rasch & Barnart (11 N. B. R. 91; 1 Flip. 385; 31 Leg. Int. 365; 1 Cent. Law J. 555; Fed. Cas. 13,800). Partners, 168, 206. Temple, In re (17 N. B. R. 345; 4 Sawy. 93; Fed. Cas. 13,835). Assignments, 43; Es- tate, 348; Notice,. 43; Partners, 27, 44. Ten Eyck & Choate, In re (7 N. B. R. 26; Fed. Cas. 13,829). Rent, 1, 7. Tenny & Gregory v. Collins (4 N. B. R. 156; Fed. Cas. 13,833). Discharge, 210; Evi- dence, 16. Tenth Nat. Bank of New York City et al. v. Warren et aL, Ass. (17 N. B. R. 75; 96 U. S. 539). Preferences, 341; Sales, 79. Terry & Cleaver, In re (4 N. B. R. 33; 3 Biss. 356; 8 Chi. Leg. News, 106; Fed. Cas. 13,885). Preferences, 145. Tesson et al., In re (9 N. B. R. 878; Fed. Cas. 18,844). Claims, 145; Trust, 9. Thatcher v. Rockwell (105 U. S. 467). Suits, 33; Trustees, 8, 180. Thomas, In re (11 N. B. E. 330; 7 Chi. Leg. News, 187; Fed. Cas. 13,891). Death, 5. Thomas, In re (3 N. B. R. 7; Fed. Cas. 13,890). Discharge, 314; Injunction, 27; Pleading and Practice, 250. Thomas et al.. In re (17 N. B. R. 54; 8 Biss. 139; 6 Cent. Law J. 151; Fed. Cas. 13,886). Commercial Paper, 35; Secured Claims, 55. Thompson et al.. In re (3 N. B. R. 45; 3 Biss. 166; 16 Pittsb. Leg. J. 85; 2 Amer. Law T. 107; 1 Chi. Leg. News, 845; 1 Amer. , Law T. Rep. Bankr. 137 ; Fed. Cas. 13,936). Acts of Bankruptcy, 34. Thompson, In re (1 N. B. R. 65; 2 Ben. 166; Fed. Cas. 13,935). Examination of Bank- rupt, 55. Thompson, In re (18 N. B. R. 300; 2 N. Y. Wkly. Dig. 4; Fed. Cas. 13,938). Costs and Fees, 86. Thornhill et al. v. Bank of Louisiana (5 N. B. R. 377; 4 Amer. Law T. Rep. (tf. S. Cts.) 245; 1 Amer. Law T. Rep. Bankr. 287; Fed. Cas. 13,991). Appeals and Writs of Error, 33; Stay of Proceedings, 8. Thornhill et al. v. Bank of Louisiana (5 N. B. R. 367; 1 Woods, 1; Fed. Caa 13,992). Conflict of Laws, 5; Review, 7. Thornhill et al. v. Bank of Louisiana; Sarah. Williams et al. v. Same (3 N. B. R. 110; 3 Amer. Law T. 38; 2 Chi Leg. News, 157; 1 Amer. Law T. Rep. Bankr. 156; Fed. Cas. 13,990). Courts, 79. Thornhill & Co. v. Link (8 N. B. R. 521; Fed. Cas. 13,993). Acts of Bankruptcy, 53; Deeds, 3. Thornton, In re (3 N. B. R. 68; 8 Amer. Law- Reg. (N. S.) 43; Fed. Cas. 13,994). Ex- emptions, 63. Thornton v. Hogan (17 N. B. R. 377). Notice, 6,7. Thrall v. Crampton, Ass. etc. (16 N. B. R 361; 9 Ben. 318; Fed. Cas. 14,008). Estate, 239; Liens, 80, 126; Partners, 124, 179. Thurmond v. Andrews and Wife (13 N. B. E, 157). Discharge, 96; Schedules, 33; Trust- ees, 195. Tiffany v. Boatman's Savings Institution, 9 N. B. R. 245; 18 Wall. 375). Banks, 40, 44; Commercial Paper, 9, 30; Contracts, 7; Corporations, 34; Courts, 131, 255; Pref- erences, 227, 234; Usury, 10. Tiffany et al.. Ass. etc., v. Morrison (18 N, B, R. 365). Preferences, 86. Tiffany, Trustee, v. Lucas (8 N. B. R. 49; 15 Wall. 410). Sales, 43. Tifft, In re (17 N. B. R. 502; Fed. Cas. 14,029). Examination of Bankrupt, 46; Proof, etft, 76. Tifft, In re (17 N. B. R. 550; Fed. Cas. 14,030). Attorneys, 5; Costs and Fees, 107; Ref- eree, 38. Tifft, In re (18 N. B. R. 227; Fed. Cas. 14,088). Costs and Fees, 51; Schedules, 45. Tifft, In re (18 N. B. R. 177; Fed. Cas. 14,032). Examination of Bankrupt, 53. Tifft, In re (18 N. B. R. 78; Fed. Cas. l^OSl). Injunction, 2. Ixx TABLE OF CASES. Tifift, In re (19 N. B. E. 201; Fed. Cas. 14,034). Courts, 76; Injunction, 30; Liens, 19. Tift, In re (17 N. B. R. 421; Fed. Cas. 14,036). Examination of Bankrupt, 45. Tills & May, In re (11 N. B. R. 214; Fed. Cas. 14,053). Execution, 14, 15. Tinker v. Van Dyke (14 N. B. E. 113: 1 Flip. 531; 8 Chi. Leg. News, 235; Fed. Cas. 14,058). Statutory Construction, 26, 32, 36, 37. Tivoli Brewing Co., In re (11 N. B. E. 470; Fed. Cas. 14,064). Petition, 94. Todd et al. v. Barton et al. (13 N. B. E. 197). Discharge, 324; Pleading and Practice, 33. Tomes et al., In re (19 N. B. E. 86; Fed. Cas. 14,084). Assignments, 60; Conveyances, 14 Tonkin & Trewartha, In re (4 N. B. E. 13; 3 Amer. Law T. 321; 1 Amer. Law T. Eep. Bankr. 233; Fed. Cas. 14,094). Claims, 50. Tonne, In re (13 N. B. E. 170; 1 N. Y. Wkly. Dig. 437; Fed. Cas. 14,095). Exemptions, 53, 114. Toof et al. v. Martin, Ass. (6 N. B. E. 49; 13 Wall. 40). Definitions, 11 ; Evidence, 91 ; Insolvency, 7; Notice, 5; Preferences, 5, 43, 64. looker, In re (14 N. B. E 35; 8 Ben. 390; 23 Pittsb. Leg. J. 185, 196; Fed. Cas. 14,096). Composition, 81; Pleading and Practice, 15. Towle v. Davenport (16 N. B. E. 478). Es- tate, 137, 170; Pleading and Practice, 56. Town et al.. In re (8 N. B. E. 40; Fed. Cas. 14,113). Dividends, 19. Town et al.. In re (8 N. B. E. 88; Fed. Cas. 14,111). Claims, 308. Townsend, In re (1 N. B. E 1; 3 Ben. 62; 1 Amer. Law T. Eep. Bankr. 3; Fed. Cas. 14,116). Meetings, 9. Tracy et al.. In re (3 N. B. E. 98; 1 Chi. Leg. News, 133; Fed. Cas. 14,124). Discharge, 115. Traders' Nat. Bank of Chicago v. Campbell, Ass. (6 N. B. E. 353 ; 14 Wall. 87). Banks, 20, 33; Estate, 336; Execution, 39; Plead- ing and Practice, 177, 273; Preferences, 94, 95, 133; Set-off, 5; Trustees, 177. Traer v. Clews (115 U. S. 528). Appeals and Writs of Error, 39; Sales, 126. Trafton, Ex parte; In re Trafton (14 N. B. E 507; 3 Lowell, 505; Fed. Caa 14,133). Claims, 34: Composition, 47; 48; Courts,' 264; Definitions, 7; Schedules, 12. Treadwell et al. v. Holloway et al. (13 N. B. E. 61). Discharge, 240; Fiduciary Debt, 13. Treadwell et al. v. Marden (18 N. B. E, 853), Discharge, 284. Treat, In re (10 N. B. R. 310; Fed. Cas. 14,160). Committee, 3. Tremont Nail Co., Ex parte; In re Middle- boro Shovel Co. (16 N. B. E. 448; 16 Alb, Law J. 417; 5 Cent. Law J. 483; Fed, Cas. 14,168). Contracts, 31. Tremont Nat. Bank, Ex parte; In re Battey (16 N. B. E. 397; 2 Lowell, 409; 25 Pittsb. Leg. J. 84; Fed. Cas. 14,169). Commer- cial Paper, 73; Waiver, 26. Trim, In re; Ex parte Marshall, Purcell etaU V. Wagner et al. (5 N. B. E. 33; 3 Hughes, 355: Fed. Cas. 14,174). Liens, 66, 67;, Eent, 34. Trimble v. Williamson (14 N. B. R 53). Judg- ment, 59, 60; Liens, 45. Trimble v. Woodhead (103 U. S. 647). Es- tate, 131; Trustees, 171. Troth, In re (19 N. B. E. 253; 2 N. J. Law J. 147; 36 Leg. Int. 158; Fed. Cas. 14^188). Assignments, 48; Composition, 144 Trowbridge, In re (9 N. B. R. 374; Fed. Cas. 14,191). Claims, 33; Statutory Construc- tion, 58. Troy Woolen Co., In re (4 N. B. R. (8 vo. ed.> 629; 8 Blatchf. 465; Fed. Cas. 14,301). Trustees, 131. Troy Woolen Co., In re (6 N. B. R. 16; 5 Ben. 413; Fed. Cas. 14,200). Appeals and Writs of Error, 20; Rehearing, 1. Troy Woolen Co., In re (8 N. B. E. 413; Fed. Cas. 14,203). Contracts, 17; Costs and Fees, 32; Set-ofe,. 13. Tucker v. Oxley (5 Cranch, 34). Partners, 89. Tulley, In re (3 N. B. R 19; 3 Amer. Law T. 137; Fed. Cas. 14,335). Costs and Fees, 58. TurnbuU, Jr., v. Payson, Ass. etc. (16 N. B. E, 440; 95 U. S. 418). Evidence, 35, 65. Tuttle V. Truax, Ass. (1 N. B. E 169; Fed.. Cas. 14,277). Evidence, 142; Mortgages, 14; Secured Claims, 20. Tyler, In re (4 N. B. E. 37; Fed. Cas. 14,305).' Books of Account, 34. Tyler, Ass., v. Brock et al. (17 N. B. R 289; Estate, 84; Evidence, 29; Preferences^ TABLE OF CASES. Ixxi S63; Schedules, 11; Statutory Coustruo tion, 4, Tyrrel, In re (2 N. R R. 73; Fed. Cas. 14,814). Discharge, 1^ u. Ulrioh, L, et al., In re (8 N. B. E. 15; 6 Ben. 483; Fed. Cas. 14,828). Courts, 188; In- junction, 10. Ulrioh et al., In re (3 N. B. R. 34; 3 Ben. 355; Fed. Cas. 14,327). Pleading and Practice, 227. Ungewitter v. Von Sachs, Ass. (3 N. B. E. 178; 4 Ben. 167; 1 Amer. Law T. Eep. Bankr. 324; 3 Amer. Law T. Eep. Bankr. 195; Fed. Cas. 14,343). Claims, 13; Trust, 11. Union Pac. R E. Ca, In re (10 N. B. E. 178; 6 Chi. Leg. News, 855; 8 Amer. Law Eev. 779; 31 Leg. Int. 361; Fed. Cas. 14,876). Acts of Bankruptcy, 55, 56; Assignments, 11; Common Carriers, 2; Insolvency, 8; Mortgages, 7. United States v. Bayer (13 N. B. E. 88; Fed. Cas. 14,548). Crimes and Offenses, 14; Evidence, 60, 124; Mortgages, 115, United States v. Bayer et al. (13 N. B. E. 400; 4 DilL 407; 8 Cent. Law J. 11; Fed. Cas. 14,547). Crimes and Offenses, 13. United States v. Black et al. (12 N. B. R 340; 1 Hask. 570; 1 N. T. Wkly. Dig. 77; Fed. Cas. 14,603). Evidence, 13, 14. United States v. Block (15 N. B. E. 335; 4 Sawy. 211; 9 Chi. Leg. News, 234; Fed. Cas. 14,609). Crimes and Offenses, 2; Schedules, 44 United States v. Clark (4 N. B. E. 14; 1 Low- ell, 402; 1 Amer. Law T. Eep. Bankr. 237; 3 Amer. Law T. 326; Fed. Cas. 14,806). Crimes and Offenses, 1. United States v. Fisher (2 Cranch, 858). Claims, 100. United States v. Fox (17 N. B. E. 84; 94 U. S. 315). Crimes and Offenses, 11, 17. United States v. Frank (3 N. B. E. 175 ; 3 Biss. 263; 17 Pittsb. Law J. 140; 2 Chi. Leg. News, 286; Fed. Cas. 15,159). Crimes and Offenses, 6. United States v. Geary (4 N. B. E 175). Crimes and Offenses, 7. United States v. Herron (9 N. B. R. 535; 30 Wall. 251). Discharge, 365; Statutory Construction, 78; Surety, 4; United States, 1. United States v. Lewis et al. (13 N. B. R. 33 j 2 Wkly. Notes Cas. 31; 23 Int. Eev. Eeo, 89; 33 Leg. Int. 371; 33 Pittsb. Leg. J.. 34; Fed. Cas. 15,595). Partners, 90, 159; United States, 8, 4. United States v. Myers (16 N. B, E. 387; Fed. Cas. 15,848). Crimes and Offenses, 9, 10; Pleading and Practice, 17. United States v. Peck (103 U. S. 64). Trust- ees, 111. United States v. Penn (13 N. B. E. 464; Fed. Cas. 16,035). Crimes and Offenses, 8, 12,, 15, 16; Evidence, 5. United States v. Presoott et aL (4 N. B. E. 29; 2 Abb. (U. S.) 169; 3 Biss. 325; 9 Amer. Law Eeg. (N. S.) 481; 18 Pittsb. Leg. J. 21; Fed. Cas. 16,084). Crimes and Of- fenses, 19; Pleading and Practice, 16. United States v. Pusey (6 N. B. R 384; Fed.. Cas. 16,098). Constitutional Law, 38;. Statutory Construction, 64. United States v. Eob Eoy & Cargo (13 N. B. R 335; 1 Woods, 43; Fed. Cas. 16,179).. Claims, 809; Discharge, 237, 276. United States Trust Co. etc. v. Sedgewick (18 N. B. R 340; 97 U. S. 304). Estate, 295. United States v. Smith (18 N. B. E. 61; Fed. Cas. 16,839). Evidence, 34; Fraud, 67,98.. United States v. Thomas (7 N. B. R 188). Crimes and Offenses, 5 ; Fraud, 99. United States v. Throckmorton et al. (8 N. ■ B. R 309; 18 Int. Rev. Reo. 54; Fed. Cas. 16,516). Discharge, 801 ; Statutory Con- struction, 55. Upshur V. Briscoe (138 U. S. 365). Discharge,. 241, 347, 391, 839. Upton, Ass., V. Burnham (8 N. B. R. 331; 3 Biss. 431; Fed. Cas. 16,798). Corpora- tions, 33; Stockholders, 1; Waiver, 17. Upton, Ass., V. Hansbrough (10 N. B. E. 869; 3 Biss. 417; 5 Chi. Leg. News, 243; 7 West. Jur. 338; Fed. Cas. 16,801). Corporations, 31; Estate, 9; Stockholders, 8, 5, 13, 24. Upton V. McLaughlin (105 U. S. 640). Lim- itations, Statute of, 33. Upton, Ass., V. Tribilcock (13 N. B. R 171 ^ 91 U. 8. 45). Corporations, 34; Evidence,. 113; Pleading and Practice, 76, 77; Stock*' holders, 8, 14, 15, 85. Usher v. Pease et al. (12 N. B. R 305). Ar^ rest, 14k Ixxii TABLE OF CASES. Y. Valentine, In re (13 N. B. B. 389; 4 Biss. 317; 1 N. Y. Wkly.Dig. 101; Fed. Cas. 16,813). Claims, 344; Commercial Paper, 31; Proof, etc., 57. Valk et al.. In re (3 N. B. R. 73; 3 Ben. 431; Fed. Cas. 16,814). Habeas Corpus, 4. Valley Nat. Bank v. Meyers, Ass. etc. (17 N. B. R. 357; Fed. Cas. 16,831). Commer- cial Paper, 59; Surety, 18. Valliant, Ass., v. Childress (11 N. B. R. 817; 31 Wall. 643). Attachment, 63; Trustees, 104. Valliquette, In re (4 N. B. R.'93; Fed. Cas. 16,833). Acts of Bankruptcy, 83. Van Auken & Crane, In re (14 N. B. R. 435; Fed. Cas. 16,828). Composition, 1, 3, 65; Courts, 15; Secured Claims, 8. Van Buren et al.. In re (19 N. B. R. 149; Fed. Cas. 16,883). Claims, 191. Van Camp Bush, Appellant, v. Josiah Craw- ford, Ass. of Dunkle & Driesbach (7 N. B. R. 399). Fraud, 47; Partners, 144. Vanderhoef et al.. In re (18 N. B. R. 548; Fed. Cas. 16,841). Amendment, 18. Van Dyke & Brownson v. Tinker (11 N. B. R. 308; Fed. Cas. 16,849). Pleading and , Practice, 311; Statutory Construction, 30. Van Kleeck, Ass. etc., v. Miller et al. (19 N. B. R. 484; Fed. Cas. 16,860). Convey- ances, 74; Pleading and Practice, 264; Preferences, 90, 333. Van Nostrand v. Barr et aL (3 N. B. R. 154). Constitutional Law, 5. Van Riper et al., In re (6 N. B. R. 573; Fed. Cas. 16,874). Definitions, 1; Discharge, 143; Estate, 185. Van Tuyl, In re (1 N. B. R. 193; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 16,880). Examination of Bankrupt, 16. Van Tuyl, In re (3 N. B. R. 177; 3 Ben. 337; 1 Chi. Leg. News, 336; Fed. Cas. 16,879). Discharge, 158; Examination of Bank- rupt, 65; Married Woman, 3. Van Tuyl, In re (8 N. B. R. 35; Fed. Cas. 16,881). Costs and Fees, 133; Evidence, 71; Examination of Bankrupt, 39. Vetterlein et al.. In re (6 N. B. R. 518; 5 Ben. 571; Fed. Cas. 16,938). Vote, 19. Vetterlein, In re (4 N. B. R. 194; 5 Ben. 7; Fed. Cas. 16,938). Examination of Bank- rupt, 30. Vetterlein v. Barnes (124 U. S. 169). Plead- ing and Practice, 363; Trustees, 197. Vickery, In re (3 N. B. R. 171 ; Fed. Cas. 16,930)„' Claims, 181; Merger, 1. Vinton, In re (7 N. B. R. 138; Fed. Cas. 16,951), Discharge, 138. Vogel, H., In re (5 N. B. R. 393; Fed. Cas. 16,984). Examination of Bankrupt, 3. Vogel, In re (3 N. B. R. 138; 1 Chi. Leg. News, 310; Fed. Cas. 16,988). Estate, 130. Vogel, In re (8 N. B. R. 49; 7 Blatchf. 18; 1 Amer. Law T. Rep. Bankr. 170; 2 Amer. Law T. 154; Fed. Cas. 16,983). Estate, 60; Pleading and Practice, 168. Vogel et al.. In re (18 N. B. R. 165; 9 Ben. 498; Fed. Cas. 16,981). Attachment, 58; Intervention, 13; Petition, 150. Vogle, Ass., V. Lathrop (4 N. B. R. 146; 4 Brewst. 253; 8 Pittsb. Rep. 368; 18 Pittsb. Leg. J. 103; Fed. Cas. 16,985). Agent, 7; Estate, 88; Judgment, 71; Preferences, 133, 130, 149. Vogler, E. A., In re (8 N. B. R. 133; 3 Hughes, 297; Fed. Cas. 16,986). Exemptions, 39. Voight V. Lewis, Trustee (14 N. B. R. 548; 11 Phila. 511; 33 Leg. Int. 403; 9 Chi. Leg. News, 65; 3 N. Y. Wkly. Dig. 431; 34 Pittsb. Leg. J. 54; Fed. Cas. 16,989). Agent, 1, 2; Banks, 37; Commercial Paper, 71; Equity, 11. Von Hein, Ass., v. Elkus et al. (15 N. B. R. 194). Assignments, 30; Estate, 71. Von Sachs, Ass. etc., v. Ki-etz et aL (19 N. B. R. 88). Limitations, Statute of, 7; Mort- gages, 69; Set-off, 11, 13. Voorhees v. Frisbie (8 N. B. R. 152). Courts, 183, 184. w. Wadsworth, Ass., v. Tyler (3 N. B. R 101; 3 Amer. Law T. Rep. Bankr. 38; 1 Chi. Leg. News, 139; Fed. Cas. 17,033). Estate, 158; Preferences, 334. Walt, Ass. etc., v. The Bull's Head Bank (19 N. B. R. 600; Fed. Cas. 17,043). Convey- ances, 4; Partners, 109; Trustees, 318. Waite et al.. In re (3 N. B. R. 146). Costs and Fees, 66, 70. Waite & Crocker, In re (1 N. B. R. 84; 1 Low- ell, 307; Fed. Cas. 17,044). Amendment, 5; Partners, 114, 194 Waitzfelder et aL, In re (18 N. B. R. 360; Fed. Cas. 17,048). Composition, 148, .TABLE OF CASES. Ixxiii Walbrun v. Babbitt, Ass. (9 N. B. E. 1; 16 Wall. 577). Conveyances, 32; Estate, 203; Fraud, 41. Wald & Aehle, In re (12 N. B. R. 491; 7 Chi. Leg. News, 26; IN. Y. Wkly. Dig. 174; 1 Cent. Law J. 531; Fed. Cas. 17,054). Composition, 102. "Walker, In re (18 N. B. R 56; Fed. Cas. 17,063). Assignments, 19, 37; Trustees, 210. Walker, In re (1 N. B. R. 60; 1 Lowell, 222; Fed. Cas. 17,060). Arrest, 13, 13; Habeas Corpus, 1. "Walker, la re (1 N. B. R 67; Fed. Cas. 17,063). Oath, 1; Referee, 15. Walker, Ex parte (1 N. B. R 90; 1 Lowell, 237; 1 Amer. Law T. Rep. Bankr. 23S Fed. Cas. 17,061). Place of Business, 12, 13. "Walker, Ass., v. Seigel et al. (12 N. B. R 394 3 Cent. Law J. 508; Fed. Cas. 17,085), Commercial Paper, 53; Estate, 163; In junction, 11; Pleading and Practice, 257 Trust, 8. "Walker, Ass. etc., v. Towner (16 N. B. R 285 4 Dill. 165; 5 Cent. Law J. 306; Fed. Cas. 17,089). Limitations, Statute of, 34. Wallace, In re (3 N. B. R. 52; Deady, 433; 8 Amer. Law Rev. 174; 1 Chi. Leg. News, 30; Fed. Cas. 17,094). Equity, 1; Injunc- tion, 7, 59. Wallace v. Conrad (3 N. B. R 10). Liens, 47; Sales, 87; Subrogation, 5. Wallace & Newton, In re (13 N. B. R 191 ; Fed. Cas. 17,095). Partners, 48; Peti- tion, 19. Waller v. Best (3 How. HI). Sheriff, 7. Waltber et al., In re (14 N. B. R. 273; Fed. Cas. 17,136). Affidavits, 1; Evidence, 97. Walton et al.. In re (1 N. B. R 154; Fed. Cas. 17,131). Rent, 26, 27. Walton et al.. In re (4 N. B. R 154; Deady, 598; 2 Amer. Law T. 121; 1 Amer. Law T. Rep. Bankr. 163; Fed. Cas. 17,130). Preferences, 121. Ward, In re (9 N. B. R. 349; Fed. Cas, 17,145). Attachment, 13; Costs and Fees, 17, 36; Liens, 27, 33. Warford, Ass., v. Noble et al. (19 N. B. R 440). Dower, 6; Married Woman, 6. Waring, Ass. etc., v. Buchanan et al. (19 N. B. R 503; Fed. Cas. 17,176). Preferences, 68, 106. Warner, J. H., et al.. In re (7 N. B, R. 47; 4 Pao. Law Rep. 133; Fed. Cas. 17,178). Commercial Paper, 38; Partners, 3. Warner, S. P., et al., In re (5 N. B. R 414; Fed. Cas. 17,177). Banks, 9, 15, 24; Dis- charge, 175; Liens, 33, 108; Preferences, 96, 154. Warner v. Cronkhite (13 N. B. R. 53; 6 Biss. 458; 1 N. Y. Wkly. Dig. 391; 8 Chi. Leg. News, 17; Fed. Cas. 17,180). Discharge, 257; Judgment, 29. Warren, Ass., v. Delaware, Lackawanna & Western Ey. Co. (7 N. B. R. 451; 5 Chi. Leg. News, 305; 4 Leg. Op. 533; Fed. Cas. 17,194). Costs and Fees, 6; Preferences, 83, 131. Warren et al. v. Garber (15 N. B. R 409; 1 Hughes, 365; Fed. Cas. 17,196). Evidence, 30; Statutory Construction, 40. Warren v. Moody (122 U. S. 183). Trustees, 187. Warren & Rowe, Ass., v. Tenth Nat. Bank et al. (5 N. B. R 479; 5 Ben. 895; 42 How. Pr. 169; Fed. Cas. 17,200). Notice, 30; Preferences, 260. Warren Savings Bank v. Palmer & Co. (10 N. B. R 239; 10 Phila. 386; 81 Leg. Int. 361; 6 Chi. Leg. News, 366; 31 Pittsb. Leg. J. 193; Fed. Cas. 17,307). Sched- ules, 2. Warren, Ass., v. Tenth Nat. Bank & Bren- nan (7 N. B. R 481; 10 Blatchf. 493; Fed. Cas. 17,202). Acts of Bankruptcy, 4; Costs and Fees, 30; Fraud, 76; Insolv- ency, 11; Notice, 34; Preferences, 70; Trustees, 208. Warshing, J. & S., In re (5 N. B. R 350; Fed. Cas. 17,309). Costs and Fees, 79. Washburn, In re ; Ex parte Twiohell (11 N. B. R 66; Fed. Cas. 17,211). Lease, 1; Rent, 3. Watrous et al„ In re (14 N. B. R 258; 8 N. Y. Wkly. Dig. 180; Fed. Cas. 17,270). Agent, 8; Proof, etc., 27. Watson, In re (3 N. B. R 174; 2 Amer. Law T. Rep. Bankr. 93; Fed. Cas. 17,271). Ex- emptions, 75. Watson, In re (4 N. B. R. 197; Fed. Cas. 17,273). Petition, 97; Place of Business, 1 ; Statutory Construction, 49. Watson v. Citizens' Savings Bank (9 N. B. R 458). Attorneys, 15. Watson V. The Citizens' Savings Bank of South Carolina (11 N. B. R 161 ; 3 Hughes, Ixxiv TABLE OF CASEa 200; Fed. Cas. 17,279). Courts, 89; Stat- utory Construction, 65. ■Watson V. Poague et al. (15 N. B. R. 473). Commercial Paper, 75; Surety, SO. Watts, In re (3 N. B. E. 145; 3 Ben. 166; 3 Amer. Law T. Rep. Bankr. 74; Fed. Cas. 17,393). Amendment, 20; Certification, 6; Discharge, 8; Referees, 11. Weamer, In re (8 N. B. R. 537). Execution, 2; Trustees, 191. Weaver, In re (9 N. B. E. 133; Fed. Cas. 17,307). Acts of Bankruptcy, 76; Commercial Paper, 39; Preferences, 338; Sales, 113. Webb, In re (16 N. B. R. 358; 4 Sawy. 336; 10 Chi. Leg. News, 37; 5 N. Y. Wkly. Dig. 174; Fed. Cas. 17,317). Partners, 128, 153; Trustees, 104. Webb & Co., In re (3 N. B. R. 183; 3 Amer. Law T. Rep. Bankr, 89; 9 Int. Rev. Rec. 169; 16 Pitfsb. Leg. J. 43; Fed. Cas. 17,313). Claims, 94; Partners, 177. Webb & Co., In re (6 N. B. R. 303; Fed. Cas. 17,315). Rent, 14, 44. Webb, Ass., v. Sachs et al. (15 N. B. R. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Cas. 17,335). Conveyances, 6; Evidence, 38, 136; Fraud, 66; Insolvency, 31; No- tice, 35; Preferences, 44, 120. Webb & Taylor, In re (3 N. B. R. 177; 2 Chi. Leg. News, 313; Fed. Cas. 17,314). Dis- charge, 144. Weber Furniture Co., In re (13 N. B. R. 559; Fed. Cas. 17,331), Composition, 44; Plead- ing and Practice, 208. Weber Furniture Co., In re (13 N, B. R. 529; Fed. Cas. 17,330). Composition, 29, 30, 45, 156; Corporations, 51; Dividends, 37. Weeks, In re (13 N. B. R. 363; 8 Ben. 365; Fed. Cas. 17,349). Claims, 193; Commer- cial Paper, 43, 62. Weeks, In re (4 N. B. R. 116; 3 Biss. 259; Fed. Cas. 17,350). Execution, 31; Judgment, 9; Liens, 36; Powers of Attorney, 8. Weikert & Parker, In re (3 N. B. R. 4; Fed. Cas. 17;361). Acts of Bankruptcy, 33; Partners, 313. Weitzel, In re (14 N. B. R. 466). Insanity, 3, 3. Welch, W., In re (5 N. B. R. 348; 5 Ben. 330; Fed. Cas. 17,366). Exemptions, 90. Welch V. Dunham (3 N. B. R. 9; 3 Ben. 488; Fed. Cas. 4,143). Acts of Bankruptcy, 79. Welles, In re (18 N. B. R. 525; Fed. Cas. 17,377). Composition, 51-53; Schedules, 19. Wells, In re (3 N. B. R. 95; 3 Chi. Leg. News^ 49; Fed. Cas. 17,388). Insolvency, 2i; Preferences, 138. Wells v. Lamprey (16 N. B. R. 205). Compo- sition, 157; Fraud, 37; Mortgages, 146. Wente v. Young et al. (17 N. B. E. 90). Courts, 191; Estate, 7; Pleading and Practice, 196; Suits, 7; Trustees, 173. West Philadelphia Bank v. Dickson et al.. Ass. etc. (17 N. B. R. 483; 95 U. S. 180). Crimes and Offenses, 18; Preferences, 163. Westcott et al.. In re (7 N. B. R. 385; 6 Ben» 135; Fed. Cas. 17,430). Mortgages, 3, 4. Western Savings & Trust Co., In re (17 N. B. R. 413; 4 Sawy. 190; Fed. Cas. 17,442). Claims, 283; Courts, 13; Petition, 110; Pleading and Practice, 143. Westminster v. Heiskell (119 U. S. 450), Trustees, 178. Wetmore et al.. In re (16 N. B. R 514; Fed. Cas. 17,466). Trustees, 143. Wheeler et al.. In re (18 N. B. R 385; 2& Pittsb. Leg. J. 84; Fed. Cas. 17,490). Liens, 1; Receiver, 16; Rent, 35. Wheeler et al., In re (16 N. B. R. 377; 10 Chi. Leg. News, 18; 5 N. Y. Wkly. Dig. 202;. 5 Cent. Law J. 368; Fed. Cas. 17,489). Discharge, 184 Wheeler et al.. In re (19 N. B. R 358; 11 Chi. Leg. News, 407; 8 Reporter, 674; 4 Cin. Law Bui. 655; Fed. Cas. 17,491). Dis- charge, 150; Statutory Construction, 41. Wheelock v. Lee (10 N. B. R. 363). Courts, 31; Trustees, 333; Usury, 3. Wheelock, Ass. etc., v. Lee (17 N. B. R. 563). Estate, 80; Usury, 11. Whipple, In re (11 N. B. E. 534; Fed. Gas. 17,513). Composition, 36. Whipple, In re (13 N. B. E. 373; 6 Biss. 516; 8 Chi. Leg. News, 134; Fed. Cas. 17,513). Suits, 38, 29. Whitoomb, Ex parte; In re Col well (15 N. B, E. 93; 3 Lowell, 533'; Fed. Cas. 17,529). Costs and Fees, 59, 61. White, In re (3 N. B. E. 179; 16 Pittsb. Leg. J. 110; 3 Amer.Law T. 105; 1 Amer. Law T. Rep. Bankr. 136; 1 Chi. Leg. News, 836; Fed. Cas. 17,533). Books of Ac- count, 6. White et al.. In re (18 N. B. R. 106; Fed. Cas. 17,538). Discharge, 30, 73; Preferences, 253. TABLE OF CASES. IXXT White V. Griffing (18 N. B. E. 399). Lease, 2; Surety, 19. White T. Jones (6 N. B. R 175; 29 Leg. Int. 325; Fed. Cas. 17,550). Estate, 237; Liens, 26; Pleading and Practice, 298; Trust, 4; Trustees, 44. White & May, In re (1 N. B. E. 1; 2 Ben. 85; Fed. Cas. 17,531). Whitehead, In re (2 N. B. R. 180; 1 Chi. Leg. News, 326; Fed. Cas. 17,562). Claims, 73; Costs and Fees, 53; Exemptions, 60, 61; Mortgages, 34. Whitehouse, In re (4 N. B. R. 15; 1 Lowell, 429; Fed. Cas. 17,564). Arrest, 2. Whithed et al.. Petitioners, v. Pillsbury & Titcomb, Ass. (13 N. B. R. 241; Fed. Cas. 17,572). Collusion, 2: Mortgages, 133, 158; Subrogation, 1. Whiting, Ex parte; In re Dow et al. (14 N. B. R. 307; 2 Lowell, 472; Fed. Cas. 17,573). Sales, 78; Secured Claims, 56; Set-off, 3, 18-20. Whitman, Ass., v. Butler (8 N. B. R. 487; Fed. Cas. 17,579). Injunction, 19; Sales, 85. Whitney, In re (18 N. B. R. 563; Fed. Cas. 17,581). Arrest, 22; Courts, 127; Res Ad- judicata, 4; Stay of Proceedings, 22, 28. Whitney et aL, In re (14 N. B. R. 1 ; 13 Lowell, 455; 8 Chi Leg. News, '195; Fed. Cas. 17,580). Discharge, 195, 196. Whittaker, In re (4 N. B. R. 41; Fed. Cas. 17,598). Claims, 155. Whyte, In re (9N. B. E. 267; Fed. Cas. 17,606). Agent, 8; Proof, etc., 29. Wickham, Ass., v. Valle's Ex'rs et al. (11 N. B. R. 83; Fed. Cas. 17,613). Choses in Action, Ij Wicks & Co., Ass. of, v. Perkins (13 N. B. R 280; 1 Woods, 383; Fed. Cas. 17,615). Liens, 38, 39. Wielarski, In re (4 N. R R 130; 4 Ben. 468; Fed. Cas. 17,619). Petition, 152. Wiener, In re (14 N. B. R 218; 3 N. Y. Wkly. Dig. 95; Fed. Cas. 17,620). Courts, 278. Wiggin, In re (1 N. B. R 90; 1 Lowell, 237; Fed. Cas. 17,061). Place of Business, 12, la Wilbur, In re (3 N. B. R 71; 1 Ben. 537; 2 Amer. LawT. Rep. Bankr. 171; Fed. Cas. 17,633). Injunction, 48; Liens, 16. Wilbur, Ass., v. The Stockholders of the Cor- poration (18 N. B. R 178; 13 Phila. 479; 85 Leg. Int. 346; 26 Pittsb. Leg. J. 15; Fed. Cas. 17,636). Corporations, 28-30; Dividends, 24; Estate, 209, 210; Set-off, 15. Wilkins v. Davis (15 N. B. R 60; 2 Lowell, 511; Fed. Cas. 17.664). Discharge, 303; Estate, 249, 252; Partners, 63, 64, 120, 131, 124, 157; Trustees, 57. Wilkinson, In re (3 N. B. R. 74; 2 West. Jur. 350; 16 Pittsb. Leg. J. 237; Fed. Cas. 17,667). Discharge, 155. Williams, In re (3 N. B. R 28; Fed. Cas. 17,704). Costs and Fees, 35, 67. Williams, In re (2 N. B. R. 79; 3 Amer. Law Rev. 374; 1 Amer. Law T. Rep. Bankr. 107, 113; Fed. Cas. 17,705). Claims, 258; Costs and Fees, 118; Dividends, 4 Williams, In re (14 N. B. R 132; Fed. Cas. 17,706). Acts of Bankruptcy, 20; At- tachment, 60; Conveyances, 21; Judg- ment, 15, Williams et al.. In re (8 N. B. R 74; 1 Lowell, 406; Fed. Cas. 17,703). Partners, 22; Pe- tition, 145; Preferences, 114. Williams v. Butcher (12 N. B. R 143). Col- lateral Attack, 1 ; Discharge, 320. Williams v. Harkins (15 N. B. R 34). Dis- charge, 286. Williams v. Heard (140 U. S. 529). Appeals and Writs of Error, 38; Estate, 39. Williams & McPheeters, In re (11 N. B. R 145; 6 Biss. 333; 7 Chi Leg. News, 49; Fed. Cas. 17,700). Arrest, 18 ; Courts, 215 ; Fraud, 85; Petition, 28, 129. Williams v. Merritt (4 N. B. R 706). Adjudi- cation, 34. Williamson et al.. Ass., v. Colcord and Wife (13 N. B. R 819; 1 Bask. 620; Fed. Cas. 17,752). Claims, 8; Contracts, 12; Gift, 1. Willis V. Carpenter et al. (14 N. B. R 521; Fed. Cas. 17,770). Claims, 222; Estoppel, 9, 10; Jury Trials, 5; Pleading and Prac- tice, 251. Willmett, In re (3 N. B. R 76; 1 Amer. Law T. Rep. Bankr. 131; Fed. Cas. 17,778). Discharge, 62. Wills et ai v. Claflin et al. (13 N. B. E. 437; 92 U. S. 135). Evidence, 18. 87;, Suits, 6. Wilmot V. Mudge (103 U. S. 217). Composi- tion, 155; Discharge, 250. Wilson, In re (18 N. B. R 253; 2 Lowell, 453; Fed. Cas. 17,784). Discharge, 145; Part- ners, 16. XXVI TABLE OF CASES. Vilson, In re (8 N. B. E. 396; 5 Biss. 387; 18 Int. Rev. Rec. 93; 5 Chi. Leg. News, 549; 5 Leg. Op. 153; 21 Pittsb. Leg. J. 22; Fed. Cas. 17,780). Acts of Bankruptcy, 3, 33. Vilson et al., In re (18 N. B. R. 300; Fed. Cas. 17,785). Composition, 5, 10, 23, 106; Examination of Bankrupt, 70. Wilson, Ass., V. Brinkman et al. (3 N. B. R. 149; 1 Chi. Leg. News, 193; 3 Amer. Law T. Rep. Bankr. 65; Fed. Cas. 17,794). Ex- ecution, 13; Insolvency, 80; Preferences, 134. i^^ilson V. Capuro (4 N. B. R. 714). Estate, 3. Wilson V. Childs; Anshutz v. Campbell; In re Weamer (8 N. B. R. 537; 6 Chi. Leg. News, 27; 10 Phila. 275; 5 Leg. Op. 183; 30 Leg. Int. 331; 21 Pittsb. Leg. J. 17; Fed. Cas. 17,796). Liens, 4. ''ilson. Ass., V. City Bank of St. Paul (5 N. B. R. 270). Insolvency, 9; Preferences, 133; Trustees, 205. Ilson, Ass., V. City Bank of St. Paul (9 N. B. R 97; 17 Wall. 473). Liens, 96; Pref- erences, 71, 341. Ilson & Shober v. Bank of North Carolina (10 N. B. R. 290; Fed. Cas. 894). Banks, 36. ilson, Ass., V. Stoddard (4 N. B. R. 76; 3 Chi. Leg. News, 161; Fed. Cas. 17,838). Evidence, 88; Pleading and Practice, 89. ilt V. Stickney, Ass. (15 N. B. R. 24; 5 Amer. Law Rec. 630; Fed. Cas. 17,854). Plead- ing and Practice, 115. inchester v. Heiskell (119 U. S. 450). ' Ap- peals and Writs of Error, 4. inkens. In re (3 N. B. R. 113; 1 Chi. Leg. News, 163; 2 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 17,875). Discharge, 13; Partners, 61; Petition, 50. inn, In re (1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17,876). Con- flict of Laws, 7; Courts, 139; Estate, 16; Liens, 113, 135; Secured Claims, 36. inship V. Phillips (14 N. B. R. 50). Liens, 31. insor. In re (16 N. B. E. 153; 9 Chi. Leg. News, 402; 3 Cin. Law Bui. 212; Fed. Cas. 17,885). Books of Account, 3, 3, 37; Crimes and Offenses, 3; Estate, 183; Mort- gages, 113. inter v. Iowa, Minnetona & North Pacific Ey. Co. (7 N. B. R. 289; 3 Dill, 487; 6 West. Jur. 563; 5 Chi. Leg. News, 74- 6 Alb. Law J. 358; Fed. Cas. 17,890). Acts of Bankruptcy, 54, 80; Corpora- tions, 4. Winters et al. v. Claitor et al. (18 N. B. R. 033). Conveyances, 47; Liens, 69, 70;. Married Woman, 7. Wisner v. Brown (123 U. S. 314). Limita- tions, Statute of, 53; Trustees, 114.. Wiswall et al. v. Campbell et al.. Ass. etc. (15 N. B. R. 431; 93 U. S. 347). Appeals and Writs of Error, 30; Pleading and Prac- tice, 268; Proof, etc., 3. Witherow v. Fowler (7 N. B. R. 339; Pac. Law Rep. 102; 6 Alb. Law J. 432; Fed. Cas. 17,919). Estate, 258; Partners, 133. Witkowski, In re (10 N. B. E. 309; Fed. Cas. 17,920). Discharge, 317, 317; Examina- tion of Bankrupt, 76; Trustees, 78. Witt, Ass., V. Hereth (13 N. B. R. 106; 6 Biss. 474; 8 Chi. Leg. News, 41; IN. Y. Wkly. Dig. 436; Fed. Cas. 17,931). Collusion, 3f Judgment, 30; Pleading and Practice, 12, 99. Wolf, In re (17 N. B. R. 433; 4 Sawy. 168? Fed. Cas. 17,933). Acts of Bankruptcy, 74. Wood, J. P., In re (5 N. B. E. 431; Fed. Cas. 17,937). Conveyances, 68. Wood, In re (13 N. B. E. 90; 6 Ben. 339; 1 N. Y. Wkly. Dig. 366; Fed. Cas. 17,935). Pe- tition, 131. Wood V. Bailey, Ass. (13 N. B. E. 183; 31 Wall. 640). Appeals and Writs of Error, 34 Wood V. Hazen (15 N. B. R. 491). Discharge, 65, 97. Wood Mowing & Reaping Machine Co. v. Brooke, Ass. (9 N. B. R. 395; 2 Sawy. 576; Fed. Cas. 17,980). Courts, 26; Estate, 37; Sales, 75, 76. Wood V. Owings (1 Cranch, 389). Convey- ances, 18. Wooddail, Adm'x, v. Austin & Holliday (10 N. B. R. 545). Nonsuit, 3; Pleading and Practice, 355. Woodford & Chamberlain, In re (13 N. B. R. 575; 1 Cin. Law Bui. 37; Fed. Cas. 17,972). Claims, 312, 379; Petition, 11, 77. Woods, T., In re (7 N. B. R 126; 39 Leg. Int. 236; 20 Pittsb. Leg. J. 21; Fed. Cas. 17,990). Acts of Bankruptcy, 5; Defini- tions, 30; Evidence, 85; Insolvency, 18. TABLE OF CASES. Ixxyii Woods et al. v. Buckewell et al. (7 N. B. R 405; 2 Dill. 38; 6 Alb. Law J. 291; Fed. Gas. 17,991). Trustees, 86. Woodward, In re (12 N. B, E. 297; 8 Ben. 112; 1 N. Y. Wkly. Dig. 33; 7 Chi. Leg. News, 387; Fed. Cas. 18;000). Pleading and Prac- tice, 316. Woodward et al., In re (3 N. B. R. 177; 4 Ben. 102; Fed. Cas. 17,999). Evidence, 58. Woolfolk et aL v. Gunn (10 N. B. R. 526). Pleading and Practice, 106. Woolfolk V. Murray, Bryan & Sims (10 N. B. R. 540; Fed. Cas. 18,028). Courts, 167; Exemptions, 15. Woolford, In re (3 N. B. R. 113; 4 Ben. 9; Fed. Cas. 18,029). Evidence, 69. Woolsey v. Cade (15 N. B. R. 238). Dis- charge, 289; Statutory Construction, 81. Woolums et al.. In re (1 N. B. R. 131; Fed. Cas. 18,084). Discharge, 60. World Co. V. Brooks (3 N. B. R. 146). Dis- charge, 205; Stay of Proceedings, 7. Worthington, In re (16 N. B. R. 53; 7 Biss. 455; IN. W. Rep. (O. S.) 109; 9 Chi. Leg. News, 346; 4 Law & Eq. Rep. 78; 16 Alb. Law J. 63; 33 Int. Rev. Eeo. 233; 2 Cin. Law Bui. 189; Fed. Cas. 18,051). Holiday, 1; Judgment, 64, 65. Worthington,. In re (14 N. B. R. 388; 3 Cent. Law J. 526; 8 Chi. Leg. News, 362; 14 Alb. Law J. 153; Fed. Cas. 18,052). Courts, 144 Wright, In re (1 N. B. R. 91; Fed. Cas. 18,069). Certification, 3. Wright, In re (8 N. B. R 480; 3 Biss. 359; Fed. Cas. 18,067). Exemptions, 59. Wright, In re (3 N. B. 'R. 155; Fed. Cas. 18,071). Fraud, 27; Preferences, 258. Wright, In re (3 N. B. R. 57; 2 Ben. 509; 36 How. Pr. 167; Fed. Cas. 18,065). Dis- charge, 117, 327; Fraud, 84. Wright V. Filley (4 N. B. R 197; 1 Dill. 171; 5 West. Jur. 213; Fed. Cas. 18,077). Pref- erences, 346. Wright et aL, Ass. etc., v. The First Nat. Bank of Greensburg (18 N. B. R 87; 8 Biss. 343; 6 N.T. Wkly. Dig. 543; 18 Alb. Law J. 115; 2 Nat. Bank Cas. (Browne), 138; 10 Chi. Leg. News, 348; 6 Reporter, 229; 26 Pittsb. Leg. J. 11; Fed. Cas. 18,078). Estate, 113, 152; Torts, 2, 8. Wright V. Johnson (4 N. B. R 626; 8 BlatchL 150; Fed. Cas. 18,082). Pleading and Practice, 161. Wright & Peckham, In re (2 N. B. R 14; 15. Pittsb. Leg. J. 553; Fed. Cas. 18,070). Dis- charge, 346, 253; Fraud, 87. Wrisley et al., In re (17 N. B. R 259; Fed. Cas. 18,103). Liens, 8; Mortgages, 93. Wronkow et al.. In re (18 N. B. R 81; 15 Blatchf. 38; 26 Pittsb. Leg. J. 2; Fed. Cas. 18,105). Composition, 23, 114, 137; Courts, , 72; Meetings, 12, 13. Wyatt, In re (2 N. B. R. 94; 1 Chi. Leg. News, 107; Fed. Cas. 18,106). Discharge, 30j Estate; 285, 293; Gift, 3. Wylie, In re (3 N. B. R 53; Bank Ct. Rep.- 133; 1 Chi. Leg. News, 30; Fed. Cas. 18,109). Estate, 43. Wynne, In re (4 N. B. R. 5; Chase, 327; 9 Amer. Law Reg. (N. S.) 627; 3 Amer. LawT. Rep. Bankr. 116; Fed. Cas. 18,117). Acts of Bankruptcy, 58; Conveyances,. 67; Courts, 158; Estate, 63, 63, 96; Liens, 61, 119; Mortgages, 100; Record, 3; Se- cured Claims, 31; Time, 8; Trustees, 36.- Yeatman et al.. Ass. etc., v. The New Orleans Saving Inst. (17 N. B. R 187; 95 U. S. 764). Estate, 81; Pledge, 67. York & Hoover, In re (4 N. B. R. 156; 1 Abb.. (U. S.) 503; 10 Amer. Law Reg. (N. S.) 36;. Fed. Cas. 18,139). Appeals and Writs of Error, 18; Courts, 245, 246; Pleading and Practice, 226 ; Statutory Construction, 74. York & Hoover, In re (3 N. B. R. 163; Fed. Cas. 18,138). Mortgages, 11, 12. Young, In re (15 N. B. R 305; 1 Tex. Law J.. 7; Fed. Cas. 18,149), Claims, 233; Ex- emptions, 38. Young et al., In re (3 N. B. R 111; Fed. Cas. 18,148). Exemptions, 107. Young et al. v. Ridenbaugh's Adm'r (11 N. B. R 563; 3 Dill. 239; 7 Chi. Leg. News, 243; Fed. Cas. 18,173). Claims, 220; Death, 4; Evidence, 39. Zahm, Ass., v. Fry et al. (0 N. B. R 546; 10^ Phila. 248; 81 Leg. Int 197; 21 Pittsb. Leg. J. 155; Fed. Cas. 18,198> Courts, 134;. Ixxviii TABLE OF CASES. Estate, 139; Judgment, 49; Preferences, 138, 139. Zantzinger v. Ribble, Ass. (4 N. B. E. (8 vo. ed.) 734). Estate, 130; Trustees, 65, Zeiber v. Hill (8 N. B. E. 339; 1 Sawy. 368; Fed. Cas. 18,306). Costs and Fees, 14, 34. Zimmer v. Sohleehauf (11 N. B. R. 313). Stay of Proceedings, 30. ■Zinn et al.. In re (4 N. B. E. 133; 40 How. Pr. 461; Fed. Cas. 18,316). Trustees, 93. Zinn et aL, In re (4 N. B. E 145; 4 Ben. 600; 43 How. Pr. 64; Fed. Cas. 18,315)i Trust- ees, 141. Zug et aL, In re (16 N. B. R 380; 38 Int. Rer, Eec.8g3; 34 Leg. Int. 403; 3S Pittsb. Leg. J. 39; Fed. Cas. 18,333). Appeals and Writs of Error, 31; Estate, 245, 254; Partners, 81; Pleading and Practicei 190; State Laws, 14, DIGEST OF DECISIONS. ABANDONMENT. See SoHBDTJLB, 47. ACCOMMODATION NOTE. See Acts of Bajsteeuptct, 40; Commercial Paper, V. ACCOTJNTS. See Befebee, 51, 52. 1. The provision in section 38 (act of for auditing the accounts of the assignee at the meeting for the final dividend cannot be regarded as preventing the auditing by the register of such accounts at the second meet- ing of creditors. In re Clark & Bininger, 6 N. B. R. 197; 5 Ben. 389; Fed. Cas. 2,799. 2. Where aocoimts of assignee are filed at the second meeting without notice to the creditors, the register is justified in deferring the audit until the next meeting. Id. 3. At a second meeting of creditors, called , imder section 27 (act of 1867), the assignee filed his accoimts without giving notice. Thereupon the register announced that said accounts would not be audited, and passed them until the next meeting. The assignee applied to the district court to compel the register to audit accounts. It was held the register was justified in refusing. Id. 4. Creditors are not bound to object to the assignee's account save at a meeting called pursuant to the provisions of the twenty- eighth section of the act (1867). In re Clark, 9 N. B. R. 67; Fed. Cas. 2,810. 5. Where money is paid upon a running ac- count, and there has been no appropriation of the payments, the law will apply it first on the oldest debts. Cook v. Waters et aL, 9 N. B. R 155. 1 ACCRETION. See Estates, 52. ACKNOWLEDGMENTS. See Power of Attorney, 3, V. ACTIONS. See Suits. ACTS OP BANKRUPTCY. L What Ark (a) In QenerdL (b) Arrest for Debt. (o) Departure of Debtor, (d) General Assignment. (e) Mortgage. (f) Payment. (g) Removal of Property. (h) Suspension of Commercial J (i) Transfer of Property. IL What Arb Not. (a) Mortgage. (b) Suspension of Commercial Paper, (c) Transfer of Property. See Assignments, II; Conv,etances, 60; Cor- porations, 2, 11; Discharge, 113; Evi- dence, 106; Insanity,!; Judgments, 70; Married Woman, 18, 23; Notice, 35; Petition, 6; PLEADOfG and Practice, 103, 228, 259; Pbeferenck I. "What Are. (a) In General. 1. The purpose of the bankrupt act being to enforce equal distribution of an insolv- ent's estate, every act of an insolvent that ACTS OF BANKRUPTY, I, (a)-{ilent. In re Davis, 3 N. B. R. 89; 8 Ben. 483; Fed. Cas. 3,615. 88. Non-payment of the commercial paper of a merchant or trader at maturity, and the continuous suspension and neglect of pay- ment, is a continuous act of bankruptcy under the act of 1867. In re Raynor, 7 N. B. R 537; 11 Blatch. 43; 1 Amer. Law Rec. 736; Fed. Cas. 11,597. 39. The failure of an accommodation in- dorser to pay the note for fourteen days after his liability has been duly fixed is an act of bankruptcy, under the act of 1867, if there be no defense to the note in the hands of its holder, and if the iudorser be a manufact- ACTS OF BANKRUPTCY, I, (i). urer. In re Chandler, 4 N. B. R. fi6 ; 1 Lewell, 478; Fed. Cas. 2,591. 40. An indorser of a note who, being a merchant, manufacturer or trader, does not, within fourteen days of protest and notice, make provision for the payment of his lia- bility thereon, commits an act of bankruptcy, under the act of 1867, and the fact that the note was indorsed for accommodation is im- materiaL In re Clemens, 8 N. B. R 379; 5 Chi Leg. News, 511; 8 Amer. Law Rev. 168; Fed. Cas. 2,878. 41. Under the act of 1867, a suspension of payment for more than fourteen days, of a promissory note given by a trader in the course of business, is an act of bankruptcy, even though, prior to such suspension, the trader had gone out of business. Davis et al. v. Armstrong, 3 N. B. R. 7; 3 Amer. Law T. 138; Fed. Cas. 3,624. 42. Where the maker of a note 'requested the holder to hold the note for a day, and this was done for forty days, the note does not lose its character as commercial paper, and the non-payment by the maker, who was a merchant, was an act of bankruptcy under the act of 1867. Perin & Goflf Mfg. Co. v. Peale, 17 N. B. R 877; Fed. Cas. 10,981. 43. Under the act of 1867, if a merchant or trader suspend payment of his commer- cial paper for fourteen days, it is an act of bankruptcy of which any creditor may avail himself, notwithstanding the paper on which payment was suspended is taken up before the petition is filed. In re Ess and Clarendon, 7 N. B. R. 133; 3 Biss. 301; 4 Chi. Leg. News, 357; 20 Pittsb. Leg. J. 34; 2 Md. Law Rep. 353; 1 Amer. Law Rec. 356; 6 Alb. Law J. 277; 6 West. Jur. 447; Fed. Cas. 4,530. 44. A executed a promissory note. Sub- sequently, but before it became due, he be- came the owner of a nailL He did not pay the note at maturity, and after suspending fourteen days a petition in involuntary bank- ruptcy was filed. Objection made because he was not in one of the classes named in the act of 1867 at the time the note was made. jHeM immaterial, and he was adjudged bank- rupt In re Carter, 6 N. B. R 299 ; 3 Leg. Op. 231; 6 Amer. Law Rev. 755; 3 Biss. 195; 4 Chi. Leg. News, 187; Fed. Cas. 2,470. 45. A petition was filed under the act of 1867 alleging various acts of bankruptcy. Certain mortgages had been given, and the court found that they were given when the debtor was insolvent, and with intent to delay and hinder creditors, and that he had suspended payment upon his commercial paper and had not resumed in fourteen days. The adjudication was made. In re Cowles, 1 N. B. R. 43; 1 West. Jur. 367; Fed. Cas. 3,297. 46. The allegation of stoppage and suspen- sion of payment on a certain day, upon com- mercial paper made and dated within six months next preceding the filing of the peti- tion, combined with the allegation that pay- ment had been demanded at different times and refused, is equivalent to an allegation of a demand for payment on that day, and ad- judication of the bankrupt will be granted under the act of 1867. In re Chappel, 4 N. B. R 176; Fed. Cas. 2,612. 47. A specification setting forth suspen- sion of payment of commercial paper as an act of bankruptcy, under the act of 1867, should state the date of the note or bill of which payment was stopped, to wihom made, for what amount, when payable, whether the debtor's liability thereon was as maker or indorser, and by whom the same was held when payment was neglected or refused. In re Randall et al., 3 N. B. R 4; Deady, 557; 3 Amer. Law T. Rep. Bankr. 69; 1 Chi. Leg. News, 209; Fed. Cas. 11,551. 48. A merchant who stops the payment of his commercial paper cannot prevent the rimning of the fourteen days necessary to make this stoppage an act of bankruptcy (act of 1867), by the execution of an assign- ment for the benefit of all his creditors, pre- vious to the expiration of said period. In re Laner, 9 N. B. R 494; Fed. Cas. 8,055. (i) Trcmsf&r of Property. 49. If a debtor intend by his act to delay, hinder or defraud his creditors, or to give a preference to any of them, or to defeat or delay the operation of the bankrupt act, he clearly commits an act of bankruptcy, how- ever innocent the act of the preferred cred- itor or the person to whom the transfer is mado. In re Drummond, 1 N. B. R 10; 1 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 4,093. ACTS OF BANKRUPTCY, II, (a), (b). 60. Any fraudulent conveyance, assign- ment, sale, gift or other transfer of lands, etc., by a merchant or trader was an act of bank- ruptcy under the act of 1841, notice of which to a creditor would avoid a conveyance in his favor. Shawhan v. Wherritt, 7 How, 627. 5 1 . In order to prove that a sale was made in contemplation of bankruptcy, evidence may be given of a prior sale by the same party, accompanied by a secret agreement which re-invested the seller with the owner- ship of a share of the property so sold. Eosen- thal V. Walker, 111 U. S. 185. 52. An insolvent debtor, being pressed by creditors, conveyed land, for which he paid $8,000, to his wife and brother-in-law, in pay- ment of $2,500 which he had received from them. Held, an act of bankruptcy. Thorn- hiU & Co. V. Link, 8 N. B. E. 531; Fed. Cas. 13,993. 53. A purchaser of goods who assumes debts of the vendor as part consideration, and sells the goods leaving the debts unpaid, which the vendor is compelled to discharge, commits an act of bankruptcy and is liable to the vendor for the amount of the debts assumed. In re Phelps v. Clasen, 3 N. B. E. 23; Wbolw. 204; 2 West. Jur. 231; Fed. Ca& 11,074 54. The issue at par of stock of a com- pany, not theretofore issued in payment of the bona fide debt of the company, does not operate to the prejudice of creditors or work a fraud upon them. If, however, the stock be owned by the company as paid-up stock lawfully acquired by it, it would probably be regarded as ordinary property, and if dis- posed of by the authorized act of the corpora- tion to creditors imder such circumstances as to give them an illegal preference, such act would be one of bankruptcy. Winter v. Iowa, M. & N. P. E. E. Co., 7 N. B. E. 289; 2 DilL 487; 6 West. Jur. 563; 5 Chi. Leg. News, 74; 6 Alb. Law J. 358; Fed. Cas. 17,890. II. What Aeb ITot. See Assignments, IL (a) Mortgage. ' 55. A mortgage for money to pay debts ratably would not be an act of bankruptcy, even in a trader. In re Union P. E. E. Co., 10 N. B. E. 178; 6 ChL Leg. News, 355; 8 Amer. Law Eev. 779; 31 Leg. Int. 261; Fed. Cas. 14,376. 50. An act of bankruptcy, as contem- plated by section 39 of the act of 1867, is not committed when a railroad corporation gives a mortgage of aU its franchises, lands and other property to secure the equal payment of its unsecured indebtedness. Id. 57. A petitioning creditor alleged that his debtor had transferred property with intent to delay his creditors; the answer and proof showed that mortgages were given to secure a loan to enable him to relieve his stock in business from an attachment and to con- tinue business. Held, that as the mortgages were based on a present consideration, and were neither given nor received with intent to delay creditors, they did not constitute an act of bankruptcy. In re Sanf ord, 7 N. B. E. 353; Fed. Cas. 13,310. 58. Where a deed of trust executed De- cember 8, 1866, by a bankrupt who did not file his petition till June 8, 1867, was not re- corded until March 3, 1867, held, that the recording within four months of the com- mencement of bankruptcy proceedings was not an act of bankruptcy, for the deed was operative from its date, and the act of the creditors in recording it was not the act of the bankrupt. In re Wynne, 4 N. B. E. 5; Chase, 327; 3 Amer. Law T. Eep. Bankr. 116; Fed. Cas. 18,117. 59. A petition was filed against a minor who had committed an alleged act of bank- ruptcy by giving, with intent to prefer, a chattel mortgage to secure a claim, and who, after becoming of age, filed a petition of vol- untary bankruptcy, in which he confirmed the former proceedings and asked the bene- fit of the bankrupt act. Held, that the pro- ceedings while he was an infant were void, and that his confirmation did not operate as affirmance of the debt on which they were based. In re Derby, 8 N. B. E. 106; 6 Ben. 233; 6 Alb. Law J. 433; Fed. Cas. 3,815. (b) Suspension of Commercial Pa/per. 60. The suspension of payment by a man- ufacturing company and non-resumption of payment within fourteen days does not of itself constitute an act of bankruptcy under ACTS OF BANKRUPTCY, II, (b). the act of 1867. In re Jersey City W. G. Co., 1 N.B. R.113;7Amer. Law Reg. (N. S.) 419; 1 Amer. Law T. Rep. Bankr. 61 ; Fed. Cas. 7,393. 61. A suspension of payment of commer- cial paper for fourteen days is not, in the ab- sence of fraud, an act of bankruptcy under the act of 1867. In re Leeds, 1 N. B. R. 138; 35 Leg. Int. 140; 1 Amer. Law T. Rep. Bankr. 78; 7 Amer. Law Reg, (N. S.) 693; 6 Phila. 468; 15 Pittsb. Leg. J. 361; Fed. Cas. 8,305. 6 2 . Unless fraudulent, a stoppage and non- resumption of payment of commercial paper for fourteen days is not an act of bankruptcy under the act of 1867. If the act be fraud- ulent, this must be alleged distinctly in the petition and affidavits. If fraud be not al- leged, an order to show cause should be re- fused. In re Cone et al., 3 N. B. R. 31 ; 3 Ben. 503; Fed. Cas. 8,095. 63. Mere stoppage and non-resumption of payment, in the absence of fraud, for four- teen days, is not sufficient to constitute an act of bankruptcy under the act of 1867, nor is fraud inferable therefrom. Gillies v. Stone et al., 2 N. B. R. 10. 64. The non-payment of a single piece of conunercial, paper is not an act of bank- ruptcy under the act of 1867, as there is a defense to it; but where such suspension is chronic, or there is an inability to meet notes as they mature, there is such a suspension as the law contemplates; and even though there may be but a single piece of paper fourteen days past due, the maker may be adjudged bankrupt. McLean et al. v. Brown et al., 4 N. B. R. 188; Fed. Cas. 8,880. 65. In a mercantile community the non- payment of a note at maturity by the maker, who is a merchant or trader, is prima fade evidence of insolvency, and warrants a de- cree in bankruptcy (act of 1867). In an agri- cultural community the rule is different, and no man is suspected of being insolvent from the fact alone that his notes are not paid at maturity. Shaffer v. Fritchery et al., 4 N. B. E. 179; Fed. Cas. 12,697. 66. A mere accommodation indorser can- not, under the act of 1867, be adjudged bank- rupt for non-payment of such paper. In re Clemens, 9 N. B. R. 57; 3 Dill. 583; 21 Pittsb. Leg. J. 30; Fed. Cas. 2.877. 67. It is no act of bankruptcy, under the act of 1867, for a debtor to suspend payment of commercial paper for fourteen days, when at the time of such suspension he was en- joined by the bankrupt court from making any transfer or disposition of his property. In re Pratt, 9 N. B. R. 47; 6 Ben. 165; 21 Pittsb. Leg. J. 83; Fed. Cas. 11,369. 68. Under the act of 1867 a debtor cannot be said to have suspended payment of his commercial paper when he refuses payment of a note because he believes that he has a good defense, if it also appear that he is a person of property, engaged in business; that he has not suspended payment of his debts and commercial paper generally, and that suit on the said note is pending in a state court. In re Manheim, 7 N. B. E. 342; 6 Ben. 370; Fed. Cas. 9,038. 69. Where a party shows there is reason- able doubt of his liability on a note for the non-payment of which his adjudication in bankruptcy is sought, accompanied vsdth evi- dence of a condition of solvency in fact and the payment of all other just claims and com- mercial paper, and showing that the non- payment complained of was because he did not owe the debt, and that no demand had ever been made for the payment upon him, a court of bankruptcy should dismiss the petition. In re Munn, 7 N. B. E. 468; 3 Biss. 443; 7 Amer. Law Rev. 751; Fed. Cas. 9,935. 7 0. The suspension referred to in the bank- ruptcy act (1867) is a general suspension of commercial paper, and not the refusal to pay paper in respect to which liability is denied, and the bankrupt court will not sit to try the validity of the reasons alleged for the non- payment of the paper in respect to which the liability is denied. In re Hercules M. L. Assur. Soc, 6 N. B. R. 338; 6 Ben. 35; 6 Alb. Law J. 358; Fed. Cas. 6,403. 7 1 . Suspension of payment of commercial paper, and non-resumption for fourteen days, is not an act of bankruptcy under the act of j 1867 when the debtors have secured exten- 1 sions from all but one of their creditors. Doan V. Compton, 2 N. B. R. 183; Fed. Cas. 3,940. 72. The non-payment of promissory notes that are not commercial paper is no ground for the adjudication of a debtor as an in- voluntary bankrupt under the act of 1867. In re Lowenstein et aL, 3 N, B. E. 99; 1 Chi, Leg. News, 123; Fed. Cas. 8,574 8 ACTS OF BANKRUPTCY, II, (c) — ADJOUENMENT, L 73. Tlie McD. P. B. Co. gave their promis- sory notes as a loan payable to the order of W., and also a receipt or due-bill payable to B. The petitioner set up that the respond- ents suspended payment for fourteen days. Held, the instruments referred to did not comprise commercial paper as intended by the thirty-ninth section of the bankruptcy act of 1867. In re McDermott Patent Bolt Co., 3 N. B. E. 33;. 3 Ben. 369; Fed. Cas. 8,750. 74. In the absence of any demand of pay- ment, it is not an act of bankruptcy, under the act of 1867, to have failed for forty days to pay a note payable one day after date. In re Wolf, 17 N. B. E. 423; 4 Sawy. 168; Fed. Cas. 17,938. 75. A debtor who had ceased to be a trader executed a note for a debt created when he was a trader. The payee filed a pe- tition in bankruptcy against the debtor on the ground that, being a trader, he had fraud- ulently stopped payment of his commercial paper, neld, that the non-payment was not an act of bankruptcy under the act of 1867, as the law requires that the debtor be a trader at the time of making the note. In re Jack, 13 N. B. E. 396; 4 Amer. Law Eec. 453; 1 "Woods, 549; Fed. Cas. 7,119. 76. After dissolution of the firm, a solvent partner, closing it up as soon as discovered unprofitable, gave to one of the creditors who had assisted in starting and dissolving the firm, and by way of settlement, notes which, at the time of the filing of the peti- tion, were overdue more than fourteen days. Hdd, under the act of 1867, not a suspension of commercial paper, the defendant not being a merchant. In re Weaver, 9 N. B. E. 133; Fed. Cas. 17,307. 77. Under the act of 1867 a debtor does not commit an act of bankruptcy who stops payment of his commercial paper long be- fore the passage of a bankrupt act and does not resume thereafter. Mendenhall v. Car- ter, 7 N. B. E. 330; Fed. Cas. 9,436. (c) Trwnsfer of Property. 78. Suffering a sale to take place from in- ability to resist is not an act of bankruptcy, even if by so doing one creditor be preferred to another. Eankin et aL v, Florida, etc. E. E. Co., 1 N. B. R. 196; 1 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 11,567. 79. An instrument which purports to transfer accounts, but which bears no reve- nue stamp, is void and does not constitute ah act of bankruptcy. Welch v. Dunham, 3 N. B. R. 9; 3 Ben. 488; 1 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 4,143. 80. An unexecuted agreement by a rail- road company to transfer certificates of stock is not an act for which it can be forced into bankruptcy. Winter v. Iowa, M. & N. P. R. R. Co., 7 N. B. R. 389; 3 Dili 487; 6 West. Jut. 563; 5 Chi Leg. News, 74; 6 Alb. Law J. 358; Fed. Cas. 17,890. 8 1 . On proceedings in bankruptcy against a firm alleging that a conveyance made by one of the partners of his individual prop- erty was intended to defraud or give a pref- erence to firm creditors, Tidd not an act of bankruptcy by the firm, and that the pro- ceeding must be against the conveying part- ner alone. In re Redmond & Martin, 9 N. B. R. 408; Fed. Cas. 11,633. 82. Where a stock of goods was sold to a 6owa fd& purchaser, and there is no evidence that the vendor was insolvent at the time, but it appearing on the trial that the pur- chaser had previously tried to buy the stock, and that the vendor had refused, but finally sold because he wished to change his busi- ness, TieM, that an adjudication would not be made on an involuntary petition setting up the sale of the stock as the only act of bankruptcy. In re VaUiquette, 4 N. B. R 93; Fed. Cas. 16,833. ADJOURNMENT. L POWEK OP. IL Effect op. IIL Failueb to Take. IV. iNTBEVEiNTION. V. Appearance After. See Costs and Fees, 123; Evii»encb, 7; Ex- amination OP Bankrupt, 55; Meetings, 5, 7; Referee, 2, 17, 18. I. Power of. 1. Registers, with the exercise of proper legal discretion, have entire control over pro- ceedings pending before them, including tha ADJOURNMENT, II-V— ADJUDICATION, L power to grant or refuse adjournments and postponements. In re Hyman, 3 N. B. E. 107 ; 3 Ben. 88; 86 How. Pr. 282; Fed. Gas. 6,984 2. Where, on due return of warrant by marshal in a case of involuntary bankruptcy, bankrupts asked for further time to prepare schedules, as the number of creditors and non-adjustment of accounts 'had prevented their completion, the register should have adjourned to a day certain. In re Sohepeler et al., 3 N. B. E. 42: 8 Ben. 846; Fed. Cas. 13,452. 3. When a party is aggrieved by the reg- ister's ruling on his application to prove his right to vote, the court may re-open the meeting and adjourn it, and provide for the determination of questions of the right to vote before the final vote is taken. In re Spencer, 18 N. B. E. 199; Fed. Cas. 18,329. 4. A warrant was issued in a case return- able on the 15th of September, but because of yellow fever the register was prevented from attending at that time. He made orders of adjournment and forwarded them to his assistant, he being absent from the city. Seld, that the register had no authority to so adjourn a meeting and a new warrant must issua In re Dickinson, 18 N. B. E. 514; 26 Pittsb. Leg. J. 148; Fed. Cas. 3,895. II. Effect of. 5. The examination of the bankrupt may be adjourned beyond the return day of the order to show cause why the discharge should not be granted. Such adjournment neces- sarily operates as an enlargement of the time for the examination of the bankrupt, and should not be granted except for good cause shown. In re Mawson, 1 N. B. E. 41 ; 1 Amer. Law T. Eep. Bankr. 46; Fed. Cas. 9,330. 6. If there be an adjournment the witness must be paid for another day's attendance before he is bound to attend on the adjourned day. InreCriffln, IN. B. E. 83; 3Ben. 309; Fed. Cas. 5,810. 7. A defendant who, on return day of rule to show cause why he should not be adjudged a bankrupt, appears but neither files plea, de- murrer or demand for trial by jury, but ob- tains a continuance, is not entitled on the day to which the case is continued to demand trial of issues by a jury, but the court may permit plea to be filed and to be tried by the coui-t In re Sherry, 8 N. B. E. 143. 8. There can be only one first meeting, and all adjournments are a continuance of the same. If objection to the appointment of an assignee is made at that stage, it is considered as continuing, and the register cannot appoint unless the objection is actually withdrawn. In re Norton, 6 N. B. E. 397; Fed. Cas. 10,348. III. Failtiee to Take. 9. Where parties to bankruptcy proceed- ings appear on the return day, or adjourned day, and join issue, and no further proceed- ings or adjournment is had, the case is to be considered as pending from day to day until disposed of. In re Buchanan, 10 N. B. E. 97; Fed. Cas. 3,073. IV. Inteevention. 10. The adjourned day on which, if the petitioning creditor does not appear and pro- ceed to an adjudication, another creditor may appear and prosecute, is any day to wbich the proceedings on the order to show cause may be adjourned for the purpose of inquiring into the allegations of the acts of bankruptcy. In re Lacey, Downs & Co., lO N. E. E. 477; Fed. Cas. 7,965. Y. Appearance Aftee. 11. An appearance for a creditor in oppo- sition to the discharge entered on the ad- journed day of the hearing on the order to show cause is not too late. In re Seabury, 10 N. B. E. 90; Fed. Cas. 13,573. ADJUDICATIOM". 1 Petition fob. IL Pabties. HL Vacation. IV. In Geneeau See Appeal and Wkit of Ereoe, 1 ; Attoe- NET, 7; DiscHAEGE, 164; Exemptions, 113; Feaud,1-5; Injunction, 73; Insan- ity, 4; Liens, 69; Paetnees, 36, 30, 47; Petitions, 69; Pleading and Practice, 61, I. Petition foe. 1. Proceedings instituted by creditors were dismissed before adjudication. After- ward, without further notice, the proceed- 1-0 ADJUDICATION, II, IIL ings were reinstated against one debtor. Seld, that such reinstatement is without authority and an adjudication following it is void. Gage et aL v. Gates, 15 N. B. E. 145. 2. Where one partner filed a voluntary- petition, it is not necessary to adjudication of the firm that there should be an act of bankruptcy. In re Noonan, 10 N. B. E. 330; 3 Biss. 491; 5 Chi. Leg. News, 557; Fed. Cas. 10,392. 3. Adjudication relates back to time of filing petition, and notes sold by bankrupt before adjudication and after filing can be recovered. In re Lake, 6 N. B. E. 543; 3 Biss. 204; Fed. Cas. 7,993. 4. A debtor commits act of bankruptcy when he filed voluntary petition for adjudica- tion, and a creditor cannot resist by proof that debtor is really able to pay debts. In re Fowler, 1 N. B. E. 680 (8vo. ed.). 5. A debtor will not be adjudicated a bankrupt simply because, after selling his property for the purpose of going into a new business, he does not put the proceeds into tangible shape to prevent the same being seized on process issued out of a state court. Fox V. Eckstein, 4 N. B. E. 123; Fed. Cas. 5,009. 6. In answer to an order to show cause, the burden is on the respondent to prove that the facts in the petition are not true, in order to defeat an adjudication of bankruptcy. In re Price et aL, 8 N. B. E 514; Fed. Cas. 11,411. 7. An adjudication of bankruptcy is not conclusive evidence, as against an execution creditor, as to the allegations in the petition found to be true by such decree. In re Dunkle et aL, 7 N. B. E. 72; Fed. Cas. 4,160. 8. An adjudication and assignment there- under relate back to the filing of the petition and vest the property of the bankrupt, as of the date of such filing, in the assignee (act of 1867). In re Coulter, 5 N. B. E. 64; 2 Sawy. 43; 1 Amer. Law T. Bankr. 257; 3 ChL Leg. News, 377; 4 Amer. Law T. 131; Fed. Cas. 3,276. 9. As all creditors are parties to and are bound by proceedings that are regular, an adjudication and proceedings which are not made and carried on within the proper juris- diction should be set aside. In re Fogarty et aL, 4 N. B. E. 148; 1 Sawy. 233; Fed. Cas. 4,895. 10. Adjudication of bankruptcy may be made against one partner only upon joint debt.. In re Melick, 4 N. B. E. 36; Fed. Cas. 9,399. 11. An attaching creditor, though not a party to proceedings, may contest adjudica/- tion, on the ground that the requisite num- ber and amount of creditors have not joined in the petition. In re Hatje, 13 N. B. E. 548; 6 Biss. 436; Fed. Cas. 6,315. II. Paeties. 12. The rights of parties in a proceeding in bankruptcy are fixed at the date of adju- dication. In re Kerr et aL, 9 N. B. R. 566; Fed. Cas. 7,729. 13. An existing adjudication in bank- ruptcy precludes aU inquiry touching the validity of the debt of a petitioning creditor. In re Fallon, 3 N. B. R 92; 1 ChL Leg. News, 107; Fed. Cas. 4,628. 14. The assignee in bankruptcy of a mort- gagor stands in the position of a judgment creditor, the adjudication being equivalent to recovery of judgment and a levy. Miller, Ass., V. Jones, 15 N. B. E. 150; Fed. Cas. 9,576. 15. Before petition for adjudication was filed, execution was issued and a levy was made on the real estate of the judgment debtor sufficient to satisfy the debt. Held, that the creditor was not estopped from pro- ceeding in the bankrupt court, but the levy was held to be waived. In re Sheehan, 8 N. B. R 345; Fed. Cas. 12,737. III. Yacation. 16. A creditor who had not proved his claim moved to set aside the adjudication of bankruptcy against his debtor. flisZd, that his interest entitled him to be heard. In re Derby, 8 N. B. R 106; 6 Alb. Law J. 433; 6 Ben. 232; Fed. Cas. 3,815. 17. An order to show cause why adjudi- cation should not be set aside, because act of bankruptcy charged was committed more than six months before filing petition. The court on review so ordered. In re Eaynor, 7 N. B. E. 527; 11 Blatohf. 43; Fed. Cas. 11,597. 1 8 . An order to show cause why proof of a debt against a bankrupt should not be va- cated and canceled must be made by the court. Comstook v. Wheeler, 2 N. B. R 171; 3 Amer. Law T. Eep. Bankr. 87 ; Fed, Cas. 3,084 ADJUDICATION, IV. 11 19. In an action in a state court brought by an assignee to recover property, averring title in himself by virtue of his appointment, the defendant set up its purchase from the bankrupt, and denied that he was a bank- rupt or had ever been legally adjudicated. Held, that defendant was entitled to estab- lish that the adjudication was void, and plaintiff's demurrer overruled. Stuart v. Aumueller, 8 N. B. R 541. 20. A petition was filed against the debtor, who made default. Creditors sought to con- test the adjudication. Held, that they could not, but they might suggest suspicious cir- cumstances, and the court would direct a reference of the petition to take proof of the matters alleged therein. In re Hopkins, 18 N. B. R. 396; 36 Pittsb. Leg. J. 130; Fed. Cas. 6,684. 21. The proceediiig by a petitioning cred- itor to force his debtor into bankruptcy is inter partes, like an ordinary action at law, and until the adjudication is had they are the only parties. No outside creditor has a right to resist the adjudication or to ask that it be annialled. In re Bush, 6 N. B. E. 179; 6 West. Jur. 374; Fed. Cas. 3,833. 22. Bankrupt was adjudicated June, 1878. Creditor petitioned to vacate adjudication March, 1879. Held, that she was put on in- quiry by notice of adjudication, and failure to make inquiries was evidence of acquies- cence. In re Meade, 19 N. B. R. 335; Fed. Cas. 9,370. 23. Upon a voluntary petition alleging that the bankrupts composed the firm of G. & W. they were adjudicated. Two years later it was held that one A. was a general partner in the firm. Afterwards a petition was filed to set aside the adjudication. Held, that as rights of other parties had arisen tmder and adapted to it, the application should be denied. In re Griffith et al., 18 N. B. R. 510; §6 Pittsb. Leg. J. 140; Fed. Cas. 5,820. 24. In an application for an order annul- ling the adjudication no notice was served on the bankrupt himself. Held, this objec- tion vital In re Bush, 6 N. B. R. 179; 6 West. Jur. 374; Fed. Cas. 3,333. 25. Where the record shows jurisdiction, an adjudication cannot be assailed in a col- lateral action. Sloan v. Lewis, 13 N. B. R 178; 33 Wall 150. lY. In General. 26. Without the entry of an order of ad- judication a debtor cannot be considered as having been adjudged bankrupt. In re Hill, 10 N. B. R. 183; 1 Amer. Law T. Rep. (N. S.) 431; 20 Int. Rev. Reo. 81; Fed. Cas. 6,484. 27. The petition, the adjudication and the assignment vest the assets in the assignee as a trust, against which the statute of limita- tions ceases to run. In re Eldridge et al., 13 N. B. E. 540; 3 Hughes, 356; 1 N. Y. Wkly. Dig. 243; Fed. Cas. 4,881. 28. An adjudication sweeps within the purview of the bankrupt court all property of the debtor, whether incumbered or not, and no steps can thereafter be taken to en- force claims against the property, except through the bankrupt court, or by its per- mission in the state court. In re Hufnagel, 13 N. B. R. 554; Fed. Cas. 6,837. 29. The adjourned day on which, if the petitioning creditor does not appear and pro- ceed to adjudication, another creditor may appear and prosecute, is any day to which the proceedings on the order to show cause may be adjom-ned for inquiring into the al- legations of the -acts of bankruptcy. In re Lacey et ak, 10 N. B. R 477; Fed. Cas. 7,965. 80. Where a petitioner in bankruptcy fails to attend before the register on the day fixed in the order of reference, he may, nevei-- theless, be adjudicated a bankrupt within a reasonable time thereafter. In re Hatcher, 1 N. B. R 91; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 6,210. 31. Where it is proved that the bankrupt has been imprisoned but seven days exclu- sive of the first day, this of itself is not suffi- cient to support an adjudication of bank- ruptcy under the act of 1867. Hunt et aL v. Pooke et aL, 5 N. B. R 161; Fed Cas. 6,896. 32 . Order of adjudication only takes effect from time it was produced in court and pro- mulgated. In re Boston H. & E. R. R. Co., 6 N. B. E. 333; 9 Blatchf. 409; Fed. Cas. 1,678. 33. An adjudication of bankruptcy is not a conclusive finding which tends to defeat the jurisdiction of the court over the bank- rupt. In re Goodfellow, 8 N. B. R. 114; 1 Lowell, 510; 3 Amer. Law T. Rep. Bankr. 69; 1 Amer. Law T. Rep. Bankr. 179; Fed. Cas. 5,536. 12 ADMINISTRATION— AGENT, 1, 11 34. By adjudication the bankrupt's prop- erty becomes exempt from subsequent at- tachment on mesne process. Williams v. Merritt, 4N. B. E. 706 (8vo. ed.). ADMINISTBATIOH". See Estates. ADMINISTRATOB. See Costs amd Fees, 95; Paetnees, 189. ADMISSION. 1. Even when a debtor has signed a writ- ten admission that the requisite quorum has united in the petition, the court must still be satisfied that the admission is made in good faith. In re Flanagan, 18 N. B. R. 439; 36 Pittsb. Leg. J. 138; Fed. Cas. 4,850. 2. A petition was accompanied by a paper purporting to be signed by debtor to the ef- fect that the " debtor admits that the requi- site number and amount of his creditors have joined in the petition,'' etc. Held, that the absence of the allegation as to the num- ber and amount of the ci'editors in the peti- tion is not supplied by the admission of the debtor presented, and that, even after such admission is made in writing, the court must be satisfied that the admission was made in good faith. In re Keeler, 10 N. B. R. 419; 20 Int. Rev. Reo. 82; Fed. Cas. 7,638. ADVANCES. See Liens, 134; Pkefeeences, 366, 267; Tktjst, 1; Wages, 2. ADVERTISEMENT. See Notice, IX. AFFIDAVITS. See Examination op Bankrupt, 75; Peti- tion, VIIL 1. Affidavits must be correctly entitled in the cause in which they are used, otherwise an indictment for perjury would not lie upon them if false. In re Walther & Walther, 14 N. B. R. 373; Fed. Cas. 17,136. 2. Affidavits taken under the act of 1867 before notaries public could not be read in matters pending before a United States bank- ruptcy court. In re McKibben, 13 N. B. R. 97; Fed. Cas. 8,859. 3. Register has power to take affidavit and deposition in cases not before him at any time after petition filed. In re Deane, 3 N. B. R. 39; Fed. Cas. 3,700. AFFIRMATIONS. See Oaths. AGENT. 1 Ban:k. IL Claim. III. Bailment. IV. In General. See Banks, 40; Claims, 13, 22; Definitions, 3; Discharge, 290, 294; Fiduciary Debt, 3; Estates, 232; Petition, 119; Prefer- ence, 197; Set-opp, 13; Trustee, 54 I. Bank. 1. Certain stocks were sold by J. C. & Co. as brokers, the proceeds being deposited in a bank and regularly entered in the bro- kerage books of account. At the failure of J. C. & Co. there remained in the bank to their credit more than enough to pay the brokerage accounts. Suit being brought for the proceeds, judgment was awarded the com- plainant. Voight V. Lewis, Trustee, 14 N. B. R 543; 11 Phila. 511; 33 Leg. Int. 403; 9 Chi. Leg. News, 65; 11 Bankers' Mag. (3d S.) 481; 3 N. y. Wkly. Dig. 431; 34 Pittsb. Leg. J. 54; Fed. Cas. 16,989. 2. At law a principal may maintain an ac- tion to recover from a bank the proceeds of a discount of his note which were placed to the credit of his agent, and which the bank at the time of the deposit had no notice it did not belong to the agent. Id. II. Claim. 3. Proof of debt may be made by an agent who knows all the facts required to be sworn AGENT, lit 13 to in proving it, the creditor himself having no personal knowledge thereof. In re Wat- rous et al., 14 N. B. R. 258; 3 N. Y. Wkly. Dig. 130; E. S. 5078; Fed. Cas. 17,370. 4. Motion was made to dissolve injunction on grounds that biU was not sworn to by pe- titioning creditor, but by agent; that cir- cuit court had jurisdiction, and that debtor had been adjudicated a bankrupt, and that such adjudication dissolved the injunction. Held, affidavit of agent sufficient; that under the act of 1867 district courts have juris- diction, and that section 40 is not applica- ble to such injunctions as might be granted between the time of the commencement of proceedings and date of adjudication. In re Fendley, 10 N. B. R. 250; 3 Amer. Law Eec. 105; Fed. Cas. 4,72a 5. "Where a creditor places his claim in the hands of a collection agent, 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 ob- tained by him, although the proceeds are remitted to the collection agent. Hoover, Ass. etc., V. Wise et al., 14 N. B. R 264; 91 U. S. 308. 6. An attorney employed by a collection agent is the agent of the agent and not of the, creditor who employed the agent. Id. 7. Where one constituted attorney for the collection of a debt procured from the debtor a judgment note for the amount in bis own name, and entered it, knowing that the debtor was insolvent, there being an intent to give a preference, though the fact of in- solvency was not directly known to the real creditors, such knowledge is imputable to them and the judgment is invalid. Vogle v. Lathrop, 4 N. B. R. 146; 3 Pittsb. Rep. 368; 18 Pittsb. Leg. J. 106; Fed. Cas. 16,985. 8. To allow an agent to make proof of debt on the ground that the authority from his principal, who is not prevented from testify- ing, is ample, is to declare that creditors hold the provision of the act entirely at their dis- cretion. In re Whyte, 9 N. B. E. 267; Fed. Cas. 17,606. 9. Mere absence from the state where the proof is made is not regarded as cause for proof by an agent. In re Jackson et aL, 14 N. B. R. 449; 7 Biss. 280; Fed. Cas. 7,133. 10. If the contracts for the sale of grain were liable to the taint of illegality, it does not follow that a contract by one of the prin- cipals to secure moneys advanced by their agent to pay losses resulting from those transactions is contaminated with the same vice. Clark, Ass. etc., v. Foss et aL, 17 N. B. E. 361; 7 Biss. 540; Fed. Cas. 3,853. 11. Agent knew that debtor was insolv- ent, and that the notes on which judgment was recovered were executed in fraud of the bankrupt act. It was held that the knowl- edge of the agent bound his principal. Sage, Jr., V. Wynkoop, Ass., 16 N. B. R. 363; Fed. Cas. 12,215. 12. "An agent holding negotiable paper cannot prove it under objection, excepting in the name of the real owner, and therefore not at all when the owner is in a situation to make the proof himself." In re Saunders, 13 N. B. R. 164; 2 LoweU, 444; Fed. Cas. 12,371. III. Bailment. 1 3 . Bankrupt purchased hides with money furnished by claimant under an agreement by which the hides were to be manufactured into leather by the former, the money being remitted by draft, and a portion of the hides concerning which the litigation arose was purchased with the proceeds of drafts which the claimant refused to accept. It was held that the title to the goods was in the claim- ant. Safford et al. v. Burgess, Ass., 16 N. B. R. 402; Fed. Cas. 13,313. 14. If the consignee is at liberty to sell at any price and to receive payment at any time, but is bound, if he sells the goods, to pay the consignor for them at a fixed price and at a fixed time, the relation is not that of principal and agent. In re Chamberlaines, 13 N. B. R. 330; 3 Hughes, 364; 14 Amer. Law Reg. (N. S.) 688; 4 Amer. LawRec. 304; Fed. Cas. 4,855. 15. A was B.'s agent for the manufacture of iron. B. was to own the iron, which was to be sold, and the proceeds, after paying B. certain sums, was to be divided unequally between A., B. and C. A. sold the iron with knowledge of B. and failed to turn over to A. the moneys due him. It was held that the agency was more of a partnership than u AGENT, IV — ALIEN, 1 an agency, and the relations of A. and B. were not of the fiduciary relation compre- hended by section 33 of the act of 1867. Baker v. Sterling, Jr., 17 N. B. R. 318. 16. The lien of a factor for money ad- vanced for his commissions and charges is protected by the bankrupt law. In re Rose- berry et al., 16 N. B. E. 340; 8 Biss. 113; Fed. Cas. 13,052; 3128, R. S. IV. In General. 17. It is not requisite that an agent of creditors in bankruptcy proceedings shall set forth the authority by which he acts. In re California Pac. R. R. Co., 11 N. B. E. 193; 3 Sawy. 240; 2 Cent. Law J. 79; Fed. Cas. 2,315. 18. A married woman did business in her own name by her husband acting as her agent, who managed the same in his discre- tion. She became imable to pay her debts and was adjudged bankrupt. JSeld, the acts of the husband as agent of the bankrupt, his knowledge and intentions, are the acts, knowl- edge and intentions of the bankrupt. Gra- ham, Ass., V. Stark, 3 N. B. R. 92; 3 Ben. 520; Fed. Cas. 5,676. 1 9 . The doctrine that the knowledge of an agent is the knowledge of the principal can- not be doubted. It must be knowledge ao- quii-ed in the transaction of the business of his principal, or in a prior transaction then present to his mind, and which could be com- municated to his principal Hoover, Ass. etc., V. Wise et al., 14 N. B. R. 264; 91 U. S. 308. 20. Previous to the issuing of an 'order to show cause it is essential to show proof of agency, where the particular act of signing the petition was done by agent. But sup- plementary proof may, in the discretion of the court, be received nunc pro tunc to es- tablish the authority of the agent to sign the petition. In re Rosenfleld, 11 N. B. R. 86; 3 Amer. Law Reo. 734; 1 Cent. Law J. 583; Fed. Cas. 13,061. 21. It is not necessary In the purchase of goods by an agent that he give in payment the identical money received from the prin- cipal, in order to vest title in the latter. SaflEord et al. v. Burgess, Ass., 16 N. B. R. 402; Fed. Cas. 12,213. 22. Though there be no actual fraud of the agent, yet if he makes a false representa- tion as to a matter peculiarly within his own knowledge or that of his principal, such prin- cipal, though innocent, cannot take the bene- fit of the transaction. Id. 2 3 . The agent of a deblior who was seeking to effect a composition obtained the same by making false representations. It was held that creditors were not bound by their agree- ment, although the debtor might not have aiithorized the false statements. Elfelt v. Snow, 6 N. B. R. 57; 3 Sawy. 94; Fed. Cas. 4,343. 24. A factor who retains money of his principal is not a fiduciary debtor within the act of 1841. Chapman v. Forsyth, 3 How, 303. 25. A power of attorney authorizing a per- son to appear for a creditor is not required to be acknowledged. In re Powell, 3 N. B. R. 17 j Fed. Cas. 11,354* AGREED CASE. See Cbbtification. ALIEIT. L Jurisdiction Over. 11 In General. See Claims, 59; Courts, 133. I. Jurisdiction Over. 1. The bankrupt act gives no jurisdiction over a member of a firm who resides in Can- ada, though the firm business be carried on in New York. In re Burton et al., 17 N. B. R. 212; 9 Ben. 334; Fed. Cas. 2,314. 2. The law cannot be enforced as to an alien beyond the territorial limits of the United States; but for a violation of its pro- visions within the United States, if the courts obtain jurisdiction of the violators of the law, they may enforce its provisions, al- though they be aliens. Olcott, Ass., v. Mac- Lean et al., 14 N. B. R. 879. 3. If a debtor transfers property in the United States to prefer an alien creditor, the latter is liable to an action by the assignee of the bankrupt in a court of the United States. Id.' ALIEN, II — AMENDMENT, I, (a). 15- II. In Geneeal. 4. , If the United States holds a claim against a firm of which some of the partners are aliens, it may claim priority of payment out of the estate of the individual partners, ■without first resorting to the partnership ef- fects. Lewis, Trustee, v. United States, 14 N. R E. 64; 93 U. S. 618. 5. An alien resident within the United States may take the benefit of the bankrupt law, and need not have resided within the district in which application is made for period of six months. In re Goodfellow, 3 N. R E. 114; 1 Lowell, 510; Fed. Gas. 5,536, ALIMONT. A claim for alimony is not a provable debt, and proceedings to enforce its payment cannot be stayed by the bankrupt court. In re Lachemeyer, 18 N. B. E. 370; 18 Alb. Law T. 243; Fed. Gas. 7,966. AMENDMENT. 1 To PETinON. (a) In OenerdL (b) Partners. IL To Spechtoations of OBJEcnoNa in. To Schedule. IV. Geneeault. See GoNVETANCE, 16; Paetnees, 60; Peti- tions, 69, 104, 117, 139; Prefeeences, 51; Schedule, 87; Statutokt Gonsteuc- TiON, 36, 70, 71. I. To PETITIOlir. (a) In General. 1. "When a petition averred that acts were committed lay the bankrupt in contemplation of bankruptcy and insolvency, and evidence of insolvency only is given, the petition should be amended accordingly. In re . Houghton, 1 N. B. E. 131; Fed. Gas. 6,333. 2. A creditor, after his claim has been duly proved, has a right to ask that petitioner amend any defect in his petition or schedule. In re Jones, 3 N. B. E. 30; Fed. Gas. 7,447. 3. The court has jurisdiction when a peti- tion is filed, notwithstanding, the insuffi- ciency of verification, and therefore power I to allow amendment. In re Simmons, 10 N. B. E. 353; Fed. Gas. 13,664. 4. Amendment that would introduce into- petition new acts of bankruptcy will not be allowed. In re Growley, 1 N. B. E. 137. 5. A petition that a debtor may be de- clared a bankrupt, if defective, may be amended after argument and before the judg- ment of the court therein. In re Waite et al., 1 N. B. E. 84; 1 LoweU, 207; Fed. Gas. 17,044 6. A petition in bankruptcy was filed by a creditor not representing one-fourth in number and one-third in amount of the cred- itors, after the amendment of 1874, but when neither the creditor nor the court had reli- able information as to the amendment. The petition was dismissed, it being held that other creditors could unite by amendment only in oases commenced before the amend- atory act. In re Burch, 10 N. B. E. 150; Fed. Gas. 3,138. 7. A petition in bankruptcy was filed. It appeared that the debtor, being insolvent, suffered his property to be taken on legal' process with intent to give a preference, which act he might have prevented by going into bankruptcy. An adjudication of bank- ruptcy would have been rendered but for the fact that the petition did not allege the act of sufferance to have been done when the debtor was insolvent. An amendment of the peti- tion was allowed. In re Graft, 1 N. B. E. 89; 3 Ben. 314; Fed. Gas. 3,316. 8. A petition in bankruptcy alleged that a corporation had suspended payment of its commercial paper and had not resumed within fourteen days. There was no allega- tion that the suspension and non-resumptioa were fraudulent. The adjudication as asked was refused, and the petition was allowed to- be amended by inserting the word " fraudu- lent." In re Jersey G.' W. G. Go., 1 N. B. E. 113; 7 Amer. Law Eeg.^N. S.) 419; 1 Amer. Law T. Eep. Bankr. 61 ; Fed. Gas. 7,393. 9. .It was not intended that the statute permitting amendments to petitions should allow creditors, who have recklessly sworn to a petition knowing it to be false, to then have others join in and carry it on. In re Keller et al., 18 N. B. E. 10; 7 Ghi. Leg. News,. 42; 9 West. Jur. 175; Fed. Gas. 7,647. 10. The district court, in allowing amend- ments to petitions, should be governed by the- 16 AMENDMENT, I, (b), II-IV. same principles as those which govern the allowance of amendments in similar cases in other courts, but amendments which would, introduce entirely new acts of bankruptcy will be disallowed. In re Reed et aL, 1 N. B. R. 137; 1 Amer. Law T. Rep. Bankr. 79; Fed. Cas. 11,644. 11. Special reasons are required for the allowance of amendments in sworn petitions, or in other pleadings which are required to be verified by the oath of the party; and where the object is to introduce new facts or to change essentially the grounds of the prosecution or defense, the courts are disin- clined to allow such amendments except for very special reasons, and in cases where tliey are clearly required in furtherance of jus- tice, and are applied for without imreason- able delay. Id. 12. It should be satisfactorily shown that the allegations sought to be added by an amended petition are probably if not cer- tainly true; that they, are material; that the party has been guilty of no gross negligence; that the mistakes to be corrected or the new facts to be alleged have been ascertained since the original petition was sworn to, and that the application to amend was made without unnecessary delay. Id. (b) Pa/riners. 13. One partner filed a petition against his copartner, but omitted to state the resi- dence of his copartner. It was held that such omission might be supplied by amend- ment. In re Vanderhoef et aL, 18 N. B. B. 643; Fed. Cas. 16,841. 14. A bankrupt may amend his petition after adjudication so as to bring in his co- partner in order to effect a discharge of copartnership debts. In re Little, 1 N. B. R. 74; 2 Ben. 86; 15 Pittbs. Leg. J. 268; Fed. Cas. 8,390. II. To Specifications. 15. Incomplete specifications in opposi- tion to a discharge in bankruptcy may be amended. In re Mclntire, 1 N. B. R. 115; 1 Amer. Law T. Rep. Bankr. 130; Fed. Cas. 8,823. III. To Schedule. 16. Material additions to the schedule of debts or of property are not allowable by way of amendment after the first meeting of creditors, except upon such conditions as may prevent injustice. In such cases the issuing of an alias warrant will be required. In re Ratcliflfe, 1 N. B. R. 98; 35 Leg. Int. 92; 6 Phila. 466; 1 Amer. Law T. Rep. Bankr. 47; 15 Pittsb. Leg. J. 343; Fed. Cas. 11,578. 17. The bankrupt sought to amend his schedule by adding to the list twenty other debts. The court held that there had been culpable laxity, and refused to allow the- amendment, except upon such terms as should' prevent injustice to creditors. In re Morgenthal, 1 N. B. R. S8; 38 Leg. Int. 93; 6 Phila. 468; Fed. Cas. 9,813. 18. When there has been culpable laxity, an amendment to the schedule wiU not be permitted to be made by the bankrupt. Id. 19. Bankrupt may amend his schedules even after the consideration of specifications in opposition to his discharge. In re Preston, 3 N. B. R. 37; Fed. Cas. 11,393. 20. An application of a bankrupt to amend his schedules is an ex parte one and the reg- ister has power to allow him to do so. In re Watts, 3 N. B. R. 145; 3 Ben. 166; Fed. Gas. 17,293. 21. Counsel for the bankrupt presented a proposed amendment introducing six judg- ment creditors. The first meeting of cred- itors had been held. The register reported that the amendment should be made condi- tioned upon the issuing of a new warrant. The court accepted the register's report. In re Ratcliflfe, 1 N. B. R. 98; 25 Leg. Int. 93; 6 Phila. 466; 1 Amer. Law T. Rep. Bankr. 47; 15 Pittsb. Leg. J. 343; Fed. Cas. 11,57a lY. Geneeallt. 22. The bankrupt court possesses discre- tionary power as to allowing proofs of debt to be amended. In re Parkes, 10 N. B. R. 83; Fed. Cas. 10,754 23. To the end that justice may be done to all parties, great latitude of amendment will be permitted up to discharge in bank- ruptcy. In re Pierson, 10 N. B. R. 193; Fed. Cas, 11,154. 24. An amendment by which assignee was made a plaintiff two years did not have effect to relate back and thereby defeat stat- ute of limitations. CogdeU, Ass., v. Exum, 10 N. B. R. 337. ANSWER — APPEALS AND WRITS OF ERROR, L 17 25. Every court has power to alter and amend its records during the term to which the record relates; and an appellate court is bound to presume that evidence in support of amendment was sufficient. The jurisdic- tion of the circuit court is revisory, and a party cannot come there to make his case in the first instance. Ala. & Chatt. R. R. Co. v. Jones, 7 N. B. R 145; Fed. Gas. 137. 26. The court has discretion to permit amendments to be made at any tima It is discretion limited to same cause of action, and should not permit new causes of action under guise of amendment. In re Leonard, 4 N. B. R. 183; Fed. Gas. 8,355. ANSWER. See Pleading and Peactice, XV, (g). APPEALS AMD WRITS O^B" ERROR. L In General. n. To CiRctnT Court. m To STTFBEME COtTBT. See Claims, 29, 159; Composition, 33; Dis- charge, 215; Pleading and Practice, 206, 213, 318; Trustee, 103. I. Lt Geneeal. ' 1. The bankruptcy of a party, though ad- judged before his taking an appeal, will not prevent its prosecution in his name, and the appeal may be heard either in the name of the bankrupt or his assignee. O'Neil v. Dougherty, 10 N. B. R. 294 2. A writ of error from a decree rendered against a bankrupt sued out by his assignee is a suit within the meaning of the act of the law and must be brought within two years. Jenkins v. Bank, 106 U. S. 571. 3. The failure to give notice to an assignee in bankruptcy of an appeal from a decree in his favor is fatal to the appeal in proceedings under section 5081, Revised Statutes, for a re- examination of a claim filed against the bank- rupt's estate. Ex parte Meade, 109 U. S. 230. 4. A claim of immunity under section 711, Revised Statutes, from the operation of a de- cree by a state court, where the defendant became a bankrupt during the pendency of the suit, and his assignee was made a party and appeared in his stead, presents a federal question on which a writ of error may be taken. Winchester v. Heiskell, 119 U. S. 450. 5. If a defendant be adjudged bankrupt after he has taken an appeal, an affirmance of the judgment, in the absence of a sugges- tion of his bankruptcy, is not a nullity. Flanagan v. Pearson, 14 N. B. R. 37. 6. Where notice of appeal is filed in due time, the period for filing the transcript may be enlarged by stipulation. Baldwin, Ass., V. Rapplee, 5 N. B. R. 19; Fed. Gas. 803. 7. A petition for revision of a decree of the United States district court in the United States circuit court must be filed within ten days from the entry of the order or decree sought to be revised, unless the time is en- larged by leave of the court (act of 1867). Sweatt V. Boston, H. & E. R. R Co., 5 N. B. R 234; 3 ClifE. 339; 1 Amer. Law T. Rep. Bankr. 273; 4 Amer. Law T. 174; 6 Amer. Law Rev. 168; Fed. Gas. 13,684 8. Where an appeal is taken by one of the lien creditors in open court during the term in which the decree appealed from is ren- dered, no citation of other parties is neces- sary. Milner, Jr., v. Meek, Ass., et aL, 17 N. B. R 83; 95 U.S. 353. 9 . A discharge obtained pending an appeal cannot be pleaded in an appellate court Such court takes cognizance only of the mat- ters appearing on the record of the court below. Serra e Hijo v. Hoffman & Co., 17 N. B. R 124. 10. An assignee in bankruptcy may ap- peal from an award of arbitrators under the compulsory arbitration law without the pay- ment of costs. Morss v. Gritmann, Ass., 10 N. B. R 132. 11. An appeal by one of two parties against whom a joint decree is rendered will be dismissed unless the record show that the other party has been notified in writing to appear and has failed, or has refused to join. Masterson, Ass., v. Howard et aL, 5 N. B. R 130; 18 Wall. 99. 12. A case wrongfully appealed should be dismissed, except where such dismissal would give full force and effect to an irregular and 18 APPEALS AND WRITS OF EEROE, IL erroneous decree of the subordinate court, entered in a case over which the court has no jurisdiction and in violation of legal and constitutional rights. Stickney, Ass., v. Wilt, 11 N. B. R. 97; 23 Wall. 150. 13. The court overlooked specifications filed by a creditor and granted a discharge without considering them. The court held it was a proper subject of review by the cir- cuit court (act of 1867). In re Buohstein, 17 N. B. R. 1; 9 Ben. 215; Fed. Gas. 3,076. 14. An appeal to the appellate court can- not be used to give a party a second trial, but only for re-examination and revision of rul- ings, orders and decrees. In re Dow, 6 N. B. R. 10; Fed. Gas. 4,036. 15. The burden of proof is upon the peti- tioner for review to show error in the decis- ion appealed from. Id. II. To OlECUIT COUET. 16. In reviewing a decision of the district court on a question of fact, it is for the peti- tioner to satisfy the court that a wrong de- cision has been arrived at. In re Mooney, 15 N. B. R. 456; 14 Blatchf. 304; Fed. Gas. 9,748*. 17. Appeal is not the proper method to take a question arising in a case in bank- ruptcy to circuit court, and is not provided for "by bankrupt act (1867). In re Eeed, 3 N. B. R. 2; Fed. Gas. 11,688. 18. Effect of appeal to United States cir- cuit courts (act of 1867). Benjamin, Ass., v. Hart, 4 N. B. R. 188; 4 Ben. 454; Fed. Gas. 1,303; In re Place et al., 4 N. B. R. 178; 8 Blatchf. 303; Fed. Gas. 11,200; In re Gasey, 8 N. B. R. 71; 10 Blatchf. 376; Fed. Gas. 2,495; In re York et al., 4 N. B. R 156; Fed. Gas. 18,139; In re Alexander, 3 N. B. R. 6; Ghase, 295; Fed. Gas. 160; In re Kyler, 3 N. B. R 11; 6 Blatchf. 514; Fed. Gas. 7,957; Ruddick v. Billings, 3 N. B. R. 14; Woolw. 330; Fed. Gas. 13,110; Meadv. Thompson, 8 N. B. R. 539; 15 Wall. 635; Scammon, Ass., v. Gole et al., 5 N. B. R. 257; 3 Cliff. 472; Fed. Gas. 13,483; Sampson, Ass., v. Blake et al., 6 N. B. R. 401 ; Fed. Gas. 13,384. 19. On appeal to circuit court from an order disallowing proof of debt against the estate of a bankrupt, held, that the claim presented in the circuit court must be the same that was presented to the district court. In re Jaycox, 13 N. B. R. 123; 13 Blatchf. 209; Fed. Gas. 7,237. 20. A court should not do indirectly what it cannot do directly; hence when an appeal has been dismissed in the United States cir- cuit court for being too late, the party can- not apply for a rehearing in the district court in order that upon the re-entering of the de- cree an appeal may be perfected. In re Troy W. Go., 6 N. B. R. 16; 5 Ben. 413; Fed. Gas. 14,200. 21. An appeal from a district court to the circuit court under the act of 1867 existed only upon a final decree of the coiirt in a suit in equity instituted by, or against, an assignee in bankruptcy, where the sum in controversy exceeded $500. In re Zug et al.> 16 N. B. R. 380; 23 Int. Rev. Rec. 392; 34 Leg. Int. 403; 25 Pittsb. Leg. J. 39; Fed. Gas. 18,322. 22. Under the act of 1867, final decrees in suits in equity in the district courts in bank- ruptcy causes and final judgments in civil ac- tions, where the debt or damages amounted to more than $500, were re-examinable in the circuit courts. Knight v. Gheney, 5 N. R E.. 305; Fed. Gas. 7,883. . 23. Where proceedings begun by an as- signee in the district court could be treated as a bill in equity, the cause could be ap- pealed to the circuit court and again ap- pealed to the supreme court of the United States (act of 1867). MUner, Jr., v. Meek, Ass., et aL, 17 N. B. R 83; 95 U. S. 253. 24. An appeal was taken from a decree of the district court in bankruptcy within ten days after the decree was filed, but no- tice to the adverse party was not given within such period. The appeal was dis- missed. Wood V. Bailey, Ass., 13 N. B. R 132; 31 Wall 640. 25. The circuit court had jurisdiction tO' review the findings of a jury under instruc- tions from the court upon writ of error (act of 1867). Knickerbocker Ins. Co. v. Corn- stock, 8 N. B. R 145; 16 Wall. 25& 26. Under the act of 1867, the ten days within which the declaration on appeal wa» to be filed in the circuit court was directory, and not mandatory, and if the requisites of Rev. Stats., sees. 4981, 4983 and 4984> had been APPEALS AND WKITS OF ERROR, IIL 19 complied with, the circuit court was not de- prived of jurisdiction. Barron et al. v. Mor- ris, Ass., 14 N. B. R. 371; Fed. Gas. 1,055. 27. On motion to dismiss appeals from dis- trict court, 7ieM,-that appeal from order of district court sitting in bankruptcy should be entered in circuit court within ten days after appeal is taken, although circuit court is in session at time order is made and con- tinues so up to end of ten days (act of 1867). In re McEwen et al., 19 N. B. R. 445. III. To SUPEEME OOTJET. 28. No appeal lies to the supreme court from a decision of the circuit court upon a petition to have an adjudication set aside. Sandusky v. First Nat. Bank, 13 N. B. R. 176; 23 Wall 289. 29. Where it appeared that the decision of a question as to the effect of a discharge in bankruptcy upon the right of a party to enforce a lien upon property in existence at the time the proceedings were commenced in bankruptcy was necessarily involved in the decision of a state court, and that such decision was adverse to the rights set up under the discharge, the supreme court took jurisdiction to review the decision. Long v. Bullard, 117 U. S. 617. 30. The supreme court cannot review the action of the circuit courts in the exercise of their supervisory jurisdiction, under the bankrupt law. Wiswall et al. v. Campbell et al., Ass., 15 N. B. R. 421; 93 U. S. 847. 31. The jurisdiction intended to be con- ferred by the bankrupt act on the United States district and circuit courts is the regu- lar jurisdiction between party and party, as described in the judiciary act and article 3 of the constitution; therefore final judgments or final decrees, rendered in cases where the matter in dispute exceeds, exclusive of costs, the sum of $2,000, maybe re-examined in the supreirie court, under section 32 of the judi- ciary act, by writ of error or appeaL Coit V. Robinson et aL, N. B. R. 389; 19 Wall. 274 32. The question was as to whether an appeal lay to the supreme court of the United States from a decree of the circuit court rendered in the exercise of the super- visory jurisdiction conferred upon that court by the first clause of the second section of the bankrupt act of 1867. Held, that no ap- peal lay. Id. 33. Where a party appeals from the de- cision of the United States circuit court to the supreme court, the allowance of the ap- peal is to relate back to the time when the original application was made for an appeal to a judge of the circuit court, and entitles a party to a stay of proceedings. Thornhill v. Bank of Louisiana, 5 N. B. R. 377; Fed. Cas. 13,991. 34. In cases of appeal, the appeal may be taken orally in court; no written applica- tion need be made either in court or to the judge. Id. 35. Upon a petition of review the circuit court reversed a decree setting aside a cer- tain lien, the assignee meanwhile having filed a plea denying the supervisory jurisdiction of the circuit court. On appeal to the su- preme court, the assignee pleaded that the cause could only be removed to the circuit court on appeal, and that an appeal would not lie to the supreme court respecting a peti- tion of review. It was so held, and the cir- cuit court's decree was reversed. Stickney, Ass., V. Witt, 11 N. B. R. 97; 33 Wall. 150. 36. Creditor appealed to the circuit court from the decision of the district court grant- ing a discharge, and prayed the circuit judge " to review the said decision and reverse the same, and for such further order and relief in the premises as to the court may seem just," the circuit court affirming the decree of the district court. On appeal to the su- preme cotirt, held, that the decree of the cir- cuit court was final (act of 1867). Mead v, Thompson, 8 N. B. R. 529; 15 Wall. 635. 37. An appeal was taken to the supreme court of the United States from a decision of the circuit court, rendered in the exercise of supervisory jurisdiction of decisions in the district court, on proceedings in bankruptcy of a summary character. Eeld, that appeal would not lie (act of 1867). Hall v. Allen, 9 N. B. R. 6; 13 Wall 452. 38. The supreme court of the United States has jurisdiction to review the decision of a state court against an assignee in bank- ruptcy claiming certain property aa belong- 20 APPEARANCE — AEREST, L ing to him under the bankrupt act. Will- iams V. Heard, 140 U. S. 539. 39. The supreme court, under the act of 1867, had jurisdiction on writ of error to a state court of a controversy involving a dis- pute as to the validity of the transfer by a trustee in bankruptcy and the question in- volving the limitation prescribed by the bankrupt act. Traer v. Clews, 115 U. S. 533. 40. Under the act of 1841 an appeal did not lie to the supreme court from a decree of a district court. Crawford v. Points, 18 Howard, 11. APPEARANCE. See Attobnet; Composition, 107; Dis- CHABGE, ni; Meetings, 1, 13, 14, 17; Pleading and Practice. APPBAISEMENT. An appraisement was set aside as exagger- ated. No satisfactory evidence existed of depreciation between date of adjudication and sale of goods by assignee. Their sale not having realized fifty per cent, of proved debts, discharge was refused. In re Borden & Geary, 5 N. B. E. 138; 5 Ben. 338; Fed. Cas. 1,654 AEBITRATIOIT. 1. An assignee in bankruptcy may appeal from an award of arbitrators and without payment of costs, the adyerse party having taken out the rule of reference. Morss v. Gritmann, Ass., 10 N. B. R. 133. 2. Where by stipulation a claim is sub- mitted to the register to hear and determine, it is not a reference or an arbitration under the New York code, and the register's decis- ion is not conclusive. In re Ford et aL, 18 N. B. R. 436; Fed. Cas. 4,983. 3. Bankrupts and alleged creditors entered into a stipulation referring a dispute over creditors' claims to the register. The credit- ors claimed that the decision of the register was final. Held, that it was not competent for creditors and bankrupt to submit the ques- tion of the amount due to arbitration. Id. ARREST. L On Non-disoh a tigeable Debt. IL Befoeb Bankeuptct. (a) In General. (b) Habeas Corpus. IIL Under Peovisionai, Waeeast. IV. In Voluntae,y Cases. '' V. Aptee Composition, VL In Genbeai* See Acts of Bankeuptct, 6; CoNSTrni- tional Law, 31 ; Courts, 368 ; Ceimes and Offenses, 5; Discharge, 306, 369, 394; Estates, 173; Examination of Bank- rupt, 63; Jihjgment, 33, 34; Proof qf Claims, 34. I. On Debt Not Dischaeged. 1. A sheriflE will not be enjoined from an arrest of a bankrupt on execution pursuant to a judgment recovered on a debt created by fraud. In re Patterson, 1 N. B. R 58; 3 Ben. 155; 15 Pittsb. Leg. J. 341; Fed. Caa. 10,817. 2. A bankrupt arrested on an execution issued on a judgment in an action for deceit is not entitled to be relieved from the arrest pending the proceedings in bankruptcy. In re Whitehouse, 4 N. B. R 15; Fed. Cas. 17,564 3. When a court of bankruptcy has no power to discharge a judgment, it cannot in- terfere to prevent its enforcement by im- prisonment, unless necessary to the exercise of its jurisdiction. In re Pettis, 3 N. B. R 17; 7 Amer. Law Reg. (U. S.) 695; Fed. Cas. 11,046. 4. A bankrupt, pending proceedings in bankruptcy, was arrested in a civil action upon process issued from a state court in an action of false and fraudulent misrepresen- tations. Held, the bankruptcy court had no jurisdiction to order his discharge from cus- tody. In re Devoe, 3 N. B. R 11; 1 Lowell, 351; 7 Amer. Law Reg. (U. S.) 690; 1 Amer. Law T. Rep. Bankr. 90; Fed. Cas. 3,84a 5. A bankrupt is liable to arrest, pending bankruptcy proceedings, upon a debt created by his defalcation of the proceeds of goods sent to him to be sold on commission and for which he refuses to account. In re Kimball, 3 N. B. R 74; s. C. affirmed, 3 N. B. R 114; 2 Ben. 554; Fed. Cas. 7,768. ARREST, n, (a), (b), IIL 21 6. An order of arrest made by a state court in a suit against a bankrupt upon an affidavit showing that the suit was founded on a debt created by fraud of the bankrupt will not be vacated by the bankruptcy court, but the suit will be stayed until the final de- termination of the bankruptcy proceedings. In re Migel, 2 N. B. R. 153; Fed. Cas. 9,538. 7. A bankrupt who is held in arrest and bail in a judgment in a civil action founded upon a debt created by fraud will not be dis- charged from custody by the court in which bankruptcy proceedings are pending, al- though the judgment debtor may have proved his debt in the proceedings. In re Robinson, 3 N. B. R 108; 6 Blatohf. 253; 36 How. Pr. 176; 2 Amer. Law T. Rep. Bankr. 18; Fed. Cas. 11,939. 8. Upon order to show cause why a debtor should not be adjudged a bankrupt, it ap- peared that a chattel mortgage on the debt- or's stock of goods had been given with intent to hinder, delay and defraud creditors. Held, that an order of arrest will not be granted, where the facts as to concealment of goods are based upon information and belief alone. In re McKibben, 13 N. B. R 97; Fed. Cas. 8,859. II. Befoee Bankedptct. (a) In GeTieral. 9. A debtor arrested in a civil action, prior to commencement of proceedings in bank- ruptcy, is not entitled to be released from such arrest upon being adjudged a bankrupt; but if the debt or claim on which the action in which he is arrested is founded is one which a discharge in bankruptcy will re- lease, upon such discharge he will be entitled to release from arrest. Brandon Nat. Bank V. Hatch, 16 N. B. R. 468. 10. A. was arrested on mesne process is- sued out of a state court, and imprisoned thereon for a period exceeding seven days. The judge of the state court afterwards de- cided that the commissioner should not have made the order of imprisonment, and ordered A.'s release on common bail. After A. had been imprisoned seven days, and before his release, a petition in bankruptcy was filed against him. Held, that the imprisonment being on an order voidable, and not void. and no effort having been made within seven days to have it set aside, an act of bank- ruptcy had been committed under act of 1 867. In re Cohn, 7 N. B. R 31; 29 Leg. Int. 309; 5 Chi. Leg. News, 13; 6 Alb. Law J. 276; 20 Pittsb. Leg. J. 29; Fed. Cas. 3.967. 11. A debtor held under an order of ar- rest, but in the custody of his bail, was sub- sequently adjudicated a bankrupt and sur- rendered in discharge of his bail, whereupon an alias execution for his arrest was issued by a state court. Held, the arrest under the alias execution not a new arrest, but a con- tinuance of the former arrest, theoretically and practically as if he had never been re- leased on bail. In re Hazleton, 3 N. B. R 13; 1 Lowell, 370; 1 Amer. Law T. Rep. Bankr. 105; Fed. Cas. 6,387. (b) Habeas Corpvs. See Habeas Corpus. 12. A debtor was arrested on mesne pro- cess in an action of tort and committed to jaiL Afterward he went into bankruptcy and sought by petition for writ of liabeas corpus to obtain his release from imprison- ment. The court held that the petition must be denied, as the arrest occurred before the filing of the petition in bankruptcy. In re Walker, 1 N. B. R 60; 1 Lowell, 222; Fed. Cas. 17,060. 13. A bankrupt arrested and imprisoned before the proceedings in bankruptcy have commenced cannot be released by the court upon a petition for a writ of habeas corpus. Id. III. Uhdee Peovisionai, "Waeeant. 14. The bankrupt act only authorizes the arrest of the debtor under a provisional war- rant to secure his attendance at the hearing and adjudication, and no arrest can be made under the warrant after adjudication. A bond given by the debtor to secure his re- lease from an arrest made after adjudica- tion is therefore void. Usher v. Pease et al., 13 N. B. R. 305. 15. In an application for a provisional warrant and order of arrest of the debtor, there should be filed a separate petition sup- ported by affidavits of persons having knowl- 22 ARREST, IV-VI — ASSIGNEK edge of the facts, when the same are not stated in the petition of the petitioner's own knowledge. In re McKibben, 12 N. B. E. 97; Fed. Cas. 8,859. IV. In Yoluntaet BAifKEirPTOT. 16. The bankrupt law gives no authority for the arrest of a bankrupt in case of volun- tary bankruptcy. In re Hale, 18 N. B. E. 335; Fed. Cas. 5,911. V. Aftee Compositiok. 17. A bankrupt was arrested under civil process of a state court after confirmation of a composition in the federal court. Plaint- iffs alleged that their cause of action was based upon a sale procured by defendant through false representations. Held, that the composition satisfied the debt. Bam- berg et aL V. Stern, 18 N. B. R. 74. 18. The bankrupt court can protect the bankrupt from an action and arrest under the authority of a state court. In re Will- iams et al., 11 N. B. R. 145; 6 Biss. 333; 7 Chi. Leg. News, 49; Fed. Cas. 17,700. YI. In Geneeal. 19. A bankrupt cannot be held in arrest upon a judgment for costs in a proceeding in a state court. In re Borst, 3 N. B. E. 63; 1 Gaz. 18; Fed. Cas. 1,665. , 20. A bankrupt arrested on an attach- ment isssued by a commissioner in chancery of a state court in proceedings to discover bankrupt's estate, to satisfy a lien established prior to bankruptcy, will be discharged on application to a United States circuit court. Ex parte Taylor, 16 N. B. R. 40; 1 Hughes, 617; 24 Pittsb. Leg. J. 205; Fed. Cas. 13,773. 21. A bankrupt who has been arrested under process of the bankrupt court is in- titled to be discharged from arrest, if the cause of action on which the arrest is based is a debt from which a discharge in bank- ruptcy, if granted, will release him. In re Smith, 18 N. B. E. 24; Fed. Cas. 12,976. 22. Subsequent to final judgment, a stay of a proceeding for the purpose of putting in motion the remedy of arrest reserved to the creditor is not allowable. In re Whitney, 18 N. B. E. 563; Fed. Cas. 17,581. 23. Where an order is in effect a final judgment for the payment of money, whether the proceeding in which it is made is of equi- table or legal cognizance, it cannot be en- forced by imprisonment upon the theory of contempt. In re Atlantic Mut. Ins. Ca, 17 N. B. R. 368; 9 Ben. 337; Fed. Cas. 629. 24. In an action on a bond given on the arrest of a debtor, and conditioned that he wUl apply for the benefit of the state insolv- ent laws, a plea of a subsequent discharge of the debtor in bankruptcy is a valid plea, un- less the debt is one from which a discharge will not release him. Hubert v. Horter, 14 N. B. R. 430. 25. A United States district court has power to relieve a bankrupt from arrest, on process of a state court, in an action founded upon a debt that maybe discharged in bank- ruptcy, and the question whether the debt is one contracted in fraud may be examined into and determined by it. In re Glaser, 1 N. B. R. 73; 15 Pittsb. Leg. J. 265; 2 Ben. 180; 1 Amer. Law T. Rep. Bankr. 57; Fed. Cas. 5,474. . 26. Defendant had been plaintiff's agent in the sale of sewing machines, receiving a commission, and accounting and paying over the balance of sales monthly. Prior to com- mencement of suit defendant had been ad- judicated a bankrupt, and plaintiff had him arrested under a state statute for the balance unpaid. Held, that the debt was not con- tracted in a "fiduciary character," and de- fendant discharged from arrest. Grover & Baker v. Clinton, 8 N. B. R. 313; 6 ChL Leg. News, 33; 18 Int. Eev. Rec. 166; 21 Pittsb. Leg. J. 34; Fed. Cas. 5,845. ASSESSMENT. See Stockholders. ASSETS. See Estates. ASSIGNEE. See Teustee. ASSIGNMENTS, I, (aHd). 23 ASSIGNMEITTS. L When Act of Bankbuptct. (a) Defects iTU (b) JnsoZuejit Debtor, (o) Notice. (d) VbZwmtary Act II When Not Act op Bankeuptot. (a) Equal Distribution of Assets. (b) Conditional Conveyance. IIL Record of. IV. Trustee ok Assignee in. (a) Objection to, (b) Esiafe of. (o) Co»?ipewsa 44. A provision in a bank charter prohib- iting it from taking more than a given rate of interest avoids a contract reserving a greater rate. Tiffany v. Boatman's Sav. Inst., 9 N. B. R 345; 18 Wall. 375. 45. When a bank reserves illegal interest on its loans, unless its charter expressly de- clares that the contract of loan shall be void, it is void only as to the excess of interest charged, and not as to the principal. In re Moore, 1 N. B. R. 133; 2 Bond, 170; Fed. Cas. 10,041. 46. A cashier is still an oflBcer of the bank for the purpose of being served with an order to show cause, although he has given the keys to the receiver appointed by a state court, and has become his clerk and ceases to act as cashier. Piatt v. Archer, 6 N. B. R. 465; 9 Blatchf. 559; Fed. Cas. 11,213. BILLS AND NOTES. See Commercial Papbe. BOARD OP TRUSTEES. See Trustees. BONA FIDE TRANSFER. See Notice, 36. 1. An insolvent debtor may sell or in- cumber his estate for a present and sufficient consideration, if the transaction be bona fide, and without fraud or an intention to defeat the operation of the bankrupt act. Gattman & Co. V. Honea, Ass., 12 N. B. R. 493; 7 Chi. Leg. News, 395; Fed. Cas. 537. 2. The assignee in bankniptcy has no greater right than a judgment creditor; and although a sheriff's deed may be given as a mere cover, yet if his grantee convey such property to a bona fide purchaser without notice, for value, that deed will be protected. Beall V. Harrell et aL, 7 N. B. R. 400; Fed. Cas. 1,163. 3. To constitute a bona fide transfer, trans- feree must show that he had no notice and must have given a present consideration. Rison, Ass., v. Knapp, 4 N. B. R. 349; 1 Dill, 186; Fed. Cas. 11,861. 42 BOND — BOOKS OF ACCOUNT, L 4. There is no concealment where a debtor makes a bona fide conversion of his property and shows good faith in respect to the care of the money received therefrom. Fox v. Eckstein, 4 N. B. R. 123; Fed. Cas. 5,009. BOND. See Court, 183; Makried Woman, 13. 1 . Where no bond has been filed, no appeal can be allowed after ten days from entry of decree; but if proper bond, with sufficient sureties, is offered after ten days, the district court wiU approve it as a bond, leaving it to appellee to move to dismiss; but execution or decree in such case will not be stayed. Benjamin, Ass., v. Hart, 4 N. B. R. 408; 4 Ben. 454; Fed. Cas. 1,303. 2. A suit in equity cannot be maintained for the sole reason that the plaintiflE (as- signee) cannot give the bond required in an action at law. In re The Oregon Iron Works, 17 N. B. R 404; 4 Sawy 169; 36 Pittsb. Leg. J. 8; Fed. Cas. 10,563. 3. An assignee in bankruptcy should give a separate and distinct bond for each case in which he is appointed or elected. In re Mc- Faden, 3 N. B. B. 37; Fed. Cas. 8,785. BONUS. Notes given for the excess or bonus over legal interest are void and must be surren- dered to the assignee. Shaffer v. Fritchery & Thomas, 4 N. B. E. 179; Fed. Cas. 13,697. BOOKS OP ACCOUNT. I What Are Sufficient. IL What Not SuFFicmNT. IIL Who Must Kjeep. IV. How to Obtain. I. What Aee Sufficient. 1. If creditors can gather from the books kept by a bankrupt a correct understanding of his financial condition, the requirement that proper books of account shall be kept is satisfied. In re Antisdel, 18 N. B. B. 389; Fed. Cas. 490. 2. An entry of a chattel mortgage or a promissory note in a trader's blotter is a suf- ficient record in a bankrupt's books of ac- count. In re Winsor, 16 N. B. R. 153; 9 Chi Leg. News, 403; 3 Cin. Law BuL 213; Fed. Cas. 17,885. 3. It is not necessary that the books of ao- coimt kept by a trader, as such, contain entries of debts owed by him at the time he went into trade, previously contracted, as well as those debts incurred in his business as a trader. Id. 4. A retail grocer keeping no invoice book, but keeping all invoice bills together, so that a complete account of goods received by him can be made from them, and keeping other customary books, keeps proper books of ac- count. The question is one of fact in each case. In re Reed, 13 N. B. E. 890; 1 N. Y. Wkly. Dig. 100; Fed. Cas. 11,639. 5. An agent and salesman for one S., the bankrupt, conducted the business of butcher- ing under a contract providing that he should account to S. daUy, and pay aU moneys to S. until said S. was reimbursed for his money outlay. A book-keeper entered the transac- tions daily in a pass-book kept in the bank- rupt's possession. Seld, that the pass-book was one of bankrupt's books, and a proper one under the law. In re Blumenthal, 18 N. B. R. 575; Fed. Cas. 1,576. 6. Invoice or stock books, from which to determine what property he possessed in his trade, are indispensable books of ac- count of a merchant or tradesman. In re White, 3 N. B. R 179; 16 Pittsb. Leg. J. 110; " 3 Amer. Law T. 105; 1 Amer. Law T. Rep. Bankr. 136; 1 Chi. Leg. News, 326; Fed. Cas. 17,583. 7. In proceedings in opposition to the dis- charge of a bankrupt upon the ground that he had not kept proper books of account, a detached check is admissible in evidence by the bankrupt, where such check once formed a part of the book, and, together with the stub, shows just how the book was kept In re Brookway, 7 N. B. R 595; 6 Ben. 336; Fed. Cas. 1,917. 8. Objections were made to discharge on ground that bankrupt failed to keep proper books of account in another business. Held, that such objections w^re invalid. In re Friedberg, 19 N. B. R 303; Fed. Cas. 511& BOOKS OF ACCOUNT, II, III. 43 II. "What Not Sufficient. 9. A debtor kept no books showing trans- actions with a person whom creditors al- leged to be his partner, but he kept proper books of account with customers. Held, that . dealings with the alleged partner were as much a part of his business as his dealings with his customers. In re Blumenthal, 18 N. B. R. 555; Fed. Cas. 1,575. 10. Where the bankrupts are charged with not keeping proper books of account, and the receipts and disbursement entered in cash book are unintelligible, discharge can- not be granted. In re Murdoch, 4 N. B. R. 17; In re Maokay, 4 N. B. R. 17; Fed. Cas. 8,837. 11. A bankrupt preserved the invoices of his purchases, receipts of his payments, a bank book and canceled checks, and a daily memorandum of cash receipts on a slate, which were erased each succeeding day. Held, that he did not keep proper books of account. In re Solomon, 3 N. B. R. 94; 6 PhOa. 481; 25 Leg. Int. 364; 1 Chi Leg. News, 77, 107; Fed. Cas. 13,167. 12. Entries of business transactions on slips of paper, each entry being on a separate slip, is not a keeping of books of account as required by the bankrupt law. In re Ham- mond V. Coolidge, 8 N. B. R. 71; 1 Lowell, S81; Fed. Cas. 5,999. III. Who Must Xeep. 13. If he would be discharged from his obligations in bankruptcy, a merchant must keep such books of account as will at all times exhibit to his creditors his position, so that when placed before them for investi- gation they may at once ascertain his stand- ing and property, and the result of his busi- ness, and whether everything has been fair and honest on his part. In re Brockway, 7 N. B. R. 595; 6 Ben. 326; Fed. Cas. 1,917. 14. The fact that a merchant or trades- man does not keep proper books of account is a cause for refusing to discharge him in bankruptcy, whether the intent be fraudu- lent or not. In re Archenbrown, 12 N. B. R. 17; 7 Chi. Leg. News, 231; Fed. Cas. 505. 15. A livery-stable keeper who only buys horses to hire, and sells them only when no longer fit for the purposes, and who boards horses for others, buying the grain for that purpose, must keep books of account, or an application for discharge will be refused. In re Odell et al., 17 N. B. R. 73; 9 Ben. 209; Fed. Cas. 10,426. 16. A bankrupt's discharge was opposed on the ground that, being a tradesman, he had not kept proper books of account. The evidence showed him to be a farmer, who also periodically purchased and sold horses, cattle, etc. He was imable to write and had never kept books. The discharge was granted; it being held he was not a trades- man. In re Cote, 14 N. B. R. 503; 2 Lowell, 374; Fed. Cas. 3,367. 17. Where it appears that a bankrupt has failed to keep proper books of account, the case is one in which, under section 39 of the bankrupt act of 1867, a discharge cannot be granted. In re Bound, 4 N. B. R. 164; Fed. Cas. 1,697. 18. A bankrupt, who was a merchant and illiterate, kept no books of account except a small memorandum book of sales in which the entries were made by his son, daughter, and even strangers purchasing goods of him, but relied chiefly upon his memory as to his business transactions. Held, that he did not keep proper books of account and a discharge must be refused. In re Newman, 2 N. B. R. 99; 3 Ben. 20; 1 ChL Leg. News, 133; Fed. Cas. 10,175. 19. The failure of a merchant or trades- man to keep proper books of account is ground for withholding a discharge in bank- ruptcy, although such omission may not have been wilful Id. 20. An omission by a merchant or trades- man to keep proper books of account, even without fraudulent intent, is ground for with- holding a discharge under the act of 1867. In re Solomon, 3 N. B. R. 94; 6 Phila. 481; 25 Leg. Int. 364; 1 Chi. Leg. News, 77, 107; Fed. Cas. 13,167. 21. Where it clearly appeared that the as- signee could have no reason to inquire into a trade formerly carried on by bankrupt, failure of bankrupt to keep proper books of account will not bar his discharge. In re Keach, 3 N. B. R. 3; 1 Lowell, 335; Fed. Cas. 7,639. 22. A bankrupt, being a merchant and tradesman, had not, subsequent to the, pas- sage of the act of 1867, kept either invoice- 44 BOOKS OF ACCOUNT, III. book, cash-book, blotter, day-book, journal or ledger, the only accounts being memo- randa. Held, that he had not kept proper books of account, and a discharge was re- fused. In re Schumpert, 8 N. B. E. 415; Fed. Cas. 12.491. 23. Persons who buy on credit, and sell again in such wise as to be merchants or tradesmen, must, under the act of 1867, keep such books in relation to their business as will give an intelligible account to their creditors of the state of their business trans- actions. Otherwise, discharges will be re- fused them. In re Gamson, 7 N. B. R. 287; 5 Ben. 430; Fed. Cas. 5,354. 24. A bankrupt in June, 1867, sold the whole interest in his store. His petition in bankruptcy was filed in February, 1868. Be- tween June and February he was out of busi- ness, except that he bought and sold apples, partly on his own account, and partly on a joint enterprise with another. He kept no books of account. Held, that the omission to keep such books- prevented the granting of his discharge. In re Tyler, 4 N. B. R. .27; Fed. Cas. 14,305. 25. Discharges cannot be given to bank- rupts who have not kept proper books of ac- count and whose entries of receipts and dis- bursements in cash books are unintelligible. In re Murdock et al., 4 N. B. R. 17. 26. Failure to keep a cash book is a suffi- cient ground for refusing to grant a discharge to a bankrupt trader. In re Littlefield, 3 N. B. E. 13; 1 Lowell, 831; 2 Amer. Law T. 123; 1 Amer. Law T. Rep. Bankr. 164; Fed. Cas. 8,398; In re Gay, 2 N. B. R. 114; 1 Hask. 108; 1 Amer. Law T. Rep. Bankr. 73; 2 id. 53; Fed. Cas. 5,279; In re Bellis & Milligan, 3 N. B. R. 134; 4 Ben. 53; Fed. Cas. 1,375. 29. A bankrupt kept no cash book. He had an account with " merchandise " in his ledger, showing in one column aggregate monthly payments for grain, and in another aggregate monthly amount of sales. The books did not show what moneys were ex- pended in carrying on business nor what sums were taken out for family expenses. Held, that the books were insufficient and a discharge should be refused. In re Anketell, 19 N. B. R. 368; Fed. Cas. 394. 30. The accidental omission of entries in a trader's books of account is no ground for withholding a discharge. In re Burgess, 3 N. B. R. 47; Fed. Cas. 3,153. 31. A bankrupt who has sold certain arti- cles to raise money, but without intention of buying others to sell again, is not a merchant, and failure to keep proper books of account will not prevent his discharge. In re Rogers, 8 N. B. R. 139; 1 Lowell, 438; Fed. Cas. 13,001. 32. Bankrupts bought and sold hemlock bark and luiiiber. They kept no cash book, but kept bank books showing amoimts re- ceived and to whom paid. Held, that such books were proper. In re Marsh et al, 19 N» B. R. 397; Fed. Cas. 9109. 33. Where material erasures and altera- tions appear on the books of a bankrupt, im- less it appear that they were made vidth fraudulent intent, a discharge will not be refused. In re Antisdel, 18 N. B. R. 389; Fed. Cas. 490. 34. The mutilation of books of account, if satisfactorily explained, is no bar to a dis- charge. In re Nooman & Connolly, 3 N. B. R. 63; Fed. Cas. 10,391; In re Pierson, 10 N. B. R. 10. 35. Objections were made to a discharge on the ground that the bankrupt failed to keep proper books of account in another busi- ness. Held, that such objections were invalid. InreFriedberg, 19 N. B.R.303; Fed. Cas. 5,116; In re Herdic, 19 N. B. R. 385; Fed. Cas. 6,403. 37. Prior to filing his petition, the account books of the bankrupt covering the time be- fore he entered trade were destroyed by fire, but their contents had not been transferred to the books in which his trade accoimts were kept. Held, not sufficient ground to deny a discharge. In re Winsor, 16 N. B. E. 153; 9 Chi. Leg. News, 403; 3 Cin. Law BuL 312; Fed. Cas. 17,885. 38. A bankrupt was a stock and gold broker, but was not a member of the Stock Exchange, and conducted business through other brokers who were members. On ob- jection to his discharge on the ground that, being a "merchant or tradesman," he kept no books of account, held, that he was not a " merchant or tradesman " within the meaning of the act of 1867. In re Moss, 19 N. B. R 132; Fed. Cas. 9,877. 39. A bankrupt's discharge was opposed under the act of 1867 on the ground that, being a tradesman, he had not kept proper BOOKS OF ACCOUNT, IV — CERTIFICATION, I-III. 45 books of account. The evidence showed him to be a farmer, who also periodically pur- chased and sold horses, cattle, etc. He was unable to write and had never kept books. The discharge was granted, it being held he was not a tradesman. In re Cote, 14 N. B. R. 503; 2 LoweU, 374; Fed. Cas. 3,267. rV. How TO Obtaiit. 40. If the bankrupt has the actual posses- sion of joint estate and joint books of accoimt, he must disclose them to his separate as- signee, and, if he wilfully fail to do so, is not entitled to the charge. In re Beal, 2 N. B. R. 178; 1 Lowell, 323; 1 Chi. Leg. News, 336; Fed. Cas. 1,156. 41. To obtain possession of books of ac- count which passed to assignee of bankrupt's oviTi selection, the assignee in bankruptcy must proceed by bill in equity or action at law. Rogers, Ass., v. Winsor, 6 N. B. R. 246; Fed. Cas. 12,033. 42. The district court will order the pro- duction of books and papers at the summary hearing on the return day of order to show cause. In re Mendenhall, 9 N. B. R. 285 ; Fed. Cas. 9,433. BREACH OP PKOMISB. A judgment obtained on a breach of a prom- ise to marry is barred by the discharge of the bankrupt. In re Sidle, 2 N. B. R. 77; Fed. Cas. 12,844. BREACH OP TRUST. See Trust. BUSINESS. See Place op Business. BUSINESS CORPORATIONS. See Corporations, 4 CARBTING ON BUSINESS. See Place of Business. CERTIPICATION. I. Who May Require. IL When May be Required. III. When May Not be Required. IV. What May be Certified. See Pleading and Practice, 278. I. Who Mat Eequiee. 1. Only a party to the proceedings before the register can take the opinion of the dis- trict judge on a certificate of the register on a matter arising in the course of such pro- ceedings, or upon the result of them. The word " party " means the bankrupt or a cred- itor of his. In re Fredenbm-g, 1 N. B. R. 34; 2 Ben. 133; Fed. Cas. 5,075. II. "When Mat be Kequieed. 2. A question in order to be properly cer- tified to the judge must arise regularly in the course of proceedings before the register and between the parties having the legal right to raise it. In re Wright, 1 N. B. R. 91 ; Fed. Cas. 18,069; In re Peck, 3 N. B. R. 186. 3. A court will not in all cases refuse to entertain a question as to charges of a regis- ter, upon a cei'tificate of the register of his own motion, especially where no objection is made by the parties to the certification. In re Sherwood, 1 N. B. R. 74; 25 Leg. Int. 76; 1 Amer. Law T. Rep. Bankr. 47; 6 Phila. 461; Fed. Cas. 13,774 t III. When Mat !N"ot be Eequieed. 4. Neither court nor register can be the general adviser of the assignees as to their acts, and no opinion will be given on ab- stract questions certified to the judge by the register. In re Sturgeon, 1 N. B. R. 131; 3 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 13,564; In re Haskell, 4 N. B. R. 181; Fed. Cas. 6,191. 5. Before the time for filing specifications in opposition to discharge, and upon the ex- amination of the bankrupt, the testimony appeared to show that a creditor had been paid money by the bankrupt to procure his consent t6 the discharge, and the register thereupon certified the question as to the effect of such testimony. The court held 46 CERTIFICATION, IV— CHOSES IN ACTION, I, IL the certification premature and declined to pass upon it. In re Mawson, 1 N. B. K. 83; 2 Ben. 123; Fed. Cas. 9,317. 6. When creditor opposes amendment of schedules he does not raise a question requir- ing certification. In re Watts, 3 N. B. E. 145; 8 Ben. 166; Fed. Cas. 17,393. TV. "What Mat be Ceetified. 7. On certification by the register to the court as to whether holder of a note may- prove it in full against the bankrupt prom- isor's estate, notwithstanding receipt by him of a sum of money from the indorser in dis- charge of indorser's liability, held, that he may, refunding to latter the excess of sum due holder. In re Souther, 9 N. B. E. 503; 3 Lowell, 830; Fed. Cas. 18,184 8. Written objections having been filed by the assignee to a proof of debt, a hearing was had before the register. At this hearing the assignee offered no testimony, but asked to have the matter certified to the court. Held, register required to certify it. In re Clark & Bininger, 6 N. B. R. SOS; Fed. Cas. 3,808. 9. A register holding provisionally a court of bankruptcy, before whom a witness re- fuses to answer a question propounded, should, if he believes the question a proper one, so declare. If an exception to this pro- visional ruling is taken, he should certify it for the summary consideration of the court, the examination proceeding in its other parts. If the witness, without such excep- tion, refuse to answer, his contumacy should be reported. In re Eeakirt, 7 N. B. E. 339; Fed. Cas. 11,614 10. Issue of fact or law raised as to satis- factory character of proof of debt should be certified. In re Bogert & Evans, 3 N. B. E. 189; 88 How. Pr. Ill; 1 Chi. Leg. News, 311; Fed. Cas. 1,598. CESTUI QUE TRUST. See Trust. CHAMPEETT. See Attorneys; Claims, 128. CHATTEL MORTGAGE. See MOETGAGB, XL CHECK. See COMMEBOIAL Pafeb. CHOSES IN" ACTIOIT. L Belonging to Wife. IL In General. I. Belonging to Wive, 1. The wife of a bankrupt, as the residue- ary legatee of her father, had become the owner of a liberal estate in stocks, bonds and other choses in action, but the bankrupt had never reduced them to his possession. Held, that as they had not been reduced to posses- sion by the husband, his assignee in bank- ruptcy had no power over them. Wickham, Ass., V. Valle's Executors, 11 N. B. R 83; Fed. Cas. 17,613. 2. A feme sole, owning a chose in action, married, and a suit was instituted to re- cover, in the name of the husband and wife. While still pending, the husband was de- clared bankrupt and assignee was appointed, who was made party plaintifiE with the wife and recovered judgment. Held, assignee may enforce judgment and distribute the money among the creditors. In re Boyd, 5 N. B. R. 199; 3 Hughes, 849; Fed. Cas. 1,745. 3. Marriage constitutes a qualified gift to the husband of the wife's choses in action, upon condition that he reduce them to pos- session during its continuance. The chose in action continues to belong to the wife. In re Boyd, 5 N. B, E. 199; 3 Hughes, 849; Fed. Cas. 1,745. 4. A wife cannot give a discharge of a chose in action. If the debtor pay the money to the wife without the husband's authority, he may be forced to pay it over again to the husband. Id. II. In Gbneeal. 5. A party who purchases a chose in ac- tion from the assignee cannot maintain an CLAIMS, 1 41 action thereon in his own name in a state court, where the laws of the state do not per- mit an assignee of a chose in action to sue in his own nama Leach v. Greene, 13 N. B. R 376. 6. If the proceedings in bankruptcy are discontinued without the appointment of an assignee, a party who took an assignment of a chose in action from the bankrupt after the commencement of such proceedings may maintain an action thereon. Kline v. Bauen- dahl, 12 N. B. R 575. 7. 'Where action is brought to reach choses in action, or property not subject to sale on execution, weight of authority holds that lien is acquired by the mere commencement of the action. Johnson, Ass., v. Eogers et aL, 15 N. B. E. 1; 5 Amer. Law Eec. 536; 14 Alb. Law J. 427; Fed. Cas, 7,408. 8. Motion to expunge order for sale of such choses in action belonging to estate of bankrupt as " could not be collected with- out inconvenient delayer expense," made by register. Held, that register had power to make such order. In re The Bank of North Carolina, 19 N. B. E. 164; Fed. Cas. 896. 9. A chose in action which is not nego- tiable, and on which the assignee must sue in the name of the assignor, does not become a mutual debt or credit in the hands of the assignee, so as to be a matter of set-off. Eol- lins. Ass., V. Twitchell & Co., 14 N. B. E. 201; 2 Hask. 66; 5 Amer. Law Eec. 347; Fed. Cas. 12,037. CLAIMS. L In General. II. FiDUCIART. in. Fraudulent. IV. In Composition PROCEEDiNGa v. Jurisdiction of Court Over. "VI. Procedure After Eejection. VH Preferences. (a) In General, (b) Moiety Provable. (o) Mecovery by Trustee. (d) Surrender of. Vm Priority op. (a) In General, (b) Judgment. VIII. Priority of — continued. (c) Operatives, (d) Refused, (e) Bent. (f) State. (g) United States, IX. Provable. (a) Defined. (b) In General. (c) Against or by Partnership. (d) Based on Commercial Paper,, (e) By Wife. (f) Costs. (g) For Insurance, (h) For Interest. (i) For Judgment. (j) For Beduoed Amxmnt — Com- mercial Paper. (k) For Reduced Amount — Oeni- erdl. (1) For Value of Goods, X Not Provable. (a) In General. (b) Barred by Limitation. (c) Based on Commercial Paper. (d) By or Against Partn&rship,. (e) By or Against Wife, (f) For Judgment. (g) Illegal. (h) Usurious, XL Set-off. XIL To BE Included in Petition. See Arrest, 7; Bank, 6, 13, 16; Disoharoe,. 13, 31, 39, 43, 46, 115-130, 136, 144, 195, 343- 346, 350, 353, 358, 374, 377, 387, 388, 393, 294; Dividends, 30; Estates, 1, 71, 151,. 313, 313, 246; Evidence, 18, 97, 101, 103; Execution, 16; Lien, 3, 4, 34, 46, 47, 60;. 68, 73, 98, 103, lio, 113, 116, 130; Mort- gage, 8, 64, 94; Notice, 65; Pleading and Practice, 10; Eefbree, 31, 33, ,24, 33;. Secured Claims, 8, 38, 39, 40, 50, 55, 57? Statutory Construction, 35; Stock- holders, 22; Surety, 11. I. Lfr Geneeal. 1. A register made a report on a certain claim without recommending that it be al- lowed or disallowed. Held, he might amend, the report in court. In re Campbell, 17 N.. B. E. 4; 3 Hughes, 376; Fed. Cas. 2,348. 48 CLAIMS, IL 2. A petitioning creditor may proceed to an adjudication notwithstanding a tender of the full amount of his claim and costs; but where the petitioner is the only creditor, pro- ceedings against the debtor will be dismissed upon such tender. In re Sheehan, 8 N. B. R. 345; Fed. Cas. 12,737. 3. Where a creditor places his claim in the hands of a collection agent to forward for collection, he 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 confession obtained by him, although the proceeds were remitted to the collection agent. Hoover, Ass. etc., v. Wise «t al., 14 N. B. R. 264; 91 U. S. 308. 4. Where a dividend has been ordered on the claim of an attorney for alleged profes- sional services rendered the bankrupt, the court will restrain the register and the as- signee from making or paying such dividend until further order, to enable any one inter- ested to apply to vacate the order for the dividend. In re New York Mail Steamship •Co., 8 N. B. R. 73; Fed. Cas. 10,212. 5. The mere filing of a petition in bank- ruptcy will not disable a creditor from suing on his unpaid claims. Booth v. Meyer et aL, 14 N. B. R. 575. 6. The power of marshaling assets will not be exercised to the material injury of the creditor holding a claim upon both funds. A mere delay or postponement of payment is not a material injury, the interest on the claim being an adequate compensation for delay. In re SauthofE & Olson, 14 N. B. R. 364; 7 Biss. 167; 5 Amer. Law Reo. 173; 8 Chi. Leg. News, 370; 3 Cent. Law J. 544; 3 N. Y. Wkly. Dig. 96; Fed. Cas. 12,379. 7. The promise by which a discharged debt is revived must be clear and unequiv- ocal, such promise not being contained in the following language: "Be satisfied; all will be right. I intend to pay all my just debts, if money can be made out of hired labor. Security debt I cannot pay. All will be right betwixt me and my just creditors." Allen & Co. v. Ferguson, 9 N. B. R. 481; 18 Wall. 1. 8. C, who had a claim for compensation for the destruction of a vessel by a Confed- erate cruiser equipped and sent out in Eng- land, transferred the claim to his wife when he was free from debt. Afterward he be- came bankrupt. Held, that such claim could be .transferred. Williamson et aL, Ass., v. Colcord and wife, 13 N. B. R. 319; 1 Hask. 620; Fed. Cas. 17,753. 9. Where a creditor advances money to pay a valid execution and takes a judgment for his own claim and the money so ad- vanced, an execution on such judgment will be void as to the old claim, but good as to the advance. Lathrop v. Drake et aL, 18 N. B. R. 472; 91 U. S. 516. II. FlDTJCIAEY. See Agent, 8, 13; Teustee,148, 166. 10. A debt created by fraud or embezzle- ment of the bankrupt or by his defalcation while acting in a fiduciary capacity is prov- able. In re Rundle and Jones, 3 N. B. R 49; 1 Chi. Leg. News, 30; Fed. Cas. 13,138. 11. A claim for the proceeds arising from the sale of goods by a city auctioneer not ac- counted for by him is a debt not barred by a discharge, it being created while the debtor is acting in a fiduciary capacity, and the sureties on the auctioneer's bond are not released by his discharge. Mayor et aL v. Walker et al., 11 N. B. R. 478. 12. A bankrupt is liable to arrest pending bankruptcy proceedings upon a debt created by his defalcation of the proceeds of goods sent to him to be sold on commission and for which he refuses to account. In re Kimball, 3 N. B. R. 74; s. C. (affirmed by circuit court), 3 N. B. R. 114: 2 Ben. 554; Fed. Cas. 7,768. 13. Where a factor buys stock for his principal and takes the same in his own name and deposits it to secure a loan made by himself, the principal is only entitled to share pro rata in a fund deposited by the fac- tor for the redemption of the stock pledged. Ungewitter v. Van Sachs, Ass., 3 N. B._R. 178; 4 Ben. 167; 1 Amer. Law T. Rep. Bankr. 234; 3 Amer. Law T. Rep. Bankr. 195; Fed. Cas. 14,343. 14. A consignment of goods was made, the consignee giving his acceptance for their value, payable partly at sight and partly at a future day, and agreed to account for the whole price, to guarantee the sales and to re- ceive a commission, with other stipulations making him primarily liable. He became CLAIMS, m, IV. 49 fcankrupt. Held, the claim was not of a fidu- ciary character. Ex parte Flannagans, 12 N. B. R 330; 2 Hughes, 264; 14 Amer. Law Keg. (N. S.) 688; 4 Amer. Law Eec. 304; Fed Cas. ^855. III. Feaudtilent. See Fraud, 23, 84. 15. A claimant in a haniiruptcy proceed- ing may present a claim arising from fraud and receive his dividend, but may not prose- cute it until the question of discharge is de- termined, but thereafter, whether the peti- tioner be discharged or not, it remains a valid claim, recoverable in any proper form of suit. Stokes & Leonard v. Mason, 12 N. B. R.498. 16. A judgment was recovered for dam- ages for tne seduction of a daughter, there being no promise of marriage, and no acts or devices practiced which woidd amount to legal fraud on the father. Meld, not a debt created by fraud. Howland v. Carscm, 16 N. B. R. 373. 17. If a bankrupt put into his schedule, as due, a debt which is fictitious, it will, under the twenty-ninth section of the bank- rupt act of 1867, prevent his obtaining a dis- charge, even though the debt be not proved. In re Orcutt, 4 N. B. E. 176; 5 Ben. 19; Fed. Cas. 10,550. 18. Evidence of fraud in the creation of a debt, sought to be introduced by a creditor, is inadmissible in proceedings in bankruptcy. In re Tallman, 1 N. B. E. 123; 3 Ben. 848; 1 Amer. Law T. Eep. Bankr. 122; Fed. Cas. 13,739. IV. Lsr Composition PEooEEDmss. See Composition, 59, 63, 96, 100. 19. In composition proceedings a creditor offered to vote without first proving his claim. Held, that he could not. In re Math- ers et aL, 17 N. B. E. 325; Fed. Cas. 9,274 20. A statement of assets and debts in pro- ceedings for composition is not invalid be- cause the bankrupt has omitted therefrom a claim which he believes, on the advice of counsel, to be worthless. In re Eeiman et aL, 13 N. B. E. 128; 13 Blatch. 562; Fed. Cas. 11,675. 21. A creditor having demanded payment 4 in full in advance, as a condition of consent' ing to sign a composition agreement of the debtor to pay his creditors seventy cents on the dollar, was held Liable to repay the amount to the assignee, and did so, and sought to prove his original claim, the com- position having failed. Held, that under the circumstances he was entitled to do so. Brookmire & Eankin v. Beata, Ass., 13 N. B. E. 317; 8 DilL 136; 3 Cent. Law J. 365; Fed. Cas. 1,943. 22. Agents of a manufacturer advanced him their notes, which he indorsed and had discounted. The agents became bankrupt and effected a composition, the creditors re- serving the right to prove the amount of the notes against the other parties to them. On the bankruptcy of the manufacturer, held, that the holders of the notes need not give credit for the full amount received from the agents, but must abate their proof by the amount of the manufacturer's property appropriated in the composition. Ex parte Harris et aL, In re Cochrane, Jr., 16 N. B. E. 433; 3 LoweU, 568; Fed. Cas. 6,109. 23. A debtor discharged in composition proceedings gave new notes for pre-existing ones to a creditor who signed the resolution. The debtor again went into bankruptcy. Held, that the claim so renewed was not to be postponed to claims of new creditors. In re Merriman's Estate, 18 N. B. E. 411 ; 44 Conn. 587; 36 Pittsb. Leg. J. 130; Fed. Cas. 9,479. 24. A bankrupt, having offered a compo- sition, stated by petition that E. claimed a sum which he wholly denied. E.'s name and residence were scheduled with the statement that the claim was disputed. An action was pending in a state com-t upon the debt. The bankrupt prayed for thirty days after the determination of the action in which to offer the j)ro rata composition, or that the claim be proved. The petition was granted. Ex parte Trafton, 14 N. B. E. 507; 3 LoweU, 505; Fed. Cas. 14,133. 25. A claimant held notes indorsed by " bankrupts. The makers were adjudged bank- rupt, and effected a composition June 11, 1878, and gave notes payable in three, six and pine months. The claimant refused the notes till September 35, 1878, when he accepted cash for the matured note and the other notes. Oa September 9, 1878, he proved for the whole 60 CLAmS, V-VII, (a). amount of the original notes. Held, that the proof was correct. In re Hicks et al., 10 N. B. R 299; Fed. Cas. 6,456. 26. A composition authorized the bank- rupts to continue in business under direction of a committee and in the firm name. The committee represented to a creditor that debts incurred subsequent to the composi- tion would be paid in full before payment of the old indebtedness, but that the committee would not be personally liable. The business resulted disastrously. Held, that the new creditors were not entitled to preference. In re Brightman et al., 18 N. B. E. 566; 19 Alb. Law J. 55; Fed. Cas. 1,879. 27. An assignee will not be authorized by the court to compound debts for the purpose of compromising the same under direction of a committee of creditors, where all the creditors did not vote when such committee was appointed. In re Dibblee, 3 N. B. E. 17; 3 Ben. 354; Fed. Cas. 3,885. y. JUEISDICTION OF OoUET OyEE. See CoTJBTS, 245, 378; Stat of Proceed- ings, 20. 28. By the receipt and filing of proof of debt, and by it alone, the court obtains juris- diction of the claim and of the creditor pre- senting it, and then only does its revising power over such proof comlnence. The receiv- ing and filing of proof of debt concludes noth- ing, and the power still remains in the court to revise and correct or reject it altogether. In re Merrick, 7 N. B. E. 459; Fed. Cas. 9,463. 29. The court has no discretion to reftise to receive and file a proof of debt which ap- pears on its face to have been taken by a proper officer and to be correct in form and in substance. Id. 30. A proceeding to prove a debt against the bankrupt's estate is part of a suit in bankruptcy over which the supreme court had jurisdiction under the act of 1867. and not an independent suit at law or in equity. Leggett V. Allen, 110 U. S. 741. 31. Where a creditor presents his claim he at once subjects himself and his claim to the jurisdiction of the court, and becomes subject to'its orders within the provisions of the bankrupt act, among which is the pro- Tision that the court may examine the cred- itor concerning the debt sought to be proved. In re Paddock, 6 N. B. E. 396; Fed. Cas. 10,658. 32. Under the bankrupt act all existing heirs are fully protected, but their creditors must prove their demands and enforce their Uens through the bankruptcy court. AH the bankrupt's property is in eustodia legi» and subject to the order of the bankruptcy court. Davis v. Anderson, 6 N. B. E. 146; Fed. Cas. 3,623. 33. The claim of a creditor who has, under section 23 of the act of 1867, proved his- debt and had the same allowed by the register after the appointment of a trustee to wind up the bankrupt's affairs under section 43 of that act, will be refused im- less he applies directly to the court for the- allowance of the same. In re Trowbridge,^ 9 N. B. E. 274; Fed. Cas. 14,191. VI. Peocedhee Ajtee Kejeotion. 34. The proof of a debt offered by a cred- itor was rejected by the district court, on objection by the assignee. Held, that the creditor should sue the assignee and thus es- tablish his claim. Adams v. Meyers, 8 N. B. E. 214; 1 Sawy. 306; Fed. Cas. 63. 35. A claim which has been rejected by the assignee and returned to the register for further proof should not be ordered paid, without notice to the assignee and an oppor- tiinity given to answer the creditor's petition. In re Mittledorfer & Co., 3 N. B. R 9; Chase, 276; Fed. Cas. 9,674 36. Creditors inhibited from proving their debts will be excluded from voting for an as- signee. In re Stevens, 4 N. B., E. 123; 4 Ben. 513; Fed. Cas. 13,391. 37. The assignee may withhold payment of a dividend on a particular claim where its declaration is unauthorized. In re Her- rick and Herrick, 13 N. B. R 312; Fed. Cas. 6,420. Yll. Peefeeences. See Preferences, 7, 20, 25, 37, 83, 125, 145,. 186, 195, 199, 303. (a) In General. 38. In respect to the right to prove a claim, it makes no differefice whether a trans- fer claimed to be a preference js construct- ively fraudulent under the bankrupt act or CLAIMS, VII, (b), (c). 51 under the statute of Elizabeth. Burr v. Hop- kins, Ass., 13 N. B. R. 211; 6 Biss. 345; 7 Chi. Leg. News, 266; Fed. Cas. 3193. 39. H., who had received a preference for a certain debt, offered proof of other debts against the bankrupt which were not due at the time the preference was given. Held, that the same were not affected by the preference. In re Arnold, 3 N. B. E. 61; Fed. Cas. 551. 40. A creditor who has accepted a con- veyance which defeats or delays the opera- tion of the bankrupt act may not participate in the election of an assignee, and proof of his claim will be postponed until after the as- signee is chosen ; but creditors who have only assented to such transaction after its con- summation may vote. In re Chamberlain & Chamberlain, 3 N. B. R 173; Fed. Cas. 3,574 41. If a preferred creditor have two separ rate claims and receive a preference on one of them alone, he may prove the other. In re Lee, 14 N. B. K. 89; 33 Pittsb. Leg. J. 196; Fed. Cas. 8,179. 42. To a bill by the assignee to set aside a mortgage given hj the bankrupt to secure a pre-existing indebtedness, — suit by the gov- ernment being, at the time of such giving, pending against the insolvent, on which judgment was obtained, — an answer replied that the claim of the government was merged in the judgment. Held', that the liability existing at the time of the giving of the mortgage was the debt, and, the subsequent judgment being neither a satisfaction nor a payment of it, the mortgage was void. Burf ee V. First Nat. Bank of Janesville, 9 N. B. R. 314. 43. A, purchased logs from a bankrupt and took an assignment of a note given by the bankrupt to B., with intent to obtain a preference for B. Held, that A. held the note in trust for B., and that the proof of debt should be expunged. In re Stein, 16 N. B. R. 569; Fed. Cas. 13,853. 44. A., within four months of filing a pe- tition, made an assignment of all his goods in trust to B. and C, to pay their claims in full, and other creditors were to be paid if there were .sufficient funds, and if not, pro rata. Held, that the assignment was void; that B. and C. had notice of A.'s insolvency, and should not be allowed to prove or share in the estate. Stobaugh v. Mills & Fitch, 8 N. B. R. 361; 5 Chi Leg. News, 536; 3 Amer. Law Reo. 666; 5 Leg. Op. 139; Fed. Cas. 18,461. 45. An open running account consisting of items of charges and credits at different times, on which was credited the amount at wliich property was purchased by way of fraudulent preference, leaving a balance proved before the register against the bank- rupt's estate, was held prima facie to be but a single debt, and by reason of such prefer- ence not entitled to a dividend on any pari; thereof. In re Richter's Estate, 4 N. B. R. 67; 3 Chi. Leg. News, 33; 1 DilL 544; Fed. Cas. 11,803. 46. A preference will not bar the proof of a debt unless it was given and received by the parties to such debt. In re Comstock & Co., 13 N. B. E. 110; 3 Sawy. 830; Fed. Cas. 3,079. 47. A. & Co. advanced money to C. and D., and expected in return to receive their cot- ton. A. obtained judgment for the amount due his firm. A motion was made in bank- ruptcy proceedings to expimge the debt of A, & Co. Held, that they had reasonable cause to believe their debtors insolvent before ob- taining their judgment, and that shipments of cotton after the insolvency, when ad- vances were made at the time to the bank- rupts, were not a preference, but a sale. Har- rison V. McLaren, 10 N. B. E. 344; Fed. Cas. 6,189. (b) Moiety Provdhle. 48. A creditor of a bankrupt, knowing he was insolvent, received preferences, and af- terwards filed his claim for the amounts due him from the bankrupt. Held, that he could prove only a moiety of the debt. In re Schoen- enberger, 15 N. B. E. 305; Fed. Cas. 13,473. 49. A creditor of an insolvent firm, with knowledge of such insolvency, procured a member of the firm to make his promissory note, secured by mortgage of individual prop- erty, in payment of the firm debt. Held, that such payment was a preference and that the creditor could only prove a moiety of the debt against the firm. In re Parker et aL, 19 N. B. E. 340; Fed. Cas. 10,731. (c) Recovery ly Trustee 50. The payment by creditors of a decree obtained against them in a suit by the as- 52 CLAIMS, Vn, (d). signee to recover a preference is not a sur- render and they are not entitled to prove their debt. In re Tonkin & Trewartha, 4 N. B. R. 13; 3 Amer. Law T. 331; 1 Amer. Law T. Eep. Bankr. 333; Fed. Cas. 14,094 51. The prohibition of the creditor to prove his debt, in section 39 of the act of 1867, applies to cases where he has refused upon demand to surrender his preference, and compelled the assignee to recover by- suit the money or property claimed and held by him in fraud of the provisions of the act. He may surrender his preference under either section 35 or 39 and prove his debt be- fore a recovery against him by judgment, but after' a recovery he is not permitted to prove under either. In re Hunt & Howell, 6 N. B. E. 433; Fed. Cas. 6,883. 52. An assignee in bankruptcy recovered a judgment against a preferred creditor, set- ting aside the preference. The creditor then Bought to prove his claim. Held, that the claim could not be proved. In re Cramer, 13 N. B. R. 335; 8 Chi. Leg. News, 106; Fed. Cas. 3,345. 53. A bankrupt as executor received $11,330. Less than four months prior to fil- ing his petition he made a mortgage for the amount on his real estate to himself as ex- ecutor. Afterwards a prior mortgage was foreclosed. The later mortgage was held to be in fraud of the bankrupt law and void. Afterwards the bankrupt proved for the debt. Held, that there was no voluntary surrender of the mortgage and that he could not prove for any part of the debt. In re Dakin, 19 N. B. E. 181; Fed. Cas. 3,539. 54. Creditors who had been preferred by the bankrupts offered the same debt for proof, the preference having been recovered by the assignee and paid on execution. The debt was admitted for proof. In re Black et aL, 17 N. B. E. 399; Fed. Cas. 1,459. (d) Sv/rrender of. 55. A preferred creditor may prove his debt after a surrender of the preference, un- less a recovery has been had against him, under sections 35 and 39 of the bankrupt act of 1867. In re Scott & McCarty, 4 N. B. E. 139; Fed. Cas. 13,518. 56. The right of a preferred creditor to prove his debt is conferred by the bankrupt act of 1867, independent of the second clause of section 33 of that act, the operation of that clause being merely to suspend that right until such creditor shall have surren- dered all property, etc., as therein provided; and in the construction of this clause it makes no difference whether the petition be voluntary or involuntary. Id. 57. A creditor who, knowing the condi- tion of his insolvent debtor, receives pay- ments, accepts a fraudulent preference, and cannot prove his claim if he refuses to sur- render the preference. In re Forsythe and Murtha, 7 N. B. E. 174; Fed, Cas. 4,948; In re Clarke & Doughtrey, 10 N. B. E. 31 ; 3 Hughes, 405; Fed. Cas. 3,843; Ecker v. McAllister, 17 N. B. E. 43. 58. If the debt be single and entire, or consist of separate and disconnected debts, and a preference is received on account of them all, no portion can be proved without a previous surrender, and if proved, it will, on application, be expunged. In re Holland, 8 N. B. E. 190; Fed. Cas. 6,604. 59. A preferred creditor cannot prove his debt, or any part of it, until he has volun- tarily, or by compulsion, surrendered his preference. In re Currier, 13 N, B. E. 68; 3 Lowell, 436; Fed. Cas. 8,493. 60. A creditor secured by a deed of trust in the nature of a preference, but who dis- claims any interest thereunder, may prove his claims unsecured. In re Saunders, 13 N. B. E. 164; 3 Lowell, 444; Fed. Cas. 13,371. 6 1 . Where one is both creditor and trustee under the trust giving him a preference, he is presumed, by receiving delivery of the trust deed without express qualification, to assent to it, and cannot prove his debt in bankruptcy without a complete surrender of his preference. Id. 62. A creditor who had obtained a pref- erence by taking goods from the debtor paid a judgment obtained by the assignee in bankruptcy for the value of the goods, and then proved his claim against the estate. Held that, there being no actual fraud, the claim could be proved, the payment being a surrender of the preference. In re New- comer, 18 N. B. E. 85; 10 Chi. Leg. News, 347; 36 Pittsb. Leg. J. 3; Fed. Cas. 10,148. 63. If the assignee accept the amount re- CLAIMS, VIII, (a), (b). 53 ceived by a preferred creditor after he has put in his proof, and the creditor has been put in proof before the special examiner to whom the action has been referred, and dis- misses his suit upon payment of costs, this constitutes a surrender, and such creditor may prove his debt. In re Riorden, 14 N. B. R. 333; Fed. Cas. 11,852. 64. Prior to the amendatory act of June, 1874, a voluntary surrender was a prerequi- site to the right to prove, and it was too late for the creditor to avail himself of the priv- ilege after he had elected to contest the as- signee's title to the money or property pref- erentially received. In re Lee, 14 N. B. R. 89; 38 Pittsb. Leg. J. 196; Fed. Cas. 8,179. YIII. Peioeitt of. See Assignments, 37; Banks, 3, 4, 8. (a) In General. 65. Preferred creditors can have priority in payment only out of assets that pass to the assignee in bankruptcy. In re Chamber- lin, 17 N. B. R. 50; 9 Ben. 149; Fed. Cas. 3,580. 66. Abankrupthad no assetsof real value; a creditor entitled to preference objected to a confirmation of the composition unless his claim be paid in full or unless the conflrmar tion be had subject to his claim. Held, that his priority extended only to the assets. Id. 67. Where the bankrupt has made an agreement to pay for certain services which are of benefit to the other creditors, such claim will be preferred. In re Nounnan & Co., 6 N. B. R 579. 68. When a mortgagee has proved his claim in bankruptcy proceedings he wiU be entitled to preference out of the funds real- ized from the sale of the mortgaged property, and if an action to foreclose become neces- sary he should first obtain leave of the court. Sohulze, Ass. etc., v. Bolting, 17 N. B. R. 167; 8 Biss. 174; Fed. Cas. 12,489. 69. A. indorsed B.'snote, and to indemnify him against loss B. assigned to A. a bond for title to a tract of land. Held, that A. had priority over judgment creditors of B. in his claim to the proceeds of B.'s intei-est in the land. In re Reynolds, 16 N. B. R. 158; Fed. Cas. 11,724 70. The creditors of the firm of A. & C. are entitled to priority of payment out of the assets as to property acquired from the firm of A. & B. by a dissolution of that firm under an agreement by A. to pay certain partner- ship debts with reference to it and against those debts. Such debts are to be paid out of any surplus due A. from a sale of the prop- erty. Crane, Ass. etc., v. Morrison et al., 17 N. B. R. 393; 4 Sawy. 138; Fed. Cas. 8,855. 71. Where the separate estate of the wife of a bankrupt had been used to erect a house, with an agreement that the deed to the house and land be made to the wife, and where the wife voluntarily submitted to the bankruptcy proceedings, it was held the wife's claim should be paid out of the proceeds of the sale prior to judgment creditors. In reCampbell, 17 N.B. R. 4; 3 Hughes, 376; Fed. Cas. 3,348. 72. When a man and his wife hold them- selves out to the world as partners in trade and the firm becomes bankrupt, the partner- ship creditors are entitled to be paid in pref- erence to individual creditors of the husband out of the partnership assets. In re Kinkead, 7 N. B. R. 439; 3 Biss. 405; 7 West. Jur. 110; 6 Amer. Law T. Rep. 45; 5 Chi. Leg. News, 317; 1 Amer. Law Rec. 533; 3 Bench & Bar (U.S.), 41; Fed. Cas. 7,834. 73. Costs and expenses of bankruptcy pro- ceedings are entitled to priority of payment out of funds in court derived from the sale of the bankrupt's property. In re White- head, 3 N. B. R. 599; 1 Chi. Leg. News, 326; Fed. Cas. 17,562. 74. Where, by the articles of association, a seat in a stockholders' board is, on the in- solvency of a member, to be sold, and the proceeds applied first to the payment of debts due other members, the assignee in bank- ruptcy will take only the balance after pay- ment of such debts. Hyde v. Woods, 10 N. B. R. 54; 3 Sawy. 655; Fed. Cas. 6,975. 7 5 . The twenty-eighth section of the bank- rupt act of 1867 does not give to the five classes of creditors therein enumerated any priority over secured creditors. In re McCon- nell, 9 N. B. R. 387; 10 Phila. 387; 31 Leg. Int. 61; 21 Pittsb. Leg. J. 107; Fed. Cas. 8,713. (b) Judgment. 76. A debtor made a general assignment, subsequent to which a creditor obtained judg- ment and levied on the goods in the hands of the assignee. A petition was then filed ■54 CLAIMS, VIII, (c), (d). against the debtor and he was adjudged a bankrupt. The claim of the execution cred- itor took precedence over the claim of the assignee in bankruptcy. McDonald, Ass., V. Moore et aL, 15 N. B. E. 36; 8 Ben. 579; 1 Abb. N. C. 53; 33 Int. Eev. Eeo. 35; 3 N. Y. Wkly. Dig. 461; 34 Pittsb. Leg. J. 88; Fed. Cas. 8,763. 77. There being no dispute as to the valid- ity of judgments under v^hioh executions were issued and levy made, execution cred- itors are entitled to satisfaction out of pro- ceeds of goods levied on by sherifE and afterwards seized by a United States marshal under warrant in bankruptcy. Swope et al. V. Arnold,. Ass;, 5 N. B. R. 148; Fed. Caa 13,703. 78. A. commenced an action against a debtor and levied an attachment .upon his land. Another creditor obtained judgment afterwards and levied execution on the same land. The debtor filed a petition in bank- ruptcy, and sale of the land was enjoined. It was sold by the assignee, and the amount received was enough to pay both judgments. Held, that A. was entitled to priority, as his judgment lien related back to the service of the attachment. Hudson, Ass., v. Adams, 18 N. B. E. 103; 3 Cin. Law BuL 1,066; Fed. Cas. 6,832. 79. Where one creditor claims a lien by virtue of a judgment recovered in Novem- ber, 1866, and recorded in October, 1867, and another creditor holds a mortgage executed and recorded April, 1867, the mortgage lien has priority over the judgment. In re Lacy, 4 N. B. R. 63i Fed. Cas. 7,970. 80. Costs on attachment, if a lien by state law, constitute a preferred claim. In re Hay et aL, 7 N. B. E. 344; 3 Lowell, 180; Fed. Cas. 6,353. (o) Operatives. 81. By the New Jersey laws landlords and operatives are on an equal footing as to pre- ferred claims and the payment of such claims pro rata. In re McConnell, 9 N. B. E. 387, 10 Phila. 387; 31 Leg. Int. 61; 31 Pittsb. Leg. J. 107; Fed. Cas. 8,713. 82. A bankrupt being unable to pay for labor rendered within six months prior to ad- judication settled with the workmen, who assigned their settled accounts to B., who presented the assigned claims for proof and demanded the rights of priority allowed workmen's claims. Held, that the claims should be allowed. In re Brown, 3 N. B. R. 177; 4 Ben. 143; Fed. Cas. 1,974. 83. Privileged debts may be paid as soon as the assignee receives enough money for that purpose, if the general creditors agree. Where there are privileged debts due work- men, the assignee has no right to waste their money in litigation for the supposed benefit of the general creditors. In re Sawyer, 16 N. B. E. 460; 3 Lowell, 551; 15 Alb. Law J. 380; Fed. Cas. 13,396. 84. Where an employee is throvni out of employment by the bankruptcy of his em- ployer, and has been paid for the time he actually worked, he is not entitled to priority in payment for the time during which he was unable to find other employment. In re Pevear et al., 17 N. B. E. 461; Fed. Cas. 11,053. 85. Upon proof of claims made by the father of a minor son, for the labor of such son as an operative within the six months next preceding the first publication of the notice of proceedings in bankruptcy, hdd, that the father may be preferred to an amount not exceeding $50. In re Harthom, 4 N. B. E. 37; Fed. Cas. 6,163. 86. A. having been employed to examine the books of B., who afterwards became bank- rupt, asked to have his bill for services put on the footing of a privileged debt under sec- tion 5101 of the Eevised Statutes, providing that wages due to any clerk shall be pre- ferred. Held, that his claim was privileged. Ex parte Eockett, 15 N. B. E. 95; 3 Lowell, 533; Fed. Cas. 11,977. (d) Refused. 87. A creditor proved his claim on a judg- ment which by the laws of the state created no lien on the property of the debtor. Hdd, he was not entitled to priority. In re Cozart, 3 N. B. E. 136; Fed. Cas. 3,313. 88. A. & Co. employed B. to perform serv- ices, and afterwards went into bankruptcy. Held, that as the services performed by B. were before proceedings in bankruptcy were commenced, they were therefore not in aid of such proceedings or of the assignee, and he cannot be considered a preferred creditor. In re Nounnan & Co., 7 N. B. E. 15. CLAIMS, VIII, (e), (f). 65 89. Contained in the schedule of debts of a, bankrupt was one for legal services in pre- paring the petition and schedules and advice in relation thereto. Proof was filed of the claim. It was held not to be such as are em- braced in section 28 of the act of 1867. In re Heirschberg, 1 N. B. R. 195; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 6,829. 90. A petition was filed for allowance as a, preferred claim of attorney's fees for pre- paring the petition and schedules in bank- ruptcy. Held, it is not a preferred claim, but reimbursement was ordered for money advanced for the marshal's fee. In re Gies, 13 N. B. R 179; 7 Chi. Leg. News, 379; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 5407. 91. An attorney claimed priority for serv- ices rendered before the beginning of bank- ruptcy proceedings, in defending a suit. Held, that he was a general creditor. In re Handell, 15 N. B. E. 71; Fed. Cas. 6,017. 92. Costs incurred in an attachment suit in a state court cannot be paid by the as- signee in bankruptcy as a preferred debt, unless by the state law such costs are a lien against the property attached. In such a case the sherifiE is the agent of the plaintiff in the action and must look to him for his fees and expenses. Gardner, Deputy Sher- ifiE, V. Cook, Ass., 7 N. B. R. 346; Fed. Cas. 5,336. 93. Where an execution creditor has been «njoined, in aid of proceedings in bank- ruptcy, he may, if he elect to do so, have his claim of priority of payment out of the pro- ceeds of sales of the property upon which bis execution is alleged to have been a lien de- termined at a general meeting of creditors. Where the bankrupt has sufEered his creditor, who had reasonable ground for believing him insolvent, to obtain judgment, his claim for priority should be disallowed. In re Dunkle and Driesbach, 7 N. B. R. 72; Fed. Oas. 4,160. 94. An internal revenue tobacconist's bond upon which individual members of a co- partnership are sureties is not entitled to priority of payment out of the partnership assets of the estate of the copartnership in bankruptcy. In re Webb et aL, 3 N. B. E. l83; 3 Amer. Law T. Rep. Bankr. 87; 9 Int. Rev. Reo. 169; 16 Pittsb. Leg. J. 43; Fed. Cas. 17,313. 95. A bank suspended payment, but sub- sequently re-opened and received new depos- its which were not kept separate, though the bank had advertised that they would be re- ceived as special deposits. It again failed and was adjudged an involuntary bankrupt. Held, that the new deposits were not special, and the depositors must take as general de- positors. In re Mut. Bldg. Fund Society, etc., 15 N. B. R. 44; 2 Hughes, 874; 5 Amer. Law Rec. 571; Fed. Cas. 9,976. (e) Bent. See Rent, 33, 89. 96. When a landlord makes a demand upon the assignee, before the removal of the goods, for an amount not exceeding a year's rent, it should, if unpaid, be admitted as en- titled to priority of payment whether the right of distraining exists or not. In re Ap- pold, 1 N. B. R. 178; 7 Amer. Law Reg. (N. S.) 624; 6 Phila. 469; 35 Leg. Int. 180; 1 Amer. Law T. Rep. Bankr. 83; Fed. Cas. 499. 97. A grocer was adjudicated a bankrupt. On the day set by the assignee for the sale of the goods on the premises, a bailifif of the landlord distrained for two quarters' rent. The goods were then sold, the proceeds being held subject to the claim for rent. The claim was allowed. Id. 98. A lessor who leased a storehouse to a bankrupt prior to adjudication, the assignee retaining possession, and the lessor having had a lien for rent on the goods stored, which he might have enforced at his pleasure, has a preferred claim for his rent. In re Rose, Lyon & Co., 3 N. B. R. 63; 1 Bait. Law Trans. 635; Fed. Cas. 13,043. (f) State. 99. A bank owed debts to the state and also taxes levied under the laws of the state. . Held, that the taxes had priority over the I other claims, but that for a debt other than taxes the state had no preference over other creditors of the same class. In re Brand, 3 N. B. R. 85; 3 Hughes, 334; 3 Amer. Law T, Rep. Bankr. 66; Fed Cas. 1809. 100. A state need not prove its claim in bankruptcy to recover taxes due it on prop- erty of the bankrupt, and the bankrupt law cannot compel proof of such cla,un nor sell 56 CLAIMS, VIU, (g), IX, (a). the property so subject free from the tax lien. Stokes v. State of Georgia, 9 N. B. R. 191. 101. Where the preferred creditor was the state of New York by virtue of a bond given to the people of the state, and the moneys were to be turned into the treasury of the city of New York, it was held that the state was the creditor. In re Chamberhn, 17 N. B. R. 50; 9 Ben. 149; Fed. Gas. 2,580. 102. A bankrupt employed convicts under contract with a state. Held, that the claim of the state under such contract was enti- tled to preference under Revised Statutes, section 5101. In re Southwestern Gar Go., 19 N. B. R 404; 9 Biss. 76; Fed. Gas. 13,193. 103. The warden of a state prison depos- ited money, coming into his hands as warden, in a bank upon the order of the directors. The account was kept in the name of "H. N. Smith, warden." The bank was put into bankruptcy. The district court held the state could claim, and so have priority, but the circuit court reversed that decision, and held that the warden could prove his ac- count as a general creditor. In re Corn Ex- change Bank, 15 N. B. R 431; 7 Biss. 400; 9 Chi. Leg. News, 354; 4 Law & Eq. Rep. 39; 15 Alb. Law J. 351; Fed. Gas. 3,243. 104. A claim proved by A. as the warden of the state prison for the purchase price of property belonging to the state is entitled to priority. In re MiUer et aL, 17 N. B. R. 403; 26 Pittsb. Leg. J. 8; Fed. Cas. 9,554 (g) United States. See Uotted States, 1, 3, 3. 105. In case of insolvency or bankruptcy of a debtor of the United States, they are entitled to priority of payment out of his ef- fects (act of 1800). United States v. Fisher, 3 Cranoh, 358. See Harrison v. Sterry, 5 Granch, 289. 106. A claim of the United States govern- ment for a judgment recovered against a bankrupt for violation of the internal rev- enue laws is entitled to priority over the claims of other creditors in the distribution of the bankrupt's estate. In re Rosey, 8 N. B. R. 509: 6 Ben. 507; Fed. Gas. 13,066. 107. Where the United States has ob- tained judgment, with leave, it is entitled to priority upon the judgment, damages, costs and interest, and no proof of the claim is nec- essary. In re Bousfleld & Poole Mfg. Co., 17 N. B. R 153; Fed. Gas. 1,704 108. If one becomes surety for another under the revenue laws of the United States and a default ensues, although without hia partioipationor knowledge, his estate in bank- ruptcy is liable for the debt of his principal,, and the United States will receive payment in preference to his own creditors. Six Penny Savings Bank v. Estate of Stuyvesant Bank, 10 N. B. R 399; Fed. Gas. 12,919. 109. A claim of the United States against bankrupts to recover as a penalty the value of goods imported contrary to law is a prov- able debt. Barnes, Ass., v. United States, 12 N. B. R. 526; 21 Int. Rev. Rec. 213; 1 N. Y. Wkly. Dig. 177; Fed. Gas. 1,028. 110. F. purchased certain hogsheads of sugar, while in custody of the United States in bond, paying the full price as if the duty were paid, the seller engaging to pay the duty. This he did in part, when he became bankrupt. The purchaser proved his claim, and upon petition was subrogated to the priority of the United States. In re Kirk- land, Chase & Co., 14 N. B. R 139; 3 Hughes, 208; Fed. Gas. 7,843. IX. Peovable. See Banks, 6. (a) Dejmed. 111. Any debt which may be proved by complying with any of the provisions of the bankrupt act is a provable debt. Rankin et al. V. Florida, etc. R R Co., 1 N. B. R 196; 1 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 11,567. 112. Debts are provable, against a bank- rupt estate as of the date of the commencfe- ment of the proceedings in bankruptcy, and mutual debts or mutual credits referred to in the Revised Statutes, section 5073, must be such as are in existence at the same date. Boatman's Sav. Bank v. State Sav. Ass'n, 114 U. S. 265. 113. It was the intention of congress in passing the act of 1867 to adopt the titoa of actual adjudication of bankruptcy as the time at which a debt must exist in order to^ be provable, in contradistinction to the tima of the commencement of proceedings in banic- CLAIMS, IX, (b). sr ruptcy. In re Hennooksburg and Block, 7 N. B. B. 87; 6 Ben. 150; Fed. Cas. 6,367. 114. By the term "debts provable under this act " (1867), congress meant debts uncon- ditionally provable, without any release or other preliminary action, either by the court or by the assignee, being necessary. In re Scrafiord, 14 N. B. R. 184; 3 Cent. Law J. 252; Fed. Cas. 12,557. (b) In General. 115. If a debt "might have been proved," whether actually proven or not, it is em- braced within the category of debts from which a discharge is a release under the pro- visions of section 34 of the act of 1867, even if the creditor was not named in the sched- ule, and received no notice of the proceed- ings. In re Archenbrown, 11 N. B. E. 149; 7 Chi. Leg. News, 99; Fed. Cas. 504 116. If a register determine the amount due on a claim without hearing the claimant or appointing a time for hearing, his deter- mination is not conclusive, although the claimant and the assignee agreed that he should adjust it Moran et aL v. Bogert, 14 N. B. R. 393. 117. Where an employee was in the habit of receiving and paying out money for his employer, the employee may set off such moneyas may be in his hands at the time of the bankruptcy of his employer, against his salary due, whether he was in the habit of paying his own salary or not. Ex parte PoUard, 17 N. B. R. 228; 2 LoweU, 411; Fed. Cas. 11,25?. 118. An employee may prove his claim for damages for a breach of contract caused by the flUng of a voluntary petition in bank- ruptcy by his employer. Id. 119. That debts are contingent, in case the contingency happens before the close of the bankruptcy, or that it is difficult to assess damages for a breach of a contract, are not valid objections to the proof of a claim. Id. 120. Unliquidated damages, growing out of any contract or promise, when assessed, are provable debts, and may be set up by way of defense to show that no debt is due the petitioner entitling it to have the defendant declared a bankrupt. In re Osage Valley & S. Kan. R. R. Co., 9 N. B. E. 281; 1 Cent. Law J. 33; Fed. Cas. 10,592. 121. A claim continues to constitute a provable debt, if it originated in contract, even though induced by fraud and prose- cuted in an action for damages, although the fraud may have to be proved to entitle the plaintiff to recover. In re Sohwarz, 15 N. B. E. 330; 14 Blatchf. 190; 52 How. Pr. 513; 15 Alb. Law J. 350; Fed. Cas. 12,503. 122. A debtor, afterwards declared bank- rupt, employed counsel to prosecute a claim, the attorneys to receive one-half the amount recovered. The assignee of the bankrupt employed other counsel, who procured the substitution of his name as plaintiff under a similar agreement as to fees. The debtor was discharged before judgment was ob- tained. Held, that his counsel were entitled to one-half the recovery. Maybin v. Ray- mond, Ass., 15 N. B. E. 353; 4 Amer. Law T. Rep. (N. S.) 21; Fed. Cas. 9,338. 123. By an agreement between a creditor and his solicitor the latter was to recover from the bankrupt the amount of the debt or settle with him, all proceedings to be at the cost of the solicitor, who was to retain three-fourths of any sum collected. Held, that the claims being valid in their incep- tion, the champertous agreement did not prevent the creditor from proving the debt. In re Lathrop et al., 3 N. B. R. 105; 3 Ben. 490; Fed. Cas. 8,103. 124. On a motion to expunge the proof of a debt against which the statute of lim- itation had run, held that, the debt having been included in the debtor's schedules, it was provable. In re Hertzog, 18 N. B. R. 526; Fed. Cas. 6,433. 125. A. transferred to B., who knew of A.'s insolvency, property in payment of a pre-existing debt. A. at the time had no title to the property so transferred, but B. was ignorant of this fact. Held, that B. was not precluded from proving his claim in full, not having received a preference. In r& Bousfleld & Poole Mfg. Co., 16 N. B. R. 489; Fed. Cas. 1,703. 126. A defendant sold the plaintiff cer- tain land, gave a warranty deed, and agreed in writing to pay a mortgage on the land. The defendant was discharged in bank- ruptcy, after which the land was sold under S8 CLAIMS, IX, (c). the mortgage. On a suit on the warranty, Jield, that the plaintifl's debt was one prov- able in bankruptcy, and from which the de- fendant was discharged. Parker v. Brad- ford, 17 N. B. R. 485. 127. The court will allow a claim of a church corporation, founded upon a verbal promise by the bankrupt to M. that he would pay a certain sum if M. would subscribe a portion of the indebtedness due from the ■church to M., the promise being subsequently publicly announced by the bankrupt in the ■church, it appearing that the church trustees had incurred expenses upon the faith of the subscriptions generally. Capelle, Ass., v. The Trinity M. E. Church of Chester, 11 N. B. E. 536; Fed. Cas. 3,393. 128. After a petition in bankruptcy had been filed, a relative of one of the debtor's endeavored to buy up all the debts to settle the case out of court. Failing to do this, the ■claims were offered by him for proof. These ■debts were admitted. In re Pease, 6 N. B. E. 173; Fed. Cas. 10,880. 129. Where premises under a lease are ■condemned to the use of a railroad com- pany, and damages are paid by the company to the tenant upon the basis that his obliga- tion to pay rent during the remainder of the term will continue, which he expressly rec- ■ognizes and which he partly performs, the landlord, on the bankruptcy of the tenant, will be allowed to prove against the estate the amount of the unpaid instalments of rent, at their value at the time of the bank- ruptcy. In re Clancy, 10 N. B. E. 315; Fed. -Cas. 3,783. 130. A bankrupt brought an action against a debtor, and a counter-claim was pleaded. The plaintiff was adjudicated ■bankrupt before the trial, the defendant of- fered no evidence, and the plaintiff obtained judgment. Held, that the defendant was entitled to prove his claim in bankruptcy. In re Safe Deposit and Savings Inst., 18 N. B. E. 493. 131. Under valid attachments creditors took the real estate of the bankrupts. The tax collector made proof for taxes assessed prior to proceedings in bankruptcy. Seld, it would be inequitable to allow the oredit- ■ors to escape taxes if they were at the time of the levy allowed and deducted from the valuation by the appraisers. Foster et al., Ass., V. Inglee, Collector of Taxes, 13 N. R E. 339; Fed. Cas. 4,973. 132. An action to recover a provable debt will be stayed until a determination is had as to the discharge, whether the debt be one that will be discharged or not. In re Eosen- berg, 2 N. B. E. 81; 3 Ben. 14; 1 Chi Leg. News, 103; Fed. Cas. 13,054 (o) Against or ly Pwrlm^shvp. See Paetnees, 14, 43, 103, 138, 189-152, 161, 176, 183-190. 133. Debts due by a firm are so far the debts of each member that any creditor of the firm may prove the debts due him from the copartnership as against any member of the firm ; and whether he petition as an in- dividual or as a member of a firm, or of a late firm, the petitioner is liable both as an individual and as a copartner, and is jointly as well as severally liable upon a contract, whether made as an individual or as a mem- ber of the firm. In re Frear, 1 N. B. E 301; 3 Ben. 467; 35 How. Pr. 349; 1 Amer. LawT. Eep. Bankr. 133; Fed. Cas. 5,074. 134. A firm creditor, having also the in- dividual liability of one of the firm in respect to the same debt, may prove it against either the individual or the firm. In re Long, 9 N. B. E. 227; 7 Ben. 141; Fed. Cas. 8,476. 135. A partnership creditor has such an interest in the separate property of any one of the partners that he may proceed against the estate of one alone upon the proof of his death. In re Melick, 4 N. B. E. 26; Fed. Cas. 9,399. 136. Where there is no joint estate and no solvent partner, all the creditors, joint and separate, shall share, pari passu, in the es- tate of the bankrupt partner. In re Down- ing, 3 N. B. E. 183; 1 Dill. 33; 17 Pittsb.Leg. J. 169; 3 Amer. Law T. 165; 3 Chi. Leg. News, 265; 1 Amer. Law T. Eep. Bankr. 307; Fed. Cas. 4,044 137. A creditor who has a claim against a firm, and has proved it against the estate of two members of the firm who took the assets and assumed the debts of the firm, may prove for any balance due him against the third member of the firm, who subse- quently becomes bankrupt. In re Pease, 18 N. B. E. 168; Fed. Cas. 10,881. 138. Where a party tiles separate proofs CLAIMS, IX, (o). 59 •of debt for the same amount against the in- dividual members of the firm, the claims must stand as proven, and the motion of the assignee that they be stricken out will be overruled. In re Beers et al., 5 N. B. R. 211; Fed. Cas. 1,329. 139. A creditor holding the note of a co- partnership, indorsed by one of its members, may prove in bankruptcy against the copart- nership fund, and also against the separate es- tate of the indorsing copartner* and he may elect out of which fund he may be paid. Arguendo: He may collect dividends from both funds. Stephenson v. Jackson, 9 N. B. K. 355; 3 Hughes, 204; Fed. Cas. 13,374 140. Notes may be proved by the holders against the bankrupt estate of the firm, where drawn by one partner in the firm name, ap- parently in the course of partnership busi- ness, without mala fide or actual knowledge by the holder of want of authority or in- tended misapplication. Bush v. Crawford, 7 N. B. R. 299. 141. A creditor holding the note of a co- partnership of three members, indorsed by •one for part of his debt, and also three notes, each made by a copartner and indorsed by the others, and proving against the makers of the notes only, is entitled to dividends out of the several estates, joint or separate, against which proofs were made. Mead v. National Bank of Fayetteville, 2 N. B. R. 173 {8yo. ed.); 6 Blatohf. 180; 7 Amer. Law Reg. (N. S.) 818; Fed. Cas. 9,366. 142. If a creditor had recourse to the es- tate of a deceased partner, he is not precluded from an equal participation in the funds of an assignee of one who was a partner and in- debted to the deceased, and who afterward became bankrupt. In re Mills, 11 N. B. R. 74; Fed. Cas. 9,611. 143. A firm note issued to a partner for his share in the capital stock, and by him transferred to his wife, by whom such capital was advanced, may be proven against the individual estate of such partner, but not against the partnership. In re Frost & West- fall, 3 N. B. R. 180; Fed. Cas. 5,135. 144. Where an agent of a company con- verted to the use of a bankrupt firm of wliich he was a member acceptances held by the company, and indorsed them to his firm, who indorsed them to 8., held, that S. could prove against the estate of the bank- rupts the entire demand; that the company could prove its demand for money had and received; and if S. recovered the whole amount from the maker or acceptor, it would stand as trustee for the estate for the divi- dend paid. In re Mope & Co., 11 N. B. R. 483 ; Fed. Cas. 9,853. 145. An executor invested funds of the estate in his partnership business with the assent of his copartner, and on objection by the bankrupt partnership's assignee to the proof by the beneficiaries, entitled to such fund, of their debts against the partnership, they having already proved against the ex- ecutor's estate, held, that such proof was proper. In re Tesson et al., 9 N. B. R. 378; Fed. Cas. 13,844. 146. B., on dissolution of the partnership, bought A.'s interest, agreeing in writing to pay the firm's debts, and added to the stock of goods until he was adjudged a bankrupt. On objection by the individual creditors to the firm creditors sharing with them, held, that the joint creditors of A. and B. must share pro rata with the individual creditors of B. in the distribution of the bankrupt's estate, and that the firm creditors can par- ticipate in a dividend without showing that they have exhausted the retiring partner's individual estate. In re Rice, 9 N. B. R. 373; 31 Pittsb. Leg. J. 159; Fed. Cas. 11,750. 147. Firm creditors must be postponed to separate creditors, when partners file sepa- rate petitions, whether there are joint assets or not. In re Morse, 13 N. B. R. 376; Fed. Cas. 9,854. 148. Where claims are purchased on be- half of bankrupt copartners, the amounts must be refunded to purchasers of the claims as an equitable claim against the estate in the hands of the assignees. In re Lathrop et al., 5 N. B. R. 43; 5 Ben. 199; Fed. Cas. 8,104. 149. A. and B. were, at the time of their bankruptcy, indebted to the flrm.of C. & B. B. offered to prove the debt of the firm of C. & B. as the remaining or surviving part- ner having a right to wind up its affairs. Held, that the debt should be admitted to proof. In re Buokhouse & G-ough, 10 N. B. R. 306; 2 Lowell, 331; Fed. Cas. 3,086. 150. B. B. & K, composing the firm of E. & D. B. & Co.. executed as such a bond binding themselves jointly and severally. Held, that the bond may be proven against 60 CLAIMS, IX, (d). and paid from the dividends out of the sev- eral estates of the individual members of the Arm. In re Bigelow et aL, 3 N. B. R. 131; 3 Ben. 146; 3 Amer. Law T. Rep. Bankr. 41; Fed. Cas. 1,397. (d) Based on Cormrnrdal Paper. See CoMMEKCiAL Paper, 13-30, 40. 151. The holder of an accommodation note is entitled to prove it in full against the party for whose accommodation it was given, notwithstanding he has received a part of it from the maker. Ex parte Harris et aL, 16 N. B. R. 483; 3 Lowell, 568; Fed. Cas. 6,109. 152. Theholder of a promissory note may prove his claim against the estates of both the maker and the indorser and receive div- idends to the full amount of his debt. Na- tional Mount "Wollaston Bank v. Porter et al., 17 N. B. R. 339. 153. The holder of a negotiable note as- signed for value after the filing of the peti- tion may prove the debt against the bank- rupt maker, or oppose his final discharge. In re Murdock, 8 N. B. R. 36; 1 Lowell, 363; Fed. Cas. 9,939. 154. An indorser or drawer may prove on the note or bill if he has taken it up at any time before the final dividend, and, being provable, the debt will be discharged. Ex parte Talcott, 9 N. B. R. 503; 3 Lowell, 330; Fed. Cas. 13,184. 155. Proof of a note payable "in current money of the state '" in which it is made is, if not otherwise open to objection, allowable. In re Whittaker, 4 N. B. R. 41; Fed. Cas. 17,598. 156. "Where the holder of a note receives part of the amount due from the indorser, he may prove the whole amount against the estate of the bankrupt maker, and hold the surplus in trust for the indorser. If -the cred- itor omit to prove the debt, the indorser may prove the amount against the bankrupt's es- tate and receive dividends upon the whole amount. In re Ellerhorst & Co., 5 N. B. R. 144; 6 Amer. Law Rev. 163; Fed. Cas. 4,381. 157. Where a party, intending to take the property of a corporation and assume its debts, buys one of its notes which is indorsed by the bankrupt, Txeld, that the indorser (bankrupt) is not released. Ex parte Balch, 13 N. B. R. 160; 3 Lowell, 440; Fed. Cas. 789. 158. G. obtained judgment on notes against K. Bros., and S. K. Bros, were subse- quently adjudged bankrupts and G. proved against their estate. BeZd, that • the debt could be proved against the estate of thfr principal debtors, notwithstanding a joint judgment had been recovered therefor against the principal debtors and siurety. In re Kitzinger et aL, 19 N. B. R 153; Fed. Cas. 7,861. 159. An appeal was taken from the dis- trict court in bankruptcy, disallowing a claim based upon promissory notes given in re- newal of previous notes, and upon a deed of trust given in renewal of a former deed of trust. The claim was filed by the executors of the creditor. Motion was made to dismiss the appeal on the ground that it was not filed within ten days after the decree. The motion was denied, and upon the merits of the case the judgment below was reversed. Barron et aL v. Morris, Ass., 14 N. B. R 371; Fed. Cas. 1,055. 160. A. after January, 1869, paid a judg- ment rendered against him as surety of B. on a note given prior to 1869, and on proof of his debt against the estate of B. in bank- ruptcy, held, that within the meaning of sec- tion 33 of the act of 1867, A.'s debt was " contracted " after January 1, 1869. In re Parrisb, 9 N. B. R. 578; Fed. Cas. 10,769. 161. A bankrupt, intending bankruptcy, made an agreement with his attorneys, by which he was to pay them §500 for their services in the adjudication, and gave his note for the amount, to secure which he exe- cuted a mortgage of nearly all his property, real and personaL Held, that the mortgage was void, but the attorneys were allowed to prove their claim. In re Evans, 3 N. B. R. 63; Fed. Cas. 4,553. 162. A university undertook to raise an endowment fund, and the bankrupt sub- scribed and afterward gave his notes for his subscriptions. The assignee in bankruptcy asked that the amount due on the subscrip- tions be set aside. Held, that the claim was valid. Sturgis, Ass., v. Colby et aL, 18 N. B. R. 168; Fed. Cas. 13,574 163. Nearly a year before the petition was filed a bankrupt placed for collection a note signed by a third person, upon which a judgment was recovered about the time the bankruptcy took place. In the meantime CLAIMS, IX, (eHh). 61 the bankrupt drew orders upon the collector, requesting him to pay sums to the several payees out of the proceeds of the note. Held, that the holders of such orders were entitled to be paid in preference to the assignee. In re Smith, 16 N. B. E. 399; 10 Chi. Leg. News, 86; 5 N. Y. Wkly. Dig. 333; Fed. Cas. 13,993. (e) By Wife. See Maeeied "Woman, 13. 164. The bankrupt's wife may prove as a creditor against his estate in bankruptcy for money realized by him out of property which she held as her separate estate under the statutes of Massachusetts, if the evidence clearly show that the transaction was in- tended to be a loan and not a gift. In re Blandin, 5 N. B. E. 89; 1 Lowell, 543; Fed. Cas. 1,537. 165. A wife who deposits money with her husband and receives portions thereof from time to time, leaving a balance at the time of her husband's bankruptcy, is entitled to prove in bankruptcy proceedings as a gen- eral creditor; and her debt may not be off- set by the value of reasonable gifts from the husband, or of an insurance policy on his life for the benefit of the wife and children. In re Bigelow et aL, 3 N. B. R 170; 8 Ben. 198; 3 Amer. Law T. Eep. Bankr. 87; Fed. Cas. 1,398. 166. A bankrupt may testify to support a claim, of his wife against the estate, where such testimony would be competent under the state laws in force prior to December 1, 1873. In re Bean, 14 N. B. E. 183; 3 Wkly. Notes Cas. 433; Fed. Cas. 1,166. (f) Costs. See Costs and Fees, 16, 33, 69. ' 167. A debt or principal must be proved or allowed before the costs made prior to the commencement of proceeding in bankruptcy can be proved and allowed. The original debt having been allowed, attachment costs may be proved if made before commence- ment of proceedings in bankruptcy without knowledge of the insolvency. In re Preston, 5 N. B. R. 393; Fed. Cas. 11,393. 168. A bankrupt's property was attached within four months prior to bankruptcy. The sheriff turned the property over to the marshal with the understanding that what- 1 ever the sheriff's rights were as to costs should be preserved. Evidence showed that the sheriff had preserved the goods. Held, that his claim was provable on the ground of having preserved the goods. lu re Jenks, 15 N. B. E. 301; Fed. Cas. 7,376. , (g) For Insicrcmce. 169. A fire insurance company became bankrupt. Before the final dividend a loss occurred upon a policy issued by said com- pany. Held, the loss was a provable debt. American Plate Glass & Fire Ins. Co., 13 N, B. R 56; Fed. Cas. 314. 170. One owning a debt secured by an in- surance policy on the life of the bankrupt is entitled to prove the amount of the debt less the surrender value of the policy. In re Newland, 7 N. B. E. 477; 6 Ben. 343; Fed. Cas. 10,170. 171. Where a party insured presents no- tice of his loss, together with proof, or what purports to be proof, and evidence of the ex- tent of the loss sustained, and no objections are taken thereto, objections are held to be waived. In re Republic Ins. Co., 8 N. B. R 197; 3 Ins. Law J. 390; 5 Chi Leg. News, 385; Fed. Cas. 11,705. 172. An insurance company which re- insures its policies in another company is entitled, upon the bankruptcy of the latter, to prove the policies re-insured in full with- out reference to the amount it paid the hold- ers. Id. (h) For Interest. See Interest, 5, 8, 13. 173. Interest is allowable which has ac- crued after the commencement of bank- ruptcy proceedings. In re Bousfleld & Poole Mfg. Co., 17 N. B. R 153; Fed. Cas. 1,704 174. There is nothing in the banki-upt law to prohibit the payment of interest on claims proven against the bankrupt's estate from the day of filing the petition, when there are suffi- cient funds in the hands of the assignee to do so. In re Hagan, 10 N. B. R 383 ; Fed. Cas. 5,898. 175. Where a note has been given, and, to secure the payment of excessive interest, another note is given for the total interest for the entire period of the main note, and bankruptcy of the maker ensues before the main note is due, there can, upon the note 62 CLAIMS, IX, (i). for interest, be allowed only suoh proportion as may have fallen due prior to adjudication in bankruptcy. In re Riggs et al., 8 N. B. E. 90. 176. An adjudication in involuntary bankruptcy was based upon a claim, the prin- cipal of which was less than $350, but the added interest made the sum surpass that amount. Held, that the interest should be included in the claim. Sloan v. Lewis, 13 N. B. R 173; 33 Wall. 150. 177. A register made his report February 15, 1877. He allowed interest on claims to September 15, 1870. Held, that interest should have been allowed to the date of the report. In re Devore, 16 N. B. E. 56; 24 Pittsb. Leg. J. 185, 187; Fed. Cas. 3,847. 178. The reservation of a greater rate of interest than six per centum by a national bank, for discounting a promissory note, does not render the debt for the principal thereof one not provable in bankruptcy. In re Moore, 1 N. B. R. 133; 3 Bond, 170; Fed. Cas. 10,041. (i) For Judgment. See Judgment, 16, 41, 66, 80. 179. It is optional with the judgment creditor of a bankrupt whether he will prove his debt in bankruptcy or rely on his judg- ment lien. Heard v. Jones, 15 N. B. R. 403. 180. Where a judgment is recovered after commencement of proceedings in bank- ruptcy, upon a debt which existed before that time, the debt is not so merged in the judgment as to deprive the creditor of the right to prove it. In re Brown, 3 N. B. E. 145; 5 Ben. 1; Fed. Cas. 1,975. 181. Where an action before a justice of the peace is commenced prior to the' filing of the debtor's petition, and a judgment is re- covered after adjudication, the debt is not so merged in the judgment as to prevent its proof. In re Vickery, 3 N. B. E. 171; Fed. Cas. 16,930. 182. It is not necessary for creditors who have recovered judgments, after the adjudi- cation of their debtor, to vacate their judg- ments before they prove the claims on which such judgments were recovered, provided the claims are otherwise valid and provable. In re Stevens, 4 N. B. R. 133; 4 Ben. 513; Fed. Cas. 13,891. I 183. A judgment recovered after adjudi- cation, in a suit to which the assignee was- not made a party, may be proved against th» estate of a bankrupt, if the debt were a claim provable at the time of the adjudication. In re Rosey, 8 N. B. E. 509; 6 Ben. 507; Fed.. Cas. 13,006. 184. A brought against B. an action in tort for personal injuries. Before the final judgment a petition in bankruptcy was filed against B. The judgment was perfected be- fore adjudication. Held, that the judgment, if entered before adjudication, may be proved. In re Hennocksburg and Block, 7 N. B. R. 37; 6 Ben. 150; Fed. Cas. 6,367. 185. A judgment recovered in an action in assumpsit commenced prior to and prose- cuted during proceedings in bankruptcy is a. provable debt. In re Stansfield, 10 N. B. R. 268; 4Sawy. 334; Fed. Cas. 13,394 1 8 6 . A ward recovered a judgment against, her bankrupt guardian and sought to have it allowed and paid out of the bankrupt estate. The judgment was recovered after institu- tion of proceedings in bankruptcy. Hdd,. that the claim oould not be proved without leave of the bankrupt court. In re Maybin,. 15 N. B. R 468; Fed. Cas. 9,337. 187. A judgment creditor may enforce his claim against property sold by the bank- rupt before the commencement of the pro- ceedings in bankruptcy, although his attor- ney was allowed a compensation for bringing the assets in the bankruptcy court. PhiUips V. Bowdoin, 14 N. B. R. 43. 188. A judgment recovered against a bankrupt after filing of the petition but be- fore adjudication, in an action commenced prior to the proceedings in bankruptcy, may be proved ; but the costs which accrued sul> sequent to filing the petition do not consti- tute a claim or debt existing af, that time, and should be excluded. In re Crawford, 3^ N. B. E. 171; 3 Amer. Law T. 169; 1 Amer. Law T. Eep. Bankr. 210; Fed. Cas. 3,363. 189. A judgment creditor is not entitled to be paid in full out of the proceeds of a promissory note due the bankrupt and col- lected by the assignee, but may only share pro rata with the other creditors. In re Er- win & Hardee, 3 N. B. E. 142; Fed. Cas. 4,534. 190. A judgment from which an appeal is taken on writ of error before commencement of proceedings in bankruptcy is a provable debt; but no dividends will be paid to the CLAIMS, IX, (j), (k). ca judgment creditor until judgment on the writ of error. In re Sheehan, 8 N. B. R. 845; Fed. Gas. 12,737. 191. Money became due certain parties under contract -with bankrupts who failed to keep their obligation to pay, and when sued for an accounting reduced the amount of the judgment by fraud and perjury. After- wards, but long prior to bankruptcy proceed- ings, the creditors obtained judgment against bankrupts for fraud, conspiracy and deceit. Held, that the debt was provable, and that the bankrupts were entitled to stay of pro- ceedings including execution against the per- son. In re Van Buren, 19 N. B. R 149; Fed. Gas. 16,833. 192. The proper remedy for a creditor who seeks to have a judgment against a bankrupt paid by the assignee is by petition, signed and verified, and not by motion. In re Smith, 2 N. B. R. 98; 1 Ghi Leg. News, 123; Fed. Gas. 12,984 (j) For Seduced Amoimt — Corrwner- cioH Pa/per. 193. A creditor held notes indorsed by the bankrupt, upon which payments were made by the makers after the creditors had proved the notes against the estate of the bankrupt. HAd, that such payments must be deducted from the sum on which a dividend cotild be demanded. In re "Weeks, 13 N. B. E. 263; 8 Ben. 265; Fed. Gas. 17,849. 194. After the holder of a certain note signed by the bankrupt had made proof in full against the estate, an indorser secured by the bankrupt paid the full amount to the holder and disposed of the security. Held, that he should give credit for the amovmt realized from his security and take a divi- dend upon the excess only of the original debt as proved. In re Baldwin, 19 N. B. R. 52; 8 Gent. Law J. 186; Fed. Gas. 796. 195. Before proving against the estate of an indorser, a claimant received a dividend from the estate of the maker of the notes. HAA, that he could prove only for balance. In re Hicks et aL, 19 N. B. R. 299; Fed. Gas. 6,456. 196. A bankrupt executed a note payable to C., who indorsed and held it. T. purchased it before maturity and without notice of equities, for less than face. All parties were citizens and residents of New York. T. ob- tained judgment for the face of the note,, which was reversed on appeal and new trial granted unless T. should consent to reduc- tion of judgment to amount paid by him. This was done; and on proof of claim, TieM,. that the judgment of the appellate court was not conclusive, and that claimant was only entitled to prove for the amount paid by hinx with interest. In re Shelbourne, 19 N. B. R. 859; Fed. C^s. 12,745. 197. Bankrupts were factors. They gave notes to the company as advances, and in- dorsed other notes for the company, all of *rhich the holder bought at a discount. On a motion to expunge the claims, hdd, that it was not shown clearly that the notes were accommodation paper, and therefore they should be proved; but those indorsed by the- bankrupts should be proved only for the- amounts the holders actually paid for them vsdth lawful interest. In re Many et al., 17^ N. B. R. 514; Fed. Gas. 9,054 198. Pledgees of promissory notes void between tlie original parties thereto which have been pledged as collateral security for the payment of an indebtedness are enti- tled to prove so much of the notes as will secure dividends to the full amount of their claim. Bailey, Ass., v. Nicholas et al., 2 N. B. R. 151; 2 Amer. Law T. Rep. Bankr. 60; 1 Chi. Leg. News, 185; Fed. Gas. 741. (k) For Reduced Amoimt — In Gen- eral. 199. The provision which prevents a cred- itor, in case of actual fraud, from proving more than a moiety of his debt, applies only where there has been a recovery. In re Eiorden, 14 N. B. R. 332; Fed. Gas. 11,852. 200. Where money is advanced to a lum« berman, to secure which lumbering permits are assigned, some advances being made be- fore and some after commencement of pro- ceedings in bankruptcy, the creditor is en- titled to receive out of the proceeds of logs, sold by the assignee, only the amounts ad- vanced prior to filing the petition. In re Gregg, 8 N. B. E. 131; 1 Hask. 173; 1 Amer. Law T. Rep. Bankr. 298; Fed. Gas. 5,796. 201. Goods of a bankrupt merchant were left in the store rented by the bankrupt some^ months before the assignee took possession.. m CLAIMS, IX, (1), X, (a). The assignee immediately removed them. Held, that the owner of the store could claim a reasonable price for storage, but not the value of the store as a salesroom. In re Lu- cius Hart Mfg. Co., 17 N. B. E. 459; Fed. Cas. 8,593. (1) J^or Value of Goods. \ 202. A claim for the purchase price of goods left in a vendor's warehouse, marked with the vendee's mark and there destroyed by fire, may be proved in bankruptcy. Ex parte Safford et aL, 15 N. B. R. 564; 3 Lowell, 563; 15 Alb. Law J. 338; 34 Pittsb. Leg. J. 159; Fed. Cas. 13,313. 203. A bailor who allows the bailee to mix the property bailed with the bailee's property, so that the identical property of each cannot be distinguished, may, upon the bankruptcy of the bailee, prove oiily as a general creditor and share pro rata in the assets. Adams v. Meyers, 8 N. B. B. 314; 1 Sawy. 306; Fed. Cas. 62. 204. A person, after becoming bankrupt, in order to secure goods upon credit, pro- cured a guaranty to the amount of $3,000, whereupon goods to the amount of |3,000 were furnished. In the bankruptcy proceed- ings, the creditor sought to prove the whole claim as if unsecured. Held, that the whole claim might be proved as if unsecured. In re Anderson, 13 N. B. E. 503; 7 Biss. S3S; Fed. Cas. 350. 205. An admitted right to recover from bankrupts, in an action at law, the value of goods, which is offered to be proved by wit- nesses, constitutes a debt against the bank- rupts. Whether the debt arises from a prom- ise to pay or from a duty or obligation is not important. Barnes, Ass., v. United States, 13 N. B. E. 526; 31 Int. Eev. Rec. 313; 1 JSr. Y. Wkly. Dig. 177; Fed. Cas. 1,023. 206. A. in good faith took a mortgage on goods sold to B. to secure the purchase- money. B. was to sell at retail and apply the proceeds on the mortgage. B. sold part of the goods, but failed to account to A. ; and on B.'s going into voluntary bankruptcy, held, that the proceeds of the goods remain- ing unsold should go to A., and that he should be allowed to prove against B.'s estate as an unsecured creditor for the amount of the goods sold and misappropriated, on A.'s sur- rendering the mortgage. Overman, Ass. etc., V. Quick, Adm'r, etc., 17 N. B. E. 335; 8 Biss. 134; 10 Chi Leg. News, 310; Fed. Cas. 10,634 207. A provision in a state law debarring a creditor from maintaining a suit for spir- ituous liquors purchased without the state, with intent to seU the same in violation of the law prohibiting such sale, does not de- prive a creditor of his right to prove his claim in bankruptcy, if the sale were valid where made. In re Murray, 3 N. B. R 188; 1 Hask. 367; Fed. Cas. 9,954 208. A creditor's claim was for spirituous liquors sold to the bankrupt, part of which was sold and delivered in original packages. Held, that the claim for the amoimt so sold should be allowed. In re Town et al, 8 N. B, E. 38; Fed. Cas. I4III. X. Not Peotable. (a) In General. 209. No claims can be deemed provable that were not liquidated and fixed at the time of the adjudication of bankruptcy, if there be no evidence showing when the final dividend was made. United States v. Eob Eoy and Cargo, 13 N. B. E. 335; 1 Woods, 43; Fed. Cas. 16,179. 210. A party advancing money to a debtor for the purpose of aiding him in committing an act of bankruptcy will not be permitted to prove a claim for the money so advanced as a debt against the bankrupt. In re Hatje, 13 N. B. E. 548; 6 Biss. 436; Fed. Cas. 6,315. 211. A creditor who obtains a preference within four months, having reasonable cause to believe at the time that a fraud was in- tended and that the debtor was Insolvent, loses both his preference and his chance to prove his debt in bankruptcy. Bingham v. Richmond & GUIs, 6 N. B. E. 137; Fed. Cas. 1,415. 212. When the sale of a claim is void for want of consideration or for fraud it goes back to the assignor, and is to be reckoned in the count as belonging to the assignor. In re Woodford & Chamberlain, 18 N. B. E. 575; Fed. Cas. 17,973. 213. Where a debtor receives a volimtary contribution, such receipt does not create a debt due by him. In re Oregon BuL Pr. & CLAIMS, X, (a). 65 Pub. Co., 13 N. B. E. 503; 1 Cin. Law Bui. 87; Fed. Cas. 10,559. 214. Interest on a debt will not be allowed for the period during which intercourse be- tween the parties, and between the parts of the country in which they respectively lived, was suspended by the civil war. Bigler v. "Waller, 4 N. B. E. 86; Chase, 816; 8 Chi. Leg. News, 26; 5 Amer. Law Eev. 570; Fed. Cas. 1,404. 215. A note was given for an insurance premium, containing the provision that if the note were not paid the policy should become void while it remained unpaid. After the note became due the insured vessel stranded, whereupon the note was paid, and the next day a gale destroyed the vessel The amount of the premium was claimed against the es- tate of the bankrupt insurance company, but was disallowed. Card well v. Eepublican Fire Ins. Co., 13 N. B. E. 253; 7 Chi Leg. News, 282; Fed. Cas. 3,396. 216. A broker is bound to take notice of a buyer's bankruptcy, and when he holds stock for an unreasonable time after the bankruptcy and sells without notice, he must bear the loss. In re Daniels, 18 N. B. E. 46; 6 Biss. 405; 1 N. Y. Wkly. Dig. 271; 8 Chi Leg. News, 17; Fed. Cas. 3,566. 217. A creditor claimed for expenses in proceedings which, if they had not been interrupted by proceedings in bankruptcy, would have resulted in payment in full of his debt at the expense of the other creditors. Meld, that the claim should be rejected. In re Archenbrown, 8 N. B. E. 439; Fed. Cas. 503. 218. One who purchases claims against a debtor in the debtor's interest cannot prove the claims so purchased in proceedings in bankruptcy. In re Lathrop et aL, 8 N. B. E. 105; 8 Ben. 490; Fed. Cas. 8,103. 219. A creditor held a mortgage for $8,000 given by a bankrupt and S. M. upon land owned by them in equal shares. After the adjudication and appointment of the as- signee, the creditor sold the mortgaged prem- ises at auction for $1,000, without notice to the assignee or leave of court, and claimed to prove for the balance of the debb. Held, that the creditor could not prove for any sum whatever. In re Miller, 19 N. B. E. 78; 19 Alb. Law J. 40; .26 Pittsb. Leg. J. 175; Fed. Cas. 9,555. 6 220. Creditors who have proved their debts cannot have the bankrupt's discharge set aside after his death that they may prove their demands against the estate of the debtor in the hands of his administrator. Young et ai v. Eidenbaugh's Adm'r, 11 N. B. E. 563; 8 Dili 389; 7 Chi Leg. News, 242; Fed. Cas. 18,178. 221. A claim for rent which accrued after the filing of the petition in bankruptcy, under a lease executed prior to such filing, is not provable under section 19 of the act of 1867. In re May & Merwin, 9 N. B. E 419; 7 Ben. 238; Fed. Cas. 9,325. 222. The assignees in bankruptcy brought suit for certain goods and recovered judg- ment ; the defendant appealed. The bankrupt had employed the defendant as selling agent and had given him a bill of sale for the goods for $600. The defendant, after the principal became bankrupt, proved a claim against him for $5,000, crediting him with $500 for the goods described in the bill of sale. The claim was expunged, as the defendant had repre- sented himself as owning the goods by virtue of the bill of sale, he himself claiming the bill of sale to be security for money loaned. The judgment below was aflSrmed. Willis v. Car- penter et ai, 14 N. B. E. 521; Fed. Cas. 17,770. 223. The state proved a debt against bankrupt for fines imposed on him as a pun- ishment prescribed by law for the commis- sion of a crime of which he had been duly convicted. Held, not a provable debt. In re Sutherland, 8 N. B. E. 83; Deady, 416; 8 Amer. Law Eeg. (N. S.) 38; Fed. Cas. 13,639. 224. A right of action for misrepresentar tion of a firm's condition, afterwards bank- rupt, is not provable as a debt In re Schuchardt & Wells, 15 N. B. E. 161; 3 Ben. 585; Fed. Cas. 13,488. 225. A depositor delivered to the bank his check for his full balance, accepting in part payment bonds issued 1^ the state of North Carolina in aid of the rebellion. Upon the petition to expunge proof of debt by the assignee in bankruptcy of the bank; held, that such bonds, when accepted by a debtor in payment of his debt, and while of value as a medium in the money markets, constitute a valid medium for the payment of the debt. HoUeman v. Dewey, Ass., 7 N. B. R, 269; 2 Hughes, 341; Fed. Cas. 6,607. <66 CLAIMS, 2, (b), (c). (b) Ba/rred hy Idrmtation. See Limitation, Statute of, 35, 43. 226. The question was certified to the court whether a debt barred by the statute of limitations of Massachusetts, where the bankrupt had resided for the past ten years, but not barred by the statutes of Vermont, ■where the creditors resided and where both parties resided when the contract was made, was provabla Held, that it could not be proved if objected to by the bankrupt or any creditor. In re Kingsley, 1 N. B. R 53; 1 LoweU, 316; 7 Amer. Law Reg. (N. S.) 433; 15 Pittsb. Leg. J. 335; Fed. Cas. 7,819. 227. The statute of limitations of the state w^hioh is the bankrupt's residence applies to proof of debts against his estate; after adjudication the statute continues to run, and no dlaim can be enforced unless an ac- tion could be maintained in the state courts. Nicholas, Ass., v. Murray et al., 18 N. B. R 469; 5 Sawy. 330; Fed.- Cas. 10,333. 228. In a case in involuntary bankruptcy (act of 1867) the debtor sought to defeat the petition on the ground that one-fourth in number and one-third in amount of creditors holding provable claims had not joined, the claim of one of such creditors being barred by the statute of limitations. It was held that such claim was not provabla In re Noesen, 13 N. B. R 433; 6 Biss. 443; 7 Chi. Leg. News, 419; 1 N. Y. Wkly. Dig. 135; 3 Cent. Law J. 570; Fed. Cas. 10,388. 229. The act of 1867 expressly allows the petitioners to object to all debts barred by the statute of limitations; yet such a claim, if proved and not objected to by the peti- tioner or a creditor, must be allowed by the court, and the assignee must receive it as a claim entitled to its share of the dividend. In re Frear, 1 N. B. R 301; 3 Ben. 467; 35 How. Pr. 349; 1 Amer. Law T. Rep. Bankr. 183; Fed. Cas.- 5,074. 230. Where a bankrupt set forth in his schedule a debt barred by the statute of lim- itations of the state in- which both debtor and creditor resided, and wherein the debt had been contracted, held, the debt was prov- able in bankruptcy unless it be shown to be barred through the United States. In re Ray, 1 N. B. R 303 (8 vo. ed.); 3 Ben, 53; Fed. Cas. 11,589. 231. A debt barred by the statute of lim- itations of the state where the bankrupt re- sides cannot be proved against his estate by a creditor resident in another state, notwith- standing such demand is not barred by the statute of limitations in the state where the- creditor resides. In re Harden, 1 N. B. R 97; 1 Hask. 168; 15 Pittsb. Leg. J. 343; Fed. Cas. 6,048. (o) Based on Corrmiercial Paper. See Commercial Papee, 13, 17-30, 40. 232. A prior gift constitutes no legal con- sideration for a promissory note, and the claim of the holder to be a creditor may be defeated on that ground. In re Cornwall, ft N. B. R 305 ; 6 Amer. Law Rev. 365 ; 9 Blatchf, 114; Fed. Cas. 3,350. 233. If there were no legal liability on the part of a bankrupt to pay a claim, the notes given therefor are void for want of consider- ation. In re Young, 15 N. -B. R 305; 1 Tex. Law J. 7; Fed. Cas. 18,149. 234. One who, being liable as joint maker of a note, gives his individual note in pay- ment of the joint note, it being accepted aa such, discharges the old note, and it cannot be proved against the estate of the other joint maker. In re Morrill, 8 N. B. R 117 ; 2 Sawy. 356; Fed. Cas. 9,821. 235. A holder of a note who has granted an extension of time to the maker cannot prove the note against the estate of a bank- rupt indorser. In re Granger & Sabin, 8 N. B. R 30; Fed. Cas. 5,684 236. The holder of a bill of exchange can- not prove against the estate of the acceptor after payment has been made by the drawer of the bill. Ex parte Taloott, 9 N. B. R 502; 3 LoweU, 320; Fed. Cas. 13,184 237. An application was made to expunge the proof of debt of a corporation on notes discounted for the bankrupts in regular course of business, on the ground the notes were not valid, as the corporation was not authorized by law to employ its funds in discoimting paper. Held, that the proof be ex- punged, and the claim rejected as presented, without prejudice to the right of the as- signee in bankruptcy of the corporation to make proof of a claim for money loaned th& bankrupts. In re Jaycox & Green, 7 N. R R 578; Fed. Cas. 7,241. 238. A note taken for money loaned by a> CLAIMS, X, (d). 67 savings bank, prohibited by law from loan- ing money on personal security, is void and does not constitute a debt provable in bank- ruptcy. Id. 239. Wbere an indorser of a protested note has purchased the goods of a bankrupt he is excluded from proving his debt as a claim against his estate. Cookinham et aL v. Morgan et aL, 5 N. B. E. 16; 7 Blatohf. 480; Fed. Cas. 3,183. 240. Where a bankrupt received property as security for indorsements and notes made by him for the benefit of the owner of the property, held, that a holder of one of the notes was not entitled to a summary order directing payment of his claim out of the property. Hurst v. Teft, Ass., 13 N. B. E. 108; 13 Blatohf. 217; Fed. Cas. 6,989. 241. A note payable on demand was not presented for payment for four years, when at- tempt was made to hold the indorser, who had become bankrupt. The claim was disallowed. In re Crawford, 5 N. B. R. 301; Fed. Cas. 3,364. 242. A note was indorsed and the maker delivered it for value to H. Upon failure of the maker to pay it was protested, the in- dorser being notified. The maker became bankrupt, and produced the written consent of sufficient creditors and was discharged. Among the signers was H., and after him the indorser, who himself became bankrupt. BL proved the claim against the estate, and ob- jected to his discharge. The claim of H. was rejected by the register and by the court. In re McDonald, 14 N. B. E. 477; 24 Pittsb. Leg. J. 42; Fed. Cas. 8,753; E. S. 5118. 243. A banker became bankrupt. Jtist after filing the petition assignments were made by the holders of certificates of de- posit issued by the banker to E., to be used as an offset by him in a pending suit. The assignments were security for an antece- dent debt, and came into the hands of third persons. A restraining order being sought to prevent payment on a claim based on such certificates, it was held that they were not negotiable paper and that no payment should be made thereon. In re Sime & Co., 13 N. B. R. 315; 3 Saw. 305; Fed. Cas. 13,861. 244. A creditor offered proof against the estate of a bankrupt, consisting of a note in which the initials only of the first names of the parties appeared. No evidence was of- fered as to the full Christian names of either of the parties. The claim was refused. In re Valentine, 13 N. B. E. 389; 4 Biss. 317; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 16,813. (d) By or Agwmst PaHnersJwp. See Paetnebs, 14 43, 103, 128, 133-153, 161, 176, 183-190. 245. A claim of one firm of which the bankrupt is a partner against another firm of which he is a partner is not a debt prov- able against him. In re Lloyd, 15 N. B. E. 257; 5 Amer. Law Eec. 679; 15 Alb. Law J. 393; 24 Pittsb. Leg. J. 113; Fed. Cas. 8,439. 246. The members of the firm A-, B. & C. were also members of the firm A., B., O. &D. The latter firm became bankrupt. Held, that the debts of the former firm could not be proven against the latter. In re Savage, 16 N. B. E. 368; Fed. Cas. 12,381. 247. The firm of A., B., C. & D. proved claims against a bankrupt. The firm B., C. & D. filed specifications in opposition to his discharge. Held, that B., C. & D. had no standing to oppose the discharge. In re Palmer, 3 N. B. E. 77; Fed. Cas. 10,683. 248. When the debt from one partner to the firm was incurred by the consent of the other partner, proof of the joint creditors against the separate estate will not be ad- mitted in a court of bankruptcy. In re Mo- Ewen & Sons, 12 N. B. E. 11; 6 Biss. 294; 7 Chi Leg. News, 231; 3 Cent. Law J. 333; Fed. Cas. 8,783. 249. A company's agent executed a note payable to a bankrupt firm of which he was a member. The firm indorsed the note to M., who discounted it and paid the proceeds to the bankrupts. M. paid the note, proved the amount against the bankrupt's estate, and obtained judgment against the company for the same amount. The company sought to prove the amount of the judgment in bankruptcy, although it had paid no part of it. Held, that the claim could not be twice proved; that M. would hold dividends re- ceived by him as so much paid on the note, and must give credit for so much on the judgment. In re Morse & Co., 11 N. B. E. 482; Fed. Cas. 9,853. 250. Where an accommodation note is indorsed by one member of a partnership without the knowledge or consent of the other, it cannot be proved against the firm. 68 CLAIMS, X, (e)-(g). In re Irving & Irving, 17 N. B. E. 23;- Fed. Cas. 7,074. 251. A note given in an individual trans- action of one of the bankrupts, though signed in the firm name, is not provable in bankruptcy against the firm assets. In re For- syth and Murtha, 7 N. B. R 174 ; Fed. Cas. 4,948. 252. B. proved a judgment against the estate of a firm, and after a dividend proved against the separate estate of one member, alleging that the note on which it was based was executed by him and indorsed by the other member. A creditor of the separate es- tate asked to have the second proof expunged. . Seld, that it should be expunged. In re Her- rick & Hen-ick, 13 N. B. R. 312; Fed. Cas. 6,420. 253. A firm became bankrupt. A creditor of a former firm not adjudged bankrupt, one of the members being a member also of the bankrupt firm, asked that, after the payment of the individual debts of the partner, the remaining assets should be merged with those of the bankrupt firm, and that the debts of such creditors should be paid therefrom. Held, the claim was not provable against the firm. In re Dunkerson & Co., 13 N. B. R. 391 ; 4 Biss. 823; 1 N. Y. Wkly. Dig. 179; Fed. Cas. 4,159. 254. "Where a partner retires and agrees to pay all partnership debts, as between them- selves the remaining partner is a surety for the retiring partner; but in case the surety has not actually paid any such debts, he can- not prove his claim against the estate of the retiring partner for the excess of such debts over the dividends to be paid. In re Phelps, 17 N. B. E. 144; 9 Ben. 286; Fed. Cas. 11,070. (e) By or Agamst Wife. See Maeeied Woman, 12. 255. Aclaimforalimonyisnota provable debt, and proceedings to enforce its payment cannot be stayed by the bankrupt court. In re Lachemeyer, 18 N. B. E. 270; 18 Alb. Law T. 242; Fed. Cas. 7,966. 2 5 6 . A wife allowed her husband to appro- priate the income of her separate estate in the support of the family. Held, that it did not create such a debt on his part as is provable in bankruptcy against his estate. In re Jone?, 9 N. B. R 556; 6 Biss. 68; 6 Chi. Leg. News, 271; Fed. Cas. 7,444. 257. That a debt is contracted during coverture by a feme covert who, though act- ually engaged in trade, has not complied with the requirements of the statutes, is avail- able by her to defeat debts in bankruptcy. In re Slichter, 3 N. B. R 107; Fed. Cas. 13,943. (f ) For Judgment. See Judgment, 16, 41, 66, 80. 258. A judgment rendered after adjudi- cation in bankruptcy, although the debt upon which it was founded existed, and the suit thereon was instituted prior thereto, is not provable against the estate of a bank- rupt, and no dividend can be declared thereon. In re Williams, 2 N. B. R 79; 3 Amer. Law Rev. 874; 1 Amer. Law T. Eep. Bankr. 107,113; Fed. Cas. 17,705; In re GalU- son et al., 5 N. B. E. 353; 2 Lowell, 73; Fed. Cas. 5,303. 259. A confession of judgment and the execution of a chattel mortgage by an in- solvent debtor for the benefit of a creditor who knows or has reasonable cause to be- lieve that the debtor is insolvent is a fraudu- lent preference, and deprives such creditor of the right to prove his claim against the estate of the bankrupt notwithstanding he may disclaim any benefit to accrue from and surrenders such judgment and chattel mortgage. In re Colman, 2 N. B. R 172; 7 Blatchf. 192; Fed. Cas. 2,979. 260. A judgment entered in an action for a personal tort after the commencement of proceedings in bankruptcy upon a verdict rendered before that time is not a provable debt. Leave to issue execution on the judg- ment will not be granted. Black v. McClel- land, 12 N. B. R 481; 7 Chi. Leg. News, 430; 1 N. Y. Wkly. Dig. 174; Fed. Cas. 1,46a 261. A mere verdict in an action for a personal tort is not a provable debt. Id. 262. A mortgage creditor with leave of the court foreclosed in a state court and proved his claim on the judgment for the deficiency. Held, that he had no right to prove such claim, the sale in the state court not being the proper measure for ascertain- ing the value of his security. In re Herreck et al., 17 N. B. R 335; Fed. Cas. 6,421. (g) Illegal. 263. The claim of a creditor who has ille- gally increased its amount, or of which a por- CLAIMS, X, (h), XI tion of the consideration is good and a portion illegal, will be rejected altogether. In re Elder, 3 N. B. E. 165; 1 Sawy. 73; 17Pittsb. Leg. J. 178; 3 Amer. Law T. Rep. 140; 3 Chi. Leg. News,' 341; 1 Amer. Law T. Eep. Bankr. 198; Fed. Cas. 4,326. 264. A debt contracted by the loan of Confederate treasury notes to enable the borrower to hire a substitute for the Con- ■ federate army, who was actually hired and who served in said army, cannot be admitted to proof as a debt under the bankrupt act, such debt being illegal and void. In re Mil- ner, 1 N. B. R. 19. 265. A debt incurred by the loan of Con- federate treasury notes is not provable in bankruptcy. In re Milner, 1 N. B. R. 107. 266. Several debts of a ba,nkrupt had been contracted either in whole or in part for liquors in violation of the state law. Upon petition of the assignee, held, that the names of the claimants must be stricken from the list of creditors. In re Paddock, 6 N. B. R. 132; Fed. Cas. 10,657. 267. Stock brokers proved claims, but the assignee moved to expunge, alleging that they were based on void contracts. The claims arose from contracts for speculation in wheat "margins," and the court held they were gaming contracts and that the brokers could not prove their claims for money ad- vanced for such purposes. In re Green, 15 N. B. R. 198; 7 Biss. 888; Fed. Cas. 5,751. 268. A speculative option, where the ob- ject of the parties is not a sale and delivery of the goods, but a settlement in money on differences — commonly called a " put," — is a wagering contract and void, either as within the statutes against gambling or as against public policy, and is not a provable debt in bankruptcy. In i-e Chandler, 9 N. B. E. 514; 13 Amer. Law Reg. (IT. S.) 310; 6 Chi Leg. News, 329; Fed. Cas. 3,590. 269. Upon consideration of a claim against a bankrupt's estate growing out of a slave con- tract, held, that the thirteenth amendment to the constitution repealed all laws sanction- ing slavery, and as such contracts were against natural right and justice, they de- pended upon positive law for their validity. Therefore, a right of action did not survive the repeal of the laws. Buckner v. Street, 7 N. B. R 255; 1 Dili 348; 13 Int. Eev. Eeo. 114; Fed. Cas. 3,098. (h) Usw'ious. 270. Notes given for the excess over legal interest are not provable in bankruptcy, and must be surrendered to the assignee. Shaffer V. Fritchery & Thomas, 4 N. B. E. 179; Fed. Cas. 13,697. 271. In lUinois, if a party who has taken usury seeks to enforce his claim by suit, he forfeits all interest. In re Prescott, 9 N. B. R. 385; 5 Biss. 583; 6 Chi. Leg. News, 151; Fed. Cas. 11,389. 272. Upon receiving the amount t)f a loan, the borrower gave his note for the amount with legal interest, and also $30 for accom- modation. The state statute provided that a usurious contract should work a forfeiture of the entire debt to the school fund. Held, that the debt was usurious. In re Pittook, 8 N. B. R. 78; 3 Sawy. 416; Fed. Cas. 11,189. 273. An assignee, through the court, may require the creditor to prove his debt in the usual form, citing the security and setting forth the consideration, and may contest the claim for any usurious surplus. Bromley, Ass., V. Smith et al., 5 N. B. R. 153; 3 Biss. 511; 3 Chi. Leg. News, 297; Fed. Cas. 1,933. XI. Set-off. See Set-off, 21, 33, 28. 274. A creditor of an insolvent may as- sign his claim, before the filing of the peti- tion in bankruptcy, to a debtor of the insolv- ent, and such claim may be set off by the debtor after the proceedings in bankruptcy have been instigated. In re City Bank, etc., 6 N. B. R. 71; 4 Chi. Leg. News, 81; 6 "West. Jur. 65; Fed. Cas. 3,742. 275. A debt of one insolvent purchased by his debtor immediately prior to the filing of a petition in bankruptcy, in order to set the same off against his indebtedness, is pro- tected by the bankrupt act, it only forbid- ding the setting off of claims purchased after the petition is filed. Hovey et al. v. Home Ins. Co., 10 N. B. R. 224; 13 Amer. Law Reg. (N. S.) 511; 3 Ins. Law J. 815; Fed. Cas. 6,743. 276. A claim against the bankrupt before his bankruptcy cannot be set off against an indebtedness on goods purchased from the assignee, but a claim against the bankrupt's estate may be set off against an indebted- ness for goods purchased from the assignee. Moran et al. v. Bogert, 14 N. B. R. 393. TO CLAIMS, Xn — COLLATERAL ATTACK, I-UL 2,1']. A debt due to several joint creditors cannot be set oflE against a debt due by one of them. Gray v. Eollo, 9 N. B. K. 337; 18 "Wall. 629. 278. A debtor of a bankrupt wbo accepts a transfer of bis note, without stipulation as to the terms of the transfer, cannot set it off against his own debt. Ex parte Dreyfus, 13 N. B. B. 43; 3 Lowell, 305; 1 N. Y. Wkly. Dig. 296; Fed. Cas. 8,043. XII. To BE Included in Petition. See Petition, 4, 11, 32, 33, 56, 67, 77, 98. 279. In counting the amount of claims of creditors all claims must be included, irre- spective of amounts. In re Woodford & Chamberlain, 13 N. B. E. 575; Fed. Cas. 17,972. 280. Under the act of 1867, in reckoning the amount of debts necessary to be joined in an involuntary petition, debts for less than $250 each are to be included. In re Currier, 13 N. B. E. 68; 2 Lowell, 486; Fed. Cas. 3,493. 281. Creditors filed a petition to have a debtor adjudged bankrupt, owing to suspen- sion of payment on a promiissory note held by them (act of 1867). Partial payments had been made reducing the amount of the in- debtedness to $240. The petition was dis- missed for want of jurisdiction. In re Skel- ley, 5N. B. E. 215; 3 Biss. 260; Fed. Cas. 13,931. 282. An original petition was dismissed with leave to amend. Before amendment one of the creditors assigned his claim. The remaining creditors did not represent the amount of debts required. Held, the amended petition should be dismissed, as it is in the discretion of the court to allow the assign- ment. In re Western Savings & Trust Co., 17 N. B. E. 413; 4 Sawy. 190; Fed. Cas. 17,443. GLEBES. See Costs and Fees, II, (c). CLOTTD ON TITLE. See Trustee, 179. COLLATERAL ATTACK. L DlSCHABGE. H Adjudication. IIL Trustee's Sales. IV. In General. See Trustee, 187. I. DiSCHAEGE. 1. A discharge in bankruptcy is conclusive in the absence of fraud and cannot be im- peached collaterally by a creditor to whom no notice of the proceedings had been given. WiUiams v. Butcher, 13 N. B. E. 143. 2. Plaintiff brought action to collect a judgment against a discharged bankrupt, al- leging want of notice of proceedings in bank- ruptcy due to bankrupt's procurement, and that after commencement of his action bank- rupt removed his property with intent to de- fraud creditors. Seld, that the discharge could not be impeached in a collateral ac- tion. Howland v. Carson, 16 N. B. E 373. 3. Plaintiff alleged that he had no notice of the bankruptcy proceedings, and that such notice was not given because of the fraud of the bankrupt in representing in his schedule that plaintiff's residence was unknown to him when he actually knew such residenca Held, that the discharge could not be im- peached collaterally on such grounds. Eayl, Adm'x, etc., v. Lapham, 15 N. B. R 508. 4. A discharge duly granted, when pleaded in bar to an action in a state court, cannot be impeached on ground of fraud. Smith v. Eamsey, 15 N. B. E. 447. II. Adjudication, 5. A creditor cannot impeach an adjudi- cation in a collateral action on the ground that it was procured by fraud. Michaels et al. V. Post, Ass., 12 N. B. E. 152; 21 Waa 39& III. Teustee's Sales. 6. Where it is objected that the purchaser at an assignee's sale was the attorney for the assignee, and thereby incapaWe of purchas- ing, such objection must be set up in the bankrupt court and not in a collateral action. Spilman v. Johnson, 16 N. B. E. 145. COLLATERAL ATTACK, IV— COMMERCIAL PAPER. n 7. In a sale of real estate by the assignee in bankruptcy, assuming that it is to be as- similated to a sale under a decree in equity silent as to the manner of sale, it cannot be attacked collaterally and held absolutely void because not made in parcels. Smith v. Scholtz et aL, 17 N. B, R. 520. rV. In Geneeal. 8. "Where the record shows jurisdiction, a.n adjudication cannot be assailed in a col- lateral action. Sloan v. Lewis, 13 N. B. R. 173; 33Waai50. 9. A record cannot be impeached without previous notice by proper form of pleading. Id. 10. If a party who is proceeded against by summary petition consents to a reference of the case to a register to take proof, he gives the court jurisdiction over his person, and cannot impeach its decree in a collateral action. People ex reL Jennys v. Brennan, 13 N. B. R. 567. 11. Foreign judgments are only prima facie evidence of the debt adjudged to be due to the plaintiff, and such a judgment is open to examination, not only to show that the court was without jurisdiction of the subject-matter, but that it was fraudulently obtained. Domestic judgments cannot be collaterally impeached if rendered in a court of competent jurisdiction. Michaels et aL V. Post, Ass., 13 N. B. R. 153; 21 Wall 398. 12. The judgment of a court having no jurisdiction of the subject-matter or parties is nuU and void and may be impeached in collateral proceedings, and the record of the court showing such jmusdiction may be con- tradicted by parol evidence. In re McKib- ben, 13 N. B. R. 97; Fed. Cas. 8,859. 13. A decree in bankruptcy, where public notice has been given as required, is in the nature of a proceeding in rem, and creditors must be treated as having notice of the proceedings, and cannot impeach them col- laterally. Shawhan v. Wherrett, 7 How. «37. 14. The assignees cannot question collat- erally the proceedings in a state court to which they voluntarily become parties. Davis V. Friedlander, 140 U. S. 510. COLLUSION. See Fbefebemce, 244 1 . A court will not permit a collusive agree- ment between the parties to a suit, in view of the impending bankruptcy of one of them, whereby the other party may absorb prop- erty that otherwise would go to the general creditors. Samson, Ass., v. Burton et aL, 5 N. B. R. 459; 5 Ben. 343; Fed. Cas. 13,286. 2. There is no such collusion as will de- prive the parties of rights to which they would otherwise be entitled, where it is only shown that the parties endeavored to obtain all the advantage that the law would aSord them. Whithed et aL v. PiUsbury et aL, IS N. B. R. 241; Fed. Cas. 17,573. 3. The fact that the affidavit was filed and the execution issued and levied on the same day that judgment was rendered, and that voluntary proceedings in bankruptcy were begun on the same day, does not show col- lusion. Witt, Ass., V. Hereth, 13 N. B. R. 106; 6 Biss. 474 ; 8 ChL Leg. News, 41 ; Fed. Cas. 17,931. 4. Where it appears that creditors can re- ceive no more than the amount proposed, for composition, if ordinary administration is had, and there is no adequate proof of collu- sion, the composition should be approved. In re Keiler, 18 N. B. R. 86; 10 ChL Leg. News, 299; Fed. Cas. 7,648. IL IIL IV. V. VI VIL VIIL IX. X XL XIL COMMERCIAL PAPER. , What is. (a) Under Bankrupt Act (b) Of Manufacturer. (o) In General. Proof or. (a) Who May Make. (b) How Made. (c) Effect of Preferences by Means obv Exchange of Notes. Accommodation Paper. Partnership Paper. Consideration fob. Collateral Seoubitt. Indorsement After Tbansfbb. Equitable Assignment. Indorser's Release. Trustee's Relation to. .7^ COMMERCIAL PAPER, I, (aHo), n, (a). XIII. Composition Notes. XIV. Notice. (a) In Oeneral. (b) Of Dishonor. (c) Waiver of, XV. Payment. (a) In Oeneral (b) Suspension of, XVI In Genbkal. See Bank, 6, 16, 38; Contracts,!; Corpoea- tion, 11; Discharge, 380; Dividend, 18; Indorsees, 139, 144, 151-153, 157, 197, 335, 343, 349; Estates, 339; Estoppel, 2, 5, 17; Evidence, 18; Limitations, Statute OP, 14; Petition, 94, 98, 157; Pleading AND Practice, 313; Secured Claims, 85, 36, 66; Set-off, 6, 8, 9, 36; Usury, 3, 7, 16. I. What is. (a) Under Bomkrv/pt Act. 1. A draft is commercial paper within the meaning of the bankrupt act. In re Stevens, 5 N. B. R. 113; 1 Sawy. 397; 1 Pac. Law Rep. 45; Fed. Gas. 13,393. 2. The commercial paper mentioned in section 39 of the bankrupt act of 1867 in- cludes not only the notes, bills, etc., given by a merchant or other person mentioned in the section, in the ordinary course of his busi- ness, but all negotiable paper. The terms are descriptive of the kind of paper, and not of the mode in which it was in fact issued in the given case. In re Chandler, 4 N. B. R. 66; 1 Lowell, 478; Fed. Cas. 2,591. 3. An accommodation note given as a loan to the payee is not commercial paper within the meaning of the bankrupt act. In re Mc- Dermott Patent Bolt Mfg. Co., 3 N. B. R 83; 3 Ben. 369; Fed. Cas. 8,750. See post, 34 (b) Of Momufaatwrer. See Composition, 73. 4. The negotiable paper of a firm of man- ufacturers is commercial paper within the meaning of the act, regardless of the pur- pose for which it was given. In re Kenyon & Fenton, 6 N. B. R. 238. 5 . Where a corporation is not authorized by law to invest its funds in commercial paper, notes discounted by it are not valid. In re Jaycox et aL, 7 N. B. R. 578; Fed. Cas. 7,241. 6. A note given by one partner on the set- tlement of a copartnership manufacturing business, to pay for the interest of the co- partner in the business, and to settle the balance appearing against him, is not the commercial paper of a manufacturer issued in the course of his business. In re Lauz, 14 N. B. R. 159; Fed. Cas. 8,079. (o) In General. 7. " Commercial paper " means bills of ex- change, promissory notes, bank checks and other negotiable instruments for the pay- ment of money, which by their form and on their face purport to be such instruments as are by the law merchant recognized as falling under the designation of " commer- cial paper." In re Hercules Mutual Life As- surance Society, 6 N. B. R. 838; 6 Ben. 35; 6. Alb. Law J. 358; Fed. Cas. 6,403; In re Nicko- demus, 3 N. B. R. 55; 2 Chi Leg. News, 49; Fed. Cas. 10,354; In re HoUis, In re Kinney, 3 N. B. R. 83; Fed. Cas. 6,631. 8. Where a note is given to the indorser of a note as compensation for the indorse- ment, such note is valid. Providence Co.. Sav. Bank et aL v. Frost, Tr., 13 N. B. R 856; 8 Ben. 393; Fed. Cas. 11,453. 9. A note given to secure a loan made in foreign bank notes by a foreign corporation doing business by an agent, contrary to the provisions of an act to prevent illegal bank- ing, is void. Tiffany v. Boatman's Sav. Inst., 9N. B. R. 345; 18 Wall. 375. 10. A promissory note, executed at a time- when Confederate money was a medium of exchange in the neighborhood in which it was executed, is commercial paper. Menden- hall V. Carter, 7 N. B. R 330; Fed. Cas. 9,436. 11. An accommodation indorsement on a note does not make it commercial paper as to the accommodation indorser. Innes v^ Carpenter, 4 N. B. R. 139; Fed. Cas. 7,049. II. Peoof of. See Proof of Claims, 44 (a) Who May Make. 1 2 . After the maker of a note had been ad- judged a bankrupt the note was protested, and a new note, with indorsers, given in pay- ment of the old note. Held, that an indorser COMMERCIAL PAPER, n, (b), (o), UL 73 on the note could not prove it against the estate of the maker. In re Montgomery, 3 N. B. R. 108 (3d Case); Fed. Cas. 9,730. 13. Commercial paper, acquired in good faith before maturity, may be proved in bank- ruptcy by the indorsee, upon showiag a valid consideration paid by him. In re Lake Su- perior & C. R. R. & Iron Co., 10 N. B. R 76; Fed. Cas. 7,998. 14. A surety upon bankrupt's note which is due may prove his demand under the act of 1841 before he has paid it. The bankrupt is released from liability to the surety upon the note though it is then unpaid. Mace v. ■Wills, 7 How. 273. 15. A cheek given to A., who becomes bankrupt before presentation, nevertheless entitles the payee to so much of the money of the bankrupt as the check calls for. Fourth Nat. Bank of Chicago v. Bank of Michigan, 10 N. B. R. 44 16. "Where an indorser of the bankrupt's paper has become absolutely liable to the holders before the filing of the petition, by notice of dishonor, he is not a creditor of the bankrupt at the time of the filing. In re Riker, 18 N. B. R 393; Fed. Cas. 11,883. 17. The Liverpool correspondents of the bankrupts accepted drafts drawn on them by the bankrupts against consignments of merchandise which bankrupts agreed to make but failed to do. The holder of the drafts received fifty per cent, of the amoimt due on them, after they were dishonored, in full for all claims against the acceptors, but without prejudice to his rights against oth- ers. Afterwards the acceptors released all claims against bankrupts. Held, that the holder could prove against the bankrupts for the whole amount. In re Baxter et al., 18 N. B. R. 497; 36 Pittsb. Leg. J. 140; Fed. Cas. 1,120. 18. A legacy was given to a wife of the residue of her father's estate, including the proceeds of both land and stock. Her hus- band reduced such legacy to possession and gave a note and check to his wife for the proceeds. He became bankrupt and the wife sought to prove the note and check in bank- ruptcy. Held, that the bequest created no separate estate in the wife, and that the note and check were nullitiea Canby, Ass., v. Mc- Lear, 13 N. B. R. 23; Fed. Cas. 3,378. 19. For the holder of the paper of a bank- rupt to be able to prove his claim, he must show that he paid value when he took it, or incurred some responsibility, or relinquished some right, or granted some indulgence, or discharged a precedent debt, upon the faith and credit of the paper. In re Howard, Cole & Co., 6 N. B. R 373; Fed. Cas. 6,751. (b) Sow Ma4e. 20. A creditor having proved on two promissory notes asked leave to amend his proof to show that a new note had been given for which the two notes, which were proved by mistake, were part consideration. Leave to amend was denied, and it was held that the new note should be proved independ- ently. In re Montgomery, 3 N. B. R. 109; Fed. Cas. 9,731. 21. A creditor offered proof against the estate of a bankrupt of a note in which the initials only of the first names of the parties appeared. No evidence was offered as to the full Christian names of either of the parties. The register refused the claim and his de- cision was approved. In re Valentine, 13 N. B. R. 389; 4 Biss. 317; 1 N. T. Wkly. Dig. 101; Fed. Cas. 16,813. {C) Effect of. 22. It is no ground of defense or suspen- sion of an action on a joint or joint and sev- eral promissory note against a surety that the note has been proved as a claim against the principal in a court of bankruptcy. Gregg V. Wilson, 15 N. B. R. 143. 23. A certificate of deposit proved as a claim in bankruptcy is dishonored paper, and. no longer has the qualities of a negotiable instrument. In re Sime & Co., 13 N. B. R. 315; 3 Sawy. 305; Fed. Cas. 12,861. III. Peefeeeu^ces by Means of. See Peefeeences, 37, 68, 114, 140, 156, 175, 364 24. A party who has accepted a draft with intent to enable the drawee to prefer the payee is not liable thereon. Fox et aL v. Gardner, 13 N. B. R. 137- 31 Wall. 475. 25. The exchanging of new secured notea for old secured notes within four months of bankruptcy does not withdraw any property from the debtor's estate, and does not con-. u COMMERCIAL PAPER, IV-VL Btitute a preference. Bumhisel v. Finnan, Ass., 11 N. B. R. 505; 23 Wall 170. 26.3. indorsed the notQ of F. and pledged bonds as security for the payment of the note, which was discounted at a bank. After- wards another discount was obtained for F. upon like security, and a short time there- after F. confessed judgment in favor of B. as security. B". paid the notes after they were twice renewed and then issued execu- tion on his judgment, and property of F. was sold and credited on the judgment. Held, nothing in the transaction showed bad faith or the contemplation of a fraxid upon the bankrupt law. Field, Ass., v. Baker, UN. B. R. 415; 12 Blatohf. 438; Fed. Cas. 4,763. rV. Exchange of Notes. 27. A., holding several notes of B., ex- changed one of them for notes of the same amount of a firm in which B. was a partner. Semble, this arrangement, if made in con- templation of bankruptcy, would be a fraud on the joint creditors. Held, it could not be set aside when the bankruptcy occurred inore than four months afterwards. In re Lane & Co., In re Boynton, 10 N. B. R. 135; 2 Lowell, 333; Fed. Cas. 8,044 28. One maker of a joint and several note gave the payee his individual note in pay- ment of the joint note, and took a receipt ■which showed that the new note was received in full payment of the old note. Held, that the joint and several debt was paid. In re Mor- rill, 8 N. B. R. 117; 2 Sawy. 356; Fed. Cas. 9,821. 29. Where a note payable in one year is at the end of one year taken up and a new note for the same amount and time given in exchange, and this process repeated year after year, the debt will be deemed to have been contracted on the date of the last note. In re Schumpert, 8 N. B. R. 415; Fed. Cas. 12,491. Y. Accommodation Paper. 30. As accommodation paper has no legal existence until transferred to a bona fide holder, the discounting of such paper given for the purpose of raising money by a bank at a higher rate of interest than the law al- lows is usurious and not defensible as a pur- chase. Tiffany v. Boatman's Sav. Inst., 9 N. RR.245; 18 Walk 375. 31. Notes were executed in one state and sent to another state, where they were in- dorsed for the accommodation of the maker and discounted for his benefit. Held, that the contracts were made in the state where they were indorsed. Providence Co. Sav. Bank et ak v. Frost, Trustee, 13 N. B. R. 356; 8 Ben. 293; Fed. Cas. 11,453. 32. Where promissory notes are given as security to an accommodation indorser, ac tion cannot be brought against the estate of the maker until the indorser is called upon to pay the notes which he has indorsed; nor can any one holding them who does not pay a valuable consideration, and without notice that the maker received no valuable con- sideration commensurate therefor, bring ac- tion against the maker. In re Hook, 11 N. R R. 282; Fed. Cas. 6,673. 33. Making of notes is not such a repre- sentation as will estop the maker from show- ing them to be accommodation notes. In re Dodge et al., 17 N. B. R. 504; 9 Ben. 480; Fed. Cas. 8,948. 34. An accommodation note is not com- mercial paper within the meaning of the bankrapt act. In re Clemens, 9 N. B. R. 57; 3 DiU. 533; 21 Pittsb. Leg. J. 30; Fed. Cas. 3,877. See §§ 3, 11, 57, 59. YI. Paetneeship Papee. See Paetneeship, 144, 153, 167, 173-176; CON- TEACTS, 1. 35. T. andS. were partners, and borrowed money, which they used for partnership pur- poses, giving therefor their joint note signed by their individual names instead of the firm name. Held to be a partnership debt In re Thomas & Sivyer, 17 N. B. R. 54; 8 Biss. 139; 6 Cent. Law J. 151; Fed. Cas. 13,886. 36. Where an accommodation note was indorsed by one member of a partnership without the knowledge or consent of the other, it cannot be proved against the firm. In re Irving et aL, 17 N. B. R. 33; Fed. Cas. 7,074 37. Notes drawn by one partner in the firm name, apparently in the course of the partnership business, without mala fide or actual knowledge by the holder of want of authority or intended misapplication, should be allowed against the bankrupt estate of COMMERCIAL PAPER, VU-X. 75 the firm. Bush v. Crawford, Ass., 7 N. B. R. 299. 38. Two firms shared in a venture, and kept an account at bank in the name of one firm, adding the word " Co.," and so signed the checks. Held, that these checks did not establish a copartnership between the two firms, and that the holder of one of the checks thus signed could not file a petition in bank- ruptcy against the members of both firms. In re Warner et al., 7 N. B. R. 47; 4 Pac. Law Rep. 123; Fed. Cas. 17,178. 39. Notes given by a solvent partner, after the dissolution of the partnership, to a cred- itor who had assisted in starting and dissolv- ing the firm, and by way of settlement, will not be considered the commercial paper of fiuch partner, he not being by business a merchant. In re Weaver, 9 N. B. R. 132. VII. CONSIDEEATION FOE. 40. A note given in place of a lost note, if there was no consideration for the making of the original note, is not a sufficient claim on which to base a petition for bankruptcy pro- ceedings. In re Cornwall, 4 N. B. R. 134; Fed. Cas. 8,251. 41. Suit being brought by the assignee of a negotiable promissory note against maker, negotiated before maturity, plaintiflfs are not chargeable with notice of any right or equities against the note. Maxwell v. Mc- Cune et aL, 10 N. B. R 306. 42. Want of consideration is no defense to a note against one who becomes a bona fide holder for value before the note is due. Fogg Bros. V. Stickney, Ass., 11 N. B. R. 167; Fed. Cas. 4,898. VIII. Collateral Seotteitt. 43. Commercial paper on which a bank loans money, the paper being indorsed by the borrower, is not held by the bank as collat- eral security. In re Weeks, 13 N. B. R. 263; S Ben. 265; Fed. Cas. 17,349. 44. Pledgees of promissory notes, void be- tween the original parties thereto, which have been pledged to them as collateral se- curity for the payment of an indebtedness, are entitled to prove so much of said notes as will secure dividends to the fuU amount of their claim. Bailey, Ass., v. Nicholas et al., 3 N. B. R. 151; 2 Amer. Law T. Rep. Bankr. 60; 1 Chi Leg. News, 185; Fed. Cas. 741. IX. Indoesement. 4B. The payee of a negotiable bill or note, who sells or delivers the same before bank- ruptcy without indorsement, after bank- ruptcy may indorse it so that the holder may maintain an action thereon in his own name. Hersey v. Elliott, 18 N. B. R. 358. 46. A negotiable note, transferred by the payee before his death, by delivery only, may be indorsed by his administrator with the same effect as if done by himself in his life- time. Id. 47. An indorser can claim no rights under a mortgage where he has paid nothing and is no longer liable, but he is liable to the as- signee for moneys realized by him on the mortgage. Sessions v. Johnson et al.. Ass., 17 N. B. R. 65; 95 U. S. 347. 48. The holder of a promissory note who has received a sum of money from an in- dorser in discharge of the latter's liability may nevertheless prove it in full against the estate of the bankrupt promisor, paying over to the indorser the excess of the sum due holder. In re Souther, 9 N. B. R. 503; 2 Low- ell, 320; Fed. Cas. 13,184. 49. An indorser of a note who receives none of the proceeds of the same, and whose contingent liability never becomes an abso- lute liability, cannot be compelled to pay to the bankrupt's assignee the amount of the note paid by the bankrupt to the holder, and while the debtor was carrying on the busi- ness. Bean, Ass., V. Laflin, 5 N. B. R. 833; Fed. Cas. 1,173. X. Equitable Assignment. 60. If a check is an assignment at all, it does not take effect as such until accepted or certified by the bank, or unless there is a previous promise to honor it. In re Smith, 15 N. B. R. 459; 3 Cin. Law BuL 119; Fed. Cas. 13,990. 51. Where the amount of funds in the hands of a drawee of a draft is less than the amount drawn for, and the draft is not ac- cepted, the mere presentation of the draft does not operate as an appropriation or equi- T6 COMMERCIAL PAPER, XI, XIL table assignment of the funds. Randolph & Co. V. Canby, Ass., 11 N. B. R. 296; Fed. Cas. 11,559. 62. Without presentation, acceptance, or payment, the simple drawing of a check does not transfer the fund drawn on to the amount of the check, from the drawer to the holder thereof. Strain v. Gourdin et al., 11 N. B. R. 156; 2 Woods, 380; Fed. Cas. 18,521. 53. An order drawn for the whole of a particular fund is an equitable assignment thereof, and, after notice to the drawee, binds the fund. In such case, a suit in assumpsit may be maintained in the name of the as- signor to the use of the assignee. Walker, Ass., V. Seigel et al., 12 N. B. R. 394; 3 Cent. Law J. 508; Fed. Cas. 17,085. 54. Bank's claim against bankrupt was founded on three notes on which bankrupt was indorser, on one of which the maker had been given an extension of time. Hekl, that the extension of time released the in- dorser and that such note should be ex- punged from the claim. In re Granger & Sabin, 8 N. B. R. 30; Fed. Cas. 5,684. 55. If the holder of a note assents to the discharge of the maker without the consent of the indorser, this releases the indorser. In re McDonald, 14 N. B. R. 477; 24 Pittsb. Leg. J. 43; Fed. Cas. 8,753. 56. An indorser on a demand note cannot be held if the note be not presented for four years after the making thereof. In re Craw- ford, 5 N. B. R. 301; Fed. Cas. 3,364 XI. Indoesee's Kelbase. 57. The holder of an accommodation note, knowing it to be such, signed a resolution in favor of composition in bankruptcy proceed- ings instituted against an indorser. Held, that the maker of the note was not released from liability. Guild v. Butler, 16 N. B. R. 847. 58. Under the nineteenth section of the bankruptcy act of 1867 an indorser does not become liable as a principal debtor by the mere fixing of his liability as indorser. In re Loder, 4 N. B. R, 50; 4 Ben. 805; Fed. Cas. 8,457. 59. The holder of an accommodation note given by A. to B. gave, for a valuable con- sideration, an extension of time to B. with- out A.'8 assent. Held, that A- was released. The "Valley Nat. Bank v. Meyers, Ass. etc., 17 N, B. R. 257; Fed. Cas. 16,821. 60. Before proving against the estate of an indorser, claimant received a dividend from the estate of the maker of notes. Held, tha,t he could prove only for the balance. In re Hicks et al., 19 N. B. R. 399; Fed. Cas. 6,456. 61. A bank obtained payment of a dis- honored bill of exchange by the acceptance within four months of his bankruptcy. The assignee recovered the amount paid. In a suit against the indorser by the bank, heldf that the holder having taken a preference without the indorser's consent and so pre- vented the indorser, for that time, from in- demnifying himself, the indorser was dis- charged. Northern Bank of Kentucky v. Cooke, 18 N. B. R. 806. 62. So long as both payments do not ex- ceed the face of the note, payments made by the maker after the note has been proved against an indorser will not affect the amount due from the estate. In re Weeks, 13 N. B. R. 263"; 8 Ben. 265; Fed. Cas. 17,349. 63. Wliere commercial paper is indorsed by a firm in its firm name, and also by the individual name of one or more members of the firm, anil the maker of the note becomes embarrassed and bankruptcy ensues to the indorsers of the note, and the holders accept, with permission of court, forty per cent, from the makers, they are only entitled to dividends against the indorsers, individually and as a firm, to an amount equal to their claims after deducting the forty per cent, received from the makers. In re Howard et al., 4 N. B. R. 185; Fed. Cas. 6,750. XII. Teustee's Relation to. See Trustee, 24 64. The mere presentation of an ordinary commercial bill of exchange to the drawee, without acceptance by the latter, who holds funds of the bankrupt by whom the bill is drawn, does not operate as an appropria- tion or equitable assignment of the amount drawn for, and creates no lien as against such funds, and the assignee of the bankrupt will be entitled to the funds. Randolph & Co. V. Canby, Ass., 11 N. B. R. 296; Fed. Cas. 11,559. 65. Plaintiff tendered to the assignee of an insolvent bank, in payment of a judg- ment against himself in favor of the bank, a COMMEllCIAL PAPER, XIII-XV, (a). 77 protested draft drawn by defendant bank on a second bank in favor of a third bank, and indorsed by the last to plaintiff. Held, that 'the assignee could not accept the pro- tested draft ia payment. Bashore et aL v. Ehoads et al., 16 N. B. E. 72. 66. A state court has no jurisdiction to enjoin the assignee from collecting a note payable to the bankrupt. Southern et al. v. Fisher, Trustee, 16 N. B. E. 414. Xni. CoMPOSITIOlf !N"OTES. See Composition, 89. 67. A petition in involuntary bankruptcy ■was filed against E. and F., a firm. The debtors proposed a composition which was accepted by twothirds of the creditors, rep- resenting more than onev-half of the entire indebtedness, whereby the creditors were to receive a certain percentage of the amount due them, payable in notes " satisfactorily indorsed" and maturing at stated periods. Held, that the provision as to indorsement was too indefinite. In re Eeiman & Fried- lander, 11 N. B. E. 31; 7 Ben. 455; Fed. Cas. 11,673. XIV. Notice. (a) Jh General. 68. Where a holder of promissory notes indorsed by the bankrupt purchased them for an exceediagly low price, and was aware of trouble between the maker and the in- dorser, he must be charged with knowledge which he might have obtained if he had made inquiry, and also with notice of the bankrupt's insolvency. In re Hook, 11 N. B. E. 383; Fed. Cas. 6,673. 69. It is no defense to a claim that a note was misapplied if it be received in the usual course of business for value, and without no- tice to the bona fide holder of any equities or defenses between the maker and indorser. Merchants' Nat. Bank of Syracuse v. Com- Btock, 11 N. B. E. 335. 70. A. was adjudged bankrupt, prior to which he conveyed his homestead in trust to secure a debt. This property was ordered to be sold by the bankruptcy court, in satis- faction of a deed of trust. Subsequently, bank- rupt and appellant made contract about rent. and a note was given therefor. The maker of the note became the purchaser at assignee's sale. Held, the state supreme court could not review a decision of United States district court, and that suit being brought by assign- ees against the maker of negotiable paper, negotiated before maturity, plaintiffs are not chargeable with notice of any rights or equi- ties against the note, and the appellees are entitled to judgment. Maxwell v. MoCune et al., 10 N. B. E. 306. 71. At law a principal may maintain an action to recover from a bank the proceeds of a discount of his own note which were placed to the credit of his agent, and where the bank, at the time of the deposit, had no notice that it did not belong to the agent. Voight V. Lewis, Tr., 14 N. B. E. 543; 11 Phila. 511; 83 Leg. Int. 403; 9 Chi. Leg. News, 65; 11 Bankers' Mag. (3d S.) 481; 8 N. Y. Wkly. Dig. 431; 34 Pittsb. Leg. J. 54; Fed. Cas. 16,989. (b) Of Dishonor. 72. A note given by a member of a firm was indorsed by the firm, and before matu- rity the firm became' bankrupt. Held, that they were not entitled to notice of dishonor, and that the note might be proved against the joint assets. Eussell, Ex parte. In re Paul & Son, 16 N. B. E. 476; Fed. Cas. 13,148. (c) Waiver of. 73. Where a bankrupt is indorser on a note which falls due after the adjudication of bankruptcy and before the appointment of an assignee he may waive demand and notice. Tremont Nat. Bank, Ex parte. In re Battey, 16 N. B. E. 397; 3 Lowell, 409; 35 Pittsb. Leg. J. 84; Fed. Cas. 14,169. XV. Payment. (a) In General. 74. In actions against the acceptor pay- ment by the drawer is no plea, but only con- verts the holder into a trustee for the drawer. In re Souther, 9 N. B. R. 603; 3 Lowell, 830; Fed. Cas. 13,184. 75. Plaintiff held a promissory note exe- cuted jointly by defendants and one C, who made a payment and was adjudicated bank- rupt within four months thereafter. Defend- 78 COMMERCIAL PAPER, XV, (b), XVL ants paid the balance to plaintiflE's clerk and obtained the note, the clerk being ignorant of the facts. The bankrupt's payment was recovered by the assignee and plaintiff sued for the amount of said payment. Held, he could recover. Watson v. Poague et aL, 15 N. B. R 473. (b) Susjoension of. See Acts of Bankkuptct, 31^8, 65, 76. 76. It is unnecessary to show the stoppage of payment to have been fraudulent; suspen- sion of payment and non-resumption within fourteen days is all that is contemplated by the act of 1867. In re Cowles, 1 N. B. E. 42; 1 West. Jut. 367; Fed. Cas. 3,397. XVI. In Geneeal. 77. A petition in involuntary bankruptcy alleged that a certain corporation had sus- pended payment of its commercial paper and had not resumed within fourteen days (act of 1867). There was no allegation that the sus- pension and non-resumption were fraudu- lent. The adjudication as asked was refused, but the petition was allowed to be amended by inserting the word "fraudulent." In re Jersey City W. G. Co., 1 N. B. E. 113; 7 Amer. Law Reg. (N. S.) 419; 1 Amer. Law T. Rep. Bankr. 61; Fed. Cas. 7,293. 78. When a banker, merchant or trader fraudulently stops or suspends payment of his commercial paper and does not resume vsathin fourteen days, he commits an act of bankruptcy (act of 1867). There must be a stopping or suspension of payment, and also a non-resumption within fourteen days; and such suspension and non-resumption must be fraudulent in the sense in which that term is employed in the act. Id. 79. The suspension of payment by a manu- facturing company and non-resumption of payment within fourteen days does not of itself constitute an act of bankruptcy. Id. 80. A suspension of payment of commer- cial paper for fourteen days is not, in the ab- sence of fraud, an act of bankruptcy (act of 1867). In re Leeds, 1 N. B. R. 138; 25 Leg. Int. 140; Fed. Cas. 8,205. 81. The suspension of payment of com- mercial paper mentioned in section 39 of the bankrupt act (1867) must be done pur- posely and be continued for fourteen day& In re Hollis, In re Kenney, 3 N. B. E. 83j Fed. Cas. 6,621. 82. Failure to pay a particular note be- cause it is claimed that there is a good de- fense to it is not an act of bankruptcy (act of 1867). In re Manheim, 7 N. B. E. 343; 6 Ben. 270; 5 Chi. Leg. News, 149; Fed. Cas. 9,038; In re Munn, 7 N. B. E. 468; 3 Biss. 443; Fed. Cas. 9,925; In re Staplin, 9 N. B. R. 142; 5 Chi. Leg. News, 523; Fed. Cas. 13,304 83. Any creditor may have his debtor ad- judged a bankrupt, although the note which had remained unpaid for fourteen days had been paid before the petition was filed, if the debtor's whole liabilities were not paid (act of 1867). In re Ess et aL, 7 N. B. R 138; 3 Biss. 301; 4 Chi Leg. News, 357; Fed. Cas. 4,530. 84. The continued nonrpayment of com- mercial paper by a merchant or trader is, as it were, a continuous act of bankruptcy, and not such a definite, final and completed act that it could not after six months be mad© the basis of an adjudication (act of 1867). la re Raynor, 7 N. B. E. 527; 11 Blatchf. 43; Fed. Cas. 11,597. 85. The maker of a note is not bound, as to the validity of the note, by an order of as- signment by the court When the action is brought he may make his defense to the note. Lamb, Ass., v. Lamb, 13 N. B. R 17; 6 Biss. 420; 7 Chi Leg. News, 411; 21 Int. Eev. Rec. 317; 1 N. Y. Wkly. Dig. 318; Fed. Cas. 8,01fi. 86. C. and D. were jointly indebted to A on promissory notes; by bankruptcy A. be- came indebted in a larger amoimt than the notes to C. and E., partners, on a policy of in- surance, and on C.'s petition to have his share of the joint liability set ofiE against a like amount due on the policy, held, that there being no mutual debts or mutual cred- its, the bankrupt law allowed no such set-off. Gray v. Eollo, 9 N. B. R 337; 18 Wall. 639. 87. The drawer of a bill, made and dated at his place of business, undertakes to pay there in case of dishonor, even though the bill was negotiated at some other place. In, re Glyn, 15 N. B. R 495. 88. In case of dishonor of a biU drawn in this country on a foreign bank, the law of damages is a part of the law of performance^ COMMISSION MERCHANT -COMMON CARRIERS. 1& not of the remedy or execution and validity of the contract. Id. 89. The assignee of a note executed for the purchase price of land is not entitled to the security of the equitable vendor's lien thereon, such lien being personal and not assignable. In re Brooks, 3 N. B. R. 149; 3 Amer. Law T. Rep. Bankr. 66; Fed. Cas. 1,943! 90. While the law merchant protects the bank in its dealings with the holder of nego- tiable paper, it does not throw any protec- tion about the security, except when it is negotiable in character. In re Kansas City & & M. Mfg. Co., 9 N. B. R. 76; Fed. Cas. 7,610, 91. A note was given for a balance in a large transaction had about the commence- ment of the war, a portion of the subject of which was negroes. Held, that the note, having been executed prior to the emancipa- tion proclamation, was valid. In re Miller V. Keys, 3 N. B. R. 54; Fed. Cas. 9,578. 92. A promissory note given by an officer of a railroad corporation, signing his own name and affixing his official title as de- scriptio persona, may be shown by parol testimony to be the act of the corporation. In re S. Mmn. R R. Co., 10 N. B. R. 86; Fed. Ca& 13,188. 93. "When a man enters the commercial community as a merchant, trader, banker or otherwise, he assumes all the responsibilities which attach to his calling — to take care of aU his commercial paper, whether made be- fore or after he commenced business, and whether given by him as a result of his par- ticular business, or as a result of a transac- tion not directly within the scope of that business." In re Carter, 6 N. B. R. 299; 4 Chi. Leg. News, 187; 3 Leg. Op. 231; 6 Amer. Law Rev. 755; Fed. Cas. 3,470. 94. In general, an express authority is not indispensable to confer upon a corporation the right to borrow money or to become a party to negotiable paper. In re Hercules Mut. L. Ass. Soc, 6 N. B. R. 338; 6 Ben. 35; 6 Alb. Law J. 353; Fed. Ca& 6,403. COMMISSION MERCHANT. See Agent, \i, 16; Fiduciaby Debt, 1. COMMITTEE. L Compensation. IL Generally. See Trustee, 338. I. COMPENSATIOM'. 1. One of the members of a committee^ under sec. 5103, R. S., rendered services to trustee in preparing for market a stock of tobacco and in efEecting settlement of liti- gation. On application for compensation, held, that claimant was not entitled to com- pensation. In re Bonnett et al., 19 N. B. R.- 309; Fed. Cas. 1,634 2 . The members of a comraittee of creditors provided for by section 43 (act of 1867) are en- titled to compensation for their services, but this compensation should be limited to such an amount as will afford a reasonable compen- sation for the services required, and should not be based upon the usage, nor upon the special qualifications of the person who may happen to perform the services. In re Treat,. 10 N. B. R. 310; Fed. Cas. 14,160. II. Geneeally. 3. It is a substantial objection to a reso- lution under section 43 of the act of 1867, appointing a trustee and committee, that the committee is composed of only two, of which one is the trustee. In re StiUweU, 3 N. B. R. 164; Fed. Cas. 18,447. 4. A creditor who claims a preference which is contested is an improper person to be one of committee selected according to section 43 of the act of 1867. In re Stuyve- sant Bank, 6 N. B. R. 373; 5 Ben. 566; Fed. Cas. 13,581. 5. Application was made for relief against action of trustee and majority of committee- chosen to assist him in allowing counsel fees alleged to be excessive. Held, that the act of the majority is the act of the committee. In re Baxter et al., 19 N. B. R. 395; Fed. Cas.. 1,133. COMMON CAERIEES. See COEPOEATIONS. 1. Common carriers are insurers and lia- ble in all events and for every loss or dartv. 80 COMPENSATION — COMPOSITION. age however occasioned, unless it happened by the act of God or the public enemy, or by some other cause or accident without fault or negligence on the part of the carrier, and expressly excepted in bill of lading. Sweatt V. Boston, H. & E. R. R. Co., 5 N. B. R. 234 3 Chff. 339; 1 Amer. Law T. Rep. Bankr. 273: 1 Amer. Law T. 173; 6 Amer. Law Rev. 168 Fed. Cas. 13,684 2. A common carrier is not a trader, and a mortgage given by a railroad company is not an act of unusual character within the meaning of the bankrupt act. In re Union Pacific R. R. Co., 10 N. B. R. 178; 6 Chi Leg. News, 355; Fed. Cas. 14,376. COMPENSATION. See Costs and Fees. COMPROMISE. 1. A compromise is not justified in a case where the due administration of the bank- rupt law requires the settlement of the ques- tions of law involved, although the expense and delay of litigation is considerable. In re Eowe et aL, 18 N. B. R. 428; Fed. Cas. 13,092. 2. Before filing a voluntary petition in bankruptcy, the debtors assigned a number of claims to their attorneys, and paid them $150 for services rendered and to be rendered in the bankruptcy proceedings. The attor- neys collected some of the claims. The as- signee sued for the money and claims, alleg- ing that the transfer was void. After issue joined, the assignee applied to compromise the claim. Held, that it was not a proper case for compromise. Id. 3. Where a resolution was offered at first meeting of creditors that the court be re- quested to make an order authorizing assignee to compromise certain debts due bankrupt, with consent of three creditors as a commit- tee, which resolution was passed, held, that such order was not warranted by any provis- ion of the act, or by any order. In re Diblee etaL,3N.B.R.17; 3 Ben. 354; Fed. Cas. 3,885. 4. Efforts by bankrupt's friends to com- promise and buy up his debts and stop pro- ceeding in bankruptcy are no fraud upon the bankrupt act. In re Frank, 5 N. B. E. 194; 5 Ben. 164; Fed. Cas. 5,050. CONDITIONAL DELIVERT. A contract for the conditional delivery of goods to a debtor gives his creditors no title to them until the accoimt for the same is paid. Sawyer et aL v. Turpin. et aL, 6 N. K R. 339; 3 Lowell, 29; Fed. Cas. 12,410. COMPOSITION. L When Confiemed. (a) General. (b) Effect of. (c) Time lAmit. (d) In Collateral Actions. (e) Best Interest of Orediton, (f) Estoppel. IL When Set Aside. (a) General. (b) For Fraud. (c) Notice. (d) Failure to Carry Out. in Objections to. (a) General. (b) On Account of FraudL (c) To Petition and Schedule, IV. Claims Included. (a) General. (b) Preferences. (1) Fraudulent. (c) Secured. (d) Estoppel, (e) Lien of. (f) Set-off. (g) Commercial Paper. V. Courts. . (a) Attachments. (b) Injunctions. (c) Arrest. (d) Judgments. VI Composition MEEHNa. (a) General. (b) Voters. (1) Number Required. (c) Examination of Bankrupt (d) Resolutions. VJLL Deferred Payments. (a) General. (b) Security for. VIIL Revival of Debt. IX. General Assignment— Effect Upon, X. Discharge. (a) General. (b) Disposition of Assets. COMPOSITION, I, (aHd). 81 X DiscHa.RaE — continued. (c) Effect of. (d) From Debts. See Commercial Paper, 57, 67; Costs and Fees, 4; Estates, 5, 53, 206; Fraud, V; Laches, 9; Partners, 39, 51, 53; Pay- ment, 6; Sale, 48. I. "When Coitfiemed. (a) General. 1. Where a composition is made before ad- judication, the fact that the debtor retains the possession of his E^sets is no- ground for refusing to ratify it. In re Van Auken et aL, U N. B. R 425; Fed. Cas. 16,828; R. S. 5014. 2. A provision that the debtor may retain his assets does not defeat a composition, it being surplusage, and on the application of a creditor a warrant maybe issued, notwith- standing the terms of the provision. Id. 3. If the confirmation is examined by the register he may be considered to do so under a special order, and the time taken may be added to that spent in examining the resolu- tion. In re Spillman, 13 N. B. E. 314; 8 Chi. X,eg. News, 140; 33 Pittsb. Leg. J. 87; Fed. Cas. 13,343. (b):Efectof. 4. Creditors who have accepted a compo- sition are not entitled to vote for an assignee. Ex parte Hamlin, 16 N. B. E. 320; 3 Lowell, 571; 5 Cent. Law J. 381; Fed. Cas. 5,993. 5. The principal element in determining whether the debtor should be allowed to keep his property is his personal and busi- ness character, the composition being other- wise fair. In re Wilson et aL, 18 N. B. E. 300; Fed. Cas. 17,785. 6 . A bankrupt whose composition, whereby a certain percentage shall be paid, has been properly accepted, cannot add to the pro- visions of said composition by demanding a discontinuance and the surrender of the property before the percentage is paid. In re McKeon, 11 N. B. E. 183; 7 Ben. 518; 3 Amer. Law Eeo. 611; 11 Alb. Law J. 7; Fed. Cas. 8,858. 7. If an offer of composition is accepted, the payment is for the satisfaction of the debts and not as a dividend from the estate in bankruptcy. In re Lissberger, 18 N. B. R. 230; Fed. Cas. 8,384 8. The confirmation of a composition does not give the assent of the court to what the resolution vainly attempts to effect. In re Hyman et al., 18 N. B. E 299; Fed. Cas. 6,985. 9. On a motion to dissolve an injunction by which a judgment creditor was restrained from arresting the bankrupt on execution, the question arose, a composition having been offered, whether fiduciary debts would be released by the confirmation of a compo- sition. It was held that such debts are dis- charged by a composition. In re Eodger et al., 18 N. B. E. 252; Fed. Cas. 11,991. (c) Time Limit. 10. It is for the creditors to consider the question of the time within which the debtor can pay the composition, and, unless sufficient reasons are shown, their judgment will not be reversed. In re Wilson et aL, 18 N. B. R. 300; Fed. Cas. 17,785. 1 1 . A resolution of composition providing that it should be consummated in a limited time or be void was approved. A question arose as to what amounted to consumma- tion. It was held that it must be consum- mated as to all the creditors within the given time or it would be void as to aU. Evans et aL V. Gallantine, 18 N. B. E. 311. 12. The confirmation of a composition need not be made at a meeting. In re SpiU- man, 13 N. B. E. 314; 8 ChL Leg. News, 140; 33 Pittsb. Leg. J. 87; Fed. Cas. 13,248. 13. Upon the adoption of a resolution of composition a reasonable time may be given in which to secure the additional signatures necessary to confirm it. Spades, In re, In re Muir et al., 13 N. B. E. 72; 6 Biss. 448; 8 ChL Leg. News, 33; Fed. Cas. 13,196. (d) In Collateral Actions. 14. The decision of the district court that a resolution which provides for payment in notes of the bankrupt is valid, is conclusive in a collateral action. Smith et al. v. Engle et aL, 14 N. B. R. 481; R. S. 5044 15. The determination of the district coiart that a proper proportion of the credit- 82 COMPOSITION, I, (e), (f;. ors have confirmed a composition cannot be impeached in a collateral action. Id. 16. A resolution of composition will be valid in a collateral action, although the sig- natures of the bankrupt and the creditors in confirmation of the resolution are attached to a separate paper. Id. (e) Best Interest of Creditors. 17. A bankrupt acted in a manner not calculated to benefit his creditors, but when In composition it appeared that the creditors would be benefited by the composition as affairs then stood, the court refused to set it aside. In re Allen et al., 17 N. B. E. 157; 17 Alb. Law J. 170; 35 Pittsb. Leg. J. 143; 6 N. Y. Wkly. Dig. 43; 3 Month. Jur. 58; Fed. Cas. 310. 18. If the debtor proposes an advance in the percentage of composition, such offer is demonstrative of the fact that the original offer is not for the best interest of the cred- itors. In re Scott et al., 15 N. B. R. 73; 4 Cent. Law J. 39; Fed. Cas. 13,519. 19. Objections can be presented at the hearing for the ratification of the resolution, as to the due passage thereof, as to the con- firmatory signatures, and as to what is to the best interest of the parties. Id. 20. A composition of five per cent, will be sustained where there are no other assets of value nor probability of dividend, though an assignee and the creditors are acting in good faith. In re Odell et al., 16 N. B. R. 501; 9 Ben. 247; Fed. Cas. 10,437. 21. Either party may furnish testimony on the question whether the composition is for the best interest of all, and such evidence may be oral or written. In re Keller et al., 18 N. B. R. 831; Fed. Cas. 7,654 22. The fact that there is no security for the payment of composition notes is one of the facts which together with the other facts is to be considered in determining whether the composition is for the best interests of all concerned. In re Wilson et al., 18 N. B. R. 300; Fed. Cas. 17,785. 23. Unless specific errors in the action of the creditors or the lower court, on a com- position, can be pointed out, which would change the judgment, the question of the composition being to the best interests of the creditors will not be inquired into by the ap- pellate court. In re Wronkow, 18 N. B. R, 81; 26 Pittsb. Leg. T. 3; Fed. Cas. 18,105. 24. Where creditors can receive no more- than the amount proposed for composition, if ordinary administration is had, and there is no proof of collusion, the composition should be approved. In re Keiler, 18 N. B. R. 36; 10 Chi Leg. News, 399; Fed. Cas. 7,648. 25. Debtor, desiring to proceed with his business, induced his friends to pay more in composition than his estate would pay in bankruptcy. On objection to composi- tion, it was held that it should be confirmed. In re Snelling, 19 N. B. R. 120; Fed. Cas. 18,140. 26. Where it is made to appear that a set- tlement in bankniptcy would be more for the interest of creditors, the court has power to reject a composition, though opposed by a small minority of the creditors. In re- Whipple, 11 N. B. R. 524; Fed. Cas. 17,513. 27. In the absence of fraud, the question for the court seems to be, not whether the debtor might have offered more in composi- tion than he has offered, but whether his- estate would pay more in bankruptcy. In re Morris, 11 N. B. R. 443. 28. Any composition which is satisfactory to the requisite majority of the creditors and is for the best interest of all is allowed by the statute. In re Purcell, 18 N. B. R. 447; Fed. Cas. 11,470. 29. Where a resolution of composition is against the best interests of all concerned, it will not be confirmed. In re Weber F. Co., 13 N. B. R. 539; Fed. Cas. 17,330. 30. The court will take into accoimt the relations of the creditors favoring the com- promise to the debtor in deciding a motion to confirm, and also the relative number of creditors whose individual opinions were ex- pressed in favor of the resolution. Id. (f) Estojpjpel. 31. Where creditors who have received full payment of debt sign a composition agreement whereby other creditors are in- jured, they are estopped from denying its- validity. Bean v. Brookmire et al., 7 N. B. R. 568; 2 Dill. 108; 5 Chi. Leg. News, 314; "i Amer. Law Rec. 223; 6 Amer. Law T. Rep. 418; 7 West. Jur. 824; Fed. Cas. 1,170. COMPOSITION, II, (a)-(d). III, (a). 83 II. "When Set Aside. (a) Oeneral. 32. On motion to vacate composition, the court held that bankrupt was at liberty to deal with his assets as he pleased, provided no fraud was practiced. In re Shaw et aL, 19 N. B. E. 512; Fed. Gas. 12,716. (b) For Frcmd. ' 33. A creditor who signed a composition expected to obtain a personal advantage. Another creditor who did not sign had ex- pressed his intention to oppose, and was pkid not to oppose. There was no evidence that the bankrupt knew anything of the payment. The composition was set aside. In re Saw- yer, 14 N. B. E. 241; 2 Lowell, 475; 3 N. Y. Wkly. Dig. 143; Fed. Gas. 12,395. 34. When a debtor seeks to make a com- position by the payment of a part, he is not bound to make any representations concern- ing his assets; but he must act in good faith, and if he does make representations which are not true he is guilty of fraud, and the creditors are not bound by the composition fraudulently procured. Elfelt v. Snow, 6 N. B. R 57; 3 Sawy. 94; Fed. Gas. 4,343. 35. A partner effected a composition, but at the direction of a creditor he misrepre- sented the assets and liabilities, and its liabil- ities to such creditor, with the object of saving a large amount and paying it as a preference to said creditor, and said amounts were paid to said creditor in fraud of the rights of other creditors. A petition subsequently filed by such partner to put his firm into bankruptcy was dismissed. In re Hamlin et al., 16 N. B. R. 523; 8 Biss. 133; 10 Chi. Leg. News, 131; Fed. Gas. 5,994. 36. A creditor received money to vote for a composition. Attorneys for other creditors were suspicious at the time, but made no ef- fort to investigate. Bankrupt contracted new obligations on the faith of the com- position. Petition was filed ^wo years after final order in composition to set it aside. It was held that the doctrine of laches applies and petition was dismissed. In re Herman et aL, 17 N. B. E. 440; 9 Ben. 436; Fed. Gas. 6,405. (c) Wotice. 37. Notice of application to set aside a composition was sent to the debtor, but not to the creditors. It was held that all cred- itors were entitled to notice. Ex parte Ham- lin, 16 N. B. R 320; 3 Lowell, 571; 5 Cent. Law J. 281; Fed. Gas. 5,993. (d) Fmlmre to Oa/rry Out. 38. Where a composition is secured by consent of the creditors, and by its terms new liabilities are created with other parties, the creditors cannot have it set aside because the bankrupts have failed to comply with its terms. In re Ewing et al., 17 N. B. E. 109; Fed. Gas. 4,588. 39. Having failed to pay according to the terms of his composition, a bankrupt cannot protect himself by it from an action at law^. Nat. M. W. Bank v. Porter et aL, 17 N. B. R. 339. 40. Bankrupt offered a composition, which was accepted and certain of the creditors paid. On application to set aside the com- position and appoint an assignee, it was held that the appointment should be made, but that rights acquired under the composition were not to be prejudiced. Ex parte Ham- lin, 16 N. B. E. 320; 3 Lowell, 571; 5 Gent. Law J. 381; Fed. Gas. 5,993. 41. A composition was accepted and con- firmed, but afterwards, because of the debt- or's inability to carry it into effect, it was set aside. The proceedings were on an involun- tary petition. Before the order was made to set the composition aside the debtor filed a voluntary petition and was adjudicated. It was held that, there being no adjudication on the first petition, it was no bar to the volun- tary petition. In re Flanagan, 18 N. B. R 439; 36 Pittsb. Leg. J. 128; 5 Sawy. 313; Fed. Gas. 4,850. III. Objectioits to. (a) General. 42. Where a debtor deceives his creditors into a vote on a composition which they would not have given had they known the facts, the court will withhold assent to the compo- sition, if satisfied that the proceedings were collusive, even if there is only one dissenting 84 COMPOSITION, HI, (b), (o), IV, (a), (b). creditor. In re Keiler, 18 N. B. R. 36; 10 Chi Leg. News, 299; Fed. Cas. 7,648. 43. A firm and one member, individually, made a general assignment. Creditors then instituted proceedings in bankruptcy against the firm and its members, and adjudication •was made. One member afterward proposed a composition which was accepted by the requisite number. Objection being made to the composition, the court held that the in- dividual member could properly make such proposition. Pool v. McDonald et aL, 15 N. B. R. 560; 9 Chi Leg. News, 333; 4 Law & Eq. Rep. 37; 3 Cm. Law Bui 151; Fed. Cas. 11,368. (b) On Accowit of FroAid. See Collusion, 1. 44. There was a discrepancy between the compromise offered and the value of the debtor's property and other indicia of fraud. The district court refused to record the com- position without notice and hearing of the parties concerned. On petition in review it was held that the district court erred. In re The Weber F. Co., 13 N. B. R. 559; Fed. Cas. 17,331. 45. Where the record shows on its face by the debtor's statement that his estate is able to pay a larger dividend than that of- fered in composition, the dissenting credit- ors may rely upon this statement and are not bound to prove the facts. In re Weber F. Co., 13 N. B. R. 539; Fed. Cas. 17,330. (c) To PeUUon cmd Schedule. See Petition, 133. 46. A composition is not rendered void by the omission of an asset from the statement of debts and assets when such omission was without fraud and with the knowledge of the creditors, and such asset is not of suffi- cient value to require the alteration of the terms of the composition. The testimony of the debtor at the meeting of creditors is considered as part of his statement. In re Reiman et ai, 13 N. B. R. 128; 13 Blatchf. 563; Fed. Cas. 11,675. 47. The word "creditors," in the section of the act relating to composition, means all whose debts are provable in bankruptcy. The creditor may prove the true amount of a disputed claim. In re Trafton, 14 N. B. R. 507; 3 LoweU, 505; Fed. Cas. 14^133. 48. A mistake without fraud, made by the debtor in his statement of the amount due to a creditor, wiU not vitiate a compo- sition. Id. 49. In the schedule furnished by the bank- rupt in composition one debt was under- stated, but not intentionally. It was held that such mistake would not avoid the com- position. Beebe v. Pyle, 18 N. B. R. 163. 50. In composition, the statement should conform to the schedule in bankruptcy. In re Haskell, 11 N. B. R. 164; 1 Cent. Law J. 531; Fed. Cas. 6,193. 51. Where the facts were brought out by the testimony and considered by the credit- ors in coming to the conclusion to accept the composition, it is not a good objection that property standing in the name of the bank- rupt's wife should have been included in the schedules. In re Welles, 18 N. B. R. 535; Fed. Cas. 17,377. 52. Unless clearly made out the objection to a composition that the estate could pay more is' not one that will avaii Id. 53. The fact that the schedules stated the real estate of the debtor as of tmcertain value is not a good objection to a composition. Id. IV. Claims Iuoluded. (a) General. 54. A. advanced money to B. with the un. derstanding that B. should not be pressed for payment, but with no contract delaying or deferring payment, and no misrepresenta- tions were made to B,'s creditors. A was held entitled to share in the dividends of B.'s estate under a composition. In re Lane et ai, 10 N. B. R 135; 2 LoweU, 333; Fed. Cas. 8,044. 55. In a composition it makes no difler- ence to what time interest is computed, if aU the debts are treated alike. Beebe v. Pyle, 18 N. B. R. 162. (b) Preference. See Preference, 70. 56. A bankrupt had no assets of value. A creditor who was entitled to preference ob- jected to a confirmation of the composition unless his claim was paid in full or unless the confirmation be had subject to his claim. COMPOSITION, IV, (b), (!)-<«). 85 It was held that his priority extended only to the assets. In re Chamberlin, 17 N. B. E. 60; 9 Ben. 149; Fed. Gas. 2,580. 57. A debtor gave preferences to creditors who knew of his insolvency. A little more than two months after the preference bank- ruptcy proceedings were commenced. There- upon the debtors proposed a composition. The composition was accepted by the requi- site number, but objected to by a minority. It was held that the composition would not be confirmed imless the pro rata offered to the creditors equaled the amount they would have been entitled to if no preference had been mada In re Jacobs, 18 N. B. E. 48; Fed. Gas. 7,159. 5 8 . A stipulation by a creditor for a secret advantage is altogether void. Not only can he take no advantage from it, but he loses the benefit of a composition. Brookmire et al. V. Bean, Ass., 13 N. B. R. 217; 3 Dia 136; 3 Gent. Law J. 265; Fed. Gas. 1,943. (1) Fraudulent. 5 9. A composition includes and binds prov- able debts created by fraud. In re Shafer et al., 17 N. B. R. 116; 1 N. J. Law J. 66; Fed. Gas. 12,695. 60. If the creditor makes it a condition of his uniting in a composition that he shall have any advantage not made known to the others, the transaction cannot stand either at law or in equity. It is a fraud upon credit- ors. It is treated as oppression towards the debtor, and he may defend against any prom- ise to pay made under such circumstances. Bean v. Brookmire & Rankin, 7 N. B. R. 568; 3 DilL 108; 5 Chi Leg. News, 314; 2 Amer. Law Eeo. 333; 6 Amer. Law T. Rep. 418; 7 West. Jur. 334; Fed. Cas. 1,170. 61. Concerning a composition, the deter- mination of the creditors is final in the ab- sence of fraud, accident or mistake; but where injustice has been done through fraud- ulent preferences, the maxim must apply, "The law would rather tolerate a private loss than a public evil," and the court will not lend aid to the discharge of the debtor. In re Jacobs, 18 N. B. R. 48; Fed. Cas. 7,159. See ante, 35. (o) Secii/red. 62. A creditor of a bankrupt who has per- sonal security will be allowed to vote upon a resolution of composition the same as if unsecured. In re Muir et al., 13 N. B. R. 72; 6 Biss. 448; 8 Chi Leg. News, 33; Fed. Ca& 13,196. 63. In the schedule plaintifl's claim was represented as secured. Plaintiff was present at composition proceedings and neither ob- jected nor assentedto proceedings. On sale of the property which was security, less than the amount of the -debt was realized. It was held that plaintiff was entitled to the per- centage agreed upon, at the composition, of his unpaid debt. Paret v. Ticknor et aL, 16 N. B. R. 315; 4 Dili 111; 5 Cent. Law J. 328; Fed. Cas. 10,711. 64. A. was the maker, B. the indorser, and G. the holder of a promissory note. Before maturity of the note B. became bankrupt and entered into a composition with his cred- itors to pay fifty cents on the dollar. This note was scheduled. A. then became bank- rupt and under a composition paid fifty cents on the dollar on the note. B. then offered to pay fifty-five per cent, on the balance due and refused to pay fifty per cent, on the face of the note. It was held that C. was entitled to the double security, and that B., having re- fused to comply with the terms of the com- position, could not be protected by it. The Nat. M. W. Bank v. Porter et aL, 17 N. B. R. 329. 65. Creditors who are secured need not be reckoned in computing the proportion who must join in a composition. In re Van Auken et aL, 14 N. B. R. 435; Fed. Cas. 16,828. 66. Claimant held notes indorsed by bank- rupts. Makers were adjudged bankrupt, and effected composition June 11, 1878, and gave notes payable in three, six and nine months. Claimant refused notes till September 35, 1878, when he accepted cash for matured note and other two notes. On September 9, 1878, he proved claim for amount of original notes. It was held that the proof was cor- rect. In re Hicks et aL, 19 N. B. E. 299; Fed. Cas. 6,456. (d) Estojppel. 67. If the other creditors are fully in- formed of a dispute between debtor and his creditor as to the amount that is actually owing, and of the claims of the respective parties before their final action is taken, they cannot complain if, when called upon to COMPOSITION, IV, (eHg), V, (a), (b). pay, the debtor insists upon what he claimed. In re Lissberger, 18 N. B. R. 330; Fed. Gas. 8,384 (e) Lien. * 68. Upon the credit of a vessel, the char- terer of it obtained supplies from a material- man, and subsequently went into bankruptcy and a composition was accepted by his cred- itors. The material-man claimed a lien on the vessel, though he joined in the composi- tion. It was held that his lien was not dis- charged. The " Home," 18 N. B. R 557; Fed. Gas. 6,657. 69. If a creditor is secured by a lien upon the property of the bankrupt, he may either release such lien and unite in the composi- tion for his whole debt, or have his security valued and come in for the difference. Id. (f) Sei^off. 70. A creditor who receives a composi- tion from his bankrupt debtor, with full knowledge of all the facts, is not entitled afterwards to have a set-off enforced which he neglected to assert. Hunt v. Holmes, 16 N. B. R. 101; Fed. Gas. 6,890. 71. The bankrupt in composition stands, as to set-off, in the position of an assignee, if none has been appointed. In re North et al., 16 N. B. R 420; 2 Lowell, 487; Fed. Gas. 6,764. (g) Com/mercial Paper. 72. The holder of a note advanced by a factor to a manufacturer and by him in- dorsed and discounted, who has agreed to a composition, reserving his right to prove the full amount of the note against the other parties to it, need not, in proving against the manufacturer, give credit for the full amount received by him on the composition, but must abate his proof by giving credit for the amount of the manufacturer's goods in pos- session of the factor. In re Cochrane, Jr., 16 N. B. R 433; 2 Lowell, 568; Fed. Gas. 6,109. 73. Certain debtors filed a voluntary peti- tion before the maturity of a note on which they were indorsers. They proposed a com- position which was concluded. The note was included in obligations filed, but the holders took no part in the proceedings, but sought to recover the amount of the note, it having become due after the compromise and not having been paid by the maker. It was held that they could recover. Smith et aL V. Krauskopf et aL, 18 N. B. R 6. V. CoiTETS. See GONTEMPT, 9; Goukts, 74^ 363, 365. (a) AUadvmemt. See Attachment, 43. 74. A resolution of composition will dis- solve an attachment made within four months before the commencement of the proceedings in bankruptcy. Smith et aL v. Engle et al., 14 N. B. R 481 ; R S. 5044. 75. Attaching creditors have no right to participate in a composition meeting. In re Shields, 15 N. B. R 533; 4 DilL 588; 4 Cent. Law J. 557; 24 Pittsb. Leg. J. 190; Fed. Cas. 13,784 76. When payable under a composition, moneys cannot be reached by attachment or obstructed by proceedings of another court, the object of which is to -withhold the fund, pending the litigation, from the creditor en- titled to it. In re Kohlsaat et aL, 18 N. B. K. 570; Fed. Gas. 7,918. (b) Injunction. See Injunction, 13, 79. 77. Pending composition proceedings a bankrupt was sued in a state court for a claim scheduled in the bankruptcy court, and was not allowed to plead the composition in bar, though tender had been made in accord- ance with the composition. An injunction was granted. In re Shafer et aL, 17 N. B. R 116; 1 N. J. Law J. 66; Fed. Cas. 13,695. 78. Creditors who have agreed to a com- position will be enjoined from suing on the original debts until such time as was agreed upon for the last payment has passed. The debts to which an injunction can extend are only the debts to which a composition can extend, that is, unsecured debts. In re Hins- dale, 16 N. B. R 550; 9 Ben. 91 ; Fed. Gas. 6,526. 79. One-third of the composition was to be paid April 9, 1877, one-third on May 18, 1877, and one-third on August 18, 1877. Cred- itors enjoined from suing on the original debts before August 18, 1877. Id. 80. A bankrupt filed an answer in a state COMPOSITION, V, (o), (d), VI, (a). sr court pending composition proceedings and before they could be set up as a defense. The composition perfected, he applied for leave to put in a supplemental answer, which was re- fused and judgment by default was taken. He then applied for an injunction in the bankruptcy court restraining the enforoe- Tnent of the judgment. The injunction was refused. In re Nebenzahl, 17 N. B. R. 23; 9 Ben. 243; Fed. Cas. 10,074. 81. A bankrupt had entered into a com- position with his creditors. Thereafter, a creditor took judgment against him by de- fault. The debtor applied for an injunction ■to prevent execution upon the judgment. 'The application was dismissed. In re Tooker, 14 N. B. R 35; 8 Ben. 390; 28 Pittsb. Leg. J. 185, 196; Fed. Cas. 14,096. 82. If a composition be entered into for •cash, secured by a mortgage on i-ealty, the district court has no jurisdiction to restrain «, creditor from levying on personal property, although the name of such creditor was placed on the list of creditors. In re Lytle .& Co., 14 N. B. R. 457; 11 Phila. 523; 3 N. Y. "Wkly. Dig. 303; 5 Amer. Law Rec. 306; 9 Chi. Leg. News, 18; 33 Leg. Int. 349; 1 Cin. Law BuL 246; 24 Pittsb. Leg. J. 14; Fed. Cas. 8,650. 83. After filing of petition creditor ob- tained judgment. A composition having been proposed and confirmed, the collection •of the judgment was enjoined. Creditor's debt was included in debtor's statement, but w^as never proved. Debtors having failed to pay first instalment of composition and sec- ■ond instalment when it was due, creditor applied for dissolution of injunction, and court ordered that same be dissolved unless debtors should forthwith carry out composi- tion or proceed with bankruptcy proceedings. ■On petition to review it was held that the injiinction was properly granted, and that the court was right in refusing to dissolve it. In re Bayly et al., 19 N. B. R. 73; 26 Pittsb. Leg. J. 172; Fed. Cas. 1,144. (c) Arrest. 84. A bankrupt was arrested under civil process of a state court after confirmation of «, composition in the federal court. Plaint- iffs alleged that cause of action was based upon a sale procured by defendant through false representations. It was held that the composition satisfied the debt. Bamberg et aL V. Stern, 18 N. B. R. 74. (d) Judgments. 85. Composition suspends all remedies on a judgment except perhaps those necessary to enforce the liens in existence when the bankruptcy proceedings were commenced. Conover et aL v. Dumahaut et aL, 17 N. B. R. 558. 86. A creditor began an action by attach- ment against his debtor, and immediately a petition in bankruptcy was filed by other creditors. Debtor applied for a composition. Plaintiff obtained judgment. Composition was approved by the court. Plaintiff had notice of the proceedings, but refused to ac- cept payment under the composition. It was held that his attachment was not dis- solved by the composition. In re Shields, 15 N. B. R. 532; 24 Pittsb. Leg. J. 190; 4 DilL 588; 4 Cent. Law J. 557; Fed. Cas. 12,784 YI. CoMPosiTioiir Meetings. (a) General. 87. None but imsecured creditors should be heard on the ratification of a resolution of composition for which due notice was given. In re Scott, Collins & Co., 15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12,519. 88. Before they are permitted to vote on a resolution of composition creditors must prove their claims, but in involuntary pro- ceedings the petitioning creditors are not bound to prove anew at a meeting for com- position. Id. 89. In composition proceedings the holder and owner of an accommodation note is the party to be dealt with. The accommodation maker is not entitled to notice of such pro- ceedings involving indorser and payee, for the accommodation of whom the note was paid. Liebke v. Thomas, 116 U. S. 605. 90. When the right of a party to vote at a composition meeting is denied by the reg- ister, his course is to ask an adjournment of the meeting until his right as a creditor can be determined by the court before the final vote. In re Spencer, 18 N. B. R. 199; Fed. Cas. 13,229. 88 COMPOSITION, VI, (b), (1), (c). 91. Only creditors who prove their claims are entitled to take part in the proceedings at a composition meeting. In re Keller et al., 18 N. B. E. 331; Fed. Cas. 7,654 92. When a debtor has had a meeting of his creditors, and has had his proposition for a settlement passed upon, he should not be permitted to require their attendance at fur- ther meetings; but where it appears that the object of the meeting failed, by reason of the failure to instruct the attorneys who represented the creditors, it is proper to di- rect a meeting for the purpose of again con- sidering the debtor's offer of a composition. In re McDowell et aL, 10 N. B. E. 459; 6 Biss. 193; 6 Chi. Leg. News, 413; Fed. Cas. 8,776. 9 3 . Upon the filing of a petition for a com- position, the court will direct the register to call a meeting of creditors and issue notices therefor. In re Muir et al., 18 N. B. E. 72; 6 Biss. 448; 8 Chi. Leg. News, 33; Fed. Cas. 13,196. (b) Voters. See Vote, 15. 94. In composition proceedings a creditor offered to vote without first proving his claim. It was held that he could not. In re Mathers et al., 17 N. B. E. 325; Fed. Cas. 9,274 95. When the assets are sufficient to pay workmen to the extent of $50 each, they can only vote on the question whether a resolu- tion of composition shall be adopted to the extent of their respective debts above $30. In re O'Neil, 14 N. B. E. 210; 2 Lowell, 470; Fed. Cas. 10,528. 96. On motion to vacate composition pro- ceedings, it was held that creditors who have not proved debts cannot take part in compo- sition proceeding, although they have been permitted to intervene in proceedings for adjudication and to act therein. In re Bryce et al., 19 N. B. E. 287; Fed. Cas. 2,069. 97. A creditor who has bought a debt with intent to prevent the adoption of a resolution for composition may vote upon it at the meeting for composition if he have no oppressive motive. In re Morris, 12 N. B. E. 170. (1) Number Kequired. 98. A composition was accepted by the requisite mimber, the register reporting that the requisite number had acted, even if votes excepted to by the minority creditors were refused. It was held that it was the duty of the court to examine the objections of the minority fully. In re Keller, 18 N. B. E. 36^ 10 Chi. Leg. News, 399; Fed. Cas. 7,648. 99. Where creditor has given assent in writing and bankrupt has acted upon it and other creditors have given theirs, and assent of requisite number is obtained and filed, a creditor has no absolute right to withdraw on the day fixed for hearing. In re Brent, 8 N.B. E.444; 2 Dill. 129; Fed. Cas. 1,833. 100. A bankrupt had eighteen creditors, of which number thirteen owned debts valued at more than $50 and five were for less amounts. The court held that these whose debts exceeded $50 would be counted in computing the requisite two-thirds who- shall confirm a resolution of composition (act of 1867). In re Gilday, 11 N. B. E. 108; 7 Ben. 491; Fed. Cas. 5,422. 101. Where a creditor considers himself and is considered by his debtor as fully se- cured, although in fact he is not, he is not to- be counted as a creditor merely to defeat a composition to which the requisite number of creditors have assented. In re Snelling, 19 N. B. E. 120; Fed. Cas. 13,140. 102. Creditors whose debts do not exceed $50 are to be disregarded in computing the majority who must pass a resolution of com- position, as well as in the number of those who are required to sign the confirmatory stateinent (act of 1867). In x» Wald et aL, 12 N. B. E. 491; 1 N. Y. Wkly. Dig. 174; 7 ChL Leg. News, 26; 1 Cent. Law J. 531; Fed. Cas. 17,054 (c) Excmdnation of Bankrupt. 103. On exceptions to resolutions for com- position, it was held that it is a right of a small minority of creditors present at a com- position meeting to insist upon opportunity for examination of bankrupt before vote is taken, but such right is waived by moving for vote before such examination. In re Little, 19 N. B. E. 234; 3 N. J. Law J. 211; Fed. Cas. 8,393. 104. Leave to record a resolution of com- position was refused, where at the meeting ia composition the right of a creditor to make inquiries of the debtor was postponed against his will until after the resolution was voted upon. In re Mon-is, 11 N. B. E. 443. COMPOSITION, VI, (d), VH, (a). 89 105. Siiitable inquiries may be made of the debtor at a composition meeting by any creditor authorized to vote at such meet- ing. Id. 106. A motion for confirmation of a com- position was opposed by two creditors on the ground that at the first meeting one of the debtors was excused from examination by vote of the creditors. It was held that the objection was frivolous. In re Wilson etaL, 18 N. B. E. 300; Fed. Cas. 17,785. 107. The debtor must appear in person, or by representative, at the creditors' first meeting and submit the required statement, but he is not bound to appear at the hearing to submit anew the statement previously made. In re Scott, Collins & Co., 15 N. B. E. 73; 4 Cent. Law J. 29; Fed. Cas. 13,519. (d) Resolution. 108. The confirmatory signatures are es- sential to make the resolution operative, and they need not be attached at the creditors' meeting, but must have been at or before the hearing. In re Scott, CoUins & Co., 15 N. B. E. 73; 4 Cent. Law J. 39; Fed. Cas. 13,519. 109. It is not necessary to hold a second meeting of creditors to confirm the original resolution of composition. Id. 110. Objection was made by creditors that expenses of attachments of the debtor's property were not provided for by the reso- lution for composition. There had been no first meeting of creditors and no assignee. The resolution for composition was there- fore ordered recorded. In re Clapp & Co., 14N. B. E. 191; 3 LoweU, 468; Fed. Cas. 3,785. 111. A resolution cannot be recorded where the statement of assets and of debts shows that 'the requisite proportion of credit- ors have not confirmed it, although the state- ment is inaccurate. A statement of debts and assets can be corrected only at a meeting of creditors. In re Asten et aL, 14 N. B. E. 7; 8 Ben. 350; Fed. Cas. 594 112. No further recording of a resolution of composition is necessary than to record the decree containing the resolution. Smith et aL V. Engle et al., 14 N. B. E. 481; E. S. 5044. 113. A composition resolution provided that the property of the bankrupt, held by the voluntary assignee, should be returned to him. The court held that creditors bound by the composition will not be permitted to undo what was done if the transfer is made in furtherance of the resolution. In re Eodgers et aL, 18 N. B. E. 381; Fed. Cas. 11,993. 114;. It must appear wrong has been done to the minority creditors by the vote on a composition before the court will interfere. In re "VVronkow et al., 18 N. B. E. 81; 26 Pittsb. Leg. J. 3; 15 Blatchf. 38; Fed. Cas, 18,105. 115. Eesolution proposed composition to be paid within thirty days upon condition that all property of bankrupt be surrendered and all pending suits discontinued. It was held not improper. In re Cavan et aL, 19 N. B. E. 303; Fed. Cas. 3538. 116. Where a partnership petitions for a composition, the vote upon the resolution may be taken generally, or upon demand the , vote of the individual and of the partnership creditors will be taken separately. In re Spades, In re Muir et aL, 13 N. B. E. 73; 6 Biss. 448; 8 Chi Leg. News, 33; Fed. Cas. 13,196. 117. In order to lay a foundation for the action of the creditors in accepting or re- jecting a composition and to inform them what they were asked to accept, it is not re- quired that there should be a written prop- osition from the bankrupt preceding the notice to creditors. In re Haskell, 11 N. B. E. 164; 1 Cent. Law J. 531; Fed. Cas. 6,193. 118. A creditior is not boimd to accede to a compromise, nor is he censurable because he refuses to unite with others, or if his re- fusal proceeds from a want of confidence in the debtor. Bean v. Brookmire et aL, 7 N. B. E. 568; 3 DilL 108; 5 Chi. Leg. News, 314; 3 Amer. Law Eec. 333; 6 Amer. Law T. Eep. 418; 7 West. Jur. 334; Fed. Cas. 1,170. 119. The form of oath prescribed for prov- ing debts in bankruptcy need not be fol- lowed in voting upon resolutions for compo- sition. In re Morris, 13 N. B. E. 170. VII. Defbeeed Payments. (a) Oeneral. 120. A secret agreement between the debtor and a creditor, that, in consideration of the latter's signing the composition deed. «0 COMPOSITION, VII, (b). his composition note shall be immediately ■discounted in cash, is void, and the amount can be recovered by the assignee with costs, whether such creditor signed first or last, and although the amount received was less than he was entitled to under the composi- tion. Bean v. Amsink, 8 N. B. E. 228; 10 Blatohf. 361; Fed. Gas. 1,167. 121. A composition will not be avoided, ipso facto, by a delay in the payment of the composition notes, where the delay is occa- sioned by legal or other difficulties; and a failure to pay one of the creditors will not work a forfeiture of the rights of the bank- rupt as to the creditors who have received payment. In re Kohlsaat et al., 18 N. B. E. 570; Fed. Gas. 7,918. 122. Bankrupt tendered money and notes according to the terms of the composition, but the creditors refused to take them. It was held that the court had no power to im- prison for contempt. In re Hinsdale, 16 N. B. R. 550; 9 Ben. 91; Fed. Gas. 6,536. 123. The decision of the district court that a resolution which provides for pay- ment in notes is valid is conclusive in a col- lateral action. Smith et al. v. Engle et al., 14N. B. E. 481; E. S. 5044. 124. The holder of a note given for a de- ferred payment in a composition settlement, who does not appear to receive payment in pursuance of notice to creditors, is entitled, upon subsequent demand and refusal, to a summary order for payment. In re Rey- nolds, 16 N. B. E. 176; 5 N. Y. Wkly. Dig. 51; Fed. Gas. 11,725. 125. A composition was accepted provid- ing for payment in secured six-months notes. One creditor filed a petition for review of the order of the district court directing the composition to be recorded, on the ground that it did not provide for payment in money. It was held that the composition was valid. In re Hurst, 13 N. B. R. 455; 1 Flip. 462; 8 ChL Leg. News, 147; 3 Gent. Law J. 78; Fed. Cas. 6,935. 126. Unless the amount agreed upon is actually paid the composition will not dis- charge the debtor. Id. 127. Gomposition notes are given as evi- dence of a security for the instalments, and the composition is payable in money although payment is postponed to a future day. In re The McNab & Harlin Mfg. Go., 18 N. B. K. 388; 31 Pittsb. Leg. J. 88; Fed. Cas. 8,906. 128. The holder of a note given for a de- ferred payment in a composition which falls due pending the hearing of a petition for a review of the composition, who does not ap- pear to receive payment in. pursuance of notice to creditors, is entitled, upon subse- quent refusal, to an order for payment. In re Eeynolds, 16 N. B. R. 176; 5 N. Y. Wkly. Dig. 51; Fed. Gas. 11,735. 129. One-third of the composition was to be paid April 9, 1877, one-third May 18, 1877, and one-third August 18, 1877. Creditors were enjoined from suing on the original debts before August 18, 1877. In re Hinsdale, 16 N. B. R 550; 9 Ben. 91; Fed. Gas. 6,526. (b) Security for. 130. A creditor proved his claim, voted upon the resolution of composition, and ac- cepted his share in money and promissory notes given in pursuance of said resolution to secure payment of future instalments. It was held that he could not recover his debt through the state courts, although default was made in payment of the notes. Deford et al. V. Hewlett, 18 N. B. R. 518. 131. A resolution of composition, which provides that the payment shall be guaran- tied by a satisfactory bond to a committee of creditors, may be confirmed. In re Lewis et al., 14 N. B. R. 144; Fed. Gas. 8,814. 132. A composition which provides for payment in indorsed notes is fatally defect- ive. In re Langdon, 13 N. B. E. 60; 2 LoweU, 387; 1 N. Y. Wkly. Dig. 365; Fed. Gas. 8,058. 133. A composition was accepted provid- ing for payment in secured six-months notes. One creditor filed a petition for review of the order of the district court directing the com- position to be recorded, on the ground that it did not provide for payment in money. Held, that the composition could be con- firmed. In re Hurst, 13 N. B. R. 455; 1 Flip. 463; 8 GhL Leg. News, 147; 3 Gent. Law J. 78; Fed. Cas. 6,935. 134. In case of a composition where in- dorsed notes are given as security for post- poned payments, a bankrupt is not entitled to his discharge until the whole amount of COMPOSITION, VIII-X, (a). 91 the notes is actually paid. In re Reiman et al., 13 N. B. R 128 ; 13 Blatchf . 563 ; Fed. Gas. 11,675. ' 135. A resolution of composition which provides for payment in instalments, the postponed payments being secured by in- dorsed notes, complies with the statute re- quiring payment "in money.'' Id. 136. A provision in the bankrupt act that composition deeds "shall subject, etc., pro- vide for a pro rata payment in money," is not violated when a composition provides for payment by instalments, the deferred pay- ments being secured by notes satisfactorily indorsed. Id. 137. It does not invalidate a composition that, in addition to be paid in deferred pay- ments, real estate of the bankrupt is to re- main with the assignee to be converted into money for the use of the creditors. In re Wronkow et al., 18 N. B. R. 81; 15 Blatchf. 58; 36 Pittsb. Leg. J. 3; Fed. Cas. 18,105. 138. A composition was accepted at twenty-flve cents on the doUar, five cents to be paid in five days and the balance in de- ferred payments, the property to revert to the debtors upon payment of the five cents. Ob- jection was made that the deferred payments w^ere not secured, that the debtors were not to be trusted, and the creditors had no assur- ance that they would be paid. Objection was sustained. In re Block et aL, 18 N. B. R. 328; Fed. Cas. 1,551. 1 3 9 . A composition providing for deferred payments was assented to by the requisite number of creditors. The last payment was to be made three years from date of con- firmation. Upon giving of the notes the property was to be surrendered. Although the president and- treasurer of the bankrupt was a defaulter, the trustees continued him in oflBQe as president, and took no steps to punish him. It was held, on motion for con- firmation, that the corporation was not of such a character that it would be reasonably safe to trust it for three years with the prop- erty. Confirmation refused. InreTheMcNab & Harlin Mfg. Co., 18 N. B. R. 388; 21 Pittsb. Leg. J. 88; Fed. Cas. 8,906. 141. Creditors who have received more than their per centum according to the com- position, without the knowledge of the other creditors, may nevertheless bring an action on the original obligation where the compo- sition was fraudulently obtained. Elfelt v. Snow, 6 N. B. R. 57; 3 Sawy. 94; Fed. Cas. 4,343. VIII. Eevival of Debt. 142. A debt released by a composition is not revived by the subsequent payment in full of other old debts, although the com- plaining creditor consented to the composi- tion with an understanding "that none of the other creditors should receive better terms." In re Sturgis et al., 16 N. B. R. 304; 8 Biss. 79 ; 10 Chi. Leg. News, 33 ; Fed. Cas. 13,565. IX. Gbnebai. Assignment. See Assignments, 29, 63. 143. A composition was effected which provided that upon delivery of the composi- tion notes the property of the debtors in the hands of a voluntary assignee should be de- livered to the bankrupts. It was held that such provision was nugatory as to the re- sponsibility of the assignee or the rights of creditors under the assignment, except as they are affected by the confirmation of the composition and by payment under the com- position. In re Hyman et al., 18 N. B. R 399; Fed. Cas. 6,985. 144. Bankrupt filed a voluntary petition after having made an assignment. It was held that court could give effect to compo- sition in case of voluntary bankruptcy, al- though bankrupt had forfeited his right to a discharge. In re Troth, 19 N. B. R. 253; 3 N. J. Law J. 147; 36 Leg. Int. 158; Fed. Cas. 14,188; R. S. 5110. X. DiSOHAEGE. See Discharge, 80. (a) General. 145. Where there is no defect in the pro- ceedings for a composition, the admission of a discharge does not prejudice the opposite party. Smith et al. v. Engle et aL, 14 N. B. R. 481; R. S. 5044. 146. It is not intended by the statute that no debtor can compound with his creditors, under the amended bankrupt act, who would not be able to obtain his discharge. In re Haskell, 11 N. B. R. 164; 1 Cent. Law J. 531; Fed. Cas. 6,193. 92 COMPOSITION, X, (bHd) — CONFESSION OF JUDGMENT. (b) Disposition of Assets. 147. A final order in composition is not final disposition of bankruptcy proceedings, and does not place at disposal of bankrupt moneys belonging to estate held by sheriflE subject to further order of court. In re Miokel et al., 19 N. B. R. 374; Fed. Cas. 9,539. 148. A composition was effected provid- ing that upon payment of the composition notes the property of the bankrupt, in the possession of an assignee ixnder a voluntary assignment, should be restored to the debtor. Payment of the composition was made and debtor applied to the court to enforce the terms of the composition. It was held that the court had no power to determine ques- tions of title between the debtor and persons not parties to the proceedings. In re Waitz- felder et al., 18 N. B. K. 260; Fed. Cas. 17,048. 149. If no provision is made in a com- position deed for disposition of a debtor's property, the same shall be construed as an intent that the debtor shall retain the same, subject only to the power given the court to enforce the provisions of the composition. In re Reiman et al., 11 N. B. R. 21; 7 Ben. 455; Fed. Cas. 11,673. (C) Effect of. 150. A composition is a compromise of a debtor with his creditors carried on under the supervision of the court. It absolutely discharges the debts of those creditors whose names, addresses and debts are placed in the statement produced at the meeting of cred- itors, and no other discharge is needed. In re Becket, 12 N. B. R. 201; 2 Woods, 173; 7 Chi. Leg. News, 243; Fed. Cas. 1,210. 151. A discharge by virtue of compliance with the terms of composition is a discharge by operation of law. In re Merriman's Es- tate, 18 N. B. R. 411; 44 Conn. 587; 26 Pittsb. Leg. J. 130; Fed. Cas. 9,479. 152. Where the composition provides that the proceedings may be discontinued at any time without notice to the creditors, such provision is only a waiver of notice of an ap- plication to discontinue, and the court is not bound to grant the application. In re The McNab & Harlin Mfg. Co., 18 N. B. R. 388; 31 Pittsb. Leg. J. 88; Fed. Cas. 8,906. (d) From Debts. 153. A composition does not discharge the petitioner from his debts until the com- position notes are paid, and a creditor can sue for the original debt if his notes are not paid, and he is entitled to a pro rata share under general assignment. In re Leipziger, 18 N. B. R. 264 154. A composition with creditors in a case ratified by order of the district court under the act of 1874 does not discharge a debt growing out of a fiduciary relation. Bailey v. University, 106 U. S. 11. 155. Composition between creditors and bankrupt under the act of 1874 is a proceed- ing in bankruptcy, and debts created by fraud will not be discharged under it. Wil- mot V. Mudge, 103 U. S. 217. 156. The inability of the debtor to obtain a discharge by order of the court does not preclude his obtaining satisfaction of his debts by composition. In re Weber F. Co., 13 N. B. R. 529; Fed. Cas. 17,330. 1 5 7 . A debt created by fraud is discharged by a composition in which creditor partici- pates. Wells V. Lamprey, 16 N. B. R. 205. 158. If a resolution of composition has been ratified, it confines the secured creditor to his security and discharges the debtor from personal liability for the secured debt. In re Lytle & Co., 14 N. B. R. 457; 11 Phila. 533; 3 N. Y. Wkly. Dig. 303; 5 Amer. Law Rec. 806; 9 Chi. Leg. News, 18; 83 Leg. Int. 349; 1 Cin. Law BuL 346; 34 Pittsb. Leg. J. 14; Fed. Cas. 8,650. See ante, 9, 50. CONCEALMENT. See Acts of Bankruptcy; Bona Fidb Transfer, 4; Discharge, 183, 183; Evi- dence, 137; Fraud, IX CONFESSIONS. See Judgment, III, V, VI; Preferences, IX, (a). CONFESSION OF JUDGMENT* See Judgments; Preferences. CONFLICT OF LAWS, I, II. 93 CONFLICT OP LAWS. 1 United States and State Laws. IL Jurisdiction. IIL Statute op Limitations. See Limitations, Statute of, 27; Saue, 53; State Laws, 4, 6, 11. I. United States and State Laws. 1. Where an assignee under state law has turned over the estate to the assignee in bankruptcy, the bankrupt law, and not the state law, governs. In re Bousfield, 17 N. B. ■ E. 153; Fed. Cas. 1,704 2. The state laws are not entirely super- seded by the bankruptcy act, but where there is no conflict the former remain in force. Gerry's Appeal, 17 N. B. R. 196. 3. The provisions of the Massachuetts in- solvent law are substantially similar to sec- tion 36 of the act of 1867. Held, that the bankrupt court is not bound by the decisions of the supreme court of that state. In re Knight, 8 N. B. R. 436; 3 Biss. 518; 18 Int. Eev. Rec. 166; 30 Leg. Int. 338; 31 Pittsb. Leg. J. 43; Fed. Cas. 7,880. 4. A sheriff attached the property of a debtor, who upon the same day lodged with the probate court a deed of assignment under the insolvent laws of the state, and the as- signee in bankruptcy claimed the property. Held, judgment for plaintiff, the state in- solvent law not being repealed by the United States bankruptcy law of 1867. Maltbie v. Hotchkiss, 5 N. B. R. 485. 5 . On the taking effect of the general bank- rupt law of the United States, June 1, 1867, the law of the state of Louisiana approved March 14, 1843, providing for the liquidation of banks, was superseded. Thornhill v. Bank of Louisiana, 5 N. B. R. 367; 1 Woods, 1; Fed. Cas. 13,993. 6. The authority to set aside a discharge in bankruptcy, conferred upon the federal court by the bankrupt law, is incompatible with the exercise of the same power by a state court and the former is paramount. Alston V. Eobinett, 9 N. B. R. 74 7. When a debtor is adjudged a bankrupt, all proceedings against him in a state court must stop, if the subject-matter can be proven against his estate in bankruptcy; and no creditor who holds a claim against the es- tate, which might be proven in bankruptcy, whether the debt is secured or not, can en- force such debt in a state court, except by the permission of the district court. In re Winn, 1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17,876. 8. A depositor of a savings bank brought suit against the bank for his deposits. The bank pleaded that under a state law the court had cut down the amount due to each depositor pro rata, thus apportioning a loss suffered by the bank. The law provided for • reduction when the assets should fall below ninety per cent, of the deposits. Held, that such law was not void because the national bankrupt law was in force when it was en- acted. Simpson v. Bank, 15 N. B. R. 385. 9. The object of the bankrupt law is to place the administration of the assets of a bankrupt within the control of the bankrupt court, and the passage of the law suspended all state insolvent laws. In re Citizens' Sav. Bank, 9 N. B. R. 153; Fed. Cas. 2,735. 10. The general bankruptcy law suspends all proceedings under state insolvent laws. In re Merchant Ins. Co., 6 N. B. R. 43; 3 Biss. 163; 20 Pittsb. Leg. J. 33; 4 Chi. Leg. News, 73; Fed. Cas. 9,441. 11. The bankrupt law supersedes a state law which provides for the distribution of the assets of an insolvent bank. Shryook et al., Ass., V. Bashore, 18 N. B. R. 481; Fed. Cas. 13,820. 12. A bankrupt petitioned for the benefit of the state insolvent law after the passage of the United States bankrupt law. Held, that state law was svispended in so far as the provisions of the bankrupt law cover the subject-matter of the state insolvent law. In re Reynolds, 9 N. B. R. 50; Fed. Cas. 11,733. 13. As between the assignee in bank- ruptcy and a receiver in a creditor's suit, though first appointed, the former has the better right to money awarded to the bank- rupt debtor by United States commissioners on a claim against a foreign government. Booth V. Clark, 17 How. 332. II. Jtjeisdiotiok. 14. The bankrupt laws do not ipso facto suspend state laws for the collection of debts, 94 CONFLICT OF LAWS, HI — CONFUSION OF GOODS. and the jurisdiction conferred upon courts of bankruptcy in this respect is superior but not exclusive to the state laws. Chandler, Rec, et aL v. Siddle, 10 N. B. R. 336; 3 Dill. 477; 1 Cent. Law J. 341; Fed. Cas. 2,594. 15. Where an assignee imder a state law has turned over the estate to the assignee in bankruptcy, the bankrupt law and not the state law governs. In re Bousfield et aL, 17 N. B. R. 153; Fed. Cas. 1,704. 16. A debtor made an assignment under the insolvent law of Ohio on May 35, 1867, and under it a state court took cognizance of the matter. On July 17 a petition in bank- ruptcy was filed by a creditor. It was held that as to this matter the bankrupt act o«f 1867 was in force on May 35, and the United States court could rightfully take jurisdic- tion of the whole matter. In re Langley, 1 N. B. R. 155. 17. A voluntary assignment by a debtor, under the insolvent laws of the state of Con- necticut, no proceedings having been insti- tuted under the bankrupt act, is not void, although such act is applicable to the case at the time of the assignment. But in case of an actual conflict of jurisdiction, the state law must yield to the national Maltbie v. Hotchkiss, 5 N. B. R. 485. 18. Where acts are done by state courts in the proper exercise of their jurisdiction, which do not conflict with the jurisdiction of federal courts, such acts bind the federal courts. In re Keiler et aL, 18 N. B. R 10; Fed. Cas. 7,647. 1 9 . Pi'oceedings in bankruptcy were begun against a debtor in two different district courts. Held, proper proceeding is to stay, not dismiss, second. In re Boston, H. & E. R R. Co., 6 N. B. R. 209; 9 Blatchf. 101; Fed. Cas. 1,677. 20. The bankruptcy court has the power to restrain the sheriff of the state court from, levying on the property of the bankrupt to satisfy a judgment of the latter court, al- though judgment was obtained prior to the adjudication in bankruptcy. In re Mallory, 6 N. B. R. 32; 1 Sawy. 88; Fed. Cas. 8,991. 21. Receivers of a corporation declared in- solvent under state laws claimed the right to administer the assets as against the bank- ruptcy courts. Held, the United States bank- ruptcy courts could take as against them. In re Independent Ins. Co., 6 N. B. R. 260 j Holmes, 103: Fed. Cas. 7,017. 22. A bankruptcy court issued an injunc- tion to prevent the sale of a debtor's land under a judgment by the state court. On motion to dissolve upon the ground that the court could not restrain the sale, the motion to dissolve was denied. In re Lady B. M. Co., 6 N. B. R. 352; Fed. Cas. 7,980. 23. A trustee in April, 1874, brought suit in a state court to recover realty claimed to be fraudulently conveyed. The "proceedings were stayed for some time, the plaintiff giv- ing security for costs. In the interim the Revised Statutes came into force. It was then held on demurrer that the state court was thereby deprived of jurisdiction. Frost V. Hotchkiss, 14 N. B. R. 443. III. Statute of Limitations. 24. The question was certified to the court as to whether a debt barred by the statute of limitations of Massachusetts, where the bankrupt had resided for ten years, but not barred by the statute of limitations of Ver- mont, where the creditor resided and where the contracts were made, could be proved against the bankrupt, and, if not, whether the act of the bankrupt in entering the debt upon his schedule revived the same. Both questions were answered in the negative. In re Kingsley, 1 N. B. R. 66; 1 LoweU, 216; 7 Amer. Law Reg. (N. S.) 423; 15 Pittsb. Leg. J. 335, 277; Fed. Cas. 7,819. 25. The petitioner in involuntary bank- ruptcy claimed to be a creditor by reason of a claim which was barred by the statute of limitations, and that the bankrupt court was not bound by the state statute. Held, peti- tion dismissed. In re CornweH, 6 N. B. R. 305; 9 Blatchf. 114; 6 Amer. Law Rev. 365; Fed. Cas. 3,350. CONFUSION OF GOODS. Where a bailee, prior to his bankruptcy, mixes the property bailed (wheat) with his own so that the identical property cannot be distinguished, the bailor can only prove as a general creditor and share pro rata against the estate in bankruptcy. Adams v. Meyers, 8 N. B. E. 214; 1 Sawy. 306; Fed. Cas. 63. CONGRESS — CONSTITUTIONAL LAW, 1, (a;, (u;. 95. CONGRESS. See Constitutional Law; Conteaots, VL CONSIDERATION". See Claims; Ajmmercial Paper, 19, VII Conveyances, V, (o); Fraud, 50, 69 Married Woman, 5; Mortgage, 16 Paetners, 146. CONSTRUCTION. See Statutory Construction, CONSTITUTIONAL LAW. 1 Uniformity. (a) Uniform Bankrupt Laws. (b) Void if Not Uniform. (o) Uniformity Not Destroyed. n Exemption. IIL iMPAIRrNG THE OBLIGATIONS OF CON- TRACT. IV. Laws Affectinq the Remedy. V. In General. See Contracts, VI; Courts, II, (e); Exemp- tion, 1,21, 36; Petition, 139; Statutory Construction, 79. I. Unifobmitt. (a) Uniform BoMkrwpt Lams. 1. The constitutional grant of power to congress to establish uniform laws on the subject of bankruptcy gives congress plenary- power over the subject of bankruptcy under one limitation only — that the laws passed upon that subject shall be uniform through- out the United States. In re Silverman, 4 N. B. R. 173; 13 Int. Rev. Rec. 52; Fed. Cas. 12,855; In re Reiman et aL, 11 N. B. R. 31; 7 Ben. 455; Fed. Cas. 11,673. 2. Congress possessed the power to estab- lish uniform laws on the subject of bank- ruptcies throughout the United States, and congress, pursuant to that power as conferred in the constitution, on the 3d day of March, 1867, passed an act to establish such a uni- form system. Shearman v. Bingham et al., 7 N. B. R. 490; Safe Deposit & Savings Inst., 7 N. B. R. 393; Fed. Cas. 13,211. 3. The provision in the constitution on the subject, the passage of uniform bankrupt laws (art. 1, sec. 8), includes the power to leg- islate upon insolvency. In re Reynolds, 9 N. B. R. 50; Fed. Cas. 11,738. 4. A bankrupt law to be constitutional must be uniform, and whatever rules it pre- scribes must apply to all. In re Daniel Deck- ert, 10 N. B. R, 1; 3 Amer. Law Rec. 96; 1 Cent. Law J. 316, 330; 6 Chi. Leg. News, 310; 1 Amer. Law T. Rep. (N. S.) 336; 13 Amer. Law Rec. 786; Fed. Cas. 3,728. 5. When the legislative power conferred upon congress by the constitution to "estab- lish uniform laws upon the subject of bank- ruptcies throughout the United States " has- been exercised it is paramoimt and exclusive, and suspends the operation of the insolvency laws of a state; and the fact that the assets of an insolvent are not sufficient to pay fifty per cent, of his debts, and that a majority of his creditors will not otherwise consent to his discharge, does not remove a case from the operation of the act (1867). Nostrand v. Barr, 2 N. B. R. 154. 6. When congress had called into exercise the clear constitutional grant of power to pass a uniform bankrupt law, the jurisdic- tion and legislation of the state as to the settlement of insolvent estates was wholly suspended, to be resumed only when the na^ tional law ceased to be in force. In re Lang- ley, 1 N. B. R. 155. (b) Void if Not Uniform. 7. Unless a bankrupt law is uniform it ia void. In re Duerson, 13 N. B. R. 183; Fed. Cas. 4,117. 8. A law which provides for one state rules different from those prescribed for another cannot be uniform. Id. 9. The questions, "Is the bankrupt law unconstitutional because nottmiform? " and " Can the bankrupt law have a retrospective effect without impairing the obligation of contracts? " were referred by the register for decision. The first was answered in tlie neg- ative and the second in the affirmative. In re Jordan. 8 N. B. R. 180; 5 Leg. Op. 169; 30- Leg. Int. 296; Fed. Cas. 7,514 10. The amendment to the bankrupt act of March 3, 1873, is unconstitutional because it destroys the uniformity of the act as re- quired by article 1, section 8, of the United 96 CONSTITUTIONAL LAW, I, (o)-IIL States constitution. In re Daniel Deokert, 10 N. B. R. 1; 3 Amer. Law Eec. 96; 1 Cent. Law J. 316, 320; 6 Chi. Leg. News, 310; 1 Amer. Law T. Rep. (N. S.) 336; 13 Amer. Law Eev. 786; Fed. Cas. 3,728. See also In re Dil- lard, 9 N. B. R. 8; 3 Hughes, 190; Fed. Cas. 3,912. Contra, Kean & White, 8 N. B. R. 367 ; 2 Hughes, 322; Fed. Cas. 7,630; In re Everitt, 9 N. B. R. 90; Fed. Cas. 4,579. (c) Uniformity Not Destroyed. 11. The provisions of section 14 of the bankrupt act of 1867, adopting the exemp- tions in favor of execution debtors estab- lished by the law of the several states, does not destroy the uniformity of the bankrupt act, nor violate any provisions of the federal con- stitution. In re Beokerford, 4 N. B. R. 59; 10 Amer. Law Reg. (N. S.) 57; 4 Amer. Law T. 14; 1 Amer. Law T. Rep. Bankr. 241; Fed. Cas. 1,209. 12. The bankrupt act is not unconstitu- tional for want of uniformity on account of the diversity of exemptions allowed by the different states, nor is the act of March 3, 1878, unconstitutional in that it displaces liens created by judgments and decrees ren- dered in state -courts. In re Smith, 8 N. B. R. 401; 6 Chi. Leg. News, 33; Fed. Cas. 12,986. 13. It is not requisite to the constitution- ality of a bankrupt act that it provide for the discharge of all persons subject to its provisions. In re Cal. Pac. R. R. Co., 11 N. B. R. 193; 3 Sawy. 240; 2 Cent. Law J. 79; Fed. Cas. 2,315. 14. The fact that the bankrupt act sub- jects to its operation persons other than mer- chants and traders does not make it uncon- stitutional. Id. IB. Although the amendment to the forty- third section of the banlirupt act of 1867 allowing composition with creditors fails to require a 'pro rata distribution of the estate of a bankrupt, it is not therefore unconstitu- tional In re Reiman et al., 11 N. B. R. 21 ; 7 Ben. 455; Fed. Cas. 11,673. II. Exemption. 16. The provision in the bankrupt act al- lowing the exemption given by the state laws, whether they are valid or not, is con stitutionaL In re Smith, 14 N. B. R. 295; 2 Woods, 458; 2 N. Y. Wkly. Dig. 532; 8 Chi. Leg. News, 315; 3 Cent. Law J. 886; 3 Amer. Law T. Rep. (N. S.) 335; Fed. Cas. 12,996. 1 7 . Laws exempting reasonable portions of the debtor's property from execution and sale properly relate to the remedy, and are therefore not liable to a constitutional objec- tion. In re Owens, 12 N. B. 'B. 518; 6 Biss. 432; 7 Chi Leg. News, 371; 1 N. Y. Wkly. Dig. 175; Fed. Cas. 10,632. 18. Congress may pass exemption laws impairing the obligation of contracts. In re Owens, 13 N. B. R. 518; 6 Biss. 432; 7 Chi. Leg. News, 871; 1 N. Y. Wkly. Dig. 175; Fed. Cas. 10,633. 19. The amendment of the bankrupt act of March 8, 1873, in respect to exempt prop- erty, is constitutional, and the exemptions allowed thereby are valid against debts of the bankrupt, without regard to the time when contracted, whether before or after the amendment, and also against liens by judg- ment or decree of any state court. In re Jordan, 10 N. B. R. 437; Fed. Cas. 7,515. 20. A provision in the bankruptcy act adopting the exemption laws in force in the several states cannot make valid a state ex- emption law held unconstitutional by the supreme court of that state. Bush v. Lester et aL, 15 N. B. R. 36. 21.. The acceptance by congress of a con- stitution of a state under "an act for the more efficient government of the rebel states " is not an amendment of the bank- rupt act (1867) as respects an additional ex- emption therein provided for. In re Mc- Lean, 3 N. B. R. 173; Fed. Cas. 8,878. 22. A statute or provision in a state con- stitution which increases the amount or value of land to be allowed as a homestead exemp- tion is unconstitutional and void in so far as it affleots a judgment recovered prior to the passage or adoption of such statute or con- stitution. Gunn v. Barry, 8 N. B. R. 1; 15 WalL 610. Ill, Impaieing the Obligation of CONTEAOT. See CONTEACTS, VL 23. The retrospective effect of the bank- rupt law, impairing the obligation of con- tracts, does not render it unconstitutional; CONSTITUTIONAL LAW, IV, V. 97 the inhibition to the impairment of contracts not applying to the federal government. In re Jordan, 8 N. B. R. 180; 5 Leg. Op. 169; 30 Leg. Int. 396; Fed. Gas. 7,514. 24. A state cannot impair the obligation of contracts, but congress has such power under the constitutional provisions confer- I'ing upon the national legislature authority to establish uniform laws on the subject of bankruptcy throughout the United States. In re Everitt, 9 N. B. E. 90; Fed. Gas. 4,579. 25. The power expressly given to congress ■" to establish uniform laws on the subject of bankruptcies throughout the United States " implies the power to impair the obligation of contracts. In re Smith, 14 N. B. E. 295; 3 Woods, 458; 3 N. Y. Wkly. Dig. 533; 8 Chi. Leg. News, 315; 3 Gent. Law J. 886; 3 Amer. Law T. Eep. (N. S.) 335; Fed. Gas. 12,996. ly . Eemedt — Laws Affecting, Con- stitutional. 26. The United States, or any one of the states, can pass laws to alter or take away the remedy for the enforcement of a con- tract, although such remedy may be a vested right, it being only necessary that a remedy should be given, though not in fact so good as the one taken away. Comer v. Miller et aL, 1 N. B. R. 98. 27. A law affecting the remedy alone, and not operating injuriously, oppressively or un- justly, is not a retroactive law. Simpson v. Bank, 15 N. B. R. 385. Y. In Geneeal. 28. The courts ought not to pronounce a law unconstitutional unless its incompati- bility be clear, decided and inevitable. In re Smith, 14 N. B. E. 295; 2 Woods, 458; 3 N. Y. Wkly. Dig. 533; 8 Chi Leg. News, 315; 3 Gent. Law J. 386; 3 Amer. Law T. Rep. Cas. 6,734; Zeiber v. Hill, 8 N. B. R 239; 1 Sawy. 268; Fed. Cas. 18,206. 15. Costs incurred in an attachment suit in a state court cannot be paid by the as- signee in bankruptcy as a preferred debt,, unless by the state law such costs are a lien against the property attached. In such a case the sheriff is the agent of the plaintiff in the action and must look to him for his fees and expenses. Gardner v. Cook, Ass., 7 N. B. R. 346; Fed. Cas. 5,226. 1 e . Costs of attachment proceedings pend- ing when the petition in bankruptcy is filed are not to be reckoned among the provable debts of the debtor; nor will the costs be paid from the estate unless the proceedings are auxiliary to bankruptcy proceedings or other- wise beneficial to the estate. In re Hat je, 13 N. B. R. 548; 6 Biss. 436; Fed. Cas. 6,215. 1 7 . An attaching creditor having acquired a lien for his debt and costs on the prop- erty attached, which attachment was subse- quently dissolved, petitioned for his expenses,. COSTS AND FEES, I, (c)-(f). 115 aTerring that the proceedings were not taken to defeat the bankrupt act. Held, that the attachment proceedings being only auxiliary to the bankruptcy proceedings and so for the benefit of all creditors, the expenses be al- lowed. In re Ward, 9 N. B. R 349; Fed. Cas. 17,145. (o) Attorney. 18. Application for payment of sums dis- bursed by the bankrupt's attorney in connec- tion with the adjudication should be made by petition to the court, and not to the reg- ister. In re Rosenberg, 3 N. B. E. 18; Fed. Cas. 13,056. 19. Bankrupt's attorney applied to the register for an order on the assignee for pay- ment of sums expended by him in connec- tion with the adjudication. Held, that the matter should be brought before the court by petition. Id. (d) Bankrupts. See Examination of Bankeupt, 8. 20. A bankrupt is entitled to costs against a creditor who unsuccessfully opposes his dis- charge. In re Robinson et aL, 3 N. B. R 17; Fed. Cas. 11,948. 2 1 . Costs incurred after the bankruptcy by the bankrupt in contesting a claim against him, the contest having been begun before the bankruptcy, are not provable against the estate. Sanford v. Sanford, 13 N. B. E. 565. (e) Care of Assets. 22. The costs and charges against a bank- rupt for care or custody of his property prior to the filing of a petition in bankruptcy by or against him, under contract with him, ex- press or implied, are debts of his, provable against his estate as debts simply, not as preferred claims; but for all reasonable and necessary charges for the custody of prop- erty from the date of proceedings to the tak- ing possession thereof by the messenger or assignee, the assignee is accountable, as for like expenses incurred by him after his ap- pointment. Gardner v. Cook, Ass., 7 N. B. R. 346; Fed. Cas. 5,336. See also In re Carow, 4 N. B. R 178; 41 How. Pr. 113; Fed. Cas. 2,436. 23. In his affidavit of expenses for keep- ing property, the marshal stated that the ex- penses "were necessarily incurred by him and that they were just and reasonable." Held, not sufficient, as it should have also stated they were actually incurred and paid by him. In re Lowenstein, 3 N. B. R. 65; 3 Ben. 433; Fed. Cas. 8,573. 24. A sheriff having in his hands property of a bankrupt taken under an execution prior to commencement of proceedings iu bankruptcy is entitled to the expenses in- curred in keeping such property from the date of filing the petition until their deliv- ery to the assignee. He must look to the party who employed him for his fees in the attachment proceedings. Zeiber v. Hill, 8 N. B. R 339; 1 Sawy. 368; Fed. Cas. 18,306. 25. The estate is liable for the pasturage of the stock from the date of the institution of proceedings in bankruptcy. In re Mitch- ell, 8 N. B. R 47; 5 Chi. Leg. News, 371; Fed. Cas. 9,657. 26. A landlord's claim for marshal's use of premises, for keeping and storing goods, and costs of -reference, are costs of administra- tion to be paid in full if the assets be suffi- cient; if not, they are to be paid pro rata with other claims of the same class. In re Hoagland, 18 N. B. R 530; Fed. Cas. 6,545. (f) Creditor. See Committee, 1, 3. 27. A creditor who calls for an investiga- tion of the conduct of an assignee, alleging fraud in the sale of bankrupt's property, should give security for the costs which may be adjudged against him upon the hearing or trial of the issue. In re Peabody, 16 N. B. R 343; 9 Chi. Leg. News, 343; Fed. Cas. 10,866. 28. Creditors filed their petition for the involuntary adjudication in bankruptcy of a debtor, and prior to the adjudication and the appointment of an assignee procured injunc- tions staying proceedings in six actions in a state court against the debtor in which war- rants had been issued and levied on his prop- erty. Held, that such creditors were entitled to be reimbursed their reasonable expenses from the assets of the bankrupt's estate. In re Schwab, 3 N. B. R 155; 3 Ben. 331; 3 Bait. Law Trans. No. 9; 16 Pittsb. Leg. J. 133; Fed. Cas. 13,498. 29. A creditor having full knowledge of 116 COSTS AND FEES, I, (g), (h). the condition of his insolvent debtor, receiv- ing a preference, should be taxed with the costs of the petition to expunge, of the as- signee. In re Forsyth et aL, 7 N. B. K. 174; Fed. Cas. 4,948. 30. Where in a suit in equity by an as- signee to recover the proceeds of an execu- tion in the hands of the sheriff, such pro- ceeds are awarded to the assignee, the sheriff was allowed his legal fees and his costs of suit, and such costs were, with the costs of the assignee, charged on the creditor who had obtained an illegal preference through judgment which the assignee in the same suit sought to have set aside. Warren v. Bank, 7 N. B. E. 481; 10 Blatchf. 493; Fed. Cas. 17,303. 31. On return day of an order to show cause why bankrupt should not be dis- charged, a creditor appeared and requested leave to examine bankrupt under oath. Held, that the request should be granted, the cred- itor to pay additional costs incurred thereby. In re Jackson, 8 N. B. E. 424; Fed. Cas. 7,138. 32. A creditor who contests the validity of the claim of another is liable, upon the decision being adverse to him, for the tax- able costs and disbursements of the creditor whose claim is contested, and the fees, costs and expenses of the referee. In re Troy Woolen Co., 8 N. B. R 412; Fed. Cas. 14,203. . 33. The petitioning creditor, where the adjudication has been resisted, is entitled to "the same costs that are allowed by law to a party recovering in a suit in equity." In re Sheehan, 8 N. B, E 353; Fed. Cas. 12,738. 34. A creditor whose specifications in op- position to a discharge are overruled as insufficient is liable to the bankrupt for ex- penses incurred for services of counsel in con- testing the opposition. In re Eidom, 3 N. B. K. 39; Fed, Cas. 4,315. 35. All creditors of a bankrupt's estate who share in the distribution thereof must contribute pro rata to the expenses of the proceedings. In re Williams, 2 N. B. E 28; Fed. Cas. 17,704 36. Creditors' expenses in attending their first meeting were not allowed; nor the deputy sheriff's charges for attempting to arrest debtor, there being no necessity or re- sulting benefit to the estate. In re Ward, 9 N. B. E 349; Fed. Cas. 17,145. 37. Creditors having a lien upon property sold in bankruptcy proceedings are entitled to be paid out of the proceeds after costs of proving the lien are deducted — the fees, costs and general expenses of bankruptcy not being considered. In re Hambright, 8 N. B. E. 157; Fed. Cas. 5,973. 38. Where in fact the petitioning cred- itor authorized the proceedings, and so be- came liable for costs and other resulting responsibilities, it is not of the slightest im- portance to the debtor who signed the peti- tion. In re Eaynor, 7 N. B. E. 537; 11 Blatchf, 43; Fed. Cas. 11,597. 39. Creditors cannot add costs nor coun- sel fees to a debt to make the jurisdictional amount. In re Kelly, 5 N. B. E. 314 40. Creditors' expenses and disbursements in seeking to defeat the bankrupt act and obtain a preference cannot be allowed. In re Arohenbrown, 8 N. B. E. 429; Fed, Cas. 503. (g) Mortgage. See Mortgages, 36. 41. Where mortgagee issued a sdrefaoias, not against the assignee in bankruptcy, but against the bankrupt, and without notice to the assignee, and procured the bankrupt's acceptance of service and proceeded no fur- ther, held, that the proceeding was a nullity, and that costs, as on foreclosure, should not be allowed. In re Devore, 16 N. B. R 56; 24 Pittsb. Leg. J. 185, 187; Fed. Cas. 3.847. 42. Costs and commissions stipulated to be paid on foreclosure of a mortgage will not be allowed when the proceedings to fore- close are invalid. Id. 43. A mortgagee in possession, being en- titled to retain aU property upon which his mortgage was valid, on a sale of such prop- erty by order of the district court in bank- ruptcy should only be charged with the reasonable expenses of the sale of such prop- erty and not with any portion of the costs in bankruptcy. In re Eldridge, 4 N. B. E 162; 3 Biss. 363; Fed. Cas. 4330. See also In re EUerhorst, 7 N. B. E 49; 3 Sawy. 319; Fed. Cas. 4380. (h) Shenf. 44. As a general rule, a sheriff's claim for costs in an attachment within four months COSTS AND FEES, I, (i). 117 before bankruptcy will not be allowed against the bankrupt estate. In re Jenks, 15 N. B. R. 301; Fed. Gas. 7,376. (i) In General. 45. The rate of charges to be allowed for printing advertisements of sales of real es- tate by order of the court shall be one dollar for each square of eight lines for the first insertion, and fifty cents for each subsequent insertion (act of 1867). In re Downing, 3 N. B. R. 181; 3 Chi. Leg. News, 313; Fed. Cas. 4,045. 46. Where bankruptcy proceedings are mainly for the benefit of secured creditors, they should defray the costs of the suit, and no more of the burden than the ratable por- tion of interests in the assets sought to be re- covered should be placed upon the general creditors; and if for the benefit of the latter, they should pay expenses in the first instance, to be refunded on recovery out of proceeds. Freelander et aL v. HoUoman et al., 9 N. B. E.331; Fed. Cas. 5,081. 47 . An assignee of bankrupt appealed from the award of arbitrators without payment of costs. Seld, that an assignee in bankruptcy may thus appeal under the compulsory arbi- tration law. In re Morss v. Gritmann, Ass., 10 N. B. E. 183. 48. Where it is for the interest of the cred- itors that the estate be administered in the bankruptcy coiu-t, the fact that it is more expensive than proceedings looking to the same end in a state court will not control the court. In re Duryea, 17 N. B. E. 495; 3 Nat. Bank Cas. (Browne), 170; Fed. Cas. 4196. 49. The allowance of a commission for dis- bursements is not limited to disbursements for court expenses. The marshal is not en- titled to a commission on the value of prop- erty for the seizure or custody thereof. In re Burnell Bros., 14 N. B. E. 498; 7 Biss. 375; 9 Chi Leg. News, 84; 8 Cent. Law J. 750; 33 Int. Eev. Eec. 386; Fed. Cas. 3,171; E. S. 839. 50. An affidavit of a petitioner, unsup- ported by other evidence, that he is imable to pay the costs and fees of the bankruptcy proceedings beyond the preliminary deposit of $50, is insufficient to relieve him from the payment of such fees and costs (act of 1867). In re Anderson, 3 N. B. E. 166; Fed. Cas. 353. 5 1 . The register refused to proceed further in the examination of a debtor without hav- ing his fees paid or secured, neld, that the creditor must bear the expense of the exam- ination in the first instance, and such refusal of the register was not ground of objection to the record of the composition. In re Tifit, 18 N. B. E. 327; Fed. Cas. 14,033. 52. In a case where the petition shall be dismissed by order of the court, the debtor is entitled to recover from the petitioner the same costs that are allowed by law to a party recovering in equity. Dundore v. Coates & Bros., 6 N. B. E. 304; Fed. Cas. 4,143. 53. Costs and expenses in bankruptcy proceedings are payable out of the fund de- rived from the sale of the bankrupt's es- tate, and have priority or preference in the order for a dividend. In re Whitehead, 3 N. R E. 180; 1 Chi Leg. News, 336; Fed. Cas. 17,563. 54. An affidavit of a petitioner, unsup- ported by other evidence, does not "prove to the satisfaction of the court that he is un- able to pay the costs prescribed," as required by rvile 30 (act of 1867). In re Anderson, 3 N. B. E. 166; Fed. Cas. 353. 55. Out of the balance remaining after payment of all of the expenses of administra- tion, costs of a claimant upon a reference to have the claim declared and enforced are to be paid. In re Hoagland, 18 N. B. E. 530 j Fed. Cas. 6,545. 56. Where the assignee by direction of the bankruptcy court pays money to obtain a release of dower in mortgaged property in order to secure a sale of the same free of incumbrance and avoid the delay and ex- pense of a foreclosure, said expenditure should be shared by all parties interested in the proceeds proportionately to their re- spective interests. In re Bartenbach, 11 N. B. E. 61; 3 Amer. Law T. Eep. (N. S.) 33; Fed. Cas. 1,068. 57. Exceptions may be taken to the taxa- tion by the register of the costs of aU the offi- cers of the court, including the assignee. In re Dean, 1 N. B. E 36; 1 Amer. Law T. Eep. Bankr. 9; Fed. Cas. 3,699. 118 COSTS AND FEES, U, (a), (b). II. Fees. (a) Trustee {Assignee). 58. Wliat fees an assignee is allowed to charge and what fees must be fixed by the court. In re Davenport, 3 N. B. E. 18; Fed. Cas. 3,587; In re Pegues, 3 N. B. E. 19; Fed. Cas. 10,907; In re TuUy, 3 N. B. E. 19; 3 Amer. Law T. Eep. 136; Fed. Cas. 14,335. 59. It is within the discretion of a court of bankruptcy to allow a reasonable compen- sation to an assignee, and the supreme court cannot regulate this discretion beforehand. In re ColweU, 15 N. B. E. 93; 3 LoweU, 533; Fed. Cas. 17,539; E. S. 5099. 60. Assignees under the state law cannot receive allowance for attorney's fees nor com pensation for their own services where the debtor has been adjudged a bankrupt. In re Cohn, 6 N. B. B. 379; Fed. Cas. 3,966. 6 1 . Assignees who intend to make charges beyond the fees mentioned in the rules laid dovm (act of 1867) must warn creditors of that fact in the notices of the meeting at w^hich the account will be considered. In re ColweU, 15 N. B.E. 93; 3 LoweU, 533; Fed. Cas. 17,539. 62. Where an assignee desires to charge the estate for professional and clerical serv- ices rendered him, or additional compensa- tion for himself, he must first obtain leave of the court, and where the application is with- held until final account he must submit to examination and prove the necessity and the reasonableness of the charges. In re Noyes, 6 N. B. E. 377; Fed. Cas. 10,371. 63. An assignee to entitle himself to a per diem must not only show that he act- ually spent the number of days in atten- tion to trust, but that it was necessary to do so. In re Jones, 9 N. B. E. 491; Fed. Cas. 7,451. 64. An assignee under a general assign- ment for the benefit of creditors is entitled to set off the amount allowed him for his services against the claim of the assignee in bankruptcy, although his claim therefor was rejected in proceedings before the reg- ister. In re Catlin, Ass., v. Foster, 3 N. B. E. 134; 1 Sawy. 37; 3 Amer. Law T. 134; 1 Amer. Law T. Eep. Bankr. 193; Fed. Cas. 2,519. (b) Attorney. 65. The claim of an attorney for services and disbursements is not a claim to be paid in full under section 28 of the act of 1867. In re Heirschberg, 1 N. B. E. 195; 1 Amer. Law T. Eep. Bankr. 133; Fed. Cas. 6,339. 66. Counsel fees maybe aUowed petition- ing creditors in a petition in invitum to have a debtor adjudged a bankrupt. In re Waite, 3 N. B. E. 146. 67. Whether counsel fees should be al- lowed, and the measure thereof, rests in the discretion of the court. In re WiUiams, 3 N. B. E. 38; Fed. Cas. 17,704. 68. As a general rule no charge for pro- fessional services of counsel to an assignee, rendered prior to the appointment of the as- signee, wiU be allowed. In re N. Y. MaU S. S. Co., 3 N. B. E. 137; 1 Chi Leg. News, 310; Fed. Cas. 10,310. 69. Attorneys are not entitled to the pay- ment as a preferred claim, out of the general fund in the hands of an assignee in bank- ruptcy, of fees for opposing a petition of in- voluntary bankruptcy. In re N. Y. M. S. Co., 3 N. B. E. 170; Fed. Cas. 10,311. 70. A petition for the adjudication of a bankrupt was filed by a creditor whose debt was much larger than aU the others together, during proceedings in which a mortgage on aU of the bankrupt property was set aside, assuring a dividend of twenty-five per cent. Held, that the petitioning creditor was en- titled to counsel fees out of the fund. In re Waite, 3 N. B. E. 146. 71. A docket fee of $20 is aUowed to the attorney for the successful party in cases of involuntary bankruptcy where there is a trial by jury, and in those voluntary oases where the com't is authorized to direct a trial upon specifications of objections to the bank- rupt's discharge (act of 1867). Gordon et aL v. Scott et al., 3 N. B. R 38; 3 Pittsb. Eep. 109; 7 Amer. Law Eeg. (U. S.) 749; 6 Phila. 484; 36 Leg. Int. 276; 15 Pittsb. Leg. J. 543; 1 Amer. Law T. Eep. Bankr. 99 ; Fed. Cas. 5,630. 72. Petitioning creditors presented ex- cessive counsel fees, which being protested only reasonable fees were aUowed. In re Moses et al., 3 N. B. E. 1 ; Chase, 388 ; Fed. Cas. 9,675. 73. The court will order the payment of at- COSTS AND FEES, II, (b). 119 tomey's fees out of the estate upon written approval of the assignee. In re Montgomery, 3 N. B. R. 35; S Ben. 364; Fed. Cas. 9,726. 74. A petitioning creditor is entitled to be reimbursed out of the bankrupt's estate for all necessary and reasonable expenses in- curred by him in prosecuting proceedings against the bankrupt. Counsel fees are such necessary expenses. In re The N. Y. S. S. Co., 3 N. B. E. 155; 7 Blatohf. 178; 3 N. B. E. 185; Fed. Cas. 10,308. 75. An extravagant allowance to counsel for creditors will not be confirmed, unless assignee and bankrupts and all creditors wl o have proved debts assent in writing. In re Sanger et aL, 5 N. B. R 54; Fed. Cas. 12,318. 76. A debtor who has successfully de- fended himself against a petition in bank- ruptcy may have his just expenses, including ■counsel fees, paid from assets in hands of assignee. In re Comstook et al., 5 N. B. E. 191; Fed. Cas, 8,074 77. A register in bankruptcy may certify to the court the amount he has allowed counsel for assignee, for revision or approval •of the court. In re Warshing, 5 N. B. E. 350; Fed. Ca.s. 17,209. 78. Where petition in involuntary bank- ruptcy was dismissed, defendant's attorney is entitled only to appearance fee of |20 (act of 1867). Dundore v. Coates & Bros., 6 N. B. E. 304; Fed. Cas. 4,142. 79. Upon a suit by the assignee in bank- ruptcy against certain creditors to avoid their liens, the attorneys of those creditors, xilthough successful, are not entitled to any counsel fees out of the general fund in addi- tion to that given by statute; but when the fund has been benefited by the services of counsel a fee may be allowed out of such fund. In re Hope Mining Co., 7 N. B. E. 598; 2 Sawy. 351; Fed. Cas. 6,683. 80. For services rendered a bankrupt prior to adjudication an attorney is a general creditor, and must prove his debt in the usual form ; but for services rendered after adjudication, and before choice of assignee, his fees may be allowed if it be clearly shown that the services were properly and neces- sarily rendered for the benefit of the estate of the bankrupt, in the interest of the gen- eral creditors. In re Jaycox and Green, 7 N. B. E. 140; Fed. Cas. 7,239. 81. Sums paid by assignee to his counsel should be included in his account and sub- mitted to the meeting of the creditors, and audited as a part of the assignee's accounts, though under special circumstances, on no- tice to all creditors who have proved their claims, the court may order an inquiry be- fore such meeting. In re Hubbel et aL, 9 N. B. E. 523; 19 Int. Eev. Kec. 150; Fed. Cas. 6,830. 82. Petitioning creditors are not allowed, out of the f imd, a retainer paid their attorneys or for any services rendered by their attor- ney after adjudication of the debtor as a bankrupt. In re Comstock et aL, 9 N. B. E. 88; Fed. Cas. 3,075. 8 3 . Solicitors who prepare partnership and individual schedules for involuntary bank- rupts are entitled to reasonable compensa- tion. In re Andrews et aL, 11 N. B. E. 59; 23 Pittsb. Leg. J. 41; Fed. Cas. 370. 84. Where, in involuntary bankruptcy, there has been contested litigation of the question whether acts of bankruptcy had been committed, and whether the debtor , should be adjudged a bankrupt, a fee should be allowed the debtor's counsel in such liti- gation out of the assets of the bankrupt's estate. In re Portsmouth Sav. Fund Soc, 11 N. B. E. 303; 2 Hughes, 239; Fed. Cas. 11,298. 85. Attorneys of a voluntary bankrupt are not entitled to payment from the assets as preferred creditors for their services in preparing the petition and schedules, but may prove their debt in the usual manner. In re Gies, 12 N. B. R. 179; 7 Chi Leg. News, 379; 1 N. y. Wkly. Dig. 101; Fed. Cas. 5,407. 86. The bankrupt may retain from, the proceeds of a mortgage executed two days be- fore his adjudication the sum paid counsel for preparing his petition and schedules, and an amount, to be determined by the assignee, sufiicient for the support of himself and family, not exceeding, with his other exemp- , tions, the sum of |500. In re Thompson, 13 ' N. B. E. 300; 3 N. Y. Wkly. Dig. 4; Fed. Cas. 13,938. 87. If an insolvent debtor pay a retainer to counsel to assist him in the proper dis- charge of his duty under the bankrupt law, the payment is valid; but it is void if made with a view to prevent his property from being distributed under the act, and the at- torney krows him to be insolvent. Good- rich V. Wilson, 14 N. B. R 555. 120 COSTS AND FEES, 11, (c), (d). 88. A petition for an additional allowance of $850 to assignee's attorneys when the as- sets amount to $1,360, of which $725 had been already disbursed, mainly in attorney's fees, was dismissed. In re Drake, 14 N. B. E. 150; 3 N. Y. Wkly. Dig. 50'; Fed. Cas. 4,058. 89. An assignee obtained authority from the court to employ counsel to prosecute a claim on a contingent contract for fees, but suppressed facts which were known to the attorneys employed, which if known to the court would have prevented the giving of such authority. Held, that the contract could be set aside by the court, but a rea- sonable compensation should be paid coun- sel for services actually rendered. Maybin V. Raymond, Ass., 15 N. B. E. 853; 4 Amer. Law T.Eep. (N. S.) 21; Fed. Cas. 9,338. 90. Creditor obtained a lien against goods sold by assignee, by judgment and execution against the bankrupt before petition in bank- ruptcy was filed. In his bill for expenses the assignee included rent of building, the mar- shal's and auctioneer's fees, and an attorney's fee for services in assignee's contest with a judgment creditor for property on which the latter had a lien. Held, that all except the last Item should be allowed. In re Peabody, 16 N. B. E. 248; 9 Chi. Leg. News, 243; Fed. Cas. 10,866. 91. An assignment was made for the benefit of creditora Subsequently, on his own petition, the assignor was adjudged a bankrupt and an assignee in bankruptcy ap- pointed, whereupon the common-law assignee turned over all the property in his hands, re- taining only enough to reimburse himseflf for payments made on account of collections, for personal services as assignee and for attor- ney's fees. Held, that he was not entitled to priority for his personal services and attor- ney's fees, but they should be proved as any other claim. In re Lains, 16 N. B. E. 168; 1 N. W. Eep. (O. S.) 116; 6 Amer. Law Eec. 266; 24 Pittsb. Leg. J. 207; Fed. Cas. 7,989. 92. In a suit for the benefit of the bank- rupt and W. a judgment was recovered, appeal taken and bankruptcy proceedings begun at about the same time, assignee being substituted for bankrupt, but afterwards, under order of court, withdrew and assigned all interest to W. The judgment was re- versed. Held, the counsel were entitled to pay for services only after the substitution. and W. assumed all burdens by taking the assignment and could not demand reim- bursement. In re Litchfield, 18 N. B. E. 347j 26 Pittsb. Leg. J. 76; Fed. Cas. 8,386. 93. The assignee has no power, without permission of court, to employ an attorney to conduct suit on a contingent fee. In re Brinker et al., 19 N. B. E 195; Fed, Cas. 1,882. 94. The allowance of counsel fees was within discretion of the trustee and com- mittee chosen to assist him, and, in the ab- sence of bad faith, would not be interfered with by the court. In re Baxter et aL, 19- N. B. E. 295; Fed. Cas. 1,122. 95. County court disallowed $876 of final account of S., a bankrupt, administrator of one McQ., and ordered said amount to be dis- tributed among the heirs. M., attorney for heirs, gave notice of lien on decree for fees. On special agreement as to fees, the attorney had no lien on judgment. In re Scoggin, 1ft N. B. E. 197; 5 Sawy. 549; 8 Reporter, 330; 11 Chi. Leg. News, 367; Fed. Cas. 12,511. 96. The bankrupt court has power to de- termine in a summary manner the amount of attorney's fee, and to order their attorney to pay over balance of moneys retained by him for his services. In re Brinker et aL, 1ft N. B. E. 195; Fed. Cas. 1,882. (c) Olerh. 97,. Exceptions were made to aUowancfr of clerk's fees for filing, certification and entry of order to record assignment, for fil- ing, certifying and entry of assignment, for making certified copy of deed of assignment^ and for issuing "warrant in bankruptcy. HAd, that the charges should be allowed. In r& Alexander, 3 N. B. E. 20; 3 Amer. Law T, 137; Fed. Cas. 163. (d) Marshal. See Maeshal, 15. 98. Where the only object of a motion to- vacate a provisional warrant was to depriva the marshal of his fees, and where the war- rant was issued on papers regular on their face, and upon affidavits showing the neces- sity for its issue, the motion was denied. In. re Clark et al., 17 N. B. E. 554; Fed. Cas. 2,811. 99. The marshal may not charge two fees for serving the order to show cause, and tha COSTS AND FEES, II, (e). 121 copy of the involuntary petition, they con- stituting but one writ. In re Hellmar, 17 N. B. R. 363; 4 Sawy- 163; Fed. Cas. 6,342. 100. Where the marshal makes a charge for the time employed in personally taking care of the bankrupt property, or for taking an inventory of it by his oath as to the fact of his service and the necessity for it, he can- not charge one dollar an hour for assistants so employed. Id. 101. The marshal is entitled to a fee of $3 for serving a copy of the petition, as well as the order to show cause, on the debtor in an involuntary case. In re Burnell Bros., 14 N. B. E. 498; 7 Biss. 275; 9 Chi. Leg. News, 84; 3 Cent. Law J. 750; 23 Int. Rev. Eec. 386; Fed. Cas. 2171; R S. 829. 102. For the custody of property taken under a provisional warrant the marshal is entitled to what is paid to a keeper, not to exceed $2.50 a day. In re Johnson et al., 12 N. R R. 345; Fed. Cas. 7,422. 103. The allowance for the personal atten- tion of the marshal in taking care of prop- erty can be made only when he himself nec- essarily gives his personal attention, and does not cover personal attention by a deputy. Id. ' 104. When a taxation is made, it is con- clusive as respects the marshal and the as- signee for the time being, and the marshal is entitled to receive the amount of the bill taxed, unless it is shown that there is some fraud or bad faith on the part of the marshal or the assignee. In re Rein, 13 N. B. R. 551 ; 8 Ben. 384; Fed. Cas. 11,67a 105. Where process is sent by mail fi'om the marshal's oflSce to a deputy marshal re- siding at the place where service is made, and by him returned in the same manner, mile- age will be allowed for a service so made. In re Donahue et al., 8 N. B. R. 453; Fed. Cas. 3,979. 106. The adjudication of a corporation having been set aside, the marshal applied for an order requiring the petitioner to pay his fees and for an attachment. Held, that the court had no power to grant attachment in such case. In re Atlantic Mut. Ins. Co., 17 N. B. R. 368; 9 Ben. 337; Fed. Cas. 629. (e) Register {Referee). See Refeebb, 41-49. 107. The register may require that his lawful fees be paid before proceeding in an examination of a debtor, and may charge one dollar for his certificate. In re Tifft, 17 N. B. R. 550; Fed. Cas. 14,030. 108. A register is entitled to the compen- sation and percentage allowed by the act to assignees for the custody of goods and the proceeds of the sale thereof which have been surrendered to him and cared for and sold under his direction, pending the appointment of an assignee. In re Loder et al., 3 N. R R. 163; 3 Ben. 311; 3 Amer. Law T. 106; 1 Amer. Law T. Rep. Bankr. 159; Fed. Cas. 8,455. 109. If a trustee appointed under section 43 of the act of 1867 call a second general meeting of the creditors, the fees of the reg- ister incident to such meeting are not charge- able against the estate. In re Hinsdale et al., 12 N. B. R. 480; 6 Ben. 331; 1 N. Y. Wkly. Dig. 137; Fed. Cas. 6,525. 110. A question as to charges of a regis- ter in bankruptcy may be raised by an ex- ception, or may, at the request of a partyi be certified by the register. In re Sherwood, 1 N. B. R. 74; 25 Leg. Int. 76; 1 Amer. Law T. Rep. Bankr. 47; 6 Phila. 461; Fed. Cas. 12,774 111. The fees and charges of a register, including those for expenses, may fall short of or exceed the amount of the deposit of $50 required by section 47 (act of 1867). In an unopposed case, where there is no estate, he cannot be allowed his actual traveling and incidental expenses to an amount exceeding any reasonable proportional part of the de- posit. Id. 112. Under section 4 and general order 29, where an assignee examines a bankrupt be- fore a register under section 36, the assignee must pay the fees of the register for such examination, and, if there are assets, the court can reimburse the assignee (act of 1867). In re Hughes, 1 N. B. R 9; 2 Ben. 85; 1 Amer. Law T. Rep. Bankr. 45; Fed. Cas. 6,841. 113. Although register of a court of bank- ruptcy rendered certain services prior to the adoption of a rule, he must be governed by the rule, and the Court can allow no fees not provided for in said rule. In re Carstens, 15- N. B. R. 250; 14 Blatchf. 117; Fed. Cas. 3,469. 114. What charges the register may make and what charges he may not make, defined. In re Alexander, 3 N. B. R. 20; 2 Amer. Law T. 137; Fed. Cas. 163. 122 COSTS AND FEES, II, (f)-(h). 115. Eegister's legal fees must be paid by- Creditor who applies for order of examina- tion. In re Macintire, 1 N. B. E. 11; Bankr. Eeg. Supp. 3; 1 Ben. 277; Fed. Cas. 8,831. 116. Eegister's fee in Michigan, for tak- ing ordinary proof of debt, since recent amendment went into effect, is one dollar and eighty-seven and a half cents (act of 1867). In re Clarke, 10 N. B. E. 141. 117. It is the duty of the register to ex- amine and regulate charges, whether cred- itors object or not. In re Sawyer, 16 N. B. E. 4C0; 2 Lowell, 55: 15 Alb. Law J. 280; Fed. Cas. 13,396. (f) Sheriff. 118. A sheriff is not entitled to fees and •expenses for the attachment levy, care and custody of property of a debtor which was attached at the suit of creditors before his •adjudication in bankruptcy, but upon which judgment was not rendered until subse- quently. In re Williams, 2 N. B. E. 79; 3 Amer. Law Eev. 374; 1 Amer. Law T. Eep. Bankr. 107, 113; Fed. Cas. 17,705. 119. Under attachment issued prior to the filing of the petition in bankruptcy, the sheriff was entitled to a lien upon the proj)- erty for only such fees as acci'ued prior to the filing of the petition. In re Hausberger, 2 N. B. E. 33; 3 Ben. 504; Fed. Cas. 6,734. 120. A sheriff cannot claim fees for exe- cutions issued subsequent to the filing by the defendant of a petition in bankruptcy. Be- fore such filing he is entitled to his fees out ■of the proceeds of the personal estate. Piatt V. Stewart et aL, 11 N. B. E. 191; Fed. Cas. 11,331. (g) Wil/ness. See Evidence, 71. 121. Only the actual days of attendance are considered in computing fees of a wit- ness, and days on which he was merely to attend are not included. In re Crane & Co., 1 5 N. B. E. 120; 1 Tex. Law J. 41; Fed. Cas. 3,353. 122. The fees of a witness for going and returning once, and for one day's attendance, must be tendered and paid to him at the time of the service of the smnmons or sub- poena. If there be an adjournment, the wit- ness must be paid for another day's attend- ■anoe before he is bound to attend on the adjourned day. In re Griflfen, 1 N. B. E. 83; 2 Ben. 209; 1 Amer. Law T. Eep. Bankr. 120; Fed. Cas. 5,810. 123. The wife of a bankrupt is entitled to witness fees for attendance and travel. Id.; In re Van Tuyl, 2 N. B. E. 25; Fed. Cas. 16,881. 124. A creditor proving his claim is a " party " to the proceedings and in no sense a witness, and is not entitled to fees. In re Paddock, 6 N. B. E. 396; Fed. Cas. 10,658. 125. A bankrupt making further state- ments after creditor has closed his examina- tion is his own witness and must pay ex- penses. In re Mealey, 3 N. B. R 51 ; Fed. Cas. 9,378. 126. A non-resident creditor is not entitled to witness fees under an order to appear and be examined. In re Kyler, 2 N. B. E. 650; 2 Ben. 414; Fed. Cas. 7,956. 127. Witness fees must be paid by the party for whose benefit the examination is taken. Scofield v. Moorhead, 3 N. B. E. 1; Fed. Cas. 12,510. 128. A bankrupt ia not entitled to wit- ness fees on appearance for examination. In re Okell, 1 N. B. E. 52; 1 Amer. Law T. Eep. Bankr. 33; 3 Pittsb. Leg. J. (N. S.) 233; Fed. Cas. 10,474 (h) In General. 129. An assignee must show affirmatively the necessity of employing an auctioneer or the auctioneer's charges will not be allowed. In re Sweet, 9 N. B. R 48; 31 Pittsb. Leg. J. 83; Fed. Cas. 13,688. 130. A bankrupt when ordered to appear for examination in reference to his bank- ruptcy is not entitled to any fees or compen- sation therefor. In re McNair, 3 N. B. R 77; Fed. Cas. 8,907. 1 3 1 . A messenger cannot claim fees which are not designated in the act. In re Talbot, 3 N. B. R 93; 2 Amer. Law T. Eep. Bankr. 15; 1 Chi. Leg. News, 107; Fed. Cas. 13,727. 132. Travel by marshal or messenger to make return on warrant of bankruptcy is necessary and he is entitled to mileage. Id. 133. Notaries taking proofs of debt in bankruptcy proceedings are not entitled to priority of payment of their fees under sec- tion 38 of the act of 1867. In re Nebe, 11 N. B. R 389; Fed. Cas. 10,073. 134. An order for the payment of fees and expenses incurred in bankruptcy pro- COUNTER-CLAIM— COURTS, I, (a). 123 «eedings out of funds in the hands of the as- signee is an order for distribution, and, when unopposed, may be made by the register. In re Lane, 3 N. B. R. 100; S Ben. 98; 1 Chi Leg. News, 133; Fed. Cas. 8,043. COUNTER-CLAIM. See Set-off. COURTS. L Process, Pleading and Practice. (a) Process. (b) Pleading and Practioe, (o) Adjudication. (1) In GeneraL (3) Notice. (d) Jury Trials. (e) Habeas Corpus. IL Jurisdiction. (a) United States Courts. (1) Circuit Court. (3) District Court. (3) Over State Laws and Pro- ceedings. (4) In GeneraL (5) Exemption. (6) Residence and Alien. (7) Fraud. (8) Contempt (b) Liens. (1) In GeneraL (3) Sale. (3) Execution. (4) Made Availabla Cas. 8,783. 17. If a creditor having a firm note in- dorsed by one partner, and holding property of such partner as security, obtains payment, by a sale of the security after the commence- ment of the proceedings in bankruptcy, the- separate creditors are entitled to receive- from the joint fund a sum equal to the divi- dend on the note. In re Foot et aL, 13 N. B. R. 337; 8 Ben. 228; 1 N. T. Wkly. Dig. 76; Fed.. Cas. 4,906. 18. The holder of a note given by a firm- and also by an individual member of the- firm is entitled to receive dividends fromthe- estates of both. Emery et aL v. Canal Nat. Bank, 7 N. B. R 217; 3 Cliff. 507; 6 West. Jur.515; 5 Amer. Law T. Rep. (U. S. Cts.)419r. Fed. Cas. 4,446. III. Excess of Assets. 19. The amount in the hands of the as- signee for distribution exceeded the amount of the debts proved. Held, that such ex- cess should be applied to reducing the in- terest accruing from date of computation. In re Town et aL, 8 N. B. R 40; Fed. Cas. 14,113. 20. When but a single creditor proves his- claim, he is entitled to be paid in full as far as the assets are sufficient for that purpose, and if there be any residue the same must- be applied to the payment of such creditors. DIVIDENDS, IV-Vm. 17» as the bankrupt has acknowledged to hold valid claims. In re Haynes, 3 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 6,369. 21. Any money remaining in the hands of the assignee, after the payment in full of creditors who have proven their claims, must be distributed among such creditors as are named in the bankrupt's list, although they have failed to make proof of their claims. In re James, 2 N. B. R 78; 1 Gaz. 78; Fed. Cas. 7,175. 22. If a surplus remain as regards a bank- rupt bank, after the payment of all claims at the amount computed to be due on the date of adjudication, creditors holding its bills may be allowed interest from the date of adjudication to the time of payment of dividends. In re Bank of N. C, 13 N. B. K. 130; 1 N. Y. Wkly. Dig. 137; Fed. Cas. 895. rV. Set-off. 23. A debtor gave a creditor his accom- modation notes for an amount greater than the debt, and the notes were discounted and afterwards proved against the debtor's estate in bankruptcy. Held, that an assignee could set off against the dividend due the creditor the dividend paid on the notes, and recover from the creditor the balance of the divi- dend paid, and that in case of a composition the same right obtains. In re Purcell, 18 N. B. E. 447; Fed. Cas. 11,470. 24. Where creditors of an insolvent cor- poration are also stockholders they will not be permitted to deduct the amount of their claims from their proportions of the unpaid capital; yet, if their debts are proved in bankruptcy, deductions may be made, per- haps, from the assignee's demands equal to their estimated dividends. Wilbur, Ass., v. Stockholders, 18 N. B. E. 178; 13 Phila. 479; 35 Leg. Int. 346; 36 Pittsb. Leg. J. 15; Fed. Cas. 17,636. 25. Plaintiff, with knowledge of all the facts, received and accepted his dividend out of a bankrupt's estate. The bankrupt had recovered a verdict against plaintiff and pro- posed to levy the judgment in fuU. Held, that a court of equity would not enforce a setoff of the balance of his claim against the judgment obtained by the bankrupt. Hunt V. Holmes, 16 N. B. K. 101; Fed. Cas. 6,890. Y. Composition. See Composition, 54 26. If an offer of composition is accepted, the payment is for the satisfaction of the debts, and not as a dividend from the estate in bankruptcy. In re Lissberger, 18 N. B. R. 330; Fed. Cas. 8,384. 27. Where the record shows on its face, by the debtor's own statement, that his es- tate is able to pay a much larger dividend than that offered in composition, the dissent- ing creditors may rely upon this statement and are not bound to prove the facts by afiS- davits. In re Weber Furniture Co., 13 N. B. R. 639; Fed. Cas. 17,330. YI. Power of Oeeditoes. 28. A second meeting of creditors may dispose of the funds for the allowance of claims by paying as far as possible those' already proved, and it is not necessary to retain a like percentage for those which might thereafter be proved, even if such ac- tion puts it out of the power of the assignee- to make a similar dividend upon such im- proved claims in the event that they would be proved before a third meeting of creditors.. In re Mills, 11 N. B. R. 117; 7 Ben. 453; Fed. Cas. 9,610. 29. The assignee is in all respects the- agent, attorney and representative of the general creditors by statutory appointment. The general creditors have no power to act except to vote on the selection of an assignee and on the subject of di-ndends. In re Camp- bell, 17 N. B. R. 4; 3 Hughes, 376; Fed. Cas.. 3,348. YII. Undee Genbeal Assignment. \ 30. Where creditor has accepted a di-vi- dend under an assignment, he has the right, to disaflSrm the act, on discovering the as- signment to be fraudulent, by tendering back what he has received. Johnson, Ass., v.. Rogers et aL, 15 N. B. E. 1; 5 Amer. Law Eec. 536; 14 Alb. Law J. 437; Fed. Cas. 7,408.. YIII. In Geneeal, 31. A bankrupt having appropriated' money left with him as a special deposit, the depositor filed a petition to have the debt 180 DOMICILE — DOWER, I, IX paid in full out of the general assets. Ileld, depositor could only share pro rata with other creditors. In re King, 9 N. B. R. 140. 32. Creditors of bankrupt declared a divi- dend; one of the creditors was also a debtor of one of the members of the firm, which debt appeared on the individual schedule. Assignee brought suit in state courts to re- cover from the creditor the amount due the estate, which action was pending. On re- fusal of assignee to pay creditor the amount of dividend, a motion was made to compel payment. Held, that the assignee could with- hold payment of the dividend to creditor, declared upon the net proceeds of the joiat stock, until final determination of the suit. Atkinson v. Kellogg, 10 N. B. R. 535; 7 ChL Leg. News, 9; Fed. Cas. 613. 3 3 . A bankrupt could not, by mere protest made to assignee, alleging want of jurisdic- tion in the court, in a case commenced after December 1, 1873, and prior to the approval of the amendments of the bankrupt law, stop the declaring of a dividend which could be legally declared under the law prior to the amendments. In re Rosenthal, 10 N. B. R. 191; 1 Cent. Law J. 364; 6 ChL Leg. News, 843; 31 Leg. Int. 354; Fed. Cas. 13,063. 34. Proving a debt and recovering divi- dends in bankruptcy against a corporation is no bar to recovering judgment for the bal- ance ia a state court. The Ansonia B. and C. Co. V. The New L. 0. Co., 10 N. B. R. 355. 35. Upon the bankruptcy of a debtor, a special receiver under an assignment valid under the state law held funds which came into his hands by virtue thereof. Held, that a proper amount should be distributed by the receiver among the creditors, the basis of each distribution being determined by reference to a master. Sedgwick v. Place et al., 3 N. B. R. 78; Fed. Cas. 13,633. 36. When a judgment on which a super- sedeas and stay has been granted by the state court, pending the decision of a writ of error, is proved in bankruptcy, the bankrupt court will stay the payment of dividends likewise. Avery v. Johann, 3 N. B. R. 36; Fed. Cas. 675, dissented from In re Sheehan, 8 N. B. R. 345; Fed. Cas. 13,737. DOMICILE. See Place of Business. DOWER. I. In Mortgaged Pbopeett. IL In Real Estate Geneeallt. IIL CoNTKAOTS Affecting. See Conveyances, 35; Interest, 8; Prefer- ences, 3; Sale, 68. I. Lsr MOETGAGED PeOPEETT. 1. Where a wife joins her husband in a mortgage of real estate, her inchoate right of dower exists only in the equity of redemp- tion. Hiscook, Ass. etc., v. Jaycox & Green, 13 N. B. R. 507; Fed. Cas. 6,531. 2. A wife's dower, where she joins in a mortgage of her husband's property, can be barred only by sale of the property under a power of sale contained in the mortgage, or by a decree of a coiirt where she can be made a party to proceedings, a sale in bankruptcy proceedings being iuefieotuaL In re Barten- bach, 11 N. B. R. 61; 3 Amer. Law T. Rep. (N. S.) 33; Fed. Cas. 1,068. IL In Eeal Estate Geiteeallt. 3. A feme covert is not entitled to dower in real estate held as partnership assets. Hiscock, Ass. etc., v. Jaycox & Green, 13 N. B. R. 507; Fed. Cas. 6,531. 4. Wife of bankrupt petitioned that her thirds in lands sold by assignee might be laid off to her under provisions of " An act restoring to married women their common- law rights of dower." Petition denied. In re Kelley v. Strange, 3 N. B. R 3; Fed. Cas. 7,676. 5. A wife is not entitled to dower in the lands of her living husband, in any case in which debts are due from the bankrupt which were contracted previous to the pas- sage of the act. In re Hester, 5 N. B. R. 385; Fed. Cas. 6,437. 6. Under law of Indiana, widow is en- titled to one-third of all real estate of which her husband was seized during coverture, in which she may not have joined in convey- ance with him, and also one-third of all real estate in which husband had equitable in- terest at time of his death. Warf ord. Ass., v. Noble et aL, 19 N. B. R. 440. 7. A debtor filed his petition after passage of act by legislature restoring common-law DOWER, III — EQCriTY. 181 right of dower, and died after issuance of the warrant in bankruptcy, neld, that the wife is entitled to dower in lands owned by the bankrupt at date of filing petition, but that she is not entitled to exempted personal property. In re Hester, 5 N. B. E. 285; Fed. Cas. 6,437. 8. The dower right of wife of bankrupt is not divested by proceedings under bankrupt act. In re Angier, 4 N. B. R. 199 ; Fed. Cas. 388. III. CoNTEACTS Affecting. 0. A fraudulent conveyance does not for- feit the dower right of a wife or the home- stead exemption of the husband, as against the assignee in bankruptcy, when said con- veyance has been set asida Cox v. Wilder et aL, 7 N. B. R. 341; 3 Dill. 45; 5 Amer. Law T. Rep. (LT. S. Cts.) 500; Fed. Cas. 3,808. 10. A feme covert does not become a surety for her husband by charging her in- choate right of dower for her husband's ben- efit. Hiscock, Ass. etc., v. Jaycox & Green, 13 N. B. R. 507; Fed. Cas. 6,531. 11. An agreement that a. feme covert is to be compensated for a release of her contin- gent right of dower is not to be implied. Id. 12. Where husband and wife join in a deed so as to release the dower, if the deed be avoided in the hands of a fraudulent grantee, as having been executed by the bankrupt with intent to hinder and defraud creditors, the assignee will be entitled to the land divested of the wife's claim to dower and the husband's right to a homestead. Cox, Ass., V. Wilder et aL, 5 N. B. R. 448; Fed. Cas. 8,309. 13. Certain land belonging to a bankrupt was sold by the assignee in pursuance of an order of court. The bankrupt had a wife living who claimed dower in said real estate. Held, that the sale did not divest her dower interest. Lazear v. Porter, Ass., 18 N. B. R. 549. DRAFT. See Commercial Papee. ENDORSEES. See Commercial Paper, IX, X, XIV. ENJOINING PROCEEDINGS. See Injunction. EMBEZZLEMENT. See Fraud, 107. EQUITY. See Composition, 60; Injunction, 14; Man- damus, 1; Pleading and Pbacticb, 210; Stockholders, 17; Usury, 9. 1. Proceedings in bankruptcy are in the nature of equity proceed ings. In re Wallace, 3 N. B. E. 53; Deady, 483; Fed. Cas. 17,094. 2. Upon general principles of equity juris- diction the mortgagor of chattels has no equity of redemption therein, and it may be enforced in the United States circuit court when that court has jurisdiction of the par- ties or subject-matter. Foster, Ass., v. Ames, 3 N. B. R. 147; 1 Lowell, 813; Fed. Cas. 4,965. 3. A court of equity will not refuse to take jurisdiction of a cause merely on the ground that complainant has a complete remedy at law when parties have submitted their rights to the jurisdiction of the court without objection. Post v. Corbin, Ass., 5 N. B. R. 13; Fed. Cas. 11,399. 4. A demnrrer to a bill in equity brought by the assignee on the ground that there is a complete remedy at law will be overruled when it appears that questions of fraud, trust and partnership are involved. Taylor, Ass., V. Rasch et al., 5 N. B. R. 399; Fed. Cas. 13,801. 5. Where the complainant knows what the goods transferred by bankrupt are, he can- not claim equity jurisdiction on the ground of discovery because he is ignorant of their precise amount. Garrison, Ass., v. Markley, 7 N. B. R. 246; Fed. Cas. 5,356. 6. The plea of bankruptcy is not an equita- ble but a purely legal defense. Medbury v. Swan, 8 N. B. E. 537. 7. The assignee must sue in equity if con- version of property was prior to the filing of petition in bankruptcy. Mitchell v, MoKib- bin, 8 N. B. R. 548; Fed. Cas. 9,666. 182 ESTATE, L 8. Where bill must be dismissed for want of equity, jurisdiction, will not be retained to settle priorities or equities between the de- fendants, but a court of equity may sell free from, or subject to, prior incumbrances. Sutherland et aL v. Lake Sup. S. C, R R. & L Co., 9 N. B. E. 398; Fed. Cas. 13,643. 9. A corporation must answer a bill in equity under its common seal, and is not re- quired to answer any interrogatories, except such as by the note at tlie foot of the biU it is required to answer, and the agents and oflScers cannot be required to answer the in- terrogatories unless they are made defend- ants. French, Ass., v. Bank, 11 N. B. E. 189; Fed. Cas. 5,099. 10. Courts of law and equity cannot insert in section 3 of the bankrupt act (1867), limit- ing the time for the commencement of suits by the assignee, any exception. Andrews, Ass., y. Dole et aL, 11 N. B. E. 853; Fed. Cas. 373. 1 1 . Equity will follow a fund through any number of transmutations, and preserve it for the owner so long as it can be identified. It does not matter in whose name the legal right stands. If money has been converted by a trustee or agent into a chose in action, the legal right to it may have been changed, but equity regards the beneficial ownership. Voight V. Lewis, Trus., 14 N. B. E. 548; 11 Phila. 511; 33 Leg. Int. 403; 9 Chi. Leg. News, 65 ; 11 Bankers' Mag. (3d S.) 481 ; 8 N. Y. Wkly. Dig. 431; 34 Pittsb. Leg. J. 54; Fed. Cas. 16,989. ESTATE. L Control of Court Thereover. n Trustees. (a) Trustee's Title in General. (1) Limitations Thereon. (3) Non-passage of Title. (3) Passage of Title. (4) When Effective. (b) Assignments, (c) Collaterals. (d) Creditors. (e) Interest Under Wills, (f) Leases and Bents. (g) Mortgages. (h) Bights of Action, 11 III IV. V. VL VIL VIIL IX. X. XL XII. XIII Trustees — continued. (i) State Courts, Executionsby Sher- iff, etc. (j) Suits by and Against Assignee. (k) Trust Property. Bankrupts. (a) Bankrupt's Title in General. (b) Exemptions. (c) Assets, Funds, Payments, etc (d) Purchasers and Third Parties, (e) Ultimate Title of Bankrupt. Corporations. Claims Against the Government. Insurance. Monet (Funds). Partnerships. Preferences. Proceeds. Property op Third Persons. Property m Which Wife Has aw Interest. Miscellaneous Decisions as to Title. See Discharge, 106, 189, 191; Dividends, 33; Estoppel, 9; Insolvency, 3; Judgment, 15, 41, 50; Lien, 49, 59; Marshal, 8; Pe- titions, 136, 187; Pleading and Prac- tice, 153, 169, 176, 301, 35.5, 358, 370; Sales, 5, 8, 30, 34, 69, 75, 94; Schedules, 34; Secured Claims, 5; Statutory Con- struction, 65; Statute OF Limitations, 48; Stockholders, 30; Tax, 3; Usury, 3. I. CONTEOL OF CoUItT ThEREOTEE. See Courts; Banks, 33; Injunction, 36. 1. The estate surrendered to a district court is placed in the custody of the court so sitting in bankruptcy, and the officer ap- pointed to manage it is accountable to the court appointing him, alona No court of an independent state jurisdiction can withdraw the property surrendered, nor determine in any degree the manner of its disposition. In re Barrow, 1 N. B. E. 135; 1 Amer. Law T. Eep. Bankr. 83; Fed. Cas. 1,057. 2. The intent of the act of 1867 is that the federal courts shall have excliisive control of the assets of the bankrupt and distribute the proceeds. Wilson v. Capuro, 4 N. B. E. 714 (8 vo. ed.). 3. The assets of such bankrupt individu- als and corporations as are within the scope ESTATE, II, (a), (1). 183 •of the act of 1867 cannot by any power be wrested from the jurisdiction of the courts in bankruptcy. In re Independent Ins. Co., « N. B. R. 260; Holmes, 103; Fed. Cas. 7,017. 4. The commencement of proceedings in .bankruptcy transfers to the court the juris- •diotion over the bankrupt, his estate and all parties and questions connected therewith, arid operates as a supersedeas of the process in the hands of the sheriff and an injunction agaiust all other proceedings than such as might thereupon be had under the authority of the court until the question of bankruptcy .shall have been disposed of. Jones v. Leach, 1 N. B. R. 165; Fed. Cas. 7,475. 5. All property of the bankrupt included in the inventory and schedules comes into ihe prehensoiy power of the court as fully .as if it were actually and visibly in the pres- ence of the court the moment the voluntary petition is filed, and the court has exclusive ■control of the same. Byrd, Ass., v. Herrold ■et aL, 18 N. B. R. 433; 36 Pittsb. Leg. J. 128; Fed. Cas. 2,269. 6. The effect of an adjudication in invol- untary bankruptcy is to take from the bank- rupt the whole of his estate into the con- trol and disposal of the court. The control as retroactive, and reaches back from the day of adjudication to the day of the com- anencement of the proceedings, invalidating ■every intermediate transfer of property or payment of offset by the bankrupt. In re Portsmouth Savings Fund Society, 11 N. B. E. 303; 2 Hughes, 239; Fed. Cas. 11,298. 7. State and federal courts have concur- Tent jurisdiction over actions for the collec- tion of the assets of the bankrupt whether Tthe actions be legal or equitable, and for any Amount, subject to the authority conferred -by section 71, Revised Statutes, and the amendment of 1874 Wente v. Young et al., U7 N. B. R. 90. 8. A bankruptcy court has power to take possession of personal assets in the hands of a vendee of a bankrupt, purchased before the adjudication in bankruptcy, upon the •€x parte allegations and proof by the assignee *hat such sale is fraudulent and void, an- terior to a trial upon an issue of title thereto. In re Hunt, 2 N. B. R. 166; 1 Chi. Leg. News, i69; Fed. Cas. 6,881. 9. The court after the commencement of bankruptcy proceedings becomes vested with all powers and control over the assests pre- viously vested in either the chartered officers of a company or the stockholders, and may make any assessment or call necessary to the collection of the assets, as fully as the stockholders or directors could do if the com- pany had not become bankrupt. Upton v. Hansbrough, 10 N. B. R. 368; 8 Biss. 417; Fed. Cas. 16,801. II. Tetjstees. See Choses m Action, 1; Dowee, 13. (a) Trustee^s Title m General. (1) Limitations Thereon. 10. Only such property as the bankrupt had at the commencement of the bank- ruptcy proceedings passes to the assignee. In re Patterson, 1 N. B. R. 125 (8 vo. ed.); 1 Ben. 508; Fed. Cas. 10,815. 1 1 . The assignment of a bankrupt's estate to the assignee confers upon him only such title as the bankrupt possessed. Aiken v, Edrington, Sr., et al., 15 N. B. R 271; Fed. Cas. 111. 12. The assignee in bankruptcy can claim only such interest and right in any property, except in case of fraud, as the bankrupt him- self could have claimed at the filing of the petition. Rogers v. Winsor, 6 N. B. R. 246; Fed. Cas. 12,033. 13. In general, only such right, title and interest as the bankrupt himself has in law and equity in any estate or property passes by bankruptcy to the assignee. Hersey v. Elliott, 18 N. B. R. 358. 14. The assignee in bankruptcy has only the title of the bankrupt unless given the right by creditors to assail fraudulent trans- fers, and title to property conveyed by the bankrupt contrary to the provisions of the bankrupt act. Johnson, Ass., v. Rogers et al., 15 N. B. R. 1; 5 Amer. Law Rec. 586; 14 Alb. Law J. 437; Fed. Cas. 7,408. 15. The bankrupt law takes the estate of the bankrupt into custody of its court and transfers it to the assignee, subject to such liens by way of preferences as existed more than four months before the petition in bank- ruptcy. Alderdice, Ass., v. State Bank of 184 ESTATE, II, (a), (1> Va. et al., 11 N. B. E. 398; 1 Hughes, 47; Fed. Cas. 154. 16. By section 14 of the act of 1867 the assignee takes the property of the bankrupt with the like right, title, power and author- ity to sell said property as the bankrupt could have done. He acquires no other or better title to the property than the bank- rupt had, and if there was a lien on the prop- erty in the hands of the bankrupt, the same lien follows the property in the hands of the assignee. In re "Winn, 1 N. B. R. 131 ; 1 Amer. Law T. Eep. Bankr. 17; Fed. Cas. 17,876. 17. Assignees in bankruptcy, except in cases of fraud, take only such rights and in- terests in the property of the bankrupt as he himself had and could have himself claimed and asserted at the time of his bankruptcy, and they are affected with all the equities which would affect the bankrupt himself if he were asserting those rights and interests. Barnard et al.. Ass., v. N. & W. E. E. Co. et al, 14 N. B. E. 469; 4 Cliff. 851; 3 Cent. Law J. 608; 5 Amer. Law Eeo. 361; 33 Int. Eev. Eeo. 313; Fed. Cas. 1,007. 18. The title of the assignee to property of a bankrupt is subject to aU the rights and equities which would have affected such property while in the hands of the bankrupt, before the adjudication in bankruptcy. Fourth Nat. Bank of Chicago v. City Nat. Bank of Grand Eapids, 10 N. B. E. 44. 19. Except in cases of fraud, assignees in' bankruptcy take only such rights and in- terests as the bankrupt could claim and assert at the time of his bankruptcy. All the equities which would affect the bank- rupt will also affect the assignee. In re Dow, 6 N. B. R'lO; Fed. Cas. 4,036. 20. The trustee or assignee in bankruptcy takes the property subject to all legal and equitable claims of others. Hayes v. Dickin- son, 15 N. B. E. 350. 21. The act of 1867 does not in general vest in the assignee any more beneficial in- terest in the debtor's estate than his execu- tion creditors could, under the laws of the respective states already in force, have ob- tained under adversary proceedings. In re Appold, 1 N. B. E 178; 7 Amer. Law Eeg. (N. S.) 634; 6 Phila. 469; 35 Leg. Int. 180; 1 Amer. Law T. Eep. Bankr. 83; Fed. Cas. 499. 22. A conveyance of real estate made to defraud creditors is not void, but voidable; and the property so conveyed does not abso- lutely vest in the assignee as part of the bankrupt's estate. Phelps et aL v. Curts, 1ft N. B. E, 85. 23. Where a levy is not made at the date of the bankruptcy, the title by operation of law is vested.' in the assignee, who must make the sale and deposit the proceeds sub- ject to whatever claims may be made upon it. Pennington v. Sale & Phelan et aL, 1 N. B. E 157; 3 Amer. Law Eev. 776; Fed. Cas. 10,989. 24. The vacation of an attachment by proceedings in bankruptcy does not enlarga the lien of judgment creditors under subse- quent executions; but such vacation operates to vest the property in the assignee free from incumbrance to the extent of the attach- ment, and subject to the liens of the judg- ment creditors as to the excess. In re Nel- son, 16 N. B. E. 313; 9 Ben. 338; Fed. Cas. 10,100. 2 5 . Upon the dissolution of an attachment by the commencement of proceedings in bankruptcy, title to the property attached vests in the assignee, subject to the Hen of the sheriff thereon for his fees which aoorufr prior to the filing of the petition. In re- Housberger, 3 N. B. E. 33; 3 Ben. 504; Fed. Cas. 6,734. 26. Where property upon which there is- an attachment lien is delivered to a receiptor, the lien follows the property into the hands- of the debtor's assignee. Eowe v. Page, IS N. B. E. 366. 27. Where, under a written contract,, ownership of personal property is not to pass to the vendee until the full amount of the- stipulated price is paid, the assignee in bank- ruptcy is not entitled to the property unless he makes payment of the balance due. In re Lyon, 7 N. B. E 183; 4 Chi Leg. News, 431; Fed. Cas. 8,644. 28. An assignee in bankruptcy in New York who gets possession of goods subse- quent to the delivery to the sheriff of an execution holds the goods subject to the- lien of the execution even where there has been no actual levy by the sheriff. In re Paine, 17 N. B. R. 37; 9 Ben. 144; Fed. Cas.. 10,073. ESTATE, II, (a), (3), (3). 185 29. Upon an assignee's petition to set aside two deeds for property, the first made by a sheriff by -virtue of an execution in fraud of the bankrupt act, the second to a iona fide purchaser, for value, without notice, from the person to whom the fraudulent deed was given, held, that the assignee had no greater rights than a judgment creditor; and though the first deed may be a mere cover, a hona fide purchaser will be protected. Beall v. HarreU et al., 7 N. B. E. 400; Fed. Cas. 1,163. 30. When an assignee sells incumbered property without any special order of the court, he sells it subject to all lawful incum- brances, and can convey no better or higher interest than the bankrupt could have done. Eay V. Brigham et aL, 13 N. B. E. 145; 33 Waa 138. 31. If a person has the goods of another under agreement to sell the same on shares, and learning that the owner has become in- solvent induces the latter to execute a bill of sale of the property, the sale is void as to creditors, but the assignee acquires no greater rights than the bankrupt himself possessed, nor has the other party to the bill of sale gained or lost any rights by reason of the said bill of sale. Avery, Ass., v. Hackley, Ex'x, 11 N. B. E. 341; 30 Wall. 407. 32. A. loaned money to B. and took a con- veyance of B.'s land, which he reconveyed to B. and wife on the payment of a certain sum annually during the life of A., at whose death B. and wife should have the fee. B. and wife (a daughter of A.) released all rights *o A.'s estates. The wife died, then A. B. became bankrupt. The annual sum was paid until the death of wife. Meld, B. and wife were tenants by the entirety ; that B. 's assignee was entitled to the land subject to a lien in favor of A.'s administrator for sums due from death of wife to death of A,, with interest. At- wood. Ass. et al., v. Kittel et al., 17 N. B. E. 406; 9 Ben. 473; Fed. Cas. 641, (2) iN'on-passage of Title. 33. A tenant who occupies land under an agreement to pay rent, with provision for ouster and distraint upon default, has no such interest in the land as will pass to his as- signee. In re O'Dowd, 8 N. B. E. 451; Fed. Cas. 10,439. 34. A., being indebted to a bank in which he owned stock, executed an irrevocable power of attorney to the cashier to transfer such to the bank or any other person, with power to appoint a substitute. A. afterwards became bankrupt and the cashier died. A.'s assignee claimed the security on the ground that the power was revoked. Held, that it was not revoked. Lightner, Ass., v. First Nat. Bank of Strasburg et al., 15 N. B. E. 69. 35. A bankrupt sold a saw-mill to D., and agreed to furnish stock for said mill at a specified rate, the logs and timber to be held as property of the vendor until manufactured into lumber and divided. D. formed a pari> nership under name of D. & Co., which be- came vested with D.'s interest in the con- tract. The sheriff, under execution against D. & Co., seized logs taken from the bank- rupt's lands under contract, and lumber at the mill, which had not been divided. In an action by the assignee, held, that where de- livery of exclusive possession of goods accom- panies an absolute or conditional sale, reser- vation of a lien or right of property in the vendor wiU not protect them from the vendee's creditors. Euwer, Ass. etc., v. Van Giessen et al., 19 N. B. E. 368. 36. A banking society for ten years had not conducted its business as a bank, but for seven years had pursued a policy of liquida- tion by set-off. The deposits became a com- modity and were not paid, but simply repre- sented by papers in the form of checks, which were good as set-offs in favor of debtors of the society. Held that, as these papers did not represent money, were not payable at sight, and limited in negotiability, they were- not checks, but mere evidences of assignment of choses in action, and that parties selling these papers were not responsible to an as- signee of the society for their face value. Harmanson, Ass., v. Bain et al., 15 N. B. E. 173; 1 Hughes, 188; Fed. Cas. 6,073. (3) Passage of Title. 37. The assignee in bankruptcy is entitled, to specific property for which the bankrupt had made an agreement for the purchase. In re Wood Machine Cq., 9 N. B. E. 395; 5.. Sawy. 576; Fed. Cas. 17,980. 38. The act of 1867 vests all the property 186 ESTATE, II, (a), (3). of the bankrupt in the assignee, including property attached on mesne process made ■within four months next preceding the com- mencement of proceedings. Reed v. Bulling- ton, 11 N. B. E. 408. 39. Vested rights ad rem and in re, pos- r«ibilities coupled with an interest, and claims growing out of property, pass to the assignee. Phelps V. McDonald, 99 U. S. 298; Williams V. Heard, 140 U. S. 529. 40. If no attachment has been made ■within four months before commencement • of proceedings in bankruptcy, and if there has been no conveyance in fraud of creditors, the title of the assignee is the same as that •of the bankrupt. Donaldson, Ass., v. Farwell «t aL, 15 N. B. R. 277; 93 U. S. 631. 41. Property of the bankrupt, where^v^er •situate, which is not exempted from the oper- ation of the bankrupt act, passes to the as- signee, who is an officer of the bankrupt ■court. This is equally true of property under mortgage as of that which is unincumbered. Markson & Spaulding v. Heaney, 4 N. B. E. 165; 1 DilL 497; 3 Chi Leg. News, 153; Fed. ■Cas. 9,098. 42. Title to property mortgaged by a bank- irupt, but in his possession at the commence- ment of proceedings in bankruptcy, passes to his assignee, and if possession has been ob- tained subsequent thereto by the mortgagee or one claiming in his right, the assignee is ■entitled to recover in specie, or, if that is im- possible, the value of the property when taken. In re Rosenberg, 3 N. B. R. 33; 3 Ben. 566; Fed. Cas. 13,055. 43. A register has the right to convey the «state of the bankrupt to the assignee if there be no one before him contesting the appoint- ment of an assignee, although title to the property is in dispute. In re Wylie, 3 N. B. E. 53; 1 Chi Leg. News, 30; Fed. Cas. 18,109. 44. Property that has been conveyed by a bankrupt in fraud of his creditors prior to the passage of the bankrupt act becomes vested in the assignee in bankruptcy by force •of that act and by virtue of the proceedings thereunder. Stewart v. Isidor et aL, 1 N. B. E. 139. 45. A seat in a stock exchange board is property and passes to the assignees in bank- ruptcy. Sparhawk v. Yerkes, 143 U. S. 1. 46. Where it appeared that the bankrupts fraudulently put into the bands of the de- fendant C. certain sums of money which C. invested in stocks after the adjudication of the bankrupts, at their request, the assignee, plaintiff, was decreed to be entitled to the stocks, and to a decree that C. vest in the plaintiff the title to the same, and pay the costs of suit. Hyde, Ass., v. Cohen et aL, 11 N. B. R. 461; Fed. Cas. 6,967. 47. A sale of the debtor's land on execu- tion and levy after the beginning of bank- ruptcy proceedings will not pass title against the assignee, although the judgment lien was created prior to the proceedings. Davis V. Anderson, 6 N. B. R. 146; Fed. Cas. 3,633. 48. Attachments made within four months of the commencement of proceedings in bankruptcy being dissolved, the property attached rests in the assignee. Bowman v. Harding, 4 N. B. R. 5. 49. In taking possession of the bankrupt's estate the assignee takes the place of a sher- iff or marshal, and, if the property would not be recoverable from a sheriff or mar- shaL it is not recoverable from him. Aiken V. Edrington, Sr., et aL, 15 N. B. E. 271; Fed. Cas. 111. 50. The equities of creditors of a bank- rupt, to whom property was fraudulently transferred before bankruptcy, and of cred- itors of the transferrer, are equaL and the assignee of the bankrupt cannot be required to surrender such property. Id. 5 1 . A bankrupt owned property which he had only partly paid for, and left the posses- sion and rent of it in the seller, \mder an agreement whereby the seller was to apply the rent to the reduction of the purchase- money. Held, this does not convey such an interest in the property back to the vendor as will prevent the full title from vesting in the assignee in bankruptcy. HaU v. Scovell, 10 N. B. E. 395; Fed. Cas. 5,945. 52. The bankrupt, immediately pre^vious to his bankruptcy, had a fee-simple in a street, subject to the pubUo easement, which street then terminated in a lake, but accre- tions now exist between the street and the lake shore. Sdd, that the interest of the bankrupt at the time of his decree in bank- ruptcy passed to the assignee, and by mesne conveyances came from him to the defend- ant, and that the right of accretion was a ESTATE, II, (a), (4). .187 "vested right and passed with it to the as- signee. Kinzie v. Winston, 4 N. B. E. 31; Fed. Cas. 7,835. 53. A judgment for deficiency under sale •of property under a mortgage is not a lien on the property so sold as against an assignee in bankruptcy who has redeemed the prop- ■erty by paying the amount bid at the sale with interest, etc. Lloyd, Ass. etc., v. Hoo X,ue et aL, 17 N. B. R. 170; 5 Sawy. 74; 1 San Fran. Law J. 393; Fed. Cas. 8,433. 54. Bankrupts owned license to occupy stalls in a market, which was revocable ait the will of the city, and its assignment gave the assignee no rights unless consented to by certain municipal officers. The bankrupts paid $4,000 for the license, and creditors had given bankrupts credit partly on ownership thereof. The city refused to recognize the rights of the assignee under general assign- ment, and on motion to compel bankrupts to transfer licensa to him, held, that motion should be granted and that license passed to assignee. In re Gallagher et al., 19 N. B. R 234; Fed. Cas. 5,197. (4) When Effective. 55. Upon the execution and delivery to the assignee by the register of the usual as- signment under section 14 of the act of 1867, "the title to the property and estate, both real iind personal, belonging to the bankrupt, vests in the assignee from the date of the ^filing of the petition, and no person but the assignee has any right to interfere with it; and to do 30 would be a contempt of the bankrupt court. In re Dole, 7 N. B. R 538; 7 West. Jur. 639; Fed. Cas. 3,965. 56. The appointment of an assignee under a decree in bankruptcy relates back to the commencement of the bankrupt proceed- ings, and the instrument required to be exe- cuted under the hand of the judge or regis- ter assigns and conveys to the assignee all the estate, real and personal, of the' bank- rupt, including equitable as well as legal rights and interests, and things in action as well as those in possession, which belonged to the debtor at the time the petition in bankruptcy was filed in the district court. Buchanan et al. v. Smith, 7 N. B. R 513; 16 Wall. 377. 57. The appointment of an assignee in bankruptcy relates back, and gives to him title to all the estate, real and personal, legal and equitable rights, interests and things in action which belong to the debtor on the prosecution of the petition. Smith v. Bu- chanan et al., 4 N. B. R 133; 3 Alb. Law J. 97; 8 Blatchf. 153; Fed. Cas. 13,016. 58. By the provisions of the bankrupt act (1867), the assignment relates back to the com- mencement of the proceedings in bankruptcy, and the title to all the property, both real and personal, shall vest in the assignee. In re Pierson, 10 N. B. R. 109; Fed. Cas. 11,153. 59. The title of an assignee generally re- lates back only to the commencement of proceedings in bankruptcy, but in case of transfers void as to him his title relates back to the time of such transfer. In re Biesenthal et al., 15 N. B. B. 228. 60. Title to all goods in the possession of the bankrupt at the date of filing his petition passes to the assignee, and goods subse- quently obtained from the bankrupt on a writ of replevin may be recovered by the assignee. In re Vogel, 3 N. B. E. 49; 7 Blatchf. 18; 1 Amer. Law T. Eep. Bankr. 170; 3 Amer. Law T. 154; Fed. Cas. 16,983. 61. The property of a bankrupt vests in his assignee as of the date of the commence- ment of proceedings, and no payment by or to him subsequent to that date is valid, even though made or received bona fide or with- out notice. This, however, applies only to transactions which took place prior to such date. Mays v. Mfg. Nat. Bank, 4 N. B. R 147. 62. An assignee Intakes the property in the same plight in which it was held by the bankrupt when his petition was filed. In re Wynne, 4 N. B. R 5; Chase, 337; 3 Amer. Law T. Eep. Bankr. 116; Fed. Cas. 18,117. 63. All the rights and the duties of the bankrupt in respect to whatever property, not expressly excluded from the operation of the bankruptcy act, he may hold under whatever title, whether legal or equitable, and however incumbered, pass to and de- volve upon the assignee at the date of the filing of the petition in bankruptcy. Id. 64. The fourteenth section of the bank- rupt act of 1867 vests the title to all the property, both real and personal, in the as- signee from the time of the commencement 188 ESTATE, II, (b). of the proceedings in the bankrupt court, except such property as is specially exempt from levy and sale by the laws of the state. Lumpkin v. Eason, 10 N. B. R. 549. 65. By the fourteenth section of the act of 1867, the title to all the property of the bank- rupt was, by operation of law, vested in the assignee from the time of the commencement of proceedings, and although the bankrupt's pi-operty was attached on mesne process w'ithin four months prior thereto, such pro- cess was dissolved, Morris v. Davidson, 11 N. B. E. 454. 66. An attachment was sued out within four months prior to institution of proceed- ings in bankruptcy. Plaintiffs claimed that their judgment operated as a lien on the property. Held, that there was no time at which the lien could attach, as the adjudica- tion dissolved the attachment and the deed of assignment related back and vested the title in the assignee as of the date of the fil- ing of the petition in bankruptcy (act of 1867). In re Badenheim et aL, 15 N. B. R. 370; Fed. Cas. 716. (b) Assignments. See Assignments; Commerciai Paper, 64. 67. Where an assignment is made for the benefit of creditors, the title to property so assigned vests in the common-law assignee imtil such assignment is set aside, and does not vest in the assignee in bankruptcy by the mere force of the adjudication and his ap- pointment as assignee. Belden, Ass. etc., v. Smith et al., 16 N. B. R..303; Fed. Cas. 1,342. 68. A general assignment for the benefit oE creditors was made, after which proceed- ings in bankruptcy were instituted, and as- signor was adjudged a bankrupt and an assignee appointed. Held, that the title to property assigned remained in the common- law assignee until that assignment was set aside, and did not vest in the assignee by the mere fact of the adjudication and his ap- pointment. Id. 69. After a general assignment for the benefit of creditors, without preference, a creditor recovered a judgment against the assignor, and docketed it in the county where debtor's real estate was situated. Held, that the judgment was not a cloud upon the title o* the land assigned. Id. 70. A bankrupt made an assignment to S., whose attorney was also attorney for the- bankrupt and for a Creditor, and payments were made by the attorney from the proceeds of the assigned estate to S. and the creditor. Held, that the assignment was void, and the attorney, S. and the creditor must deliver such estate or. the proceeds thereof to the assignee in bankruptcy. In re Meyer, 3 N, B. R. 187; 1 ChL Leg. News, 310; Fed. Cas. 9,515. 71. A. made a general assignment under the laws of New York. Afterward he was adjudicated an involuntary bankrupt. As- signee in bankruptcy brought an action against the assignee under the state law for possession of the property. Held, that the first assignment was valid, and the assignee could hold the property. Von Hein, Ass., v. Elkus et al., 15 N. B. E. 194; sec. 14 72. Debtors made a general assignment. Before proceedings in bankruptcy the sheriff levied upon the pi'operty. The bankrupt court permitted a sale, and the sheriff was directed to pay the proceeds to the assignee in bankruptcy, subject to the sheriff's lien, if any. The assignee under the general as- signment, before adjudication but after filing of petition in bankruptcy, began action of trespass against the sheriff. Judgment was rendered for the sheriff on the ground that the assignment was fraudulent as to credit- ors. Held, that the sheriff was entitled to the proceeds of the sale, and that the assignee in bankruptcy must claim under the volun- tary assignee. In re Biesenthal et aL, 18 N. B. R. 120. 73. A debtor made a voluntary assign- ment for the benefit of creditors more than three months prior to filing a petition in bankruptcy. Held, that the assignee in bankruptcy had no right to the possession of the property assigned. In re Kimball et al., 16 N. B. R. 188; Fed. Cas. 7,770. 74. A decree annulling a voluntary as- signment for equal benefit of aU creditors, made within six months of proceedings under which the debtor was adjudged a bankrupt, should contain a direction for a conveyance by the voluntary assignee, sur- rendering the estate to the assignee in bank- ruptcy. Burkholder et al. v. Stump, 4 N. B. R. 191; 8 Phila. 172; Fed. Cas. 3,165. 75. Title to real estate will not pass rmder ESTATE, 11, (c), (d). 189 an assignment of " all the goods, chattels and effects and properly of every kind, personal and mixed," of the assignor, for the benefit of his creditors. Rhoads v. Blatt, 16 N. B. E. 32. 76. Where under the New York state stat- ute a voluntary assignment was void as against creditors, but good as against the as- signor, there remains no leviable interest in the assignor. In re Croughwell, 17 N. B. R. 337; 9 Ben. 360; Fed. Cas. 3,440. 77. Six months prior to bankruptcy pro- ceedings the bankrupt made a voluntary assignment. The plaintiff was afterwards, and before filing of petition, appointed re- , ceiver in proceedings supplementary to exe- cution. In a suit against bankrupt, assignee in bankruptcy and voluntary assignee to set aside voluntary assignment as void, held, that property covered thereby was "property transferable to and vested in assignee; " and that all persons having an interest therein to be affected by decree were properly joined as defendants. Onley, etc. v. Tanner et aL, 19 N. B. R. 178; Fed. Cas. 10,506. 78. Prior to bankruptcy proceedings bank- rupt made a voluntary assignment to E., who took possession but failed to give bond. Under a provisional warrant the marshal took possession of property transferred to E. Subsequently R was removed and a new trustee appointed. On motion by trustee to vacate warrant, and for order directing mar- shal to deliver property to him, held, that provisional warrant did not authorize mar- shal to take possession, and that motion be granted on condition that trustee release marshal from damages, pay his fees and re- ceive property, provided he shall not dispose of it until reasonable time after appointment of assignee or termination of proceedings, except with approval of court. In re Mana- han, 19 N. B. R 65; Fed. Cas. 9,003. 79. A voluntary assignee is a mere repre- sentative of the assignor and takes his choses in action, not as purchaser for value, but subject to all the equities attaching to them. City Bank of Harrisburg v. Sherlock, 16 N. B. E. 63. (c) Collaterals. 80. The collaterals given by the bankrupt for a usurious loan cannot be recovered by the assignee unless he tender the amount actually loaned to the bankrupt. Wheelock, Ass. etc., V. Lee, 17 N. B. E. 568. 81. It is not a conversion to the pledgee to refuse to surrender the property to the as- signee unless the assignee redeems it, even if the pledgee does not prove his claim. Yeat- man v. New Orleans Saving Institution, 17 N.B.E.187; 95 U. S. 764. 82. Where by the articles of stockbrokers' association, a seat in it, in the event of in- solvency of the member, is required to be disposed of and the proceeds applied first ex- clusively to the payment of debts due other members, held, that the assignee - of the bankrupt broker is only entitled to the sur- plus after other members are paid in full. Hyde, Ass., v. Woods et al., 10 N. B. E. 54; 1 Amer. Law T. Rep. (N. S.) 354; 2 Sawy. 655; Fed. Cas. 6,975. (d) Creditors. See Claims, 65; Costs, etc., 17. 83. The claim of an assignee duly ap- pointed will prevail against a debtor who has made a payment to his creditor after the filing of the petition, notwithstanding it was made bona fide and without knowledge of the bankruptcy proceedings. Opinion of Atty. Gen., 9 N. B. R. 117. 84. A surety took a transfer of property from the principal, sold it, and vsdth part of the proceeds paid a creditor who had no knowledge as to the source of the money, but accepted it in discharge of the surety's obli- gation. Held, that the assignee of the prin- cipal could not recover the money from the creditor. Tyler, Ass. etc., v. Brook et al., 17 N. B. R. 339. 85. Where goods are obtained through a misrepresentation, by a firm composed of three members, a return of the goods or their proceeds to the creditor will be valid, as against the assignee of two of the partners, if the goods have not lost their identity, so as to form a part of the property of the bank- rupt. Montgomery, Ass., v. Bucyrus Machine Works, 14 N. B. E. 193; 93 U. S. 357. 86. By the terms of a composition the creditors were to receive seventy per cent, of their claims: but it was secretly agreed be- tween the debtor and one creditor that in consideration of the latter signing the composition, his composition note should be 190 ESTATE, II, (e), (f ). immediately discounted at fifty per cent, cash, which was done. Held, that the as- signee was entitled to recover the amount so paid with costs. Bean v. Amsink, 8 N. B. E. 328; 10 Blatchf. 361; Fed. Cas. 1,167. 87. Payments made by creditors to a bank- rupt after the filing of the petition in bank- ruptcy are invalid as against the assignee. In re Hayden, 7 N. B. R. 193; Fed. Cas. 6,357. 88. Where debtors told one of their cred- itors of their embarrassment and insolvency, for the purpose of protecting their surety, and better securing the collection of the debts by the prompt seizure of their prop- erty in execution, and the creditor imme- diately issued execution, held, that the as- signee was entitled to the property, or to the value of it. Vogle v. Lathrop, 4 N. B. R. 146; 3 Pittsb. Rep. 268; 18 Pittsb. Leg. J. 106; Fed. Cas. 16,985. 89. A creditor who obtains payment of his debt under a judgment, through the pas- sive non-resistance of the debtor, is not lia- ble to repay the money to the assignee. Henkelman et al. v. Smith, Ass., 12 N. B. R. 121. 90. Where the assignee has recovered against a preferred creditor, the creditor may prove his debt if he has not actually as- sisted in the fraud. In re Black et aL, 17 N. B. R. 899; E'ed. Cas. 1,459. 9 1 . A creditor will not be allowed, pending proceedings in the bankruptcy court, to ap- propriate property of the bankrupt exclu- sively to his debt. According to the spirit of section 14 of the act of 1867, the property of the bankrupt vests in the assignee for the benefit of creditors, and he has the same remedies they would have had to reach and subject it to the payment of the debts of the estate. Allen & Co. v. Montgomery et al., 10 N. B. R. 503. (e) Interest Under Wills. 92 . A will devised bonds to A., B. and C. and their heirs, and provided against alienation and that rents and profits be paid them by executors; in case of death of either A., B. or C. without lawful issue the share of such one to go to the survivors and heirs forever. At death of testator C. had several children liv- ing. Held, the remainder to issue of C. was vested and alienable and passed to a general assignee in bankruptcy during the life of C, Smith V. Scholtz et al„ 17 N. B. R. 530. 93. Where a will gives a trustee an abso- lute discretion, which he is not obliged to- exercise in favor of the bankrupt, the bank- rupt has not such an interest as his assignee can establish. Nichols, Ass., v. Eaton et al.^ 13 N. B. R. 431: 91 U. S. 716. 94. A testatrix made a devise to her son, to cease on his being adjudged a bankrupt. He became bankrupt, and his assignee- brought a bill to subject the income devised to his administration. Held, that the limita- tion on the devise was valid. Id. 95. A provision in a will devising land to a wife for life, with remainder to her hus- band in fee, that the property so devised shall in no wise be liable for the payment of the debts of the husband, is limited by and applies only during the life of the wife. In re Myriok, 3 N. B. R. 38; Fed. Cas. 10,000. (f) Leases cmd Rents. See Rent, 13, 96. Where under state laws the landlord has a lien for rent, the same will be upheld in a bankruptcy court, and the assignee must take title subject thereto. The landlord wUl be entitled to prove his claim for the unex- pired term of a lease beyond one year, even though he has been preferred under a state law, for his rent up to the end of the year. InreWynne,4N.B.R.5; Chase, 237; 3Amer. Law T. Rep. Bankr. 116; Fed. Cas. 18,117. 97.. A. made a lease for a term of years of a hotel owned by him and assigned the lease to a creditor to secure a debt due. After- ward A. became bankrupt. Held, that the- assignee must take the estate subject to the lease, and that the law will recognize the as- signment and protect the creditor as to his rights in the leased property, there being no preference involved in the transfer. Meador et al. V. Everett, Ass., 10 N. B. R 421 ; 8 Dill. 314; 1 Cent. Law J. 453; Fed. Cas. 9,376. 98. A lease executed by the bankrupt prior to the bankruptcy and not recorded, and which is free from fraud as to the cred- itors of the bankrupt, is valid as against the assignee, though he had no notice of it. Gos& V. Coffin, 17 N. B. R. 333. 99. Where a judgment was a lien on a ESTATE, II, (g). 191 bankrupt's lands, and an assignee was ap- pointed after judgment on a petition filed also after judgment, the rents and profits of the land go to the assignee and not to a re- ceiver of the court where the judgment was had, who was appointed after the filing of the petition. Conover et al. v. Dumahaut et aL, 17 N. B. R. 558. (g) Mortgages. See Mortgages, 45, 80, 135, 139. 100. Where a mortgage was executed just prior to institution of proceedings in bank- ruptcy, but in pursuance of a parol agree- ment of several months before, such mort- gage was held valid against the assignee. Burdiok, Ass. etc., v. Jackson et aL, 15 N. B. R 318. 101. A petition was filed against an in- solvent more thain two months after making a mortgage, but within two months of the filing of the same. The state registry law provided that the mortgage was not " good and effectual in law to hold such lands against any other person but the grantor and his heirs only " without record. The assignee brought an action to set aside the conveyance. ILAd, that the transfer was not complete until the instrument was recorded, and should be set aside. Bostwick, Ass., v. Foster, 18 N. B. E. 133; 14 Blatohf, 436; Fed. Cas. 1,683. 102. A suit was brought on a mortgage by the assignees of the mortgagee. Defend- ant pleaded an executory contract with the mortgagor by which the mortgage, then held as collateral security by a third party, should be redeemed. The assignees had redeemed the mortgage, and defendant alleged that they held it in the same way as the bank- rupt would have held it. Seld, that it was an asset in their hands for the benefit of gen- eral creditors. McLean et aL, Ass., v. Cad- walader, 15 N. B. R. 383. 103. The assignee takes the property of the bankrupt subject to all equities and liens (other than certain attachments) as held by him; and a mortgage which, under state law, was valid as between the bankrupt and his grantees, though not recorded, must be held valid between the bankrupt's trustee and ' them. Potter et aL v. Coggeshall, 4 N. B. E. 19; Fed. Cas. 11,333. 104. Where a mortgagor was declared bankrupt and his rights of property were- vested in the assignee, who conveyed by deed,, it vested in the purchassr such title as the bankrupt had at the date of the decree de- claring him a bankrupt. Cleveland Ins. Co. V. Eeed, 34 How. 384 105. Defendants took possession of goods- of the bankrupt, some months before com- mencement of proceedings, under a mort- gage, and converted them to their own use.. , The assignee brought an action of trover.. Held, he could not recover. Jones v. Miller, Ass. etc., 17 N. B. E. 316; 1 N. J. Law J. 113;: Fed. Cas. 7,483. 106. A mortgage of personal property being, under the laws of the state (Wiscon- sin), ineffectual to pass after-acquired prop- erty, the assignee in bankruptcy is entitled to such property as against the mortgagee.- In re Eldridge, 4 N. B. E. 163; 3 Biss. 863;; 3 Chi. Leg. News, 177; Fed. Cas. 4,330. 107. A. gives to B. a chattel mortgage- and bill of sale which, under the state stat- ute of frauds, are void except between the- parties thereto. Held, the assignee may re- cover the property, or the value thereof, from the mortgagee who took possession. Edmon- son V. Hyde, 7 N. B. E. 1; 3 Sawy. 305; 5- Amer. Law T. Eep. (U. S. Cts.) 380; Fed. Cas.- 4,385. 108. A bankrupt executed a chattel mort- gage August 13, which was not recorded till November 39. Bankruptcy proceedings were- instituted December 13. In suit against as- signee in bankruptcy, held, that where, under a state law, chattel mortgages are void as to- all creditors who became such between the giving and recording of mortgage, the dis- trict court will adopt such construction and hold the mortgage void as to the assignee of mortgagor where debts were contracted after execution of the mortgage. In re Oli- ver & Young, 19 N. B. E. 391 ; Fed. Cas. 10,493. 109. Bankrupt, in March, gave a chattel mortgage for $80,000 to secure payment of amount due, and for future consignments.. Said mortgage was not filed, and on August 14 was assigned to W., who gave his note- for $30,000. W. had not means to pay said, notes unless mortgaged property were worth nearly amount paid for it. At time of as- signment bankrupt was insolvent. W. filei mortgage August 15, foreclosed it, and pur- 192 ESTATE, II, (h), (i). chased property for $13,000. On same day- bankrupt leased the property to W., who carried on business in name of bankrupt's £on. Bankrupt made a general assignment. August 31 petition -was filed by creditors and bankrupt adjudicated. In suit by assignee, held, that while mortgage was not fraudu- lent preference under bankrupt law, it was void under state laws. Piatt v. Preston et al., 19 N. B. R. 341; Fed. Gas. 11,219. 110. The mere retention and use of per- sonal property until default is a different thing from the retention of possession ac- companied with a power to dispose of it for the benefit of the mortgagor alone. Robin- eon et al. V. Elliott, Ass., 11 N. B. R. 553; 22 Wall 513. 111. An assignee redeemed certain real estate with general funds at the request of subsequent incumbrancers. After the sale of the real estate it was held that the general fund should be reimbursed out of the pro- ceeds of the sale. In re Longfellow et al., 17 N. B. R 27; 2 Hask. 221; Fed. Gas. 8,486. (h) Sights of Action. 112. Rights of action for torts to debtor's person do not pass to the assignee. Wright, etc. V. Bank, 18 N. B. R. 87; 18 Alb. Law J. 115; 10 Ghi. Leg. News, 348; 6 Reporter, 229; 26 Pittsb. Leg. J. 11; Fed. Gas. 18,078. 113. If one to defraud his creditors con- veys, when in failing circumstances, his prop- erty to another having knowledge of the facts, and is afterward adjudged bankrupt, the transaction is void and the title vests in the assignee as soon as he is appointed, and ' he may sue to recover possession. Bolander V. Gentry, 2 N. B. R. 256 (8 vo. ed.). 114. An assignee may recover property that has been transferred in fraud of the bankrupt act by the bankrupt, even though the property be in the hands of a subsequent purchaser, with notice only that a legal ad- vantage had been taken. Harrell v. BeaU, 9 N. B. R.49; 17 Wall. 590. 115. A suit brought for fraudulently rec- ommending a person as worthy of trust and confidence is not a claim that passes to the assignee. In re Crockett, 2 N. B. R. 20 <8 vo. ed.). 116. On petition to vacate a discharge. held, that a cause of action ex delicto is not within the description of assets which pass to the assignee under Revised Statutes, section 5056. In re Brick, 19 N. B. R. 508. 117. A right of action for a mere per- sonal injury does not pass to the assignea If the assignee does not intervene, a pending action may be prosecuted in the name of the bankrupt. Noonan v. Orton, 12 N. B. R. 405. 118. An action for the malicious abuse of the garnishee process is an action for a per- sonal injury, and does not pass to the as- signee. Id. 1 1 9. A naked averment that the assignee's title was fraudulently concealed from him by the bankrupt, and by the bankrupt's fraud- ulent grantees for more than two years after the assignee's title accrued, wiU not avoid the operation of the bankrupt law. It should, at least, be averred that the assignee used due diligence in attempting to discover property, and was baffled in the attempt; but it is a question whether even such averment would save the right of action. Andrews, Ass. etc., V. Dole et al., 11 N. B. R. 852; Fed. Gas. 378. 120. Where one recovers a judgment prior to being adjudged a bankrupt, which judg- ment, after the adjudication and the convey- ance to the assignee, is amended to slightly increase the amount, the original judgment and the cause of action thereon pass to the assignee, subject to all the rights of the bank- rupt to have it corrected. Zantzinger v. Rib- ble, Ass., 4 N. B. R 724 (8 vo. ed.). 121. Rights to property fraudulently trans- f ei-red pass to the assignee in bankruptcy, and the bankrupt's creditor cannot assert them in his own name. Trimble v. Woodhead, 102 U. S. 647. (i) State Oov/rts, Executions hy Sheriff, etc. 122. The United States district court has no authority to order property to be taken out of the hands of the sheriff, who holds by virtue of an execution issued upon a judg- ment obtained in a state court, and the lien under the execution is prima facie valid; and until the writ is set aside for fraud or violation of the 'bankrupt law, the assignee cannot have possession before satisfaction of ESTATE, II, (j). 193 such judgment. In re Shuey, 9 N. B. R. 526; 6 Chi. Leg. News, S48; Fed. Cas. 13,831. 123. Liens by attachment or execution obtained in the state courts prior to proceed- ings in bankruptcy take preference to as- signee's claims, unless an intent to evade the bankrupt act is shown. Appleton v. Bowles et al., 9 N. B. R. 354. 124. An assignee in bankruptcy may sue in a state covirt for the enforcement of any right vested in him by the bankrupt act, as for the recovery of property transferred in fraud ' of that act within the six months prior to -commencement of proceedings. Cook v. Waters et aL, 9 N. B. E. 155. 125. When at the time bankruptcy pro- ceedings are instituted property is in the Jiands of the sheriff, under attachments is- sued out of the state courts, the assignee should apply to the state and not the fed- eral courts to obtain possession. Johnson v. Bishop, 8 N. B, E. 533; 21 Pittsb. Leg. J. 77; Fed. Cas. 7,373. 126. The possession of goods by a sheriflE obtained by an execution on final judgment levied prior to proceedings in bankruptcy cannot be disturbed by an assignee, he being entitled only to the balance remaining in the sheriff's hands after satisfaction of his exe- cution. Marshall v, Knox et al., 8 N. B. R. 97; 16 Wall. 551. 127. Where an attachment was issued against Y. within four months preceding the commencement of proceedings in bank- ruptcy against him, and served on defend- ants as debtors of T., and pending the bank- ruptcy proceedings a general judgment was recovered in said action, and an execution issued, and the defendants paid to the sheriff the amount of their indebtedness, held, that euoh payment was voluntary and did not discharge their obligation to the bankrupt or his assignee. Duffield, Ass etc., v. Horton et al., 19 N. B. E. 13. 128. More than four months prior to bank- ruptcy proceedings, deputy sheriff, having writs of attachment against bankrupt, took receipts for property without taking posses- sion. Assignee found property in bankrupt's possession and took it. Held, that deputy sheriff's proceedings created no lien upon property as against bankruptcy proceedings. In re Ashley, 19 N. B. E. 337; Fed. Cas. 581. 18 129. A. purchased at sheriff's sale, after proceedings commenced in bankruptcy, the levy having been made prior thereto, and the judgments under which the sale took place were afterwards declared void as in fraud of the act. Held, purchaser acquires a good title nevertheless. Zahm v. Fry et al., 9 N. B. E. 546; 10 Phila. 348; 31 Leg. Int. 197; 21 Pittsb. Leg. J. 155; Fed. Cas. 18,198. 130. Upon filing his petition a debtor be- comes eo instante a bankrupt and the prop- erty named in his inventory is in the custody of the court, so that creditors to whom a sheriff, having subsequently taken such prop- erty into his possession under process of re- plevin from a state court, had delivered the same, will be required to deliver it or pay the value thereof, if sold, to the assignee. In re Vogel, 2 N. B. E. 138; 1 Chi. Leg. News, 310; Fed. Cas. 16,988. 131. A state court having appointed a re- ceiver on a creditor's bill, prior to the com- mencement of the proceedings in bank- ruptcy, it will not, on a mere motion, direct the delivery of the property to the assignee. Freeman et al., Trust., v. Fort et aL, 14 N. B. R;46. 132. After it is shown that the defendant has been declared a bankrupt, the court is bound to take judicial notice that ilU his property and effects were vested, by opera- tion of law, in the assignee. Morris v. David- son, 11 N. B. E. 454. 133. Property in the hands of an assignee in bankruptcy, that may be payable to any creditor, is not subject to attachment against such creditor. Jackson v. Miller, 9 N. B. E. 143. (j) Sidts hy and Agamst Assignee. See Attachment, 16, 37, 43, 56. 134. An assignee in bankruptcy may pros- ecute an action in trover for the recovery of property unlawfully and fraudulently trans- ferred by the bankrupt. Foster, Ass., v. Hackley, 3 N. B. E. 131; 3 Amer. Law T. Eep. Bankr. 8 ; 1 Chi. Leg. News, 137 ; Fed. Cas. 4,971. 135. Sales of property void imder a state statute of frauds are also void under the bankrupt law, and an assignee in bankruptcy is authorized to pursue property thus at- tempted to be transferred, and, as auxiliary 194 ESTATE, II, (j). to its recoveiy, to ask that the sales by the bankrupt be annulled. Massey et al. v. Allen, 7N. B. R401; 17 Wall 351. 136. The right of recovery of property transferred by an insolvent given by section 35 of the bankrupt act of 1867 to the assignee is not a penalty, but has its operation in the vesting of the title in the assignee after the transfer is declared void. Cook v. Waters et aL, 9 N. B. R. 153. 137. Where the subject-matter of an ac- tion passes to the assignee, he has the elec- tion whether or not to prosecute it ; and in the event of his refusal to do so, it must be dis- missed. Towle V. Davenport, 16 N. B. R. 478. 138. An action of tort was brought by the assignee to recover a sum of money al- leged to have been paid by the bankrupt in fraud of the bankrupt act. Three payments were shown to have been made to a cred- itor, two for debts and one for engaging counsel, shortly before the adjudication jn bankruptcy. The jury found for the plaint- iff. The defendant alleged exceptions, relate ing mainly to the examination of witnesses. The exceptions were overruled. Goodrich v. Wilson, 14 N. B. R. 555. 139. Defendant bought from bankrupt, shortly before commencement of proceed- ings, certain goods. The sale was made by the bankrupt with evident intent to defraud creditors. In an action by the assignee to recover for the goods it was held the burden of proof was on the plaintiff to show guilty collusion on part of defendants. Dickinson V. Adams, 17 N. B. R. 380; 4 Sawy. 257; Fed. Cas. 3,896. 140. Where an assignee has filed a bUl in equity to redeem certaiu real estate, a subse- quent incumbrancer cannot redeem and ac- quire complete title. In re Longfellow, 17 N. B. R. 37; 2 Hask. 231; Fed. Cas. 8,486. 141. Where an assignee filed a bill in equity to redeem certain real estate, a subse- quent incumbrancer claimed the right to re- deem and acquire complete titla Held, that he could not maintain it. Id. 142. Where creditors' biUs were filed and a receiver appointed who obtained possession of the property of the debtor, an assignee in bankruptcy has no right to the property thus secured by law to the payment of debts of judgment creditors. Sedgwick, Ass., v. Minck et al., 1 N. B. R. 204; 6 Blatchf. 156; Fed. Cas^ 13,616. 143. A judgment having been obtained before bankruptcy proceedings, execution/ was issued subsequent to such proceedings and debtor's land sold. Upon equity pro- ceedings to set aside the conveyance, heldr purchaser cannot hold against assignea Davis V. Anderson, 6 N. B. R. 146; Fed. Cas. 8,623. 144. After proceedings in bankruptcy, defendant paid to the sheriff the amount of judgment recovered against the bankrupt," and attached in his hands, by an attachment issued within four months of commencement of proceedings in bankruptcy. Defendant had no knowledge of the bankruptcy until after the payment. Held, that defendant was not relieved of his liability to the as- signee. DuflBeld et aL, Ass., v. Horton et aL,. 16 N. B. R. 59. 145. B. stored a certain quantity of wheat in A,'s elevator and took a receipt which he- transferred to C. C. had no knowledge of A.'s insolvency. A. becoming bankrupt, his assignee sued C. for money due by C. to A. Held, the receipt could be set off against the assignee's claim. McCabe, Ass. etc., v. Win. ship, 17 N. B. R. 113; Fed. Cas. 8,668. 146. A sheriff levied upon property by virtue of an order to sell under a mortgage foreclosure suit before the debtor filed his- petition in bankruptcy, but the sale was made after that time. The assignee sought to set aside the sale and to restrain the debtor. Held, petition refused. Goddard v. Weaver, 6 N. B. R. 440; 1 Woods, 257; Fed. Cas. 5,495. 147. A broker purchased from another broker shares of stock, the transfer and pay- ment to be made the next day. Payment was made, but the stock was not transferred and thereupon the vendor failed, but upon the request of the vendee, who knew of the failure, gave a certificate of certain of the shares with power of attorney to make the transfer and procured debtor to transfer the remainder. Suit was brought by the as- signee to recover the stock. Bill dismissed. Sparhawk et aL, Ass., v. Richards & Thomp- son, 13 N. B. R. 74; 1 Wkly. Notes Cas. 510;. FetL Cas. 18,205. 148. A manufacturer who agrees to fur- nish goods of his manufacture to another at ESTATE, II, (j). 195 a fixed price, the latter to pay all freight, storage and charges, and to make a quarterly settlement for aU goods sold by him within that time, is not entitled to recover the pro- ceeds of goods sold under such agreement by the bankrupt, from his assignee. Such an agreement creates the relation of vendor and vendee, and not that of principal and agent or factor. In re Linforth et al., 16 N. B. R. 435; 4 Sawy. 370; 1 San Fran. Law J. 199; Fed. Cas. 8,369. 149. An insurance firm secured a loan for the bankrupt, and he left a portion of the money to pay premiums of insurance to the amount of $30,000, which he was to take out in the company which the firm represented. This money was left, and the insurance was to be procured as a compensation to the firm for obtaining the loan. Half the amount was furnished, and half the fund was ap^ plied to the payment of the premium, but no other insurance was furnished. The assignee sought to recover the balance. ELeld, that a recovery could not be had, as the firm had a vested interest. Newcomb v. Launtz, Ass., 18 N. B. R 376. 150. A bankrupt held shares in a bank, on which the bank claimed a, lien, under its by-laws, as security for a debt of the bank- rupt. The bank refused to give the certifi- cate of stock- to the assignee, and he brought an action to recover the value of the same, alleging that the by-law was void. Eeld, that the assignee cannot maintain the ac- tion, as, im.der the banking law, the bank could not hold the title, and a judgment for conversion would vest the title in the bank. Meyers, Ass., v. VaUey Bank, 18 N. B. E. 34; Fed. Cas. 9,515. 151. Upon suit by assignee, court set aside certain conveyances by bankrupt as fraudulent. M., one of the defendants in said suit, claimed reimbursement for im- provements and moneys advanced to reduce incumbrances. Held that, having purchased the property with notice of the fraud, his claim would not be allowed. In re Mead, 19 N. B. R. 81 ; 2 N. J. Law J. 26 ; Fed. Cas. 9,365. 153, An assignee in bankruptcy brought an action to recover double the amount of usurious interest paid by the bankrupt, basing the action on section 30 of the act of 1867. Defendant demurred on ground that the as- signee had no legal capacity to prosecute the action. Held, that the claim was one which would pass to the assignee and he could sue on it. Wright, etc. v. Bank of Greensburg, 18 N. B. E. 87; 8 Biss. 343; 18 Alb. Law J. 115; 10 Chi. Leg. News, 348; 26 Pittsb. Leg. J. 11; Fed. Cas. 18,078. 153. Property which had been levied on by the sheriff was by him delivered to the marshal in response to a demand for the bankrupt's property made in execution of a warrant issued by the bankrupt court. Held, that the judgment creditor had not a right of action for wrongful taking and conversion against the assignee. Ansonia Brass & Cop- per Co. V. Pratt, Ass. etc., 16 N. B. E. 170. 154. Assignee more than two years after cause of action accrued sued to recover an ordinary debt due by the defendant to the bankrupt before bankruptcy. Held, that the limitation of two years provided by section 3 (act of 1867), only applied where the pro- ceeding was plenary, and he could recover. Smith V. Crawford, 9 N. B. E. 38; 6 Ben. 497; Fed. Cas. 13,030. 155. Under warrant marshal seized goods in possession of D. & O. under claim of title by purchase from employees of bankrupt. Goods were delivered -to assignee and sold. D. & O. sued marshal and recovered judg- ment. Price paid by parties who held goods came to C. & Co., to whom bankrupt was in- debted under circumstances tending to show that C. & Co. and L. had conspired to effect fraudulent sale for purpose of using pro- ceeds to pay debt of bankrupts to C. & Co. Held, that although transaction might be fraudulent as to creditors and assignee, bill for accounting and payment of proceeds would not lie against C. & Co., L. and D. .& O., as assignee showed no legal injury to him by fraud, his possession for benefit of es- tate being undisputed. Smith, Ass., v. Claflin et al., 19 N. B. E. 523; Fed. Cas. 13,036. 156. Where a claim to property in the hands of the assignee is set up and the as- signee denies the validity of the claim and asserts title to be in himself, as property of the bankrupt, held, that the claimant could not proceed by a summary petition. Hurst V. Teft, Ass., 13 N. B. E. 108; 13 Blatchf. 217; Fed. Cas. 6,939. 157. Where a party lays claim to a cer- tain fund, the possession of the depository is his possession, provided his claim is just and 196 ESTATE, n, (k). III, (a). legal, and the assignee, in order to get posses- sion and control, must proceed by a suit at law or in equity, as provided in the third clause of the second section of the act of 1867. Smith V. Mason, 6 N. B. R 1; 14 Wall. 419. 158. Property transferred by a bankrupt to a creditor within four months preceding adjudication cannot be recovered by the as- signee in the absence of proof that a prefer- ence or fraud on the act was intended. Wadsworth, Ass., v. Tyler, 3 N. B. R. 101; 3 Amer. Law T. Rep. Bankr. 28; 1 Chi. Leg. News, 139; Fed. Cas. 17,033. (k) Trust Projp&rty. See Equitt, 11. 159. No property or choses in action held by a bankrupt in a fiduciary capacity passes to the assignee. In re Bank of Madison, 9 N. B. R. 184; 5 Biss. 515; Fed. Cas. 890. 160. If an appointor should exercise a power of appointment, even for the benefit of a stranger, then, according to an unbroken current of authority, the whole estate ap- pointed would be liable in equity for his debts. Jones, Ass., v. Clifton, 18 N. B. R. 125; 17 Amer. Law Reg. $Sr. S.) 713; 6 Reporter, 334; 7 Cent. Law J. 89; Fed. Cas. 7,457. 161. A power of appointmient vested in one who, until the execution of the power, has the title to the property, does not pass to an assignee of the person in whom the power resides. Grandies v. Cochrane, 113 U. S. 344. 162. Property held in trust merely, by a bankrupt, does not pass to his assignee, but if he has an interest, or if his trust be coupled with an interest, the assignee in bankruptcy is vested with such interest. Walker, Ass., V. Seigel & Bott et aL, 13 N. B. R. 394; 2 Cent. Law J. 508; Fed. Cas. 17,085. 163. Where a sum is deposited in trust, the income of which is to be applied to the support of cestui que trust and his wife, and for the maintenance and education of their children, the annuity and principal sum being declared to be inalienable by the grantees, and not subject to their debts or control, suchincome does not pass to an assignee in bankruptcy, nor can the court decree an aliquot part to the assignee. Durant, Ass., V. Massachusetts Hospital Life Ins. Co., 16 N. B. E. 334; 3 Lowell, 575; Fed. Cas. 4,188. III. Bankeupts. (a) Bcmlffi"wpt''8 Title in General. 164. Action was commenced to recover personal property wrongfully taken and de- tained, after which defendant was adjudged a bankrupt. Held, the decree adjudging a man a bankrupt does not have the effect of depriving him of the title to his property. Sutherland v. Davis, 10 N. B. R. 424 165. The title to property remains in the bankrupt until the trustee or assignee is duly appointed and qualified and the convey- ance or assignment has been made to him. Id. 166. Under the act of 1867, in voluntary petitions in bankruptcy, the right of the bankrupt to the disposition of his property ceases on the filing of the petition, and in involuntary petitions such right ceases upon the adjudication. In re Dillard, 9 N. B. R. 8; 3 Hughes, 190; Fed. Cas. 3,913. 167. Prior to the assignment authorized and directed by the bankrupt act, the title of the estate belonging to the debtor, both real and personal, remains unchanged, ex- cept that the debtor or any other person may be restrained from disposing of it. Hampton et al. V. Rouse, 11 N. B. R 473; 13 Waa 187. 168. Bankrupt occupied premises until conveyance was made by assignee to pur- chaser. After purchaser had perfected title it was agreed that the bankrupt should va- cate on subsequently specified day. This he did not do. On petition by assignee for de- livery of possession, held, that bankrupt was holding as tenant under purchaser and not under assignee. In re Hale, 19 N. B. R 330; Fed. Cas. 5,912. 169. Until an assignee is appointed the legal title to the assets is in the bankrupt, and it is the duty of the bankrupt to bring suit for the protection and preservation of the property. Lansing v. Manton, 14 N. B. R 137; 3 N. Y. Wkly. Dig. 113; Fed. Cas. 8,077. 170. Where the subject-matter of an ac- tion commenced by a bankrupt before bank- ruptcy does not pass to the assignee, the former has the right to prosecute it without interference from the latter. Towle v. Daven- port. 16 N. B. R 478. 171. The bankrupt act does not forbid one, knowing liimself to be insolvent, exchanging or selling his property or otherwise disposing ESTATE, III, (b), (c). 197 of it at any time previous to the filing of the petition, provided such disposition leaves his efetate in as good condition as formerly. Cook et al. V. TuUis, 9 N. B. R 483; 18 "Wall. 332. 172. Six months after the discharge of a bankrupt his assets were sold by the assignee, the purchaser afterwards selling them to the bankrupt. Held, that the bankrupt was en- titled to use funds acquired subsequent to his discharge in the purchase of his own as- sets. Phelps, Ass., V. McDonald et al.^ 16 N. B. R 317. 173. Debtor was arrested under a warrant issued pursuant to the provisions of a state law for fraudulently conveying his property prior to the passage of the bankrupt act. De- fendant moved to quash the warrant on the ground that, before it was issued, he had applied for a discharge under the bankrupt law, proceedings on which were then pend- ing. Held, that the title to the property fraudulently conveyed should be regarded as vested in the assignee and the motion to quash granted. Goodwin v. Sharkey, 3 N. B. R138. (b) JExemptions. See Exemptions, 10, 70. 174. A husband has a right to invest the value of a homestead interest into premises to which others hold the legal title, or into an undivided part interest in land. John- son, Ass., V. May et aL, 16 N. B. R 425; Fed. Cas. 7,897. 175. When an equity of redemption in property is worth more than the exemption allowed by law, the assignee may sell the property and pay the bankrupt the amount of the exemption, unless the situation of the property is such that a homestead can be set apart without injury to the rest of the estate. In re Poleman, 9 N. B. R 376; 5 Biss. 526; Fed. Cas. 11,347. 176. Suit was brought by a bankrupt on a promissory note assigned to him as part of his exemption. Held, that the title to the note was in the plaintiff and he could bring the suit. Henley v. Lanier, 15 N. B. R. 280. 177. Moneys arising from sale, pendente lite, of property attached, represent the prop- erty. Moneys arising from sale of household furniture, sold under process of attachment, belong to the bankrupt. In re Ellis, 1 N. B. R 154; Fed. Cas. 4,400. (c) Assets, Minds, Panjitmnts, etc. See Composition, 32, 46, 147, 149. 178. A debtor, against whom a petition in bankruptcy was filed, had represented to his creditoi-s just previously that he held certain notes. He afterwards swore that he had sold them and spent the money before the in- junction was served on him. The evidence indicated that he was endeavoring to de- fraud the creditors. Held, that he must pay over the money or be in- contempt. In re Kempner, 6 N. B. E. 521; Fed. Cas. "7,689. 179. It is contempt for an involuntary bankrupt to refuse or neglect to pay to the assignee a sum returned in his inventory of effects as " cash on hand." In re Dresser, 3 N. B. R 138; Fed. Cas. 4,077. 180. A conveyance of lands for the pur- pose of protecting the same from sale for the benefit of creditors of the grantor is valid as between the grantor and grantee, and vests a valid title and estate thereto in the vendee which would pass to his assignee in bank- ruptcy, and a failure to include the same in the schedules constitutes a concealment thereof. In re O'Banrion, 2 N. B. R 6; Fed. Cas. 10,394. 181. Debtors upon filing their petition and being adjudicated bankrupts must surrender all the assets to the register, notwithstand- ing there may be a prospect of settlement with their creditors. In re Shafer et al., 2 N. B. R178; 1 Chi. Leg. News, 326; Fed. Cas. 12,694. 182. Where a debtor who is utterly insolv- ent, and with no reasonable prospect of being able to pay his debts, fails to apply for the benefits of the act, but passively permits cred- itors to appropriate all his assets to pay their debts, his assignee can recover said moneys. Hyde v. Corrigan, 9 N. B. R 466; Fed. Cas. 6,968. 183. A bankrupt failed to schedule a judg- ment among his assets, because " it had never occurred to him to place it there," and be- cause he considered it worthless. Held, not to constitute false swearing. In re Winsor, 16 N. B. R 152; 9 Chi. Leg. News, 402; 3'Cin. Law Bui. 212; Fed. Cas. 17,885. 184. Assets "means all the property of every name, kind and nature chargeable with debts of the bankrupt that come into 198 ESTATE, III, (d). the hands of, and under the control of, the assignee in bankruptcy by reason of the said property having ever been owned by and in the possession of the said bankrupt." In re Taggert, 16 N. B. E. 351; Fed. Cas. 13,725. 185. The word " assets," as used in section 83, means money received by the assignee, and not the appraised value of the estate which may come into his hands (1867). In re Van Riper, 6 N. B. E. 573; Fed. Cas. 16,874 186. The term "assets," in section 33 of the act of 1867 and the amendment of 1868, means gross assets, and not the sum left for distribution after deducting costs and ex- penses. In re Kahley, 6 N. B. E. 189; 3 Biss. 169; 4 Chi. Leg. News, 131; 5 Amer. Law T. Eep. 175; Fed. Cas. 7,594 187. A bankrupt had charge of and con- ducted in his own name the business of an- other, taking half of the net profits as his compensation. It was held that his right to the net profits was not property to be re- ported as assets. In re Beardsley, 1 N. B. E. 121; 1 Amer. Law T. Eep. Bankr. 94; Fed. Cas. 1,184 188. Payments made to a debtor after a petition in bankruptcy has been filed, with a view of defeating the bankrupt act in any of its essential requirements, are void, and the person by whom such payments are made can be held to answer for the original demand of the assignee, whose title relates back to the date of the commencement of proceedings in bankruptcy. Babbitt v. Burgess, 7 N. B. E. 561; 2 Dia 169;' 5 Chi Leg. News, 326; Fed. Cas. 693. 1 8 9 . A petition was filed to compel a bank- rupt to pay to the assignee pertain moneys alleged to have been collected by him just before and just after the filing of the petition in bankruptcy. Held, that he would be com- pelled to pay such moneys to the assignee. In re Ettinger, 18 N. B. E. 223; Fed. Cas. 4,543. 190. Assignee of a voluntary bankrupt paid out the greater portion of the assets which came into his hands to judgment creditors who had perfected judgment and issued execution before the petition in bank- ruptcy was filed. On application for dis- charge, hdd, that the money so paid out should be included in the computation to ascertain what per cent, the assets were of the gross indebtedness. In re Taggart, 16 N. B. E. 351; Fed. Cas. 13,735. 191. Payments to creditors who have re- covered judgment and issued execution be- fore the commencement of proceedings in bankruptcy are to be included in the assets of a voluntary bankrupt, in the computation to determine this per cent, of assets. Id. 192. Where limitation has ceased and di- vision made of estate, the bankrupt taking his share in fee, such land is liable to bank- rupt's debts, though contrary to stipulation in instrument by which he takes it. In re Myrick, 3 N. B. R. 38; Fed. Cas. 10,000. (d) Pwrohasers a/nd Thwd Pa/rUes. 193. Goods purchased of a person who be- comes insolvent belong to the purchaser if he have no •knowledge of the insolvency of the seller and such transaction is not in the nature of a preference. Brooke, Ass., v. Sorog- gins, 11 N. B. E. 359; Fed. Cas. 1,936. 194. A contract for the conditional de- livery of goods to a debtor gives his credit- ors no title to them until the account for the same has been paid. Sawyer et aL v. Turpin et al., 5 N. B. E. 339; 3 Lowell, 39; Fed. Cas. 12,410. 195. Where a bankrupt agreed to build an engine and afterward notified the intend- ing purchasers that it had been completed and forwarded, whereupon they paid for it, the fact being that the engine did not exist, but one was afterward built and in the pos- session of the bankrupt at the time of the bankruptcy, title thereto passes to the pur- chasers by estoppeL Eockf ord v. Eock Island Co., 3 N. B. E. 50 (8 vo. ed.); 1 Lowell, 345; Fed. Cas. 11,978. 196. Title to land was claimed by the plaintiff, as part of the assets of a bankrupt sold to the plaintiff's grantor. The defend- ants claimed title under a quitclaim deed ex- ecuted by the bankrupt, and contended that they had no actual notice of the plaintiff's title, as the deed of the register in bank- ruptcy to the assignee had not been duly acknowledged and recorded. Judgment was rendered for plaintiflE, and was affirmed on appeal. Brady v. Otis et al., 14 N. B. E. 345. 197. Although an assignment be not duly acknowledged or recorded, yet it is valid, as against a party who takes title from the bankrupt, after the' commencement of the proceedings in bankruptcy, with full notice thereof. Id. ESTATE, III, (e), IV. 199 198. Bankrupt purchased hides with taoney furnished by claimant under an agree- ment by which the hides were to be manu- factured into leather by the former for the latter, the money being remitted by draft, «,nd a portion of the hides, concerning which the litigation arose, was purchased with the proceeds of drafts which the claimant re- fused to accept. Held, that the title to the goods was in the claimant. Sailord et al. v. Burgess, Ass., 16 N. B. R. 402; Fed. Cas. 13,213. 199. It is not necessary, in the purchase ■of goods by an agent, that he give in pay- ment for them the identical money received from the principal, in order to vest the title in the latter. Id. 200. Agent purchased goods for his prin- cipal, paying for them by checks on his gen- ■eral bank account. Principal remitted by •drafts, which agent deposited in bank and had credited to his general account. Held, that the title to the' goods was in the prin- cipal. Id. 201. A second purchaser, who had knowl- edge of the bankrupt's failure, and that the seller held the goods under mortgage from the bankrupt, does not get a good title. To constitute a bona fide purchaser for value, he must not only show that he had no notice, but he must have paid a considei-ation, at the time of the transfer, either in money or other property, or by a surrender of existing debts or securities. Eeson v. Knapp, 4 N. B. E. 114; 1 Dili 186; Fed. Cas. 11,861. 202. When informed of sufficient facts to put a prudent man on inquiry, a second pur- chaser takes the risk of the title of the first. Walbrun et aL v. Babbitt, Ass., 9 N. B. R. 1; 16 Waa 577. will be proved, will, upon proper petition, b© paid to the bankrupt. In re Hoyt, 3 N. B. E. 13; Fed. Cas. 6,806. 205. Where A. & B. conveyed part of their land to C, reserving the use of an alley so long as they should " continue to own " the part retained, held, that proceedings in bankruptcy, which were afterwards ar- ranged, and the property reconveyed to A. & B. by the assignee, did not terminate A.'s ownership of the land in the sense meant by said reservation, and consequently A. 'slight to the use of said alley is not lost thereby. Colie V. Jamison, 13 N. B. E. 1. 206. After appointment of an assignee, and he had entered on his duties, a composi- tion was accepted and confirmed. Assignee called a meeting of creditors and gave no- tice that he would apply for a settlement of his account and discharge from liability. Held, that upon confirmation of composition creditors ceased to have any interest in es- tate, and it became duty of assignee to pay balance in his hands to bankrupts. In re August et aL, 19 N. B. E. 161; Fed. Cas. 645. lY. COEPOEATIONS. See CoEPOEATiosrs, 32. (e) Ultwiaie Title of Bomkrupt. 203. After satisfying valid claims the es- tate of the bankrupt belongs to him, and a conveyance to him alleged to be fraudulent against creditors will not be set aside at suit •of the assignee, if it appears that no debts •exist that are provable against the estate. Nicholas, Ass., v. Murray, 18 N. B. E 469; 5 «awy. 320; Fed. Cas. 10,223. 204. Amounts remaining in the hands of the assignee, after discharge of a bankrupt against whose estate no debts were proved, and there is reasonable cause to believe none I 207. An assignee of corporate stock who has caused it to be transferred to himself on the books of the company and holds it as col- lateral security for a debt due from his as- signor is liable for unpaid balances therein to the company, or to the creditors of the company after it has become bankrupt. Pull- man V. Upton, Ass. etc., 17 N. B. E. 489; 96 U. S. 328. 208. The assignee of one creditor of a cor- poration cannot maintain an action against one stockholder to recover the full amount of his debt, without regard to the other cred- itors or the ability of the other stockholders to respond, where the charter provides that stockholders are " bound respectively for all the debts of the bank in proportion to their stock holden therein." Pollard v. Bailey, Ass., 11 N. B. E. 376; 20 Wall. 520. 209. Stockholders are liable in bankruptcy to the assignee for their respective amounts unpaid on their stock. Wilbur, Ass., v. Stock- holders, 18 N. B. E. 178; 13 Phila. 479; 35 Leg., Int. 346; 26 Pittsb. Leg. J. 15; Fed. Cas. 17,636. 200 ESTATE, V-VIl 210. The assignee of a bankrupt company- is entitled to recover against a transferee of stock, but not where the transferee does not accept the stock. Id. 211. Twenty bonds were held by a bailee, in escrow, for a corporation which became bankrupt after having sold, and received pay- ment for six of the bonds. The assignee claimed the bonds as against the vendee. Held that, the bonds being all alike, the vendee was entitled to them. Hamilton, Ass., v. Bank, 18 N. B. E. 97; 3 DilL 230; Fed. Cas. 5,987. V. Claims Against the Goveenment. 212. A claim against the government for property of a bankrupt destroyed "during the war " wiU pass to his assignee. Phelps, Ass., V. McDonald et aL, 16 N. B. R. 317. 213. A claim against the United States in favor of a British subject residing in this country passes to his assignee in bankruptcy. Id. 214. Claims for unlawful seizure of prop- erty by a foreign government pass to the as- signee. Clark V. Clark, 17 How. 315. 215. K, a bankrupt, had a claim against the United States for cotton seized by the military forces of the United States during the war of the rebellion. Held, that the act of congress of February 26, 1853, relating to assignment of demands against the govern- ment, did not embrace a transfer of title by operation of law. Erwin v. United States, 19N.B.R. 173; 97 U. S. 392. 216. E. had a claim against the United States for cotton seized by military forces of United States during war of rebellion. Upon E. becoming bankrupt, held, that such claim passed to the assignee in bankruptcy. Id. 217. Bankrupt included in his schedule of assets a claim against the government for cotton destroyed during the war. Held, that the claim passed to the assignee. Phelps, Ass., V. McDonald et aL, 16 N. B. E. 217. 218. One item in a schedule of assets was : " Claim against Gen. Osborne of the U. S. A. and others, for burning, in Jan. and Feb. 1865, from 1,000 to 2,000 bales of my cotton in Ark. and La»" Held to be a statement that the claim was against the government. Id. 219. A bankrupt, a British subject, held a claim against the United States for cotton burned during the war, which was marked on his schedule as worthless, and was sold for §20 to W., who purchased it at request of and with money furnished by the bankrupt. Held, that the claim passed to assignee. Phelps, Ass. etc., v. McDonald et aL, 19 N. B, E. 187; 99 U. S. 298. YI. Insueance. 220. An adjudication of bankruptcy ter- minates the interest of the bankrupt in any policy of insurance, and the policy is thence- forth void and of no effect; but an insurance company may consent to continue their lia- bility by the usual transfer of the policy to the register in charge of the bankruptcy pro- ceedings until an assignee shall have been appointed, and may also transfer said policy to the assignee when appointed. In re Carow, 4 N. B. R. 178; 41 How. Pr. 113; Fed. Cas. 3,426. 221. Where a bankrupt was at time of adjudication the owner of a dwelling cov- ered by a policy of insurance providing that "if the title to the property is transferred or changed this policy shall be void," and "if without the written consent of the company this policy be assigned it shall be void," and the building was destroyed by fire after the transfer to the assignee, held, that such trans- fer being by operation of law did not avoid the policy, and that the assignee is entitled, to recover the insurance money. Stark- weather V. Cleveland Ins. Co., 4 N. B. R 110;. 3 Chi. Leg. News, 77; 28 Leg. Int. 36; 10 Amer. Law Reg. (N. S.) 333; 5 Amer. Law Rev. 568;. Fed. Cas. 13,308. 222. An underwriter entitled to a right of compensation under an abandonment be- coming bankrupt, this right passes to his as- signee under the law. Comegys v. Vasse, 1 Wheat. 193. VII. Money (Tunds). 223. Proceedings to attach funde in hand* of assignee. Held, that such funds were not sub j act to garnishment. In re Cunningham,. 19 N. B. E. 276; 30 Alb. Law J. 257; Fed. Cas. 3,478. 224. Funds in the hands of an assignee- ESTATE, VIL 201' are liable to taxation by the state. In re Mitchel, 16 N. B. E. 536; 17 Alb. Law J. 26; Fed. Cas. 9,658. 225. Where a surplus fund remains in the hands of the state court that is claimed by judgment liens antedating the commence- ment of proceedings in bankruptcy, the good faith or validity of which are proven, the fund will be distributed to them, and not turned over to the assignee in bankruptcy. Biddle's Appeal, 9 N. B. R. 144 226. A debtor who pays the money under an order of his creditor to a third party, with the intent thereby to enable his creditor to give a preference to such third party, will be deemed to still hold it, and the assignee may sue him for its recovery. Fox et aL v. Gard- ner, 12 N. B. R 137; 21 WaU. 475. 227. On petition of creditors to compel bankrupt to pay certain moneys to assignee, held, that all money and property in hands of bankrupt at time of filing petition, which he is using and holding as his own, passes to assignee, and he cannot set up in defense to claim of assignee title in third person merely to hold it himself. In re Moses, 19 N. B. E. 412; Fed. Cas. 9,870. 228. A trustee under a private assign- ment had received a certain amount, which he deposited with his own money in his own name. Finding himself insolvent, he with- drew the money and deposited it as trustee. Two months afterwards he was adjudged bankrupt. The assignee petitioned to have the money declared to be assets for the gen- eral creditors. The motion was denied, a prescribed mode of settlement being ordered. Ex parte Hobbs, 14 N. B. R. 495; 2 Lowell, 491; Fed. Cas. 6,549. 229. The title to the money in the bank, upon the presentation of a check by the payee thereof, is superior to the banker's lien for maturing paper, and will pass to. and may be enforced by the assignee in bankruptcy of the payee. Fourth Nat. Bank of Chicago v. City Nat. Bank of Grand Rapids. Mich., 10 N. B. R.44 230. W. bought of a banker, afterward bankrupt, a check on his New York bank. The check was not presented for payment ujitil after bankruptcy of the drawer, when payment was refused. Held, that the funds in the New York bank passed to the assignee J of the bankrupt and W. was not entitled t* priority of payment. In re Smith, 15 N. B. E. 459; 2 Cin. Law BuL 119; Fed. Cas. 12,990. 231. A firm, having a deposit in a bank, were adjudicated bankrupts. Subsequently a creditor recovered judgment against them and procured an order restraining the bank from making any disposition of any property belonging to the bankrupts. The assignee sued the bank, and the court held that the petition in bankruptcy having been filed be- fore the judgment was obtained the assignee could recover. Morris, Ass., v. First Nat. Bank of N. Y., 15 N. B. E. 381. 232. Where a firm which is insolvent makes a loan through an agent after their failure, and the lender, immediately after learning of the failure, makes effort to re- claim the package of notes in the agent's hands, and before the money reaches the firm title to it is disclaimed by a member of the firm and by him placed in a bank to the credit of the lender, the title to money does not pass from the lender, nor is the assignee of such firm entitled to recover it from the bank. Purviance v. Union National Bank, 8 N. B. E. 447; 30 Leg. Int. 353; 31 Pittsb. Leg. J. 33 j Fed. Cas. 11,475. 233. A. deposited money in bank and im- mediately drew a check against it in pay- ment of a draft for the amoimt drawn by the bank on New York. The banker knew that for ten days the New York bank had refused to honor his drafts, and at the time he re- ceived the money he was arranging an assign- . ment for the benefit of his creditors. Held, that the title to the money passed to the bank and that A. was only entitled to share pro rata with the other creditors. In re King, 8 N. B. E, 385. 234. Assignees of a bankrupt brought an action against a bank to recover a sum al- leged to have been in possession of the bank at the date of the adjudication. Said sum, in pursuance of an agreement between the bank and the bankrujit previous to adjudir cation, had been carried by the bank to a special account as security against bills, not yet at maturity, drawn by the bankrupt and discounted by the bank. Held, that the action failed, since by the contract the sum claimed formed no part of the bankrupt's estate, but was rightly in possession of the S02 ESTATE, Vin. bank at the time of the action. Chartered Bank of India v. Evans et al. (Bng.), 4 N. B. E. 46. 235. Where A. and B. placed with D. money to be invested in trust for their bene- fit, and D. failed to invest it but used it in speculations, afterwards becoming bankrupt, and A. and B. petitioned to have the as- signee ordered to refund the money, held, that while no trust property is allowed to pass from the bankrupt to the assignee, it must be property that can be followed or dis- tinguished; and where the property does not remain in specie, but has been made way with by the trustee, the cestuis que trust must come in pari passu with the other creditors and prove against the trustee's es- tate for the amount due them. In re Fane- way, 4 N. B. R. 36.- 236. The sheriff, having made a levy and sale of the property of the bankrupt after the title has passed to the assignee, depos- ited the proceeds wifkthe judgment creditor {a bank) and received a certificate of deposit instead of a receipt. Held, bank liable to the assignee for the amount. Traders' Nat. Bank V. Campbell, 6 N. B. E. 353; 14 Wall 87. ' 237. Where an assignee has received money from the bankrupt, or as the latter's right, it is subject to every equity to which it was subject in the bankrupt's hands; but where he has recovered it in spite of the bankrupt's efforts to part with it, it will be free for distribution anaong the creditors generally. White v. Jones, 6 N. B. E. 175 ; 29 Leg. Int. 835; Fed. Cas. 17,550. VIII. Paetneeships. See Paetnees, VII, IX, XII, 57, 58, 77-79, 98- 103, 126; Claims, 126. 238. The bankrupt law provides that in case members of partnerships are declared bankrupts, the estates of the individual mem- bers, as well as the partnei'ship estate, must be settled in the bankrupt court. Atkinson v. Kellogg, 10 N. B. E. 535; 7 Chi. Leg. News, 8; Fed. Cas. 613. 239. To determine the respective rights of an assignee and third parties in real es- tate purchased by a bankrupt, and such par- ties under an agreement to furnish the out- lay and share in the profit and loss equally, the partnership transactions up to the insti- tution of proceedings in bankruptcy should be adjusted, and the exact interest of the bankrupt and each of his partners be ascer- tained. Thrall v. Crampton, Ass. etc., 16 N. B. E 261; 9 Ben. 318; Fed. Cas. 14,008. 240. An assignee of a bankrupt firm takes by the assignment all the property of the firm and of the individual members thereof, even though part of the property may be out of the district in which the bankrupts reside, and owned in part by the partners not joined in bankruptcy proceedings. In re Leland, 5 N. B. R. 323; 5 Ben. 168; Fed. Cas. 8,228. 241. Under a separate commission of bankruptcy against one partner only, his in- terest in the joint funds and private property passed to the assignee, and this interest is subject to the claim of the copartners (act of 1800). Harrison v. Sterry, 5 Cranch, 289. 242. An assignee in bankruptcy of an in- dividual jDartner cannot recover property transferred by a retiring partner to the bank- rupt and by him assigned to a third person. In re Shepard, 3 N. B. E. 42; 3 Ben. 347; Fed, ^ Cas. 13,754 243. Where a member of a firm builds a house on property belonging to him individ- ually, with material belonging to the firm, which is indebted to him, the house is a part of the realty and does not pass to the assignee in bankruptcy of the firm to any greater ex- tent than for any excess in value over the exemption allowed by law to the copartner- ship. In re Parks and Parks, 9 N. B. R. 370; Fed. Cas. 10,765. 244. Where a firm is dissolved, and one member retains the stock and continues business, adding new stock, so that the en- tire stock cannot be distinguished, and botli former partners are adjudged bankrupts, and the assignee of the one continuing business takes possession of the entire stock and sells the same, such assets must be regarded as belonging to such member's individual es- tate, and liable first to his individual debts and then to the partnership debts. In re Montgomery, 8 N. B. R. 429 (8 vo. ed.); 8 Ben. 065; Fed. Cas. 9,727. 245. In a schedule of assets, real estate held by members of a, firm as tenants in com- mon was classified as partnership assets. Held, that such classification did not convert ESTATE, VIII. 203 the separate property of the individual part- ners into firm property. In re Zug, 16 N. B. R. 280; 33 Int. Eev. Rec. 393; 34 Leg. Int. 403; ^5 Pittsb. Leg. J. 39; Fed. Cas. 18,333. 246. In bankruptcy, joint and separate estates are considered as distinct estates. A joint creditor, having security on the sepa- rate estate, may prove against the joint es- tate without relinquishing his security, may prove bis. whole claim against both estates and receive a dividend for each, but so as not to receive more than the full amount of his debt from both sources. In re Howard •et aL, 4 N. B. E. 185; Fed. Cas. 6,750. 247. By " separate estate," in the meaning of the bankrupt act, is meant that property in which each partner is separately inter- ested to the exclusion of other partners at the time of the bankruptcy. In re Lowe and Richards, 11 N. B. R. 331; Fed. Cas. 8,564. 248. Where a surviving partner is ad- judged a bankrupt, as such and as an indi- vidual, his assignee is entitled to the partner- ship assets. In re Temple, 17 N. B. R. 345; 4 Sawy. 93; Fed. Cas. 13,835. 249. A bankrupt partner's share in the joint estate wiU vest in the assignee though the firm is not declared bankrupt. Wilkins V. Davis, 15 N. B. R 60; 3 LoweU, 511; Fed. €as. 17,664. 250. Pending proceedings to declare A. and B. individually and as a firm bankrupts, defendant acquired by purchase under dif- ferent executions the separate interests of both partners in the firm. Held, that he only acquired an interest in such assets as re- mained after the firm's partnership debts were paid. Osborne v. McBride, 16 N. B. R. «3; 3 Sawy. 590; Fed. Cas. 10,593. 251. One member of a firm withdrew moneys therefrom for his private purposesj but such withdrawal was not fraudulent as against his copartners. Held, that the as- signee of the firm cannot prove therefor against the separate estate of such partner, «ven if firm estate was known to be insolvent at the time, and withdrawal was made with knowledge of insolvency. In re May et al., 19 N. B. R. 101; Fed. Cas. 9,338. 252. Bankrupt was the general partner of a limited partnership, the capital of which was furnished by a special partner, who re- ceived seventy-five per cent, of the profits, and contracted to bear the losses in the same proportion. The contract also provided that the special partner should lose no more than his capital, and interest thereon, and the amount of profits received by him. Assignee in bankruptcy sued him to recover the amount of profits received by him. Held, that the assignee could recover. Wilkins v. Davis, 15 N. B. R. 60; 2 Lowell, 611; Fed. Cas. 17,664. 253. The partnership property of A. & B. was divided, each agreeing to pay the firm debts applicable to the property he took. A. sold an interest to C. The firm of A. & C. contracted debts and became bankrupt, be- fore which certain property of A. & C. was attached for a debt due by the firm of A. & B. on the property taken by A. Held, that the assignee of A. & C. had a right to the property attached, that it should be sold, paying first the creditors of the firm of A. & C. Whatever surplus A. should be entitled to should be subject to attachment. Crane, Ass. etc., V. Morrison et al., 17 N. B. R. 393; 4 Sawy. 138; Fed. Cas. 3,355. 254. Certain partnership real estate was conveyed to A., one of the partners, individu- ally, and was used in carrying on the firm business, and while being so tised A. con- veyed to the remaining partner, his heirs and assigns, one-fifth part of it. Both deeds were recorded. On sale by assignee in bank- ruptcy, held, that the partners were tenants in common in proportion to their shares, and that the proceeds of the sale were assets of the individual members of the firm. In re Zug et al., 16 N. B. R. 380; 23 Int. Rev.. Rec. 393; 34 Leg. Int. 403; 35 Pittsb. Leg. J. 29; Fed. Cas. 18,333. 255. An assignee of a firm may recover property transferred by one partner in vio- lation of the bankrupt act. The amend- ment of June 33, 1874, does not affect the rights of the assignee where the adjudication was made before that time. An assignment by one partner of his individual estate for the equal benefit of his individual creditors first, and the excess, if any, to be paid to his partnership creditors, falls under section 5120 of the Revised Statutes and may be set aside at any time within six months. Bamewell & Gaynor, Ass., v. Jones, Dunn & Crawford, 14 N. B. R. 378; Fed. Cas. 1,037. 256. E. conveyed property in fraud of creditors, and afterwards creditors of firm 204 ESTATE, IX of E. & C. obtained judgments against said firm and docketed them ; then firm and mem- bers were adjudged bankrupts and assignee brought suit against grantee in fraudulent conveyance to have same set aside and ob- tained decree, whereupon property was sold by assignee, free from liens, and proceeds brought into court. Held, that lien of judg- ments did not attach, and proceeds are sep- arate estate of E., and must be first equally applied to payment of his separate creditors. In re Estes & Carter, 19 N. B. R. 480; Fed. Cas. 4,536. IX. Peefeeences. See Peepekences, 81, 93. 257. Where an arrangement exists be- tween two banks by which one acts as the agent of the other for clearing-house pur- poses, the payment by the former to the lat- ter on the day of the former's failure of the amount of the latter's deposits is a prefer- ence, and the amount so paid may be re- covered by the assignee in bankruptcy of the insolvent bank. Phelan, Ass. etc., v. Iron Mountain Bank, 16 N. B. E. 308; 4 DilL 88; 5 Cent. Law J. 351; Fed. Cas. 11,069. 258. The assignee in bankruptcy of two members of a firm consisting of three co- partners cannot recover a preference given by the firm to a firm creditor. Withrow v. Fowler, 7 N. B. R. 389; Pac. Law Rep. 103; 6 Alb. Law J. 422; Fed. Cas. 17.919. 259. A bankrupt who, within four months of the filing of a petition in bankruptcy, allows his property to be seized on execution by a creditor who has reasonable cause to believe his debtor is insolvent, gives an ille- gal preference to such creditor, and the value of the property so seized can be recovered from the creditor by the assignee. Christman V. Haynes, 8 N. B. R. 538; Fed. Cas. 2,703. 260. Six months and two days prior to filing a petition for voluntary bankruptcy, a debtoi? made an assignment of all his prop- erty to an alleged creditor with a view of giving him a preference, the alleged creditor knowing the debtor to be insolvent and that a fraud was intended. Held, that the as- signee should recover the amount of the prop- erty so transferred from the transferee. Hyde V. Sontag & Eldridge, 8 N. B. R. 225; 1 Sawy. 249; Fed. Cas. 6,974. 261. Where a bankrupt has allowed his property to be taken on legel process, with intent to give a preference, the assignee should resort to suit at law or biU in equity to obtain possession, and not proceed by sum- mary petition and order to show cause. In re-Ballou, 3 N. B. R. 177; 4 Ben. 135; Fed. Cas. 818. 262. A debtor, to obtain an extension of time, executed to his creditor a chattel mort- gage of nearly all his property. On failure to receive payment, creditor took posses- sion and sold the property, and subsequently debtor filed a petition and was adjudged a bankrupt. Held, that the mortgage was void, being a preference, and that the as- signee was entitled to recover from the mort- gagee the value of the property taken and sold. In re Driggs, Ass., v. Moore, Foote & Co., 8 N. B. R. 149; 1 Abb. U. S. 440; Fed. Cas. 4,083. 263. An insolvent debtor, who gives his note with a warrant of attorney to confess judgment thereon to a creditor, gives a pref- erence to such creditor, whether it is so in- tended or not; and, if the creditor has rea- sonable cause to believe the debtor insolvent, and, on a judgment entered, causes property of the debtor to be sold and receives the pro- ceeds, he is liable to the assignee for the amount received. Campbell, Ass., v. Trad- ers' Nat. Bank, 3 N. B. R 124; 2 Chi Leg. News, 148; 1 Md. Law Rep. 169; 2 Biss. 433; Fed. Cas. 2,370. 264. A creditor who claims a preference which is contested by others is not eligible to be named as one of the committee to wind up the affairs. In re Stuyvesant Bank, 6 N, B. R. 273; 5 Ben. 506; Fed. Cas. 13,581. 265. An assignee in bankruptcy can re- cover from a creditor the value of goods and notes transferred to him by the debtor withia six weeks of the filing of a petition. North V. House, 6 N. B. R. 365; Fed. Cas. 10,310. 266. A. transferred property to B. with a view of giving a preference, and B. sold a por- tion of it to C. A. being adjudged bankrupt, the marshal, under a warrant to seize his property, took possession of that sold by B. to C. On petition by C. for an order returning the property to him, held, that the marshal had authority to take it. In re Briggs, 3 N. B. R. 157; 2 ChL Leg. News, 218; Fed. Cas. 1,869. ESTATE, X 205 X. Pkooeeds. 267. A sheriff seized, on mesne attach- ment, and sold as perishable, the property of a bankrupt, within four months prior to com- mencement of proceedings in bankruptcy, and thereafter paid the money to the execu- tion creditor in satisfaction of judgment ob- tained and execution issued on the debt for the security of which the attachment was issued, neld, liable to pay again to assignee in bankruptcy, notwithstanding ignorance, on his part, of bankruptcy proceedings. Mil- ler V. O'Brien, 9 N. B. E. 36; 9 Blatchf. 370; 31 Pittsb. Leg. J. 82; Fed. Cas. 9,586. 268. The net proceeds of the sale of the property of a bankrupt on a legal process suffered by the bankrupt will be ordered to be paid by the sheriff to the assignee in bank- ruptcy, when it appears that the creditor had reasonable cause to believe that the firm was insolvent. In re Black et al., 1 N. B. E. 81 ; 3 Ben. 196; 1 Amer. Law T. Eep. Bankr. 39; Fed. Cas. 1,457. 269. Assignee in bankruptcy brought an action to recover proceeds under sale of a quantity of lumber, the property of bankrupt, made by defendants, under a chattel mort- gage alleged to be fraudulent, in that, by agreement of parties, mortgagor contiiiued in bvisiness of selling lumber of said stock, using the proceeds in his business. Meld, that assignee had a right of action, although none of the creditors has acquired a specific lien. Southard, Ass. etc., v. Benner et al., 19 N. B. R. 124. 270. The proceeds of sale of mortgaged property in the possession of a state court, not brought there by final process to enforce the mortgage lien, must be paid over to the assignee in bankruptcy of the mortgagor, and the mortgagee must go into the bank- rupt court and assert his lien there. Morris V. Davidson, 11 N. B. R. 454. ' 271. Where the security of a creditor is reduced to money, the assignee is entitled to any surplus over and above the amount nec- essary to liquidate the debt. In re Newland, •9 N. B. E. 62; 7 Ben. 63; 3 Ins. Law J. 860, «95; 4 Bigelow, Ins. Cas. 283; Fed. Cas. 10,171. 272. The assignee, in a judgment ob- tained in the federal court on which execu- tion issued and under which the marshal sold, is entitled to the proceeds of the sale, although that judgment, execution and levy under it were subsequent to a judgment exe- cution and levy of proceeds from a state court. In re Jordan, 3 N. B. E. 45; Fed. Cas. 7,513. 273. A consignor whose property was sold prior to the bankruptcy and the pro- ceeds mingled with the general assets has no lien or specific claim against the estate. He can only share it with the other credit- ors. In re Coan & Ten Broeke Carriage Mfg. Co., 13 N. B. E. 203; 6 Biss. 315; 7 Chi. Leg. News, 260; Fed. Cas. 3,915. 274. Where the bankrupt under a gen- eral contract has rendered partial service, biit has not completed the contract prior to the filing of the petition in bankruptcy, but subsequently fulfills the same, unless the con- tract for payment was contingent upon full performance of the services, the compensa- tion will be apportioned between the as- signee and the bankrupt in proportion to the value of the services rendered before and after bankruptcy. In re Jones, 4 N. B. E. 114; Fed. Cas. 7,448. 275. Certain goods were sent from New York to San Francisco by the owners. Three weeks thereafter proceedings in bankruptcy were instituted against said owners,. who were adjudged bankrupts. An attachment was issued against the goods and they were sold. The assignee in bankruptcy brought suit in the state court for the recovery of the pro- ceeds, and judgment was rendered for the plaintiff. Dambniann v. White et al., 13 N. B. E. 438. 276. Certain debtors owed numerous cred- itors, and within four months prior to bank- ruptcy proceedings a creditoi', knowing their condition, prevailed u^jon them to convey the property to a third person, who paid them, the money being at once turned over to the said creditor in satisfaction of all demands. The debtors were to retain possession and sell the goods on commission. To permit this arrangement, another creditor, the father of the debtors, released his claim. The debtors were then ejected by the third person on writ of replevin. On suit by assignee, held he should recover the amount of the goods with interest. On appeal, decree affirmed. Michaels et al. v. Post, Ass,, 13 N. B. E. 153; 31 WaU. 398. 206 ESTATE, XI, XIL XI. Peopeety of TniED Paetie8. 277. Assignees must surrender to owners property found in the possession of the bank- rupt, but belonging to others. In re Noakes, 1 N. B. R. 164; Bankr. Ct. Eep. 163; Fed. Cas. 10,281. 278. A. bought and paid for certain goods which remained in the hands of the vendor and passed to the assignee when the vendor became bankrupt, upon A.'s petition for the delivery of the goods. Held, that as A. paid a full and fair price for the goods, his prayer must be granted. In re Pusey, 7 N. B. R. 45; Fed. Cas. 11,478. 279. A debtor, shortly before filing his petition in bankruptcy, purchased a quantity of carpets. The vendor, fearing the debtor did not intend to pay, brought replevin and the shferifE took possession. The bankrupt bonded them back and they came into the hands of the assignee. The parties applied to the register, asking that the goods be held by the assignee to await the determination of ownership. Upon certification it was held that, where the title is in dispute, application must be made to the court by petition, but otherwise the register may dispose of it. In re Graves, 1 N. B. R. 19; 3 Ben. 100; Fed. Cas. 5,709. 280. Defendant, a United States marshal, seized goods as the property of L. & O., bank- rupts. Said goods had been sold and trans- ferred to plaintiffs before bankruptcy pro- ceedings. Defendant justified under war- rant issued under Revised Statutes, section 5024. Held, that Revised Statutes, section 5024, which provides for issuing of provis- ional warrant, relates to property which be- longs to bankrupt and such as is in his pos- session and luider his control, and does not embrace property belonging to or in posses- sion of another person, which such person claims to own, or in regard to which a dis- pute exists, even if it is alleged that such prop- erty has been transferred in violation of the act. Doyle et al. v. Sharpe, etc., 19 N. B. R. 144 XII. Peopebtt in Which Wife Has AN- InTEEEST. See Married Woman, 31, 231. The assignee at biw has a right to the chose in action of the wife, and the law reduces it into his possession. The bankrupt law gives over all that the husband had, or could dispose of, to the assignee. The prop- erty is vested by law in them, and the ques- tion of survivorship is laid aside by the bank- ruptcy. In re Boyd, 5 N. B. E. 199; 2 Hughes, 349; Fed. Cas. 1,745. 282. The statutory trust of creditors in real estate held by the wife of a debtor, who was subsequently adjudicated a bankrupts inures as assets to the assignee when said es- tate was purchased by the bankrupt prior to bankruptcy, and was paid for with his own money in fraud of his creditors. In re Mey- ers, 1 N. B. R. 163; 3 Ben. 424; Fed. Cas. 9,518. 283. If a husband receives money from his wife and invests it in realty in her name, until he accumulates property of consider- able value by his skill and energy, the prop- erty is liable to his assignee in bankruptcy. Muirhead, Ass. etc., v. Aldridge et aL, 14 N. B. R. 249; 3 N. Y. Wkly. Dig. 480; 33 Leg. Int. 313; Fed. Cas. 9,904. 284. A conveyance by a partner in a firm,, doing a large but failing business, to his wife, of real estate, purchased by the withdrawal of more than a third of the partner's share in the capital, is void, and the assignee in bankruptcy is entitled to the proceeds of such property. Phipps et al. v. Sedgwick, Ass. etc., 10 N. B. R. 64; 95 U. S. 3. 285. A husband not being insolvent or in contemplation of bankruptcy allowed his^ wife to expend the proceeds of two notes belonging to him in the improvement of her separate estate, and afterwards becoming in- solvent was adjudicated a bankrupt. Held, that his interest thereby acquired in his wife's estate was too jemote to pass to his assignee, and he was not guilty of conceal- ment of his estate in failing to report such interest in his schedules. In re Wyatt, 2 N. B. R. 94; 1 ChL Leg. News, 107; Fed. Cas. 18,108. 286. The power of revocation and ap- pointment to other uses reserved to the hus- band in a deed to his wife for her separate use is not an interest in the propexiy which passes to his assignee, nor does it render void a deed otherwise valid as against the assignee. Jones v. Clifton, 101 U. S. 22.5. 287. In explanation of a deficit in his as- sets, a bankrupt stated that his wife had money which she kept in the house, and had never been invested, the profits of business- ESTATE, XH 207 which he alleged she had conducted on her own account; and after bankruptcy, bank- rupt had gone into business as the profes- sional agent of his wife. Seld, that the bank- rupt should pay over to the assignee the amount of the deficit. In re Peltasohn et aL, 16 N. B. R. 265; 4 Dill. 107; 10 Chi. Leg. News, 9; Fed. Cas. 10,913. 288. Bankrupt, several years before bank- ruptcy and when solvent, procured convey- ance of real estate to be made to wife. Within four months preceding bankruptcy, husband and wife conveyed to creditor of latter, and consideration was credited on debt due grantee from husband. Held, that property was not subject to general debts of bankrupt. Stewart v. Piatt, Ass. etc., 19 N. B. E. 347; 101 U. S. 731. 289. Real estate was conveyed to A. and his wife to be held in entirety. A.'s wife ob- tained a decree in divorce pending proceed- ings in bankruptcy. Held, that if the effect of the divorce was to transform the tenancy to a tenancy in common, A.'s interest was a new acquisition which could not be claimed by his assignee. In re Benson, 16 N. B. R. 377; 8 Biss. 116; Fed. Cas. 1,328. 290. Where there has been no consum- mated conversion by the bankrupt of his wife's separate estate, the assignee cannot get the legal title without coming into a competent court and obtaining a decree for its conveyance to him; and such court will then decree according to the equity of the case. The same rule applies where the con- version has been consummated by fraud. In re CampbeU, 17 N. B. R. 4; 3 Hughes, 276; Fed. Cas. 2,348. 291. Assignee applied to court to have property of R.'s wife delivered to him as assignee of R, who is bankrupt and hope- lessly insolvent, attempting to show, but sub- mitting no proof, that she held the property in her name as cloak over and against her husband's creditors. Application denied. In re Briggs, Ass., v. Russell and Russell, 3 N. B. R. 39; 1 CM. Leg. News, 353; 3 Amer. Law T. 206; 1 Amer. Law T. Rep. Bankr. 160; Fed. Cas. 4,084 292. A gift by a bankrupt to his wife be- fore adjudication and not in contemplation of insolvency, of funds which were used in improving the separate estate of the wife. does not vest him with such an interest therein as would pass to his assignee and 4eed not be set forth in his schedules. In re Wyatt, 2 N. B. R. 94; 1 Chi. Leg. News, 107 j Fed. Cas. 18,106. 293. Under the laws of Michigan of 1844,. if a married woman consent to the purchase of property by her husband in his name, with means earned by herself after marriage, she cannot thereafter reclaim the property as against his creditors, whose debts accrued while the property was held by him. Keat- ing V. Keefer, 5 N. B. R. 133; 4 Amer. Law T. 162; 1 Amer. Law T. Rep. Bankr. 266; Fed. Cas. 7,635. 294. A wife executed a mortgage on her realty to secure a loan. The money was used by her husband to pay his debts, and th& amount used exceeded the amount he would be entitled to by the curtesy. Afterward husband and wife united in a general assign- ment of all the husband's property, but ex- pressly reserving that of the wife. The wife died and her realty was sold and a sum real- ized greater than the incumbrances. The as- signees claimed the residue as the husband's curtesy. Held, that the heirs or representa- tives of the wife were entitled to the fund. Shippen and Robbins' Appeal, 15 N. B. R. 553.. 295. A settlement of a large amount of property upon his wife was made by a mem- ber of a firm whose nominal assets exceeded' the liabilities by two-ninths. The firm dis- solved and the settler and another member- formed a new copartnership and continued the business, furnishing no new capital. They failed two years later. The executor sold the property and lost the money in a business transaction. The assignee sought to- reach the property. Held, the settlement was invalid, and the assignee was entitled to pos- session of a mortgage representing a portion of the selling price, but he could have nO' judgment against the estate for the balance. Trust Co. V. Sedgewick, 18 N. B. R. 340. 296. When free from debt and not con- templating bankruptcy, a bankrupt, without the intervention of a trustee, made a con- veyance to his wife of certain lands free from his control to her separate use. In the- deeds he reserved to himself a power of rev- ocation, in whole or in part, by express terms, and also the power to appoint to any 208 ESTATE, XIII — ESTOPPEL, I, IL such uses or persons as he should designate. Two years later he filed a petition in volun- tary bankruptcy and was adjudged bank- rupt, and his assignee brought suit in equity to aroid the transfers. Held, that the convey- ances would be upheld. Jones, Ass., v. Clif- .ton, 18 N. B. R. 125; 17 Amer. Law Reg. (N. S.) 713; 6 Reporter, 324; 7 Cent. Law J. 89; Fed. Gas. 7,457. 297. A member of a firm of debtors ap- propriated money of the firm for the pur- chase of a homestead and claimed it as ex- empt, which claim was disallowed. He then gave a mortgage on the premises, his wife joining in the conveyance. The assignee of the firm demanded the surrender of the land and release of the mortgage. The debtor al- leged that his wife refused to give up the property. Held, that the wife acquired no interest in the property, it having been pur- chased in fraud of creditors. In re Booth- royd, 15 N. B. R. 868; 2 Can. Law BuL 189; Fed. Cas. 1,653. XIII. Miscellaneous Decisions as to Title, etc. 298. If the owner of the land over which a country road is laid retains an interest in all mines, quarries, timber and earth, he re- tains it only so far as is compatible with the rights of the public in the highway. Kinzie V. Winston, 4 N. B. R. 31; Fed. Cas. 7,835. ' 299. If the fee of an estate was mortgaged to its full value it would still be property, and the purchaser would take the title with the possibility of being able to compromise the mortgage debt for less than the full amount, or of discharging it by some legal defense; but the estate would not be founded upon a contingency. So a purchaser buys an estate subject to the contingency of its ap- preciation; but the contingency is not the foundation of the estate, but a mere incident of its existence. Id. 300. The grantee of the franchises of a corporation to operate a railroad can acquire no greater rights than the corporation itself has by the terms of its charter. The pur- chaser must take his title subject to all the conditions of the original grant, and subject to all duties and liabilities to the state, the public and individuals, none of whose rights can be impaired by the transfer. Adams v. Boston, H. & E. R. Co., 4 N. B. R. 99; 5 Amer. Law Rev. 375; 18 Pittsb. Leg. J. 154; Fed. Cas. 47. 301. A donee may convey a fee, if author- ized by the terms of his power, although by the instrument creating it he has himself only an estate for life. Hall v. Bliss et aL, 14 N. B. R. 339. ESTOPPEL. I. Of Partners. IL By Repeesektations. III. By Conduct. IV. By Laches. V. In General. See Conveyances, 31; Partners; Trustees, 15, 73. I. Of Partners. 1. One member of a firm cannot estop him- self, as between himself and the firm credit- ors, by any dealings with a partner, from any duty that he owes such creditors. In re Gorham, 18 N. B. R. 419; 11 Chi Leg. News, 58; 9 Biss. 33; 26 Pittsb. Leg. J. 112; Fed. Cas. 5,624. 2. It having been represented by the firm that certain notes were business paper, and the holder having parted with his money on the faith of the representation, the assignee of the firm cannot deny it. In re Many et aL, 17 N. B. R. 514; Fed. Cas. 9,054 II. By Eepresentations. 3. Where it is represented that a note has been paid, this does not act as an estoppel, unless some actual loss has resulted in the particular case. In re Elliott Felting Mills, 13 N. B. R. 160; 3 Lowell, 440; Fed. Cas. 789. 4. A creditor who assents by word or act, or even by silence, at a meeting of creditors is estopped to set up the deed as an act of bank- ruptcy. In re Massachusetts Brick Co., 5 N. B. R. 408; 3 Lowell, 68; 4 Amer. Law T. 230; Fed. Cas. 9,359. 5. Making of notes is not such a represen- tation as will estop the maker from showing them to be accommodation notes. In re Dodge et al., 17 N. B. R. 504; 9 Ben. 480; Fed- Cas. 3,948. ESTOPPEL, III-V. 209 6. Where McK. & A. contracted with the petitioners to build an engine and deliver -same, and procured payment upon the re- presentation that the article manufactured had been delivered to a transportation com- pany for delivery, the assignee was estopped to deny the existence or identification of the article manufactured. In re McKay & Aldus, S N. B. R 12; 1 Lowell, 345; 2 Amer. LawT. 105; 1 Chi." Leg. News, 337; 1 Amer. Law T. Eep. Bankr. 138; Fed. Cas. 11,978. 'III. By Conduct. 7. Creditors who are beneficiaries under a general assignment without preference, and who have assented in writing to a substi- tution of assignees thereunder„are estopped from opposing the discharge of the debtor in bankruptcy on the ground that such assign- ment was a fraud on the bankrupt act. In re Schuyler, 2 N. B. R. 169; 3 Ben. 200; 16 Pittsb. Leg. J. 94; 2 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 12,494. 8. Where creditors who have received full payment of debt sign a composition agree- ment whereby other creditors are misled and injured, they are estopped from denying its validity. Bean v. Brooknaire & Renkin, 7 N. B. R. 568; 2 DiU. 108; 5 Chi Leg. News, 314; 2 Amer. Law Reo. 223; 6 Amer. Law T. Eep. 418; 7 West. Jur. 324; Fed. Cas. 1,170. 9. Owners of property may be estopped to set up their title to the same if it appears that they failed to assert such title when it was claimed by another, and that they suf- fered such claimant without objection to sell the property to an innocent third person for a valuable consideration. Willis v. Carpenter, 14 N. B. R 521; Fed. Cas. 17,770. 10. Where one, by his words or conduct, wilfully causes another to believe the exist- -ence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is pre- cluded from averring against the latter a diflEerent state of things as existing at the same time. Id. 11. Creditors cannot be heard to allege that an assignment is fraudulent because of facts of which they were fully informed, where they have concurred in execution of assignment. Johnson, Ass., v. Rogers et al., 14 15 N. B. R. 1; 5 Amer. Law Rec. 586; 14 Alb. Law J. 427; Fed. Cas. 7,408. 12. Application to have assignee's bond increased, after assignment under state law, does not estop creditor from claiming such assignment was an act of bankruptcy. In re Langley, 1 N. B. R. 155. 13. Where creditors offered to refrain from proceeding in bankruptcy provided the as- signee under voluntary assignment were changed, and one suitable to them appointed, the assignment, although untainted by fraud, was an act of bankruptcy, and the creditors were not estopped from proceeding in bank- ruptcy. In re Spicer & Peckham v. Ward & Trow, 3 N. B. R 127; Fed. Cas. 13,341. 14. When a partner retires from a firm, but permits his name to remain for the ben- efit of the other partners, he wiU be estopped from denying liability to persons who bought the note of the new firm in ignorance of the dissolution, and in reliance in part on his name. In re Krueger et aL, 5 N. B. R 439; 2 Lowell, 66; Fed. Cas. 7,941.' 15. Where proofs of loss by fire were pre- sented by the insured and payment de- manded, no objection being made to the proofs at the time, the insurance company is estopped to object. In re Republic Ins. Co., 8 N. B. R. 197; 3 Ins. Law J. 390; 5 Chi Leg. News, 385; Fed. Cas. 11,705. IV. Bt Laches. 16. A creditor, who had recovered judg- ment and had receiver appointed before filing of said petition, is estopped to make application nearly a year after adjudication to set it aside for fraud and collusion because she was guilty of lacheS; and that a prior petition abandoned for lack of proof was no excuse. In re Meade, 19 N. B. R. 835; Fed. Cas. 9,370.< Y. Ilf Geneeal. 17. Where the trustee has proved the claim for a note against the estate of the payee in bankruptcy, and where the holder has not on the faith thereof changed his position in regard to the note, the trustee is not estopped from disputing the claim of the holder. In re Dodge et aL, 17 N. B. R 504; 9 Ben. 480; Fed. Cas. 8,948. 210 EVIDENCE, I, (a). 18. Whore the declaration or baiiliruptoy has been suggested as a defense to an action and not denied, the plaintiir is estopped from further proceeding with IiIh suit in the ab- eence of an order authorizing it. Penny v. Taylor, 10 N. B. R. 200; Fed. Chh. 10,007. 19. Discharge from bankruptcy does not free from estoppels arising from covenants of warranties in a deed | the covenantee is still estopped, though discharged in bankruptcy, from setting up after-acquired title. Bush V, Person, 18 How. 83. 20. A party to a contract with a foreign corporation, which has not done what the statute rec(uires as a condition of doing busi- ness in the state, is not estopped to show the legality of the contract. In ro Comstock & Co., 11 N. B. R. 160; 8 Sawy. 218; 7 ChL Leg. News, 136; Fed. Cas. 8,078. 21. The fact that a bankrupt is adjudi- cated upon a petition charging him with making a fraudulent conveyance does not estop his grantee from claiming that as to him the conveyance is valid. In re Marter, 12 N. B. R. 185; Fed. Cas. 0,148. 22. The purchaser of property, sold by an assignee subject to a lien by order of a bank- rupt court, is estopped to deny the validity of the lien. Buoknam v. Dunn et aL, 16 N. B. R. 470; 2 IliiHlc. 315; Fed. Cas. 3,006. 28. Where a bankrupt had given a mort- gage to secure A. against loss, and where A. sustained no loss, and where the bankrupt later, and within four months before com- mencement of proceedings against him, gave B. a second mortgage, and where both mort- gagees received money for the release of their mortgages, recovery was had in a suit against B. Held, the assignee was not oh- tijpjjod to maintain an action against A. Sessions v. Johnson et aL, Ass., 17 N. B, R. 00; 05 U. 8. 347. EVIDENCE. L COMPETKNOy. (a) Of J'/uvlcnce. {h) Of Wit'lU'MHItH. 11. ADMIKSr/JILITY IN GffiNEEAI* IIL PBKSUMP'JfONH. IV. Examination of WiTNEHSEa (a) I'riipr.T Quediona. (b) Oeneral. V. UHcoiiim AND Cokes. VI. Wife of Bankrupt. VJr. Ukicwhkk'h Autiioeitt. VII r. Ahbionmknt as Kvidknob, IX. BUBDEN OF PkOOF. X Djci-ositions. (a) In Proof of Debts. (b) In Proof of Ads of Bcmlerwptojfi (o) Oeneral. XL Instkuc'i'ions to Juby. XIL M;h(jjci.i,ankouh. See Acts of Bankbuptoy, 34; Banks, 40; Claims, 18; CoNvrevANfj™, 83, 86; Cob- POEATIONS, 55; (llUMKH AND Ol'FKNHKS, 8, 14; DiHoiiAiuiK, 88, 310, 336; IOxamjna/. TION OF Bankbuit, 4, 10, 11, 15, Id, 34, 81, 85, 87, 42, 71, 76; Fbatjd, 6, 80; Inholv- ENOY, 11; MORTaAfJBS, 31, 125; NOTAltY, II; Notice, 8; Pabtnees, 85, 168, 164; Petitions, 118; PLEADfNO and Pbactioe, 71-88, 304, 811; Pbbfebknoes, 80, 64, 78, 74; I'EOOF OF Claims, 81, 5!), 60, 75; Rb- CEivEES, 17; Sales, 8, 86, 88; Set-off, 12 j Teuhtees, 45. I. Competency. See DiscHABQE, 310. (a) Of Evidence. 1. An injunction order and proof of lt» service are com [lolont evidence to show that a dof>tor malting piiyment to a tiankrupt aftur adjuilication had noticfi of the demand of the aHHigrjoo. Babbit v. Burgess, 7 N. B. R. 561; 2 Dill. 160; 5 ChL Leg. News, 826; Fed. (JaH. ROii. 2. Evidence cannot be received to contra- dict the di!(;laration and show that no such cause of action nially oxists as is therein set forth. In re Dovoo, 2 N. I). R. (8 vo. ed.) 27; 1 Lowoll, 2:)1; i'V;d. Cas. 8,848. 3. A Hworn statement of an officer of a corporation which Jkih boon filnd is compe- tent eviil(!rK;o against tlio corporation, but it is not conoluHivo. In re Oregon li. P, and ]'. Co., ]!J N. B. 14. 508; 1 Cin. Law BuL 87; i''e(L Cas. 10,5.',!). 4. In an action for injury to building by alterations, the opinion of an oxjicrt familiar with the market and rental value of such priimisoH is cornprdont. In re Jewell etal., 10N.Ji.R. ;!8:i; Fed. Cas, 7,;i02. 5. Where tho witness tias since died, hfg examination before an examining court is EVIDENCE, I, (b), n. 21,1 competent evidence in a trial of the same party for the same offense. United States v. Penn, 13 N. B. R. 464; Fed. Cas. 16,035. (b) Of Witnesses. 6. A witness is not rendered incompetent by reason of the fact that an assignee has filed a petition aga,inst him with others in the proceedings in relation to the property of the bankrupt and an injunction awarded thereon. In re Feinberg, 3 N. B. R. 137. 7. An administrator brought suit on cer- tain promissory notes against M. as principal and J. as surety. J. alone was served, and suit was continued as to M., appearance hav- ing been improperly entered. A motion was made by J. for a continuance, the afiSdavit showing that M. was a material witness, he not having appeared. After the making of the note he had been adjudged bankrupt. Meld, M. was not a competent witness for J., both being principals as between them and the payee. Jenks v. Opp, 13 N. B. R 19. 8. If a defendant has admitted that a state- ment made by the bankrupt on his examina- tion is true, the statement may be proved by the testimony of any one who heard it. Goodrich v. Wilson, 14 N. B. R. 555. 9. A bankrupt may testify to support a claim of his wife against the estate, where such testimony would be competent under the state laws in force prior to December 1, 1873. In re Bean, 14 N. B. R. 183; 3 Wkly. Notes Cas. 433; Fed. Cas. 1,166. 10. In proceedings in bankruptcy against the estate of a deceased debtor, a creditor who had neglected to prove his claim before the second and third meeting of the credit- ors offered himself as a witness to prove the contract on which he based his claim. Seld, that he could not be excluded on the ground of interest. In re Merrill, 16 N. B. R. 35; 9 Ben. 165; 34Pittsb. Leg. J. -305; Fed. Cas. 9,466. 11. The wife of a bankrupt maybe ex- amined in bankruptcy. In re Campbell, 17 N. B..R. 4; 3 Hughes, 376; Fed. Cas. 3,348. 12. A creditor, though the wife of a bank- rupt, is a competent witness. In re Rich- ards, 17 N. B. R 563; 10 Chi Leg. News, 375; Fed. Cas. 11,770. 13. Copartners, having been adjudged bankrupts, were indicted for having secreted money belonging to the estate, and for fraud- ulently omitting the same from their sched- ules. Upon the trial they were excluded as witnesses, and, having been found guilty, moved for a new trial upon that ground. The motion was overruled. United States V. Black et al., 13 N. B. R. 340; 1 Hask. 570; 1 N. Y. "Wkly. Dig. 77; Fed. Cas. 14,602. 14. The bankrupt is not a competent wit- ness in a criminal proceeding against him- self, under section 5133, Revised Statutes. The amendatory act of June 33, 1874, section 8, applies to civil causes only. Id. 15. The exclusion of husband and wife as witnesses is not based solely on intei-est, but rests upon principles of public policy; and though a statute may remove the ground of interest, the ground of public policy will stiU render them incompetent. In re Jones et al., 9 N. B. R. 556; 6 Biss. 68; 6 Chi Leg. News, 371; Fed. Cas. 7,444. 16. While the bankrupt act of 1867 pro- vides for the examination of the wife of the bankrupt before the register for the purpose of ascertaining the condition of his estate, it does not alter the rule that the wife cannot be a witness for or against the husband in a motion to set aside his discharge. Tenny et aL V. Collins, 4 N. B. R. 156; Fed. Cas. 13,833. 17. The provision of law that parties may testify in federal courts in their own behalf cannot be construed by the court to exclude parties from testifying in their own behalf against assignees in bankruptcy. Hobbs v. McLean, 117 U. S. 567. II. Admissibility in Geneeal. 18. Assignees of certain promissory notes sued the assignors on the contract of assign- ment. The statute provided that the as- signors should only be liable where the as- signee by due diligence prosecutes the maker to insolvency, but if suit would be unavail- ing the assignor is liable. The court admitted evidence of the bankruptcy of the makers of the notes. Held, that the evidence was prop- erly admitted. Wills et aL v. Claflin et ai, 13N. B. R. 437; 93 U. S. 135. 19. Intent to perfect is to be proved as a fact. Morgan et al. v. Mastick, 2 N. B. E. (8 vo. ed.) 531; Fed. Cas. 9,803. 20. Evidence of misrepresentations made to the stockholder when he subscribed for stock, by an agent of the corporation, is not 212 EVIDENCE, IIL admissible in an action by the assignee to collect an assessment made on unpaid sub- scriptions. Miohener v. Payson, Ass., 13 N. B. R. 49; 1 N; Y. Wkly. Dig. 373; 3 Wkly. Notes Cas. 339; 8 Chi. Leg. News, 17; 33 Pittsb. Leg. J. 38; Fed. Cas. 9,534 21. A copy of the record containing the assignment was admissible, although it did not purport to be a copy of the whole rec- ord. Id. 22. The dying declarations of a fraudu- lent grantee are not admissible in a proceed- ing to set aside a bankrupt's discharge. In re Marionneaux, 13 N. B. R. 333; 1 Woods, 37; Fed. Cas. 9,088. 23. Proof of the conspiracy must precede the admission of declarations of one con- spirator against his co-conspirators. Id. 24. Letters written by the debtor to third parties, admitting the payment of a claim, interposed by attaching creditors in favor of another alleged creditor to defeat adjudica- tion, are admissible in evidence in a contest upon such claim between the attaching and petitioning creditors. In re Hatje, 18 N. B, R. 548; 6 Biss. 436; Fed. Cas. 6,315. 25. A defense may be given in evidence as an admission which has been stricken out of the case. In re Oregon B. P. and P. Co., 13 N. B. R 503; 1 Cin. Law BuL 87; Fed. Cas. 10,559. 26. An assignee in bankruptcy sued for property received by a creditor as a prefer- ence, alleging insolvency at time of the pref- erence. The plaintiff at the trial proposed to prove what the bankrupt had said concern- ing the transfer and the payment. Seld, that the declarations of the bankrupt were com- petent evidence, if the conspiracy was estab- lished, although not made in the presence of or brought to the knowledge of the creditor preferred. Nudd et aL v. Burrows, Ass., 13 N. B. R. 389; 91 U. 8. 436. 27. A statement made by a bankrupt as to his condition at the time of borrowing money is inadmissible, for it has no bearing upon the question whether the creditor knew or had reasonable cause to believe him in- solvent on a subsequent day. Goodrich v. Wilson, 14 N. B. R. 555. 28. It is not error to admit in evidence the assignee's bill of sale, to prove the transfer of the account sued on, to the intervener. Morris et aL v. Swartz, 10 N. B. R. 305. 29. In an action brought under sections 35 and 39 of the act of 1867, the bankrupt's schedule of indebtedness is not material evi- dence of insolvency. Tyler, Ass., v. Brock et aL, 17 N. B. R. 339. 30. Under the general money counts in a declaration drawn to conform to law which was in force when a preference was given and until after adjudication in bankruptcy, such law having been amended subsequently, but before filing of petition, the court will not permit evidence to be given at the trial of a liability, contract, promise or obligation arising exclusively under the law as it was at the time of the preference Warren et aL V. Garber, 15 N. B. R. 409; 1 Hughes, 365; Fed. Cas. 17,196. 31. P., as a member of J. & P., later of P. & C, sold his interest to C. & C, said sale authenticated by a writing signed by P. and witnessed by C. & C, declaring that C. & C. should become liable for all debts contracted by J. & P. and P. & G, and set out in a cer- tain memorandum specified. In considera- tion of C. & C. assuming said liabilities set forth, P. accepted as payment for his inter- est one-third of its value. Held, that parol evidence was not admissible to show what was intended, contrary to the written agree- ment. On writ of error to the circuit court the ruling of the district court was reversed and remanded for decree in conformity to opinion of circuit court. In re Phelps v. Classon, 3 N. B. R 33; Woolw. 304; 2 West. Jur. 331; Fed. Cas. 11,074 32. A check is admissible in evidence as to whether bankrupt has kept proper books of account, and together with the stub shows just how book was kept. In re Brock way, 7 N. B. R. 595; 6 Ben. 336; Fed. Caa 1,917. III. Peesumftions. See Banks, 40; Conveyances, 36; Coepoea- TiONs, 55; Ceimes, etc., 14 33. Participation in the profits of a busi- ness is presumptive or primary proof that the participator is a partner in such business, and in the absence of other proof is sufficient evi- dence thereof; but such presumption maybe overcome by showing that such profits were • received by the party simply as wages for services performed, or interest for money EVIDENCE, IV, (a). 213 loaned to the person oariying on such busi- ness. In re Francis et al., 7 N. B. R. 359; 2 Sawy. 286; 5 Pac. Law Eep. 313; 4 Leg. Op. 493; Fed. Cfes. 5,031. 34. The intent of a party is ordinarily to be inferred from evidence which tends dis- tinctly and directly to prove the intent; it is to be inferred from all the circumstances of a case, subject to the theory and presump- tion of law that a man intends, when he commits an act, the ordinary and usual con- sequences of that act, or the inevitable conse- quences of it. United States v. Smith, 13 N. B. E.61; Fed. Cas. 16,339. 35. -An individual whose naine appears on the stock-book of a corporation as a stock- holder is presumed to be the owner of stock in a case where there is nothing to rebut that presumption; and in an action against him as a stockholder, the burden of proving that he is not, or of rebutting that presumption, is cast upon the defendant. Turnbull, Jr. v. Payson, Ass., 16 N. B. E. 440; 95 U. S. 418. 36. In an action to set aside a conveyance by an insolvent debtor on the ground of fraud, held, that fraud must be proved, not assumed. Campbell, Ass., v. Waite et al., 16 N. B. E. 93; 9 Ben. 166; Fed. Cas. 2,374. 37. Where a debtor is in fact insolvent, and a creditor has notice of a state of facts constituting in law such insolvency, then there aiases a presumption of actual knowl- edge, which is conclusive until rebutted by proper proof. In re Hauck, 17 N. B. E. 158; Fed. Cas. 6,219. 38. Where an insolvent debtor confesses judgment, and such confession is followed by execution and seizure, it is presumed that such act was done with intent to give a preference, and the contrary must be shown. Webb, Ass., v. Sachs et al., 15 N. B. E 168; 4 Sawy. 158; 9 ChL Leg. News, 156; Fed. Cas. 17,335. 39. There is a strong, if not conclusive, presumption, after the final discharge of a bankrupt is granted, that the final oath re- quired by section 29 of the act of 1867 was duly taken; and the mere fact that the oath is not upon the files does not overcome this presumption. Young et aL v. Ridenbaugh's Adm'r, 11 N. B. E. 563; 3 Dill. 339; 7 ChL Leg. News, 343; Fed. Cas. 18,173. 40. Where the record before the court does not show that a precedent agreement existed between an insolvent debtor and a creditor' such agreement is not to be assumed. A mere promise does not constitute an agree- ment. Sec. Nat. Bank v. Hunt, 4 N. B. R. 198; 11 WaU. 398. IV. Examination of Witnesses. See Examination of Bankrupt. (a) Prop&r Questions. 41 . A witness must answer all proper ques- tions .relating to his trade and dealings with a bankrupt prior to commencement of pro- ceedings; and if to answer properly, fully and truthfully any such question it is neces- sary that the witness should produce a copy of any transaction of his with the bankrupt, such copy must be produced. In re Earle, 3 N. B. R 81; Fed. Cas. 4,344. 42. At examination before register bank- rupt declined to answer a question asked by register. Held, that he must answer. In re Holt, 3 N. B. R. 58; Fed. Cas. 6,646. 43. A bankrupt will be compelled to an- swer questions concerning the acquisition and possession of money after the filing of his petition. In re McBrien, 3 N. B. E. 90; 3 Ben. 481; Fed. Cas. 8,666. 44. A witness cannot refuse to testify be- fore the register concerning his dealings with the bankrupt on the ground that his answers may furnish evidence against him in a civil action on behalf of the assignee. In re Fay, 3 N. B. E. 163; Fed, Cas. 4,708. 45. A witness is not compelled to answer, on cross-examination, a question which does not relate to any matter of fact in issue, or to any matter contained in his direct testi- mony, a truthful answer to which would tend to degrade him. In re Lewis, 3 N. B. E. 153; 4 Ben. 67; 39 How. Pr, 155; Fed. Cas. 8,313. . 46. Where it is shown that the witness has knowledge of the location, situation and condition of the bankrupt's property, and the fraudulent disposal thereof, he may be com- pelled to testify theretOj notwithstanding issue be not joined nor any fact be in dis- pute. In re Blake, 3 N. B. E. 2; Fed. Cas. 1,492. 47. A question relating to transactions between the witness and the bankrupt must be answered. In re Stuyvesant Bank, 7 N. B. E 445; 6 Ben. 33; Fed. Cas. 13,583. 214: EVIDENCE, IV, (b). 48. A witness on re-examination cannot be asked whether he made a certain state- ment, such question being leading. Ives et al. V. Tregent, 14 N. B. R. 60. 49. A witness who purchased claims against a bankrupt's estate.was examined as to where he obtained the money paid there- for, and answered that it did not come from the bankrupt. Held bound, on pain of con- tempt, to state where he did obtain it. In re Lathrop et al., 4 N. B. E. 93; Fed. Cas. 8,106. 50. Counsel cannot be compelled to dis- close any information imparted to him as counsel for bankrupt, nor to disclose infor- mation received on behalf of the bankrupt, as to the bankrupt's afEairs, from persons to whom he was referred by the bankrupt. The privilege of counsel does not extend to the concealment of the subject discussed but only of the discussion itself. In re Aspinwall, 10 N. B. R. 448; 31 Leg. Int. 365; 33 Pittsb. Leg. J. 75; 7 Ben. 433; Fed. Cas. 591. 51. G., an attorney for bankrupt, received certain property from bankrupt and imme- diately deeded it to bankrupt's wife, the in- tention being to defeat creditors of bankrupt. Questioned concerning the transaction, G. declined to answer upon the ground of con- fidential communications between attorney and client. Held, the questions were perti- nent and G. should answer. In re Bellis et al., 8 N. B. E. 49; 3 Ben. 386; 8 Amer. Law Reg. (U. S.) 747; 38 How. Pr. 79; 3 Amer. Law T. 170; Fed. Cas. 1,374 52. Witness, being asked concerning his connection with an auction sale of goods be- longing to bankrupt prior to adjudication, declined to answer on the ground that he had obtained the information through the relation of attorney and client. Held, that it was concerning his acts that he was inter- rogated, and therefore not privileged. In re O'Donohoe, 3 N. B. E. 59; Fed. Cas. 10,435. (b) Oeneral. 63. A witness summoned by a creditor is not allowed to have attending counsel, except when he is made a party to a new collateral proceeding by being cited to answer for a contempt. In re Feinberg et al., 3 N. B. K. 137. 54. A witness is not entitled to counsel in I R. 139; Fed. Cas. 5,476. his examination before the register, although the examination of the witness may estab- lish a liability on his part to the bankrupt. In re Stuyvesant Bank, 7 N. B. R. 445; 6 Ben. 83; Fed. Cas. 13,583. 55. Creditors have no right to intervene and interpose objections to questions put in the course of examination of a witness by another creditor. Id. 56. It was not necessary to give notice to bankrupt of time and place of examination of witnesses. In re Levy, 1 N. B. R. (8 vo. ed.) 107; 3 Ben. 169; Fed. Cas. 8,397. 57. Where the complainant knows what the goods, transferred in fraud of the bank- rupt act, consisted of, he cannot claim equity jurisdiction on the ground of discovery be- cause he is ignorant of their precise amounts, for he can coinpel the examination of the preferred creditor and obtain a full disclos- ure. Garrison, Ass., v. Markley, 7 N. B. R. 346; Fed. Cas. 5,356. 58. A witness cannot refuse to be sworn on the ground that he had acted as counsel for the bankrupt and is still his legal adviser. In re Woodward et al., 3 N. B. R. 177; 4 Ben. 103; Fed. Cas. 17,999. 59. A witness regularly summoned, on ap- plication of the assignee in bankruptcy pro- ceedings, objected to being examined on the ground that the bankrupt himself had not been examined, and urged that there was no question m controversy to be settled by tes- timony. The register overruled the objec- tions. The witness did not stand upon his objections, but submitted himself to exam- ination. The court sustained the register, but stated that by submitting himself to examination the witness waived his objec- tions. In re Fredenburg, IN. B. R. 34; 2 Ben. 133; Fed. Cas. 6,075. 60. If a witness under oath makes con- tradictory statements as to material facts, a jury is justified in rejecting all of his testi- mony. United States v. Bayer, 13 N. B. E. 88; Fed. Cas. 14,548. 61. An attachment will not be issued for a witness when the commission issued by the district court is not accompanied by any in- terrogatories, nor furnishes any information as to the inquiry in relation to which the wit- ness is to be examined. In re Glaser, 2 N. B. EVIDENCE, V-VIL 215 62. A creditor is not entitled to witness fees for attendance. In re Kyler, 2 N. B. R. (8 vo. ed.) 650. V. Eeooeds and Copies. . 63. The statute making certified copies of proceedings in one state the " best evidence " in judicial proceedings in another state is not restricted to the case of judgments. In re Eooney, 6 N. B. E. 163; Fed. Cas. 12,032. 64. The certified copy of the examination of a debtor in another state was objected to as not the best evidence under supplemental proceedings upon a judgment, offered to prove the admissions of a debtor. Held, that it came within the statutory " judicial proceedings." Id. 65. In a suit to recover the amount of an assessment by the assignee of a bankrupt corporation in United States district court, a «opy of the record of the proceedings in bank- ruptcy, certified by the clerk under the seal of the court, without the certificate of the judge that the attestation was in due form, was properly admitted as prima facie evi- dence of the facts which it set forth. Turn- bull, Jr. V. Payson, Ass., 16 N. B. E. 440; 95 U. S. 418. 66. Where it is necessary to prove the in- solvency of a debtor at the time of executing certain chattel mortgages whereby a sale was made to a stranger, said mortgages being executed and the sale made prior to the in- stitution of a suit in bankruptcy, the records in the suit in bankruptcy are not the best evidence. Marsh et al., Ex'rs, v. Armstrong, 11 N. B, E. 135. 67. The only evidence of meeting and ac- tion of the directors of a corporation as a board in n^iaking a deed is the record kept by the secretary. In re St. Helen's M. Co., 10 N. B.E. 415; 3 Sawy. 88; Fed. Cas. 12,222. YI. "Wife of Eanebupt. 68. The wife of a bankrupt, on examina- tion before a register, declined to answer be- ■cause the matters inquired of were her private business. Held, that the same were perti- nent and proper. In re Craig, 4 N. B. E 50; Fed. Cas. 3,323. j89. The wife of a bankrupt may be com- pelled to attend and be examined in refer- ence to her husband's estate, and upon re- fusal to answer may be punished for con- tempt. In re Woolford, 3 N. B. E. 113; 4 Ben. 9; Fed. Cas. 18,039. 70. Usual order and subpoena for the wife of bankrupt was issued to appear and tes- tify, and, in explanation of her failure to obey, the right of the court to compel her attendance was denied. Held, that the court had power to compel attendance, and order to show cause why a warrant should not issue was the proper proceeding. In re Bellis et aL, 3 N. B. E. 65; 38 How. Pr. 88; 1 Amer. Law T. Eep. Bankr. 178; Fed. Cas. 1,376. 7 1 • The wife of a bankrupt is not required to attend and be examined as a witness un- less the usual fees are paid or tendered to her. In re Van Tuyl, 2 N. B. E. 35; Fed. Cas. 16,881. VII. Eefeeee's Authoeitt. 72. The register has no power to decide on the competency, materiality or relevancy of any question, and has therefore no power to exclude or overrule any question. In re Eosenfleld, 1 N. B. E. 60; 15 Pittsb. Leg. J. 245; 1 Amer. Law T. Eep. Bankr. 47; Fed, Cas. 13,059. 73. A register is not authorized to hear testimony as to a creditor's right to vote for assignee without special order of the court. In re Noble, 3 N. B. E. 35; 3 Ben. 333; Fed. Cas. 10,383. 74. The register must have power in com- position proceedings, subject to the review- ing power of the court, to conduct the inquiries, take down the substance of the answers and adjourn the meeting by consent of parties, and in some cases against the wishes of one; but not to conduct a written examination as to aU the inquiries and in- vestigation proper in bankruptcy; and in most cases he would be justified in refusing ( to permit the inquiries to extend beyond the day of meeting. In re Proby, 17 N. B. E. 175; 13 Amer. Law Eev. 598; Fed. Cas. 11,43S. 75. A register can require no person to testify except the debtor at a composition meeting. In re Dobbins, 18 N. B. E. 268; Fed. Cas. 3,943. 76. The register, without application to the court, has the power to make the order, under section 26 of the act of 1867, requir- 216 EVIDENCE, VIII, IX. ing witnesses to appear and be examined, and they may be examined fully as to liens against the bankrupt's estate. In re Pioneer Paper Co., 7 N. B. R. 250; Fed. Cas. 11,178. 77. The register cannot make any binding decision, or compel a witness to answer, if he refuses. In re Koch, 1 N. B. R. 153; 1 Amer. Law T. Rep. Bankr. 131 ; 15 Pittsb. Leg. J. 531 ; Fed. Cas. 7,916. 78. A register holding provisionally a court of bankruptcy before whom a witness refuses to answer a question should, if he be- lieves the question a proper one, so declare. If exception to this ruling is taken he should certify it for the summary consideration of the court, the examination proceeding in its other parts. If the witness, without such exception, refuse to answer, his contumacy should be reported. In re Reakirt, 7 N. B. R. 829; Fed. Cas. 11,614 79. To prove what proceedings have taken place before him, the entries of a register may be used as evidence. As to the number of days that a witness was in attendance be- fore a register, the certificate of the clerk is but prima facie evidence. In re Crane & Ca, 15 N. B. R. 120; 1 Tex. Law J. 41; Fed. Cas. S,35S. VIII. Assignment as Evidence. 80. In suits by an assignee, his representa- tive character need not be averred in the pleadings. If a duly certified copy of the as- signment be put in evidence, it is not neces- sary to prove all the steps in the proceed- ings. Dambmann v. White et aL, 12 N. B. R. 438. 81. Notice to a creditor of an act of bank- ruptcy does not affect a transfer to him otherwise than that it tends to show that such transfer was made in fraud of the bank- rupt act. In re Catlin, 9 N. B. R. 343; 2 Sawy. 486; 31 Pittsb. L. J. 159; Fed. Cas, 3,521. 82. In proof of commercial paper acquired before maturity, the holder need only prove the consideration paid by him. In re Lake Sup. S. C. etc. Co., 10 N. B. E. 76; Fed. Cas. 7,998. 83. The instrument made by the judge of a court of bankruptcy, or by the register, is the best evidence of the fact of bank- ruptcy, and oral testimony is not admissible unless it is shown that the original or a cer- tified copy cannot be produced. Buck v» Winters, Ass., 15 N. B. R. 140. 84. The record of the assignment is not necessary to give force or validity to the- transfer to the assignee, or for the purpose of constructive notice, but to enable the pur- chaser under the assignee to have in th© proper county a record of his derivative- title. Davis V. Anderson, 6 N. B. E. 146; Fed. Cas. 8,623. 85. If the debtor assists in obtaining judg- ment on which execution has followed, thia may be placed in evidence in support of aa act of bankruptcy. In re Woods, 7 N. B. E. 136; 30 Pittsb. Leg. J. 31; Fed. Cas. 17,990. • IX. BUEDEN OF PeOOF. See Conveyances, 32; Crimes and Offenses, 8, 14; DisCHAEGE, 88. 86. A petitioning creditor may offer proof tending to show the debtor's insolvency, and the debtor must explain the evidence, as ha is best acquainted with the condition of his- own affairs. In re Oregon B. P. & P. Co., 13 N. B. R. 503; 1 Cin. Law BuL 87; Fed. Cas. 10,559. 87. The party who alleges that proceed- ings in bankruptcy have been dismissed,, when an adjudication of bankruptcy haa been proved, must prove the time of the dis- missal. Willis et al. v. Claflin et al., 13 N. B. R. 437; 93 U.S. 135. 88. The thirty-fifth section of the bank- rupt act of 1867, which declares a sale, trans- fer-, etc., not made in the usual and ordinary course of business of the debtor shall be prima facie evidence of fraud, throws the- burden of proof on the purchaser to sustain the validity of the purchase. In such a case the proofs may be taken ore tenus at the- hearing. Wilson v. Stoddard, 4N. B. E. 76; 3 Chi. Leg. News, 161; Fed. Cas. 17,838. 89. To constitute absolute payment of a pre-existing debt by a promissory note, there- must be an agreement to receive it as such, and burden of proof is upon the party alleg- ing the fact. In re Parker et al., 19 N. B. E.. 340; Fed. Caa 10,731. 90. On objections to discharge, held, that, burden of sustaining specifications is upon opposing creditors. In re Herdic, 19 N. B. R^ 385; Fed. Cas. 6,403. EVIDENCE, X, (a). 217 91. A debtor while insolvent transferred a large portion of his property to one creditor without making provision for au equal dis- tribution of its proceeds to all his creditors. Seld, that this necessarily operates as a pref- erence, and is conclusive evidence that a preference is intended, unless debtor can show that he was at the time ignorant of his insolvency and that he could reasonably ex- pect to pay all his debts. In such a case the burden of proof is on him and not upon the assignee or contestant in bankruptcy. Toof V. Martm, 6 N. B. R. 49; 13 WalL 40. 92. A charge of fraud in the concealment of bankrupt's estate from which badges and indices of fraud are deducible must be over- borne by positive testimony. In re Goodridge, 2 N. B. R. 105; Fed. Cas. 5,547. 93. In answer to a petition for adjudica- tion, a general denial was entered, but no demand for trial by jury. Held, that the burden of refuting the allegations of the pe- tition was on respondent. In re Price et al., 8 N. B. E. 514; Fed. Cas. 11,411. 94. Under the act of 1867, where there is a simple denial, the burden is upon the re- spondent to disprove the allegations of the petition, and, if no evidence is introduced, the petitioning creditor is entitled to an ad- judication in bankruptcy. In re Jelsh et al., 9 N. B. R. 413; Fed. Cas. 7,257. 95. The burden of proof is on the creditor to show that the debtor suffered or procured his property to be. taken on legal process with intent to defraud creditors. In re King, 10 N. B. E. 103; Fed. Gas. 7,783. 96. In an issue by the debtor (act June 32, 1874) as to whether petitioning creditors constitute requisite proportion, the aflSrma- tive of the issue is on the petitioning credit- ors. In re Hymes, 10 N. B. R. 433; 7 Ben. 427; Fed. Cas. 6,986. X. Depositions. (a) In Proof of Debts. See Acts of Bankruptcy, 24 97. A deposition was filed in proof of a debt that was incorrectly entitled in the case. The register refusing to accept it, it was altered and again offered, but was not re-swom to. The register again refused it. The refusal was approved by the court. In re Walther et al., 14 N. B. R. 278; Fed. Cas, 17,136. 98. Where a commissioner, taking a depo- sition in proof of debts, failed to sign th& jurat, the omission may be supplied if he rec- ollects the fact of the creditor signing and verifying in his presence. Otherwise the party may be sworn and the deposition filed nunc pro tunc. In re McKibben, 12 N. B. R. 97; Fed. Gas. 8.859. 9 9 . The receiver of a corporation presented proof of claim without a deposition support- ing it, but the claim was re-examined and held valid, one of the oflScers of the corpora^ tion being examined under oath. The receiver was given leave to amend by producing the deposition of one of the corporation's ofScers^ but the ofSoer refused to testify. Held, that the deposition given at the re-examination could be filed with the same effect as if orig- inally made as a deposition under General Order 34, act of 1867. In re Baxter et al., IS N. B. R. 560; Fed. Cas. 1,121. 100. A deposition of a creditor setting forth a claim against a bankrupt for unliqui- dated damages for a breach of contract, which does not appear in the bankrupt's, schedules, is not proof thereof, unless the amount thereof is fixed by assessment, ap- plication for which must be made by the creditor. In re Glough, 3 N. B. R. 59; 3 Ben. 508; 16 Pittsb. Leg. J. 25; Fed. Cas. 2,905. 101. A deposition was offered in proof of a debt in bankruptcy. The statement of consideration was insufficient, one of the certificates lacked a seal, and in other re- spects the requirements of section 5077, Re- vised Statutes, were not complied with. The- deposition was held to be insufficient. In re- Port H. D. D. Co., 14 N. B. R. 253; Fed. Cas. 11,393. 102. Depositions in proof of a debt against a bankrupt are not admissible if taken be- fore any officer other than one of the regis- ters of the court in which proceedings are pending, unless the creditor be a non-resi- dent of such district (act of 1867). In re Ha- ley, 3 N. B. R. 13; Fed. Gas. 5,918. 103. A. presented for proof against bank- rupt's estate an account for goods sold tO' the bankrupt by B., which account was duly- assigned to A. for value, before bankruptcy, the deposition of A. only being produced. Held, that it was not necessary that B. should 218 EVIDENCE, X, (b), (c), XL join in the deposition before the debt should be admitted to proof. In re Fortune, 3 N. B. R. 83. (b) In Proof of Acts of Bcmhrwptay. 104. The allegations in the deposition in proof of the act of bankruptcy should be made upon the personal knowledge of the deponent, and should make out a, prima fade case. Such allegations should be made by- separate deposition, and not in the petition itself. In re Hadley, 13 N. B. R. 366; Fed. Cas. 5,894 105. In order to authorize the making of an order to show cause, the deposition of acts of bankruptcy must be such as consti- tutes legal testimony. In re Eosenfields, 11 N. B. R 86; 3 Amer. Law Rec. 724; 1 Cent. Law J. 583; Fed. Cas. 13,061. 106. A creditor filed a petition in regular form against a debtor, and also presented depositions in support of the allegations of the petition and filed them. An order to show cause issued, and the debtor moved the court to dismiss the proceedings on the ground that the deposition was insufiicient. Held, that a deposition to an act of bank- ruptcy consisting of a fraudulent convey- ance must allege or show the fraudulent in- tent of the debtor in making the conveyance. Cunningham v. Cady, 13 N. B. R 535; 8 Chi. Leg. News, 165; 4 Amer. Law Reo. 510; Fed. Cas. 3,480. (o) General. 107. AfiSdavits or depositions taken before a register after the filing of the petition are valid, although proceedings may not be pend- ing before him. In re Deane, 3 N. B. R 29; .15 Pittsb. Leg. J. 581, 583; Fed. Cas. 3,700. 108. Foreign creditors offered for filing a deposition executed before a United States consular agent, which deposition the register refused to file " because not taken before any of the ofiflcers authorized by section 5079 of the Revised Statutes to take proofs of debt in a foreign country." Register sustained. In re Lynch et aL, 16 N. B. R 28; 24 Pittsb. Leg. J. 205; Fed. Cas. 8,635. 109. Testimony in bankruptcy proceed- ings can only be taken on commission, not on notice. In re Dunn et aL, 9 N. B. R. 487; Fed. Cas. 4,173. 110. A witness summoned on behalf of a bankrupt, on his examination before the reg- ister, exhibited certain papers which were marked as part of his deposition and filed with it. Held, that such papers became a part of the depositions, and could not be with- drawn, and a copy substituted, except upon the application of a party showing a proper use therefor. In re McNair, 2 N. B. R 109; Fed. Cas. 8,908. 111. When depositions are not taken ex parte or de hem esse under the act of 1789, or both parties appear and examine and cross- examine, the depositions being subsequently placed on file, the party at whose instance they were taken cannot object to their being read by f he opposite party on the ground of irregularity or informality. Lawrence, Ass., V. Graves, 5 N. B. R. 279; Fed. Cas. 8,138. 112. A commission was issued from the United States district court for the northern district of New York to take testimony in Chicago. A summons issued from the cir- cuit court for the northern district of Illi- nois, and was duly served upon a witness who appeared but refused to testify. Upon proceedings for contempt it was held that the commission was issued with proper au- thority. In re Johnston, 14 N. B. R 569; Fed. Cas. 7,423. XI. Instextctions to JmKT. 113. Where the defense is based upon an alleged fraud, it is error to introduce into the instruction upon that point, facts pertaining to another fraud. Upton, Ass., v. Tribilcock, 13N. B. R 171; 91 U.S. 45. 114. In instructing the jury the court may comment upon the evidence, if it is understood by the jury that what is said concerning the facts is only advisory. Nudd et al. V. Burrows, Ass., 13 N. B. R 289; 91 U. S. 436. 115. If a power of sale to the mortgagor to sell and replace goods in such manner as he may determine and use the proceeds as he sees fit is inserted in the mortgage, it is proved by the production of the mortgage, and the mortgage would be held void by the court. If not, it may be proved by parol, or inferred from circumstances and the con- duct of the parties, and then it would be- come the duty of the court to instruct the EVIDENCE, XIL 219 gury that such power of sale by consent or understanding avoids the mortgage. In re Kahley, 4 N. B. R. 134; 2 Biss. 383; 8 Chi Leg. News, 85; 3 Leg. Gaz. 405; Fed. Cas. 7,593. 116. Courts cannot assume, in their in- structions to juries, that material facts upon which the parties rely are established, unless they are admitted, or evidence respecting them is not controverted. The courts would otherwise encroach upon the appropriate and exclusive province of juries. Sec. Nat. Bank T. Hunt, 4 N. B. R. 198; 11 Wall. 391. 117. On motion for a new trial on the issue of bankruptcy, on the ground of error in the admission of evidence 'as to negotiar tion between the petitioning creditors and the respondents, preceding the consummar tion of a compromise between them, held, such evidence properly admissible, and that it was also proper to charge the jury that they could use this testimony only as it bore upon the fact whether an arrangement was made, and its character. In Jelsh et aL, 9 N. B. R 413; Fed. Cas. 7,357. XII. MiSCELLAiraoUS. 118. A creditor, after examination before the register touching his claim, may file sup- plemental proof of claim corresponding with the facts shown by his testimony. In re Montgomery, 3 N. B. R. 108; Fed. Cas. 9,739. 119. The taking of the direct examina- tion of a witness is a service rendered for and required by the party calling such wit- ness, and the taking of the cross-examina- tion of such witness is a service rendered for and required by the party cross-examining such witness. In re Mealy, 2 N. B. R. 51 ; Fed. Cas. 9,878. 120. Counsel asked whether, in case he should withdraw his appearance and suffer a default to be taken against his client, all the allegations in the petition would be taken as true in subsequent proceedings for discharge, to the prejudice of the bankrupt. Answered in the negative. In re Lathrop et aL, 3 N. B. R. 11; 3 Amer. Law T. 134; Fed. Cas. 8,105. 121. Informality in proofs will not avail where the creditor, as a witness, has sworn positively of his own knowledge. McKinsey et aL V. Harding, 4 N. B. R. 10; Fed. Cas. 8,866. 122. A judgment creditor may refuse to be examined in relation to a question of usury in a debt for which the judgment was rendered. Id. 123. A court will not take judicial knowl- edge of a discharge, and if not pleaded a valid judgment may be rendered against a bankrupt. Jenks v. Opp, 13 N. B. R. 19. 124. To entitle defendant to an acquittal the doubt in the minds of the jury must be a reasonable one; the evidence must be in- suflBcient to establish guilt. United States V. Bayer, 13 N. B. R. 88; Fed. Cas. 14,548. 125. One of the grounds of appeal was that witnesses were examined orally in open court instead of having their testimony taken by an examiner. Appeal dismissed. Samson V. Burton, 6 N. B. R. 403. 126. The form of words. used in conver- sations between a debtor and his creditor should be very little regarded when the words were not in themselves acts, or inducements to act. In re Hafer et aL, 1 N. B. R. 163; 6 Phila. 474; 35 Leg. Int. 164; Fed. Cas. 5,897. 127. A bankrupt was proven to be a stout, healthy, unmarried man of twenty-seven years of age, who lived and worked with his father all of his life, except for three years spent in military service, during which he drew no pay less than that of sergeant. Held, not evidence of concealment of estate. In re Sidle, 3 N. B. R. 77; Fed. Cas. 13,844 128. A sale by a person contemplating bankruptcy is not prima facie fraudulent unless surrounded by unusual circumstances, and is not then void as to purchasers in good faith. In re Hunt, 3 N. B. R. 166; 1 Chi. Leg. News, 169; Fed. Cas. 6,881. 129. An adjudication of bankruptcy in invitum is not conclusive evidence as against an execution creditor as to the allegations in the petition for adjudication found to be true by such decree. , In re Dunkle et aL, 7 N. B. R. 73; Fed. Cas. 4,160. 130. Section 30, act of 1789 (1 Stat. 88), au- thorizing testimony in the United States court to be taken de bene esse, and the act of 1817, conferring power to take testimony (3 Stat. 350), and of 1872 (17 Stat. 89), before commissioners of the circuit court, do not apply to proceedings in bankruptcy. In re Dunn et aL, 9 N. B. R. 487; Fed. Cas. 4,173. 131. Execution was issued upon the de- cree of a state court against a guardian and 220 EVIDENCE, XII his surety, establishing a lien upon the per- sonal estate of the latter, and steps were taken to elicit before a commissioner of chan- cery of the state court a disclosure of surety's estate. The surety subsequently filed lais pe- tition in bankruptcy and was adjudicated a bankrupt ; after which he was arrested under an attachment issued by the commissioner of the state court to compel him to answer interrogatories. On petition for habeas corpus before the United States circuit court, held, that proceedings for discovery must be taken in the bankruptcy court. Ex parte Taylor, 16 N. B. E. 40; 1 Hughes, 617; 34 Pittsb. Leg. J. 205; Fed. Cas. 13,773. 132. On a trial of an action to recover property or its value, transferred contrary to section 35 of the act of 1867, it is necessary to prove a demand and refusal, and the same should be alleged in the complaint. Brooke, Ass., V. McCracken, 10 N. B. E. 461 ; 7 Chi Leg. News, 10; Fed. Cas. 1,933. 133. It must be proved by legal evidence that the facts set forth in the petition are true before a debtor can be brought into court to show cause against the same, or be in any manner disturbed in his affairs by reason of the filing of the petition. In re Eogers, 10 N. B. E. 444; 1 "Cent. Law J. 470; Fed. Cas. 12,003. 134. A certificate of discharge is conclu- sive evidence in favor of the bankrupt of the fact and regularity of the discharge, but it is not conclusive evidence in favor of other parties seeking to use it. Dewey v. Moyer, 18 N. B. E. 114 135. It is the right of the alleged bank- rupt, upon a motion to dismiss by either party, to have an order for the examination before the register of the party who verified the petition, and either party may bring in affidavits or evidence before the court. In re Scammon, 11 N. B. E. 280; 6 Biss. 195; 7 Chi. Leg. News, 43; 9 West. Jur. 175; Fed. Cas. 13,439. 136. It iB prima facie evidence of fraud for an insolvent debtor to make a transfer of property outside of the usual course of busi- ness. Webb, Ass., v. Sachs et al., 15 N. B. E. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Cas. 17,325. 137. A discharge by a bankruptcy court having jurisdiction, when properly pleaded in bar in a state court, is conclusive and can- not be attacked for fraud. Hudson et aL v, Bingham et al., 8 N. B. E. 494 138. It is sufficient proof of reasonable cause that bankrupt intended to prefer cred- itor if at the time of receiving the preference he had cause to believe debtor insolvent, and that the debtor knew of his insolvency. Sto- baiigh. Ass., v. Mills et al., 8 N. B. E. 361; 5 Chi. Leg. News, 536; Fed. Cas. 18,461. 139. Certain notes having been purchased from a bankrupt after petition was filed, the court ordered that notes and guaranties thereon be preserved, that they may be used in evidence if required in proceedings against guarantee. In re Lake, 6 N. B. R 543; 3 Biss. 304; 6 West. Jur. 360; 4 Chi. Leg. News, 281 ^ Fed. Cas. 7,993. 140. An obligation given by an officer of a corporation, signing his own name with his official position, may be shown by parol evidence to be the obligation of the corpora- tion. In re Southern Minn. R R Co., 10 N> B. R 86; Fed. Cas. 13,188. 141. Where pi-emises under lease are con- demned by a railroad company, and dam- ages paid to the tenant upon the basis that he is to pay rent during the term, the land- lord on the bankruptcy of the tenant will be allowed to prove the unpaid instalments of rent against the estate. In re Clancy, 10 N. B. R 215; Fed. Cas. 2,783. 142. Where a conveyance was given tO' secure a pre-existing debt admittedly in- curred outside of the ordinary business of the debtor, such fact is prima facie, and if uncontroverted, sufficient, evidence to es- tablish reasonable knowledge on the part of the mortgagee of the debtor's insolvency. Tuttle V. Truax, 1 N. B. R 169; Fed. Cas. 14,377. 143. Where a creditor has before him what the statute declares shall be prima facie evidence of fraud, he must be deemed to have reasonable cause to believe the ex- istence of such fraud. In re Kingsbmy, 3 N. B. E. 84; Fed. Cas. 7,816. 144. The marshal's return of service of notice to creditors is conclusive until re- butted by proof aliunde, but if it appears on its face that due service has not been made the first meeting must be adjourned. In ra Pulver, 1 N. B. R (8 vo. ed.) 46. EXAMINATION OF BANKRUPT, I, II, (a). 221 JIXAMINATIOK" OP BANKRUPT. L Who Entitled to. II. Scope. (a) Wife's Property. (b) Incriminating Questions. (c) General. III. How. Applied foe, IV. When Examination May be Had. (a) In General. (b) After Discharge or Composition. V. Adjournment. VI. Bankrupt's Right to Counsel. VIL Failure to Attend. VIII. Refusal to Answer. IX. In General. See Attorney, 5; Composition, 103; Courts, 100; Discharge, 79, 317; Evidence, 43, 43; Petition, 89; Referee, 4. I. "Who Entitled to. 1. Creditors whose claims have been pro- tested against, if duly proved, will be enti- tled to an order for the examination of the bankrupt. In re Belden et al., 4 N. B. R 57; Fed. Cas. 1,241. 2. A creditor has a right to examine a bankrupt, unless his debt is barred by the statute of limitations throughout the United States. In re Ray, 1 N. B. R. (8 vo. ed.) 203. 3. The act of 1867 entitled any creditor to an order for the examination of the bank- rupt. The fact that one creditor has exam- ined the bankrupt is not a reason for with- holding the privilege from another creditor. In re Vogel, 5 N. B. R. 393; Fed. Caa 16,984. 4.. A creditor may be entitled to an order for the examination of a bankrupt notwith- standing the election of a trustee and com- mittee of creditors under the forty-third section, which section does not confine the power of the court to order an examina- tion to the application of the trustee (1867). In re Cooke & Co., 10 N. B. R. 126; Fed. Cas. 3,168. 5. A creditor opposed to a composition may examine the alleged bankrupt touching the question of the best interest of the cred- itors at the second meeting in composition, and the alleged bankrupt may be directed to produce his books and papers for use in the examination. In re Ash, 17 N. B. R. 19; Fed. Cas. 571. 6. The fact that one creditor has examined the bankrupt generally touching his bank- ruptcy is not ground for withholding the privilege from any other creditor applying therefor. In re Adams, 2 N. B. R. 92; 3 Ben. 7; 36 How. Pr. 270; 1 Chi. Leg. News, 107; Fed. Cas. 40. 7. A bankrupt may be examined by the creditor, notwithstanding such creditor failed to appear upon the day fixed for such examination, or a day appointed for that purpose thereafter. In re Robinson et al., 2 N. B. R. 163; 2 An;^r. LawT. Rep. Bankr. 87; Fed. Cas. 11,943. 8. A bankrupt agreed to produce his books and submit to a more thorough examination of bis accounts, which he did. He was ques- tioned by his counsel and explained matters not made clear at a former examination. Held, that he did not exceed his privileges, and that he should not be charged with the fees of the register for taking this part of the examination. In re Noyes, 11 N. B. R. Ill; 3 LoweU, 352; I'ed. Cas. 10,370. II. Scope. (a) Wife's Property. 9. A bankrupt will be required to answer questions touching the property of his wife and his connection therewith, although such questions relate to a time prior to the creation of the debt of the creditor in whose behalf the inquiry is made. In re Craig, 4 N. B. R. 26; 3 Ben. 353; Fed. Cas. 3,322. 10. A bankrupt, on his examination, de- clined answering questions relative to his wife's property. Held, that the same were pertinent and proper. In re Craig, 4 N. B. R. 50; Fed. Cas. 3,323. 11. Where the wife of a member of a bankrupt firm claims certain estates stand- ing in her name, the bankrupt may be ex- amined as to what property the wife owns, and the amount of money that she had at any time. In re Clark et aL, 4 N. B. R. 70; Fed. Cas. 2,805. 12. A large interest in an incorporated company had been conveyed to the wife of a bankrupt by persons interrested in the sue- 222 EXAMINATION OF BANKRtJPT, II, (b), (c). cess thereof, and to which the services of the banlinipt were deemed to be of especial value. Held, that creditors had a right to examine the bankrupt fully touching the transaction for the purpose of establishing an equitable interest therein in his assignee. In re Bone- steel, 3 N. B. R. 106; Fed. Gas. 1,638. 13. An order for the examination of the wife of a bankrupt will be made when a prima facie case is made out by affidavit, that she has or had in her possession prop- erty which should have been surrendered to her husband's creditors, or has actively par- ticipated in other fraud upon the statute; and when she professes to be a creditor to her husband's estate, if she offers her debt for proof, she can be fully examined in re- gard to it like any other creditor. In re Gil- bert, 3 N. B. B. 37; 1 Lowell, 340; Fed. Gas. 5,410. (b) Inorirn'mating Questions. 14. Upon his examination a bankrupt may decline to answer, if by so doing he would incriminate himself. In re Kooh, 1 N. B. B. 153; 1 Amer. Law T. Rep. Bankr. 131; 15 Pittsb. Leg. J. 531; Fed. Gas. 7,916. 15. Where a bankrupt refused to answer certain questions on the ground that they would criminate or degrade him, held, that he must answer. In re Richards, 4 N. B. R. 25; 4 Ben. 308; Fed. Gas. 11,769. (c) In OenercH. 16. All questions which on their face re- late to property that does not belong to the bankrupt are irrelevant. In re Van Tuyl, 1 N. B. R. 193; 1 Amer. Law T. Rep. Bankr. 133; Fed. Gas. 16,880. 17. Other creditors have no right to inter- pose objections to questions by one creditor to bankrupt. Questions relating to trans- actions between witness and bankrupt must be answered. In re Stuyvesant Bank, 7 N. B. R. 445; 6 Ben. 33; Fed. Gas. 13,583. 18. Under section 4 of the act of 1867, the taking of the direct examination of a wit- ness was a service rendered for and required by the party calling such witness, and the taking of the cross-examination of such wit- ness was a service rendered for and required by the parties cross-examining such witness. Schofield V. Moorhead, 2 N. B. E. 1; ye,a^ Gas. 12,510. 19. Upon the examination of a bankrupt he testified that since the filing of the peti- tion in bankruptcy he had acquired certain property and transacted certain business, but refused to state the nature and character thereof when questioned. Held, that the question as to the nature and character thereof was improper. In re Rosenfield, 1 N. B.,R. 60; 15 Pittsb. Leg. J. 345; 1 Amer. Law T. Rep. Bankr. 47; Fed. Gas. 13,059. 20. A bankrupt cannot be examined as to property acquired or business done after the date of filing of the petition in bankruptcy, provided he states that the same has no con- nection with his estate or business prior to said date. Id. 2 1 . A bankrupt, under the advice of coun- sel, must take the risk of deciding whether he will answer or not. Id. 22. Upon the examination of the bank- rupt it was offered to be shown by the coun- sel for the creditors that a certain debt was fraudulently contracted by the bankrupt. It was objected that it was not competent to show this, and the matter was certified to the court. It was held that the register should take and report all testimony re- quired. In re Koch, 1 N. B. R. 1-53; 1 Amer. Law T. Rep. Bankr. 131; 15 Pittsb. Leg. J. 531; Fed. Gas. 7,916. 23. The examination of a debtor at a com- position meeting must be only such as will be in furtherance of the purpose of arriving at a true exhibit of the debtor's affairs. On objection of a creditor, no vote can be taken on a proposition of compromise until tlie ex- amination of the debtor is completed. Upon demand of a creditor, the debtor must pro- duce his books. In re Holmes & Lissberger, 13 N. B. R. 86; 8 Ben. 74; Fed. Gas. 6,633. 24. As to aU matters concernmg his es- tates a bankrupt is a competent witness; and no objection can lie to his testimony save to its credibility. In re Gampbell, 17 N. B. R. 4; 3 Hughes, 376; Fed. Gas. 3,348. 25. A register has no power to pass upon the materiality or relevancy of questions asked in examinations before him. In re Bond, 3 N. B. R. 3; Fed. Gas. 1,618. 26. The duty of a bankrupt is to disclose whatever may concern any parties inter' EXAMINATION OF BANKEUPT, III, IV, (a). 223. ested to know in reference to his debts, busi- ness or estate. In re Cook & Co., 10 N. B. R. 126; Fed. Cas. 3,168. III". How Applied foe. 27. An order for bankrupt or his wife to be examined is in nature of a summons. In re BeUamy, 1 N. B. R. (8 yo. ed.) 64 28. Where an order for examination of bankrupt was asked by certain creditors, the application for said order being neither in writing nor under oath, and the bankrupt had previously applied for his discharge, held, that the register, in the exercise of his discretion, could grant the order without re- quiring a petition or affidavit duly verified showing cause of granting same; and that the time to examine the bankrupt does not expire with the making of his application for discharge. In re Solis, 4 N. B. R. 18; 4 Ben. 143; Fed. Cas. 13,165. 29. It is not necessary to give notice to bankrupts of time and place of examination of witnesses, and the same can be proceeded ■with without reference to examination by creditors. In re Levy, 1 N. B. E. 66; 3 Ben. 169; Fed. Cas. 8,397. 30. An order was made by the register for the examination of one of the bankrupts, reciting that it was made on the application of F. & Co., a party claiming to be interested in the estate. The bankrupt objected on the ground that the register had no power to make such an order, that the order should have been made only on a verified applica- tion in writing, and that the order did not purport to be " on the application of a cred- itor " who had proved his claim. Held, that the order was correct in form and was prop- erly issued. In re Vetterlein, 4 N. B. R. 194; 5 Ben. 7; Fed. Cas. 16,936. 3 1 . After service of petition and the orders in the case, an alleged bankrupt is liable to examination to ascertain what disposition he has made of his property, and, if he be in court on his own behalf, no other notice is necessary than the motion for examination made in his presence, and he cannot claim the protection of the court on the ground that his answers will criminate himself, or tend to prove him guilty of a fraudulent con- cealment or disposition of his property. In re Bromley & Co., 3 N. B, R. 169. 32. A creditor who had duly proved his claim applied verbally for an order for the examination of a bankrupt. Held, that the order could only be granted when applied for by petition or afiidavit, duly verified^ showing good cause therefor. In re Adams,. 3 N. B. E. 33; 3 Ben. 503; 36 How. Pr. 51; Fed. Cas. 39. 33. An application for an order for the examination of a bankrupt before the regis- ter need show no cause therefor, nor be veri- fied by affidavit. In re McBrien, 3 N. B. E. 73; 3 Ben. 513; Fed. Cas. 8,665. 34. A special application to the judge of the bankruptcy court for an order for the ex- amination of the bankrupt by creditors need} not be sustained by a certificate of the regis- ter as to the propriety therefor. In re Brandt, 3 N. B. R. 109; Fed. Cas. 1,818. IV. "When ExAMnsTATioif Mat be Had.. (a) In General. 35. The bankrupt has a right to be pro- tected against unreasonable demands for further examination, and a subsequent ap- plication for examination may properly be denied, unless the first examination was col- lusive or deficient in material and specified particulars. In re Frisbie,' 13 N. B. R. 349 ^ Fed. Cas. 5,131. 36. Register has power to make an order requiring witness or bankrupt to appear and be examined. On such examination witness ■may be examined as fully as under a refer- ence upon a creditor's bill In re Pioneer Paper Co., 7 N. B. E. 350; Fed. Cas. 11,178. 37. It is the duty of the debtor to be ready for examination upon due notice, but he need not notify the creditor when and where ex- amination is to be had. In re Suttlefield, 3 N. B. R. (8 vo. ed.) 13; 1 Lowell, 331; 3 Amer. Law T. 133; Fed. Cas. 8,398. 38. The specifications filed in opposition to a discharge being held irregular, ten days were allowed in which to amend. When pre- sented amended, the creditors asked for an examination of the bankrupt. Abundant time had been accorded for the examination in regular course, but none was made. No showing by affidavit was made to support the request for an examination, and it was 224 EXAMINATION OF BANKRUPT, IV, (b). denied. In re Isidor and Blumenthal, 1 N. B. R 83; 3 Ben. 133; Fed. Gas. 7,105. 39. Where the examination of a bankrupt under a previous order has been abruptly- terminated by non-attendance of assignee's counsel, and an order for a new examination was taken by assignee, held, that the bank- rupt is required to submit to the examina- tion. In re Van Tuyl, 3 N. B. R. 35; Fed. Gas. 16,881. 40. A bankrupt in attendance at a meet- ing to show cause against his discharge may be required by the register to submit to an examination upon oath touching his bank- ruptcy by a creditor. In re Brandt, 3 N. B. E. 76; Fed. Gas. 1,813. 41. When a bankrupt appears before the register to take and subscribe to the final oath, he may be examined by any creditor, or by the assignee in the interest of credit- ors, with the view to showing that the re- quirements of the act, or some one of such requirements; have not been conformed to, but the creditor will be required to pay for any services rendered at his request which ^re hot required to be performed if no cred- itor appears. In re Jackson, 8 N. B. R. 434; Fed. Gas. 7,138. 42. On petition in bankruptcy filed, an ■order was granted for the examination of the debtor prior to adjudication. On review of the competency of the court to grant such order, held competent, but that such exana- ination should only be allowed in further- ance of justice and to protect the rights of creditors. In re Salkey et aL, 9 N. B. R. 107; 5 Biss. 486; 6 ChL Leg. News, 69; 3 Amer. Law Rec. 503; 31 Pittsb. Leg. J. 56; Fed. ■Cas. 13,353. 43. So long as a creditor's debt stands proved and unimpeached, a claim made by the bankrupt before the register that any indebtedness that ever existed from him to said creditor was offset and extinguished by a counter-indebtedness furnishes no ground for a refusal on the part of the bankrupt to be sworn and examined on the application of such creditor. In re Kingsley, 7 N. B. R. 558; 6 Ben. 300; Fed. Gas. 7,818. 44. In examination proceedings the debtor was examined in writing at sundry adjourn- ments of the meeting. The debtor objected to its continuance, and his objection was sustained. In re Proby, 17 N. B. R. 175; 13 Amer. Law Rev. 598; 17 Alb. Law J. 167; Fed. Cas. 11,439. 45. The register has not the power, by an announcement beforehand, to fix a limit of time within which the examination of the debtor must be concluded, without regard to the nature of questions sought to be put or the interest with which propounded. In re Tift, 17 N. B. R. 431; Fed. Gas. 14,036. 46. Where a bankrupt gave a cause for refusing to be further examined, and by a vote sufficient to pass the resolution of com- position the creditors decide the cause is sat- isfactory, the vote is sufficient. In re Tifft, 17 N. B. E. 502; Fed. Ga«. 14,039. 47. A bankrupt cannot be examined for the purpose of showing that the debt was created by fraud. In re Rosenfield, 1 N. B. R. 161; 7 Amer. Law Reg. (N. S.) 618; 1 Amer. Law T. Rep. Bankr. 81; Fed. Cas. 13,058. 48. After the first meeting of creditors an order was made for the examination of the bankrupt by a certain creditor, the date whereof was several times adjourned. The bankrupt finally obtained an order to show cause why he should not be discharged, when said creditor filed his objections, to which the attoriiey for the bankrupt objected. An examination was allowed. In re Seoken- dorf, 1 N. B. R. 185; 3 Ben. 463; 15 Pittsb. Leg. J. 450; 1 Amer. Law T. Rep. Bankr. 132; Fed. Cas. 13,600. (b) After Discha/rge or Composition. 49. A bankrupt is not required to submit to an examination under section 36 after he has been discharged in bankruptcy, unless the discharge is set aside under section 34 (1867). In re Jones, 6 N. B. R. 386; Fed. Gas. 7,449. 50. After the discharge is granted, the bankrupt cannot by summary order be re- quired to submit to an examination touching property alleged to have been concealed or fraudulently transferred. In re Dole, 7 N. B. R. 538; 7 West. Jur. 639; Fed. Cas. 3,965; In re Dole, 9 N. B. R. 198; 11 Blatchf. 499; Fed. Gas. 8,964. 51. The fact that the bankrupt has re- ceived his discharge more than two years before is not a good objection to his being EXAMINATION OP BANKRUPT, V-VH 225 examined in accordance with the twenty- sixth section of the act of 1867. In re Heath «t aL, 7 N. B. R. 448; Fed. Cas. 6,304. 52. After a bankrupt's discharge the reg- ister cannot order him to appear and submit to an examination touching his acts and business prior to adjudication. In re Dean, 3 N. B. E. 288; Fed. Cas. 3,701. 53. A creditor who had proved his debt applied for an examination of the bankrupt. This was opposed on the ground that a reso- lution of composition had been adopted and confirmed by the requisite number of credit- ors. Held, that the creditor's right to exam- ine the bankrupt was suspended. In re Tifft, 18 N. B. R. 177; Fed. Cas. 14,032. Y. Adjotjenment. 54. The examination may be adjourned beyond the return day of the order to show cause. In re Mawson, 1 N. B. R. 40; 1 Amer. I.aw T. Rep. Bankr. 46; Fed. Cas. 9,330. 55. An order for creditors to show cause in opposition to a discharge, being return- able on a certain date, the bankrupt appeared and the counsel for the creditors requested an adjournment on the ground that an ex- amination of the bankrupt was in progress under order of the court. An adjournment was ordered. In re Thompson, 1 N. B. R 65; ■3 Ben. 166; Fed. Cas. 18,935. See also IV, (a), supra. VI. BAifKETrPT's Right to CoinsrsEL. 56. In the examination of a bankrupt he may not consult with his counsel before an- swering interrogatories, except by permission of the register. In re Collins, 1 N. B. R. 153; Z Amer. Law T. Rep. Bankr. 7; Fed. Cas. 3,008. 57. The examination of a bankrupt is an •examination in open court upon the trial of the cause and must be an oral examination. It is in the discretion of the court to allow the bankrupt counsel on such examination. In re Judson, 1 N. B. E. 83; 3 Ben. 310; 35 How. Pr. 15; 1 Amer. Law T. Rep. Bankr. 139; Fed. Cas. 7,563. 58. The counsel for a creditor propounded a question to the bankrupt under examina- tion and required a direct answer. The counsel for the bankrupt claimed the right 15 to assist the bankrupt in his answer. It was held that the bankrupt might be examined the same as a witness in any cause on trial in the district court, but he cannot consult with counsel Id. 58. A bankrupt, on examination, may be cross-examined by his own counsel. In re Leachman, 1 N. B. R. 91; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 8,157. 60. A bankrupt should have every proper facility upon examination for refreshing his recollection and making true and careful answer. He may, when necessary, consult books, papers, and even counsel when the ex- amining magistrate sees good cause for al- lowing it. In re Tanner, 1 N. B. R. 59; 1 Lowell, 315; 15 Pittsb. Leg. J. 344; 35 How. Pr. 30; 1 Amer. Law T. Rep. Bankr. 121; Fed. Cas. 13,745. 61. The register must determine, accord- ing to the circumstances of the case, whether or not a bankrupt sha,ll be allowed to consult his counsel during his examination. In re Lord, 3 N. B. R. 58; Fed. Cas. 8,503. VII. Failuee to Attend. 62. Where an order of examination was not served within the district, the court has no authority to arrest the bankrupt in an- other district for contempt in not appearing to answer such process. In re Hodges, 11 N, B. R. 369; Fed. Cas. 6,563. 63. A bankrupt was required to show cause why he should not be in contempt for not appearing to be examined under section 26. He replied that before the order was is- sued he had been discharged. The proceed- ings for contempt were dismissed (act of 1867). In re Jones, 6 N. B. R. 386; Fed. Cas. 7,449. 64. A bankrupt who has been ordered to submit himself to further examination at a specified time and departs from the district before the time arrives will not be discharged until he has submitted to such examination. In re Kingsley, 16 N. B. R. 301 ; Fed. Cas. 7,820. 65. The failure of a bankrupt's wife to at- tend and submit to an examination as a wit- ness in the bankruptcy proceedings as re- quired by the register's order is sufficient to prevent the discharge of the bankrupt, un- less he shall prove to the satisfaction of the 326 EXAMINATION OF BANKRUPT, VIII, IX. court that he was unable to procure her at- tendance. In re Van Tuyl, 3 N. B. R. 177; 8 Ben. 337; 1 Uhi Leg. News, 336; Fed. Cas. 16,879. YIII. Eefusal to Answer. See Courts, 100; Evidence, 43, 43. 66. Where it appears that bankrupts pur- chased a large amount of goods before their failure, kept no record of the manner in which they disposed of them, and, when in- terrogated before the register, said they could give no account of the matter, the district court has power to imprison them for a re- fusal to make such answer as will account for the disappearance of the property. lu re Salkey et al., 11 N. B. E. 516; 6 Biss. 380; 7 Chi. Leg. News, 195; Fed. Cas. 12,254 67. If a creditor chooses, he can, upon re- fusal of a bankrupt to answer, apply to the district judge to punish the party as for con- tempt of court, and upon such application the judge will decide whether or not the question is a proper one. In re Rosenfleld, 1 N. B. R. 60; 15 Pittsb. Leg. J. 245; 1 Amer. Law T. Rep. Bankr. 47; Fed. Cas. 13,059. 68. A witness cannot object to be ex- amined in any matters in application made and filed for his examination which shall be within the subjects mentioned in section 26 of the bankrupt act. In re Blake, 2 N. B. E. (8 vo. ed.) 8; Fed. Cas. 1,493. 69. By submitting objection to examina- tion to register's decision, bankrupt waives the right to have the question adjourned into court. In re Patterson, 1 N. B. R. (8 vo. ed.) 100. IX. In Geneeal. 70. A motion for confirmation of a com- position was opposed by two creditors on the ground that at the first meeting one of the debtors was excused from examination, on account of illness, by vote of the creditors. Held, that the objection was frivolous. In re Wilson et al., 18 N. B. E. 300; Fed. Cas. 17,785. 71. When the examination of a bankrupt is desired in respect to the hearing of a mo- tion to expunge proof of a claim, he should be summoned as a witness. Canby, Ass., v. McLear, 13 N. B. E. 23; Fed. Cas. 2,378. 72. The question whether an examination incompleted can be used against the bank- rupt is not one properly arising in the course of his examination, and must be answered by the judge before whom the examination may be ofliered, if offered in its incomplete condition. In re Noyes, 11 N. B. E. Ill; 3" Lowell, 353; Fed. Cas. 10,370. 73. A witness may be examined in regard to property in which the bankrupt may pos- sibly have an interest, and as to any property that the bankrupt owned or had a right, title or interest to or in at the time of the filing of his petition in bankrupcty. In re Dole, 7 N. B. E. 538; 7 West. Jur. 639; Fed. Cas. 3,965. 74. After the filing by creditors of speci- fications in opposition to application of bank- rupt for a discharge, no further examination of the bankrupt can be had before the reg- ister. Further examination must proceed under section 36 (act of 1867). In re Frizelle,. 5 N. B. E. 119; Fed. Cas. 5,133. 75. The examination of a bankrupt upon an order issued by the register before whom the petition is pending may be had before such register. In re Lanier, 3 N. B. E. 59; Fed. Cas. 8,070. 76. In investigations in bankruptcy pro- ceedings, the bankrupt occupies the position of a witness, and therefore his counsel may cross-examine him, or he may appear as a. witness in his own behalf, the examination being confined to the issue made by the plead- ings. In re Witkowski, 10 N. B. E. 209; Fed, Cas. 17,930. 7 7 . A bankrupt when ordered to appear for examination in reference to his bankruptcy is not entitled to any fees or compensatioiu In re McNair, 2 N. B. R. 77; Fed. Caa 8,907. 78. Upon the question whether the bank- rupt has made a full disclosure in accord- ance with an prder requiring it, if applica- tion is made to review the decision of the district court, the court must be satisfied by the petitioner tliat the report of the bank- rupt is such as a reasonable man could not credit. In re Mooney et aL, 15 N. B. E. 456 ; 14 Blatchf. 204; Fed. Cas. 9,748, 79. The bankrupt is not entitled to wit- ness fees on ^.ppearance for examination. In re Okell, 1 N. B. R. 53; 3 Ben. 144; 3 Pittsb. Leg J. (N. S.) 233; Fed. Cas. 10,474. 80. In examination of bankrupt by credit- ors register will pass upon questions objected EXCHANGE — EXECUTION, I-IIL 227 to, and objection being made and exception taken, he will at close of testimony entertain motion to strike out answers or admit ex- cluded questions and certify to court. In re Lyon, 1 N. B. R (8 to. ed.) 111. EXCHANGE. See Peefekence, 239. EXECUTION. L Prior to Bajstkeuptct Proceedings. II. After Commencement of Proceedings. Ill Whether a Preference. rV. T.TF.N . V. In General. See Composition, 82; Estates, 4, 21; Exemp- tions, 47; Injunction, 1; Sales, 89; Sherepp, 7; Trustees, 207. I. Prior to Banketjptct PE0CEBDn recognizance to appear for examination under the laws of the state for the relief of poor debtors. He appeared, and the examination was continued from time to time. The bank. JUDGMENT, III, (b)-V, (a). 269 «upt, pending examination, filed his petition in bankruptcy and an assignee was chosen. The creditor afterwards filed charges of fraud against the bankrupt, under the statute of the state. Held, that such charges of fraud ■are not a new suit which should be stayed under the bankrupt act, and that the bank- rupt was entitled to a discharge from arrest. Minon v. Van Nostrand, 4 N. B. E. 38; 1 Lowell, 458; Fed. Oas. 9,642. 35. In an action on a judgment recov-. ■©red prior to an adjudication, the plaintifi^ is entitled to set up a fraudulent concealment ■by the bankrupt of his property, against his plea of discharge. In re Perkins et al., 3 N. B. R. 189. (b) Tort. 38. A judgment entered in an action for ■a tort after the commencement of the pro- ceedings, upon a verdict rendered before that time, is not a provable debt. Leave to issue •execution on the judgment will not be granted. Black v. McClelland, 13 N. R E. 481; 7 Chi Leg. News, 430; 1 N. Y. Wkly. Dig. 174; Fed. Cas. 1,463. 37. iL brought against B. an action in tort for personal injuries. Before the final judgment was perfected a petition in bank- ruptcy was filed against B. The judgment was perfected before adjudication. Held, that such a judgment, if entered before ad- judication, may be proved against a bank- rupt's estate. In re Hennocksburg et al., 7 N.B.R 37; 6 Ben. 150; Fed. Cas. 6,367. IV. Trustee. 38. Where an assignee in bankruptcy ap- phed to the court to sell real estate, subject to specified incumbrances, and an order was accordingly made, and after the sale the as- signee reported that the property had been fiold free of all inoum branoes other than those specified, held, that the holder of the judg- ment, which was a lien against the property, and who was not a party to the proceedings, was not debarred from enforcing his lien, as the court confirmed the sale and not the as- signee's report. In re McGilton et al., 7 N. B. E. 394; 3 Biss. 144; 39 Leg. Int. 333; 5 Chi. Leg. News, 1; 30 Pittsb. Leg. J. 39; Fed. Cas. «,798. 39. Where a judgment was a lien on the bankrupt's lands and an assignee was ap- pointed after judgment, on a petition filed also after judgment, the rents of the land go to the assignee and not to a receiver of the court where the judgment was had, who was appointed after the filing of the petition. Conover v. Dumahaut et al., 17 N. B. E. 558. 40. Where a creditor has leave to proceed with a pending cause, pursuant to section 5106, Eevised Statutes, a judgment without making the assignee a party is valid. In re The Bousfield & P. Mfg. Co., 17 N. B. E. 153; Fed. Cas. 1,704. 41. The amo\mt collected by a foreign creditor under his execution levied after the adjudication must be accounted for to the assignee, and proof be made and dividend taken upon the original debt without regard to the subsequent judglnent. In re Bugbee, 9 N. B. E. 358; Fed. Cas. 3,115. Y. Peefeeence and Confession. See Preferences, 17, 356, IX, XVI, (e); Com- mercial Paper, 36. (a) In Oeneral. 42. A creditor who obtains payment of his debt under a, judgment, through the non- residence of the debtor, is not liable to repay the money to the assignee. Henkelman et aL V. Smith, Ass., 13 N. B. R 131. 43. There was a confession of judgment and a levy in November and the bankruptcy of the defendant occurred in January follow- ing. Sdd, a preference, and motion to satisfy the judgment out of the proceeds of the sale was denied. In re Fitch et al., 3 N. B. R 164; Fed. Cas. 4,835. 44. The preference upon a judgment note is not obtained when a warrant of attorney is given, but when judgment is entered. Gol- son et al. v. Niehoff, 5 N. B. E. 56; 3 Biss. 434: Fed. Cas. 5,534. 45. A debt due certain creditors was' merged in a judgment which was a fraudu- lent preference. It was held not provable, and a petition founded upon it cannot be sus- tained, but the creditors will be allowed to surrender such preferences, when adjudica- tion will be allowed. In re Hunt et aL, 5 N. B. E. 433; Fed. Cas. 6,883. 270 JUDGMENT, VI, (a), (b), VII. 46. "When the United States take a judg- ment they waive tlie right to prove the debt, and, notvi^ithstanding the discharge of the debtor, this debt is not affected by discharge (act of 1867). In re Mansfield, 6 N. B. E. 388; Fed. Cas. 9,049. 47. A judgment may be confessed for money contingently to become due. Cook V. Waters et al., 9 N. B. R. 155. 48. The Code of Procedure makes no change in the then existing laws as to the character of the liability, existing or contin- gent, for which a judgment might be con- fessed (act of 1867). Id. 49. The confession of a judgment, the issu- ing of an execution, and a sale of property under it, constitute an indirect transfer of such property by the debtor. Zahm v. Fry et al., 9 N. B. R. 546; 10 Phila. 243; 31 Leg. Int. 197; 21Pittsb. Leg. J. 155; Fed. Cas. 18,198. 50. A judgment recovered by a creditor in the course of practice of the courts, and without collusion between the creditor and the debtor for the purpose of giving such creditor priority, and the levy under it, are good, even as against an assignee in bank- ruptcy subsequently appointed. Dolson et aL V. Kerr, Sheriff, 16 N. B. E. 405. YI. YoiD. (a) In Oeneral. See Claims, 9; Petition, 161. 51. A judgment, though confessed upon a defective statement, is not absolutely void, but is only so as to creditors who have a lien upon the property sought to be affected by the judgment. In re Fuller, 4 N. B. R. 39; 18 Pittsb. Leg. J. 83; 3 Chi Leg. News, 373; Fed. Cas. 5,148; 1 Sawy. 343. 52. A judgment obtained against an in- solvent debtor is not declared void by the act under any circumstances; and, if ob- tained without fraud or collusion, is as con- clusive evidence of the claim and its amount as if given against solvent debtor. Catlin v. Hoffman, 9 N. B. R. 343; 3 Sawy. 486; 31 Pittsb. Leg. J. 159; Fed. Cas. 3,531. 53. A judgment is void if the plaintiff knew at the time it was entered up that the debtor had executed an assignment to the plaintiff and another party. Shaffer v. Fritch- ery et aL, 4 N. B. E. 179; Fed. Cas. 12,897. 54. A stipulation in a judgment that the- interest on it shall bear interest if not paid annually is void and does not make such judgment usurious. In re Fuller, 4 N. B. R, 39; 1 Sawy. 343; 18 Pittsb. Leg. J. 83; 3 ChL Leg. News, 373; Fed. Cas. 5,148. 55. If proceedings in bankruptcy are com- menced within four months after the issu- ing of an attachment, a judgment entered thereinafter is void. King v. Loudon, Ass.^ 14 N. B. R. 383. (b) WJim Wot Set Aside. 56. Judgment notes given long before tha judgment debtor was adjudged, and just previous to his bankruptcy, to secure loans- of money, and given at the times the money was advanced, are valid ; and judgments en- tered upon such notes within a short time before the filing of the petition in bank- ruptcy will not be set aside. Piper v. Baldy, 10 N. B. R. 517; 10 Phila. 347; 31 Leg. Int. 316; 33 Pittsb. Leg. J. 39; Fed. Cas. 11.179. 57. Judgments are not to be set aside as fraudulent and void merely because the plaintiff has exacted a high rate of interest, especially when, at the time of entering the judgments, valuable collateral securities- were surrendered to the debtor by the plaint- iff for a large part of said judgments. Shaf- fer v. Fritchery& Thomas, 4N. B. R. 179; Fed, Cas. 13,697. 58. A judgment note given for a valuable consideration more than four months before the commencement of proceedings on which the judgment is entered, and execution is issued within four months of the commence- ment of proceedings in bankruptcy, is valid. Sleek et aL v. Turner, Ass., 10 N. B. E 580. YII. Kedemption. 59. Under the statutes of Alabama the right of redemption is secured to the debtor whose land is sold and to his judgment cred- itors whose judgments would, but for the sale, operate as a lien on the land, but not to the creditors generally, Trimble v. Will- iamson, 14 N. B. R. 53. 60. Where the right of a creditor and that of a debtor to redeem property, sold under an execution, are distinct under the state law, the bankruptcy of the debtor does not ' affect the right of the creditor. Id. JUDGMENT, VIII-X 271 61. A. 's 'property was sold under the mort- gage for less than the amount thereof. The property was bid in by the mortgagee, who took judgment for the deficiency, A.'s as- signee in bankruptcy redeemed the property by paying the amount for which it had been bid in with interest. Hdd, that the judg- ment for the deficiency was not a lien on the property. Lloyd, Ass. etc., v. Hoo Lue et al., 17 N. B. E. 170; 5 Sawy. 74; 1 San Fran. Law J. 392; Fed. Gas. 8,432. VIII. Docket. 62. In the entry of the docket of a judg- ment, the amount and date of the judgment, the parties to it, and the court in which it was rendered, appeared. Held, a valid entry. In re Boyd, 16 N. B. R. 204; 4 Sawy. 262; 9 Chi. Leg. News, 385; 10 Ghi. Leg. News, 1; 4 Law & Eq. Eep. 488; 6 Amer. Law Rec. 311; Fed. Gas. 1,746. 63. The record of a judgment disclosed the fact that the judgmeoat creditor was re- strained from enforcing it against the sep- arate property of the debtor. Hdd, that the judgment record might be examined to test the validity of the docket entry, although it could not be resorted to to supply omissions in the entry. Id. 64. The docketing of a transcript of judg- ment on a holiday is not void, in the absence of legislation to the contrary, and establishes a lien on the real estate of the debtor in the county where filed. In re Worthington, 16 N. B. E. 52; 7 Biss. 455; 1 N. W. Eep. (O. S.) 109; 9 Chi. Leg. News, 346; 4 Law & Eq. Eep. 78; 16 Alb. Law J. 63; 23 Int. Eev. Eeo. 233; 2 Cin. Law BuL 189; Fed. Gas. 18,051. 65. The docketing of a judgment on a day that is declared a holiday by statute is void and confers no lien, for the term "holiday" imports dies nonjMridicMS. Id. IX. Paetnees. 66. Where a judgment is obtained against partners and others jointly, it is a several claim as against the bankrupts, and is not entitled to a dividend from the joint estate. In re Herrick, 13 N. B. E. 312; Fed. Gas. 6,420. 67. G. obtained judgment on notes against K. Bros., and S. K. Bros, were subsequently adjudged bankrupts, and G. proved against their estate. On motion to expunge, held, that the debt could be proved against the estate of the principal debtors, notwithstand- ing a joint judgment had been recovered therefor against the principal debtors and surety. In re Kitzinger et al., 19 N. B. E. 152 ; Fed. Cas. 7,861. 68. A judgment recovered by a partner- ship creditor against the members of a firm operates as a several lien against the real es- tate of each partner, and if prior to a judg- ment against an individual partner, of sia individual creditor of such partner, is to be- preferred to such subsequent judgment. If such partnership creditor can get satisfao- • tion of any part of his judgment out of the partnership assets, the pro rata distribution, to which he is entitled shall be first applied as a credit on said judgment against the sep- arate partner in relief of the fund of such separate partner for the benefit of the sepa- rate creditor. In re Lewis, 8 N. B. E. 546; 2" Hughes, 320; 21 Pittsb. Leg. J. 77; Fed. Gas. 8,313. 69. Judgment was recovered on the note- of the firm A., B., G. & D. in an action in which D. was not served with process. On? the bankruptcy of the firm, held, that the judgment could not be paid out of the pro- ceeds of the sale of real estate, the legal title- to which was in D. In re Hinds et al., 3 N. B. E. 91; Fed. Cas. 6,516. 70. A member of an insolvent firm, hav- ing knowledge of the insolvency, at the re- quest of a creditor holding the firm's judg- ment note, rmwillingly carried a message from the creditor to an attorney, directing him to enter judgment. Held, that he had procured entry of judgment. In re Benton et al., 16 N. B. R. 75; 3 Wkly. Notes Cas. 547;: Fed. Gas. 1,333. X. In Geneeal. See Claims, 106, 196, VIII, (b), IX, (1), X. (f); GOTJBTS, 66; DisOHAEGE, 309, 330; Divi- dends, 34; Estates, 183, 190, 191; Insolv- ency, 43. 71. A judgment taken by confession as collateral for the aggregate of several other v-alid judgments does not affect their valid- ity. Vogle V. Lathrop, 4 N. B. E. 146 ; 3 Pittsb. Eep. 268; 18 Pittsb. Leg. J. 106; Fed. Gas.. 16,985. 372 JURATS — JURY TRIALS, I-m. 72. A judgment upon which an appeal is pending is a final judgment in the contem- plation of the bankrupt act. Merritt v. Glid- den et al, 5 N. B. E. 157. 73. Unsatisfied judgments against others liable with the bankrupt are not affected by proving a debt against him. In re Levy, 1 N. B. R. 66; 3 Ben. 169; Fed. Cas. 8,397. 74. A creditor who obtains judgment for his debt after adjudication, and takes out execution, cannot prove his debt in bank- ruptcy, and cannot oppose the bankrupt's discharge. In re GaUison, 5 N. B. R. 353; 3 Lowell, 73; Fed. Cas. 5,303. 75. A judgment rendered after proceed- ings in bankruptcy on a provable debt does not prevent the original debt being proved in the proceedings. In re Rosey, 8 N. B. R. 509; 6 Ben. 507; Fed. Cas. 13,066. 76. A bankrupt permitted a judgment to be recovered against him, the cause of action on which the same was recovered having arisen prior to his discharge. Held, that hav- ing waived his discharge the creditor had a right to enforce the judgment against any property of the debtor. Dewey et aL v. Mayer «t al., 16 N. B. R. 1. 77. On a note on which the bankrupt was indorser, action was commenced prior to fil- ing the petition, and judgment was recovered after filing the petition but before adjudica- tion. Held, that the debt upon which the judgment is foimded is merged in the judg- ment. In re Crawford, 3 N. B. R. 171 ; 3 Amer. Law T. 169; 1 Amer. Law T. Rep. Bankr. 310; Fed. Cas. 3,368. 78. The fact that a claim existed, at the time of giving a mortgage, as a liability and not as a debt, does not change the relation of the party, and a subsequent judgment is neither a payment nor satisfaction of it. Burtee v. First Nat. Bank, 9 N. B. R. 314 79. A judgment recovered in an action in •assumpsit commenced prior to, and prose- cuted during, proceedings in bankruptcy, is a provable debt. In re Stansfleld, 16 N. B. R. 268; 4 Sawy. 334; Fed. Cas. 13,394. 80. A judgment which is a lien on prop- erty sold by the bankrupt before the com- mencement of the proceedings may be en- forced against such property, although it was proved in bankruptcy, if such proof was sub- sequently withdrawn under a special order of the court. Phillips v. Bowdoin, 14 N. B. R, 43. JURATS. See Etidencb, 98. JURISDICTIOIT. See Appeal and Writ op Ebeoej Coubts, IL JURY TRIALS. L When Allowable. IL Waiter. III. Insteuctions. IV. In GrENEEAL. I. "When Allowable, 1. When a petition is filed to obtain pay- ment for rent that accrued while the as- signee occupied the premises, a jury trial may be allowed. Buckner v. Jewell & Nor- ton, 14 N. B. R. 386. 2 . Issues of fact arising during the progress of summary proceedings may, by direction of the court, be tried by jury. BUI, Ass., v. Beckwith, 3 N. B. R. 83; 1 Chi Leg. News, 103; Fed. Cas. 1,406. 3 . If a discharge in bankruptcy be pleaded, the court cannot dismiss the cause on that ground, but must submit the issue to a jury (act 1867). Austin t. Markham, 10 N. B. R. 548. II. Waitee. 4. On the return day of an order to show cause the defendant appeared by attorney, but neither filed an answer or other plea or demanded trial by jury, and a continuance was granted on the request of the defendant. On the day to which the case was continued he entered his motion for leave to file an an- swer and demanded a trial by jury. Held, that he had waived right to demand a jury trial In re Sheny, 8 N. B. R. 143. III. Instetjotions. See Evidence, XL 5. Instructions are entitled to a reason- able construction, and if correct, when ap- plied to the facts submitted to the jury, they will be sustained in an appellate court, even though, when standing alone, they would be incomplete in respect of some matter suffi- JURY TRIALS, IV — LACHES, I, IL 273 ciently explained in the evidence. Willis v. Carpenter, 14 N. B. R. 531; Fed. Caa 17,770. 5a. It is not error to direct the attention of the jury to the distinction between "rea- sonable cause to believe" and "actual be- lief." Lawrence, Ass., v. Graves, 5 N. B. R. 279; Fed. Cas. 8,138. IV. Iif Geneeal. 6. If the respondent desire to controvert the petition, he should, on the return day of the order to show cause, appear before the court and allege that the facts set forth in the petition are not true, and demand a hear- ing by the court, or a trial by jury, and the court should make a record of such allega- tion and demand; but no portion of these proceedings previous to the making of the record by the clerk is required to be in writ- ing, except the demand for a trial by jury v» Smith, 7 N. B. R 513; 16 Wall 377. S14: NOTICE, IV. 28. Creditors issuing executions on judg- ments obtained upon demands long overdue against a bankrupt who has been pressed in repeated instances to pay or secure the de- mands, and has failed to do so, must be held to have had reasonable cause to believe that their debtor was insolvent. Id. 29. A state court may entertain an action brought by an assignee to recover money re- ceived as a preference. The consent of the debtor to revive a judgment so as to con- tinue the lien thereof does not affect the creditor with knowledge of insolveqoy which he had no reasonable cause to believe from •other facts, and does not constitute a pref- erence. Kemmerer v. Tool, 12 N. B. E. 334. 30. Assignees in bankruptcy brought a bill against a creditor alleging that on exe- cution he had sold the propertj', thereby ob- taining a preference, having reasonable cause to believe the bankrupts insolvent. Held, that as before the filing of the petition the bankrupts were compromising their debts, the creditor had no reasonable cause to be- lieve he was obtaining a preference. War- ren et aL, Ass., v. Tenth Nat. Bank et al., 5 N. B. R. 479; 5 Ben. 395; 43 How. Pr. 169; Fed. Cas. 17,200. 31. Where it appears that the debtor who gives a preference to a creditor was insolv- ent and that the means of knowledge were at hand, and that such facts wei'e known to the creditor securing the preference as clearly ought to have put him upon inquiry, it would seem to be a just rule of law to hold that he had reasonable cause to believe that the debtor was insolvent. Under such cir- cumstances ordinary prudence is required of a creditor, and if he fails to investigate he is chargeable with all the knowledge it is reasonable to suppose he would have ac- quired if he had performed his duty. Bu- chanan et al. V. Smith, 7 N. B. R. 513; 16 Wall. 377. 32. Actual knowledge of insolvency, as re- gards a transfer within four months of an application in bankruptcy, is not necessary, but the inquiry is whether as business men, acting with ordinary prudence, the mort- gagees, etc., would have reasonable cause to believe that the debtors were insolvent. Soammon, Ass., v. Cole et al., 5 N. B. R. 257; Z Cliff. 473; Fed. Cas. 12,433. 33. Ordinary prudence is required of the purchaser in respect to the title of the seller, and if he fails to investigate when put upon inquiry he is chargeable with all the knowl- edge he would have acquired had he per- foi-med his duty. Id. 34. A creditor holding the paper of his debtor, in respect to which the debtor has committed an act of bankruptcy by suffer- ing it to remain unpaid for more than two months after maturity, must be held to know that the debtor is insolvent and has commit- ted an act of bankruptcy, if such creditor, instead of putting the debtor into bank- ruptcy, proceeds to take measures to secure a preference over other creditors. Warren V. Tenth Nat. Bank et al., 7 N. B. R. 481; 10 Blatchf. 493; Fed. Cas. 17,203. 35. A knowledge of facts and circum- stances which would put a prudent man upon inquiry is a reasonable cause to believe a debtor insolvent. Webb, Ass., v. Sachs et al., 15 N. B. E. 168; 4 Sawy. 158; 9 ChL Leg. News, 156; Fed. Cas. 17,325. 36. Where repeated demands for payment are met by promises to pay a debt at speci- fied times, which are not kept, and where a creditor knows that the debtor has other debts greater in amount than his own, he will be presumed to know that the debtor is insolvent, if in fact he is. In re Armstrong, 16 N. B. R. 375; 9 Ben. 213; Fed. Cas. 539. 37. A creditor has reasonable cause to be- lieve that his debtor is insolvent when such a state of facts is brought to his notice re- specting the pecuniary condition of his debtor as would lead a prudent man to the conclusion that the debtor is unable to meet his obligations in the ordinary course of his business. Dutcher v. Wright, Ass. etc., 16 N. B. R 831; 94 U. S. 553. 38. A debtor was insolvent and the cred- itor might have ascertained the fact by rea- sonable inquiry. It did not appear that the creditor made any inquiries as to his pecun- iary standing except from one other creditor. In an action to recover securities transferred by the bankrupt to the creditor to secure his debt, held, that the creditor had reason to believe that the debtor was insolvent Id. 39. A banker who receives security for the payment of a draft which he cashed on the preceding day has reasonable cause to NOTICE, v-vn. 315 fcelieve that the drawer is insolvent. Mer- ■chants' Nat. Bank v. Cook et al., Trustees, 16 N. B. R. 391; 95 U. S. 342. 40. A plaintiff purchased notes of the de- fendant with knowledge of the failure of the latter, the same being bought between the date of suspension and the filing of the peti- tion in bankruptcy. Held, that the plaintiff had constructive knowledge of such suspen- sion of payment. Hunt v. Holmes et aL, 16 N. B. R 101; Fed. Cas. 6,890. Y. Paetnees. See Paetnees, 27, 44, 110, 168. 41. "Where a petition is filed to have a firm declared bankrupt, if all the members •of the firm do not assent to the petition no- tice of its filing must be given to such of the members as do not assent to it, in like man- ner as if the proceedings were on an invol- untary bankruptcy against the members of the firm. Until then the register has not au- thority to make an adjudication of the bank- ruptcy of the firm. In re Lewis, 1 N. B. E. 19 ; 2 Ben. 96; Fed. Cas. 8,311. 42. A firm which Indorses a note given by a member, which falls due after the firm's bankruptcy, need not have notice of the dis- honor of such note, in order to prove it against the firm assets. Ex parte Russell, In re Paul & Son, 16 N. B. E. 476; Fed. Cas. 12,148. 43. The obtaining for the firm of an adju- dication by one member of a firm without giving notice to the other member is void vmder rule 18 (act of 1867). In re Temple, 17 N. B. E. 345; 4 Sawy. 93; Fed. Cas. 13,825. VI. Agent. 44. In contemplation of law, a corporation is held to know what is known by its chief officer. Loudon, Ass., v. The First Nat. Bank, etc., 15 N. B. E. 476; 2 Hughes, 420; Fed. Cas. 8,535. » 45. The attorneys of a judgment creditor knew of the oankrupt's insolvency and his intent to evade the bankrupt law. Held, that such knowledge was the knowledge of the creditor. Eogers, Ass. etc., v. Palmer, 19 N. B.R471; 102U. S. 263. 46. Where an agent knows that a debtor is insolvent, and that a transaction per- formed on account of his principal with such debtor is in fraud of the bankrupt law, it is the same as if the principal had participated in the fraud. Sage, Jr. v. Wynkoop, Ass., 16 N. B. R. 363; Fed. Cas. 12,215. VII. Discharge. See DISCHAEGE,96,101, 104, 105, 211; Collat- EBAL Attack, 3. 47. An action of debt was brought against one who pleaded a discharge in bankruptcy, to which the plaintiff demurred that the schedule incorrectly gave his address and that he had no notice of the proceedings. Notice prior to the discharge had, however, been given. Demurrer overruled. Pattison & Co. V. Wilbur, 12 N. B. R. 193. 48. Where a discharge has been annulled on account of fraud, the decree annulling such discharge will not be vacated without notice to all parties aft'ected. In re Augen- stein, 16 N. B. R. 353. 49. It is not necessary, to give jurisdiction to .the bankrupt court, that the creditors have actua;l notice, and the lack of it will not make the discharge invalid if it is found that the requirements of the act were hon- estly complied with by the bankrupt. Rayl, Adm'x, V. Lapham, 15 N. B. R. 508. 50. A debtor who obtains a discharge pending an action on his promissory note which he omits from his schedule, the plaint^ iff having no notice of proceedings in bank- ruptcy, cannot plead the discharge so ob- tained in bar. Batchelder v. Low, 8 N. B. R. 571. 51. Notices of settlement of a register's charges and the finishing of a bankrupt's examination may be included in the notice for the bankrupt's discharge. If the business of the meeting is not finished before the reg- ister, weekly continuances are entered so that the notices remain in force, and the time for entering opposition is enlarged for ten days beyond the time of the next weekly session. In re Sherwood, 1 N. B. R. 74; 25 Leg. Int. 76; 1 Amer. Law T. Eep. Bankr. 47; 6 Phila. 461; Fed. Cas. 12,774. 52. F., a bankrupt, applied for a discharge; but the proof of debt had been lost. The reg- ister proposed a general notice of meeting under a petition for a discharge of all cred- S16 NOTICE, Vni, IX — OATH. itors named in the schedule, stating that if they had filed proofs of debt it would be nec- essary for them to resupply it, as it had been lost. Held, that such notice was insufficient. In re Friedlob, 19 N. B. E. 123; 11 Chi Leg. News, 189; Fed. Cas. 6,118. YIII. Publication. 5 3 . Under the statute it is imperative that notice shall be given for three consecutive weeks, in a newspaper or newspapers desig- nated by the judge, of all public sales, whether the assignee or other officer proceeds under the power given him by the statute or under a special order of the court (act of 1867). In re Hunter, 18 N. B. R. 504; Fed. Cas. 6,903. 54. Notice of sale by the assignee shall be published in newspapers which niay be chosen by the register. In re Burke and MoKee, 15 N. B. E. 40; Fed. Cas. 2,157. 55. Notice of dissolution of partnersihip was published on January 11th, 21st and 27th, and on February 1st and 10th, each of these dates being in separate weeks, neld, that the statute requiring publication " once in each week for four weeks " was not com- plied with, as an interval of seven days be- tween each publication should intervene. In re King et al., 7 N. B. E. 279; 5 Ben. 453; Fed. Cas. 7,779. IX. lur Gbnbeal. See Commercial Paper, 82, XIV, (a); Courts, I, (c), 3; Estates, 202. 58. The bankrupt has an interest in the proceedings which may result in his final discharge, hence he is entitled to notice of an application for annulling the adjudica- tion in bankruptcy. In re Bush, 6 N. B. E. 179; 6 West. Jur. 274; Fed. Cas. 2,222. 57. Omission to publish notice of the first meeting in one of papers designated is suffi- cient irregularity to set aside the proceed- ings. In re Hall, 1 N. B. E. 60. 58. A bankrupt was adjudicated in June, 1878. A creditor petitioned to vacate the adjudication in March, 1879. Held, that she was put on inquiry by notice of the adjudi- cation, and that the failure to make inquiries was evidence of acquiescence. In re Meade, 19 N. B. E. 335; Fed. Cas. 9,370. 69. A debtor was adjudged a bankrupt, and had a valuable interest in realty, which he omitted from his schedule, he claiming that the interest was not recoverable. The assignee pro hae vice petitioned for leave ta sell the claim at public or private sale, and on the same day an order was made author- izing the sale, which was, also on the same day, made privately, without notica It was held that the order was void and the sale a nullity. Ex parte Bryan, Ass., In re Major, 14 N. B. E. 71; 2 Hughes, 273; 23Pittsb. Leg. J. 196; Fed. Cas. 2,061. 60. Notice of an application to set aside a composition was sent to the debtor, but not to the other creditors. Held, that all credit- ors were entitled to notice. Ex parte Ham- Un, 16 N. B. E. 320; 2 Lowell, 571; 5 Cent. Law J. 281; Fed. Cas. 5,993. 61. In section 85 of the act of 1867, a& amended, the word "knowledge " means act- ual knowledge, but actual knowledge may be presumed from the circumstances of the case. In re Hauck & Co., 17 N. B. E. 158; Fed, Cas. 6,219. 62. It is not necessary to give notice to bankrupts of the time and place of the exam- ination of witnesses, and the same can be pro- ceeded with without reference to examina- tion by creditors. In re Levy et aL, 1 N. B. E. 66; 2 Ben. 169; 1 Amer. Law T. Eep. Bankr.. 132; Fed. Cas. 8,297. 63. After schedules are amended by add- ing new creditors, a new warrant should issue to be served on the creditors whose names have been added. In re Perry, 1 N. B. E. 3; 1 Amer. Law T. Eep. Bankr. 4; Fed. Cas. 10,998. 64. A bankruptcy court cannot authorize the compounding of a claim without notice to creditors, except upon testimony and peti- tion setting forth facts. In re Hoole, 19 N. B. E. 477; Fed. Cas. 6,673. OATH. See Discharge, 193; Proof of Claims, 33: 1. The oath of allegiance annexed to th» petition of the debtor may be taken before a, register (1867). In re Walker, 1 N. B. E. 67; Fed. Cas. 17,062. 2. The form of oath prescribed for proving OMISSIONS — PARTNERS. 317 dobts in bankruptcy need not be followed in voting upon resolutions for composition. In Te Morris, 13 N. B. R. 170. 3. A bankrupt petitioned for his discharge, ■and asked that the final oath be administered, etc., which was objected to by creditors who had claimed the allowance of ten days within which to file specifications. Held, that the ■oath should be administered (1867). In re Pulver. 2 N. B. R 101; 3 Ben. 65; 1 Chi. Leg. News, 139; Fed. Gas. 11,467. 4. After a bankrupt has made the oath re- quired in section 39 of the act (1867), specifi- cations in opposition to his discharge were filed and subsequently withdrawn. Held, that the oath must be made after such with- drawal In re Machad, 2 N. B. R. 113; 3 Ben. 131; 1 Chi. Leg. News, 163; 3 Amer. Law T. Eep. Bankr. 53; Fed. Cas. 8,819. OMISSIOITS. See Schedules, VIL OPEKATIVES. See Claims, 81; Infants; Wages. 1. Payment of wages to employees, in con- templation of insolvency, is an act of bank- ruptcy. The preferred wages of an employee must be secured through the proceedings in bankruptcy. In re Kenyon & Fenton, 6 N. B. R. 388. 2. Wages paid servants after the passage of the act of 1867, as necessary family ex- penses, cannot be allowed where an objection to discharge is made. In re Rosenfield, 3 N. B. R. 49; 1 Amer. Law T. Rep. Bankr. 100; 8 Amer. Law Reg. (N. S.) 44; Fed. Cas. 13,057. 3. Where an employee is thrown out of employment by the bankruptcy of his em- ployer and has been paid for the time he actually worked, he is not entitled to priority in payment for the time during which he was unable to find other employment. In re Pevear et aL, 17 N. B. R. 461; Fed. Cas. 11,053. 4. When the assets are undoubtedly suffi- cient to pay workmen to the extent of fifty dollars each, they can only vote on the ques- tion whether a resolution of composition shaU be adopted or not, to the extent of their respective debts above fifty dollars (act of 1867). In re O'Neil. 14 N. B. R. 310; 3 Lowell, 470; Fed. Cas. 10,538. 5. Where there are privileged debts due workmen, the assignee has no right to waste their money in litigation for the supposed benefit of the general creditors. In re Saw- yer, 16 N. B. R. 460; 3 Lowell, 551; 15 Alb. Law J. 380; Fed. Cas. 13,396. 6. A bankrupt, being unable to pay work- men for their labor rendered within six months prior to adjudication, settled with them and they assigned their settled ac- counts to B., who presented the assigned claims for proof and demanded the rights of priority allowed workmen's claims by the bankrupt act. Held, that the claims should be allowed. In re Brown, 3 N. B. R. 177; 4 Ben. 143; Fed. Cas. 1,974. ORDERS. See Rules. PARTIES. See Attachment; Dischaegb; Estates; In- tervention; Mortgages; Petitions; Pleading and Practice. PARTNERS. L Who Are. IL Nature and Form of Peooebding. m Adjudications. (a) Of Firm. (b) Of Individuals. TV. Composition. V. Discharge. VL Exemptions. VXL Assets. (a) Oeneral. (b) Distribution. VIIL Conveyances and Teansfbes. (a) To Partners. (b) To Strangers. IX Trustees. (a) Of Firm. (b) Of IndividvM Member, X. Jurisdiction op Couets, 318 PARTNERS, I. XL Dissolution. (a) What is. (b) Effect of. XII. Claims. (a) Of Firm Creditors. 1. Against Firm Assets. 2. Against Separate Assets. 3. General. (b) Of Individual Creditors. (c) Between Joint and Separate Es- tates. (d) Partner Against Partner. (e) Between Firms. Xin. General. See Evidence, 114; Fraud, 48; Judgment, IX; Laches, 7; Lien, 78, 79, 136; Mar- shaling Assets, 1, 5, 6; Pleading and Practice, 118; Preference, 194, 233; Set-oef, 18; Stat op Proceedings, 34; Stockholders, 39; Surety, 11; United States, 4 I. Who Aee. 1. Acting under a written agreement, A advanced to a firm a sum of money, and in consideration for certain clerical services ■was to receive one-sixtb of the net profits of the business. Afterwards, by verbal agree- ment, he was to receive one-fourth of the profits, but not less than $35 per month, prof- its or no profits. The firm were declared bankrupts, and on petition filed against A, held, that participation in the profits is pre- sumptive evidence of partnership, and in view of all the circumstances and the ac- tions of A. he should be regarded, as to third parties, as a partner. In re Francis et aL, 7 N. B. R. 359; 8 Sawy. 386; 5 Pac. Law Rep. 313; 4 Leg. Op. 493; 7 Alb. Law J. 13; Fed. Gas. 5,031. 2. Two firms shared in a certain venture and kept an account at the bank in the name of one, adding the word " Co.," and so signed the checks. Held, that these checks did not establish a copartnership between the two firms, and that the holder of one of the checks thus signed could not file a peti- tion in bankruptcy against the members of both firms. In re Warner et al., 7 N. B. R. 47; 4 Pac. Law Rep. 123; Fed. Cas. 17,178. 3. The wife of a bankrupt purchased with her own money a share in a firm by which her husband was employed as manager, re- ceiving a share of profits in lieu of salary, the profits of which were derived from the- skill, diligence and services of the members, the wife rendering no service, but participat- ing in the profits, her share of which, together with that of the bankrupt, did not exceed a fair remuneration for his services. Held, that the bankrupt was virtually a partner, and there was a wilful concealment of the assets of his estate. In re Rathbone, 3 N. B. R. 89; 3 Ben. 50; 1 Amer. Law T. Rep. Bankr. 114; 1 Chi. Leg. News, 107; Fed. Cas. 11,581. 4. B. and C. advanced money to purchase- a stock of merchandise, the business to be carried on by A. and in his name, B. and C. having the option, by agreement, to sliare in the profits, if the business was a success; if not, then to receive back the amount ad- vanced, with interest. On A.'s bankruptcy, it appearing that B. and C. had never elected to share in the profits, held, there was no- partnership within the meaning of the bank- rupt act, and that B. and C. were not liable- as such, but that they would be liable in an actibn at law. Moore et al. v. Walton et al., 9 N. B. R. 403; Fed. Cas. 9,779. 5. For the purposes of petitioning, a part- nership is to be held to exist so long as therfr are outstanding debts against the firm or assets undistributed belonging to it. Hunt, Tillinghast & Co. v. Pooke & Steere, 5 N. B. R. 101; Fed. Cas. 6,896. 6. A. was B.'s agent for the manufacture of iron. B. was to own the iron, which was to be sold, and the proceeds, after paying B. certain sums, divided between A., B. and C. C. sold the iron with the knowledge of B. and failed to turn over to A. the money due him. Held, that the agency under this con- tract was more of a partnership than an agency, and the relations of A. and B. were not of the fiduciary relation comprehended by section 33 of the act of 1867. Baker v. Ster- ling, Jr., 17 N. B. R. 318. 7. An agreement between A. and B. that A. shall receive, and B. shall pay, a salary to be measured by the net profits received, does not create a partnership, the distinction being between a salary measured by the profits, and a share of the profits as a partner. In re Pierson, 10 N. B. R. 107; Fed. Cas. 11,158. 8. When a man and his wife hold themr PAETNERS, IL 319' selves out to the world as partners in trade, it will be presumed, in the absence of proof, that he contributed her share of the capital, and that her time, skill and savings went into the business. In re Kinkead, 7 N. B. R. 439: 3 Biss. 405; 7 West. Jur. 110; 6 Amer. Law T. Rep. 45; 5 Chi. Leg. News, '317; 1 Amer. Law Rec. 583; 3 Bench & Bar (U. S.), 41; Fed. Cas. 7,824. 9. Creditors opposing the dischai-ge of a bankrupt claimed that the bankrupt and on« S. were partners. A contract existed between the bankrupt and S. which pro- vided that the debtor should conduct a butchering business for S. as his agent and salesman; that the "oflEal, feet and commis- sion on hides and the usual slaughter-house perquisites " should go to S., and the bank- rupt, in lieu of wages, should receive what he could make above the current price of cattle bought after deducting expenses. The bankrupt was to account to S. daily and pay to him all money received until S. was fully reimbursed for stock and expenses. Held, there was no partnership. In re Blumen- thal, 18 N. B. R. 555; Fed. Cas. 1,575. 10. A. held B. out as a partner, of which fact B. had notice, and procured credit on the strength of this supposed relation. Held, that B. was liable as a partner, and that neither community of interest nor participa- tion in profits was necessary to such liabil- ity. In re Jewett et al., 15 N. B. R. 126; 7 Biss.. 328; Fed. Cas. 7,306. 11. The liability of a partner arises from pledging his name, if his name is introduced into the firm, thereby holding it out as a security to the community, or from receiving profits if he is a secret partner. In re Mimn, 7 N. B. R. 468; 3 Biss. 443; 7 Amer. Law Rev. 751; Fed. Cas. 9,925. 12. The partnership between A. and B. was dissolved by A., who assigned all his in- terest in the partnership to C. Held, that B. w^as not a copartner with A., and could not maintain a petition under section 36 of the act of 1867 as to him. In re Hartough et aL, 3 N. B. R 107; Fed. Cas. 6,164. 13. The failure of the directors of a cor- poration to comply with the requirements of the law will not subject the stockholders to the liability of copartners, and creditors have not the same rights and remedies which they have against any ordinary copartnership or against individuals. James, Adm'r, v. Tha Atlantic D. Co. et al, 11 N. B. R. 390; Fed. Cas. 7,179. 14. Where certain persons associate them- selves together, assuming to be a corporation^ and using a corporate name, without author- ity of law, they are individually liable as co- partners for the debts of the association; and a creditor who has dealt with them as a corporation is not thereby estopped from set- ting up his claim against them individually. In re MendenhaU, 9 N. B. E. 497; Fed. Cas.. 9,425. 15. Where the existence of an alleged' partnership is the subject of inquiry, the dec- larations of the alleged partner are not com- petent evidence. Nudd et al. v. Burrows,. Ass., 13 N. B. E. 289; 91 XJ. S. 426. II. !N"atuee and Toem of Peoceeding.. 1 6 . A proceeding in bankruptcy instituted by one against his copartner is not an invol- untary or compulsory proceeding. In re Wil- son, 13 N. B. R. 353; 3 Lowell, 453; Fed. Cas. 17,784. 17. A proceeding by the petition of all the- eopartners is a purely voluntary petition. In. re Fenn et al., 5 N. B. E. 30; 5 Ben. 89; 3 Chi Leg. News, 225; Fed. Cas. 10,937. 1 8. A proceeding by the petition of a cred- itor of the copartners is a purely involuntary proceeding under section 39 (act of 1867), and requires the adjudication to proceed on the commission of some act of bankruptcy speci- fied in that section. Id. 19. Where one or more of several partners - file their petition in bankruptcy, in which other members refuse to join, the parties re- fusing may be proceeded against as involun- tary bankrupts, and the order to show cause may be served on them outside of the terri- torial jurisdiction of the court, by a person duly authorized by the solicitor for the peti- tioner. Stuart, Ass., v. Hines et al., 6 N. B. R. 416. ~ 20. Except in the matter of expense it is of no consequence whether there are two proceedings or only one by or against part- ners, for the rights of creditors and others are the same. In re Morse, 13 N. B. E. 376;. Fed. Cas. 9,854. 520 PAETNERS, III, (a). 21. If a firm is insolvent and there has been a joint act of bankruptcy, the creditors may proceed against both, but the solvent partner would have an opportimity to clear liimself by paying all the debts. He cannot safely pay them to his insolvent partner. In re Bennett et aL, 13 N. B. E. 181; 2 Lowell, 400; Fed. Cas. 1,314 22. As long as there are unpaid partner- «h,ip debts, the proceedings in bankruptcy may be joint. In re Williams, 3 N. B. E. 74; 1 Lowell, 406; Fed. Cas. 17,703. 23. A petition by one partner against an- other is quasi in invitum, and the objecting partner may show that the firm is not in- solvent, though, if the creditors intervened, the court might require security to be given for the payment of the joint debts before dismissing the petition. In re Fowler, 1 N. B. E. 680 (8 vo. ed.). III. Adjudications. ^ee Petitions, I, (c), II, (c); Acts of BijjK- RTJPTCT, 33, 76, 81; Alien, 1; Amendment, I,(b). (a) Of Firm. See Notice, 41 ; Petitions, 136. 24. Parties may be adjudged bankrupt as partners in a firm with others, though they have already been declared bankrupt as part- ^ners in another firm. In re Jewett et al., 15 N. B. E. 136; 7 Biss. 338; Fed. Cas. 7,306. 25. B. and C. were members of the firm A., B. & C, and also of the firm B., C. & D. A decree of bankruptcy had been rendered against them as members of the former firm. Held, that such decree did not bar a petition against them as members of the latter firm. In re Jewett & Co., 16 N. B. E. 48; 7 Biss. 478 4 N. Y. Wkly. Dig. 494; 9 Chi. Leg. News, 345 4 Law & Eq. Eep. 77; 23 Int. Eev. Eeo. 232 Fed. Cas. 7,307. 26. An adjudication of bankruptcy of a firm and the members in whose name the firm did business, in a bankruptcy proceed- ing affecting them alone, to which a special partner was not a party, does not estop a partnership creditor from setting up the lia- bility of such special partner imposed upon him by the statute for not complying with its provisions. Abendroth v. Van Dolsen, 131 U. S. 66. 27. The obtaining for the firm of an adju- dication by one member without giving no- lice to the other member is void under rule 18 (act of 1867). In re Temple, 17 N. B. E. 345; 4 Sawy. 92; Fed. Cas. 18,825. 28. A firm may be adjudicated bankrupt so long as there are undisputed partnership assets and partnership liabilities., In re Gor- ham, 18 N. B. R. 419; 9 Biss. 28; 11 Chi Leg. News, 58; 36Pittsb. Leg. J. 112; Fed. Cas. 5,624 29. A register, upon a petition in bank- ruptcy filed by a debtor individually, and as a copartner in a firm, adjudged said debtor individually and the firm bankrupt. The ac- tion regarding the firm was held erroneous. In re Lewis, 1 N. B. E. 19; 2 Ben, 96; Fed. Cas. 8,311. 30. On a voluntary petition for the adju- dication of a fiiin the court has jurisdiction to determine the question of who constitute the firm, and an adjudication is valid, based upon the determination of such fact, until set aside or reversed. In re Griffith et aL, 18 N. B. E 510; 26 Pittsb. Leg. J. 140; Fed. Cas. 5,820. 31. A partnership between a man and his wife can be adjudged bankrupt, and the wife may also individually be adjudged bankrupt In re Kinkead, 7 N. B. E. 439; 3 Biss. 405; 7 West. Jur. 110; 6 Amer. Law T. Rep. 45; 5 Chi. Leg. News, 217; 1 Amer. Law Eec. 533; 3 Bench & Bar (U. S.), 41; Fed. Cas. 7,834 32. A firm may be declared bankrupt al- though one of its members may have already been adjudicated on a creditor's petition. Hunt, Tillinghast & Co. v. Pooke & Steere, 5 N. B. E. 161; Fed. Cas. 6,896. 33. The decease of one partner prior to any adjudication upon the question of bank- ruptcy is not legal cause for dismissing the petition. Id. 34. Where, upon the death of one mem- ber of a copartnership, an administrator has been appointed, and the assets of the firm are in the custody of the probate court, the bankrupt court will not grant a rule to show cause why the firm shovdd not be put into bankruptcy; but this will not preclude a separate creditor of one of the copartners from proceeding against him individually. In re Daggett, 8 N. B. E 433; Fed. Cas. 3,536. 35. Where a certificate is filed under the New York statute, stating that a special part- ner had contributed a certain sum in cash PARTNERS, m, (b). 321 •and a certain amount in goods, all the part- ners can be adjudged bankrupts as general partners. In re Merrill et al., 13 N. B. E. 91; 12 Blatchf. 231; 1 N. Y. Wkly. Dig. 364; Fed. ■Cas. 9,467. 36. A firm cannot be adjudicated bank- rupt in an involuntary proceeding to which •one of the members of the firm is not made a parly. In re Pitt et al., 14 N. B. R. 59; 8 Ben. 389; 23 Pittsb. Leg. J. 196; Fed. Cas. 11,188. 37. A partner instituted proceedings for ■the purpose of vexing and harassing his co- partner. Held, that the proceeding should be dismissed. In re Hamlin et al., 16 N. B. R. 523; 8Biss.l22; 10 Chi Leg. Ne-ws, 131 ; Fed. Cas. 5,994 38. A bankrupt may amend his petition after adjudication so as to bring in his co- partner in order to obtain a discharge of copartnership as -well as individual debts. In re Little, 1 N. B. R. 74 ; 2 Ben. 186 ; 15 Pittsb. Leg. J. 268; Fed. Cas. 8,890. 39. The refusal of one partner to join in voluntary proceedings instituted by the other partners may •well deprive the one refusing from all benefit of the composition ; but, un- less the refusal or neglect to join is the result of some fraud on the part of the partners -who do carry on the proceeding, it is no rea- -son for avoiding those proceedings as to them. In re Henry et aL, 17 N. B. E. 463; 9 Ben. 449; Fed. Cas. 6,370. 40. A member of a firm agreed for a stip- Tilated price to allow, and caused the other members of the firm to allow, an adjudica- tion in bankruptcy against the firm. Seld, that his agreement was valid and for valu- able consideration. Sanford v. Huxford et aL, 17 N. B. R. 385. (b) Of IndwiducHs. 41. Individual partners, if insolvent, may toe adjudged bankrupt, even though the part- nership is solvent and in good credit. Am- «ink et aL v. Bean, Ass., 11 N. B. R. 495; 23 WalL 395. 42. A fraudulent misappropriation of the partnership funds by one partner entitles his copartner to institute proceedings and ■prove his claim against the wrong-doer the eame as if no partnership had existed. In re 31 Sigsby V. Willis, 3 N. B. R. 51; 3 Ben. 371; 1 Amer. LawT. Rep. Bankr. 171; 2Amer. Law T. 169; Fed. Cas. 12,349. 43. Where, after dissolution of a copart- nership, there has been no settlement, one member is not entitled to an adjudication of bankruptcy against his former partner on accoimt of claims for money or assets which had come into his hands over and above his share, or on account of obligations entered into during the continuance of the partner- ship, for which both are jointly liable. Id. 44. A. & B. and A. & C, two firms, made general assignments in fraud of creditors. B. died, and A. filed a petition in voluntary bankruptcy as an individual and as a part- ner in both firms. C. had no notice of the proceedings. Held, the proceedings as to the firm assets of A. & C. were void, as was also the general assignment. In re Temple, 17 N. B. R; 345; 4 Sawy. 92; Fed. Cas. 13,825. 45. Two members of a copartnership filed a petition praying that themselves and an- other member of the firm be adjudged bank- rupts. The partnership had been dissolved, but had no assets that would pass to an as- signee in bankruptcy. Held, that the peti- tion should be dismissed as to the partner who did not join therein. In re Crockett et aL, 3 N. B. E. 75; 2 Ben. 514; 2 Amer. Law T. Rep. Bankr. 21; Fed. Cas. 3,403. 46. Personal service on one member of a firm out of the jiirisdiotion of the court in which the proceedings are pending is not a suflicient service to give the court jurisdic- tion to adjudicate against the party so served. Isett V. Stuart, 16 N. B. E. 191. 47. A secret partner whose firm has com- mitted an act of bankruptcy may be ad- judged a bankrupt although individually entirely solvent. In re Ess et aL, 7 N. B. R. 133; 3 Biss. 301; 4 Chi Leg. News, 357; 30 Pittsb. Leg. J. 34; 2 Md. Law Rep. 353; 1 Amer. Law Rec. 356; 6 Alb. Law J. 277; 6 West. Jur. 447; Fed. Cas. 4,530. 48. A. and B. petitioned to be adjudged bankrupts as partners, and that C. might be included, he having been a partner with A. and having undertaken to pay the debts of A. and B. Held, all proceedings as to C. must be dismissed. In re Wallace et aL, 12 N. B. R. 191; Fed. Cas. 17,095. 49. Proceedings in involuntary bank- 322 PARTNERS, IV, V. ruptcy were instituted against one who was a partner in several different firms. The question arose as to whether firm debts were to be included in computing the number of creditors and amount of debts necessary to be represented by the petition, and the court held that both Individual and firm debts must be computed (act of 1867). In re Lloyd, , 15 N. B. E. 257; 15 Alb. Law J. 393; 34 Pittsb. ' Leg. J. 113; Fed. Cas. 8,439; 5 Amer. Law Eec. 679. IV. OOMPOSITIOIT. 50. A firm secured a composition with consent of all its creditors, and a new firm was to be organized and new capital em- ployed. No new capital was employed as agreed, but new debts were created. A pe- tition prayed that the composition be set aside, but the court held the composition must stand. In re Ewing et al., 17 N. B. R 109; Fed. Cas. 4,588. 5 1 . Where the law governing special part- nerships had not been complied with, but all the members of the firm thought A. was a special partner, but he did not join in the voluntary proceedings and his partnership interest was named as part of the liabilities, held that, while A. could not vote as a cred- itor, the proceedings in composition were not otherwise fatally irregular. In re Henry et al., 17 N. B. E. 463; 9 Ben. 449; Fed. Cas. 6,370. 52. A partner will not be allowed to have a composition set aside and his firm put into bankruptcy by setting up his own fraud in effecting the composition. In re Hamlin et al., 16 N. B. R. 532; 8 Biss. 122; 10 Chi. Leg. News, 131; Fed. Cas. 5,994. V. DiSOHAEGE. See Discharge, 161, 238, 263. 53. Where one partner is adjudicated on his individual petition, without notice to his fellow partners, it is proper for his as- signee to institute proceedings in bankruptcy against the firm, as such partner cannot be properly discharged until the firm debts are paid, or the social assets administered in the bankrupt court. In re Grady et al., Ass., v. Hawthorne et al., 3 N. B. R. 54; Fed. Cas. 5,654. 54. A man cannot be discharged from hi* liabilities as a member of a firm unless the- debts and assets of the- firm are considered and adjudicated upon by the court. Hudgins- V. Lane et aL, 11 N. B. R. 463; 3 Hughes, 361 f Fed. Cas. 6,827. 55. The fact that one member of a bank- rupt firm did not file a schedule of debts or inventory of effects, nor deliver his property into the hands of the assignee, does not affect the right of the other partners to receive a discharge. In re Scofleld et aL, 3 N. B. R. 137; Fed. Cas. 12,509. 56. A discharge properly granted to the individual members of a firm will be avail- able in respect to any indebtedness of any other partnership in which they are inter- ested and for whose debts they might ba liable. In re Leland, 5 N. B. E. 332; Fed. Cas.. 8,338; 5 Ben. 168; 1 Amer. Law T. Rep. Bankr. 284 57. A., B., C. & D. were partners. A. sold to B., C. & D. and retired, leaving assets and debts in the hands of B., C. & D., the new firm. Part of the assets were used to pay- part of the debts. A. filed a petition as aa individual and B., C. & D. as a firm. All had a common assignee. A. had no individual debts. His application for a discharge was refused, the court holding that the assignee- had no j urisdiction over the assets of the firm of A., B., C. & D., there never having been a formal assignment to the firm. In re Plumb, 17 N. B. R. 76; 9 Ben. 379; 6 N. Y. Wkly. Dig. 70; Fed. Cas. 11,231. 58. Where the several members of a firm file several petitions and there arc firm assets,, the estate of the firm is not in the bank- ruptcy court so as to operate a discharge of the firm debts, even though the several peti- tions set out the partnership assets and lia- bilities and though they have a common assignee. Id. 59. Where a member of a late copartner- ship files his individual petition and inserts debts of said copartnership, and there are no partnership assets to be administered, he wUl be entitled to be discharged from all of his debts, and it is unnecessary that other part- ners be made parties to the proceeding. In re Abbe, 2 N. B. R. 26; 7 Amer. Law Reg. (U. S.) 834; 15 Pittsb. Leg. J. 589; Fed. Cas. 4. 60. A surviving partner of a firm, the PARTNERS, VI. 323 other members of which had died insolvent, filed his individual petition for an adjudicar tion in bankruptcy. Seld, that a discharge founded on such petition would probably operate as a discharge from, the partnership as weU as individual debts, but that it is safer to amend the petition. In re Bid well, 2 N. B. R. 78; Fed. Cas. 1,393. 61. A member of a firm actually existing and having assets cannot be adjudicated a bankrupt and discharged from his liabilities individually and as a member of the firm, unless his copartners are joined with him. In re Winkens, 3 N. B. R. 113; 1 Chi. Leg. News, 163; 3 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 17,875. 62. A partner may be bankrupt while the remaining partners as individuals, and the firm itself, may be solvent. The bankrupt partner has an unquestionable right to be discharged from all his debts provable under the act. In re Stevens, 5 N. B. R. 113; 1 Sawy. 397; 1 Pac. Law Rep. 45; Fad. Cas. 13,393. 63. Where a discharge in bankruptcy is granted to a member of a firm, it is a release of joint debts as well as of separate debts. Wilkins v. Davis, 15 N. B. R. 60; 3 Lowell, 511; Fed. Cas. 17,664 64. A discharge binds copartners as well as joint creditors, where granted to a copart- ner. Id. 65. If, in a voluntary petition of partners, the names of parties who should be joined as petitioners are not so joined, the bankruptcy court win refuse to discharge the petitioning creditors. Citizens' Nat. Bank v. Cass et al., 18 N. B. R. 279; 6 Wkly. Notes Cas. 371; 6 Eep. 579; 19 Alb. Law J. 119; 26 Pittsb. Leg. J. 25; Fed. Cas. 2,733. 66. A suit was brought by a firm cred- itor against a firm, one member of which had been individually adjudicated bankrupt. The bankrupt pleaded his discharge. Seld, that such discharge was no bar if the cred- itor coidd show that there were partnership assets at the time of the filing of the petition in bankruptcy. Crompton et al. v. Conkling, Jr., et al., 15 N. B. R. 417; Fed. Cas. 3,408. 67. Of the firm A., B. & C, A. and B. sold their interests to D. and E., who, with C,, formed the new firm of C, D. & E., which undertook and promised to pay the debts of the firm A., B. & C. One debt of the old firm remained unpaid, and C, in the name of A., B. & C, executed a note in favor of C, D. & E., which was indorsed by them to the debtor. This note was renewed sev- eral times and the debt remained unpaid, A. and B. being deceived as to that, when C, D. & E. were declared bankrupts and received their discharge. A. and B. paid the debt, and in an action against C, D. & E., held, that their discharge in bankruptcy was a bar to the action. Brown et aL v. Broach et al., 16 N. B. R. 296. 68. Where the same persons are members of two firms, one of which has proved a claim against the bankrupt and the other has not, the latter firm has no standing to appear in opposition to the discharge. In re Palmer, 3 N. B. E. 77; Fed. Cas. 10,683. VI. Exemptions. See Exemptions, VIL 69. Where partners purchase lots taking the title bond in the firm name, with an understanding that each shall own the lot on which he builds, each is entitled to a home- stead exemption. Bartholomew, Ass., v. West et al., 8 N. B. R. 18; 3 DiU. 390; 7 West. Jur. 441; Fed. Cas. 1,071. 70. A firm and one member of the firm individually were adjudged bankrupts. The individual member claimed an exemption out of the partnership effects. Beld, the claim could not be allowed. In re Stewart & New- ton, 13 N. B. R. 295; 3 N. Y. Wkly. Dig. 3; Fed. Cas. 13,420. 71. Partnership assets are a trust fund for the payment of the creditors of the firm, and an exemption cannot be set apart from them to the individual partners until the partner- ship debts are paid. In re Croft Bros., 17 N. B. R 334; 6 N. Y. Wkly Dig. 218; 8Biss. 188; 10 Chi. Leg. News, 204; 6 Amer. La,w Rec. 597; Fed. Cas. 3,404 72. Only the surplus after paying all the partnership debts and the expenses becomes liable to the provisions in reference to ex- emptions under state laws. In re Price, 6 N. B. R. 400; 1 Md. Law Eec. 286; Fed. Cas. 11,410. 73. In the absence of fraudulent intent, partners may dissolve the partnership and sever their interest in the property, or one 324: PARTNERS, VII, (a), (b). partner sell his interest to the other, and the continuing partner may have his exemption the same as though no partnership had ex- isted. In re Bjornstad, 18 N. B. R. 383; 9 Biss. 13; Fed. Cas. 1,453. 74. The individual members of a firm are not entitled to an exemption from the part- nership stock. In re Boothroyd & Gibbs, 14 N. B. E. 323; Fed. Cas. 1,653. 75. A. and B. filed a joint petition in bank- ruptcy and were adjudged bankrupts. Held, that they were not entitled each to the amount allowed as exempt by a state stat- ute. In re Hughes et al., 16 N. B. R. 464; 8 Biss. 107; Fed. Cas. 6,843. 76. The state exemption laws have been decided by state courts not to apply to part- nership property, and the words of the act of congress manifestly refer only to separate property of the debtor. In re Hafer et al., 1 N. B. R. 147; 25 Leg. Int. 148; 15 Pittsb. Leg. J. 3 89; Fed. Cas. 5,896. YII. Assets. (a) General. 77. "When real estate is purchased with partnership funds, it becomes personalty of the partnership, the partners being tenants in common. If there be a survivor, the share of the deceased partner in the surplus of the real estate after the payment of the partner- ship debts and the adjustment of claims be- tween individual members of the firm is con- sidered as real estate only in a controversy between the heirs at law and the personal representatives of the deceased. Marrett, Ass., V. Murphy et al., 11 N. B. R. 131; 1 Cent. Law J. 554; Fed. Cas. 9,103. 78. Buildings built with partnership funds by one member of the firm, or property owned solely by such member, become part of the realty and the separate property of such partner. In re Parks et al., 9 N. B. R. 270; Fed. Cas. 10,765. 79. On dissolution of the partnership A. B., A. received for his interest a sum in cash, notes of B., and a portion of the book ac- counts, which he collected and invested the money in a homestead. B. became bank- rupt, and in an action to reach the money paid by B. to A., and collected by A., and to charge the homestead, it was held that the money received by A. and the homestead were liable for the partnership debts. In re SauthofiE & Olson, 16 N. B. R 181; 8 Biss. 35; 5 Cent. Law J. 864; Fed. Cas. 13,380. 80. The purchase of both partners' inter- ests, at sales under different executions, does not enlarge the interests acquired, or relieve the assets from the claims of partnership creditors. Osborne v. McBride, 16 N. B. R. 33; 3 Sawy. 590; Fed. Cas. 10,593. 81. Where real estate held by partners as tenants in common is classified in the sched- ule as partnership assets, such classification wiU not convert the separate property of the individual partners into firm property. In re Zug, 16 N. B. E. 380; 23 Int. Rev. Eec. 393; 84 Leg. Int. 403; 35 Pittsb. Leg. J. 39; Fed. Cas. 18,333. 82. If partners, more than four months before the commencement of bankruptcy proceedings, transfer all their property, both separate and joint, to one partner, who under- takes to pay the firm debts, all the assets should be treated as the separate assets of that partner. In re Collier, Taylor & Co., 13 N. B. R. 366; Fed. Cas. 3,003. 83. When real estate is impressed with the character of personalty, the burden is upon the one aUeging it to have lost that character to show not only that the partner- ship creditors have been paid, but that as between the partners the accounts have been settled. Hisoock, Ass. etc., v. Jaycox 6 Green, 13 N. B. R. 507; Fed. Cas. 6,531. 84. The intent to consider realty to be partnership assets may be implied from the fact that the losses are to be sustained by the assets of the firm and the profits are to aug- ment the capital. Id. 85. Oral evidence may be received to prove that lands are the property of the part- nership, and such evidence being clear, the property is to be treated as partnership as- sets. In re Farmer et al., 18 N. B. R. 207; 10 Chi. Leg. News, 395; Fed. Cas. 4,650. 8 6 . An individual member of a fii-m should include in his schedule his interest in the partnership. In re Brick, 19 N. B. R. 508. (b) Distribution. See Dividends, II, (b). 87. Where there are individual creditors and partnership creditors, and individual as- PAETNERS, VII, (b). 325 sets and partnership assets, the individual creditors must resort to the individual assets and the joint creditors to the partnership as- sets. In re Jev^ett, 1 N. B. R. 130; 7 Amer. Law Reg. (N. S.) 291; Fed. Gas. 7,304 88. A debtor purchased the interest of his copartner, and afterward became bankrupt. There were both individual and partnership creditors, but only individual assets. Held, that the partnership creditors were entitled to be paid pari passu with the individual creditors. Id. 89. Under the operation of the act of 1800, a creditor of a firm of which the bankrupt was one, and a creditor of the bankrupt singly, were equal creditors of the bankrupt in contemplation of law. Tucker v. Osiey, 5 Cranch, 34. 90. The rule that the joint estate must be applied to pay the firm debts, and the sepa- rate estate to pay the individual debts, applies only when both estates are before the court for distribution. United States v. Lewis et al, 13 N. B. R. 33; 3 Wkly. Notes Gas. 81; 23 Int. Rev. Eec. 39; 33 Leg. Int. 371; 33 Pittsb. Leg. J. 34; Fed. Gas. 15,595; In re Pease, 13 N. B. R. 168; Fed. Gas. 10,881. 91. If a bankrupt partner was a member of two firms, the assets of the bankrupt firm should be applied to pay the firm debts, and any surplus of the individual assets of such partner, remaining after paying his individ- ual debts, should be distributed pro rata among the creditors of both firms. In re Dunkerson & Go., 13 N. B. R. 391; 4 Biss. 323; 1 N. Y. Wkly. Dig. 179; Fed. Gas. 4,159. 92. The individual and partnership cred- itors share equally in the distribution of as- sets where both classes of debts have been incurred upon the strength of the possession of the property owned by a member of the firm. In re Goedde & Go., 6 N. B. R. 395; Fed. Gas. 5,500. 93. Firm creditors cannot share in the in- dividual; where there are firm assets, until the individual creditors are paid in full. In re Smith et al., 13 N. B. R. 500; Fed. Gas. 13,987. 94. The English rule which requires cred- itors both of the joint and separate estates in bankruptcy to elect does not obtain in the United States. In re Foot et al., 13 N. B. R. 337; 8 Ben. 228; 1 N. Y. Wkly. Dig. 76; Fed. Gas. 4,906. 05. R., 1 and S. were members of a co- partnership, and, being indebted to a bank, executed to it four notes in the firm and in- dividual names, the firm note being indorsed by R., and that of each individual being in- dorsed by the other members. Held, that the holders of the notes were entitled to par- ticipate in the distribution of the assets of the individual estates of the members of the copartnership as well as that of the partner- ship. Mead, Ass., v. Bank of Fayettesville et al., 2 N. B. R. 65; 7 Amer. Law Reg. (N. S.) 818; 1 Amer. Law T. Rep. Bankr. 108; 15 Pittsb. Leg. J. 137; Fed. Gas. 9,366. 96. Partnership property is first taken to pay partnership debts, and the separate es- tates of partners is first taken for individual obligations, and creditors of neither have a right to resort to the assets primarily be- longing to the other before the preferred claims are paid in full. In re McLean et aL, 15 N. B. R. 333; Fed. Gas. 8,879. 97. Where there is a joint fund the joint creditors take it, and where there is a sepa- rate fund the separate creditors take it. In re Byrne, 1 N. B. R. 122; 7 Amer. Law Reg. (N. S.) 499; 1 Amer. Law T. Rep. Bankr. 133; 15 Pittsb. Leg. J. 315; Fed. Gas. 3,370. 98. In the payment of partnership debts the assets of the firm must be applied with- out any reference to any disproportion of the interests of the individual partners as be- tween themselves. In re Lowe et aL, 11 N. B. R. 331; Fed. Gas. 8,564. 99. The bankrupt and A. were partners. A. was insolvent and there was no joint prop- erty. Held, that the estate should be dis- tributed pari passu among the individual and firm creditors. In- re KJiight, 8 N. B. R. 436; 18 Int. Rev. Rec. 166; 30 Leg. Int. 338; 31 Pittsb. Leg. J. 43; Fed. Gas. 7,880. 100. Under the bankrupt act of 1867, the creditors of the firm, as well as the individ- ual creditors of a partner who has assumed to pay the firm debts, were entitled to share pari passu in the estate of such partner. In re Downing, 3 N. B. R. 182; 1 Dill. 33; 17 Pittsb. Leg. J. 169; 2 Ghi. Leg. News, 365; Fed. Gas. 4,044. 101. Where one who was a member of a late firm files his individual petition in bank- ruptcy, all his creditors can prove their claims, whether individual or partnership. In re Frear, 1 N. B. R. 201; 3 Ben. 467; 35 How. Pr. 349; Fed. Gas. 5,074 326 PARTNERS, VIII, (a), (b). VIII. Conveyances and Teansfees. See Conveyances, 7; Mortgages, 9, 20; As- signments, 60; Deeds, 7; Estates, 358, 284 (a) To Pa/i'tners. 102. Where one of two partners sells Ms interest in the concern to his copartner, tak- ing his notes therefor, and the second part- ner becomes bankrupt, leaving some of the notes unpaid, the first partner cannot receive a dividend from the assignee until all the partnership debts have been paid. In re Jewett, 1 N. B. E. 131 ; 7 Amer. Law Eeg. (N. S.) 291; Fed. Cas. 7,304 103. "Where, on the dissolution of a co- partnership, the joint property is transferred to one of the firm without fraud or collusion, for the purpose of defeating the rights of the joint creditors to close the partnership af- fairs, such joint property becomes the trans- feree's separate estate; the mere fact of the transfer not affecting the rights of the joint creditors; the joint property, after its trans- fer, being as much within the reach of legal process by the firm's creditors as if still part- nership property; such creditors, beyond such right of seizure of legal process, and before insolvency proceedings, having no control over the partnership eUeots or any right to restrain their disposition. In re Long & Co., 9 N. B. R 237; 7 Ben. 141; Fed. Cas. 8,476. 104. A partner transferred to another partner in good faith his interest in the firm prior to bankruptcy. Seld, that such trans- fer was valid. Shiner, Ass., v. Huber et al., 19 N. B. E. 414; 14Phila. 403; 36 Leg. Int. 839; 8 Reporter, 393; Fed. Cas. 12,787. 105. Where a firm is insolvent the sale of his interest by one partner to another is not of itself fraudulent. Eussell, Ass., v. MoCord, Ass. etc., 17 N. B. E. 508; 2 Flip. 139; 3 Cin. Law Bui. 594; Fed. Cas. 12,157. 106. A transfer of firm property from one member of the firm to another is not a fraud upon the creditors of the firm, nor does it hinder or delay them or constitute a prefer- ence contrary to the provisions of the bank- rupt act. In re Munn, 7 N. B. R. 468; 3 Biss. 442; 7 Amer. Law Rev. 751; Fed. Cas. 9,925. 107. A bona fide transfer of partnership effects by one member of the partnership to another vests the title in the transf ei'ee as his separate estate. In re Byrne, 1 N. B. R. 133; 7 Amer. Law Eeg. (N. S.) 499; 1 Amer. Law T. Rep. Bankr. 123; Fed. Cas. 3,370. (b) To Stromg&rs. 108. A conveyance by a partner of his in- dividual property, although an act of bank- ruptcy as against him, will not sustain a pro- ceeding in bankruptcy against the firm, even though the conveyance was made with in- tent to hinder, delay or defraud the credit; ors, or with a view to give a preference to a firm creditor. In re Redmond & Martin, 9 N. B. E. 408; Fed. Cas. 11,633. 109. A member of a firm borrowed money on an individual obligation for the use of the firm, and the firm subsequently gave a chat- tel mortgage to secure the debt. Held, this was an adoption of the debt by the firm, and was not in fraud of the bankrupt law. Wait, Ass. etc., V. The Bull's Head Bank, 19 N. B. E. 500; Fed. Cas. 17,043. 110. Whenever' a party receives from any partner in payment for a debt due from that partner only, a debt or obligation of the firm in any form, the prestimption of the law is that the partner gives this, and the creditor receives it, in fraud of the partnership. Tay- lor, Ass., V. Easch & Bernart, 5 N. B. R. 399; 4 Amer. Law T. 301; Fed. Cas. 13,801. 1 1 1 . A conveyance by a partner in a firm, to his wife, of real estate, purchased by the w-ithdrawal of more than a third of the part- ner's share in the capital, is void, and the assignee in bankruptcy is entitled to the pro- ceeds of such property. Phipps et aL v. Sedg- wick, Ass. etc., 16 N. B. E. 64; 95 U. S. 3. 112. To take the property of an insolvent firm to pay a debt which is not a partnei-ship debt, but for which each of the partners is liable, is an act of bankruptcy. In re Matot et al., 16 N. B. E. 485; 5 N. Y. Wkly.Dig. 539; Fed. Cas. 9,383. 113. Money taken from the partnership assets, and paid as money of the copartner- ship, if it can be recovered at all, must be claimed by the partnership in whose behalf it was paid, or by an assignee duly appointed to administer the joint estate. Amsink et aL V. Bean, Ass., 11 N. B. E. 495; 33 WalL 395. 114. Where a firm, known by the part- ners to be insolvent, is dissolved, and the PARTNERS, IX, (a), (b). 32T silent partner conveys all his interest in the property to the active partner, who mort- gages the whole stock to secure the pre-exist- ing debt of a separate creditor of each part- ner, and neither partner had any Separate •estate, the transaction is a fraudulent pref- erence. In re Waite, 1 N. B. R. 84; 1 Lowell, :307; Fed. Cas. 17,044. IX. Teustees. See Trustee, 125, 153; Estates, VIII, 85. (a) Of Firm. 115. While section 36 of the act of 1867 is explicit that the separate estate of each bankrupt partner shall pass to the assignee in bankruptcy, it is equally explicit that it is the creditors of the firm only who shall par- ticipate in choosing him. In re Phelps et al., I N. B. R. 139; 2 Amer. Law T. Rep. 25; Fed. •Cas. 11,071. 116. Upon a partnership being adjudged bankrupt, the assignee shall be chosen by the creditors of the partnership, but he shall keep separate accounts of the property of the copartnership and of the separate estate ■of each member. Amsink et al. v. Bean, Ass., II N. B. R 495; 33 Wall. 395. 117. The assignees in bankruptcy of the joint stock and property of a copartnership are required to administer the separate es- tate of the individual members of the firm as well as of the copartnership, but not where a,n individual member alone is adjudged a bankrupt. Id. 118. The assignee can adjust all the cred- its and debits of the individuals to the firm and the members, provided he permits the partnership creditors to obtain their pay out ■of the partnership estate, and the separate •creditors of each partner out of his separate estate. Atkinson v. Kellogg, 10 N. B. R. 535; 7 Chi. Leg. News, 9; Fed. Cas. 613. 119. Where at the time a firm is adjudged bankrupt there is pending an action for ac- counting by one partner against the other, the right to continue the suit passes to the Assignee, and such partner will be enjoined from further proceedings. In re Clark & Bininger, 3 N. B. R. 133; 4 Ben. 88; 3 N. B. R. 130; 1 Amer. Law T. Rep. Bankr. 189; Fed. Cas. 2,798. (b) Of Indmidual Memh&r. 120. Where one partner is bankrupt, his assignee may recover from a solvent partner, either at law or in equity, what is due under the articles of copartnership. Wilkins v. Davis, 15 N. B. R. 60; 3 LoweU, 511; Fed. Cas. 17,664. 121. The control of the settlement of the joint affairs may be intrusted, by a court of equity, either to the assignee or the solvent partner. Id. 122. One member of a firm of copartners, on behalf of the firm, may execute a power of attorney to some third person, authorizing him to cast the vote of the firm in the choice of assignees. In re Barrett, 3 N. B. R. 165; 2 Hughes, 444; 1 Chi. Leg. News, 303; 11 Int. Rev. Rec. 21; Fed. Cas. 1,043. 123. The assignee in bankruptcy of two members of a firm consisting of three co- partners cannot recover a preference given by the firm to a firm creditor. Witlu'ow v. Fowler, 7 N. B. R. 339; Pac. Law Rep. 102; 6 Alb. Law J. 433; Fed. Cas. 17,919. 124. A., B. and C, under an agreement to furnish the outlay and share in the profit and loss equally, purchased a parcel of real estate for the purpose of dividing it up into lots and selling it again. A. and B. bought out the interest of C. and continued the busi- ness until the bankruptcy of B. In a contro- versy between the assignee and A. as to their rights in the real estate left, it was held that it was necessary to adjust the partner- ship dealings at the commencement of pro- ceedings in bankruptcy and ascertain the exact interest of each. Thrall v. Crampton, Ass. etc., 16 N. B. R 261; 9 Ben. 218; Fed. Cas. 14,008. 125. An assignee, more than two years after his appointment, entered his appear- ance in a suit which had been begun by the bankrupt before the commencement of bank- ruptcy proceedings for the partition of a part- nership. Seld, that he could do so. Latting V. Fassman et aL, 17 N. B. R. 183. 126. An assignee of an individual mem- ber of a firm appointed upon his petition alone acquires no title to the property of the firm, whether the firm be existing or dis- solved. Hudgins v. Lane et al.. 11 N. B. E, 463; 2 Hughes, 361; Fed. Cas. 6,827. 328 PARTNERS, X, 21, (a), (b). 127. In a separate adjudication against a bankrupt, who is or has been a member of a firm, the separate creditors are entitled to vote for assignee. In re Falkner, 16 N. B. R. 603; Fed. Cas. 4,624 128. A., at the time he was adjudged a bankrupt, was a member of the firm A. B. At the meeting of creditors, the register per- mitted both joint and separate creditors of ' A. to prove their debts and vote for assignee. No assignee having been elected, the register appointed the person voted for by a joint cred- itor, assignee. Held, that the joint creditor was entitled to prove his debt and vote for assignee. In re Webb, 16 N. B. R. 258; 4 Sawy. 326; 10 Ohi. Leg. News, 27; 5 N. Y. Wkly. Dig. 174; Fed. Cas. 17,317. X. Jtjeisdictioit of Oottbts. See Courts, 25, 172, 176, 178,, 218. 129. One member of a firm filed a petition in one state and requested his copartners to join, which they refused but afterward con- sented to do, and all were declared bank- rupts. The copartners did not reside in the judicial district in which the petition was filed. Objection to the jurisdiction of the court was overruled. In re Penn et al., 5 N. B. R. 30; 5 Ben. 89; 8 Chi. Leg. News, 335; Fed. Cas. 10,927. 130. One member of a partnership had not resided in the district for six months next preceding the filing of a petition in bankruptcy against the firm. The residence of the partners was the only allegation in support of the jurisdiction of the court. Held, the jurisdiction of the court as respects all the debtors and the entire cause was defeated. In re Beals et al., 17 N. B. R. 108; 9 Ben. 333; Fed. Cas. 1,165. 131. In the matter of the petition of two copartners for adjudication as bankrupts, it appeared that they transacted business in the city of New York, and that there were no individual debts or assets. Held, that as one of the copartners did not live in the judicial district in which the petition was filed, the court had no jurisdiction over him. In .re Prankard, 1 N. B. R. 51; Fed. Cas. 11,366. 132. A, being a member of a firm doing business in one state but domiciled in an- other, moved to dismiss the proceeding in bankruptcy in the state of his domicile and have the cause removed to the district where the business was conducted and his partner resided and had filed a petition. Held, that proceedings should be stayed. In re Smith, 3 N. B. R. 15. XI. Dissolution. (a) WTiat is. 133. If one partner be adjudicated bank- rupt the partnership is dissolved. Blackwelt V. ClayweU et aL, 15 N. B. R. 300. 134. A partnership is dissolved by the bankruptcy of one partner. Wilkins v. Davis, 15 N. B. R. 60; 3 Lowell, 511; Fed. Cas. 17,664^ (h) Ffeoiof. 135. The rights of firm creditors will not be affected by the dissolution of the firm by agreement of the members. Hudgins v. Lane et al., 11 N. B. R. 463; 3 Hughes, 361; Fed. Caa. 6,837. 136. Dissolution of a partnership by mu- tual consent can have no effect upon the rights of creditors then existing, nor upon, those who subsequently become creditors, if the members of the firm continued to treat each other as partners after the dissolution,, and to act as such in their business transac- tions with others, and a petition in bank- ruptcy can still be filed against the members of a firm as though there had never been any dissolution. In re McFarland & Co., 10 N. B. R. 381; Fed. Cas. 8,788. 137. B. petitioned for an adjudication in bankruptcy against himself and his late co- partner, A., and it appeared that upon the dissolution of the firm B. agreed to pay the joint debts, and gave bond to A. with a solv- ent surety to secure him against his liability for those debts. Therefore the petition was dismissed as against A. In re Bennett et al., 13 N, B. R. 181; 3 Lowell, 400; Fed. Cas. 1,314. 138. One partner of a dissolved firm filed a petition against his two copartners. It ap» peared from the schedule that the firm was dissolved by judicial decree, and that the as- sets were transferred to a receiver and that there were firm debts. Held, that the flria PAHTNEES, Xn, (a), (1). 32^ could not be adjudicated. In re Hopkins v. Carpenter et al., 18 N. B. E. 839; Fed. CaS. 6,686. 139. Three parties, constituting a firm, contracted a debt, giving a firm note. After- wards the firm was dissolved. A. retired and B. & C. continued the business, agi-eeing with A. to pay all outstanding debts of the old firm. This agreement was not known to the creditors, who never released A. B. & C. became bankrupt and the creditor proved his claim, but only received payment of part thereof. Afterwards A. became bankrupt. Held, that the creditor could prove the bal- ance of his claim against the estate of A. in bankruptcy and take pro rata with other creditors. In re Pease, 13 N. B. E. 168; Fed. Cas. 10,881. 140. Where upon the dissolution of a part- nership one partner takes the accounts and notes of the firm, and the other the stock in trade, to which he adds and with which he continues the business, the stock in the hands of the latter, upon the subsequent bankruptcy of the former partners, will be held primarily liable for his individual debts. In re Mont- gomery, 3 N. B. E. 109 (1st case); 3 Ben. 565; Fed. Cas. 9,737. 141. Though a firm be dissolved it may still exist as to the creditors, under section 36 (act of 1867), and the several members may be adjudged bankrupt on the petition of one, without the consent of the others. In re Foster & Pratt, 3 N. B. E. 57; 3 Ben. 386; Fed. Cas. 4,963. 142. Two partners who were afterwards adjudged bankrupts in separate suits dis- solved partnership, but one partner carried on the business in the firm name with the consent of his copartner. Firm, creditors sought to share in the estate of the retired partner. Held, that the firm creditors could prove against the share which the retired partner had in the business. In re Morse, 13 N. B. E. 376; Fed. Cas. 9,854 143. One of the members retired from a firm, but permitted his name to be used, al- though notice of his separation was pub- lished in certain newspapers. The firm ex- changed notes with B., who sold to the petitioner for value before maturity. Held, the former partner was liable thereon. In re Ki-ueger et al., 5 N. B. E. 439; 3 Lowell, 66; Fed. Cas. 7,941. XII. Claims. See Clams, 49, 133-150, 350, 353; Proof of Claims, 4, 35; Secwbed Claims, 56; Com- MEKCiAL Paper, VL (a) Of Fvrm OreMtors.. (1) Against Firm Assets. 144. Notes drawn by one partner in the firm name, apparently in the course of part-' nership business, without mala fids or actual knowledge by the holder of want of author- ity or intended misapplication, entitle the' holder to their allowance against the bank- rupt estate of the firm. Van Camp Bush v. Crawford, Ass., 7 N. B. E. 399. Eeversing In re Duukle and Dreisbaoh, 7 N. B. E. 107. 145. A joint request made by the indi- vidual members of a firm soliciting B. to be- come a surety of one of them in an adminis- tration bond does not create a liability of the- firm. Forsyth v. Woods, Ass., 5 N. B. E. 78; 11 Wall. 484 146. Where notes were fraudulently given by one partner in the name of the firm for his separate debt, and the partner defrauded, upon learning of the issue of two of said notes, by an agreement of dissolution of thet partnership, purchased his copartner's in^ terest in the firm for a sum of money pay- able by the appropriation of a portion thereof to the payment of the said two notes, and the balance on or before a stipulated time,, and the partnership was subsequently ad- judged bankrupt, but any claim against the partnership estate upon any of the notes being disallowed, it was held that the eflfeot of the Agreement of dissolution as to the said two notes was not a ratification of them by the defrauded partner as firm obligations, but an assumption of them as his separate^ debts, the claims upon said two notes re- maining also separate debts of the partner who had issued them. Dunkle v. Dreisbach, 7 N. B. E. 107; Fed. Cas. 4,161. 147. Where the individual property of * member of a firm is security for the partner- ship debts, the creditor may prove, and indeed is bound to prove, at the request of the sepa-, rate creditors, his whole debt against the- joint assets; but only the deficiency may bo' allowed after disposing of the security against the separate as,sets of the individual partner. 330 PARTNERS, XII, (a), (3). In re May & Co., 17 N. B. R. 192; Fed. Cas. «,337. 148. A firm wMoh indorses a note given by a member, which falls due after the firm's bankruptcy, need not have notice of the dis- honor of such note in order to prove it against the social assets. Ex parte Russell, 16 N. B. R. 476; Fed. Cas. 13,148. 149. Most of the debts against a bankrupt copartnership were purchased in the interest of two copartners by friends to whom they furnished money, the third copartner not contributing. Held, that unpaid debts should be paid, and that the amount paid by friends of the copartners must be refunded to them. In re Lathrop et al., 5 N. B. R. 43; 5 Ben. 199; Fed. Cas. 8,104. 150. When a man and his wife hold them- selves out to the world as partners in trade and the firm becomes bankrupt, the partner- ship creditors are entitled to be paid in pref- erence to individual creditors of the husband out of the partnership assets. In re Kinkead, 7 N. B. R. 439; 3 Biss. 405; 7 West. Jur. 110; 6 Amer. Law T. Rep. 45; 5 Chi. Leg. News, 217; 1 Amer. Law Rec. 533; 3 Bench & Bar (U.S.), 41; Fed. Cas. 7,834. 151. Two debtors trading as N., agent, ■became bankrupt and left assets. They for- merly did business as N. & Co. and failed leav- ing no assets. Creditors of N. & Co. claimed that they were entitled to share in the as- sets of the bankrupts. Held, that they were so entitled. In re Nims et al., 18 N. B. R. 91 ; 10 Ben. 53; 36 Pittsb. Leg. J. 11; Fed. Cas. 10,268. (2) Against Separate Assets. 152. In the case of the separate bank- ruptcy of one member of a firm, a joint cred- itor is entitled to prove his joint debt. In re Webb, 16 N. B. R. 358; 4 Sawy 336; 10 Chi. Leg. News, 37; 5 N. Y. Wkly. Dig. 174; Fed. Cas. 17,317. 153. Judgment was recovered on the note ■of the firm A., B., C. & D. in an action in which D. was not served with process. On the bankruptcy of the firm, held, that the judgment could not be paid out of the pro- ceeds of the sale of real estate, the legal title 4o which was in D. In re Hinds et al., 3 N. B. R. 91; Fed. Cas. 6,516. 154. A creditor filed separate proofs of debt for the same amount against the in- dividual members of a partnership, which claims were objected to and the objection was overruled. In re Beers et aL, 5 N. B. R. 311; Fed. Cas. 1,329. 155. A promise by a partner to pay all the firm debts may be enforced by the firm creditors, although they were not cognizant of the promise when made, and although the consideration did not move from them. In re Collier, Taylor & Co., 13 N. B. R. 266; Fed. Cas. 3,003. 156. If there be no joint partnership es- tate, the firm creditors may share pari passu in the separate estate. Id. 157. A joint creditor can prove under a separate bankruptcy, though not to compete in the separate assets, and may vote for as- signee, and be heard on the discharge, and examine the debtor, and share any joint as- sets or any surplus of the separate assets. Wilkins v. Davis, 15 N. B. R. 60; 3 LoweU, 511; Fed. Cas. 17,664. 158. One member of a firm made state- ments, in ordinary conversation^ to a party concerning the business of the firm, on the strength of which the party bought, from a third person, a note of the firm. Held, that although the representation was false, the individual member was not liable. In re Schuchardt et al., 15 N. B. R. 161, 8 Ben. 585; Fed. Cas. 12,483. 159. A firm, some of whose members were foreigners, became indebted to the United States. The resident members constituted another firm, which firm and its members became bankrupt. Held, that the United States were entitled to priority of payment out of the separate estates of the bankrupts. United States v. Lewis et al., 13 N. B. R 33; 3 Wkly. Notes Cas. 31; 33 Int. Rev. Rec. 39; 33 Leg. Int. 371; 33 Pittsb. Leg. J. 34; Fed. Cas. 15,595. 160. Where one member of the copartner- ship, upon the firm's dissolution, receives the firm assets and agrees to pay the firm debts, upon the subsequent bankruptcy of the firm, the firm creditors, at their election, prove as separate creditors of the liquidating copart- ner's estate, and share pari passu with the individual creditors. In re Long, 9 N. B. E. J 337; 7 Ben. 141; Fed. Cas. 8,476. PARTNERS, XII, (a), (3), (b). 331 161. A bankrupt partner is entitled to the benefit of the payment by the solvent part- ner to the amount of said solvent partner's liability. In re Cooke & Co., 12 N. B. R. 30; 1 Wkly. Notes Cas. 318: Fed. Cas. 3,170. 162. The creditor of a partnership may proceed at lav? against the surviving part- ners, or go in the first instance into equity against the representatives of the deceased partner. Lewis, Trustee, v. United States, 14 N. B. R 64; 93 U. S. 618. 163. In order to charge a secret partner for debts contracted in the name of the firm of which he is a dormant partner, it is neces- sary to show that such debts were contracted in the name and business of the firm, or that the secret partner had an interest in the con- tract or profits. In re Munn, 7 N. B. R. 468; S Biss. 443; 7 Amer. Law Rev. 751; Fed. Cas. «,925. 164. Where the purchaser of a note did not know that there were any secret part- ners with the persons whose names appeared upon its face, and for whose individual bene- fit it was given, and placed the proceeds to the credit of the holder, the secret partners would not be liable. The fact that such pur- chaser afterwards proved his claim in bank- ruptcy against the signers of the note goes to show that he understood them alone to be liable and discounted it upon their respon- sibility. Id. (3) General. 165. Where a creditor holds the note of a copartnership indorsed by one of its mem- bers, he may prove in bankruptcy against both the copartnership fund and the sepa- rate estate and elect out of which fund he will be paid, or collect dividends from both funds. Stephenson v. Jackson, Ass., 9 N. B. R. 355; 3 Hughes, 304; Fed. Cas. 13,374 166. In the absence of fraud, joint debts may be converted into individual debts by one partner's undertaking for a good con- sideration to pay them. In re Collier, Taylor & Co., 13 N. B. R. 266; Fed. Cas. 3,002. 167. L., at the request of a bankrupt firm, became the owner of all claims against it, and agreed to indemnify said firm against all claims which existed at the commence- jnent of the proceedings. The firm had in- dorsed the notes of L. for his accommoda- tion, which he used in purchasing the claims against the firm, and he agreed to indemnify them against any liability on those notes, they transferring to him all the assets of the firm. Held, that the indorsements were con- tracts independent of the indebtedness of the firm to their creditors, made for his ac- commodation; and that the taking of the notes so indorsed extinguished the original indebtedness of the firm and substituted the notes for it, so that such indorsements could not be regarded as contracts to pay the orig- inal indebtedness of the indorsers. In re Loder, 4 N. B. R. 50; 4 Ben. 305; Fed. Cas. 8,457. 168. An arrangement for an exchange of patronage was entered into between "certain members of two firms, though a special part- ner knew nothing of the arrangement. Held, that the arrangement was not within the scope and purposes of the partnership, and special partners could not be bound respect- ing any liabilities contracted by general part- ners not within said scope and purposes. Taylor v. Rasch et al., 11 N. B. R. 91; 1 Flip. 385; 1 Cent. Law J. 555; 31 Leg. Int. 365; Fed. Cas. 13,800. (b) Of Individual Creditors. 169. Where creditors held paper executed by the individual members of a partner- ship, although the original consideration has passed to the partnership, the creditors will he held to be the individual creditors of each of the bankrupts. In re Bucyrug Machine Co., 5 N. B. R. 303; Fed. Cas. 3,100. 170. Every creditor of a firm is also a creditor of each partner, but a creditor of one member of a firm is not a creditor of the firm nor has he any interest in the property of a bankrupt partnership. His interest in property which his debtor owns in common with the partners is in the share that may be left to his debtor after paying all partner- ship debts and all claims due the copartners. In re Phelps et al., 1 N. B. R. 139; 3 Amer. Law T. Rep. Bankr. 25; Fed. Cas. 11,071. 171. A. and B. entered into a partnership by which it was agreed that the firm should assume the individual debts. The firm hav- ing become bankrupt, one of the individual 333 PARTNERS, Xn, (o). creditors endeavored to prove his claim against the firm assets. There was no evi- dence that the creditor had consented to the conversion of liabilities. Held, that' the rule prevented him from proving his claim. In re Isaacs & Cohn, 6 N. B. E. 92; 3 Sawy. 35; Fed. Cas. 7,093. 172. Where all the members of one firm are partners in another, and a bank discounts a draft drawn by the former firm upon one individually who is a partner in the latter firm, the bank must look for payment to the separate estate of the drawee and cannot prove its claim thereon against the joint es- tate, although the draft was drawn on ac- count of a firm debt. In re Savage et aL, 16 N. B. R 868; Fed. Cas. 13,381. 173. Where a party who accepts the note of one partner for a loan which is obtained for the firm does not know that it is for the firm, he cannot sue the firm after having ob- tained judgment against the individual part- ner. In re Herrick, 13 N. B. R 812; Fed. Cas. 6,420. 174. A bond whereby several members of a firm bind themselves jointly and severally to pay the amount therein expressed may be proven against and paid from the assets of the individual estate of each member of the firm. In re Bigelow et al., 3 N. B. R 131; 3 Ben. 146; 2 Amer. Law T. Rep. Bankr. 41; Fed. Cas. 1,397. 175. B., a member of the firm B. & Co., was treasurer of a corporation for which B. & Co. were general business agents, and au- thorized to receive and disburse moneys, except subscriptions to its capital stock. B. received subscriptions and paid the money into the business of his firm. No acquiescence oa the part of the corporation appeared. Held, that proof could be made against both estates. In re Baxter et al., 18 N. B. R. 63; Fed. Cas. 1,119. 176. A. loaned to B., of the firm of B. & C, a sum of money which A knew was not to be used for firm purposes, B. giving a note signed in the firm name. Held, that A.'s claim against the firm assets should be re- jected. In re Forsyth et aL, 7 N. B. R. 174; Fed. Cas. 4,948. 177. Individual members of a copartner- ship signed internal revenue tobacconists bonds as accommodation sureties. The firm being adjudged bankrupt, and the conditions of the bonds having been broken, the debts thereon were proved in bankruptcy, and pri- ority of payment to the United States, out of the partnership assets, claimed. Held, that the debts were individual debts and not entitled to priority. In re Webb & Johnson, 3 N. B. R. 183; 2 Amer. Law T. Rep. Bankr. 87; 9 Int. Rev. Reo. 169; 16 Pittsb. Leg. J. 43} Fed. Cas. 17,313. (o) Between Joint and Separate Es- tates. • 178. No proof can be made in bankruptcy between the joint and separate estates, in re- spect either of money drawn out without fraud by one partner, or of goods sold to him by the firm, though he was to sell them again. In re Boynton, 10 N. B. R. 135. 179. Where partnership debts are out- standing, on which a bankrupt's partner is liable, such partner has a lien on the real es- tate of the firm until the debts are paid, to indemnify him in the event of his having t» pay them. Thrall v. Crampton, Ass. etc., 16 N. B. R. 261; 9 Ben. 318; Fed. Cas. 14,008. 180. A firm can be a separate creditor of one of its members. In re McLean et al., 15 N. B. R. 333; Fed. Cas. 8,879. 181. One C. was assignee of a firm and of each of the two members, one of whom owed the firm a sum much greater than his inter- est in it. The assignee petitioned the court to be authorized to pay the claim of the firm against the debtor partner on the same basis as his other separate debts. The debtor's separate estate was only sufficient for his individual debts. Held, that the assignee could prove such claim against the debtor partner, but could not take in the distribution of the estate until his individual debts were- paid. Id. 182. Debts due by the bankrupt partner to the partnership are entitled to priority in preference to the debts due by him to his separate creditors, and, if the joint funds prove insufScient to discharge his debt to the partnership, the solvent partners have a right to prove the deficiency against the sep- arate estate of the bankrupt pari passu witl* the separate creditors. Amsink et al. v. Bean, Ass., 11 N. B. R 495; 23 Wall. 395. PARTNERS, XII, (d), (e). 333 183. Where all the parties become bank- Tupt, the general rule is that the separate estate of one partner shaU not claim against the joint estate of the partnership in compe- tition with the joint creditors, nor shall the joint estate claim against the separate estate in competition with the separate creditors. Id. . 184. No proof can be made in bankruptcy between the joint and separate estates In re- spect either of money drawn out without fraud by one partner or of goods sold to him by the firm, though he was to sell them .agam. In re Lane & Co., 10 N. B. R. 135; 3 LoweU, 233; Fed. Cas. 8,044. (d) Pa/rtner Against Pm-tner. 185. A member of a copartnership of banking firms, termed a syndicate, became bankrupt, having in its possession a sum of money in excess of its own share of the prof- its of the syndicate. Another member of the syndicate sought to prove a claim for the whole amount so held, on behalf of itself and its associates. Held, it could claim only the •difference between the whole amount and the bankrupt's share. In re Cooke & Co., 13 N. B. R 30; 1 Wkly. Notes Cas. 318; Fed. Cas. 3,170. 186. If a solvent partner pay all the part- nership debts, his proof against the separate «state of his bankrupt partners cannot in- clude the portion of said debts which upon a settlement of the accounts would be prop- erly payable by him. Id. 187. A solvent partner cannot prove a,gainst the separate estate of the bankrupt partner in competition with the separate creditors of the bankrupt until all the joint creditors of the partnership are paid or fully indemnified. Amsink et aL v. Bean, Ass., 11 N. B. R. 495; 33 Watt 395. 188. The firm A. & B. were sureties for a debt which was paid out of the firm assets. On dissolution of the partnership a balance was due to B. from A., who subsequently went into bankruptcy. Held that, as against other creditors of A., B. could not be' subro- igated to the rights of the creditor whose claim the firm satisfied, against A.'s estate. In re Smith, 16 N. B. R. 113; Fed. Cas. 13,991. 189. One member of a firm died and his administrators allowed the surviving partner to continue the business under the same firm name, but without a new partnership agree- ment. He became bankrupt. Held, that the administrators could only come in as any other creditor, the surviving partner having converted the property of his dead partner to his own use with the knowledge and con- sent of the administrators. In re Mills, 11 N. B. R. 74; Fed. Cas. 9,611. 1 90. A partner who has had to pay all the firm debts can prove against his bankrupt partner his proportion of the debts which he had paid, and an agreement in respect thereto which is set aside as void will not prevent him from claiming this right of contribution. In re Stephens, 6 N. B. R. 533; 3 Biss. 187; Fed. Cas. 13,365. 191. A bankrupt creditor of his bankrupt copartner has the residuum of the estate, separate and joint, belonging to the latter after all the separate creditors of the debtor bankrupt and the joint debts of the firm are paid, but not before. In re McLean et al., 15 N. B. R. 333; Fed. Cas. 8,879. 192. Plaintiffs and defendants formed a limited partnership, and in connection there- with the defendants became indebted to the plaintiffs. BeM,that such debt was not a fidu- ciary one. Pierce v. Shippee. 19 N. B. R. 331. 193. Where a partner retires from a firm and agrees to pay all the partnership debts, as between themselves the remaining partner is a surety for the retiring partner, but in case the surety has not actually paid any such debts, he cannot prove his claim against the estate of the retiring partner for the ex- cess of such debts over the dividends to be paid. In re Phelps, 17 N. B. R. 144; 9 Ben, 386; Fed. Cas. 11,070. 194. Where a firm consisting of two part- ners carries on business in the name of the active partner, a promissory note given by him to the silent partner, for the amount of capital contributed by the latter to the joint stock, is the separate act of the active part- ner. In re Waite et aL, 1 N. B. R. 84j 1 Lowell, 307; Fed. Cas. 17,044 (e) between Firms. 195. A claim of one firm of which the bankrupt is a partner against another firm 334 PARTNERS, Xni of which he is a partner is not a debt prov- able in bankruptcy against him. In re Lloyd, 15 N. B. R. 257; 5 Amer. Law Rec. 679; 15 Alb. Law J. 393; 24 Pittsb. Leg. J. 113; Fed. Cas. 8,429. 196. A firm, all of whose members are partners in another firm, cannot prove its debts against the latter. In re Savage, 16 N. B. R. 368; Fed. Cas. 12,381. XIII. General. See CoMMBECiAXi Paper, 6. 197. One member of a firm cannot estop himself, as between himself and the firm creditors, by any dealings with a partner, from any duty that he owes such creditors. In re Gorham, 18 N. B. R. 419; 9 Biss. 23; 11 Chi. Leg. News, 58; 26 Pittsb. Leg. J. 112; Fed. Cas. 5,624. 198. When all the members of a firm pe- tition for the benefit of the act, they are jointly and severally bound to make tiae re- quired statements of their debts, whether co- partnership or individual, or due by them jointly with other persons not parties to the petition. In re Leland, 5 N. B. R. 222; 5 Ben. 168; 1 Amer. Law T. Rep. Bankr. 284; Fed. Cas. 8,228. 199. A partnership is not entitled to re- tain, toward the payment of its debt, the sur- plus arising from the securities held by one partner for his debt. Sparhawk et al. v. Drexel et al., 12 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13,304 200. The commencement of a proceeding in bankruptcy against one partner within four months after the issuing of an attach- ment against the firm does not dissolve the attachment. Where the attachment is is- sued moi-e than four months before the com- mencement of proceedings in bankruptcy, the pi-oceedings for a judgment in rem will not be stayed. Mason et al. v. Warthen et al., 14 N. B. R. 346. 201. Three men were associated as part- ners and after two years ceased business. Several years later one of the three was ad- judicated a bankrupt and received his dis- charge. The assignee sold all the assets, and the bankrupt became the purchaser and afterward brought an action on one of the claims so purchased. The defendant pleaded the statute of limitations. Held, that the- statute ran from the time of adjudication. Blackwell v. ClayweU et al., 15 N. B. R 300, 202. The note of a third person, given and received in payment of a debt of another, is a valid contract, and extinguishes the origi- nal debt; and a note given by a partner in payment of the debt of a firm, as to such debt, is the note of a third person. In re Parker et al., 19 N. B. R. 340; Fed. Cas. 10,731. 203. There are but two ways in which partners may be joined in a voluntary peti- tion: either by their own act, or by the act of the partners petitioning. In re Harbaugh et al., 15 N. B. R. 346; 15 Alb. Law J. 194: 33 Int. Rev. Rea 50; 34 Pittsb. Leg. J. 100; Fed. Cas. 6,045. 2 04. An act of one partner which amounts to a defense against an action thereafter brought, if it had been performed by all the- members of the firm, wUl, although in fraud of the other and innocent partner, be a de- fense not only in an action brought by him individually, but by any other firm of which he was at the time a member. Capelle, Ass., V. Hall, 13 N. B. R. 1; Fed. Cas. 2,391. 205. An individual partner cannot bind the concern by a note or contract given or made for his individual debt, or use or bene- fit, without the consent of his copartners, ex- press or implied; nor can he, without such consent, use partnership funds or property to pay a prior individual debt, or cancel an in- debtedness to the firm by crediting upon its books an individual indebtedness of himself. Taylor, Ass., v. Rasch et al., 5 N. B. R 399; 4 Amer. Law T. 201; Fed. Cas. 13,801. 206. Articles of copartnership, when pub- lished, are sufiicient notice to all persons dealing with a limited partnersliip of the scope of said partnership business. Taylor V. Rasch et al., 11 N. B. R. 91; 1 Flip. 385; 1 Cent. Law J. 555; 31 Leg. Int. 365; Fed. Cas. 13,800. 207. Where a firm own and operate a farm, and the members own stock in, and are officers of, a manufacturing corporation which, is solvent, they are not "tradesmen" within the meaning of the bankrupt act. In re Stickney, 17 N. B. R. 305; 5 Dill. 91; & Rep. 586; 5 Cent. Law J. 265; Fed. Cas. 13,439. 208. A rule for judgment was asked for want of a sufficient affidavit of defense. The- PAYMENT, I, (a). 335- suit was an action on the case for the value of certain furniture, brought by two mem- bers of a firm. The affidavit of defense set forth that said members were also members of a certain copartnership, another member of which had filed a petition in bankruptcy as to himself and Ms copartners. No adjudi- cation had been made. Judgment granting the nils. Booth v. Meyer et al., 14 N. B. R. 575. 209. A receiver of a copartnership cannot maintain an action of trover in his own name against a person who has converted assets of the firm before his appointment. He is a mere custodian, and must sue in the name of the firm in whom was the legal right of action. Lansing v. Manton, 14 N. B. E. 137; 3 N. Y. Wkly. Dig. 113; Fed. Cas. 8,077. 210. If a surviving partner, holding the joint assets for purposes of administration, commit an act of bankruptcy, the joint as- sets and his own separate estate may be taken vmder the bankrupt act. In re Stevens, 5 N. B. E. 112; 1 Sawy. 397; 1 Pac. Law Eep. 45; Fed. Cas. 13,393. 211. Semble, a member of a bankrupt firm cannot represent claims against the estate. In re Mittledorfer & Co., 3 N. B. E. 9; Chase, 276; Fed. Cas. 9,674 212. A firm dissolved, with the written agreement that one member should assume and pay its obligations, including outstand- ing commercial paper. Paym.ent thereof was suspended, and was.not resumed in fourteen days (act of 1867). Held, that such suspen- sion was an act of bankruptcy, and it is un- necessary to allege or prove fraud in such suspension. In re Weikert & Parker, 3 N. B. E. 4; Fed. Cas. 17,361. 213. Partnership assets must be adminis- tered according to the thirty-sixth section of the act of 1867, and likewise the assets of the separate estate of the bankrupt. In re Frear, 1 N. B. E. 301; 3 Ben. 467; 35 How. Pr. 349; Fed. Cas. 5,074. 214. Where a citizen of one state volun- tarily made himself a party in the bank- ruptcy court of another state and received a dividend on his debt, he was held bound to the same extent that citizens of the former state were bound. Clay v. Smith, 3 Pet. 411. PAYMENT. I. To OR BT A Bankrupt. (a) Before Proceedings Begun. (b) After Proceedings Begun, IL How Made. III. Suspension- OF. IV. Does Not Preclude Creditor. See Account, 4; Banks, 39; Claims, 336; Pe- titions, 145; Sales, 33. 1 I. To OE BT A BaNXKUPT. (a) Before ProceedMigs Begwn. 1. A payment by a debtor in insolvent cir- cumstances more than four months before- the commencement of proceedings in bank- ruptcy, although a prefei-enoe, will be sus- tained under section 35 of the bankrupt act of 1867. Mam-er, Ass., v. Frantz, 4 N. B. E.- 143. 2. Where a debtor, cognizant of his insolv- ency and expecting to stop payment, make* a payment for a just debt with a view of giving a preference, such payment is fraud- ulent. In re Gregg, 4 N. B. E. 150; Fed. Cas. 5,797. 3. Payments made by an insolvent debtor before bankruptcy proceedings are presumed to have been made with a view on the part of the debtor to give a preference. In re Forsyth & Murtha, 7 N. B. E. 174; Fed. Cas. 4,948. 4. A bankrupt, making payments in the course of business with the bona fide expectar tion of being able to continue business and with no intention to give a preference, is not thereby deprived of his right to a discharge. In re Brant, 8 N. B. E. 444; 2 Dill. 139; 18 Int. Eev. Eec. 159; Fed. Cas. 1,833. 5. Payment made by an insolvent, which would otherwise be void under sections 35 and 39 of the bankrupt act of 1867, is not ex- cepted out of that provision because made to holder of his overdue note on which there was a solvent indorser whose liability had already been fixed by notice and protest. Bartholow et al. v. Bean, Ass., 10 N. B. E. 341;. 18 Wall. 635. 6. A., banker, discounted note of B. upon/^ which C. was indorser. Before its maturity- 536 PAYMENT, I, (b)-IV — PETITION. C. waived protest and notice and note re- mained unpaid. B. paid tlie amount to A. In the meantime B. failed and entered into composition, which A. did not sign, and B. was insolvent when he paid the note; peti- tion in bankruptcy was filed less than four months after payment of note. Held, the payment was void under sections 35 and 39. Id. 7. Payments to creditors who have recov- ered judgment and issued execution before the commencement of proceedings in bank- ruptcy are to be included in the assets of a voluntary bankrupt, in the computation, to determine the per cent, of assets. In re Tag- .gert, 16 N. B. R. 351; Fed. Gas. 13,725. (b) After Proceedings JBegv/n. 8. Payment to or by bankrupt after com- mencement of proceedings in bankruptcy is void, though made bona fide and without no- tice. Mays V. Mfrs. Nat. Bank of Phila., 4 N. B. R. 147. • 9. Payments to the petitioning creditors are material facts, and evidence of them may be introduced without a special traverse, and the receipt of such payments to an amount sufScient to reduce the indebtedness below the minimum jurisdictional amount must be ■considered a waiver of the alleged act of bankruptcy. In re Skelley, 5 N. B. R. 214; 3 Biss. 360; Fed. Gas. 13,921. 10. Payments made by creditors to a bankrupt after the filing of the petition in bankruptcy are invalid as against the as- signee. In re Hay den, 7 N. B. R. 193; Fed. ■Cas. 6,357. 11. Although proceedings in bankruptcy are pending against him, a debtor who is solvent may pay any or all of his debts. In re Oregon Bui. Pr. & Pub. Co., 13 N. B. R. 603; 1 Gin. Law Bui. 87; Fed. Gas. 10,559. 12. A payment to a bankrupt, after the filing of the petition for adjudication, will not discharge the debtor's liability to an after-appointed assignee. Until, therefore, the appointment of an assignee, or the dis- missal of the petition, the right of action against the debtor is suspended. Babbitt v. Burgess, 7 N. B. R. 561; 3 Dill. 169; 5 Ghi. Leg. News, 326; Fed. Gas. 693; Booth v. Meyer etaL, 14N. B.R. 575. II. How Made. 13. A decree that a judgment be paid in gold coin is just and proper in California. Edmondson v. Hyde, Ass., 7 N. B. R 1; 3 Sawy. 305; 5 Amer. Law T. Rep. (0. S. Cts.) 380; Fed. Gas. 4,285. 14. Bonds issued in aid of the Rebellion, when accepted by a creditor in payment of his debt, and while they are of value as a medium in the money markets, constitute a, valid medium for the payment of a debt, provided the contract in which they were used was not in aid of the Rebellion. HoUe- man v. Dewey, Ass., 7 N. B. R 269; 2 Hughes, 841; Fed. Gas. 6,607. 15. A tender according to the temis of a composition is equivalent to payment. In re Hinsdale, 16 N. B. R 550; 9 Ben, 91; Fed. Gas. 6,536. III. Suspension of. 16. A suspension of payment of commer- cial paper for fourteen days, under section 39, before the amendment of July 14, 1870, was per se an act of bankruptcy, and the failure to pay it for fourteen days after the passage of the amendment, although it was due and dishonored before the passage, is a suspension withiu the meaning of the amend- ment. Baldwin v. Wilder, 6 N. R R 85 ; Fed. Cas. 806. lY. Dobs Not Peeolitde Ceeditoe. 17. The receipt by a creditor of part of his claim does not preclude him from petitioning to have his debtor adjudged a bankrupt if the creditor offers to bring this payment into the registry of the court. In re Mercer, 6 N. B. R 351; 29 Leg. Int. 76; Fed. Cas. 9,06a PENALTIES. See Crimes and Offenses. PETITIOIf. L Who May File. (a) Corporations, When, (b) Creditors, When, (c) Partners, When. (d) In General. PETITION, I, (a), (b). 337 IL III IV. V. VL VII. VIIL IX. X. XL XIL XIIL XIV. XV. "Who Mat Not Filk (a) Corporations, When. (b) Creditors, When. (o) Partners, Wlien. Against Whom. (a) Corporations. (b) Partners. (o) Persons Under Disabilities. (A) In General. NuMBEE OF Creditors and Amount OF Debts. (a) Allegations as to. (b) How Counted. (c) General. Time. Venue. Contents. VEErFIOATION. Amendment. Effect. Withdrawal from Second Petition. For Injunction Intervening. In General. See Costs and Fees, 130; Courts, 5, 6, 65, 91 ; Deeds, 7; Eatdence, 93, 94, 135; Injunc- tion, 31, 36 ; Married Woman, 33 ; Plead- ing and Pbactice, 98, 136, 143, 147, 190; Preferences, 305, 336. I. "Who Mat File. (a) Corporations, When. See Coepobations, 14, 16, 19. 1 . Under the provisions of section 37 of tlie bankrupt act of 1867, the filing of a petition in bankruptcy on behalf of a corporation can only be authorized by a vote of the majority of the corporators at a legal meeting called for the purpose. In re "Lady Bryan Mining ■Co.," 4 N. B. R. 131 ; 3 Abb. (U. S.) 537; 1 Sawy. 849; Fed. Cas. 7,978. 2. An insurance company is one of that ■class of corporations intended to be within the scope and provisions of the general bank- ruptcy law. In re Merchants' Ins. Co., 6 N. B. R. 43; 3 Biss. 163; 30 Pittsb. Leg. J. 83; 4 Chi Leg. News, 73; Fed. Cas. 9,441. 3. It is a question of fact to be deter- , mined by the district court whether the ' president of a corporation is duly authorized to file a petition on its behalf. New Lamp Chimney Co. v. Ansonia Brass and Copper Co., 18 N. B. R. 385; 91 U. 8. 656. (b) Creditors, When. 4. A petition may be filed by a creditor against his debtor upon a claim which is not yet due, if it is provable in bankruptcy. Linn et al. v. Smith, 4 N. B. R. 13; 8 Amer. Law T. 318; 1 Amer. Law T. Rep. Bankr. 339; Fed. Cas. 8,375; 5. The receipt by a creditor of part of his claim does not preclude him from petition- ing to have his debtor adjudged a bankrupt if the creditor ofEers to bring this payment into the registry of the court. In re Marcer, 6 N. B. E. 351; 39 Leg. Int. 76; Fed. Cas. 9,060. 6. A creditor, believing his debtor to be insolvent, may sue, and by proceeding to judgment compel the debtor himself to apply to be decreed a bankrupt, or, if he do not, but suffers his property to be taken on legal process in such manner as gives priority to such creditor, he may then allege this as an act of bankruptcy and himself demand an adjudication. Coxe v. Hale, 8 N. B. R. 563; 10 Blatchf. 56; 31 Pittsb. Leg. J. 77; Fed. Cas. 3,310. 7. Creditors who sign a petition must be held to good faith in the matter, and cannot recklessly file a petition for the purpose of making the alleged bankrupt file a state- ment of his creditors. In re Soammon, 11 N. B. R. 380; 6 Biss. 195; 7 Chi Leg. News, 43; 9 West. Jur. 175; Fed. Cas. 13.439. 8. A creditor who was induced to release his claim without consideration through the fraudulent representations of another cred- itor has a debt that will support a petition in bankruptcy. Michaels et ai v. Post, Ass., IS N. B. R. 153; 31 Wall. 398. 9. That the larger creditors should be re- quested to sign petition for adjudication and refuse is not necessary. In re Crn'rier, 13 N. ' B. B. 68; 3 Lowell, 436; Fed. Cas. 3,493. 10. Certain creditors of a corporation filed a petition asking to have it adjudicated bank- rupt. Defendant answered denying that the petitioners constituted one-fourth in number and one-third in value of its creditors. Peti- tioners moved to strike out the denial as ir- S38 PETITION, I, (c). relevant. Held, that any creditor may main- tain a petition to have a corporation adjudged a bankrupt under stjction 5132, Revised Stat- utes, and the provision as to number and amount of creditors does not apply. In re Oregon Pub. & Pr. Co., 13 N. B. E. 199; 10 Amer. Law Eev. 380; 8 Chi. Leg. News, 81; Fed. Cas. 10,558. 1 1 . A person has a right to purchase, in good faith, claims against a debtor, with a view to joining in a petition in bankruptcy to make the necessary number. In re Wood- ford & Chamberlain, 13 N. B. E. 575; 1 Cin. Law BuL 37; Fed. Cas. 17,973. 12. The co-operation of the debtor in secur- ing creditors, by lawful means, to unite in an involuntary petition is no ground for set- ting aside an adjudication. In re Duncan et aL, 14 N. B. E. 18; 8 Ben. 365; Fed. Cas. 4,131. 13. The bankrupt act does not prohibit a creditor's bringing compulsory proceedings in a state court, where debtor refuses to file a volimtary petition, and where sufScient number of creditors are not ready to file a petition against him. Geery's Appeal, 17 N. B. R 196. (c) Parlmsrs, When. See Paetners, 17, 20. 14. Where one partner is adjudicated a bankrupt on his individual petition, without notice to his fellow partners, it is proper for his assignee to institute proceedings in bank- ruptcy against the firm, as such partner can- not be properly discharged until the firm debts are paid or the partnership assets ad- ministered in the bankrupt court. In re Grady et al., Ass., v. Hawthorne et al., 3 N. B. R. 54; Fed. Cas. 5,654. 15. One of three members retiring from a firm, the other two continued the business for a while and then filed a petition for bank- ruptcy. On objection by the fetired partner, held, that the court had jurisdiction of such petition, and cause ordered to proceed. In re Mitchell et aL, 3 N. B. E. Ill; Fed. Cas. 9,658. 16. The proceeding by the petition of one of several copartners adjudicated bankrupt is a proceeding partly voluntary and partly involuntary. In re Penn et al., 5 N. B. E. 80; 5 Ben. 89; 3 Chi Leg. News, 225; Fed. Ca&. 10,937. 17. For the purpose of petitioning, a part- nership is held to subsist so long as there are- outstanding debts against the firm or as- sets undistributed belonging to it. In re- Hunt, TilUnghast & Co. v. Pooke & Steere, 5 N. B. E. 161; Fed. Cas. 6,896. 18. After proceedings have been com- menced in a state court by one of the mem- bers of a copartnership to put an end thereto, and for an account, and the property is in the hands of a receiver, it is competent for another member of the firm to file a petition in bankruptcy to have himself and the firm adjudged bankrupt. In re Noonan, 10 N. B. E. 330; 3 Biss. 491; 5 Chi. Leg. News, 557; 30 Leg. Int. 435; 21 Pittsb. Leg. J. 73; Fed. Cas^ 10,393. 19. Where there have been distinct fiiina of A & B. and A. & C, the three persons cannot be joined in one proceeding in bank- ruptcy, even though the latter fljm may have undertaken to pay the debts of the former.. In re Wallace & Newton, 13 N. B. E. 191 ; Fed. Cas. 17,095. 20. Partnerships engaged in trade are- made subject to the provisions of the bank- rupt act, and, on the petition of the partners- or any one of them, or of any creditor of the partners, such a partnership naay be adjudged bankrupt. Amsink et ah v. Bean, Ass., 11 N. B. E. 495; 32 Wall. 395. 21. There are but two ways in which partners may be joined in a voluntary peti- tion: either by their own act, or by the act of the partners petitioning. In re Harbaugh et al., 15 N. B. E. 246; 15 Alb. Law J. 194; 2a Int. Rev. Eec. 50; 24 Pittsb. Leg. J. 100; Fed. Cas. 6,045. 22. The adjudication of a copartnership must be made on one petition, and cannot be made on the several petitions of the several members. In re Plumb, 17 N. B. E. 76; 9 Ben. 279; 6 N. Y. Wkly. Dig. 70; Fed. Cas. 11,231. 23. A voluntary petition in bankruptcy was filed by partners, an adjudication was had, and the property conveyed to an as- signee. Nearly two years afterward a cred- itor of the firm filed a bill, alleging that twe persons not named in the petition were co- partners with the petitioners, and asked the court to order their joinder in the bank- PETITION, I, (d), II, (a), (b). 339 *uptoy proceeding. Held, that the creditors could not supply the omission, but could have the same remedies against such parties as they would have had before the petition was filed. Cit. Nat. Bank v. Cass et al., 18 N. B. R. 379; 6 Wkly. Notes Gas. 371; 6 Rep. 579; 19 Alb. Law J. 119; 26 Pittsb. Leg. J. 35; Fed. Cas. 3,733. (d) In General. 24. A person engaged in the general busi- ness of soliciting freight for a transporta- tion company, and also in purchasing and shipping flour and grain, making his pay- ments by liens drawn against his shipments, is a merchant and trader, and as such it is his duty to keep proper and correct books of account. In re O'Bannon, 2 N. B. R 6; Fed. Cas. 10,394. 25. An alien resident within the United States is entitled to the benefits of the bank- rupt law, and a residence for six months within the district in which application is made is not necessary. In re Goodf ellow, 3 N. B. R 114j 1 Lowell, 510; 8 Amer. Law T. Rep. Bankr. 69; Fed. Cas. 5,536.' 26. The sale of goods bought without an intention of selling them again does not con- stitute the vendor a trader. In re Rogers, 3 N. B. R 139; 1 Lowell, 423; Fed. Cas. 12,001. 27. Under section 3, as amended July 14, 1870, a banker, broker, merchant, trader, manufacturer or miner who fraudulently suspends payment of his debts can be pro- ceeded against in bankruptcy immediately, and other persons after they have suspended payment of their commercial paper for four- teen days, whether fi'audulent or not. In re Hercules Mut. Life Ass. Soc, 6 N. B. R. 338; 6 Ben. 85; 6 Alb. Law T. 358; Fed. Cas. 6,403. 28. Where a decree in bankruptcy is ren- dered with the consent of the bankrupt, he waives the irregularity that less than the requisite one-fourth in number and one-third in value of creditors petitioned. In re Will- iams et aL, 11 N. B. R 145; 8 Biss. 333; 7 Chi. Leg. News, 49; Fed. Cas. 17,700. 29. Petition was filed by bankrupt and assignee after adjudication, alleging that at time of filing creditor's petition bankrupt was member of firm which had debts ex- ceeding $300 and assets to be administered, and prayed that other members might be brought in and firm adjudicated. Held, that relief was within power of court (1867). In re Kelley, 19 N. B. R. 336; Fed. Cas. 7,656. II. Who Mat Not File. See DisoHAEQE, 13. (a) Corporations, When. 30. Where the board of trustees of a com- pany authorized their secretary to file peti- tion for the purpose of having the corporation adjudicated bankrupt, held, that such filing was illegal, the trustees having no power to authorize their secretary to do so. In re "The Lady Bryan Mining Co.," 4 N. B. R 86; Fed. Cas. 7,979. 31. Although the management of the affairs of a corporation is committed by the laws of the state to a board of trustees, such board cannot authorize the filing of a peti- tion in bankruptcy under the bankrupt act of 1867, which devolves that authority upon a majority of the corporators, to be exercised at a meeting called for the purpose. In re "Lady Bryan Mining Co.," 4 N. B. R. 131; 3 Abb. U. S. 527; 1 Sawy. 849; Fed. Cas. 7,978. (b) Creditors, When. 32. In opposition to petition it was alleged that proof of indebtedness did not show that petitioning creditor's debt existed at the time the alleged act of bankruptcy was com- mitted. Held, that such creditor should not be allowed to maintain a petition. In re MuUer & Bretano, 3 N. B. R. 86; Deady, 513; 3 Amer. Law T. Rep. Bankr. 33; Fed. Cas. 9,912. 33. Where, in answer to a petition, part payment is alleged, the petition cannot be maintained, if such part payment reduces the debt below the amount required by the bank- rupt act. In re Quinette, 3 N. B. R 140; 1 Sawy. 47; Fed. Cas. 10,633. 34. Where the policies in an insurance company are terminated, the insured do not become creditors of the company for the un- earned premium, so that payment to them of such premiums constitutes such a prefer- ence as will support a petition for an adjudi- cation in bankruptcy. KJiickerbocker Ins. Co. V. Comstock, 9 N..B. R 484; 6 Chi. Leg. News, 142; Fed. Cas. 7,879. 840 PETITION, II, (o), III, (a). 35. Where the alleged bankrupt has coun- ter-claim against the petitioning creditor, being provable in bankruptcy, and such amount will reduce petitioning creditor's claim below $350, the petition will be dis- missed (act of 1867). In re Osage Valley & S. K R E. Co., 9 N. B. E. 281; 1 Cent. Law J. 83; Fed. Cas. 10,093. 36. A petition must be dismissed where it appears to the court by affidavit or other- wise that at the time of filing the petition the creditors who filed it knew that they did not constitute the requisite number. In re Soammon, 11 N. B. E. 380; 6 Biss. 195; 7 Chi. Leg. News, 43; 9 West. Jur. 175; Fed. Cas. 13,439. 37. Where an indorsee receives payment from the indorser during pendency of pro- ceedings, he cannot unite in the petition, even though he proved his claim before pay- ment but had not filed it. In re Broich et al., 15 N. B. E. 11; 7 Biss. 303; Fed. Cas. 1,931. 38. A creditor cannot compel a debtor to go into voluntary bankruptcy, or compel partners to petition for the adjudication of alleged fellow partner. In re Harbaugh et al., 15 N. B. E. 346; 15 Alb. Law J. 194; 33 Int. Eev. Eec. 50; 34 Pittsb. Leg. J. 100; Fed. Cas. 6,045. 39. A. contracted that if B. would forbear to institute bankruptcy against C, he (A) would pay C.'s debt to B. Held, that such contract was not forbidden by the bankrupt law; but in this case, the debt being less than $350, B. had no right to file a petition, and the consideration for the contract failed. Ecker v. Bohn, 16 N. B. E. 544 40. No creditor who has received a pref- erence having at the time reasonable cause to believe his debtor insolvent is authorized to institute proceedings in bankruptcy. Ecker V. McAllister, 17 N. B. E 43. (c) Pa/rtmers, When. See PABtNERS, 48. 41. Where a partnership is dissolved by the assignment by one member of his inter- est to a third person, the remaining partner is not entitled, under section 36 of the act of March 3, 1867, to maintain a petition that the original firm and each of its members be ad- judged bankrupt. In re Hartough et aL, 3 N. B. E. 107; Fed. Cas. 6,164. 42. Partner filed petition in bankruptcy against a copartner. Held, that such petition would not lie. Eobinson et aL v. Hanway, 19 N. B. E. 389; 37 Pittsb. Leg. J. 31; Fed. Cas. 11,953. III. Against "Whom. (a) OorporaUons. See COEPOEATIONS, 13, 15, 18, 30-33. 43. In proceedings against railroad com- pany, respondents, hM,, that railroad corpo- rations do not come within the bankrupt law. In re Opelousas & G. W. E. E. Co., 3 N. B. E. 31; Fed. Cas. 10,547. 44. The bankrupt act was not intended to apply to national banks, and therefore peti- tion against a national bank must be dis- missed for want of jurisdiction in the district court, the comptroller being the proper resort by especial congressional provision. Smith V. Manufacturers' Nat. Bank, 9 N. E. E. 133; Fed. Cas. 13,076. 45. An involuntary petition in bankruptcy against the officers or stockholders of a man- ufacturing corporation on account of their statutory liability cannot be sustained in Rhode Island by a judgment creditor of the corporation. James, Adm'r, v. The Atlantic Delaine Co. et aL, 11 N. B. R 390; Fed. Cas. 7,179. 46. A creditor filed a petition in involun- tary bankruptcy to have a savings bank, a corporation, adjudged a bankrupt. Motion was made to dismiss the petition on the ground that it did not allege that the peti- tion was presented by one-fourth in number of the creditors and representing one-third in amount of debts. The motion was sus- tained (act of 1867). In re Leavenworth Sav. Bank, 14 N. B. R 82; 33 Pittsb. Leg. J. 196; Fed. Cas. 8,166. 47. Under the amendatory act of June 33, 1874, the same proportion of creditors must join in an involuntary proceeding against a corporation as is required in case of a nat- ural person. In re Leavenworth Sav. Bank, 14 N. B. E. 92; 4 DilL 363; 3 Cent. Law J. 307; Fed. Cas. 8,165. 48. Since the amendatory act of June 33, PETITION, III, (bHd), IV, (a). 341 1874 a corporation can no longer be subjected to compulsory bankruptcy upon the petition of a single cred itor. In re Detroit Car Works, 14 N. B. R 343; 3 N. Y. Wkly. Dig. 140; Fed. Cas. 3,833. (b) Pa/rtners. See Paetnees, 16, 19-28, 42, 136. 49. A member of a partnership which has been dissolved and which has no assets which would pass to an assignee cannot be adjudi- cated a bankrupt without his consent upon the petition of one or more members thereof. In re Crockett, 2 N. B. R 75; 3 Ben. 514; 3 Amer. Law T. Eep. Bankr. 31; Fed. Cas. 3,402. 50. A member of a firm actually existing and having assets cannot be adjudicated a bankrupt and discharged from his liabilities individually and as a member of the firm, unless his copartners are joined with himj In re Winkens, 3 N. B. R 113; 1 Chi. Leg. News, 168; 2 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 17,875. 51. Proceedings in involuntary bank- ruptcy were instituted against one William Lloyd, who was a partner in several differ- ent firms. The question arose as to whether firm debts were to be included in computing the number of creditors and amount of debts necessary to be represented by the petition, and the court held that both individual and firm debts must be computed. In re Lloyd, 15 N. B. E. 257; 15 Alb. Law J. 293; 24 Pittsb. Leg. J. 113; 5 Amer. Law Eec. 679; Fed. Cas. 8,429. (o) Persons Under DisabiliUes. 52. A petition of involuntary bankruptcy against a married woman, founded upon a debt evidenced by notes which do not show on their face an intention to bind her sepa- rate estate, must allege that the notes were given for the benefit of her separate estate or else given by her, she being in trade, in the course of her business. In re Howland, 3 N. B. R. 114; 1 Chi. Leg. News, 163; 3 Amer. Law T. Eep. Bankr. 53; Fed. Cas. 6,791. 5 3 . A. became insane after committing an act of bankruptcy. Held a petition in bank- ruptcy will lie against him. In re Pratt, 6 N. B. E. 376; 3 Lowell, 96; Fed. Cas. 11,371. 54. Petition was filed against a minor, who, after becoming of age, filed a petition of vol- untary bankruptcy, in which he confirmed and ratified the former proceedings and a-^ked the benefit of the bankrupt act. Held, that the proceedings while he was an infant were void, and that his confirmation did not operate as affirmance of the debt on which they were based. In re Derby, 8 N. B. E. 108; 6 Ben. 333; 6 Alb. Law J. 433; Fed. Cas. 3,815. 5 5 . Petition cannot be filed against a mar- ried woman who, by the law of her domicile, is not capable of contracting. In re Good- man, 8iN. B. B. 380; 5 Biss. 401; Fed. Cas. 5,540. (d) In General. 56. Involuntary proceedings in bank- ruptcy may be instituted against a debtor, although the debt is not yet due, if it is a provable debt. In re Alexander, 4 N. B. E. 45; 1 Lowell, 470; 18 Pittsb. Leg. J. 81; 3 Amer. Law T. Eep. 280; 1 Amer. Law T. Eep. Bankr. 238; Fed. Cas. 161. 57. By his will A. nominated C. and D. his executors for the limited purpose of winding up his banking business, and a peti- tion in bankruptcy filed against them was dismissed on the ground that under the pow- ers conferred upon them by will they were not subject to the provisions of the bank- rupt act. Graves et al. v. Winter et al., 9 N. B. R 357; '6 Chi. Leg. News, 284; 1 Cent. Law J. 178; 31 Pittsb. Leg. J. 159; Fed. Cas. 5,710. 58. A man cannot be called upon to show cause why he shall not himself go or put anybody else into voluntary bankruptcy. In re Harbaugh et al., 15 N. B. R 246; 15 Alb. Law J. 194; 23 Int. Eev. Eec. 50; 34 Pittsb. Leg. J. 100; Fed. Cas. 6,045. IV. NUMBEE OS CkEDITOES AND Amount of Debts. See Claims, XII; Commbecial Papee, 40?. COTIETS, 13, 16; SCHEDTILE, I, II, III; Se- cdeed Claims, 27. (a) Allegations as to. 59. In all petitions pending in involun- tary bankruptcy commenced since Decem- ber 1, 1878, where no adjudication has been, had, the vsiit^onex must iile a sworn amend- 342 PETITION, IV, (b). merit to his petition alleging on information and belief that the petitioning creditors rep- resent one-fourth in number and one-third in amount of the bankrupt creditors. In re Joliet I. & S. Co., 10 N. B. E. 60; Fed. Cas. 7,436. 60. Unless a petition for adjudication con- tain a clear, explicit and consistent allega- tion as to the proportionate number of cred- itors petitioning and the amount of debts represented by them, the court has no juris- diction, and no amendments can be allowed. In re Eosenfields, 11 N. B. E. 86; 3 Amer. Law Eec. 734; 1 Cent. Law J. 583; Fed. Cas. 13,061. 61. A. was declared a bankrupt and as- signee appointed; the bankrupt then filed affidavits to show that the proceedings were not in accordance with act of June 33, 1874, requiring one-fourth in number and one-third in amount of the creditors of the debtor to join in the petition. Ileld, that it is not nec- essary to amend the petition where there has been an adjudication before the amendatory act took effect. In re Ekffauf, 10 N. B. E. 69; 6 Biss. 150; 6 Chi. Leg. News, 341; 31 Tittsb. Leg. J. 206; Fed. Cas. 11,535. 62. By amendment of June 33, 1874, every petition filed since December 1, 1873, to force a debtor into involuntary bankruptcy is re- quired to allege that the petitioning cred- itors are one-fourth in number and one-third in value of the bankrupt's creditors. In re Scammon, 10 N. B. E. 66; 1 Cent. Law J. 338; 20 Int. Eev. Eec. 33; Fed. Cas. 13,430. 63. Petitioning creditors need not swear positively that they represent one-fourth in number and one-third in value of the cred- itors of the debtor, but that according to their best information and belief they repre- sent this number and value. Id. 64. The petition must show, under the amendment of the bankrupt act of June 22, 1874, with as much certainty as possible, that the creditors uniting in the petition actually constitute the number requisite under the law. In re Scammon, 11 N. B. E. 380; 6 Biss. 195; 7 Chi. Leg. News, 43; 9 West. Jur. 175; Fed. Cas. 13,429. 65. Under section 89 of bankruptcy act of 1867, where a creditors' petition alleges that the petitioners are one-fourth in num- ber and one-third in amount, although the claims of several creditors appear to be less than $350 each, the petition would be vaUd. In re Hall, 15 N. B. E. 31; Fed. Cas. 5,923. 66. The petition in involuntary bank- ruptcy should contain the averment that the petitioners believe they do constitute one- fourth in number and one-third in amount of the bankrupt's creditors which are unse- cured, it not being required that they should know. Perin & Gaffl Mfg. Co. v. Peale, 17 N. B. E. 377; Fed. Cas. 10,981. (b) How Covmted. 67. A debtor claimed that the requisite number of creditors had not signed a peti- tion for the reason that the whole number of creditors should be counted. Held, that in counting the number requisite, only those owning debts "provable under the act" should be considered. In re Frost, 11 N. B. E. 69: 6 Biss. 213; 7 Chi. Leg. News, 42; Fed. Cas. 5,134 68. The true construction of the proviso to the twelfth section of the amendatory act of Jilne 22, 1874, where there are no credit- ors whose debts exceed said sum of $250, etc., requires that where the creditors hav- ing debts of a less amount than $250 are reckoned at all, they must be reckoned for all purposes, and in such case the petitioners must constitute one-fourth in number of aU creditors, and the amounts of their provable debts must equal one-third of aU provable debts. In re Hymes, 10 N. B. E. 433; 7 Ben. 427; Fed. Cas. 6,986. 69. The provision of amendment of June 23, 1874, required that in all cases com- menced after December 1, 1873, and prior to the passage of the amendment, the debtor is to be adjudged a bankrupt upon the petition of one or more creditors who constitute at least one-fourth in number and one-third in amoimt, and that the fact that the debtor did not deny that the petitioning creditors constitute the requisite number in value and amount makes no difference. In re Scull, 10 N. B. E. 165; 7 Ben. 371; 10 Alb. Law J. 214; 1 Amer. Law T. Eep. 416; 30 Int. Eev. Eec. 80; 23 Pittsb. Leg. J. 34; Fed. Cas. 13,568. 70. Under act of March 2, 1867, as amended June 23, 1874, one or more creditors consti- tuting one-foui'th in number and one-thiid PETITION, IV, (c). 343 in amount must join in tlie petition in invol- untaiy bankruptcy. In re Joliet Iron & Steel Co., 10 N. B. E. 60; Fed. Cas. 7,436. 71. Accrued interest constitutes part of a debt provable against the estate of the bank- rupt and may be used to uphold involuntary proceedings. Sloan v. Lewis, 12 N. B. E. 173; 23 WalL 150. 72. In estimating the number and value of creditors who must join in the petition in involuntary bankruptcy, under section 39 of the bankrupt act, as amended by section 12 of the act of 1874, creditors who have been fraudulently preferred by the debtor are not to be counted. In re Israel, 13 N. B. E. 204; 3 Dill. 511 ; 3 Cent. Law J. 219 ; Fed. Cas. 7,111. 73. In computing the number of credit- ors who must join in a petition for adjudica- tion, creditors whose respective debts do not exceed §350 are not to be reckoned, but in computing the amount or value of creditors all should be included. The aggregate of the petitioners' debts must be equal to one- third of all the debts, irrespective of the amount provable against the estate (act of 1867). In re Hadley, 13 N. B. B. 866; Fed. Cas. 5,894 74. Though the aggregate of the debts of the petitioners whose debts exceed $250 in amount does not equal one-third of all the debts exceeding $250, a petition in in- voluntary bankruptcy should be sustained if the aggregate of all the petitioners' debts equal one-third of all the debts provable against the estate (1867). In re Bergeron, 12 N. B. E. 385; 2 Cent. Law J. 507; 1 N. Y. Wkly. Dig. 178; Fed. Cas. 1,343. 75. A creditor's petition for adjudication of bankruptcy is good if it represents one- fourth in number of the creditors whose debts exceed |350; or if it represents one- fourth of aU creditors and one-third of all debts (act of 1867). In re Currier, 13 N. B. E. 68; 3 Lowell, 436; Fed. Cas. 3,492. 76. In computing the amount represented by creditors joining in an involuntary peti- tion, secured creditors are not to be reck- oned. In re Green Pond E. E. Co., 13 N. B. E. 118; Fed. Cas. 5,786. 77. In counting the number of creditors necessary to join in the petition, creditors under $350 are not to be counted if one- fourth of the creditors above that sum join in the petition (act of 1867). In re Woodford & Chamberlain, 13 N. B. E. 575; 1 Gin. Law Bui. 37; Fed. Cas. 17,972. 78. A creditor who has issued an attach- ment within four months before the com- mencement of proceedings in bankruptcy is to be reckoned in computing the proportion of creditors who must unite in an involimtary petition. In re Scraflford, 14 N. B. E. 184; S Cent. Law J. 353; Fed. Cas. 12,557. 79. When a creditor obtained a security, or lien, for his claim in fraud of the bankrupt act, or which would be avoided if the debtor is adjudged a bankrupt, he cannot be included in computing the number and value neces- sary to be joined in the petition. In re Scraf- ford, 15 N. B. E. 104; 4 DilL 376; 3 N. Y. Wkly. Dig. 552; 3 Month. Jur. 614; Fed. Cas. 12,556; 3 Cent. Law J. 19. 80. The fact that a creditor is a trustee under a voluntary assignment, unless some fraud is connected with it, is not sufficient to exclude the creditor from being counted in estimating the number of creditors necessary to join in a petition in involuntary bank- ruptcy. In re Lloyd, 15 N. B. E. 257; 5 Amer. Law Eec. 679; 15 Alb. Law J. 293; 24Pittsb. Leg. J. 113; Fed. Cas. 8,439. 81. Of four creditors to the amount of ■ $250 each, one joined in the petition, others for less amounts than $250 made up one-third of the provable debts, but the number join- ing was less than one-fourth of the whole number of creditors. Held, a quorum was not made out (act of 1867). In re Blair et al., 17 N. B. E 493; 10 Chi. Leg. News, 278; 25 Pittsb. Leg. J. 123, 149; Fed. Cas. 1,481. (c) General. 82. In the original petition the creditors were insufficient in amount, and a supple- mental petition was filed by a creditor whose ' claim exceeded $250, and an admission that ' the two petitions included one-fourth of im- secured creditors whose claims equaled $350 was filed by the debtor. Held insufficient, it being necessary that the creditors petition- ing should be one-fourth of all whose claim equal $350 (act of 1867). In re Eiker, 18 N. B. E. 393; Fed. Cas. 11,833. 83. Even when a debtor has signed a writ- ten admission that the requisite quorum has 3M PETITION, V. united in the petition, the court must still be satisfied that the admission is made in good faith. In re Flanagan, 13 N. B. B. 439; 5 Sawy. 312; 26 Pittsb. Leg. J. 128; Fed. Cas. 4,850. 84. A petition having been filed by the requisite number of creditors on the return day of the order to show cause, the petition- ing creditors did not appear, but a creditor representing more than $350 intervened and prayed an adjudication. Held, that he had the right, even if he did not constitute one- fourth in number or one-third in value of all the creditors (act of 1867). In re ShefEer, 17 N. B. R 369; 4 Sawy. 363; 1 San Fran. Law J. 117; Fed. Cas. 13,742. 85. Debtors filed a denial that the proper number and amount of creditors had joined in the petition. No reference was made to ascertain the facts, but an entry of an order for reference appeared on the minutes of the judge. Held, that the judge was not called upon to fix a time within which additional creditors might join in the petition. In re Frisbie & McHugh, 15 N. B. R. 523; 14 Blatchf. 185; Fed. Cas. 5,129. 86. Where a petition in bankruptcy was filed by creditors, but the I'equisite number did not join, and afterward a supplemental petition was filed in which creditors joined, the total number being sufficient, it was held that the supplemental petition would not be dismissed because the requisite number of creditors had not joined in it. Id. 87. A petition in involuntary bankruptcy being filed, the debtor filed a denial that the petitioning creditor constituted one-fourth in number of the creditors, and that his claim aggregated one-third of the debts prov- able. The petitioning creditor moved to strike out the denial. Pending the motion, attachment creditoi's asked leave to inter- vene to oppose the petition, alleging that the requisite number and amount of creditors had not joined. Leave to intervene was granted. In re Scrafford, 14 N. B. R 184; 8 Cent. Law J. 253; Fed. Cas. 13,557. 88. An attaching creditor, though not a pai'ty to bankruptcy proceedings, may con- test adjudication, on the ground that the requisite number and amount of creditors have not joined in the petition. In re Hatje, 13 N. B. R 548; 6 Biss. 436; Fed. Cas. 6,315. 89. Where, by a comparison of lists, there appears uncertainty as to whether the debts of petitioning creditors equal one-fourth in number and one-third in amount, this is an issue to be determined upon evidence ad- duced, and the debtor must attend and' sub- mit to an examination, and the clerk must notify all creditors to be present at least ten days before hearing. In re Hymes, 10 N. B. R 433; Fed. Cas. 6,986. 90. On the hearing of a petition in com- pulsory bankruptcy, when the debtor defend- ant declines to appear and defend in form,, but is personally present, the court will hear a suggestion from any creditor, though it be one who is charged with receiving a fraudu- lent preference, that an insufficient number of creditors have joined in the petition^ under the amendment of June, 1874. Clin- ton et aL V. Mayo, 13 N. B. R 39; Fed. Cas. 2,899. 91. On motion of the bankrupt to dismiss proceedings against him for involuntary bankruptcy on ground that petitioning cred- itors did not amount to one-fourth in num- ber and one-third in amount, held, that act- of Jime 33, 1874, applied only to cases com- menced since December 1, 1873, where there- had been no adjudication. In re AngeU, 10' N. B. R 73; 1 Cent. Law J. 363; 6 Chi. Leg. News, 341; 31 Leg. Int. 254; 21 Pittsb. Leg. J. 206; Fed. Cas. 386. Y. Time. See Bankeupt Law, 5; Time, 3, 6. 92. The application of a creditor for an adjudication upon the petition of another creditor cannot be made after the return or adjourned day. In re Olmsted, 4 N. B. R 71 ; Fed. Cas. 10,505. 93. The filing of a petition for adjudicar tion in bankruptcy, either by a debtor in his own behalf or by a creditor against a debtor, upon which an order shall be issued adjudi- cating the debtor a bankrupt, shall be deemed and taken to be the commencement of pro- ceedings in bankruptcy under the act. In re^ Litchfield, 9 N. B. R 506; 7 BeiL 359; Fed. Cas. 8,885. 94. The provision of the amendment of 1874 as to failure to pay commercial paper applied to cases instituted subsequent to PETITION, VI, VII 34& December 1, 1873, and a petition in bank- ruptcy on the ground of non-payment of commercial paper is premature if filed be- fore the expiration of forty days from mar turity of the paper. In re Tivoli Brewing Co., 11 N. B. R. 470; Fed. Cas. 14,064. 95. The day on which the petition was filed is excluded in computing the time a preference must stand in order to be valid. Butcher v. Wright, Ass. etc., 16 N. B. B. 331; 94 U. S. 553. VI. Ventib. See CoTJETS, 274; Place of Business. 96. Where a petitioner in bankruptcy had carried on business for a great many years prior to 1866 in New Yoi-k city, and in that year moves to New Jersey to reside but still clerked in New York, his petition is properly filed in the southern district of New York. In re Belcher, 1 N. B. R. 303; 3 Ben. 468; Fed. Cas. 1,337. 97. The word "residence" in section 11 of the bankrurpt act of 1867 is not synonymous with " domicile," and where a person, resi- dent with his family in one place, buys a stock of goods in another, and goes there for business, leaving his family in the former place, the petition in bankruptcy is properly filed in the place where he carries on such business. In re Watson, 4 N. B. B. 197; Fed. Cas. 17,373. VII. Contents. 98. An indorser's liability on a note con- stitutes a debt which may be made the foundation of either voluntary or involuntary proceedings in bankruptcy. In re Nickode- mus,3N. B. R. 55; 3 Chi. Leg. News, 49; 16 Pittsb. Leg. J. 333; 3 Amer. Law T. 168; 1 Amer. Law T. Rep. Bankr. 140; Fed. Cas. 10,354 99. Petition charged that respondent "fraudulently stopped payment of his com- mercial paper within a period of fourteen days." Held, too vague and general to throw the burden of disproving it upon respondent. In re Randall & Sutherland, 3 N. B. R. 4; Deady, 557; 3 Amer. Law T. Rep. Bankr. 69; 1 Chi. Leg. News, 309; Fed. Cas. 11,551. 100. In an involuntary proceeding in I bankruptcy it is necessary, in order that the court may have jurisdiction, that the peti- tioning creditor shall have a debt against the alleged bankrupt, provable under the act of 1867, and amounting to at least $350. In re Hunt & Hornell, 5 N. B. R. 433; Fed. Cas. 6,883. 101. A debt wholly or partly secured will sustain a petition in bankruptcy. In re Stan- sell, 6 N. B. R. 183; Fed. Cas. 13,393. 102. A petitioner alleging a claim which is barred by the statutes of limitation cannot maintain a petition in involuntary bank- ruptcy for an adjudication declaring his al- leged debtor a bankrupt. In re Cornwell, 6. N. B. R. 305; 9 Blatchf. 114; 6 Amer. Law Rev. 365; Fed. Cas. 3,350. 103. As the petition in bankruptcy is in the nature of ple^ading, it should set forth all facts material to the claim made by the cred- itor to an adjudication, so that the debtor may be distinctly apprised what he is called upon to answer. In re Raynor, 7 N. B. R. 537; 11 Blatchf. 43; 1 Amer. Law Reo. 736; Fed. Cas. 11,597. 104. A petition for adjudication in invol- untary bankruptcy filed since December 1, 1873, but prior to June 33, 1874, must contain the allegation that the petitioners represent one-fourth in number and one-third in value- of the creditors. In re Scull, 10 N. B. R. 165;. 7 Ben. 371; 10 Alb Law J. 314; 1 Amer. Law T. Rep. 416; 30 Int Rev. Rec. 80; 33 Pittsb. Leg. J. 34; Fed. Cas. 13,568. 105. A creditor's petition not containing allegation as to number and amount of cred- itors, but accompanied by a paper purporting to be signed by debtor, admitting sufliciency in this respect, is not sufficient. In re Keeler, 10 N. B. R. 419; 30 Int Rev. Rec. 83; Fed. Cas. 7,638. 106. The allegation that the petitioning creditors constitute the requisite amount and number of all creditors is not an allegation which has anything to do with the jurisdic- tion of the court. In re Morris, 11 N. B. R. 443. 107. A petition in bankruptcy against a corporation, which does not show that the- corporation is either a moneyed, business or commercial corporation, is insufiicient. In re Oregon Bui. Pr. & Pub. Co., 14 N. B. R. 405; 3 Sawy. 614; 11 Amer. Law Rev. 181; 3 Cent^ 346 PETITION, VIIL Law J. 515 ; 14 Alb. Law J. 130 ; 3 Amer. Law T. Rep. (N. S.) 469; Fed. Cas. 10,561. 108. A petition of review was brought from the decision of the court below sus- taining a demurrer to a petition in involun- tary bankruptcy that stated upon " belief," but did not allege " Icnowledge or informa- tion," as to the number of creditors signing the petition. The order below was reversed. In re Mann, 14 N. B. E. 572; 13 Blatchf. 401; Fed. Cas. 9,033. 109. The allegation of residence, or carry- ing on of business, in the petition is the alle- gation of a jurisdictional fact, and the peti- tion must contain an allegation in that respect. In re Beals et aL, 17 N. B. E. 108; 9 Ben. 233; Fed. Cas. 1,165. 110. Petitioners must allege that they are creditors at the time of filing the peti- tion. In re The W. Sav. & Tr. Co., 17 N. B. E. 413; 4 Sawy. 190; Fed. Cas. 17,443. 111. The claim of one of the creditors uniting in a petition was a note for $350 fall- ing due four days after the filing of the peti- tion. Held, that it was not provable as a debt of $350 at date of filing. In re EiJier, 18 N. B. R. 393; Fed. Cas. 11,833. YIII. Yeeiitication. 112. A petition in bankruptcy must be signed and sworn to by a creditor himself and not by his attorney. In re Butterfield, 6 N. B. E. 257. 113. If neither the petition nor the depo- sition of the act of bankruptcy is signed by the petitioner, the defect is fatal. In re Hunt, Tillinghast & Co. v. Pooke & Steere, 5 N. B. E. 161; Fed. Cas. 6,896. 114. There is no express provision in the rules or orders in bankruptcy which forbids a petition to be sworn to by an agent or at- torney of the petitioning creditor. When the agent is clothed with full authority and is able to present the proper authentication of the petition required by the forms, such petition should be entertained, although the petitioning creditor does not, in person, sign or swear to it. In re Eaynor, 7 N. B. R. 527; 11 Blatchf. 43; 1 Amer. Law Rec. 736; Fed. Cas. 11,597. 115. The petition must be signed and ver- ified by the same officers and in the same manner as oaths in other cases to be used in United States courts. In re Sabin, 9 N. B. R. 383; Fed. Cas. 13,193. 116. A., in his affidavit to his petition in bankruptcy, swore that the schedule con- tained therein includes all his debts, when it was claimed he had omitted a certain cred- itor from his schedule fraudulently and wil- fully. Held, that as the debt was contracted with the creditor in his individual capacity, and subsequent to the date of the partner- ship of the creditor, imder which partnership name he is claiming notice as a creditor, it was not fraud or wilful omission. In re Pier- son, 10 N. B. E. 107; Fed. Cas. 11,158. 117. Creditors' petition was filed before act passed, and amended to meet require- ments of act of June 33, 1874, and the debtor denied that the requisite number of credit- ors had joined. Held, general intent of the act of June 33, 1874, would seem to indicate that the list of creditors presented by the debtor in denial that the requisite number and amount have joined in the petition should be sivom to by the debtor. In re Steinman, 10 N. B. E. 314; 6 Biss. 166; 6 Chi. Leg. News, 338; 31 Leg. Int. 369; 31 Pittsb. Leg. J. 200; Fed. Cas. 13,357. 118. When several join in a petition in separate and distinct rights, each stands indi- vidually, and a verification by or on behalf of each petitioner is required. In re Sim- mons, 10 N. B. E. 353; 1 Cent. Law J. 440; Fed. Cas. 12,864. 119. Where requisite number of creditors is less than five, it is not necessary for a per- son verifying the petition as agent to state residences of his principals as foundation of his right to act. Id. 120. A petition was not verified as to cer- tain of the petitioners and no proof of agency was shown as to others signed by agents. Held, that a verification of a petition for ad- judication is such only as to persons named in the body of it, and is not such as to a per- son whose name is omitted, although signed by him, and in a case free from other diffi- culties supplementary proof may, in the dis- cretion of the court, be received nunc pro tunc to establish the authority of the agent to sign and verify the petition. In re Rosen- fields, 11 N. B. R 86; 3 Amer. Law Eec. 734; 1 Cent. Law J. 583; Fed. Cas. 13,061. PETITION, IX, X Sir 121. If the name of a petitioner in the •body of a petition is omitted from the verifi- cation, the petition is imperfect. Id. 122. Under section 43 of the act of 1867 -as amended, although the verification of the petition is defective, a case is pending in bankruptcy so that a composition may be proposed and effected. Ex parte Jewett, In re Morris, 11 N. B. R. 443: 3 Lowell, 393; 12 N. B. R. 170; Fed. Cas. 7,303. 123. Where a petition is verified by an at- torney, the non-residence of his principal -should be alleged directly and not by way of recital. In re Hadley, 13 N. B. R. 366; Fed. ■Cas. 5,894. 124. The affidavit to a petition, if defect- ive in form, may be amended so as to con- form to law. In re Sargent, 13 N. B. R. 144; 1 N. Y. Wkly. Dig. 435; Fed. Cas. 13,361. 125. Upon a petition by a corporation a verification by an agent not an officer of the corporation is sufficient, but the authority of -the agent must be set forth in the affida-vit -or otherwise established. In re Hanibel et aL, 15 N. B. R. 233; 9 Chi Leg. News, 165; 15 Alb. Law J. 271; 34 Pittsb. Leg. J. 153; Fed. Cas. 6,033. 126. A petition for involuntary bank- ruptcy against a firm, signed by one creditor .of the firm and another who is an individual creditor of a member of the firm, is sufficient. In re Matot et al., 16 N. B. R. 485; 5 N. Y. Wkly. Dig. 539; Fed. Cas. 9,383. IX. Amehdment. See Proof of Claims, 15, 30. 127. When in an involuntary case the peti- ■tioners failed to subscribe the affidavit to the petition, held, that the petition was defective, a,nd as the petition was not a petition in pro- pria forma, and could not be amended, such defect was incurable. In re Moore et aL v. Harley, 4 N. B. R. 71; 3 Bait. Law Trans. «66; Fed. Cas. 9,764. 128. Where,'on the trial, petitioning cred- itors obtained leave to amend their petition, to the granting of which leave the respond- «nt objected and excepted, held, that such permission to amend was not error. Hardy •et al. V. Bininger et al., 4 N. B. E. 77; Fed. Cas. 6,057. 129. The amendment to the bankrupt law approved June 32, 1874, was retrospective as to pending cases where there had been no adjudication. It allowed the amendment of a petition to relate back to the commence- ment of the proceedings in bankruptcy. In re Williams & McPheeters, 11 N. B. R. 145; 6 Biss. 233; 7 Chi. Leg. News, 49; Fed. Cas. 17,700. 130. When a petition is defective as to the requisite number in value and amount of creditors, by reason of the fact that cred- itors are included whose claims are for less than $350, but it appears that those properly included constitute a sufficient number in value and amount, the petition may be amended (act 1867). In re McKibben, 13 N. B. E. 97; Fed. Cas. 8,859. 131. A voluntary bankrupt who, after considerable delay, desires to amend his pe- tition in matters affecting the jurisdiction of the court, should state in his application why his petition was not originally in proper form, and why he did not a"pply sooner, and should file with his application an affidavit that the facts necessary to give jurisdiction under the statute existed at the time the pe- tition was filed; and he should state specif- ically what words he desires to strike out and what to insert. In re Wood, 13 N. B. R. 96; 6 Ben. 339; 1 N. Y. Wkly. Dig. 366; Fed. Cas. 17,935. 132. An involuntary petition cannot be amended by adding a new party after all the testimony has been taken and the case is on - hearing before the court. In re Pitt et aL, 14 N. B. R. 59; 3 Ben. 389; 33 Pittsb. Leg. J. 196; Fed. Cas. 11,188. 133. Several of the creditors signing the petition, as appeared from the schedule, had claims amounting to less than $350; audit did not appear from the petition that the officer signing for a bank had authority to act for the bank. Held to be defects, but that the court had jurisdiction to allow amendment. In re Roche et aL v. Fox, 16 N. B. R. 461; Fed. Cas. 11,974 X. Effect. 1 34. The lien of a mechanic or material- man is not dissolved by his filing a petition for the benefit of the bankrupt law; nor will the jurisdiction of the state court over such 348 PETITION, XL lien be interfered with by the bankrupt court. In re Clifton et aL v. Foster et al., Ass., 3 N. B. R. 162. 135. In cases of voluntary bankruptcy, the law adjudges the petitioner a bankrupt immediately on the filing of the petition, and a warrant against his property immediately issues. Maxwell v. Faxton, 4 N. B. R. 60. 136. After the filing of a petition in invol- untary bankruptcy, no person can acquire any interest by a receivership created by a state court, or otherwise, in the property of the debtor, which the decree in bankruptcy will not displace or override. Smith v. Bu- chanan et al., 4 N. B. R 138; 8 Blatchf. 153; 3 Alb. Law J. 97; Fed. Cas. 13,016. 137. Involuntary petitions in bankruptcy, the filing of the petition terminates the right of the bankrupt to the disposal of his prop- erty; while in involuntary petitions, such right ceased upon adjudication. In re Bil- lard, 9 N. B. R. 8; 3 Hughes, 190; 6 Amer. Law T. Rep. 490; 21 Pittsb. Leg. J. 83; Fed. Cas. 3,913. 138. It is not the filing of every petition in bankruptcy that is deemed a commence- ment of proceedings, but the filing of a peti- tion upon which an order of adjudication may be made by the court. In re Rogers, 10 N. B. R. 444; 1 Cent. Law J. 470; Fed. Cas. 13,003. 139. A petition in bankruptcy is an ac- tion or suit, and an adjudication thereon is a final judgment which it is beyond the power of congress to annul or set aside. In re Com- stook & Co., 10 N. B. R. 451; 3 Sawy. 138; 6 Chi. Leg. News, 413; 23 Pittsb. Leg. J. 35; Fed. Cas. 3,077. 140. Where the court has adjudged that the requisite proportion of creditors has joined in an involuntary petition, the judg- ment is final, and will not be re-examined by the district court except upon an allega- tion of fraud or bad faith; no inquiry can be made into the truth of affidavits tending to show that the requisite proportion of cred- itors has not united in the petition unless fraud or bad faith is alleged. In re Duncan et al., 14 N. B. R. 18; 8 Ben. 365; Fed. Cas. 4,131. 141 . In the case of one who has been adju- dicated a bankrupt on his own petition, the adjudication cannot be assailed by proof that he was not, in fact, insolvent. In re AtL Mut. Life Ins. Co., 16 N. B. R. 541; 9 Ben. 270; 16 Alb. Law J. 453; 24 Int. Rev. Rec. 13 f Fed. Cas. 628. 142. A decree of bankruptcy against sev- eral persons as members of one firm is no bar to proceedings against them with others as members of another firm. In re Jewett & Co., 16 N. B. R. 48; 7 Biss. 473; 4 N. Y. Wkly. Dig. 494; 9 ChL Leg. News, 345; 4 Law & Eq. Rep. 77; 23 Int. Rev. Rec. 232; Fed. Cas. 7,307. 143. Petition was procured by bankrupts- themselves as an involuntary one to avoid the necessity of procuring the assent of the requisite number of creditors, representing the required amount of indebtedness. The petition was signed by the necessary number of creditors. Held, that the adjudication should not be set aside. In re Matot et aL, 16 N. B. R. 485; 5 N. Y. Wkly. Dig. 529; Fed. Cas. 9,382. 144. Objection was made to the discharge of the bankrupt on the grotmd that peti- tion was filed by collusion between bank- rupt and petitioning creditors. Held, that in the absence of fraud, original adjudica^ tion was conclusive on all creditors and could not be disputed upon question of granting a discharge. In re Ordway Bros., 19 N. B. R. 171; 19 Alb. Law J. 483; Fed. Cas. 10,552. XI. Withdrawal feom. See Courts, 13. 145. In the course of the hearing, respond- ent paid into court, in pursuance of a tender made the day before, the amount due one of the petitioners, and professed a readiness to pay the other. Held, that it could not defeat the petition, there being other creditors. In re "Williams, 3 N. B. R. 74; 1 Lowell, 406; Fed. Cas. 17,703. 146. A petitioning creditor may, at any time before adjudication, discontinue the proceedings and have his petition dismissed without notice to other creditors, who, if they desire to continue proceedings, should apply on the day to which proceedings have been adjourned for leave to be substituted or file a new petition. In re The Camden R. M. Co.. 3 N. B. R. 146; Fed. Cas. 2,388. 147 . A petition was filed before the pas- PETITION, XII-XIV. 349 sage of amendment of June 25, 1874, requir- ing representations in number and amount •of creditors. Certain creditors asked to with- draw from petition and have case dismissed as to them, thus leaving less than the requi- site number. Held, that they should not be allowed to do so unless all unite and agree to dismiss. In re Heffron, 10 N. B. E. 213; 6 Biss. 156; 6 Chi. Leg. News, 358; Fed. Cas. 6,321. 148. When the name of a petitioner has been signed to the petition he cannot with- draw it for the purpose of defeating the peti- liion, but if his name were signed without his knowledge he may repudiate the proceedings ■and the petition will be dismissed as to him. In re Eosenfields, 11 N. B. E. 86; 3 Amer. Law Eeo. 724; 1 Cent. Law J. 588; Fed. Cas. 12,061. 149. If a creditor joins in a petition upon misrepresentation, he may be allowed to ■withdraw any time before adjudication. In re Sargent, 13 N. B. E. 144; 1 N. Y. Wkly. Dig. t35; Fed. Cas. 12,361. 150. A creditor will not be entitled to withdraw from a petition because he was in- duced to join in it by a misrepresentation of one of the debtors, and especially if the mis" representation was not substantial or inten- tionally false. In re Vogel et al., 18 N. B. E. 165; 9 Ben. 498; Fed. Cas. 16,981. XII. Second PETiTioifr. 151. Where creditors petition court to de- clare S. a bankrupt, S. admitting allegations, •save fraud, but, before return day, himself filed voluntary petition and was adjudicated by register, held, the petition of voluntary bankruptcy was of no effect, and S. adjudi- cated a bankrupt under petition filed by cred- itors. In re Stewart, 3 N. B. R 28; Fed. Cas. 13,419. 152. Where an adjudication has been made •on a voluntary petition and a warrant has issued for the first meeting of creditors, and the matter of said petition is still pending without any discharge or discontinuance, and the bankrupt files a second petition in w^hich the same debts and the same credit- •ors are named, the choice of an assignee will not be made in the second proceeding pend- ing the first, and an order will be made stay- ing the proceedings under the second petition. In re Wielarske, 4 N. B. E. 130; 4 Ben. 468; Fed. Cas. 17,619. 153. A voluntary bankrupt who has con- tracted new debts since the filing of a peti- tion in bankruptcy under which a discharge was refused may file a new petition. In re Drisko, 13 N. B. E. 112; 2 Lowell, 430; Fed. Cas. 4,090. 154. If a party has contracted new debts since the filing of the first petition, he may file a second petition in bankruptcy. In re Drisco et al., 14 N. B. E. 551; Fed. Cas. 4,086. XIII. Foe Injunction. 155. Before the appointment of assignee, a petition for an injunction can be filed only by the bankrupt. After assignees are ap- pointed, the petition should be filed by them. In re Bowie, 1 N. B. E. 185; 15 Pittsb. Leg. J. 448; 1 Amer. Law T. Eep. Bankr. 97; Fed. Cas. 1,728. 156. Where a petition for adjudication contains a prayer for an injunction restrain- ing the bankrupt from paying out money, which is granted, the injunction falls when the debtor is adjudged bankrupt. In re Kintzing, 3 N. B. E. 52; Fed. Cas. 7,833. 157. Petitioning creditors filed petition to adjudicate K. a bankrupt, alleging sus- pension of payment on his commercial paper, and also that K. had made a general assign- ment to F. with the intention of defeating the provisions of the bankruptcy act, and praying an injunction against P. from mak- ing, any payments. The court ordered P. to make no payments whatever until ordered to do so by the court. Id. XIV. Inteevening. See Courts, 111. 158. Another creditor may intervene and be permitted to prosecute the original peti- tion where the court is satisfied that the origi- nal petitioning creditor does not intend to prosecute the matter further, and the pend- ing application of the original creditor to discontinue the proceedings is sufficient evi- dence in that regard. In re Buchanan, 10 N. B. E. 97; Fed. Cas. 2,073. 159. The words "such petition" in the 350 PETITION, XV — PLACE OF BUSINESS, I, (a). forty-second section of the act of 1867 refer to the prior part of that section, and also to the two preceding sections, and mean the petition of the original petitioning creditor and not the petition of the intervening cred- itor. In re Lacey, Downs & Co., 10 N. B. E. 477; 13 Blatchf. 333; Fed. Cas. 7,965. XV. Ik Geneeal. See DiscHAEGE, 10, 11, 72, 164 160. The clerk of the court will not file a petition where the ohirography is so illegible as to be not deciphered with certainty. Anon., 3 N. B. E. 15. 161. A judgment taken contrary to the bankrupt act is not void unless a petition in bankruptcy is filed by or against the debtor within six months from the entry of the judgment. In re Fuller, 4 N. B. R. 29; 1 Sawy. 343; 18 Pittsb. Leg. J. 83; 3 Chi. Leg. News, 375; Fed. Cas. 5,148. 1 62. A petition in involuntary bankruptcy is not a mere suit inter partes, but rather partakes of the nature of a proceeding in rem in which any actual creditor has a direct in- terest. In re Boston, H. & E. R. R. Co., 6 N. R R. 209; 9 Blatchf. 101; 6 Amer. Law Rev. 365; Fed. Cas. 1,677. 163. An assignee petitioned the district court to require that certain books, claimed both by him and by an assignee of the bank- rupt's own choosing, be delivered to him. Held, he should proceed either at law or in equity. Rogers v. Winsor, 6 N. B. R. 346; Fed. Cas. 13,033. 164. A contract by a creditor to refrain from instituting bankruptcy proceedings against a debtor is void for want of consid- eration where for any reason the creditor has no right to institute such proceedings. Ecker v. McAllister, 17 N. B. R. 43. 165. The bankrupt act of 1867 did not forbid a creditor to contract with a third party to refrain from instituting proceedings against the debtor. Id. 166. An employee may prove his claim for damages for a breach of contract caused by the filing of a voluntary petition in bank- ruptcy by his employer. Ex parte Pollard, 17 N. B. R. 228; 2 Lowell, 411; Fed. Cas. 11,252. 167. Where fraud is practiced by some of co-petitioners in the name of all, unless the innocence of the others appears clearly they cannot be held innocent of the fraud. In re- Keiler, 18 N. B. R. 10; 7 Chi. Leg. News, 43;. 9 West. Jur. 175; Fed. Cas. 7,647. PERISHABLE PBOPEBTY, 1. Sale of perishable property for benefit of all concerned rannot be ordered until it is in the possession of the marshal as messen- ger. In re Metzler et ah, 1 N. B. R. (8 vo. ed.> 39; 1 Ben. 356; Bankr. Reg. Supp. 9; Fed. Cas. 9,513. 2. The assignee must apply to the cciirt by petition if he desires to have property sold as perishable. In re Graves, 1 N. B. R. 19; 3 Ben. 100; Fed. Cas. 5,709. PLACE OP BUSINESS. 1 DOMIdLK (a) Residence. (b) Carrying on Business, (c) Return to. II Paktnees — Place op Business. See Exemptions, 36; Limitations, Statute OE, 8; Petitions, 109; Trustee, 15L I. Domicile. (a) Mesidenoe. 1. The word "residence" in section 11 of the bankrupt act of 1867 is not synonymous with "domicile," and where a person, resi- dent with his family in one place, buys a stock of goods in another, and goes there for business, leaving his family in the former place, the petition in bankruptcy is properly filed in the place where he carries on such business. In re Watson, 4 N. B. R. 197; Fed. Cas. 17,273. 2. An alien, resident within the United States, need not have resided for a period of six months within the district in which ap- plication for adjudication of bankruptcy is made. In re Goodfellow, 3 N. B. R. 114; 1 Lowell, 510; Fed. Cas. 5,536. 3 . Neither the actual nor alleged residence or place of business of the bankrupt can be directly made the ground of opposition to his discharge. In re Burk, 3 N. B. R. 7^ PLACE OF BUSINESS, I, (b), (c), II. 351 Deady, 435; 3 Amer. Law T. Eep. Bankr. 45; Fed Caa. 3,156. 4. L and P. having been adjudged bank- rupts applied for a discharge. Court allowed one B., a creditor, to file objections, one of which was that bankrupts were not bona fide residents for six months prior to filing of petition. Held, that while decree remains in force, bankrupt's discharge cannot be op- posed on grounds that allegations in petition as to residence are not true. In re Ives et al., 19 N. B. E. 97; 5 DilL 146; Fed. Cas. 7,115. 5. A court is without jurisdiction to enter- tain an application for discharge if the bank- rupt did not reside or carry on business in the district where the petition was filed for six months immediately preceding the time of filing or for the longest period during such six months. In re Leighton, 5 N. B. R. 95; 4 Ben. 457; Fed. Cas. 8,331. 6. Where a petition had been filed against certain parties praying that they be adjudged bankrupts, and on the return day they ap- peared and with their own consent were so adjudged; and subsequently another creditor moved the court to dismiss the proceeding on the ground that the bankrupts had never resided or carried on business in this state, held, that the court was without jurisdic- tion and that the proceedings should be va- cated and set aside. In re Fogerty et aL, 4 N. B. E. 148; 1 Sawy. 333; 5 Amer. LawEev. 163; Fed. Cas. 4,895.- (b) Oa/rrymg on business. 7. The petitioner resided in New Jersey and was employed in a commercial house in New York city. The petition in bankruptcy ■was filed in the district court for the south- em district of New York. It was held to have been filed in the wrong district. In re Magie, 1 N. B. E. 158. 8. BiUs were issued by Glyn, in Boston, on London. They were indorsed in blank by Glyn in Boston, and negotiated by his agent in New York, who filled out the indorsement. The bills were accepted, but afterwards pro- tested for non-payment. The question arose as to what law governed in determining damages and interest. Held, that they were governed by the law of Massachusetts where the biUs were drawn. In re Glyn, Ex parte Heidelbach, 15 N. B. E. 495. 9. The fact that a person has an office at which he receives mail and settles up the- old business of an insolvent firm of manu- facturers of which he was a member, and which has ceased business as manufacturers, is not sufficient to sustain an allegation of carrying on business within the jurisdiction, of a particular bankruptcy court. In re Little, 3 N. B. E. 97; 3 Ben. 35; 1 Chi Leg. News, 133; Fed. Cas. 8,391. 10. The petition must be addressed to the judge of the district in which such debtor has resided or carried on his business for the six months next immediately preceding the- time of filing his petition. In re Magie, 1 N. B. E. 138; 3 Ben. 369; 1 Amer. Law T. Eep.. Bankr. 133; Fed. Cas. 8,951. 11. A petitioner in bankruptcy had car- ried on business and resided in New York for twenty years prior to June, 1866, and re- moved to New Jersey that year. His peti- tion was filed in the district court for th&- southern district of New York. It was held to be properly filed. In re Belcher, 1 N. B. E. 303; 3 Ben. 468; Fed. Cas. 1,337. (c) Betmrn to Domicile. 12. Where a bankrupt born in one state becomes domiciled in another, but leaves it with no intention of returning, and returns- to his native state, and shortly thereafter files his application in bankruptcy, the act. of leaving the former domicile with no in- tention of returning, at once revives the domicile of origin. In re Wiggin, 1 N. B. E. 90; 1 LoweU, 337; Fed. Cas. 17,061. 13. Upon petition by a creditor to vacate proceedings for lack of jurisdiction, it ap- peared that the bankrupt was born in Bos- ton, and afterwards became domiciled in California, but left that state with no inten- tion of returning, and, after several months' residence outside the United States, returned . to Boston, and within two months filed his petition in bankruptcy. It was held that the debtor was a resident of Boston during thfr whole of the six months next preceding the filing of the petition. Id. II. Paetnbes — Place of Business. 14. A bankrupt who was a member of a firm which had tailed kept an office in New York while residing in an adjoining state. 362 PLEADING AND PRACTICE, 1 for the purpose of settling up the business of the firm. Held, that he was not conduct- ing business within the meaning of the act <1867). In re Little, 3 N. B. R. 97; 3 Ben. 25; 1 ChL Leg. News, 123; Fed. Cas. 8,391. 15. A firm can only be sued in their dom- icile and place of business. Cameron v. Canieo & Co., 9 N. B. R. 527; Fed. Cas. 2,340. PLEADIWa AND PKACTICB. L Adjudication. IL Claims. III. Composition. IV. Crimes and Offenses. V. Discharge. (a) In General (b) Objections to Discharge. (c) Plea of Discharge. VI. Dismissal and Discontinuance. VII. Dividend. VIII. Evidence. (a) In Qeneral. (b) Witness. 12. Fraudulent Conveyances. Z. Judgments, Orders and Decrees. (a) In General. (b) Motion to Set Aside, (c) Beview of. XI. Partners. XII. Petitions in Bankbuptct. (a) In General. (b) Amendment. (c) Nature of Proceeding, ZIII. Referee or Trustee. (a) In General. (b) Costs. (a) Petitions or Suits of, (d) Removal of Trustee, XW. Securities. XV. United States and State Courts. (a) In General. (b) Appeals and Writs of Error, (c) Demurrer. (d) Injunction, (e) Jury. (f) Parties. (g) Plea and Answer. (h) Process and Service. See Attacetment; Corporations, 43, 44; Courts, I; Death, 1-6; Definition, 19; Estates, 155; Estoppel, 18; Examina- tion OF Bankrupt, 6, 30, 33; Exemp- tions, 10, 75, 105; Judgment, 3, 26, 63; Lien, 3: Limitations, Statute of, 1, 58; Mortgages, 64, 68, 71; Proof of Claims, 7, 16, 42; Preferences, 18, 134; Re- ceiver, 13; Referee, 27; Sale, 4; Stat OF Proceedings, 25; Surety, 14; Tax Title, 4. I. Adjudication. 1. A decree adjudging a debtor to be bankrupt is in the nature of a decree in rem; and in case the court rendering it has juris- diction, it is only assailable by a direct pro- ceeding in a competent court, if due notice be given and the adjudication is correct in form. Michaels et aL v. Post, Ass., 13 N. B. R 152; 21 Wall. 398. 2. Manufacturers had their property at- tached, and afterwards another creditor pe- titioned court for adjudication in bankruptcy and marshal took possession of attached es- tate. Defendant demanded jury trial Be- fore trial, the attaching creditor bought claim of creditor and with it agreement that proceedings should be discontinued. Another creditor intervened and asked that proceed- ings be stayed and adjudication be had. neld, that adjudication was not discontinued, and that it is not within the power of the pe- titioning creditor or the bankrupt to defeat such intervention by any arrangements be- tween themselves, and any action of the court which defeats such right is in viola- tion of the statute. In re Lacy et aL, 10 N. B. R. 477; 12 Blatch. 333; Fed. Cas. 7,965. 3. An attaching creditor should be al- lowed to intervene and oppose an adjudica- tion in bankruptcy. In re Jack, 13 N. R R. 296; 4 Amer. Law Rec. 453; 1 Woods, 649: Fed. Cas. 7,119. 4. An attachment creditor may move to set aside an adjudication of bankruptcy, though not a party to the proceedings. In re Bergeron, 13 N. B. R. 385; 3 Cent. Law J. 507; 1 N. Y. Wkly. Dig. 178; Fed. Cas. 1,343. 5. It is competent for a corporation against whom a petition was filed, where the attor- ney for such corporation appeared and gave any waiver of time and admitted the charge brought against it, to appear within a rea- sonable time and move the court to have the proceedings set aside; but where a bankrupt PLEADING AND PRACTICE, II-IV. 353 has delayed six months after the adjudica- tion, and when the court is engaged upon the administration of the assets, such motion comes too late. In re Republic Ins. Co., 8 N. B. R. 317; Fed. Gas. 11,706. II. Claims. 6. When a creditor objects to the post- ponement of his claim, he should have the question certified before any further action transpires before the register. In re Jack- son et al., 14 N. B. R. 449; 7 Biss. 280;. Fed. Cas. 7,123. 7. The register may postpone a claim at first meeting if he finds its validity doubtful, but he has no power to postpone a claim which he considers valid, but must report it to court if it could affect choice of assignee. In re Bartusch, 9 N. B. R. 478; Fed. Cas. 1,086. 8. Where assignee in bankruptcy is not satisfied with the legality of a claim filed with him, he may move to have it expunged under rule 34 (act of 1867). In re Fireman's Ins. Co., 8 N. B. R. 123; 3 Biss. 462; 5 Chi Leg. News, 265; Fed. Cas. 4,796. ' 9. G. obtained judgment on notes against K. Bros, and S. K. Bros, were subsequently adjudged bankrupts, and G. proved against their estate. On motion to expunge, held, that defense of usury is a personal one, and such defense is not open to assignee. In re Kitzinger et aL, 19 N. B. R. 153; Fed. Cas. 7,861. 10. A bill in equity is defective that al- leges a claim to be illegal and to have been fraudulently proved, in general terms, with- out specifying wherein the illegality or fraud consists. First Nat. Bank v. Cooper et al., 9 N. B. R. 539; SO Wall 171. 11. The proper mode of presenting to the court the question of the right of secured creditors who have offered proofs of debt to participate in a dividend and vote at a cred- itors' meeting is by motion of the assignee to expunge the proofs of debt. In re Jaycox et aL, 7 N. B. R. 303; 7 West. Jur. 18; Fed. Cas. 7,340. 12. Where a creditor reduces his claim to bring it within the jurisdiction of a justice «f the peace, he is clearly barred from main- taining another action on the same claim, 23 even though his judgment was for less than was due. Witt, Ass., v. Hereth, 13 N. B. R, 106; 6 Biss. 474; 8 Chi. Leg. News, 41; 1 N. Y. Wkly. Dig. 486; Fed. Cas. 17,931. 13. A creditor filed his petition to have the debtor declared a bankrupt. The debtor appeared and demanded a trial by jury. Held, that the creditor must establish his debt before proceeding to show acts of bank- ruptcy. Brook v. Hoppook, 3 N. B. R. 2; Fed. Cas. 1,913. III. Composition. See Composition. 14. Where notes given for composition settlement fall due pendiiig the hearing on a petition to review an order confirming the composition, the amoxmt of the note should be paid into court, in order to relieve the bankrupt from liability. In re Reynolds, 16 N. B. R. 176; 5 N. Y. Wkly. Dig. 51; Fed. Cas. 11,725. 15. If a debtor, after the adoption of a resolution of composition, omit to plead the same, he may not obtain relief against a judgment by injunction from district court. In re Tooker, 14 N. B. R. 35; 8 Ben. 390; 33 Pittsb. Leg. J. 185, 196; Fed. Cas. 14,096. lY. Crimes ahd Offenses. 16. In an indictment under the bankrupt act of 1867, it is not sufficient either as to the proceedings or the jurisdiction of the court to rely upon a general averment. All mat- ters necessary to constitute the offense must be pleaded. The description of goods should be as definite as in a declaration in trover. Figures should not be used for dates; and the word " feloniously " should be omitted, as the offenses are misdemeanors. United States V. Prescott, 4 N. B. R. 29; 18 Pittsb. Leg. J. 31; Fed. Cas. 16,084. 17.' Indictment against trader for obtain- ing goods under false pretenses did not charge that the goods were obtained with intent to defraud creditors, nor was there an averment that the accused was not, in fact, dealing in the ordinary course of trade when he ob- tained the goods. SeM, not defective. United States V. Myers, 16 N. B. R. 387; Fed. Cas, 15,848. 354 PLEADING AND PRACTICE, V, (a), (b). Y. DiSOHAEGE. See Discharge, XVIII. , (a) In General. 18. A final disposition of a cause in bank- ruptcy may take place, although no applica- tion for a discharge has been made and no action of the court had upon the subject. In re Brightman et al., 15 N. B. R. 313, 315; 14 Blatchf. 130; Fed. Cas. 1,878. 19. Application for leave to commence a suit against a bankrupt will be entertained and leave granted to begin an action for a debt to which the bankrupt's discharge would not be a bar, if it appears that if not commenced forthwith the statute of limita- tions might run against it, or that service might not be obtained, or that testimony might be lost; and the court will then stay the suit to await the determination of the question of the bankrupt's discharge or the expiration of a reasonable time to make ap- plication therefor. In re Ghirardelli, 4 N. B. R. 43; 1 Sawy. 343; Fed. Cas. 5,376. 20. A cross-bill which sets up a discharge in bankruptcy, and does not name the as- signee as a party, is not defective, four years having elapsed since his appointment and his final settlement. Phelps et al. v. Curts et al., 16 N. B. R. 85. 21. Where a conveyance of property con- cealed by a bankrupt before his discharge, made by the bankrupt after his discharge, is sought to be set aside by an assignee, his suit is not a proceeding to annul the bank- rupt's discharge, and may be brought in the circuit court. Nicholas, Ass., v. Murray et al., 18 N. B. R. 469; 5 Sawy. 330; Fed. Cas. 10,233. 22. In an attachment suit, the defend- ants, after answering, filed a petition in bank- ruptcy, and suggested bankruptcy on the records of the state court, and asked a con- tinuance. Judgment rendered for plaintiffs. Defendants were discharged in bankruptcy, and brought a suit for review to reverse the judgment. Held, that it was within the dis- cretion of the court to grant the review. Todd et al. v. Barton et al., 18 N. B. R. 197. 23. An order and summons were issued requiring a bankrupt who had been dis- charged to appear and be examined. An objection by the bankrupt that such order and summons were unauthorized by law^ held to be not well taken. In re Dole, 7 N. B. R. 538; 7 West. Jur. 629; Fed. Cas. 3,965^ (b) Objections to Discharge. 24. Charges, in general terms, of the de- struction and removal of books and papers to defraud creditors, and procurement of certain creditors' assent by pecuniary con- sideration, held too vague. In re Freeman, 4 N. B. R. 17; 4 Ben. 345; Fed. Cas. 5,083. 25. On filing specification of opposition ta bankrupt's discharge the hearing is at once- transferred into court, and there cannot be- any examination of bankrupt before the reg- ister on application for discharge. In re- Frizzelle, 5 N. B. R. 119; Fed. Cas. 5,133. 26. The strictness of common-law plead- ing is not required in creditor's specification in opposition to discharge, but the bankmpt is entitled to notice as to what is expected to- be proven against him. In re Smith et aL, 5- N. B. R 30; Fed. Cas. 13,985. 27. In opposing discharge the facts relied on must be stated in the specifications filed without requiring reference to other parts of the record. In re Eidom, 3 N. B. R. 37; Fed. Cas. 4,314 28. A creditor who had proved his debt can file specifications of objections to the dis- charge at any time before the period fixed by General Order 34 under the act of 1867. In re Baum, 1 N. B. R. (8 vo. ed.) 5. 29. A creditor opposing a discharge of bankrupt on ground of fraud must set forth the same with reasonable definiteness. In re Rathbone, 1 N. B. R. 50; 3 Ben. 138; 15 Pittsb. Leg. J. 333; Fed. Cas. 11,580. 30. An adjournment of the examination of bankrupt operates as an enlargement of the time of examination necessarily. Speci- fications of grounds for opposition to dis- charge on grounds of fraud must not be gen- eral and vague. In re Mawson, 1 N. B. R 41, 115. 31. After answer filed to bill to set aside a conveyance made by a bankrupt prior to- adjudication, complainants served notice on defendant that bankrupt's discharge would;, be attacked on the ground of fraud in ob- taining it. Held, that it could not be put in. PLEADING AND PRACTICE, V, (o). 355 issue by such notice. Hudson v. Bingham, 8 N. B. R. 494. 32. A material fact inyolved in the decis- ion of a case in the chancery court cannot be put in issue upon a notice given to a party that such fact will be contested on the hearing of the causa Id. 33. An adjournment, without day, of the proceedings imder a petition for discharge terminates those proceedings as far as action under the order to show cause is concerned. The time to examine witnesses does not ex- pire by the bankrupt filing petition for dis- charge. The time to file objections can be kept open by adjourning to any day which may be fixed for showing cause until a rea- sonable time has elapsed for the examina- tion of witnesses. In re Seckendorf, 1 N. B- R. 185; 3 Ben. 463; 15 Pittsb. Leg. J. 450; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 13,600. 34. A., counsel for opposing creditors to the discharge of bankrupt, after several ad- journments to rule to show cause why bank- rupt should not be discharged, entered his appearance on an adjourned day, which was attacked on ground that appearance should have been entered on day to show cause. Held, that appearance is suflBcient if entered on the adjourned day, but specifications must be filed within ten days thereafter. In re Seabury, 10 N. B. R. 90; Fed. Cas. 13,573. 35. On motion to vacate a discharge, held, that new trial of specifications is not authorr ized by Revised Statutes, section 5130, after discharge has been granted, even if oppos- ing creditor can adduce new f act& In re Cor- win, 19 N. B. R. 433; Fed. Cas. 3,359. 36. A specification in opposition to dis- charge must allege wilful false swearing as well as wilful omission from the schedule. In re Keefer, 4 N. B. R. 137; 3 Chi. Leg. News, 135; Fed. Cas. 7,636. 37. Specifications in opposition to dis- charge were filed by a creditor who had ob- tained judgment against the bankrupt pend- ing proceedings in baijkruptcy. On motion to dismiss, held, that the judgment creditor had an interest which entitled him to be heard. In re Stansfield, 16 N. B. R. 368; 4 Sawy. 334; Fed. Cas. 13,394. 38. Bankrupt filed petition for discharge without assent of creditors, his assets not equaling thirty per cent. Action was sus- pended to allow assent of creditors to be pro- cured. Subsequently bankrupt asked leave to file proof of debts and assent of other creditors. Held, that petition must be sub- mitted on caee existing on return day, and leave to file said proofs refused (act of 1867). In re Seaman, 19 N. B. R. 333; Fed. Cas. 13,580. 39. An allegation in opposition to a bank- rupt's discharge, that he has concealed his property for the purpose of defrauding his creditors, is bad. Unless all the property is- meant, it should specify what property; and if all is meant, the time, place and circum- stances should be specified. In re Beardsley, 1 N. B. R. 53; 1 Amer. Law T. Rep. Bankr. 46; Fed. Cas. 1,183. 40. If there be an omission to enter an order refusing a discharge, the bankrupt court may make it nunc pro tune, if no rights of third persons have intervened which can be thereby prejudiced. In re Drisco et al., 14 N. B. R. 551; Fed. Cas. 4,086. 41. Matter intended to avoid a discharge should be replied to the plea, and not be set forth in the declaration. Brown et aL v» Broach et al., 16 N. B. R. 396. 41a. Where the court has sustained speci- fications in opposition to discharge in cer- tain respects, it must be deemed to have dis- allowed them in all other respects, and they cannot afterwards be renewed unless the amendment allowed is, in effect, the making of a specification substantially different from the former one. In re Duncan et al, 18 N. B. R. 43; Fed. Cas. 4,138. (c) Plea of Discha/rge. 42. A discharge may be pleaded by simple' averment of the facts in an action to enjoin collection of a judgment on the ground of discharge, and a copy of the discharge need not be set out. Hayes v. Ford, 15 N. B. R, 569. 43. A replication that the defendant had fraudulently withheld certain property from his schedule of assets cannot avoid a plea of discharge in bankruptcy. Stevens v. Brown, 11 N. B. R. 568. 44. A discharge in bankruptcy may be pleaded in bar of an action for purchase 356 PLEADING AND PRACTICE, VL price of land assigned as a homestead. Hos- kins V. WaU, 17 N. B. R. 314 45. Claun for damages for wrongful con- version of personal property is provable, and a discharge would release the bankrupt from such a claim. Hence plea of discharge is a complete bar in a suit in a state court. Cole V. Beach, 10 N. B. R. 388. 46. Sureties on an appeal bond, executed in an appeal from a justice of the peace to the circuit court, were discharged in bank- ruptcy, after they executed the appeal bond and before trial in the circuit court, which resulted in a recovery against the principal. By the law of the state a judgment against the sureties follows upon rendition of judg- ment against the principal. Held, that the discharge should have been set up as a de- fense before judgment in the circuit court. Jones et aL v. Coker et al., 16 N. B. R. 343. 47. When a discharge in bankruptcy is pleaded, the court must submit the issue to a jury. Austin v. Markham, 10 N. B. R. 548. 48. In an action in assumpsit to which defendant pleaded a discharge in bank- ruptcy, plaintiff replied that the debt was created by fraud. Held, a good replication. Stewart v. Emerson, 8 N. B. R. 463. 49. Creditors of a bankrupt brought an action to set aside a fraudulent transfer. The defendants did not plead that the title passed to the assignee in bankruptcy, but undertook to introduce evidence of that fact by showing his appointment and the assign- ment to him. They only pleaded discharge. Held, that such pleading was insufficient, and such evidence could only be admitted as tending to show a discharge. Dewey v. Moyer, 18 N. B. R 114 50. On a continuous contract, where lia- bility is incurred from day to day, a discharge cannot be pleaded as a bar to any part of lia- bility incurred after the date of commence- ment of proceedings. Robinson et aL v. Pesant et al., 8 N. B. R. 436. 51. A discharge in bankruptcy is not suf- ficient defense in an action to set aside a fraudulent conveyance pending at the time of filing the petition, the assignee not having interfered and the claim of the creditor not having been proved in the proceedings. Phelps et al. v. Curts et al., 16 N. B. R. 85. 52. An answer set up a discharge in bank- ruptcy and objection was made on ground that claimant's name had been omitted from schedules. Held, discharge was sufficiently pleaded and was admitted by replication. Payne et aL v. Abel et aL, 4 N. B. R. 67. 53. A plea of a discharge which does not set forth a copy of the discharge is bad. A plea is bad unless it aver what court ad- judged the defendant to be a bankrupt, or granted his discharge, or set out the facts upon which any court would acquire juris- diction so to do. Such plea should conclude with a verification. If defective, it could be amended. Stoll v. Wilson, 14 N. B. R. 571. 54. A plea setting up a discharge, if a plea in abatement, is bad if not sworn to. If such plea is in bar, when the notes sued upon were given after bankruptcy, it is in- sufficient. Beeson et aL v. Howard, 11 N. B. R. 486. 55. A bankrupt will not be allowed to file an answer setting up his discharge, where an attachment issued more than fovir months prior to the institution of bankruptcy pro- ceedings was dissolved by filing a bond. Holyoke et aL v. Adams et aL, 18 N. B. R. 413. 55a. A certificate of discharge duly pleaded in an action in the supreme judicial court of Maine will not, by virtue of the Revised Stat- utes of 1857, chapter 81, section 38, dissolve an attachment made by virtue of the writ in the action, more than four months prior to the defendant's commencement of proceed- ings in bankruptcy. Such attachment may be enforced by an execution issued upon a special judgment rendered by the court in which the action was entered and prosecuted. The United States district court does not have exclusive jurisdiction in such matters. Leighton v. Kelsey et aL, 4 N. B. R. 155. VI. Dismissal and Discontinuance. 56. Where a plaintiff in a pending action is adjudged a bankrupt, it is not proper to enter a nonsuit, but the case should be dis- missed upon the assignee's failure to appear after notice. Towle v. Davenport, 16 N. B. R 478. 57. The proper practice, where all credit- ors except a few minor ones desire dismissal of proceedings, is to require deposit of seou- PLEADING AND PRACTICE, VII. 357 rity for payment of minor claims until set- tled in highest court possible to take them to. In re Indianapolis, Cin. & L. K. R. Co.. 8 N. B. R. 303; 5 Biss. 287; 2 Pittsb. Leg. J. 4; Fed. Cas. 7,033. 58. The proper remedy for a creditor who seeks to have a judgment against a bankrupt paid by the assignee is by petition; signed and verified, filed in the bankrupt matter. In re Smith, 3 N. B. R. 98; 1 ChL Leg. News, 133; Fed. Cas. 13,984. 59. A complaint being defective in form but not in substance, a motion for nonsuit will be overruled. Merritt v. Glidden et al., 5 N. B. R. 157. 60. If an attorney holding an assignment of a policy of insurance, as security for his fees, dismisses a suit thereon, and all the par- ties know at the time of the bankruptcy of the plaintiff, the entry will be stricken out on the motion of the assignee, although the motion is not made until a subsequent term. Home Ins. Co. v. HoUis, Ass., 14 N.- B. R. 387. 61. Amotion to dismiss the proceedings and to settle with the debtor comes too la,te if filed after the debtor has been adjudged a bankrupt. In re Sherburne, 1 N. B. R. 155; Fed. Cas. 12,758. 62. Where all the creditors of a bankrupt petition the court to dismiss the proceedings, and no assignee has been chosen, the court has power to grant the petition. In re MiUer, 1 N. B. E. 105; 1 Amer. Law T. Rep. Bankr. 131; Fed. Cas. 9,553. 63. A creditor petitioned to have his debtor adjudged bankrupt, and subsequently, the debtor having paid the debt, entered a m.otion to dismiss; but another creditor hav- ing presented a petition alleging the acts of bankruptcy charged were true and praying that the case proceed, lield, that while per- mission to withdraw would not prevent other creditors from instituting new proceedings, it would embarrass the operation of tlie act, and must be denied. In re Mendenhall, 9 N. B. R. 380; 19 Int. Rev. Eec. 86; 6 Chi. Leg. News, 193; Fed. Cas. 9,434. 64. Where a bankrupt gives a release to his assignee in a settlement out of court, and a stipulation is filed discontinuing the pro- ceedings, the bankrupt court has power to set aside the stipulation on proof that it was obtained from the bankrupt by fraud, or given under a mistake of fact ; but such court will not do so until the bankrupt has sought relief in a court having jurisdiction to set aside the release for fraud. In re Bieler, 7 N. B. R. 553; Fed. Cas. 1,894. 65. Reasonable notice must be given to creditors and a hearing of them and an ap- proval by the court of the propriety of such a course before a discontinuance of bank- ruptcy proceedings can be ordered. In re McKeon, 11 N. B. R. 182; 7 Ben. 513; 3 Amer. Law Rec. 611; 11 Alb. Law J. 7; Fed. Cas. 8,858. 66. Upon a petition for involuntary bank- ruptcy, the defendant demanded a trial by jury, but no trial was had or adjournment made. Thereafter, a precipe was filed for a discontinuance, but no order therefor was entered. Upon motion of a creditor to dis- miss proceeding, other creditors appeared and opposed the motion, and it was denied, it being held that the want of adjournment to a day certain did not terminate the pro- ceedings. In re Buchanan, 10 N. B. R. 97; Fed. Cas. 2,073. 67. To prevent a discontinuance of pro- ceedings in bankruptcy by the death of the bankrupt, the warrant is issued eo instanti with the entering of adjudication, though not physically issued until afterwards. In re Litchfield, 9 N. B. R. 506; 7 Ben. 25*9; Fed. Cas. 8,385. VII. DrviDBiro. 68. Appeal having been taken from. order allowing creditor interest upon unpaid divi- dend, creditor procured order directing trustee to deposit dividend, interest and costs. Held, that such deposit was not a set- ting aside of money constituting creditor's dividend. In re Kitzinger et aL, 19 N. B. R. 307; Fed. Cas. 7,863. 69. Motion to vacate order for dividend may be made upon notice. In re N. Y. Mail S. S. Co., 3 N. B. R. 78; Fed. Cas. 10,312. 70. No second or third meeting of cred- itors ought to be called or requested by an assignee unless there is money in his hands for dividend. In re Son, 1 N. B. R. 58; 2 Ben. 158; 15 Pittsb. Leg. J. 242; Fed. Cas. 13,174. 358 PLEADING AND PRACTICE, VIII, (a), (b), IX. YIII. Evidence. See Evidence, 3, 17, 94, 106, 109, 133. (a) In General. 71. The order to show cause will be set ■aside when the depositions are defective, but on supplemental depositions a new order may- be issued. Cunningham v. Cady, 13 N. B. R. 525; 8 Chi. Leg. News, 165; 4 Amer. Law Eeo. 510; Fed. Cas. 3,480. 72. A decree in bankruptcy under the act of 1841 was a matter of record and evi- dence against all persons that a debt was due to the petitioning creditor; that a bank- rupt was a merchant or trader, and that he had committed an act of bankruptcy. Shaw- han V. "Wherrett, 7 How. 637. 73. In suits by an assignee his representa- tive character need not be averred in the pleadings. If a duly certified copy of the as- signment be put in evidence, it is not neces- sary to prove all the steps in the proceedings. Dambmann v. White at al., 13 N. B. E. 438. 74. Under a general averment that the plaintiff was possessed as of his own prop- erty, proof may be given that he acquired the title by means of proceedings in bank- ruptcy. Id. 75. Payments made by debtor to petition- ing creditors are material facts on denial of bankruptcy, and debtor can introduce evi- dence of such payment without special trav- erse of amount of indebtedness. In re Skel- ley, 5 N. B. E. 314; 3 Biss. 360; Fed. Cas. 13,921. 76. Where there is no contradictory evi- dence on a point, it should be ruled upon as a question of law. Upton, Ass., v. Tribil- cock, 13 N. B. R. 171; 91 U. S. 45. 77. ''The rule that a mistake of law does not avail prevails in equity as well as at common law." Id. 78. It is never good pleading to make averment in the alternative, nor is it suffi- cient in evidence to prove that either one or the other of the two propositions is true, but leaving it uncertain which of tliem is true. But when two distinct matters, each of which contains a good cause of action or de- fense, are alleged consecutively, it is enough that either of them is proved. In re Drum- mond, 1 N. B. R. 10; 1 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 4,093. 79. To compel a corporation into involun- tary bankruptcy, it must be averred and proved that the corporation is a moneyed, business or commercial corporation; that it is a banker, broker, merchant, trader, manu- facturer or miner; that it has fraudulently- stopped payment and not resumed payment of its commercial paper for a period of four- teen days. Alabama & Chattanooga R. R. Co. V. Jones, 5 N. B. R. 97; Fed. Cas. 126. 80. In a bill of review, the evidence in the original cause cannot be dismissed for the purpose of questioning the propriety of the original decree. It can only be adverted to> if at all, for the purpose of showing the rel- evancy of the new matter to be introduced into the cause. Buffington v. Harvey, Ass. etc., 17 N. B. R. 474; 95 U. S. 99. (b) Witness. 8 1 . Where attorney for creditors asks leave to amend the deposition of a witness as to acts of bankruptcy, held, that leave be re- fused, because such deposition is the proof upon which the rule to show cause why the debtor should not be declared a bankrupt is- sues, and without which the proceeding is defective. May v. Harper et al., 4 N. B. R. 156; 18 Pittsb. Leg. J. 105; 4 Brewst. 253; Fed. Cas. 9,333. 82. A subpoena to a -witness may be served by a party to the proceeding, and when so served he is entitled to the fees and mileage therefor. Gordon et al. v. Scott et al., 2 N. B. R. 28; 6 Phila. 484; 25 Leg. Int. 276; 15 Pittsb. Leg. J. 543; 1 Amer. Law T. Eep. Bankr. 99; Fed. Cas. 5,630. 83. When a commission is issued, by the bankrupt court and sent to another state, the circuit court in such state may compel a witness to testify or punish for a refusal In re Johnston, 14 N. B. E. 569 ; Fed. Cas. 7,433. IX. Featjdulent Conveyances. See CoN-^EYANCEs, 33, 47. 84. In a suit by the assignee to recover of a creditor money paid by the bankrupt by way of preference, the declaration must al- lege that the payment was made within four months before the filing of the petition in bankruptcy, or it will be bad on demurrer. PLEADING AND PRACTICE, X, (a). 359 Maurer v. Frantz, 4 N. B. R. 143; Bean v. Brookmire et al., 4 N. B. R. 57; 1 Dill. 25; 4 West. Jur. 373; Fed. Cas. 1,168. 85. Where a preference is- alleged, it is not necessary to state that such preference "was in fraud of the act, but the name of the iperson preferred should be set forth. In re Hadley, 13 N. B. R. 366; Fed. Cas. 5,894 86. Where a bankrupt has allowed his property to be taken on legal process with intent to give a preference, the assignee should resort to suit at law or bill in equity to obtain possession, and not proceed by sum- mary petition and order to show cause. In re Ballou, 3 N. B. R 177; 4 Ben. 135; Fed. 391; Fed. Cas. 12,785. 155. A cross-bill which sets up a discharge in bankruptcy and does not name the as- signee as a party is not thereby defective, four years having elapsed since his appoint- ment and his final settlement having been made. Phelps et al. v. Curts et aL, 16 N. B. R. 85. 156. Where a creditor has leave to pro- ceed with a pending cause pursuant to sec- tion 5106, Revised Statutes, a judgment with- out making the assignee a party is valid. In re Bousfield & Poole Mfg. Co., 17 N. B. R. 153; Fed. Cas. 1,704. 157. A statement in a complaint that the plaintiff is assignee in bankruptcy may be- treated as surplusage, or as descriptiopersoncB. Dambmann v. White' et aL, 12 N. B. R 438. 158. The accounting by the voluntary as- signee should be to the assignee in bank- ruptcy, and there should be no subsequent account under the state law unless a distri- bution is required under the state law. In re Burkholder et aL, 4 N. B. R. 191; 28 Leg. Int. 125; 8 Phila. 172; Fed. Cas. 2,165. 159. A motion to compel an assignee in bankruptcy to do his duty is properly made before the register. In re Blaisdell et aL, & N. B. R. 78; 5 Ben. 420; 42 How. Pr. 274; Fed. Cas. 1,488. 160. G., a creditor, upon a refusal of as- si.'^nee to proceed, brought an action in his own name against the assignee bankrupt PLEADING AND PRACTICE, XIII, (b), (o). 365 and others to reach property fraudulently- conveyed by the bankrupt. Held, that the proper remedy was by petition to the court to compel the assignee to act. Glenny v. Langdon et al., 19 N. B. R. 24; 98 U. 8. 30. 161. In an action of trover by an assignee in bankruptcy, he undertook to set out in his declaration the manner in which he claimed to own the property, but failed to allege adjudication, and it was held bad in substance. Wright, Ass., v. Johnston, 4 N. B. R. (8 vo. ed.) 626; 8 Blatchf. 150; Fed- Cas. 18,082. 162. Where the register, to whom the matter had been referred to ascertain the extent of the assets, did not make his report until after the passage of the amendment of July 14, 1870, to the bankrupt act, the order of reference was amended so as to comply therewith. In re Rockwell et al., 4 N. B. R. 74; Fed. Cas. 11,987. 163. The bankrupts surrendered their prop- erty to the register, who appointed watch- men to guard it, and reported his action to the court, who ordered report to be referred to United States commissioner to take testi- mony. In re Bogart, 2 N. B. R. 178; 1 Chi Leg. News, 343; Fed. Cas. 1,599. (b) Costs. 164. An application for an order for the payment of expenses incurred for services of counsel by the assignee for petitioning cred- itor, in proceedings prior to the adjudication, cannot be entertained by the register, but there must be a petition to the court by the party, setting forth the facts and asking the relief desired. In re Dibblee et al., 3 N. B. R. 185; 4 Ben. 137; Fed. Cas. 3,8^6. See New York Mail Steamship Co., 3 N. B. R. 185; Fed. Cas. 10,208. 165. The proper way to bring the matter of attorneys' fees before the court when con- tested was by petition, and reference would be ordered for testimony. In re Rosenburg, 3 N; B. B. 18; Fed. Cas. 12,036. 166. The United States marshal and as- signee are officers of the court and must obey the orders of the register, and necessary ex- penses and disbursements in the protection of the bankrupt's estate must be taxed by the register. In re Carow, 4 N. B. R. 178; 41 How. Pr. 113; Fed. Cas. 3,436. (c) PetiUons or Suits of. 167. Where assignee of bankrupt filed a petition alleging that the bankrupt, within six months of bankruptcy, conveyed certain real estate and two promissoiy notes with intent to defeat the provisions of the bank- rupt act, praying for an injunction and to set aside conveyance, — on objection made by grantee that the proper remedy is by bill in equity, held, that objection be overruled and assignee be allowed to proceed with his petition. In re Norris, 4 N. B. R. 10; 1 Amer. Law T. Rep. Bankr.337; 3 Amer. LawT. 216; Fed. Cas. 10,304. 168. V. was adjudicated bankrupt and an assignee was appointed. Certain creditors secured goods of V. by writ of replevin after the petition was filed. Assignee petitioned district court for the goods, and an order is- sued directing goods be delivered to assignee. From this order creditors prayed for review by district court. Petition dismissed. In re Vogel, 3 N. B. R. 49; 7 Blatchf. 18; 1 Amer. Law T. Rep. Bankr. 170; 2 Amer. Law T. 154; Fed. Cas. 16,982. 169. An assignee filed his petition setting forth the fraudulent transfer of bankrupt's property, and praying that the purchasers thereof should be required to show cause why they should not deliver said property over to him and to pay to him the proceeds of any part thereof sold by them. Held, that the petition and the proceedings, which should be of a summary character, were a proper mode of procedure. Bill, Ass., v. Beck- with et al., 2 N. B. R. 83; 1 Chi. Leg. News, 103; Fed. Cas. 1,406. 170. An order of seizure was given against goods in name of purchaser from a bankrupt ; upon giving joint and several bond, with sureties, goods were returned to purchaser. In proceedings to set aside sale decree was made declaring sale fraudulent, and pur- chaser prosecuted two imsuccessful appeals, executing bonds for the same. Execution issued against purchaser and a part of the decree was realized. On petition by as- signee against sureties on original bond for balance due under decree, held, that as- signee could elect which of several bonds to proceed upon, and might proceed upon orig- inal bond, and it being joint and several he might proceed against one or more. Storrs 366 PLEADING AND PRACTICE, XIII, (d), XIV. et aL V. Eagle et al., 19 N. B. E. 90; 3 Hughes, 414; Fed. Cas. 13,494. 171. Proceedings to compel bankrupts to pay funds, collected either before or after bankruptcy, belonging to the estate, may be instituted by summary petition. In re Et- tinger, 18 N. B. R. 223; Fed. Cas. 4,543. 172. S. was served with a rule to show cause why he should not deliver to assignee two horses bought from B. S. subsequently became surety for B. on an appeal bond in justice court, for which B. gave him $200 for indemnifioation. Held, proceedings by as- signee were premature and rule discharged. In re Buse, 3 N. B. R. 53; Fed. Cas. 3,331. 173. Where an assignee commenced suit against lien-holders, the bankruptcy court ordered the sale by assignee and referee jointly of mortgaged property and deposit of proceeds in treasury of court to await de- termination of suit. In re Columbian M. Works, 3 N. B. R. 18; Fed. Cas. 3,039. 174. An assignee who desires to test the validity of a mortgage executed by bankrupt and restrain foreclosure proceedings on the same should proceed by bill in equity. In re New York Kerosene Oil Co., 3 N. B. R. 31 ; Fed. Cas. 10,306. 175.. As assignee petitioned the court to require that certain books, claimed both by him and by an assignee of the bankrupt's own choosing, be delivered to him. Held, he could proceed either at law or in equity. Rogers v. Winsor, 6 N. B. E. 246; Fed. Cas. 13,033. 176. Actions by assignee to recover assets claimed to belong to the bankrupt should be commenced by bill in equity or suit at law. In re Bonesteel, 3 N. B. R. 137; 7 Blatchf. 175; Fed. Cas. 1,637. 177. A creditor obtained a judgment, the debtor being insolvent, and the sheriff levied on the goods. The assignee in bankruptcy sued the judgment creditor in the bankrupt court. The defendant claimed that the as- signee should have applied to the state court for an order on the sheriff. Held not. Tra- ders' Nat. Bank, 6 N. B. R. 353; 14 Wall. 87. 178. An assignee in bankruptcy can pro- ceed against an adverse claimant of property only by action at law or bill in equity; but whether an adverse claimant may not pro- ceed against an assignee by petition, qucere? Ferguson v. Peokham, 6 N. B. R. 569; 39 Leg, Int. 285; 6 Alb. Law J. 391; Fed. Cas. 4,741. 178a. The mortgagees of certain realty assets of a bankrupt corporation brought suit in a state court to foreclose and to make the assignee in bankruptcy a defendant. The assignee filed a petition in the United States district court praying that proceedings in the foreclosure suit be stayed and that the mort- gage be set aside as invalid. Held, that the proceedings by the assignee should have been by bill in equity and not by petition. In re New York Kerosene OU Co., 3 N. B. E. 31;. Fed. Cas. 10,306. (d) Removal of Trustee. . 179. If a creditor after proving his clainr wishes to have assignee in bankruptcy re- moved he can petition the court. In re Car- son, 5 N. B. R. 290; 5 Ben. 377; Fed. Cas. 2,460. 180. On revisory petition to circuit court for the removal of an assignee in bankruptcy,- the practice is to direct the district court to remove the assignee and appoint some proper person. In re Perkins, 8 N. B. R. 56; 5 Biss. 254; Fed. Cas. 10,983. 181. The register was directed to employ counsel for the estate of the bankrupt at the- hearing of an order to show cause why the assignee should not be removed. In re Price,. 4 N. B. R. 137; Fed. Cas. 11,409. 182. In order to warrant proceedings against an assignee for not complying with General Order No. 38 under the act of 1867, it must be shown by prima facie evidence that he has received funds or made deposits in respect to which he ought to have made a report to the court under said order. In re Goodwin, 3 N. B. R 106; Fed. Cas. 5,550. XIV. Secueities. 183. Every creditor, secured or unse- cured, of a bankrupt, is a defendant in the proceedings, and if a creditor has a lien, and wishes to protect it, he must disclose its particular character, that it may legally and according to its priority be ascertcined and liquidated. In re Bridgman, 1 N. B. R 59; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 1,866. 184. Where stock is pledged to secure call loans the pledgee need not obtain leave of court to sell stock pledged and pay sup- PLEADING AND PRACTICE, XV, (a). 367 plus into court. In re Grinnell, 9 N. B. E. 137; Fed. Cas. 5,839. 185. Where value of a security is agreed upon between the assignee in bankruptcy and a creditor, and new facts are afterwards developed to show valuation was incorrect, the court will order a new valuation. In re Newland, 9 N. B. E. 63; 7 Ben. 63; 3 Ins. Law J. 860, 895; Fed. Cas. 10,171. 186. A creditor fully secured may file a petition in bankruptcy without expressly waiving his preference therein, but the bet- ter practice is to do so. In re Stansell, 6 N. B. R 183; Fed. Cas. 13,393. 187. Petition was filed by creditor of bankrupt, claiming property by virtue of un- recorded naortgages and bills of sale of earlier date than of recorded mortgage. Petition dismissed for want of jurisdiction. Barstow V. Peckham, Ass., et al., 5 N. B. R. 73; Fed. Cas. 1,064 188. Order for sale under mortgage should designate place of deposit of money as sep- arate fund by register. The register will be directed to make the deed free from lien, and the lien will be transferred to the pro- ceeds of property. In re Haiin, 5 N. B. R. 293; 4 N. B. R 139; 4 Ben. 469; Fed. Cas. 6,036. 189. In order to entitle a mortgagee to apply to the pourt for leave to foreclose a mortgage in another court, he must prove his debt in bankruptcy court as secured. The petition must show claim proved, date and amount, and state mortgaged property and its actual value. The petition must be duly signed and verified — before notary is sufficient. In re Sabin, 9 N. B. R 383; Fed. Cas. 12,193. XV. United States and State COUETS. (a) In General. 190. In all questions relating to real es- tate federal courts will follow the laws and decisions of the courts of the state in which the land is situated. In re Zug et al., 16 N. B. R 280; 23 Int. Rev. Rec. 393; 34 Leg. Int. 403; 35 Pittsb. Leg. J. 39; Fed. Cas. 18,333. 191. Bankruptcy court will not take cog- nizance of a petition filed by one creditor when he has an adequate remedy by pro- ceeding in equity. In re Avery v. Johann,_ 3 N. B. R 36; 3 Amer. Law T. Rep. Bankr. 93; 4 N. B. R 143; 1 Chi. Leg. News, 261;.. Fed. Cas. 675. 192. A district court may not proceed summarily against persons claiming titles adverse to that of the assignee. The pro- ceeding must be by suit at law or in equity. In re Harter, 13 N. B. R 185; Fed. Cas. 9,143. 193. Although the court in bankruptcy has the discretion at any stage of proceed- ings to permit amendments to be made to pleadings, it is a discretion limited to the same cause of action, and it should not per- mit, under forms of "amendments," new causes of action to be introduced. In re Leonard, 4 N. B. R 183; Fed. Cas. 8,255. 194. Where it is for the interest of the creditors that the estate be administered in the bankruptcy court, the fact that it is- more expensive than proceedings in a state court will not control. In re Duryea, 17 N.. B. R. 495; Fed. Cas. 4,196. 195. The act of congress of 179t) does not relate to proceedings in the federal courts,, nor does it forbid any state to admit in its; courts proof of the records in the courts of the other states different from that pre- scribed by the act. Miller v. Chandler, 17 N.. B. R 251. 196. Federal courts may decline to enter- tain actions brought by assignees for less, than $500 in amount. Wente v. Young et . al., 17 N. B. R. 90. 197. A proceeding in bankruptcy, from the time of its commencement until the final settlement of the estate, is but one suit. San- dusky V. The First Nat. Bank, 13 N. B. R 176; . 33 Wall. 289. 198. A bankruptcy proceeding, by which the estate of a debtor is administered, is an equitable one. Coit v. Robinson et al., 9 N. . B. R 389; 19 'V^fall. 374 199. The United States circuit court can- not take notice of objection on technical grounds where no demurrer has been filed in the district court. Babbitt v. Burgess, 7 N. B. R 561; 3 DilL 169; 5 Chi. Leg. News, 336; Fed. Cas. 693. 200. The defendant in an equity suit must account before a master for property received by him. Orders of reference to a. 368 PLEADING AND PRACTICE, XV, (b). master will be settled on notice. Benjamin V. Graham, 4 N. B. R. 130; Fed. Cas. 1,301. 201. A writ of sequestration to take prop- erty from the possession of the assignee can- not be issued after the commencement of proceedings, even though a suit is pending in a state court when the proceedings in bankruptcy are instituted. Hewett, Ex'r, v. Norton, Ass., 13 N. B. R. 376; 1 Woods, 68; 1 N. Y. Wkly. Dig. 585; Fed. Cas. 6,441. 202. Bankrupts were named as universal legatees in the will of one H. The heirs of H. brought suit, in a state court, against the bankrupts, prior to the institution of pro- ceedings in bankruptcy, asking that the will be set aside and an accounting be had. Held, that the action should be allowed to proceed. Id. 203. A state court first obtaining posses- sion of property and control of litigation has the right to finish proceedings before inter- ference by the bankrupt court, and any rights of tlie assignee will be protected. Appleton V. Bowles et al., 9 N, B. R. 354. 204. The effect of bankruptcy upon suits pending in state courts is to suspend them, but they may, with leave of the bankrupt court, be prosecuted to judgment to ascer- tain the amount due, but final process to se- cure satisfaction cannot be issued. Allen & Co. v. Montgomery et al., 10 N. B. R. 503. 204a. Where a voluntary assignment had been executed less than three months before the commencement of bankruptcy proceed- ings, and a creditor brought suit in a state court to compel the voluntary assignee to account and had a receiver appointed, and an assignee in bankruptcy was thereafter ap- pointed, whereupon a reference was ordered by the bankrupt court to determine what should be awarded the creditor as expenses, held, that such creditor may not apply to the state court for an order directing the payment, out of the estate in the hands of the voluntary assignee, of the referee's fees included in such action. In re Dumahaut etal., 17 N. B. R. 517; Fed. Cas. 4,135. (b) Appeals and Writs of Error. See Appeals and Wbits of Ereor. 205. If a defendant be adjudged a bank- rupt after he has taken an appeal, an affirm- ance of the judgment in the absence of a suggestion of his bankruptcy is not a nullity. Flanagan v. Pearson, 14 N. B. R. 87. i!06 . One lien creditor may take an appeal without other lien creditors being parties to the appeal Milner, Jr., v. Meeks, Ass., et al., 17 N. B. R. 83; 95 U. S. 253. 207. A writ of error brings up the whole record, and the plaintiff in error may take advantage of a fatal defect in the declara- tion. In re Marionneaux, 18 N. B. R. 333; 1 Woods, 87; Fed. Cas. 9,088. 208. One tribunal in reviewing the judg- ment of another, or the findings of its own subordinate officers, should not reverse for error where the facts upon which the in- ferior tribunal has proceeded are not brought before it. In re The Weber Fum. Co., 13 N. B. R. 559; Fed. Cas. 17,331. 209. An appeal was pending in a state court from an order denying a motion to vacate an attachment against the bankrupt, and upon his adjudication as such he pro- cured an order requiring the plaintiffs in the attachment to show cause why all proceed- ings should not be stayed to await the de- termination of the bankruptcy proceedings; pending this order the appeal was called in its order on the calendar. The defendants being present and not desiring to proceed, the appeal was dismissed for want of prose- cution. Held, not a violation of the order staying proceedings. In re Hirsch, 3 N. B. R. 1; 3 Ben. 493; 1 Amer. Law T. Rep. Bankr. 93; Fed. Cas. 6,529. 210. Appeals given by the eighth section of the bankrupt act of 1867 to the circuit court, in suits in equity, are not from orders or interlocutory decrees, but from final de- crees of the district court. In re Casey, 8 N. B. R. 71 ; 10 Blatchf. 876; Fed. Cas. 3,495. 211. Where a debtor is adjudged a bank- rupt under the act of 1867, pending an appeal from the judgment of the court of ordinary on the homestead exemption, the bankruptcy court will not take possession of the property allotted for exemption; but the assignee will apply for leave to be made a party to the appeal, and there contest the judgment of the inferior court. In re Moseley et al., 8 N. B. R. 308; Fed. Cas. 9,868. 212. Parties went to trial, and the jury, under instructions from the court, found the respondents guilty. To the findings respond- ents excepted and sued out a writ of error PLEADING AND PRACTICE, XV, (b). 369 and removed the cause into the circuit court, which dismissed the writ for want of juris- diction. On appeal to the supreme court, iield, that the circuit court erred in dismiss- ing the writ (1867). Knickerbocker Ins. Co. V. Comstock, 8 N. B. E. 145; 16 Wall. 258. 213. When the creditor takes an appeal from a decision in favor of an assignee, and •the case comes into the circuit court, it is to be there reconstructed; and the creditor is required to file a declaration, and the issues ■are then made up and the case tried in the same way as a case at law commenced in the circuit court (1867). Stillwell v. Walker, Ass. etc., 17 N. B. R. 569; 6 Cent. Law J. 406; Fed. Cas. 13,451. 214. An appeal having been taken from the district court to the circuit court, it was held to be a case for review. On a petition for review, the order appealed from having tieen affirmed, it was held that an appeal does not lie to the supreme court (1867). Dimick v. Coleman, 17 N. B. E. 479; 95 U. S. 266. 215. In a suit brought by an assignee in a state court without direction from the bankruptcy court, defendant pleaded to the declaration. Seld, that the point could not be raised in an appellate court (1867). Hal- leck et aL v. Tritch, Ass. etc., 17 N. B. R. 293; 10 Chi Leg. News, 219; Fed. Cas. 5,956. 216. After the recovery of judgment and an appeal by the defendant, he was declared a bankrupt upon his own application. The plaintiff, with notice thereof, obtained judg- ment on appeal, whereupon a further appeal was taken. The plaintifE moved to dismiss the appeal on the ground that it should be prosecuted by the assignee in bankruptcy. The motion was denied (1867). Sanford v. Sanford, 12 N. B. R. 565. 217. The district court having decided that a creditor could not file objections to the discharge of the bankrupt until he had proven his debt, an appeal was taken to the circuit court upon a motion to dismiss. Held, that appeal is not the proper method to take a question arising during the progress of a case in bankruptcy into the circuit court <1867). In re Reed, 3 N. B. R. 2; Fed. Cas. 11,638. 218. A mere refusal by the circuit court to entertain a bill to review district court 34 proceedings gives no right of appeal to the United States supreme court, the presump- tion being that such refusal was based upon want of merit; but where such refusal is for want of jurisdiction, an appeal will lie to en- able the complainants to have a hearing before the circuit court, if the supreme court decides them to be thereto entitled (1867). First Nat. Bank v. Cooper et aL, 9 N. B. R. 529 ; 30 Wall. 171. 219. The order by which the debtor was adjudged a bankrupt may be reviewed by the circuit court, although brought up by bill of exception instead of a writ of error; and the case falls clearly within its supervisory juris- diction where all the testimony was reduced to writing and preserved in the exceptions (1867). In re Picton, 11 N. B. R. 420; 2 Dill. 548; Fed. Cas. 11,136. 220. An order of the district court dis- charging a bankrupt cannot be reviewed in the circuit court on writ of error, where the record present only questions of fact (1867). Ruddick v. Billings, 3 N. B. E. 14; Woolw. 330 ; 3 West. Jur. 375; Fed. Cas. 13,110. 221. Where no bond has been filed in a case of appeal, no a,ppeal can be allowed after the expiration of ten days from the entry of the decree, as the United States district court cannot enlarge the right of appeal (1867). Benjamin v. Hart, 4 N. B. R. 138; 4 Ben. 454; Fed. Cas. 1,303. 222. Where an appeal bond is proper in form and the sureties are sufficient, the United States district court will approve it as a bond which would be a proper one if given in time, leaving it to the appellee to move the appellate court to dismiss the ap- peal. Id. 223. Where the district court cannot ap- prove an appeal bond as proper in form, and the delay in filing has been more than ten days, the issuing of execution on the decree will not be stayed. Id. 224. Creditors whose claims were rejected appealed to the circuit court from an order awarding the assignee costs to be paid by ap- pellants. Appeal bond was not filed nor notice given within ten days after the order. Held, that appeals should be dismissed (1867). In re Kyler,3 N. B. R. 11; 6 Blatchf. 514; Fed. Cas. 7,957. 225. A claim was rejected by the district 370 PLEADING AND PRACTICE, XV, (c). court. Within ten days after the decree to that effect the creditor claimed an appeal from such decision, and gave notice thereof, as required by the bankruptcy act of 1867, but he did not file in the circuit court the statement required by the act and rule 26 of the general orders in bankruptcy, nor enter the appeal during the ten days limited by rule 36. Held, that the appeal be dismissed. In re Place et aL, 4 N. B. E. 178: 8 Blatchf. ' 303; 3 Chi. Leg. News, 218; Fed. Cas. 11,300. 226. In computing the time within which an appeal in bankruptcy must be taken, Sun- day is to be counted, except that when the last day would fall on Sunday, that Sunday is to be excluded. In re York et al., 4 N. B. R 156; 10 Amer. Law Reg. (N. S.) 36; Fed. Cas. 18,139. 226a. An appeal does not lie to the su- preme court of the United States from the decree of a circuit court dismissing an ap- peal from a district court, for the reason that the case was one for review and not appeal, and affirming under a petition for review the order appealed from. Minick v. Coleman, 17 N. B. E. 479; 95 U. S. 366. (c) Demurrer. 227. A party having once appeared can- not withdraw appearance on the ground that the court has no jurisdiction, but must raise such question by demurrer. In re Ulrich et al., 3 N. B. E. 34; 3 Ben. 355; Fed. Casl 14,327. 228. A demurrer to an answer was prop- erly overruled where the answer amounted to a denial of the validity of bankruptcy pro- ceedings, and the defendant cannot be de- nied the right to establish that bankruptcy proceedings are void. Stuart, Ass., v. Au- mueller et al., 8 N. B. E. 541. 229. A pleading in the alternative will be held bad on demurrer when relating to a material fact. In re Eedmond et al., 9 N. B. E. 408; Fed. Cas. 11,682. 230. A defendant who files a demurrer to the petition will not be allowed, after such demurrer is overruled, to file a general an- swer of denial of the acts of bankruptcy alleged in the petition and demand a trial by jury. In re Benham, 8 N. B. R. 94 231. Where the remedy at law is plain and complete, without any reasonable doubt, equity will decline jurisdiction, provided the ' objection is taken by demurrer or is claimed in the answer. Garrison, Ass., v. Maokley, T N. B. E. 246; Fed. Cas. 5,256. 232. Eeplications filed in an action in a state court, setting up fraudulent acts of the- bankrupts in avoidance of the discharges,, are bad on demurrer. Reed v. Bullington,. 11 N. B. R. 408. 233. After the bankrupt had been dis- charged creditors brought an action to have- the discharge declared void on the ground that the debtor had concealed property, set- ting out the manner in which it had been concealed, and asking that certain convey- ances be set aside. Defendant demurred. Held, that no such defect of substance of the case as would sustain a demurrer. Nicholas,. Ass., V. Murray et al., 18 N. B. R. 469; 5 Sawy. 330; Fed. Cas. 10,223. 234. At most a demurrer on the ground that a bill does not state facts sufficient to constitute a cause of suit is no more than a- general demurrer for want of equity. Such demurrer is unknown to chancery practice^ Id. 235. Where the petition for review is de- murred to, the demurrer admits the truth of its statements. If the demurrer is oveiTuled the averments of the petition stand good, and if these are sufficient the decree below is re- versed. Curran v. Hunger, 6 N. B. R. 33; Fed. Cas. 3,487. 236. A demm-rer will be sustained to sl bill to set aside a conveyance in fraud of creditors, to the joinder of the purchaser,., without averring that he had knowledge of the fraud. Pratt v. Curtis, 6 N. B. R. 139; 2: Lowell, 87; Fed. Cas. 11,375. 2 3 7 . A demurrer to a bill in equity brought, by the assignee on the ground that the com- plainant has a complete remedy at law will be overruled where the facts show that ques- tions of fraud, trust and partnership are all involved in the case. Taylor, Ass., v. Rasch et al., 5 N. B. R. 399; 4 Amer. Law T. Rep. 201; Fed. Cas. 13,801. 238. The petition in bankruptcy averred that a firm were manufacturers and made and delivered certain notes, etc., which were negotiated but not paid. On demurrer, held. not necessary to aver that notes were given for purposes of their manufacturing business. In re Kenyon & Fenton, 6 N. B. R. 238. 239. If a demurrer to an intervening pe- PLEADING AND PRACTICE, XV, (d), (e). 371 tition is overruled, the demurrant is entitled to answer and be heard on the merits. Jor- dan, Ass., V. Downey, 13 N. B. R. 437, (d) Injunction. See Injunction, 28, 65, 75, VL 240. The service of an injunction on a person does not make him a party in interest of a bankruptcy proceeding, though he might by petition or motion have a wrongful injunc- tion dissolved. Karr v. Whittaker et al., 5 N. B. R. 133; Fed. Cas. 7,613. 241. Where grounds of injunction are al- leged in the petition on information and be- lief, and the petition was not accompanied by affidavits sustaining the allegations, held. that allegations upon information and belief, unsupported by other pi'oof, are not suffi- cient. In re Bloss, 4 N. B. R. 37; Fed. Cas. 1,563. 242. Where a restraining order is asked for at the commencement of proceedings against any person other than the debtor, no judgment of contempt can be had against such party for disregard of such order, unless it was granted on a separate petition. Cred- itors V. Cozzens et al., 3 N. B. R. 73; 3 West. Jur. 349; 16 Pittsb. Leg. J. 236; Fed. Cas. 3,378. 243. A., having been adjudicated a bank- rupt, petitioned the circuit court for a re- view, and obtained injunctions from the state coiurt restraining the creditors from continu- ing the proceedings in bankruptcy. On peti- tion by creditors to the circuit court for a ■writ prohibiting the state court from further entertaining actions by A. for the purpose of interfering with the adjudication, held, that such writ not being necessary for the exercise of the circuit court's injunction, the petition should be denied. In re Bininger et aL, 3 N. B. R. 131; 7 Blatchf. 159; 1 Amer. Law T. Rep. Bankr. 183; 17 Pittsb. Leg. J. 177; Fed. Cas. 1,417. 244. An action was commenced before a justice of the peace and judgment recovered. Defendant appealed to the circuit court and judgment was again rendered against him. In the rendition of the verdict the defend- ant suggested his bankruptcy and obtained leave to ffle a transcript of the proceedings. Held, that the proceedings should liave been pleaded to entitle the bankrupt to a stay pending discharge. Holden v. Sherwood, 18 N. B. R. 111. 245. Before a justice of the peace the pendency of bankruptcy proceedings may be brought to the attention of the court by motion based on a transcript of the proceed- ings. Id. 246. Proceedings in bankruptcy were be- gun against a debtor in two diflferent district courts; held, proper proceeding to stay, not dismiss, second. In re Boston, H. & E. R. R. Co., fi N. B. R. 309; 9 Blatchf. 101; 6 Amer. Law Rev. 365; Fed. Cas. 1,677. 247. The granting of a rehearing and the granting or dissolving of a temporary injunc- tion are always in the sound discretion of the court, and therefore furnish no ground of appeal. Bufflngton v. Harvey, Ass. etc., 17 N. B. R. 474; 95 U. S. 99. 248. Where an injunction has been granted by the court, a motion to dissolve it is the proper procedure, and not a petition to dissolve. In re Mallory, 6 N. B. R. 23; 1 Sawy 88; Fed. Cas. 8,991. 249. Petitioning creditor objected to the hearing of a motion to dissolve an injunc- tion restraining certain parties from dispos- ing of goods received from the bankrupt, on the ground that the order to show cause had not been returned, and the prohibition by the bankrupt act of " further proceedings " until such return. Held, that the prohibi- tion of "further proceedings" does not apply to collateral proceedings. In re MuUer et aL, 3 N. B. R. 86; Deady, 513; 3 Amer. Law T. Rep. Bankr. 33; Fed. Cas. 9,913. 250. A motion to dissolve an injimction in state courts was held unnecessary, as order of discharge terminated the injunction. In re Thomas, 3 N. B. R. 7; Fed. Cas. 13,890. (e) Jury. See Jdbt Trials, 7. 251. Instructions are entitled to a reason- able construction, and, if correct when ap- plied to the facts submitted to the jury, they will be sustained even though, when stand- ing alone, they would be incomplete in re- spect of some matter sufficiently explained in evidence. Willis v. Carpenter, 14 N. B. R, 531; Fed. Cas. 17,770. 372 PLEADING AND PRACTICE, XV, (f). 252. A respondent who does not file his answer until after the expiration of the rule to show cause cannot demand that the issues raised be tried by jury. In re Gebhardt, 3 N. B. E. 63; Fed. Gas. 5,394 263. On the return day of order to show cause the defendant appeared by attorney, but neither filed answer nor demanded trial by jury, and a continuance was granted on request of defendant. On day to which case was continued he entered his motion for leave to file answer and demanded trial by jury. Held, that he had waived right to jury trial In re Sherry, 8 N. B. R. 143. 254. If a bankruptcy case be tried by the court without a jury, as it may be with the assent of the defendant, implied from his failure to demand one, it is stiU a case at law, but may be reviewed on petition. In re Oregon B. P. & P. Co., 14 N. B. R. 394; 3 Sawy. 539; 8 Chi. Leg. News, 143; Fed. Cas. 10,560. 255. It is not a ground for nonsuit that the plaintiff has been adjudged a bankrupt since the suit was begun, as the court may direct the jury, if they find for the plaintiff, to find that he may recover for the use of his assignee. Wooddail, Adm'r, v. Austin et aL, 10 N. B. R. 545. 255a. In an action by an assignee of a bankrupt corporation to recover a portion of the proceeds of the sale of certain lumber furnished to the corporation, but the title to which was in dispute, heldi, that it was proper to submit to the jury the question whether anything remained to be done to the lum- ber by the seller, as the question of title de- pended upon this. Gates, Ass., v. Winooski, 18 N. B. R. 31; Fed. Cas. 5,370. (f) Pa/rUes. 256. Where an appellant in the supreme court of the United States becomes bankrupt after his appeal taken, his assignee in bank- Tupty, upon production of the deed of assign- ment of the register duly certified, may, on motion, be substituted as appellant. Hern- don V. Howard, 4 N. B. R. 61; 9 Wall 664. 257. A bankrupt before bankruptcy, or his assignee thereafter, is a necessary party to a suit in equity on an order on funds ob- tained before bankruptcy, and the bank- ruptcy court has exclusive jurisdiction of all questions pertaining to the estate. "Walker, Ass., V. Seigel et aL, 13 N. B. R 394; 3 Cent. Law J. 508; Fed. Cas. 17,085. 258. An assignee wiU not be made a party to an action brought for the recovery of property alleged to have been vsrrongf uUy converted by the bankrupt, and which was seized by the sheriff, unless it is shown that the bankrupt has some right in the property in dispute. In re Gunther et aL v. Green- field, and Raeder v. Same, 8 N. B. R. 179. 259. Six months prior to bankruptcy pro- ceedings bankrupt made a voluntary assign- ment. Plaintiff was afterwards, and before filing of petition, appointed receiver in pro- ceedings supplementary to execution. In a suit against bankrupt, assignee in bank- ruptcy and voluntary assignee to set aside assignment as void, held, that property cov- ered thereby was "property transferable to and vested in assignee;" and that all per- sons having an interest therein affected by decree were properly joined as defendants. Onley, etc. v. Tanner et aL, 19 N. B. R. 178; Fed. Cas. 10,506. 260. In a suit on certain notes defendant alleged that the notes were secm-ed by mort- gages which had been foreclosed by plaintiff and that the assignee in bankruptcy of one of the makers of the notes was not made a party and the proceeding was therefore void. Seld, that the proceeding was valid as to all persons parties. Brown v. Gibbons, 13 N. B. R. 407. 261. In a suit by the assignee to set aside a conveyance made by the bankrupt to de- fendant in fraud of creditors the bankrupt was not made a party. Beld, that he need not have been. BufiBngton v. Harvey, Ass. etc., 17 N. B. R. 474; 95 U. S. 99. 262. The wife and children of a bankrupt are not necessary parties defendant to an ac- tion by his assignee against him and the in- surer to en j oin collection of insurance policies transferred in contemplation of insolvency. Vetterlein v. Barnes, 124 U. S. 169. 263. Assignee of bankrupt defendant was appointed during pendency of action. Held, that other defendants could not make as- signee defendant, but, if they had claim for contribution against bankrupt, their remedy was by intervention in bankruptcy proceed- PLEADING AND PRACTICE, XV, (f). 373 ings. Oliver v. Cunningham et al., 19 N. B. E. 400; Fed. Cas. 10,493. 264. Several persons united to effect fraudulent disposition of bankrupt's prop- erty. Held, that they could all be joined as defendants in action by assignee, though re- lief sought against them respectively relates to different parts of estate. Van Kleeok, Ass., V. Miller et al., 19 N. B. R. 484; Fed. Cas. 16,860. 265. Where the aUegatioh in support of jurisdiction of the court is that the parties all live in the district, and is found to be con- trary to the facts, the court has no jurisdicr tion of the case. In re Beals et al., 17 N. B. E. 108; 9 Ben. 323; Fed. Cas. 1,165. 266. When a petitioning creditor aban- dons the proceedings, any other creditor may intervene, and the court may proceed to an adjudication. Such right of intervention cannot be defeated by any arrangement be- tween the bankrupt and any creditor, and any action of the court defeating such right Is in violation of the statute. In re Lacey et aL, 10 N. B. R. 477; 13 Blatohf. 333; Fed. Cas. 7,965. 267 . When there appears to be an adverse interest in any one not before the court, it cannot adjudicate on the same without that person being before it for the purpose of litigating any supposed rights. In re Pierce et al., 15 N. B. R. 449; 7 Biss. 436; 9 Chi. Leg. News, 300; 15 Alb. Law J. 517; Fed. Cas. 11,139. 268. Every person submitting himself to the jurisdiction of the bankrupt court for the purpose of having his rights determined is a party to the suit, and is bound by the determination of the court. Wiswall et aL V. Campbell et aL, Ass., 15 N. B. R. 431; 93 U. S. 347. 269. Unless made parties defendant, the agents and offioei's of a corporation cannot be made to answer the interrogatories in a biU. French, Ass., v. The First Nat. Bank, 11 N. B. R. 189; 7 Ben. 488; Fed. Cas. 5,099. 270. A complaint must always show title in plaintiffs of the subject-matter of action, or "such an interest as indicates them to be proper parties; otherwise it fails to state facts sufficient to constitute a cause of action. Mosselman et aL, Tr., v. Caen, 10 N. B. R. 513. 271. The question of a misjoinder of par- ties can be raised only by those improperly joined. Spaulding, Ass., v. McGovern et al., 10 N. B. R. 188; Fed. Cas. 18,317. 272. An assignee in bankruptcy sued a creditor who had obtained judgment and had levied on the goods of the debtor. A subsequent judgment creditor who had levied on the same goods was out of the ju- risdiction and coxdd not be served with pro- cess, and was not made a party. Held, he was not a necessary party. Traders' Nat. Bank V. Campbell, 6 N. B. R. 353; 14WaU. 87. 273. Where property is in a receiver's hands, no party having interest therein will be permitted, without the court's leave, to enforce their rights by an original suit, if the relief sought is competent in the pending litigation. Sutherland et aL v. Lake Sup. S. C, U. & I. Co., 9 N. B. R. 398; 1 Cent. Law J. 127; Fed. Cas. 13,643. 274. To a bill by a junior mortgagee against a mortgagor or his assignee in bank- ruptcy, prior incumbrancers are necessary parties where there is substantial doubt as to the amounts which are due them or the property covered by their liens. Id. 275. Where a bill is filed charging fraud, and the gravamen is found to be transfers of property in transactions in violation of the bankrupt act to persons not parties in the bill, it was held that the bill could not be treated as brought to set aside the convey- ances, as it does not pray for such relief; as all parties connected with them are not par- ties defendant; and as even if they were all parties it would be multifarious; and the bill would be dismissed. Harmanson, Ass., v. Bain et aL, 15 N. B. E. 173; 1 Hughes, 188 j Fed. Cas. 6,073. 276. Certain creditors having adopted a resolution under the bankrupt act appoint- ing trustees, parties interested contested tha confirmation of the resolution. Held, that the parties desiring the confirmation were the moving parties and should serve their papers on the contestants. In re American Waterproof Cloth Co., 3 N. B. R. 74; 1 Ben. 536; Fed. Cas. 318. 277. The question as to which party in a suit has the' right to open and close must be determined by the record, the defendant pos- sessing such right when by the pleadings the burden is upon him, and the plaintiff would zu PLEADING AND PRACTICE, XV, (g). be entitled to a verdict without any evidence. In re Jelsh et al., 9 N. B. E. 412; Fed. Cas. 7,357. 278. Where the questions certified to a United States district judge are abstract, and do not arise in the course of the bank- ruptcy proceedings, and are certified in be- half of a person who is not a party in the bankrupt court, such questions, not being cer- tified as authorized by the bankrupt act, will be returned undecided, for the reason that a decision on them would be of no effect. In re Haskell, 4 N. B. E. 181; Fed. Cas. 6,191. 279. The denials of bankruptcy are ques- tions solely between petitioning creditors and " debtors, with which no outside party, claim- ing to be a creditor, can interfere. In re Boston, H. & E. E. R. Co., 5 N. B. E. 332; Fed. Cas. 1,679. 280. A fund in a depositary's hands is claimed by several parties, among them the assignee in bankruptcy. The latter obtained a rule to show cause, on another claimant, why the depositary should not pay the fund over to him. Held, possession of depositary is the possession of claimant if claim be just, and proceedings to recover must be by suit in law or equity. Smith v. Mason, 6 N. B. E. i; 14 Wall. 419. 281. Strangers to the proceedings in bank- ruptcy, and who have not voluntarily become parties to such litigation, cannot be com- pelled to come into court under a petition for a rule to show cause. Such parties must be proceeded against by a suit at law or in equity. Id. 2 8 2 . A creditor attacking the jurisdiction of the bankrupt court need not first file for- mal proof of his debt, for this would impart a recognition of the jurisdiction. He must, however, show that he is a creditor and that he had an interest to protect. In re Boston, H. & E. E. E. Co., 6 N. B. E. 309; 9 Blatchf. 101; 6 Amer. Law Eev. 365; Fed. Cas. 1,677. (g) I^lea and Answer. 283. A defendant after answer raised the question of the jurisdiction of the court. Eeld, objection not too late. Jobbins v. Mon- tague, 6 N. B. E. 509; Fed. Cas. 7,330. 284. As pleas in abatement tend to delay the trial of the action, great precision is re- quired in framing them. Therefore, if the plea or answer relies upon a transfer of the interest of the plaintiffs to abate the action, it must state to whom the transfer has been made. Sutherland v. Davis, 10 N. B. E. 434 285. Where in a bill the complainant de- scribes himself as an assignee, an objection to such bill that he is not legally such as- signee must be made by plea, not by demur- rer. Nicholas, Ass., v. Murray et aL, 18 N. B. E. 469; 5 Sawy. 330; Fed. Cas. 10,333. 286. A plea to the jurisdiction may be interposed in the first instance in the appel- late court, when the objection is of a nature which could not have been obviated if inter- posed in the court of original jurisdiction. Cook V. Waters et al, 9 N. B. E 155. 287. Where a bill was brought to recover from the defendant money alleged to be due to the plaintiff on an agreement by the de- fendant with the bankrupts to pay them, as salaries, certain portions of the net profits realized from the business carried on by de- fendant, and for an accounting, the court decided that a plea of the statute of limita- tions was not warranted. Sedgwick v. Casey, 4 N. B. E. 161; 4 Ben. 563; 3 Chi. Leg. News, 177; Fed. Cas. 13,610. 288. To a plea of bankruptcy of plaintiff as a bar to his further prosecution of a suit commenced prior to filing of petition, where the trustees in bankruptcy had fulfilled their duties and been discharged,, nothing having been done by them in the original suit, held, plea overruled, the right of continuing such suit reverting to the bankrupt. Conner v. The Southern Ex. Co., 9 N. B. E. 188. 289. An answer to a petition of creditors, denying the commission of an alleged act of bankruptcy, and averring that they should not be declared bankrupts for any cause al- leged, amounts to the general issue and no replication is necessary. . In re Dunham, 3 J^. B. R. 9; 3 Ben. 488; 1 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 4,143. 290. In the district court, as a court of bankruptcy, pleading must be special. Hence a general denial of the intent with which an act relied upon as an act of bankruptcy is alleged to have been done is not a good defense, but the respondent must also allege and prove with what intent he did such act. In re Silverman, 4 N. B. E. 173; 3 Abb. (TJ. S.) PLEADING AND PRACTICE, XV, (g). 375 •243; 1 Sawy. 410; 13 Int. Rev. Rec. 53; Fed. Cas. 13,855. 2 9 1 . In an answer a general denial amounts to no more than denial of a conclusion of law. Lathrop v. Drake et al., 13 N. B. R. 472; 91 U. S. 516. 292. Debtors filed their answer to credit- or's petition, denying the commission of the acts of bankruptcy, and averring they should not be adjudicated bankrupts for any cause alleged. HeM, that such answer amounted to the general issue and no replication is nee" -essary. Dunham v. Welch, 3 N. B. R. 9; 2 Ben. 488; 1 Amer. Law T. Rep. Bankr. 89; Ted. Cas. 4,148. 293. If any allegation is to be taken as true because it is not denied, it is only an allegation of some fact which is presumed to be within the knowledge of the party an- -•swering. White v. Jones, 6 N. B. R. 175; 29 Leg. Int. 325; Fed. Cas. 17,550. 294. If the assignee and creditors failed in the period of six weeks to answer the pe- tition of bankrupt's wife, and to adduce tes- timony in refutation of the petition and of the testimony of the bankrupt and other witnesses, the court has a right to presume that no testimony was available, and that no 166; Fed. Cas. 3,839. 4. A debtor unable to meet his liabilities was advised by one of his creditors, to whom about one-half of his debts were owing, to- make an absolute transfer of aU of his prop- erty to him at a valuation which nearly or quite absorbed the same, which was done. Held to constitute a fraudulent preference and to be void. Foster, Ass., v. Hackley, 3 N. B. R. 131; 3 Amer. Law T. Rep. Bankr. 8; 1 Chi. Leg. News, 137; Fed. Cas. 4,971. 5 . An insolvent debtor conveyed the larger part of his pi'operty to one creditor, hoping thereby to get additional credit. Held fraud- ulent. Toof V. Martin, 6 N. B. R. 49; 13- Wall. 40. 6. Any transfer of property of an insolv- ent debtor, made with a view to secure it or any part of it to one, and thus prevent equal distribution, is a transfer in fraud of the ac6 (1867). Id. 7. The district court adjudged the claims of a creditor affected by preferential securi- ties, and debarred him from participating in the fund then being distributed. On ap- peal to the circuit court, held, that the judg- ment of the district court was conclusive (act of 1867). In re Leland, 16 N. B. R. 505; 5 Blatchf. 340; Fed. Cas. 8,235. 8. The class of preferences set forth in sec- tion 35 of the act of 1867 includes such as are absolutely void, and the right is given to^ PREFERENCES, IL 381 the assignee to recover the property for the use of the general creditors. In re Pieron, 10 N. B. R. 107; Fed. Cas. 11,153. 9. The thirty-fifth and thirty-ninth sec- tions of the hankrupt act of 1867 make void all transactions by which one creditor, with knowledge of the debtor's insolvency and with assent of the debtor, obtains a prefer- ence over the other creditors. Golson et aL V. Neihoff et al., 5 N. B. R. 56; 2 Biss. 434: Fed. Cas. 5,534. 9a. An agreement between creditors who have received preferences to contribute pro- portionately such sum as may be necessary to induce other creditors to forbear to put the debtor into bankruptcy is valid. Perry- man V. AUen, 15 N. R R 113. II. Completed "Within Peohibited Peeiod. 10. The day on which the petition was filed is excluded in computing the time a preference must stand in order to be valid. Dutoher v. Wright, Ass. etc., 16 N. B. E. 331; 84 U. S. 553. 11. Where the parties, at the time of exe- cuting a preferential deed, agree to conceal it from other creditors, and for that purpose keep it from record, the time begins to run from the day on which it is filed for record. Exch. Nat. Bank of Columbus v. Harris, Ass., 14 N. B. R. 510; 1 Cin. Law Bui. 357; Fed. Cas. 4,595. 12. An officer of a corporation executed without authority a deed of trust of its prop- erty as security for a negotiable instrument more than four months prior to bankruptcy proceedings, and his act was ratified by the corporation, but within four months prior to the commencement of the proceedings. Held, that the security was a preference. In re Kansas City Stone & Marble Co., 9 N. B. R. 76; Fed. Cas. 7,610. 1 3 . Though a writing giving a preference, signed and acknowledged as a deed more than two months before bankruptcy by a bankrupt, but recorded within that period, may be valid, yet, if at the time of its being acknowledged there was a tacit agreement between the grantor and grantee that the writing was not to be a deed passing title until the grantee should so elect, and the grantee did not make his election until a day within the period of two months, the deed is void. Nat. Bank of F. v. Conway et al., 14 N. B. R. 175; 1 Hughes, 37; Fed. Cas. 10,037. 14. A mere agreement by a debtor, that in a certain event he will deliver to a bank such securities as he may purchase with the proceeds of overdrafts, will not vest a title to the securities in the bank, so that a trans- fer of them will not be a preference. Payne et al. V. Solomon, 14 N. B. R. 163; Fed. Cas. 10,856. 15. A general promise of security, given at the time a debt is contracted, may not be executed after the debtor has become in- solvent. Such a promise will not save the act from being a preference, if it would have been one without the promise. Ex parte Ames, In re McKay and Aldus, 7 N. B. R. 230; 1 Lowell, 561; Fed. Cas. 328. 16. At the time a debt was contracted the debtor promised that he would give se- curity when it might be asked. Held, that security could not be given after the debtor became insolvent. Lloyd, Ass. etc., v. Stro- bridge, 16 N. B. R. 197; 10 Chi. Leg. News, 1; 1 San Fran. Law J. 13; Fed. Cas. 8,435. 17. A lender took an inchoate security — a confession of judgment — on a loan, and afterwards, on learning of the insolvency of the debtor, perfected his security by enter- ing the same of record. Held, such perfect- ing of security was a preference, and pro- hibited. Clark V. Iselin et al., 9 N. B. R. 19; 10 Blatchf. 304; 31 Pittsb. Leg. J. 82; Fed. Cas. 2,825. 18. Where, in an action by the assignee, the declaration alleged a payment by the bankrupt in liquidation of an existing debt, and to have been made to creditors with in- tent to give a preference, and within six, but not within four, months of the filing of the petition, held, that where the transaction is with a creditor, the four months' limita- tion applies; but where it is with a general purchaser, the six months' limitation gov- erns, and that the declaration was demurra- ble (act of 1867). Bean v. Brookmire, 4 N. B. E. 57; 1 Dill. 25; 10 Amer. Law Reg. (N. S.) 181; 4 West. Jur. 892; Fed. Cas. 1,168. 19. The four months' clause of section 35 of the act of 1867 has reference to transfers with a view to a preference of one creditor 382 PREFERENCES, III, IV, (a). of an insolvent over another, -which implies a past indebtedness. The six months' clause has reference to transfers of property by an insolvent to persons other than creditors, with a view to prevent his property from being distributed under the act and with a purpose to defeat its operation. Barnewall & Gaynor, Ass., v. Jones et al., 14 N. B. R. 278; Fed. Cas. 1,027. III. Effect of. 20. The receiving of a fraudulent prefer- ence on one of two discounted debts will not affect the creditor's right to prove the other. In re Richter's Estate, 4 N. B. R. 67; 1 Dill. 544; 3 Chi. Leg. News, 33; Fed. Cas. 11,803; In re Lee, 14 N. B. R. 89; 23 Pittsb. Leg. J. 196; Fed. Cas. 8,179. 21. A creditor received in 1873 an illegal preference from an insolvent debtor. It was held that he was not entitled to prove his claim, the amendment of 1874 not being re- troactive (1867). Id. 22. A creditor of a bankrupt, knowing he was insolvent, received preferences, and afterwards filed his claim for the amounts due him. The assignee raised the question that he was not entitled to pi-ove. Held, that he could prove only a moiety of the debt. In re Schoenenberger, 15 N. B. R. 305; Fed. Cas. 12,473. 23. A preference will not bar the proof of a debt unless it was given and received by the parties to such debt. In re Comstock & Co., 13 N. B. R. 110; 3 Sawy. 330; Fed. Cas. 3,079. 24. Every failing debtor who gives a pref- erence to a part of his creditors thereby com- mits an act of bankruptcy, and such prefer- ence is not allowable. In re Drummond, 1 N. B. R. 10; 1 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 4,093. 25. A creditor who claims a preference contested by others is not eligible to be named as one of the committee to wind up the affairs. In re Stuyvesant Bank, 6 N. B. R. 372; 5 Ben. 566; Fed. Cas. 13,581. 26. Section 39 of the act of 1867 in effect prohibits an insolvent from giving any pref- erence to one creditor over another, from any motive, upon pain of being declared a bankrupt on the petition of the injux-ed cred- itor or creditors. In re Sutherland, 1 N. B. R* 140; Deady, 344; Fed. Cas. 13,638. 27. A note given upon the consideration or with the intent specified in section 35 of" the act of 1867 is void even in the hands of a bona fide purchaser. Dalrymple v. Hillen- brand, 17 N. B. R. 434 27a. Under the act of 1867 an assignment for the benefit of creditors without prefer- ence under a state statute is an act of bank- ruptcy- Boese v. King, 108 U. S. 379. IV. Essential to Establish Peefee- ENCE. See Notice, 10, IV. (a) In General. 28. Actual fraud on the part of a creditor receiving an xmlawful preference is some- thing more than passive receipt of payment from an insolvent debtor, and the creditor must be an actor in the fraud. In re Parker et al., 19 N. B. R. 340; Fed. Cas. 10,721. 29. To constitute the fraudulent prefer* ence condemned by the bankrupt act, there must be guilty collusion. Clark, Ass., v. Ise- lin, 11 N. B. R. 337; 31 WaU. 360. 30. A defendant bought from a bankrupt,, shortly before commencement of proceed- ings, certain goods. The sale was made with evident intent to defraud creditors. In an action by the assignee to recover for the goods, it was held the burden of proof was on the plaintiff to show guilty collusion on the part of the defendants. Dickinson v. Adams, 17 N. B. R. 380; 4 Sawy. 257; Fed. Cas. 3,896. 3 i . The assignee, in proceedings to recover money or property obtained by way of a pref- erence, under the thirty-fifth section of the act of 1867, must not only show the act of the bankrupt of which complaint is made, but also make it manifest that the transfer was made with a view to give a preference over other creditors, and that the creditor so favored knew the person making the trans- fer was insolvent. Mays et al. v. Fritton, 11 N. B. R, 329; 30 WaU. 414 32. To render a conveyance within four months of the filing of a petition with a view to give a preference among creditors, or other- conveyance made within six months, void, it is necessary that the person taking tfie con- PREFERENCES, IV, (b). 383- veyanoe should know that it was made in fraud of the act in the one case, and to pre- vent the property from coming to the as- signee, or from being distributed under the act, in the other. Campbell, Ass.( v. White et al., 16 N. B. R. 93; 9 Ben. 166; Fed. Cas. 3,374 33. To make a transfer of demands and accounts a fraudulent preference it must be shown that the debtors were at the time solvent or contemplated insolvency; that they made the transfer with a view to giving a preference, and that the transferee had rea- sonable cause to believe the transferrer was insolvent, and knew that the transfer was in fraud of the prcJvisions of the bankrupt law. In re Broich et al., 15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1,921. 34. If one who, being bankrupt or insolv- ent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale or conveyance or transfer of money, or other property, estate, rights or credits, or give any warrant to confess judg- ment, or procure or suffer his property to be taken on legal process with intent to give a preference to one or more of his creditors, etc., he can, on the petition of one or more creditors, be declared a bankrupt. In re Pier- son, 10 N. B. R. 107; Fed. Cas. 11,153. 35. In an involuntary proceeding the knowledge or motive of the preferred cred- itor is immateriaL In re Oregon BuL Pr. & Pub. Co., 13 N. B. R. 503; 1 Cin. Law Bid. 87; Fed. Cas. 10,559. 36. It is not necessary to the invalidity of an act alleged to be preferential, which took place prior to December, 1873, that it shall meet the test imposed by the amendatory act of June, 1874. The limitation of the retro- action of section 13 of the latter act to the first day of December, 1873, excludes any other period for retroaction (1867). Oxford Iron Co. V. Slafter, Ass. etc., 14 N. B. R. 380; 13 Blatohf. 455; Fed. Cas. 10,637. (b) Reasonable OoMse to Infer InsoVo- enoy. 37. The mere acceptance of a preference by a creditor does not preclude him from proving his debt or receiving dividends. In addition the creditor must have reasonable cause to believe that the preference was- made or given by the debtor contrary to a provision of the act. In re Princeton, 1 N.^ B. R. 178; 3 Biss. 116; 1 Amer. Law T. Rep. Bankr. 125; Fed. Cas. 11,433. 38. In an action to avoid a conveyance by a bankrupt on the ground that it was mad& to prefer a creditor, held, that it must be shown that the grantee had reasonable cause to believe that the grantor was insolvent, and that the conveyance was in fraud of the bankrupt act. Barbour et al. v. Priest, Ass.,. 19N. B. R. 518; 103 U. S. 293. 39. To render a mortgage made by an in- solvent void as a preference, it must be af- flrmativelj' shown that the grantee had rea- sonable cause to believe that the grantor was insolvent at the time and that it was- made with intent to defeat the bankrupt law. Id. 40. It constitutes fraud for a debtor to- give a preference to a creditor within four- months prior to the filing of the petition in. bankruptcy, the debtor being insolvent and the creditor having reasonable cause to be- lieve him so. Kohlsaat v. Hoguet et aL, 5 N. B. R 159; 4 Ben. 565; Fed. Cas. 7,919. 41. A creditor who obtains a preference within four months, having reasonable cause to believe at the time that a fraud was in- tended and that the debtor was insolvent, loses both his preference and his chance to- prove his debt in bankruptcy. Bingham v, Richmond & Gills, 6 N. B. R. 137; Fed. Cas.. 1,415. 42. Ignorance of the law cannot avail; creditors who are possessed of facts that show the insolvency of the debtor, and a prefer- ence received under such circumstances is- fraudulent and void. Martin v. Toof et al., 4 N. B. R. 158; 1 Dill. 303; Fed. Ca;s. 9,167. 43. A creditor to whom a conveyance has been made by an insolvent debtor need not have absolute knowledge of the fact of in- solvency to defeat the conveyance, but only reasonable cause to know, — that is, that such a state of facts had been brought to his no- tice as would have led prudent business men to conclude that the debtor could not meet his obligations in the ordinary course of busi- ness. Toof V. Martin, 6 N. B. R. 49 ; 13 Wall. 40. 44. If a creditor had reasonable cause, when taking a preference, to believe tha- S84: PREFERENCES, IV, (b). ■debtor insolvent, it makes no difference what he thought or knew of the debtor's intention in giving the preference. Webb, Ass., v. Sachs et al., 15 N. B. R. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Gas. 17,325. 45 . Any agreement by an insolvent debtor with a creditor to create a preference is void if the latter have cause to believe the debtor insolvent, and he is afterwards proceeded against under the bankrupt act. Second JSTat. Bank v. Hunt, 4 N. B. R. 198; 11 Wall. 391. 46. Where a creditor is preferred in a set- tlement, the preference cannot be set aside unless it can be shown that the creditor re- ceiving it had reasonable cause to believe a fraud on the bankrupt law was intended. Oastle, Ass., v. Lee, 11 N. B. R. 80; Fed. Cas. 2,506. 47. A debtor who, at the execution of ah instrument to secure a creditor, requested to be allowed to secure other creditors in the same instrument, gives notice of the exist- ence of other creditors and of the debtor's inability to meet their demands. Lloyd, Ass. etc., V. Strobridge, 16 N. B. R. 197; 10 Chi. Leg. News, 1; 1 San Fran. Law J. 13; Fed. Cas. 8,435. 48. Where a judgment creditor had prob- able cause to believe the debtor insolvent, and that he suffered him to obtain judg- ment, execution and levy with intent to give him a preference in violation of the bank- rupt act, an injunction restraining a sale of real estate upon such execution will be re- tained. In re Bloss, 4 N. B. R. 37; Fed. Cas. 1,562. 49. A creditor who, having reasonable oause to believe his debtor insolvent, receives payment, has reasonable cause to believe he is obtaining a preference; but persons other than creditors dealing with an insolvent, even if they have reasonable cause to believe him so, are not on the same footing, as they do not necessarily enable the debtor to con- travene the act. Darby's Tr. v. Lucas, 5 N. B. R.437; Fed. Cas. 3,572. 50. Where a merchant suffers a judgment by default, this fact is at least suflBcient to put the creditor on inquiry as to the debtor's solvency, and he must be held chargeable with the knowledge he would have thus ob- tained. A preference obtained under such circumstances must be surrendered before the claim is provable. In re Forsyth v. Mur- tha, 7 N. B. R. 174; Fed. Cas. 4,948. , 51. In an action commenced before the passage of the amendment of June 22, 1874, a motion for new trial was made on the ground that the jury should have been in- structed that they must find that the party '■ knew " the act was done in fraud of the provisions, instead that he "must have had reason to believe. " Held, that where no other time is mentioned, the amendment shoidd apply only to cases arising after its passage, and that where under the old statute the jury would be warranted in finding that the party had "reason to believe," they would be justified in finding that he " knew " under the amendment (1867). Hamlin, Ass., v. Pet- tibone, 10 N. B. R. 172; 6 Biss. 167; 10 Alb. Law J. 141; 20 Int. Rev. Rec. 73; 1 Cent. Law J. 404; 31 Leg. Int. 293; Fed. Cas. 5,995. 52. A bank demanded of a depositor hav- ing a note just due and others maturing, that to obtain an additional loan he should sub- stitute small notes for the loan held by the bank and give small notes for the new loan to facilitate the obtaining of judgment for the amount of the debts. The new notes were payable immediately. The depositor had always been prompt in his payments. Held, that the bank had notice of his insolv- ency. Loudon, Ass., v. Nat. Bank, 15 N. B. R. 476; 2 Hughes, 420; Fed. Cas. 8,525. 5,3. A bill was filed by the assignee to set aside a deed given by the bankrupt on the ground that it was a fraudulent preference under section 35 of the act of 1867. A de- murrer was filed on the ground that the bill did not allege that the defendant knew a fraud was intended, as specified in the amend- atory act of June 22, 1874. The biU was filed in December, 1874, and the deed complained of was executed in December, 1878. The de- murrer was sustained. Singer, Ass., v. Sloan et al., 12 N. B. R. 208; 4 Dill. 110; 7 Chi. Leg. News, 231; 2 Cent. Law J. 218; Fed. Cas. 12,898. 53a. In order to invalidate a security taken by a creditor from an insolvent debtor, it is not sufficient that the creditor had some cause to suspect the insolvency of the debtor, but he must have such a knowledge of facts as to induce a reasonable belief thereof. Grant, Ass., v. First National Bank of Mon- mouth, 17 N. B. R. 498; 97 U. S. 80. PREFERENCES, V, VL 885 Y. Feaud Involved Defined. See Fkatjd, 39. 54. By the term "fraudulent preference," •used in item 9 of section 29, is meant only a preference in fraud of the bankrupt act, that is, contrary to its provisions (1867). In re Rosenfield, 1 N. B. R. 161; 7 Amer. Law Reg. (N. S.) 618; 1 Amer. Law T. Rep. Bankr. 81; Fed. Cas. 12,058. 55. The words "fraudulent preference," as >used in section 5110, Revised Statutes, do not import moral fraud, but merely mean that a payment shall have been made under cir^ ■cumstances which the law inhibits as a pref- ■erence. In re Seeley, 19 N. B. R. 1; Fed. Cas. 12,628. 56. A mere fraud on the bankrupt act by accepting a preference in violation of its provisions is not an actual fraud. In re Rior- -den, 14 N. B. R. 332; Fed. Cas. 11,852. VI. Intent. See Intent, 1-1 57. The intent to prefer may be inferred from the fact of preference. Rison v. Knapp, 4 N. B. R 114; 1 Dill. 186; Fed. Cas. 11,861. 58. It does not re^ut the intent to prefer to show that the debtor has also another mo- tive, namely, an expectation of future bene- fit to himself by means of future loans of money, and being enabled thereby to con- tinue his business. Id. 5 9 . To invalidate a transaction very slight •evidence of an affirmative character of the «xistence of a desire to prefer one creditor, •or of acts done with a view to such prefer- ence, may be sufficient. Sage v. Wyncoop, 104 TJ. S. 819. 60. To render a mortgage void it is not necessary that the debtor knew or believed himself insolvent. If insolvent in fact when he gives the mortgage, he gives it with the intention of giving a preference. Hall v. Wager & Fales, 5 N. B. R. 182; 5 West. Jur. 538; 3 Chi Leg. News, 401; 3 Biss. 28; Fed. Cas. 5,951. ' 61. Ad intent to prefer a creditor cannot be deduced as an inference from the mere fact of preference, as the debtor may believe himself solvent. Root et aL v. Mastick, 2 N. B. R. 163. 25 62. When the act which is made the act ot bankruptcy is a passive one, such as suffering property to be taken on legal process, when the debtor is insolvent, with intent to give a preference, if the natural and probable con- sequence of the act be to give the prefer- ence, it will be inferred that the debtor had such intent, and the burden of proof will be upon him to show the contrary. In re Black et al., 1 N. B. R. 81; 2 Ben. 196; 1 Amer. Law T. Rep. Bankr. 39; Fed. Cas. 1,457. 63. When an act is necessarily a prefer- ence, and insolvency is known, it is, per se, an intent to prefer or to defeat the act. Cur- ran V. Hunger, 6 N. B. R. 33; Fed. Cas. 3,487; Catlin V. Hoffman, 9 N. B. R. 342; 2 Sawy. 486; 21 Pittsb. Leg. J. 159; Fed. Cas. 3,521. 64. The transfer, by an insolvent debtor, of a large portion of his property to one cred- itor, with no provision for an equal distribu- tion to all his creditors, is a preference, and is conclusive evidence that a preference was intended, unless the debtor can show that at the time he was ignorant of his insolvency, and that he could reasonably expect to pay all his debts, and the burden of proof is on him and not on the assignee or contestant in bankruptcy. Toof v. Martin, 6 N. B. R. 49; 13 Wall 40. 65. The conveyance of the whole property of a debtor affords a very violent presump- tion of a fraudulent intent so far as existing creditors are concerned. In re Alexander, 4 N. B. R. 45; 1 LoweU, 470; 18 Pittsb. Leg. J. 81; 3 Amer. Law T. Rep. 280; 1 Amer. Law T. Rep. Bankr. 238; Fed. Cas. 161. 66. If, after deducting the property which ' is the subject of the voluntary settlement, sufficient available assets be not left for the payment of the settlor's debts, the law infers intent to defraud. Sedgwick, Ass., v. Place et al., 5 N. B. R. 168; 5 Ben. 184; 3 Chi. Leg. News, 409; 4 Amer. Law T. Rep. (U. S. Cts.) 179; 6 Amer. Law Rev. 181; Fed. Cas. 12,630. 6 7 . Procurement to take in execution may be inferred from such relationship between ' the debtor and creditor, and apparent con- cert of action on their part, as would ordina- rily be incompatible with any other inten- tion on the part of the debtor than that of giving a preference. In re Dunkle et aL, 6 N. B. R. 73; Fed. Cas. 4,160. 68. A bankrupt exchanged with a cred- 386 PREFERENCES, VL itor two time notes and a chattel mortgage for demand notes. Held, that this was such an unequal exchange as to show intent to prefer. Waring, Ass., v. Buchanan et aL, 19 N. B. R. 502; Fed. Cas. 17,176. 69. Inasmuch as every man is presumed to intend the necessary consequences of his acts, a debtor who has paid one creditor to the exclusion of others cannot be heard to say that he did not intend to give a prefer- ence. Judgment' may be given against a respondent whose answer sets up no other matter of defense than the denial of the in- tent, as iipon failure to answer. In re Silver- man, 4 N. B. R. 173 ; 3 Abb. (U. S.) 243 ; 1 Sawy. 410; 13 Int. Rev. Rec. 53; Fed. Cas. 13,855. ' 70. If a debtor suffer a creditor to do acts which will secure a preference and know the consequences, he intends them, because he can prevent them by using the means provided to effect an equal distribution of his property among his creditors. Warren V. Tenth Nat. Bank et al., 7 N. B. R 481; 10 Blatchf. 493; Fed. Cas. 17,203. 71. Very slight circumstances indicating the existence of an afiGlrmative desire on a bankrupt's part to give a preference or to defeat the operation of the act may, by giv- ing color to the whole transaction, make void a lien against his property. Wilson v. Bank, 9 N. B. R. 97; 17 Wall. 473. 72. When the issue to be decided is whether a, judgment against an insolvent was obtained with a view to give a prefer- ence, the intention of the bankrupt is the turning point, and all the circumstances which go to show such intent should be con- sidered. Little, Ass., V. Alexander, 13 N. B. E. 134; 21 Wall. 500. 73. In an action to recover that which has been conveyed as a preference under the bankruptcy act, the burden of proof is on the assignee, but the intent of the parties may be inferred from their acts. Parsons v. Topliff, 14 N. B. R. 547. 74. In an issue of fact to determine whether the respondent had, when insolv- ent, conveyed certain property to a creditor as a preference, the court instructed the jury that, to constitute a fraudulent preference, insolvency and an intent to make such pref- erence must both exist. In re Miller v. Keys, 3 N. B. R. 54; Fed. Cas. 9,578. 75. The rule that every one is presumedf to contemplate the necessary consequences- of his acts is a presumption of fact, and where there are circumstances tending to- show that a party did not, in paying a cred- itor, intend to prefer him, the question as tO' the actual intent may be left to the jury, notwithstanding the party was insolvent,, and the necessary effect of his payment was to prefer. In re Seeley, 19 N. B. R. 1; Fed. Cas. 13,638. 76. Where it is shown that persons ef- fecting transfers of property with a debtor had no intention of obtaining preferences, or the debtor of giving them, such transfers are not void under the bankrupt act. Harman- son, Ass., V. Bain et al., 15 N. B. R. 173; 1 Hughes, 188; Fed. Cas. 6,072. 77. The bankrupt act of 1867 does not pro- hibit a person from loaning money at legal rates to one whom he has reason to believe- to be insolvent, and taking security for such loan, provided it be made bona fide and with- out any intent, or participation in any in- tent, to defraud creditors ordefeatthe bank- rupt act. Darby's Trustee v. Boatman's Sav. Inst, 4 N. B. R. 195; 1 Dill. 141; 8 Chi. Leg.- News, 349; 4 Amer. Law T. 117; 1 Leg. Op. 146; 1 Amer, Law T. Rep. Bankr. 251; Fed- Cas. 3,571. 78. A banker had permitted paper secured by a deed of trust to remain past due, and it came into the possession of a savings insti- tution, by whom the realty was sold. Held, that although the defendant had reasonable cause to believe the banker insolvent, the latter's action was not intended to contra- vene the bankrupt act. Darby's Trustees v.. Lucas, 5 N. B. R. 437; Fed. Cas. 3,572. 79. Where an insolvent debtor honestly believes that he shall be able to go on in his business, and with such belief pays a just debt without a design to give a preference, such payment is not fraudulent, although bankruptcy should subsequently ensue. In re Gregg, 4 N. B. R. 150; Fed. Cas. 5,797. 80. The question being in each case whether there was an intent to prefer, there may be cases in which the evidence of a real and honest intention not to stop payment may make valid a security given partly for money previously advanced, if coupled w^ith sufficient present advantage to the debior to- PREFERENCES, VII. 38? relieve the case of any fraudulent appear- ance. Ex parte Ames, In re McKay and Aldus, 7 N. B. R 330; 1 Lowell, 561; Fed. Cas. 333. 81. An intent to evade the bankrupt act is not evinced by taking steps to obtain sat- isfaction by the ordinary course of law, even with knowledge on the part of the creditor that his debtor is insolvent; and in the ab- sence of further facts, the party finet obtain- ing possession of property can hold it against interference by the bankrupt court. Apple- ton V. Bowles et aL, 9 N. B. R. 354 82. The intent to obtain a preference, accompanied by acts to accomplish it, but which entirely fail, so that no preference is received, does not come within those provis- ions of the bankrupt act which impose pen- alties upon creditors who knowingly receive a preference. In re Bousfield & Poole Mfg. Co., 16 N. B. R. 489; Fed. Cas. 1,703. 83. Where a creditor has secured judg- ments by default against a debtor whom it knew was insolvent, such judgments can only be sustained upon very close and satis- factory proofs to repel the legal presumption of actual or legal intent to give and to obtain a preference. Warren v. D., L. & W. Ry. Co., 7 N. B. R. 451; 5 Chi Leg. News, 305; 4 Leg. Op. 533; Fed. Cas. 17,194 VII. Not FOEBIDDEIT. 84. A fraudulent conveyance made, or a fraudulent preference given, before the pas- sage of the bankrupt act, is neither of them a good ground on which to oppose a dis- charge. Such a conveyance or preference does not come within the terms of section 39 of the act (1867). In re Rosenfield, 1 N. B. R. 161; 7 Amer. Law Reg. (N. S.) 618; 1 Amer. Law T. Rep. Bankr. 81; Fed. Cas. 13,058. 85. Preferences created by United States laws are alone protected by section 38 of the bankrupt act (1867). In re Stuyvesant Bank, 9 N. B. R. 318; 1 Cent. Law J. 83; Fed. Cas. 18,584 86. An insolvent debtor paid money due the government, within four months before filing his petition in bankruptcy, to the agent of the government, who had reasonable cause to believe that he was insolvent. Held, that payments to the government, although with Intent to give a preference, are not forbidden by the bankrupt act. Tiffany et al., Ass., v. Morrison, 18 N. B. R 365. 87. When not absolutely prohibited by the bankrupt act, liens and preferences are en- titled to the same protection from the bank- rupt courts as other legal rights. Barron et al. V. Morris, Ass., 14 N. B. R..371; Fed. Cas. 1,055. 88. After the lapse of four months the simple preferences which an insolvent debtor may have made are to be held valid as against all the world so far as the preferred creditor is concerned. Potter et aL v. Cog- geshall, 4 N. B. R. 19; Fed. Cas. 11,333; In re Dow, 6 N. B. R. 10; Fed. Cas. 4,036. 89. A creditor may obtain a preference from an insolvent debtor with knowledge of the insolvency, if within the limitation pre- scribed by law, but the possession must be obtained by a complete act within the lim- itation. In re Foster, 18 N. B. R. 64: 10 Chi. Leg. News, 315; Fed. Cas. 4,964 90. A bankrupt transferred property to his wife, to whom he was indebted, preferring her above other creditors. Held, that the trans- fer was valid. Van Kleeok, Ass., v. Miller et al., 19 N. B. R. 484; Fed. Cas. 16,860. 91. A claim which falls short in any par- ticular of being within the statutory rule as to preference can have no standing in equity, as all valid preferences must rest either on a lawfully acquired lien, created before the iiling of a petition, or else the consideration therefor must have been unequivocally in aid of the assignee after adjudication, or in aid of the proceeding in bankruptcy. In re Nounnan & Co., 7 N. B. R. 15. 92. A mortgage executed by a debtor be- fore becoming insolvent, and not in contem- plation of bankruptcy, to secure to a creditor the payment of a 'debt previously contracted, although made with the intent to prefer said creditor, is not prohibited by section 39 of the act (1867). Dunham v. Welch, 3 N. B. R. 9; 3 Ben. 488; 1 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 4,143. 93. A payment by a debtor who is insolv- ent, more than four months before the filing of the petition in bankruptcy by or against him, although made to the creditor by way of preference, will be sustained as against the assignee under the first clause of the thirty-fifth section of the bankrupt act of 1867. Maurer v. Frantz, 4 N. B. R. 143. PREFERENCES, VIII, IX, (a). YIIl. Obtained bt Bank. See Banks, VIL 94. A bankrupt, having a deposit in the bank which held his note, gave to it his check for the amount so deposited, which was cred- ited on the note. Held, a preference and void. Traders' Nat. Bank v. Campbell, 6 N. B. E. 353; 14 Wall 87. 95. Where a creditor, a bank, collects money due the bankrupt and gives the same to the sheriff, who applies it on the bank's judgment, a case of set-ofl does not arise, but the act is a fraudulent preference and the money can be recovered by the assignee. Id. 96. When a banker, according to his cus- tom, charges his depositor in his deposit ac- count for the notes or other obligations as they fall due, the transaction is valid only as between the banker and depositor, but if the depositor become bankrupt it might consti- tute an unlawful preference. In re Warner et al., 5 N. B. R. 414; Fed. Cas. 17,177. 97. Where a bank took a deed from a de- positor to secure it for an amount for which the depositor's account was overdrawn, knowing that he was unable to pay the over- draft, the deed was set aside as a fraudulent preference. Alderdice, Ass., v. State Bank of Virginia et al., 11 N. B. R. 398; 1 Hughes, 47; Fed. Cas. 154 98. A bank bought some of its own stock, and, having no right to hold it in its own name, parceled it out among the directors, one of whom gave his note. It was trans- ferred to him on the books and he received the dividends, but the bank retained the certificate. He became insolvent and trans- ferred the stock to the bank's teller, but the bank retained the note as an asset. The assignee brought an action to set aside the transfer as a preference. Held, that the bankrupt was not the owner of the shares, as the bank had no stock to convey. Meyers, Ass., V. Bank, 18 N. B. R. 84; Fed. Cas. 9,519. 99. A savings bank claimed a preference by way of first lien on the assets of an in- solvent state bank created under a New York state statute, which provided " that upon its becoming insolvent, after paying its circula- tion, the assets should be first applied to pay- ing deposits made with it by savings banks." Held, that such provision was a mere rule of distribution in insolvency, creating no lien, and that such preferences are not pro- tected by the bankrupt act, but are repealed thereby. In re Stuyvesant Bank, 9 N. R E. 318; 1 Cent. Law J. 83; Fed. Cas. 13,584 IX. Obtained Undee Legal Peooess. See Insolvency, 41. (a) Judgment — In General. 100. Congress must be regarded as having intended, by the use of the words "insolv- ency" and "contemplation of insolvency" and " suffer," to strike at the root of all pref- erences, when the debtor is insolvent, or in contemplation of insolvency, by the taking of the debtor's property on legal process, whether the taking be by act of procurement or act of sufferance, where there is an intent to give such preference, and the creditor has reasonable cause to believe the debtor insolv- ent. In re Black et aL, 1 N. B. R. 81; 2 Ben. 196; 1 Amer. Law T. Rep. Bankr. 39; Fed. Cas. 1,457. 101. After an act of bankruptcy, of which a creditor has full knowledge, he cannot ob- tain a valid lien on the bankrupt's property in a state court to the exclusion of the other creditors (act of 1841). Shawhan v. Wher- ritt, 7 How. 627. 102. Since the amendment of June 23, 1874, it is not an act of bankruptcy for an in- solvent debtor to "suffer" his property to be taken on legal process with intent to give a preference. The debtor being insolvent must " procure " his property to be taken on legal process with intent to give a preference or to defeat or delay operation of the act (1867). In re ScuU, 10 N. B. R 165; 10 Alb. Law J. 214; 1 Amer. Law T. Rep. 416; 30 Int. Rev. Rec. 80; 22 Pittsb. Leg. J. 84; Fed. Cas. 12,568. 103. Proceedings in bankruptcy dissolve an attachment issued within four months immediately preceding the commencement of such proceedings. DuflSeld, Ass. etc., v. Horton et al., 19 N. B. R. 13. 104. A creditor, with reasonable cause to believe that a corporation, his debtor, was in- solvent, sued it in a state court, with a view to secure payment, without regard to other creditors, knowing that, if he obtained pay- ment in full, it must be at the expense of the PREFERENCES, IX, (a). 389 ■other creditors, and that he would secure a preference. Held, that a preference so ob- tained could be set aside at the suit of the assignee in bankruptcy of the corporation. Smith Y. Buchanan et aL, 4 N. B. R. 133; 8 Blatchf. 153; 8 Alb. Law J. 97; Fed. Cas. 18,016. 105. Almost the entire capital of a debtor was money borrowed from his brother, who brought suit for an amount that would nec- essarily absorb the whole of it. Circumstan- tial evidence showed that the suit, apparently antagonistic, was collusive, the debtor being at the time insolvent, and the brother having reasonable cause to believe him so. The lien thus created was held void. In re Bater, 14 N. B. E. 433; 14 Alb. Law J. 394; Fed. Cas. 763. 106. A bankrupt gave a creditor new se- curities of much greater value, and the means of obtaining, by judgment and levy, a lien on his property, with intent to prefer him. Meld, that the rule that exchange of securities is not a preference did not apply. Waring, Ass. etc., V. Buchanan et al., 19 N. B. R. 503; Fed. Cas. 17,176. 107. Where a debtor is a son of a cred- itor and actively contributes to having a judgment reduced before it could have been done otherwise, held, that it is procuring his goods to be taken on execution within the meaning of the bankrupt act. Rogers, Ass., V. Palmer, 19 N. B. R. 471; 103 U. S. 263. 108. A creditor, knowing his debtor to be insolvent, recovered judgment against him, and caused execution and levy under which the personal property was sold. On petition of the debtor's assignee, held, that the debtor had committed an act of bankruptcy, and that the creditor had accepted a preference and should not be allowed to prove his debt. In re Davidson, 3 N. B. R. 106; 4 Ben. 10; Fed. Cas*. 8,599. 109. A judgment obtained within four months before the filing of a petition in bankruptcy, in proceedings to subject a fund to the payment of a judgment against the bankrupt, is void; and the judgment creditor, having received the fund, less the costs of his action, is liable for the whole amount. Street v. Dawson, 4 N. B. R. 60; 2 Bait. Law Trans. 369; Fed. Cas. 13,533. 110. The taking of property on attach- ment or execution is receiving a preference. The mere obtaining of judgment, however, is not. In re Stevens, 4 N. B. R. 132; 4 Ben. 513; Fed. Cas. 13,391. 111. A court will not permit a collusive agreement between the parties to a suit, in view of the impending bankruptcy of one of them, whereby the other party may absorb property that otherwise would go to the gen- eral creditors. Samson, Ass., v. Burton et al., 5 N. B. R. 459; 5 Ben. 343; Fed. Cas. 13,386. 112. An insolvent substituted small notes payable immediately, for larger ones held by his bank, with intent to give a preference. This enabled the bank to obtain judgment and levy on his property more readily. The bank knew of the insolvency and demanded the substitution as a condition to a further loan. Judgment was obtained and the prop- erty seized. Held, that the preference was void, and that the amount realized on sale under execution must be paid to the assignee. Loudon, Ass., v. First Nat. Bank, etc., 15 N. R R. 476; 2 Hughes, 430; Fed. Cas. 8,525. 113. A state ordinance of North Carolina gave a preference to new debts over old, and thereafter a father gave to his son a new note to take the place of an old one, and thereon judgment was procured. Within four months thereafter a petition in bank- ruptcy was filed regarding the father. Held, the transaction constituted a preference. Little, Ass., V. Alexander, 12 N. B. R. 134; 21 Wall. 500. 114. A respondent gave his note and caused it to be sued upon for the purpose of preventing an attachment by the payee. Held, that it was an attempt to prefer such creditor. In re Williams, 3 N. B. R. 74; 1 Lowell, 406; Fed. Cas. 17,703. 115. A bankrupt gave new notes signed by himself in exchange for others secured by others, toward whom he and the payee were friendly, on which to be sued, and procured goods on credit from parties to whom his in- solvency was unknown, in addition to his stock, that they might be taken in execution for his debt. The creditor to whom the new notes were given recovered judgment and issued execution. Held, that the debtor pro- cured the execution to give preference to the creditor. Sage, Jr. v. Wynkoop, 16 N, B. R. 363; Fed. Cas. 13,215. 390 PREFERENCES, IX, (b), (o). 1 16. A bankrupt having suffered his prop- erty to be taken by legal process with intent to give a preference, the assignee obtained an order requiring the property levied on to be delivered into his hands. Held, that the proceeding by summary petition and order to show cause was irregular, and that it should have been by suit at law or bill in .equity. In re Ballou, 3 N. B. R. 177; 4 Ben. 135; Fed. Cas. 818. 117. On prayer of one partner to the state court, a receiver was appointed to take pos- session of the partnership property and dis- pose of it for the benefit of all concerned. Held, a taking under legal process. Hardy et al. V. Clark & Bininger, 8 N. B. R. 99; 3 Amer. Law T. Rep. Bankr. 11; 17 Pittsb. Leg. J. 61; 3 Chi. Leg. News, 131; 1 Amer. LawT. Rep. Bankr. 151; 7 Blatchf. 363; Fed. Cas. 6,058. 118. The taking of the property of insolv- ent traders, by a receiver appointed by a state court, is a taking under legal process, within the meaning of section 39 of the bank- rupt act of 1867. Hardy et al. v. Bininger et aL, 4 N. B. R. 77; Fed. Cas. 6,057. (b) Confession of Judgment. 119. An insolvent debtor commits an act of bankruptcy by confessing judgment and allowing his property to be taken on an exe- cution issued thereon, with intent to give a preference to a creditor. His insolvency or contemplation of insolvency must be averred and shown. In re Craft, 1 N. B. R. 89; 2 Ben. 214; Fed. Cas. 3,316. 120. If made with a view to prefer the creditor, it is an unlawful preference for an insolvent debtor to confess judgment, if it be actually followed by execution and seiz- ure. Webb, Ass., v. Sachs et al., 15 N. B. R. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Cas. 17,335. 121. A debtor, being insolvent, confessed a judgment and procured and suffered his property to be taken on legal process, with intent to give a preference, the creditor, by his agent, knowing at the time of the giv- ing of the preference that the debtor was insolvent. Held, that such creditor could not prove his debt when the debtor was adjudged a bankrupt within six months of the giving of the preference, on the peti- tion of the creditor. In re Walton, 4 N. B. R. 154; Deady, 598; 3 Amer. Law T. 131; 1 Amer. Law T. Rep. Bankr. 163; Fed. Cas. 17,130. 122. A debtor confessed a judgment with- in four months previous to the filing of the petition against him, being at the time in- solvent, and the creditor having reason to believe him so, though there was as a consid- eration a pre-existing debt. Heid, to be in fraud of the bankrupt act of 1867. Vogel v. Lathrop, 4N. B. R. 146; 18 Pittsb. Leg. J. 106; Fed. Cas. 16,985; 3 Pittsb. Rep. 368. 123. A confession of judgment entered prior to June 1, 1876, but after the approval of the bankrupt act of 1867, is a fraudulent preference if both parties knew of the debt- or's insolvency. Traders' Nat. Bank v. Camp- bell, 6 N. B. R. 353; 14 Wall. 87. 124. A judgment confessed by a debtor, who, being a, merchant or trader, is unable to pay his debts in the ordinary course of trade, in favor of a creditor who knows of such in- ability^ is a fraudulent preference, and the assignee may recover by summary proceed- ings the value of property sold under ex- ecution issued thereon (1867). Wilson, Ass., V. Brinkman, 3 N. B. R. 149; 1 Chi Leg. News, 193; 2 Amer. Law T. Rep. Bankr. 65; Fed. Cas. 17,794. 125. A confession of judgment and the execution of a chattel mortgage by an in- solvent debtor for the benefit of a creditor who knows, or has reasonable cause to be- lieve, the debtor insolvent, is a fraudulent preference and deprives such creditor of the right to prove his claim, notwithstanding he may disclaim any benefit to accrue from and surrenders to the assignee such judgment and chattel mortgage. In re Coleman, 3 N. B. R. (8 vo. ed.) 172; 7 Blatchf. 192; Fed. Cas. 2,979. (c) Suffering Judgment. 126. The words of section 39 of the act of 1867, in defining the act of bankruptcy, being " bankrupt or insolvent, or in contemplation of bankruptcy or insolvency," if the debtor be in any of these conditions when he makes the transfer of his property, or procures or suffers it to be taken on legal process with PREFERENCES, IX, (d). 391 intent to give a preference, he commits an act of bankruptcy, and the assignee may re- •cover the property. In re Black et al., 1 N. B. R. 81; 2 Ben. 196; 1 Amer. Law T. Rep. Bankr. 39; Fed. Cas. 1,457. 127. When a firm is insolvent, it is an act of bankruptcy for a member thereof to suffer its property to be taken on legal process with intent to give a preference to a creditor of the firm. Id. 128. Passive acquiescence in the seizure of his property in execution by an insolvent debtor, when he could prevent it by going into voluntary bankruptcy, is suffering it to be taken with intent to give a preference, and the act is therefore void. In re Lord, 5 N. B. E. 318; Fed. Cas. 8,503; Haskell, Ass. etc., v. Ingalls, 5 N. B. E. 205; 1 Hask. 341; Fed. Cas. '€,193; In re Wells, 3 N. B. R. 95; 2 Chi. Leg. News, 49; Fed. Cas. 17,388. 129. A person suffers that to be done -which he has the power to prevent and does not; therefore an insolvent debtor who does not go into volimtary bankruptcy, but against ■whom a judgment by default is obtained, suffers his property to be taken in execution with intent to give a preference, although "the judgment was obtained against his will. In re Forsyth et al., 7 N. B. R. 174; Fed. Cas. 4,948. 130. Passive acquiescence in the seizure of his property in execution by an insolvent debtor, when he could prevent it by going into voluntary bankruptcy, amounts to suf- fering it to be taken with intent to give a preference within the meaning of section 39 of the bankrupt act of 1867. Vogel v. Lathrop, 4N. B. R. 146; 8 Pittsb. Rep. 268; 18 Pittsb. Leg. J. 106; Fed. Cas. 16,985. 131. Where an officer of a corporation knew of its insolvent condition, and suffered judgments to be taken and executions to be issued and levied, one after another for many weeks, by one creditor, without giving notice to others that they might institute pro- ceedings in bankruptcy, he cannot be allowed to say that he did not intend to give a pref- •erence. Warren v. D.. L. & W. Ry. Co., 7 N. B. R 451; 5 Chi. Leg. News, 205; 4 Leg. Op. 533; Fed. Cas. 17,194. 132. A judgment was obtained, for want of an answer, against an insolvent debtor, being docketed in the lien docket, so as to t)ecome a lien upon such debtor's real proj)- erty. Held, that the creation of such lien was with the implied consent of the debtor, and therefore void, under the first clause of section 35 of the act of 1867, as a) transfer by him to the creditor. Catlin v. Hoffman, 9 N. B. R. 342; 2 Sawy. 486; 21 Pittsb. Leg. J. 159; Fed. Cas. 2,521. 133. A mercantile firm had no property but their stock in trade, and, being pressed for payment, replied that they were unable to pay. Thereupon suit was brought and judgment obtained by default, less than four months prior to their petition in bankruptcy. Held, the assignee should recover. Wilson, Ass., V. Bank, 5 N. B. R. 270. 134. Where a bankrupt had absconded, and suits had been commenced against him by attachment of his property and publica- tion of the summons, and he met a creditor and his own attorney in Canada, at Niagara Falls, and accompanied them to the Ameri- can side, where the summonses were served on which judgments were entered, held, that he had procured the property to be seized with intent to give a preference, and that the judgments were therefore void. Beattie V. Gardner et al., 4 N. B. R. 106; 4 Ben. 479; Fed. Cas. 1,195. (d) W(M''r(m,t of Attorney. See PowEE OP Attorney, H 135. Where a creditor holding a war- rant to confess judgment causes execution thereon after notice of facts making it rea- sonable to believe the debtor is insolvent, he is guilty of intending a fraud upon the bank- rupt act. Golson et al. v. Neihoff et al., 5 N. B. R. 56; 2 Biss. 434; Fed. Cas. 5,524 136. Preference by means of a judgment note is not obtained until execution thereon. Id. 137. A power of attorney to confess judg- ment is a security within the meaning of the act of 1841, and if given in contemplation of bankruptcy can be set aside on the suit of the assignee. The execution of such a power of attorney is not of itself an act of bank- ruptcy if done unwillingly. Buckingham v. McLean, 13 How. 151. 138. In bankruptcy proceedings, it ap- peared that a judgment was entered upon bankrupt's warrant of attorney to confess. 392 PEEFERENCES, IX, (d). Held, a preference. Zahm t. Fry et al., 9 N. B. R. 546; 10 Phila. 243; 31 Leg. Int. 197; 31 Pittsb. Leg. J. 155; Fed. Cas. 18,198. 139. Where the debtor does the least act whereby a preference is facilitated, as where a judgment is entered upon his warrant of attorney to confess, the transaction is void. Id. 140. Evidence that the debtor signed and delivered to the defendants a judgment note, payable one day after date, giving them the right to enter the same of record, and issue execution thereon without delay for a debt not then due, affords a strong ground to pre- sume that the debtor intended to give the creditor a preference, and that the latter in- tended to obtain it; and it is wholly immate- rial whether the preference was voluntary or was given at the urgent solicitation of the creditor. First Nat. Bank of Clarion v. Jones, Ass., 11 N. B. E. 381; 21 Wall. 825. 141. Where a creditor secures judgment on a judgment note, execution is issued and property is seized and sold, the measure of damages is the value of the property so sold. Id. 142. Where a debtor has given a judg- ment note to one of his creditors who has taken judgment on the note and so obtained a preference, it is wholly immaterial whether the course pursued by the judgment creditor in entering the judgment and issuing exe- cution was expected or unexpected to the debtor, as he had given him power to do what he did in spite of every opposition which he could make. Id. 143. Warrants were held by near rela- tions of a bankrupt and he had stated to cred- itors that they could make nothing by push- ing, as his relations had judgments and he should protect them first, and also that his relations entered their judgments and is- sued executions thereon immediately on learning of the bankrupt's condition. Held, that the executions were procured by bank- rupt. Shimer, Ass., v. Huber et al., 19 N. B. E. 414; 14 Phila. 403; 36 Leg. Int. 339; 8 Re- porter, 398; Fed. Cas. 13,787. 144. A member of an insolvent firm, hav- ing knowledge of the insolvency, at the re- quest of a creditor holding the firm's judg- ment note, unwillingly carried a message from the creditor to an attorney, directing him to enter judgment on the note. Held, that he had procured entry of judgment. In re Benton & Bra, 16 N. B. R. 75; 8 Wkly. Notes Cas. 547; Fed. Cas. 1,333. 145. Where one creditor obtained notes with warrant of attorney to confess judgr ment and did so confess judgment and is- sued execution and made a levy, knowing the debtor was insolvent, he obtained a pref- erence which would be set aside. In re Her- pioh, 15 N. B. R. 436; 7 Biss. 387; 9 Chi. Leg. News, 258; 4 Law & Eq. Rep. 39; Fed. Cas. 6,418; In re Terry et aL, 4 N. B. R. 38; 2 Biss. 356; 3 Chi. Leg. News, 106; Fed. Cas. 18,885 j^ Campbell v. Traders' Nat. Bank, 3 N. B. E. 124; 2 Chi Leg. News, 148; 1 Md. Law Rep. 169; 3 Biss. 433; Fed. Cas. 2,370. 146. Notes with cognovit to confess judg- ment thereon by an insolvent debtor to a. creditor who had refused him further credit, and a few days later caused judgment to be- entered and execution issued thereon, con- stitute a fraudulent preference. Haughey, Ass., V. Albin, 2 N. B. R. 139; 3 Bond, 244; 2 Amer. Law T. Rep. Bankr. 47; Fed Cas. 6,222. 147. A warrant of attorney to confess judgment given by debtors who know them- selves to be insolvent, and suffer their prop- erty to be levied on by virtue of an execution issued thereon, with intent to give a prefer- ence thereby to creditors, is an act of bank- ruptcy. In re Dibble, 2 N. B. R 185; 3 Ben. 288; 1 Chi. Leg. News, 855; Fed. Cas. 3,884. 148. A warrant of attorney to confess judgment on a promissory note, payable one day after date, executed by an insolvent debtor in satisfaction of an indebtedness pre- viously contracted, is a fraudulent prefer- ence, and a levy by virtue of an execution issued upon a judgment entered by such con- fession is void. Fitch v. McGie, 3 N. B. R. 164; 3 Amer. Law T. Rep. Bankr. 80; Fed. Cas. 4,835. 149. Where one constituted attorney for the collection of a debt procured from the debtor a judgment note for the amount ia his own name, and entered it, knowing the debtor was insolvent, there being a clear in- tent to give a preference, though the fact of insolvency was not directly known to the- real creditors, such knowledge is imputable to them and the judgment is invalid. Vogel v. Lathrop, 4 N. B. E. 146; 8 Pittsb. Rep. 268;: 18 Pittsb. Leg. J. 106; Fed. Cas. 16,985. PREFERENCES, X, XI. 393 X.' Obtained Theouqh Patment. See Payment, L 150. A payment made by a debtor to a creditor who has committed an act of bank- ruptcy, and against whom proceedings in bankruptcy have been instituted, but who has not yet been adjudged a bankrupt, will not be valid in the event of an adjudication of bankruptcy in such proceedings if the pay- ment transpired subsequent to the filing of the petition. Opinion of Attorney-General, 9 N. B. R 117. 1 5 1 . A payment of debtors who are insolv- ent and contemplating bankruptcy is a fraud- ulent preference and an act of bankruptcy, notwithstanding it is made on a fiduciary debt. In re Dibble, 3 N. B. R 185 ; 3 Ben. 283 ; 1 Chi Leg. News, 355; Fed. Cas. 3,884. 152. A payment by an insolvent debtor is a preference, although made to a holder of a note over due, on which the liability of the solvent indorser has been fixed by pro- test and notice. Bartholow v. Bean, 10 N. B. R 241; 18 WaU. 635. 153. A payment by a debtor who knows that he is insolvent, by procuring an order for material from a creditor for the express purpose of discharging the indebtedness, is a fraudulent preference. Farrin v. Craw- ford et al., 2 N. B. R 181; 7 Chi Leg. News, 343; Fed. Cas. 4,686. 154. A debtor's liabilities exceeded his assets, and he had ceased to meet his liabili- ties as they came due, but for a month he continued business and paid money to two- creditors, neld, such payment constituted a preference that defeated a discharge under section 29 (1867). In re Warner et al, 5 N. B. R 414; Fed. Cas. 17,177. 155. A debtor who has grounds for be- lieving that he is insolvent, and, acting on such belief, makes a payment to one creditor two days prior to his failure, is not entitled to a discharge in bankruptcy, such payment being a preference of such creditor over the others. In re Doyle, 3 N. B. R 158; Fed. Cas. 4,051. 156. An indorser of a bankrupt note, who, having reasonable cause to believe the maker insolvent, receives from him money to secure his liability as indorser, accepts a preference in fraud of the bankrupt act, and the amount so paid may be recovered by the assignee. Ahl, Jr., et al. v. Thomer, 3 N. B. R 39; 3 Bond, 287; 16Pittsb.Leg. J.78; 2Amer.Law T. 104; 1 Chi Leg. News, 387; 1 Amer. Law T. Rep. Bankr. 139; Fed. Cas. 103. 157. The proposition is untenable thf^t a debtor ceases to be insolvent because, being unable to pay his debts in the regular course of business, his creditors have agreed to ex- tend the time of payment; or that the pay- ment of the debt by one who is insolvent cannot be regarded as a preference if made with the expectation that he will be able eventually to pay all his debts in f uli Eison V. Knapp, 4N. B. R 114; 1 Dili 186; Fed. Cas. 11,861. 158. A debtor whose assets consisted of a stock of small value, a small quantity of in- cumbered land, half of which he had ex- empted under the state homestead law, a lot of small value, and book accounts and notes, the value of all being greatly less than his indebtedness, borrowed upon his stock in trade and his homestead, and discharged a prior indebtedness therefor, and later paid a creditor the amount of his debt from his- stock. Held, these transactions constituted a fraudulent preference, and were sufficient ground for withholding a discharge. In re Gay, 3 N. B. R 114; 1 Hask. 108; 1 Amer. Law T. Eep. Bankr. 73; 2 Amer. Law T. Rep. Bankr. 52; Fed. Cas. 5,279. XI. Obtained TJndee Peessuee. See Deed, 1. 159. The fact that an assignment to one creditor is made under pressure does not ameliorate the fact that it is a preferenc& over other creditors. In re Batchelder, 3 N,. B. R 37; 1 Lowell, 873; Fed. Cas. 1,098. 160. The fact that an assignment or trans- fer of goods to a creditor was made to avert a threatened attachment does not save such transaction from being an illegal preference, if such was its effect. Id. 161. A forced assignment of all property to a creditor is a preference and an act of bankruptcy, and such creditor is charged with knowledge of the insolvency of the as- signor. Grow, Ass., V. Ballard et al., 2 N. Bi. R. 69; 1 Amer. LawT. Rep. Bankr. Ill; Fed. Cas. 5,848. 394 PREFERENCES, XII, XIII, (a). 162. If a trader be insolvent and know- that fact, and one of his creditors knowing the fact presses him for payment, and such payment be made, the transaction is a fraud upon the bankrupt act and the other credit- ors of the debtor. Rison v. Knapp, 4 N. B. R. 114; 1 Dill. 186; Fed. Cas. 11,861. 1 6 3 . A bankrupt being indebted to a bank, and having funds there, committed forgery. The bank hearing of it compelled an imme- diate transfer of the funds to it, and also at- tached moneys belonging to him in other banks. The bank knew of his insolvency. Held, to be preferences. West Phila. Bank V. Dickson et al.. Ass. etc., 17 N. B. E. 483; ■95 U. S. 180. 164. Whether a preference be voluntary •or involuntary, or by reason of threats or co- ercion, is wholly immaterial. Strain v. Gour- din et al., 11 N. B. E. 156; 3 Woods, 380; Fed. Cas. 13,531. 165. The bankrupt procures his goods to be taken in execution when the initiation of the proceedings comes from him, he being the person who begins to procure, when he causes the thing to be done, in the ordinary sense of the word. The signing under strong pressure of a warrant to confess a judgment is suffering, and not procuring, goods to be taken in execution. In re Black et al., 1 N. ■B. E. 81; 3 Ben. 196; 1 Amer. Law T. Rep. Bankr. 89; Fed. Cas. 1,457. XII. Obtained Thkottgh Sale. See Sales, 45, 46, 73, 133. 166. A sale or transfer by a bankrupt of property to his brother, who was aware of the bankrupt's insolvency, in payment of a debt due to him, although such sale and transfer were necessary to save the property from destruction, is a fraudulent preference. Brock V. Terrell, 3 N. B. E. 190; 1 Chi. Leg. News, 349; Fed. Cas. 1,914. 167. The sale of goods by a debtor to a creditor who has reasonable cause to believe the former insolvent, with intent to prefer him, is void. In re MoDonough White, Ass., ■V. Raferty, 3 N. B. R. 53; 1 Chi. Leg. News, ■361; 16 Pittsb. Leg. J. (O. S.) 110; Fed. Cas. ■8,775. 16S. Where an insolvent debtor executed a. bill of sale to a creditor who had obtained the levy of an attachment after notice of the debtor's insolvency, the same was a vio- lation of the bankrupt act of 1867, its inevita- ble effect being to give a preference. In re Gregg, 4 N. B. R. 150; Fed. Cas. 5,797. 169. Where household furniture in a dwell- ing inhabited by the owner and another was transferred to such other person by bill of sale and pointing out the property, but with- out other circumstances to indicate an actual change of possession, and the parties con- tinued to dwell together and to use the fur- niture as before, held, that the transaction was void against creditors. Allen v. Massey, 4 N. B. E. 75; 1 Dill. 40; 3 Chi Leg. News, 309; Fed. Cas. 331. 170. A sale of property to an indorser of a note is void where judgment has been re- covered against the maker, his property is held under levy, and the note has been pro- tested. Cookinham et aL v. Morgan et aL, 5 N. B. E. 16; 7 Blatchf. 480; Fed. Cas. 3,183. 171. H„ an indorser of A.'s note which had been discounted by a bank, purchased of him a quantity of flour, stipulating that as a condition of the sale the purchase-money should be applied to the payment of the nota Held, that the sale was a preference and that H. had reasonable cause to believe A. insolv- ent and contemplating bankruptcy. In re Arnold, 3 N. B. R. 61; Fed. Cas. 551. XIII. Obtained Through Seoueity. See Secueed Claims, 10. (a) In General. 172. An assignment of a claim to secure a pre-existing indebtedness, and not as a pledge of security made at the time of con- tracting the indebtedness and as a part of the transaction, made when insolvent and in contemplation of bankruptcy, is a fraudu-^ lent preference and ground for withholding a discharge In re Foster, 3 N. B. R. 81; 1 Amer. Law T. Rep. Bankr. 137; 1 Chi Leg. News, 103; Fed. Cas. 4,961. 173. The fact that securities, obtained from one debtor by an obligor on a bond, to indemnify his sureties, were made to run directly to such sureties, does not deprive the transaction of its character as a prefer- ence, when they were obtained at the in- PREFERENCES, XIII, (b). 395 stance of the obligor, the substance rather than the form being the test. Smith v. Lit- tle, 9 N. B. R. Ill; 5 Biss. 490; 6 Chi. Leg. News, 86; Fed. Cas. 13,073. 174. An insolvent, debtor transferred to the holder of his check a bond, a mortgage ^nd promissory notes. Held, that if such transfer were out of the ordinary course of business, it was prima facie fraudulent, and the burden of proving that it was not so was on the transferee Collins & Farrington, Ass., V. Bell et al., 3 N. B. R. 146; Fed. Cas. 3,010. 175. A banker who sells his sight draft, and on the day following gives to the holder collateral security for its payment, thereby ^ives a preference in violation of the bank- rupt act. Merchants' Nat. Bank of Cincin- nati V. Cook et aL, 16 N. B. R. 391 ; 95 U. S. 343. (b) Mortgage. 176. Where a mortgage subsequently given to cover property afterward acquired is void under the bankrupt act, it is not ren- dered valid by authority therein for the mortgagee to take possession, but amounts to a preference. In re Eldridge, 4 N. B. R. 162; 3 Biss. 363; 3 Chi Leg. News, 177; Fed. -Cas. 4,880. 177. A chattel mortgage that under the state law is void as against creditors, and under which the mortgagee has taken pos- session before commencement of proceedings in bankruptcy, having reasonable cause at the time of taking the mortgage for believ- ing the debtor insolvent, is a preference and -void. Harvey, Ass., v. Crane, 5 N. B. R. 318; 2 Biss. 496; 3 Chi. Leg. News, 341; Fed. Cas. ■6,178. 178. Where a creditor, within four months of bankruptcy proceedings, advanced money And took a chattel mortgage as security therefor, and also for a prior debt due him- self, and for an overdue note, the same was held to be a preference, but could be. sus- tained in part. In re Stowe, 6 N. B. R. 429; F'ed. Cas. 13,513. 179. A mortgage of all the property of a £rm and its members, given to secure a loan with which to pay debts due and unpaid, and in anticipation of others soon to mature, for a number of which the mortgagee is re- sponsible as surety, is void; and the mort- gagee will be presumed to know that the mortgagor is insolvent, if in fact he is. Scammon, Ass., v. Cole et al., 8 N. B. R. 100; 1 Hask. 214; Fed. Cas. 13,433. 180. A mortgage was given to secure two promissory notes that had been indorsed by the mortgagees, the mortgage being given less than four months next preceding the filing of a petition in bankruptcy. Held, the conveyance was void. Scammon, Ass., v. Cole et aL, 5 N. B. R. 257; 3 Clifif. 473; Fed. Cas. 13,483. 1 8 1 . A mortgage was executed by a debtor to secure the mortgagee for his claim and for a present loan made to enable the debtor to discharge claims of third parties, such dis- charge amounting to a preference. In an action by the assignee to have the mortgage declared void, held, that the conveyance was void. Buohnam, Ass., v. Goss, 13 N. B. R. 837 ; 1 Hask. 630; Fed. Cas. 3,097. 182. A mortgage given to secure a pre- existing debt is void where the mortgagee has reasonable cause to believe the mort- gagor insolvent, and it is immaterial whether such security be given voluntarily or in pur- suance of a previous promise made when the debt was contracted and when the debtor was solvent. In re Graham, Ass., v. Stark et al., 8 N. B. R. 93; 3 Ben. 520; 3 Chi. Leg. News, 78; Fed. Cas. 5,676. 183. A bill was filed by the assignee to set aside a mortgage given by the bankrupt to secure to a bank a pre-existing indebted- ness, there being circumstances sufficient to put the bank on inquiry as to the mortga- gor's solvency, and at that time an action by the government against the bankrupt was pending, being subsequently followed by a judgment for the government. Held, that the giving of the mortgage was a prefer- ence, that it be declared void, and that the bank be required to satisfy the same of rec- ord. Burfee v. First Nat. Bank of JanesviUe, 9 N. B. R. 314 184. Where a subsequent and prior mort- gage do not cover the same goods, the former is liable to be set aside as a preference as to all goods not included in the latter. Brett V. Carter, 14 N. B. R. 301; 3 Lowell, 458; 3 396 PBEFEEENCES, 2IV. N. Y. Wkly. Dig. 331; 22 Int. Rev. Eec. 153; 3 Cent. Law J. 386, 18 Alb. Law J. 361; 10 Amer. Law Eev. 600; Fed. Cas. 1,844. 1 8 5 . A mortgage to secure a sale that con- tains no provisions by which the collections and proceeds of sale shall be applied to the purposes of the conveyance, or to the pay- ment of the debt to be secured, or indemnity to be provided, or by its reinvestment to augment the trust fund, the want thereof being inconsistent with the alleged purpose of the conveyance, is void as to creditors in bankruptcy. Smith, Ass., v. McLean et aL, 10 N. B. E. 260; Fed. Cas. 13,074. 186. Where a creditor petitions that debts proved by respondents, who are also credit- ors, be disallowed, on the ground of having taken a mortgage to secure their debts within four months of adjudication, held, that the mortgage was a preference in fraud of the bankrupt act of 1867. Phelps v. Sterns, 4 N. B. R. 7; Fed. Cas. 11,080. 187. A., being insolvent to the knowl- edge of B., within four months of bankruptcy executed a second mortgage to B., in substi- tution of the first. Held, a preference, and that B. could not enforce his lien against property in the assignee's hands. In re Jor- dan, 9 N. B.R. 416; Fed. Cas. 7,529. 188. A conveyance by chattel mortgage to secure the paj'ment of a debt previously contracted, a short while after the execution whereof payment is suspended by the debtor, is a fraudulent preference and an act of bankruptcy. In re Rogers, 2 N. B. R. 139; 1 Chi. Leg. News, 195; Fed. Cas. 12,003. 189. A debtor, a retail druggist, in Janu- ary, 1878, executed a chattel mortgage to indemnify a surety on a note covering the stock in trade. On May 20th the mortgagee took possession on the ground that he was dis- satisfied with the way the business was run. On June 4th a petition in involuntary bank- ruptcy was filed. Held, that the mortgage and seizure were acts of bankruptcy, the first a fraudulent conveyance, and the sec- ond an unlawful preference. In re Foster, 18 N. B. R. 64; 10 Chi. Leg. News, 315; Fed. Cas. 4,964. 190. S., a bankrupt, two months prior to the commencement of proceedings, mort- gaged his stock of goods, it being understood beforehand that the consideration received should be paid to and accepted by a creditor for the same sum at which he received it, the mortgagee and creditor being present and active in the negotiation with the bank- rupt. Held, that the onus of showing " good faith '' and "actual value,'' within the mean- ing of the Revised Statutes, section 5128, was upon the mortgagee, and that he would not be allowed to enforce the mortgage. In re Sims, 19 N. B. R. 57; Fed. Cas. 13,889. XIY. Attained Theough TsAifSFBE OF Mbechandise. 191. The bankrupts, after insolvency, transferred merchandise in place of goods previously abstracted. Held, an unlawful- preference. Sharp, Ass. etc., v. The Phila. Warehouse Co., 19 N. B. E. 378. 192. After a bankrupt's paper had been protested for non-payment, and a portion of his stock in trade had been seized for viola- tion of the revenue laws, he began immedi- ately to turn over the remainder of his stock to several creditors in payment of their in- debtedness. Held, that a-t the time of such transfer he had reason to believe that he- was insolvent, and that it was a fraudulent preference of such creditors. In re Lewis et al., 2 N. B. E. 145. 193. A conveyance of the whole of a trader's property, or of the whole, with a colorable exception, made to a creditor, as- a security for a pre-existing debt, is fraudu- lent and void, not only because he deprives himself of the power of cariying on his trade, and withdraws his effects from the reach of other creditors, but because such a convey- ance must either be fraudulent, kept secret, or produce an immediate absolute bank- ruptcy. Eison V. Knapp, 4 N. B. E. 114; 1 Dili 186; Fed. Cas. 11,861. 194. A conveyance by insolvent partners of all their joint property to creditors who- have reasonable cause to believe that their debtors are insolvent cannot be avoided by the assignee in bankruptcy of one of the former partners. Forsaith, Ass., v. Merritt, 8 N. B. E. 11; 1 Lowell, 336; 3 Amer. Law T. 133; 1 Amer. Law T. Eep. Bankr. 168; Fed. Cas. 4,946. 195. A creditor who, having reasonable cause to believe his debtor insolvent, receives PREFERENCES, XV, (a). 39T an assignment of his account against a third party which he collects, or goods to be ap- plied to part payment of the debt, receives a preference, and will not be allowed to prove his debt without surrendering to the assignee the money or goods received. In re Kings- bury et al., 3 N. B. R. 84; Fed. Cas. 7,816. 196. A contract of purchase was made abroad, to be performed abroad. The goods, being the property of the bankrupt and in the United States, were transferred to an alien creditor in the United States. Held, that the conveyance was in fraud of the bankrupt act. Olcott, Ass., v. MacLean et al., 14 N. B. R. 379. 197. Where a transfer to a factor is made with intent to give him a preference and so that it may become subject to his lien, it may be set aside. Nudd et al. v. Burrows, Ass., 13 N. B. R. 389; 91 U. S. 426. 198. Delivery of goods under a mortgage, itself fraudulent, is a violation of the pref- erence clause of the bankrupt act and the goods cannot be held as a pledge. Robinson «t aL V. ElUott, Ass., 11 N. B. R. 55G; 23 Wall. 613. XY. Stteeettdee of. (a) In Oeneral. 199. If a mortgage be given to a pre- ferred creditor without his knowledge, or if a creditor upon receipt of knowledge of such preference repudiate it, the penalty of the law in respect of his debt is not to be en- forced against him. In re Princeton, 1 N. B. R. 178; 2 Biss. 116; 1 Amer. Law T. Rep. Bankr. 125; Fed. Cas. 11,433. 200. The surrender by one who has ob- tained a preference to the assignee, of his preference, is sufficient to entitle him to re- ceive a dividend on his debt, although such surrender is made after litigating the mat- ter with the assignee. Streeter v. Bank, 147 U. S. 37. 201. There is only constructive fraud where a creditor voluntarily restores a pref- erence, and he will be permitted to share pro rata in the estate. In re Sohoenenberger, 15 N. B. R. 805; Fed. Cas. 13,473. 202. A creditor having reasonable cause to believe the debtor insolvent accepted a bill of sale of all his stock in trade, and of all his books of account. He subsequently sur- rendered them to the assignee. Held, that he was entitled to prove his claim. In re Montgomery, 3 N. B. R. 97; Fed. Cas. 9,738. 203. Creditors who had been preferred by the bankrupts offered the same debt for proof, the preference having been recovered of them by the assignee and paid on execu- tion. The debt was admitted for proof. In re Black et al., 17 N. B. R. 899; Fed. Cas. 1,459. 204. If the preferred creditor surrender his preference before the entry of the judg- ment, but after the opinion is given, where the debt is tried before the court, he may prove his debt where there is only construct- ive fraud, but he may be required to pay the expenses of the assignee. Burr v. Hopkins, Ass., 12 N. B. R. 311; 6 Biss. 345; 7 Chi. Leg. News, 266; Fed. Cas. 2,193. 205. A full surrender of a ft-audulent pref- erence by a creditor is a complete condona- tion of that offense. Section 23 (act of 1867) is not limited in its operations to cases of vol- untary proceedings. In re Stephens, 6 N, B. R. 533; 3 Biss. 187; Fed. Cas. 13,365; In re Leland et al., 9 N. B. R. 209; 7 Ben. 156; Fed. Cas. 8,830. 206. The same effect is given to the act of a creditor who surrenders his rights under a fraudulent conveyance as the setting aside of the deed would have had; such surrender is covered by the provisions of section 33 of the bankrupt act, and is not a mere assent for the unsecured creditors to participate in the proceeds of his preference (1867). In re Detert, 11 N. B. R. 393; 7 Chi. Leg. News, 130; 14 Amer. Law Reg. (N. S.) 166; Fed. Cas. 3,839. 207. One who has received a preference in fraud of the bankrupt act cannot vote for assignee, and can surrender his preference only to the assignee so as to prove his claim against the bankrupt's estate. In re Par- ham et al., 17 N. B. R. 300; Fed. Cas. 10,712. 208. A creditor received a preference by way of assignment of property of the debtor when it was alleged he had reasonable cause to believe the debtor insolvent. Held, the creditor would have to surrender such proi>- erty before proving his claim. Ecker v. Mc- Allister, 17 N. B. R. 43. 398 PREFERENCES, XV, (b), (c), XVI, (a). (b) What is Not. 209. A creditor who resists a suit by the assignee to recover an alleged fraudulent preference cannot prove his claim where he is defeated in the action, though he pay the judgment recovered, such payment not being a surrender as contemplated by section 23 of the bankrupt act of 1867. In re Riohter's Estate, 4 N. B. R. 67; 1 Dill. 544; 3 Chi. Leg. News, 33; Fed. Cas. 11,803. (c) WJien Cannot he Made. 210. Creditors having reasonable cause to believe a creditor insolvent and accepting chattel mortgages from him to secure their debts, thereby participating in such fraud as to found a proceeding against him in bankruptcy, will not be permitted to relin- quish their intended preferences to prove their debts under section 23 or any other section of the act (1867). In re Princeton, 1 N. B. R. 178; 2 Biss. 116; 1 Amer. LawT. Rep. Bankr. 125; Fed. Cas. 11,433. 211. The surrender of a preference can- not be made after a recovery has been had under sections 35 and 39; and the absolute prohibition contained in the last clause of section 39 applies only after such recovery, viz., by judgment or decree (1867). In re Kipp, 4 N. B. R. 190; 4 Amer. Law T. 60; 1 Amer. Law T. Rep. Bankr. 246; Fed. Cas. 7,836. 212. A creditor accepted a chattel mort- gage with a view to obtain a preference, having reasonable cause at the time to be- lieve his debtor insolvent and that a fraud on the bankrupt act was intended. The as- signee having filed a bill in equity to set aside, the creditor desired to surrender it and be allowed to prove his debt. Held, he lost his mortgage, but would not be allowed to prove. Bingham v. Richmond et al., 6 N. B. R. 127; Fed. Cas. 1,415. 213. The trustees, under a trust deed to secure mortgage bonds, and the bondholders voluntarily surrendei-ed possession of the trust property to the assignee in bankruptcy for the purpose of effecting a sale of the premises, without relinquishing their lien, the proceeds of sale to stand in lieu of the property. Held, that after an adverse de- cision as to the validity of the deed, it was too late to surrender the bonds and ask ad~ mission to proof of debt. In re Leland et aL,. 9 N. B. R. 209; 7 Ben. 156; Fed. Cas. 8,230. XVI. Not Peefeeences. (a) In Oeneral. 214. The return of goods which have been ordered to fill a special order and damaged in transportation, and refused by parties for whom they were designed, is not a prefer- ence nor an act of bankruptcy. Doan v. Compton et al., 2 N. B. R. 182; Fed. Cas. 3,940. 215. In accordance with the terms of a lease, a distress was levied within four months prior to bankruptcy, the bankrupt consent- ing to it. Collusion not shown. Held, that it was not fraudulent. Goodwin et aL v> Sharkey et al., 15 N. B. R 526. 216. A debtor delivered goods to the work- men of one of his creditors, upon the latter's. credit, with the understanding that they would be paid for at the next pay day. The- creditor applied the goods to the payment of a debt due from the debtor. Held, there was no preference. Rice et aL v. Grafton. Mills, 13 N. B. R. 209. 217. Payment of attorney's fees for serv- ices previously and to be rendered does not constitute a preference. In re Sidle, 2 N. B.. R. 77; Fed. Cas. 12,844 2 1 8 . A bankrupt was a member of a stock exchange board whose constitution provided that, in sales of seats of delinquent members, the proceeds should be applied to the benefit of the members of the board exclusive of out>- side creditors. His seat was sold and the- proceeds paid to his creditors who were mem- bers of the board. Other creditors attacked the payment as a preferenoa Held, that it was not a preference, even though made within two months before bankruptcy. Hyde, Ass., v. Woods et aL, 15 N. B. R. 518; 94 U. S. 533. 219. Giving a creditor a note for his debt, secured by a third party as indorser, is not a fraud on the bankrupt act where the assets of the bankrupt are not lessened nor his debts increased thereby. Dalrymple v. Hil- lenbrand, 17 N. B. R. 434 220. A bankrupt was indebted to a bank on a note for $4,000, and had a deposit accotmt PREFERENCES, XVI, (b). 399" for $4,500. Just before institution of proceed- ings in bankruptcy, knowing the insolvency of the bankrupt, one day prior to the matu- rity of the note, the bank took the maker's check for $4,000 and delivered to him the note. Held, that such act was only the ad- justment of mutual debts and not a fraudu- lent preference. Robinson, Ass., v. Insurance Co. Bank, 18 N. B. R. 343; 9 Biss. 117; Fed. Cas. 11,969. 22 1 . A mere accounting or settlement be- tween aji insolvent debtor and creditor, not followed by any actual change or transfer of property, rights or credits to the prejudice of other creditors, is not contrary to the bank- rupt act, but the assignee of the debtor is not bound by the settlement and may show that it is erroneous or fraudulent. In re Comstook & Co., 13 N. B. R. 110; 3 Sawy. 330; Fed. Cas. 3,079. 222. P., beconaing embarrassed, sold out his business to a firm, the notes of one mem- ber of which were paid to creditors in settle- ment of their claims, some of the creditors being omitted unknowingly by friends who managed the settlement. Held that, in the absence of knowledge of the omission, the preference was not fraudulent and could not be set aside. Castle, Ass., v. Lee, 11 N. B. R. 80; Fed. Cas. 3,506. 223. More than two months before com- mencement of involuntary bankruptcy pro- ceedings, a bankrupt transferred part of his property in satisfaction of debts, being in- solvent to the knowledge of his creditors. Held, that the transfers could not be im- peached under Revised Statutes, section 5138 (1867). Van Kleeck, Ass. etc., v. Miller et al., 10 N. B. E. 484; Fed. Cas. 16,860. 224. Where it is shown that a transfer was made in pursuance of an agreement en- tered into long before, and it is not shown that a preference is intended, the value of property transferred by a debtor within four months of bankruptcy proceedings cannot be recovered. Wadsworth, Ass., v. Tyler, 3 N. B. R. 101; 1 Chi. Leg. News, 139; Fed. Ca& 17,033. 2 2 6 . A conveyance by an insolvent debtor to his creditor, of property upon which the creditor has a lien to a greater amount than the value thereof, is not void as being within the purview of the first clause of section 35 of the bankrupt act of 1867. Catlin v. Hoff- man, 9 N. B. R. 343; 3 Sawy. 486; 31 Pittsb. Leg. J. 159; Fed. Cas. 3,531. 226. Where one creditor accepts a certain sum as a compromise, and is not led to be- lieve that he is getting as much as others, and accepts the notes of his debtor's pur- chaser in part payment, he cannot be sus- tained in a petition against the debtor alleg- ing a preference thereby under the bankrupt act of 1867. In re Munger et aL, 4 N. B. R. 90; Fed. Cas. 9,933. 227. Barring fraud in the transaction and an intent to defeat the act, there i»- nothing in the bankrupt law forbidding a loan of money to a man pecuniarily embar- rassed, even though the lender had reason to believe the borrower insolvent. Tiffany V. Boatman's Sav. Inst., 9 N. B. E. 345; 18- Wall. 375. ■ (b) Beca/use of Present Consideration^ 228. The right of an insolvent person, be- fore proceedings are commenced against him, to pay a just debt, honestly to sell prop- erty for which a just equivalent is received, to borrow money and to give a valid secu- rity therefor, are all recognized by the bank- rupt act. Fox et al. v. Gardner, 13 N. B. R. 137; 31 Wall. 475. 229. A creditor released the debtor's mortgage on certain property in exchange- for goods within four months of his bank- ruptcy, knowing him to be in failing cir- cumstances. Held, not to be a preference under section 5138 of the bankrupt act (1867). Hallack et al. v. Tritch, Ass., 17 N. B. R. 393; 10 Chi. Leg. News, 319; Fed. Cas. 5,956. 230. Money loaned with security taken in presenti does not make the security taken a preference contrary to section 35 of the bank- rupt act of 1867. In re Morrison, 10 N. B. R. 106; 6 Chi. Leg. News, 110: Fed. Cas. 9,889. 231. An insolvent debtor may sell or in- cumber his estate for a present and sufficient consideration, if the transaction be bona fide, and without fraud or intent to defeat the operation of the bankrupt act. Gattman & Co. V. Honea, Ass., 13 N. B. R. 493; 7 Chi. Leg. News, 395; Fed. Cas. 5,371. 232. Where, in pursuance of the covenants of a lease, insurance is made upon a house- 400 PREFERENCES, XVI, (cHe). and furniture, it does not constitute a pref- erence. In re Rosenfeld, 3 N. B. R. 49; 1 Amer. Law T. Rep. Bankr. 100; Fed. Gas. 12,057. 233. A transfer of property, made at or about the time of advances, and in payment therefor, will not subject the debtor to pro- ceedings in involuntary bankruptcy; but if made some time before the advances, it is a , preference which will subject him to such proceedings. In re Pierson, 10 N. B. R. 107; Fed. Cas. 11,153. 234. The preference at which the bank- rupt act is aimed is not the collateral taken at the time the debt is contracted, but arises only in case of an antecedent debt. Tiffany V. Boatman's Sav. Inst., 9 N. B. R. 345; 18 Wall. 375. 235. The assignee filed a bill to set aside an alleged fraudulent preference made with- in four months prior to the bankruptcy pro- ceedings. A bank held notes of the debtor, who wished an extension of one year, which was accorded only upon the tendering of further security. The debtor was not at the time believed to be insolvent, but became so shortly afterward. The bill was dismissed, and on appeal the judgment was aifirmed. Rankin, Ass. etc., v. Bank, 14 N. B. R. 4; 3 Cent. Law J. 156; Fed. Cas. 11,568. (c) Bill of Sale. 236. A. purchased logs with money fur- nished by B., under an agreement by which A. was to have about two-thirds and B. one- third, each to use as necessity required, keep- ing account of the number used. B., know- ing A. to be insolvent, took a bill of sale of all the legs remaining, receiving not more than they were entitled to. Held, no prefer- ence. In re Bousiield & Poole Mfg. Co., 16 N. B. R. 489; Fed. Cas. 1,703. 237. The execution of a bill of sale by a broker of a portion of his property to a cus- tomer, to avoid an action for an unlawful conversion of the proceeds of a sale, is not a fraudulent preference. In re Jenkins, Ass., V. Mayer, 3 N. B. R. 189; 3 Biss. 303; Fed. Cas. 7,373. (d) Ohcmge of Security. ' 238. Giving a deed of trust upon prop- «rty, to secure a debt previously secured by a mechanic's lien, is merely a change of se- curities, and not a fraudulent preference given to the lien-holder. In re Weaver, 9 N. B. R. 133; Fed. Cas. 17,307. See Cook v. Tul- lis, 9 N. B. R. 433; 18 WalL 333. 239. A mere change of securities, not made to secure an unsecured debt or to give a preference, is not void under the law, al- though made vrithin four months before the petition was filed. Stewart v. Piatt, 101 U. S. 731; Clark v. Iselin, 11 N. B. R. 337; 31 Wall. 360. 240. A bill of sale of personal property was given by a debtor, who afterwards be- came banki-upt, to his creditor more than four months before the filing of the petition. Afterward and within four months of the filing he executed a mortgage conveying the same property to the same creditor. Meld, that the mortgage was not a preference, but a change in the form of the security. Sawyer et al. V. Turpin et al., 14 N. B. R. 371; 91 U. S. 114; 5 N. B. R. 339; 3 LoweU, 39; Fed. Cas. 13,410. (e) Judgment. 241. A creditor, within four months prior to bankruptcy proceedings, procured a judg- ment and levy against an insolvent debtor, the latter having and making no defense. Held, that such passive non-resistance gave no preference within the meaning of the bankrupt act. Wilson v. Bank, 9 N. B. R 97 ; 17 Wall. 473; Mason et aL v. Warthen et aL, 14 N. B. R. 346; Tenth Nat. Bank of N. T. City et al. v. Warren et aL, Ass., 17 N. B. R. 75; 96 U. S. 539. 242 . A judgment note is valid when given more than four months before bankruptcy proceedings for a valuable consideration, even though judgment be entered and exe- cution issued within four months thereof. Sleek et al. v. Turner's Ass., 10 N. B. R. 580. 243. A lien was obtained by a creditor within four months preceding the com- mencement of bankruptcy proceedings, the creditor being at the time cognizant of the debtor's insolvency, and it appeared affirma- tively that the bankrupt had given no assist- ance to the creditor in obtaining the lien. Held, the lien was valid. Britton v. Payen et al.,9 N. B. R. 445; 7 Ben. 319; Fed. Cas. 1,906. 244. Upon vsrrit of error to the court of common pleas, it was held that a state court PEEFEEENCES, XVI, (f), (g). 401 has jurisdiction to entertain an action by an assignee to recover money received as a pref- erence, but that vrhen an insolvent debtor cpnsentsto the revival of a judgment so as to continue a lien, such consent does not con- stitute a fraudulent preference. Kemerer v. Tool, 13 N. B. E. 334 245. Allowing judgment to go by default amounts to suffering goods to be taken in execution, v^^hen taken under the judgment, and does not amount to procuring them to be so taken. In re Craft, 1 N. B. E. 89 ; 2 Ben. S14; Fed. Cas. 3,316. 246. Where an actual intent to give a preference is negatived, mere honest inaction on the part of an insolvent debtor, who is fined on a just debt, and allows judgment to go against him and his property to be levied on, is not an act of bankruptcy within the thirty-ninth spction of the bankrupt act of 1867. "Wright v. Filley, 4 N. B. E. 197; 1 Dill. 171; 5 West. Jur. 313; Fed. Cas. 18,077. 247. Under the thirty-iifth section of the bankrupt act of 1867, the mere entry of a judgment against an insolvent debtor under a warrant of attorney just prior to institu- tion of proceedings in bankruptcy, the cred- itor knowing of the debtor's insolvency and the judgment being followed by execution, is not a preference which will be avoided. Clark, Ass., v. Iselin, 11 N. B. E. 337; 21 Wall S60. 248. If a creditor realize his money under a judgment entered in an attachment suit without collusion, lie may retain it, although the attachment was issued within four months before the oommenoement of pro- ceedings in bankruptcy. Henkelman et al. V. Smith, Ass., 13 N. B. E. 121. 249. A creditor believing his debtor in- solvent brought suit and caused execution to be issued and levy to be made on his prop- •erty. Seld, that there was no preference, and that the creditor might have alleged this as an a;ct of bankruptcy and demanded an adjudication. Coxe v. Hale, 8 N. B. E. 563; 10 Blatchf. 56; 21 Pittsb. Leg. J. 77; Fed. Cas. 3,310. (f) Mortgage. 250. A mortgage executed on individual property for an individual debt in pursuance 26 of a parol contract that the mortgage should be given when requested by the creditor, al- though within four months of institution of proceedings in bankruptcy, is not a prefer- ence within the meaning of the bankrupt act of 1867. Hewitt et al., Ass., v. Northup et al., 16 N. B. E. 27. 251. Prior to December, 1873, a bankrupt borrowed money from one knowing Mm to be bankrupt, and gave a mortgage therefor. Reld, that the transaction did not constitute a fraudulent preference (1867). In re Mont- gomery, 13 N. B. E. 831; 2 Cent. Law J. 440; Fed. Cas. 9,732. 252. The members of a New York firm were members of firms in the same business in Canada. In each Canadian firm there was another partner. The Canadian firms mort- gaged certain property to their creditors to secure payment of their debts. Certain cred- itors of the American firm claimed that the assets of all the firms should be distributed among the creditors of the New York firm. The transfers were bonaflde. Seld, that the transfers were not preferences so as to pre- vent the disoha,rge of the bankrupts in the New York firm. In re White et aL, 13 N. B. E. 107; Fed. Cas. 17,533. 253. A mortgage is not a preference where the debt is secured by a prior mortgage cov- ering goods subsequently acquired, if both mortgages cover the same goods. Brett v. Carter, 14 N. B. E. 301; 2 Lowell, 458; 2 N. Y. Wkly. Dig. 331; 33 Int. Eev. Eec. 153; 3 Cent. Law J. 286; 13 Alb. Law J. 361; 10 Amer. Law Eev. 600; Fed. Cas. 1,844. 253a. An agreement between A. and B. that in consideration that A. should furnish money to B. to buy skins, B. would tan and return them to A. for sale on commission, and that such skins in the process of tanning should be security for the moneys advanced, creates a charge upon the property in favor of A. in the nature of a mortgage which is good between the parties, and as to B.'s as- signee in bankruptcy, without a change of possession, and is capable of enforcement. Hanselt v. Harrison, 105 U. S. 401. (g) JVo Beasonabh Ccmse. 254. A creditor having no reasonable cause to believe a debtor insolvent at the 402 PEEFERENCE8, XVI, (h). time of receiving a security trom him may- hold it as against the assignee. Ranljin, Ass. etc., Y. Bank, 14 N. B. R 4; 3 Cent. Law J. 156; Fed. Cas. 11,568. 255. A payment by a debtor, knowing himself to be insolvent, of one creditor in full of his demand, in the absence of proof that the debtor contemplated bankruptcy, or that the creditor had reason to believe that a fraud on the act was intended, is not a fraudulent preference. In re Locke, 3 N. B. B. 133; 1 Lowell, 393; Fed. Cas. 8,439. 256. A judgment obtained by one acting without knowledge of the condition of his debtor, or of any circumstance to create sus- picion of insolvency, will not be interfered with. Campbell v. Bank, 3 N. B. R. 134; 3 Biss. 433; 3 Chi. Leg. News, 148; 1 Md. Law Rep. 169; Fed. Cas. 3,370. 257. A security will be valid, although given to a creditor by a mortgage out of the usual course of the debtor's business, if the creditor have no reasonable cause to infer insolvency, though in fact the debtor be in- solvent at the time of giving the mortgage. Lee, Ass., v. German Sav. Inst., 3 N. B. R. 53; 1 Chi. Leg. News, 370; Fed. Cas. 8,188. 258. A judgment confessed by warrant of attorney on notes executed simultaneously therewith, when the debtor was not insolv- ent and the creditor had not reasonable cause to believe him to be so, is not a fraud- ulent preference, and the judgment creditor is entitled to payment thereof out of the as- sets of the bankrupt's estate. In re Wright, 3 N. B. R. 155; Fed. Cas. 18,071. 259. A bankrupt, previous to his adjudi- cation as such and at the time of contract- ing an indebtedness, executed a note there- for and a warrant of attorney to confess judgment thereon. Held, in the absence of proof that the bankrupt was aware of his insolvency, or that the creditor had reason- able cause to believe him so, it was not a fraudulent preference. Armstrong v. Rickey Bros., 3 N. B. R. 150; 1 Chi. Leg. News, 145; 2 Amer. Law T. Rep. Bankr. 65; Fed. Cas. 546. 260. A sale on execution under a judg- ment by a creditor, within four months of the filing of a petition in bankruptcy, does not constitute a fraudulent preference if the debtor be compromising his debts and th©- creditor have no reason to believe himself to- be obtaining a preference. Warren et al.,. Ass., V. Bank, 5 N. B. R. 479; 5 Ben. 895; 43^: How. Pr. 169; Fed. Cas. 17,200. 261. An assignee in bankruptcy sought to recover moneys and property alleged tO' have been conveyed by the insolvent within four months of bankruptcy to his creditors to create preferences, and to have certain confessed judgments for moneys to become due declared invalid. It appeared that the creditors had no just cause to believe the debtor insolvent. Held, the property and moneys not recoverable and the judgments- valid. Cook V. Waters et al., 9 N. B. R. 155. 262. The assignee of a principal cannot recover from a creditor for money paid him by a surety, even though the surety receives^ the money from the principal by a prefer- ence under the bankrupt act, if the creditor have no, knowledge of that fact and reoeive- the money in discharge of the obligation of the surety. Tyler, Ass. etc., v. Brock et aL,. 17 N. B. R. 239. (h) Payment. 263. Although proceedings in bankruptcy are pending against him, a debtor who is in- solvent may pay any or all of his debts. In re Oregon Pr. & Pub. Co., 13 N. B. R. 503; 1 Cin. Law Bui. 87; Fed. Cas. 10,559. 264. Bonds and coupons of a railroad are- not commercial paper within the meaning of the bankrupt act, and the payment of in- terest coupons after suit is brought or threat- ened on the same is not a preference of one- creditor over the others. In re Opelousa, Gr. W. R. R Co., 3 N. B. R 31; Fed. Cas. 10,547. 265. The district court granted a petition for an adjudication in bankruptcy filed against an insurance company, alleging a preference in the payment by the president, not the company, of the unearned premiums to the holders of policies which had termi- nated; but the circuit court held there was not suflScient evidence to justify the decis- ion. Knickerbocker Ins. Co. v. Comstock, 9' N. B. R 484; 6 Chi. Leg. News, 143; Fed. Cas^ 7,879. PREFERENCES, XVI, (i)— PROOF OF CLAIMS, L 403 (i) Adn}(mces. 266. Advances made in good faith to an indebted person to enable him to carry on his business upon security taken at the time is not in violation of the bankrupt act. Darby's Trustee v. Boatman's Sav. Inst, 4 N. B. R 195; 1 Dill. 141; 3 Chi. Leg. News, 249; 1 Leg. Op. 146; Fed. Cas. 3,571. 267. Shipments of cotton after insolvency to A. & Co., who made advances at the time to bankrupt, was not a preference. Harri- son V. McLaren, 10 N. B. R. 344; Fed. Cas. 6,139. PRIITCIPAL. See Agent. PEOCESS. See Pi^EABiNa and Peacticb, XV, (h). PROOF OF CLAIMS. L In Genbeal. IL Amendment op. TTT. Before Whom Made, ' IV. By Whom Made. V. Effect op. VI. Effect of Not Making. VIL Manner of Making. VIIL Postponement of. IX Rb-exajdnation op. X When Made. XL Withdrawal of. See Evidence, X (a); Feaud, 101} Insur- ance, I; Secured Claims, IV; Set-off, 14. I. Lsr General. 1. All claims against the estate of a bank- rupt, however evidenced, must be proven. Blum, Ex'r, v. EUis, 13 N. B. R. 345. 2. When a creditor seeks to prove a debt against the estate of a bankrupt, he stands in the position of a plaintiff at law. In re Presoott, 9 N. B. R. 385; 5 Biss. 533; 6 ChL Leg. News, 151; Fed. Cas. 11,389. 3. The proceedings to prove a debt is part of the suit in bankruptcy, and the judgment of the circuit court is final. Wiswall et al. V. CampbeU et al.. Ass., 15 N. B. R. 431; 93 U. S. 347. 4. Joint creditors may be admitted to prove under separate commissions for the purpose of assenting to or dissenting from the discharge, but not to receive until rff ter the separate creditors are paid in full. The exceptions are where the joint creditor is the petitioning creditor under a separate fiat, where there is no joiat estate and no solvent partner, and where there are no sep- arate debts. In re Byrne, 1 N. B. R. 133; 7 Amer. Law Reg. (N. S.) 499; 1 Amer. LawT. Rep. Bankr. 133; 15 Pitts J. Leg. J. 315; Fed. Cas. 2,370. 5. Where the trustee has proved the claim for a note against the estate of the payee in bankruptcy, and where the holder has not on the faith thereof changed his position in regard to the note, the trustee is not estopped from disputing the claim of the holder. In re Dodge et aL, 17 N. B. R. 504; 9 Ben. 480; Fed. Cas. 3,948. 6. A creditor filed his petition, under the provisions of section 39 of the act of 1867, to have the debtor declared a bankrupt. The debtor appeared by counsel and demanded a trial by jury. Held, that the creditor must establish his debt before proceeding to show acts of bankruptcy. Brock v. Hoppock, 3 N. B. R. 3; Fed. Cas. 1,913. 7. The moving party is entitled to open and close on the hearing of a motion to ex- punge a proof of claim. Canby, Ass., v. Mo- Lear, 13 N. B. R. 23; Fed. Cas. 3,378. 8. In proceedings against the estate of a deceased bankrupt, a creditor is competent to prove the contract on which his claim is based. In re Merrill, 16 N. B. R. 35; 9 Ben. 165; 34 Pittsb. Leg. J. 205; Fed. Cas. 9,466. 9. The court will not set aside an election of an assignee on account of any irregularity in admitting a claim, when its exclusion would not aflfeot the result. In re Jackson et aL, 14 N. B. R. 449; 7 Biss. 380; Fed. Cas. 7,123. 10. At the first meeting of creditors the bankrupt may object to the proof of debts. In re Patterson, 1 N. B. R. (8 vo. ed.) 101; 1 Ben. 448; Bankr. Reg. Supp. 22; Fed. Cas. 10,814 11. A judgment debt offered for proof against the debtor's estate in bankruptcy, the 404 PROOF OF CLAIMS, II, IH debtor having filed his petition after the date of the judgment, may be objected to by other creditors for fraud or irregularity, as they are not privies to the judgment and may impeach it collaterally. In re Fowler, 1 N. B. R. (8 vo. ed.) 677. 12. Where creditors seek to prove debts based on the debtor's promissory notes, and judgment has been obtained on one of them, the notes should be produced if required by the register. If the debt were proved on the judgment, it is not necessary to produce the note. In re Knoepf el, 1 N. B. R (8 vo. ed.) 70 ; 1 Ben. 398; Fed. Cas. 7,892. 13. A bill in equity is defective in state- ment that alleges a claim to be illegal or in- valid, and to have been fraudulently proved, in general terms, without specifying wherein the' illegality or fraud consists. First Nat. Bank of Troy v. Cooper et al., 9 N. B. E. 529; 20 Wall 171. 13a. An administrator of an estate used the funds for the purposes of a firm of which he was a member, an account being kept on the books of the firm to the credit of the estate. Held, that a joint and several claim was thereby created against the joint and several estates, and that it could be proved against the firm estate and the individual estate of the administrator. In re Jordan & Blake, 19 N. B. E. 465. 13b. A claimant, who had for several years held a chattel mortgage executed by the bankrupts, took possession under the mortgage upon learning of their insolvency, and within four months of bankruptcy pro- ceedings sold the property and purchased at the sale. The assignee brought suit against him and recovered judgment, the claimant being found guilty of actual fraud in obtain- ing a preference. The judgment was paid and the claimant proved his claim in full. Held, he could prove for a moiety only. In re Kaufman & Houck, 19 N. B. E. 283; Fed. Cas. 7,627. 13c. A party who purchased an imported article, duty free, and was compelled to pay the duty in order to get possession thereof, is entitled to priority, although he has proved his claim as unsecured. In re EZirkland, Chase & Co., 14 N. B. E. 157. ISd. In an action brought by the bankrupt, the defendant interposed a counter-claim. The bankrupt having been adjudicated before the trial of the action, the defendant oflEered no evidence, and judgment was rendered against him. Hdd, that he was not thereby precluded from proving his claim in the bankruptcy proceedings. In re People's Safe Deposit and Savings Institution of the State of New; York, 18 N. B. E. 493; Fed. Cas. 10,971. II. Amendment of. 14. A bankrupt court may allow proof s of debt to be amended, and in cases of mistake or ignorance, whether of fact or law, will generally exercise that power in the absence of fraud and when all parties can be placed in statu quo, if the error had not occurred, and where justice seems to demand that it should be done. In re Parkes, 10 N. B. E. 82; Fed. Cas. 10,754. 15. Where the name of a creditor is stated in the petition asserting a claim by a proper averment but omitting the amount, the claim may be amended by adding the amount, if done in good faith. In re Blair et aL, 17 N. B. E. 492; 10 Chi. Leg. News, 278; 25 Pittsb. Leg. J. 123, 149; Fed. Cas. 1,481. 16. A creditor, after examination by the solicitor for the assignee on his own claim, moved, upon his own evidence and upon an affidavit, for leave to amend his proof of claim. Held that, the proof being defective, the creditor had a right to amend it In re Montgomery, 3 N. R E. 108 (1st case); Fed. Cas. 9,729. 17. The court may allow supplemental af- fidavits or proofs to be filed if the affidavits to the petition or the depositions as to indebt- edness and acts of bankruptcy are not suffi- cient. In re Hanibel et aL, 15 N. B. R 283; 9 Chi. Leg. News, 165; 15 Alb. Law J. 271; 24 Pittsb. Leg. J. 152; Fed. Cas. 6,023. 18. A creditor had security for his debt, but proved his demand in ignorance of his privilege, and omitted mention of the secu- rity. Held that, in the absence of fraud, he could amend the proof. In re McConnell, 9 N. B. R 387; 10 Phila. 287; 81 Leg. Int 61; 21 Pittsb. Leg. J. 107; Fed. Cas. 8,712. III. Before "Whom Made. 19. A debt against a bankrupt's estate may be proven before a United States com- missioner, although the bankrupt and cred- PEOOF OF CLAIMS, IV, V. 405 itor both reside in the same judicial district. In re Sheppard, 1 N. B. E. 115; 7 Amer. Law Eeg. (N. S.) 484; 1 Amer. Law T. Eep. Bankr. 49; Fed. Cas. 13,753. 20. Claims due resident creditors must be proved before a register of the home district. Those due non-resident creditors must be proved before any register or commissioner of the court in any other district than that in which the bankruptcy proceedings are pending. Commissioners of United States circuit courts may not take proof of claims due creditors residing in the district where the proceedings are pending (act of 1867). In re Healy, 3 N. B. E. 36. 21. Proof of debts in bankruptcy may be taken by a register or a commissioner of a resident or non-resident creditor, or whether the commissioner hold his office in the same town or in the same building in which a register holds his office, the only limitation being that it shall be taken before a register or commissioner of the judicial district in which the creditor resides, or in which the proceedings are pending. In re Merrick, 7 N. B. R 459; Fed. Cas. 9,463. 22. Proof of debt against a bankrupt taken before a notary public is not authorized by law; such proof may be taken only before such officers as are enumerated in section 33 of the act of 1867. In re Strauss, 3 N. B. E. 18; Fed. Cas. 13,533. 23. Although bankruptcy proceedings have been stayed, having been superseded by ar- rangement under section 43 of the bankrupt act of 1867, the sole power to admit claims against the bankrupt's estate is not vested in the trustees under the arrangement, but they may and should be proved before the reg- ister. In re Bakewell, 4 N. B. E. 199; 18 Pittsb. Leg. J. 389; 3 Pittsb. Eep. 323; Fed. Cas. 788. 24. Where the proof of a debt is taken be- fore the attorney of the creditor, it is inad- missible. In re Nebe, 11 N. B. E. 389; Fed. Cas. 10,073. lY. By Whom Made. See Claims, 137, 373; Commercial Paper, 13. 25. Only the holder and owner of a claim can make proof. In re Ford et al., 18 N. B. R 436; Fed. Cas. 4,933. 26. Debts proved before the election of an assignee, and sold and assigned after proof, must be voted upon by the owner, and not by the original creditor, the owner being en- titled to one vote. In re M. Frank, 5 N. B. E. 194; 5 Ben. 164; Fed. Cas. 5,050. 27. Proof of debt may be made by an agent who has had exclusive charge of the same, and knows personally all the facts re- quired to be sworn to in proving it, the cred- itor himself having no personal knowledge thereof. In re Watrous et al., 14 N. B. E. 358; 3 N. Y. Wkly. Dig. 180; Fed. Cas. 17,370. 28. Mere absence from the state, or the locality where the proof is made, is not alone regarded as cause for proof by an agent. In re Jackson et al., 14 N. B. E. 449; 7 Biss. 380; Fed. Cas. 7,133. 29. The absence of a claimant, which will render a proof of debt by an agent admissi- ble, must be "from the United States; " nor will his agent's oath, that he is better ac- quainted with the facts than his principal, render the agent's deposition alone admissi- ble as proof of debts. In re Whyte, 9 N. B. E. 367; Fed. Cas. 17,606. V. Effect of. 30. Eights of creditors accrue after ad- mitted proof of claim, and such creditors then have the right to ask for an amendment of the petition for any defect therein. In re Jones, 2 K B. E. 30; Fed. Cas. 7,447. 3 1 . Where proof of a claim is given in the form required by statute, a prima facie case is made, subject only to an order for further proof and the right of a creditor, or person interested, to offer counter-proof. In re Saun- ders, 13 N. B. E. 164; 3 Lowell, 444; Fed. Cas. 13,371. 32. A refusal by the assignee, or his neg- lect, to recover property conveyed by the bankrupt in fraud of his creditors, entitles any creditor who has proved his debt to in- stitute proceedings for that purpose. Free- lander & Gerson v. HoUoman et aL, 9 N. B. R 331; Fed. Cas. 5,081. 33. By proving debts in bankruptcy, cred- itors waive all right of action against the bankrupt, either upon a judgment or the original indebtedness. In re Meyers, 1 N. B. E. (8 vo. ed.) 581; 3 Ben. 434; Fed. Cas. 9,518. 34. Bankrupts created a debt by fraud. A creditor having proved his claim and taken 406 PROOF OF CLAIMS, VL a dividend instituted suit for balance and procured a warrant of arrest. On motion for stay of proceedings and to set aside war- rant of arrest, held, that as the debt was cre- ated by fraud, the creditor did not waive his right to sue for the balance by proving his claim and taking a dividend. In re Clews et al., 19 N. B. R. 109; Fed. Cas. 2.891. 35. A firm creditor, by proving his debt in bankruptcy proceedings against a single part- ner, does not lose his right as a creditor against the firm or its assets. Hudgins v. Lane et al., 11 It B. R. 462; 2 Hughes, 361; Fed. Cas. 6,827. 36. A. and B. each filed a petition in in- voluntary bankruptcy against C. While the proceedings were pending C. himself filed a petition and was adjudged a bankrupt. A. and B. proved their claims under the volun- tary petition. Held, that they thereby waived their right to continue the involuntary pro- ceedings. In re Nounnan & Co., 6 N. B. R. 579. 37. A conditional vendor's claim for the conversion of the property is not lost by proving his debt. Johnson v. Worden, 13 N. B. R. 335. 38. If a creditor prove his debt against a bankrupt, the only effect, under section 21 of the act of 1867, is that he cannot after- wards maintain a suit against the bankrupt on the debt, and proceedings pending thereon against the bankrupt, and unsatisfied judg- ments already obtained thereon against him, are discharged. In re Levy, 1 N. B. R. 66; 2 Ben. 169; 1 Amer. Law T. Rep. Bankr. 122; Fed. Cas. 8,297. 39. A judgment was ordered for the de- fendant on the ground that the plaintiff, having proved his debt in bankruptcy, was precluded from maintaining a subsequent action to enforce the same. The proceedings in bankouptcy were terminated before the bringing of the action, without the discharge of the defendant. Upon appeal, a new trial was granted. Miller v. O'Kain, 14 N. B. R. 145. 40. Proving a debt in bankruptcy does not of itself operate as an absolute extinguish- ment or satisfaction of the debt, the creditor being remitted to his former rights and rem- edies, if the bankrupt is refused his discharge. Dingee v. Becker, 9 N. B. R. 508; Fed. Cas. 3,919, 41. It is no ground of defense or suspen- sion of an action, on a joint or joint and several promissory note, against a surety, that the note has been proved as a claim against 'the principal in a court of bank- ruptcy. Gregg V. Wilson, 15 N. B. R. 142. 42. In an action in a state court the de- fendant pleaded in bar that he had been ad- judged bankrupt since the institution of the suit, that the plaintiff had proved his debt in bankruptcy, and that the proceedings in bankruptcy were still pending. Seld, that the plea was insufficient. Brandon Mfg. Co. V. Frazer & Co., 13 N. B. R. 362. 43. A creditor of a bankrupt brought an action on a promissory note. The defendant pleaded that it had been adjudicated bank- rupt and that the plaintiffs had proved the claim in suit in the bankruptcy proceedings and received a dividend, and were prevented from recovering in a subsequent action. Held, that the plaintiffs might recover the balance of their claim. New Lamp Chimney Co. V. Ansonia Brass & Copper Co., 13 N. B. R. 385; 91 U. S. 656. 44. An indorser is not released from his liability even if the holder has proved his debt in bankruptcy against the maker for the full amount as an unsecured claim; but the holder by so proving releases his claim as well at law as in equity to a mortgage given for the purpose of indemnifying the indorser. Merchants' Nat. Bank of Syracuse v. Corn- stock, 11 N. B. R. 235. yi. Effect of Not Maktttg. 45. If a mortgagee does not prove his debt he may enforce his mortgage in a state court, although the assignee set the property apart as an exemption to the bankrupt mortgagor. Hatcher v. Jones, 14 N. B. R. 387. 46. Where a fiduciary creditor faUs to come into court and prove his debt, etc., he is not bound by the discharge, but may re- cover from the bankrupt by showing that it was within one of the exceptions in the act of 1841. Chapman v. Forsyth, 2 How. 202. 47. Creditors inhibited from proving their debts will be excluded from voting for an assignee. In re Stevens, 4 N. B. R. 122; 4 Ben. 513; Fed. Cas. 13,391. 48. Creditors acquire no right to proceed PROOF OF CLAIMS, VII, VIIL" 40T in an action against a bankrupt, pending de- termination of the question of discharge, from the fact that they have not proved their claims in bankruptcy. In re Schwartz, 15 N. B. R. 330; 14 Blatchf. 196; 52 How. Pr. 513; 15 Alb. Law J. 850; Fed. Cas. 13,503. 49. Without proof of the debt in bank- Tuptcy no lien can be enforced, nor can divi- dends be received on account of it. In re Jordan, 9 N. B. R. 416; Fed. Cas. 7,539. YII. Maitnee of Making. 50. A debt is to be considered as proved -when it is duly authenticated and sent to the assignee or to the register. Ex parte Harris •et al.. In re Cochrane, Jr., 16 N. B. R. 433; 3 Lowell, 568; Fed. Cas. 6,109. 51. For the holder of the paper of a bank- rupt to be able to prove his claim, he must .show that he paid value, or incurred some responsibility, or relinquished some right, or granted some indulgence, or discharged a precedent debt, upon the faith and credit of the paper. In re Howard, Cole & Co., 6 N. B. R. 373; Fed. Cas. 6,751. 52. As a very general rule, the register should demand the same degree of proof, before admitting a creditor to vote for as- signee, as is requisite in a trial at law or a hearing in equity. Exceptional cases, if free from all suspicion, might authorize devia- tion. In re Northern Iron Co., 14 N. B. R. •S56; Fed. Cas. 10,333. 53. A creditor is not bound, upon a mere objection to his claim, to produce such evi- dence thereof as would be necessary at an ordinary trial In re Saunders, 13 N. B. R. 164; 3 Lowell, 444; Fed. Cas. 13,371. 54. The citation throws upon the creditor the burden of supporting his claim by further proof than that already filed. In re Lount, 11 N. B. R. 815; 7 Chi. Leg. News, 155; Fed. ■Cas. 8,543. 55. A receiver of property of a creditor of the bankrupt is an assignee of the debt due such creditor and as such may prove it. But if assigned before proof, the proof must be supported by the deposition required in Gen- eral Order 34 under the act of 1867, The cepos'tion naay in the first instance be ex parte, as in Form No. 32. In re MiUs, 17 N. B. R, 472; Fed. Cas. 9,613. 56. Where the consideration for which a note presented for proof is set forth in a creditor's deposition as goods, wares, mer- chandise, etc., the kind of goods, the quan- tity, the price, the date of the transaction and the time of delivery, if delivered at one time, or if delivered continuously through a period of time, that period, should be stated. In re Elder, 3 N. B. R. 165; 1 Sawy. 78; 17 Pittsb. Leg. J 178; 3 Amer. Law T. 140; 2 Chi. Leg. News, 341; 1 Amer. Law T. Rep. Bankr. 198; Fed. Cas. 4,336. 57. In a proof of debt the creditor should set forth at least one full Christian name of the afiSant and of the bankrupt, in addition to the surname. In re Valentine, 13 N. B. R. 389; 4 Biss. 817; 1 N. Y. Wkly Dig. 101; Fed. Cas. 16,813. 58. A deposition in support of a proof of claim in involuntary bankruptcy must show whether the claim is secured or unsecured. Cunningham v. Cady, 18 N. B. R. 525; 8 Chi. Leg. News, 165; 4 Amer. Law Rec. 510; Fed. Cas. 3,480. 59. Proof of debt in a foreign country must be taken in accordance with section 5079, Revised Statutes. In re Lynch & Em- berson, 16 N. B. R. 38; 24 Pittsb. Leg. J. 205; Fed. Cas. 8,635. 60. Where papers, annexed to an answer to a petition to expunge proof of a claim, are sought to be used as evidence, they must be proved in the usual manner. Canby, Ass., v. McLear, 13 N. B. R. 33; Fed. Cas. 3,378. 61. A creditor who, after making a depo- sition to prove his debt, retains possession of the deposition and does not allow it to pass into the hands of the assignee, is not one who has proven his debt. In re Sheppard, 1 N. B. R. 115; 7 Amer. Law Reg. (N. S.) 484; Fed. Cas. 13,753. VIII. Postponement of. 62. The proof of a claim may be postponed until after the choice of an assignee. In re Smith, 1 N. B. R. 25; 2 Ben. 113; Fed. Cas. 12,971. 63. At the first meeting of creditors the register postponed the allowance of certain claims until after the election of an assignee. The certificate and opinion of the register were approved by the district court, and such 408 PROOF OF CLAIMS, IX decision was affirmed on petition for review by the circuit court. In re Northern Iron Co., 14 N. B. R. 356; Fed. Cas. 10,332. 64. To justify postponement of a claim until after the election of an assignee, it is not necessary that the register shall be sat- isfied the claim is invalid, or that the cred- itor has no right to prove it. If he have a substantial doubt he should postpone the claim. The doubt should be reasonable and substantial. There must be proper investi- gation. The register cannot postpone on mere objections. When the power of post- ponement is erroneously exercised the mat- ter may be certified to the court. Mere relationship to the bankrupt will not justify postponement. In re Jackson et aL, 14 N. B. E. 449; 7 Biss. 280; Fed. Cas. 7,123. 65. At a first meeting of creditors were five creditors related to the bankrupts. Other creditors, therefore, asked that these claims be inquired into. The register thereupon postponed proof of these claims, and, there being no choice of assignee, appointed one. Afterward, objection was made to such post- ponement, and to the reception of the proof of another claim by the agent of the oi'ed- itor, himself absent in another state. The appointment of the assignee was confirmed by the court. Id. 66. When a creditor objects to the post- ponement of his claim, he should have the objection entered and the question certified before any further action transpires before the register. Id. 67. A register may postpone the proof of a claim where there are doubts as to its validity, in view of the receipt of a prefer- ence contrary to the provisions of the bank- rupt act of 1867. In re Stevens, 4 N. B. R. 122; 4 Ben. 513; Fed Cas. 13,391. 68. Where creditor has accepted a pref- erence, having knowledge of the debtor's in- solvency, the proof of his claim should be postponed until after the election of the as- signee. In re Chamberlain and Chamber- lain, 3 N. B. E. (8 vo. ed.) 710; Fed Cas. 2,574. 69. One creditor had received a prefer- ence, and the claims of the others had been purchased with money belonging to the bankrupt and in collusion with him. Held, that the register had a right to postpone proof of their claims until after election of the assignee, and to reject their votes. In re Herrman & Herrman, 3 N. B. R. 153; Fed. Cas. 6,436. , 70. The proof of a claim, postponed at the first meeting of creditors until the election of an assignee, is to be treated in aU respects as if it had not been before tendered and postponed. Id. 71. A claim founded upon a large opem account between the parties, and being in dispute between them, is of a doubtful char- acter, and the rights of the creditor are post- poned imtil an assignee is appointed. In re Jones, 3 N. B. R. 30; Fed Cas. 7,447. 72. When it appears at the first meeting of creditors that the names of certain cred- itors by whom claims against the estate are presented do not appear upon the schedule, the proof of such claims should be postponed until after the election of an assignee. In re Milwain, 13 N. B. R. 358; 1 N. Y. Wkly. Dig> 76; Fed Cas. 9,633. 73. Where the officers of a bankrupt cor- poration present large claims, the register should postpone the proof thereof until after the election of the assignee.' In re Lake Su- perior Ship Canal, Railroad and Iron Co., 7 N. B. R. 376; Fed. Cas. 7,997. 74. If the debts be objected to, the register cannot admit them to proof and allow a vote for assignee, as that would be the de- cision of a question which he has no power to decide. In re Hunt, 17 N. B. E, 305; 35. Leg. Int. 71; Fed Cas. 6,884. IX. Ke-examination of. 75. When an assignee files a petition for a re-examination of a proof, the creditor need only offer himself for examination, and the assignee must introduce sudh opposing proof as he may have. In re Robinson, 14 N. B. R.^ 130; 8 Ben. 406: Fed. Cas. 11,938. 76. Creditors seeking a re-examination of claims are in no position to ask it, unless a petition for re-examination has been filed in compliance with General Order No. 34 issued under the act of 1867. In re Tifft, 17 N. B.- R. 503; Fed. Cas. 14,039. 77. The proof of a debt offered by a cred- itor was rejected by the district court, on; objection by the assignee. Held, that the- creditor should sue the assignee and thus PROOF OF CLAIMS, X, SI— EATIFICATION. 40» establish his claim. Adams v. Meyers, 8 N. B. R. 214; 1 Sawy. 306; Fed. Cas. 62. 78. A claim against an estate, allowed by the register before the appointment of an as- signee or of the trustees, can, on notice to the respective claimants, be opened and passed upon anew. Where the trustees are satisfied a demand is correct they can allow it. They can dispose of assets and settle the estate without special orders; keep their own ac- counts and records; have the aid of the reg- ister or judge when needed, and have their actions closed by formal decree. In re Darby, 4 N. B. R 98; 4 N. B. R. 61; 18 Pittsb. Leg. J. 154; Fed. Cas. 3,570. X. "When Made. 79. A creditor who proves his claim after the time for the hearing of an application for discharge cannot be heard in opposition to the application, nor can his debt be counted among the claims proved so as to affect the discharge. In re Borst, 11 N. B. R. 96; Fed. Cas. 1,666. 80. A voluntary bankrupt applied for a discharge; no debts had been proved and no creditors appeared. Subsequently M. & Co. proved for $1,512.35, on which debt all assets, $95, were paid. Held, that a creditor, in order to contest a bankrupt's discharge, must prove his debt on or before the day appointed to show cause, or else appear on that day and object. In re Read, 19 N. B. R 231; 11 Chi Leg. News, 288 ; 4 Cin. Law BuL 394 ; Fed. Cas. 11,600. ' XI. "WiTHDEAWAL OF. 81. Where a proof of debt may be with- drawn without affecting the^ rights of inter- vening creditors injuriously, and all parties may be restored to their former position, the court may permit the withdrawal. In re Hubbard, 1 N. B. R. (8 vo. ed.) 679; 1 Lowell, 190; Fed. Cas. 6,813. 82. A creditor may withdraw the instru- ment, but not the proof of a debt, in bank- ruptcy proceedings. In re Emison, 2 N. B. R. 179; 1 OhL Leg. News, 842; Fed. Cas. 4,459. 83. The register cannot order or permit the withdrawal of a proof of debt after he has passed upon the same, and allowed, cer- tified and transmitted the proof to the as- signee. In re Mcintosh, 3 N. B. R. 158; Fed. Cas. 8,8S6. 84. Neither proof of debt nor deposition; can be withdrawn, the bankrupt objecting, merely because the deposition does not state that promissory notes not yet due are held, upon payment of which the claim is to be discharged. The creditor may be required to amend. In re Lawrence, 1 N. B. R. (8 vo. ed.) 74; 1 Ben. 406; 6 Int. Rev. Reo. 115; Fed. Cas. 8,577. PROXY. See Attoeney, 2. PTJBLICATIOIT. See Notices, IX PUECHASER. See Sat.es. QUALIFICATION'S. See Judge. RAILROAD. See Corporations, RATIFICATION. 1. One can only ratify a previous act when he is capable at the time of ratification of then performing the act ratified. Cook et aL V. Tullis, 9 N. B. R. 433; 18 WalL 832. 2. A ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third persons have inter- vened between the act and the ratification. Id. 3. The doctrine of ratification (omnis rati- hdbitio retrotrahitur, etc.) is of no force when its application wotild prejudice the rights of strangers. In re Kansas City Stone & Marble Mfg. Co., 9 N. B. R. 76; Fed. Cas. 7,610. 410 EEASONABLE CAUSE — RECEIVER, I ' 4. The assignee is not bound by the bank- rupt's ratification or acquiescence in a sale ■of collaterals made after the commencement ■of the proceedings in bankruptcy. Sparhawk ■et aL V. Drexel et al., 13 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 18,204 5. Subsequent ratification of the action of a board of trustees in filing petition by stock- holders does not cure the defect of a want of jurisdiction in the register at the commence- ment of the proceedings. In re Lady Bryan Mining Co., 4 N. B. R. 131; 2 Abb. 527; 1 Sawy. 349; Fed. Cas. 7,978. REASONABLE CAUSE. ■See Insolvenot, IV; Pebfebences, IV, (b), VI, ZVI, (g). RECEIVER. I. Appointment. II. Duties and Rights. IIL In General. See Conflict of Laws, 13; Dischaege,132; Injunction, 13, 22; Peefeeence, 117, 118; Trustees, 61. I. Appointment. See Courts, 347. 1. Where a receiver has been appointed by the state court to take possession of the prop- erty of a corporation, the United States court •will not appoint a receiver, as the jurisdic- tion is concurrent. Blake v. Ala. & Chat. R. E. Co., 6 N. B. R. 831: Fed. Cas. 1,493. 2. A. and B., partners, were sued individ- ually on. certain firm notes by C, but, B. having become a non-resident, C. caused an attachment to issue against him. A. owed B., but, having been declared a bankrupt, C. garnished assignee in bankruptcy. Held, that court had no jurisdiction, but that a re- ceiver of B.'s effects should be appointed, who, representing B. in the bankruptcy dis- tribution, would receive from A.'s assignee all moneys coming to B., and then account to the state court for them. Jackson v. Mil- ler et aL, 9 N. B. R. 143. 3. A petition was filed in the United States circuit court for the southern district of Alabama, praying that a receiver be ap- pointed for railroad property. Held that, as the United States circuit court for the southern district of Mississippi and the chancery courts of Alabama, Georgia and Tennessee had ac- quired jurisdiction, and as their powers were just as large, and as they were competent to administer full relief, court would not inter- fere. Alabama & Chatt. R. R. Co. v. Jones, 7 N. B. R. 145; Fed. Cas. 127. 4. A United States district court in bank- ruptcy will not interfere, with possession of receivers appointed by state court to take charge of railroad until title is impeached for cause impeachable under bankrupt act. Alden v. Boston, H. & E. R. R. Co., 5 N. B. R. 230; Fed. Cas. 152. 5. A bill was filed by certain stockholders praying an injunction to prevent contem- plated fraudulent acts, and a receiver, which latter was appointed. Thereafter a petition in bankruptcy was filed, and, an assignee being appointed, a motion was made to dis- charge the receiver and to transfer the proj)- erty to the assignee. The motion was denied. Myer et al. v. Crystal Lake P. & P. Works, 14 N. B. R. 9. 6. Where the court takes possession of property and places the same in the hands of receivers, the rights of the parties are not thereby affected, as the receiver holds for the legal owner and the action of the court is merely suspensive. Miller v. Bowles et aL, Appleton V. Stevers, Ass., 10 N. B. R 515. 7. The appointment of a receiver by a state court to take possession of the assets of a person, firm or corporation, and apply the same to the payment of debts, is a " taking on legal process," within the meaning of the act of 1867. In re Mer. Ins. Co., 6 N. B. R. 43 ; 8 Biss. 162; 20 Pittsb. Leg. J. 32; 4 Chi Leg. News, 73; Fed. Cas. 9,441. 8. To entitle a mortgagee to have a re- ceiver appointed, it must appear that the mortgaged premises are inadequate security for the debt, and that the mortgagor or other person liable for the debt is insolvent. The inadequacy must be clearly made out. Burlingame, Ass. etc., v. Parce et aL, 17 N. B. R.246. RECEIVER, II, III — RECORD. 411 II. Duties and Hights. See CORPOEATIONS, V; Evidence, 99. 9. Receivers of a corporation, declared in- solvent under state laws, claimed the right to administer the assets as against the bank- ruptcy courts. Held, the United States bank- ruptcy courts could take as against them. In re Ind. Ins. Co., 6 N. B. R. 360; Holmes, 103; Fed. Gas. 7,017. 10. Action to foreclose a mortgage. A re- ceiver of the rents of the real estate was ap- pointed after the mortgagor filed his petition, but before adjudication. Sale of premises did not yield suflScient to pay the mortgage, and the mortgagee moved that the rents be paid to him in reduction of the deficiency, but the assignee claimed the money. Held, that the mortgagee was entitled to the rents. Hayes v. Dickinson, 15 N. B. R. 350. 11. When a receiver goes into a court of law he must stand on the legal estate. If he applies for leave to use the name of the person having the legal right of action, the 84. A trustee under a deed of trust exe- cuted prior to the commencement of proceed- ings in bankruptcy against the creditor sold the land after such proceedings, though noti- fied of the same, but prior to the appointment ■of an assignee. Held, that the sale was void- able, not void. McGready v. Harris, 9 N. B. E. 135. 85. Two days prior to filing a petition against the mortgagor, the mortgagee, by virtue of his power to sell, made sale by auc- tion of the mortgaged premises, but the pur- chasers declined to make payment as per conditions of the sale or to receive the deed, whereupon the mortgagee, after petition, ad- vertised the premises for sale. Held, that the bankrupt court had power to and should en- join the mortgagee from proceeding. Whit- man V. Butler, 8 N. B. E. 487: Fed. Cas. 17,579. 86. A bankrupt was indebted to a cred- itor, the debt being secured by a deed of trust, and shortly after the adjudication the trustee named in said deed advertised and sold the property secured. Held, that such sale could only be valid by permission of the court after the creditor had proved his claim in the proceedings. In re Davis, Ass., et al., 3 N. B. E. 135; 2 Amer. Law T. Rep. Bankr. 53; 1 Chi. Leg. News, 171; Fed. Cas. 3,618. (d) Sheriff. See Attachment, 33, 34, 63; Estates, 139, 373. 87. The assignee is entitled to the surplus proceeds of a sheriff's sale of the bankrupt's real estate as against a judgment creditor who has waived his lien and proved his claim. Wallace v. Conrad, 3 N. B. E. 10. 88. Before a voluntary petition was filed execution issued upon a judgment, and the shei'iff levied on and held personal property of the bankrupt. The levy was held to be good and the sheriff was authorized to sell the property. In re Smith et al., 1 N. B. R. 169; 3 Ben. 432; 1 Amer. Law T. Eep. Bankr. 113; Fed. Cas. 13,973. 89. Where a levy was made before the commencement of bankruptcy proceedings, the possession and legal title being in the sheriff for the purpose of satisfying the pro- cess in his hands, he, as trustee, may sell the property unless enjoined from so doing. Jones V. Leach et aL, 1 N. B. E. 165; Fed. Cas. 7,475. 90. Where a sheriff sold perishable goods under an attachment by order of a state court without notice of the adjudication of the defendant in bankruptcy, he was 'guilty 430 SALES, V, (e). of conversiou and is liable for the market value of the goods so converted. Long, Ass., V. Conner, Sheriff, 17 N. B-. E. 540; Fed. Cas. 8,479. 91. If there be a recovery of judgment before bankruptcy, the sheriff may sell, but the bankrupt court has the riglit to cause the sale to be made under its supervision. Allen et al. v. Montgomery et al., 10 N. B. R. 503. (e) Seourity. 92. A suit to foreclose a mortgage was filed and a receiver was appointed before the institution of proceedings in bankruptcy. The bankrupt court ordered the mortgaged property to be taken out of the hands of the receiver and delivered to the assignee. This was done, and the property was sold. Held, that the sale was void and that the trustees under the mortgage could recover the prop- erty from the purchasers. Davis et aL, Tr., V. Railroad Co. et al., 13 N. B. B. 258; 1 Woods, 661; Fed. Cas. 3,648. 93. No permission to sell securities that are the property of a bankrupt should be granted to creditors until their right to do so is shown, as prescribed in .section 22 of the act of 1867. In re Bigelow*, 1 N. B. R. 186; 3 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1,396. 94. Certain property was conveyed by bill of sale, and certain promissory notes were given therefor, all of which excepting the last were paid. Payment of the last was re- fused, and soon after the purchaser became bankrupt. The assignee refused payment on the ground that the bill of sale was not re- corded in the town wherein the purchaser resided. It appeared that it was recorded in the town where the purchaser stated that he resided. The assignee was therefore ordered to pay the amount due, with costs. Allen v. Whittemore, Ass., 14 N. B. E. 189; 8 Ben. 485; Fed. Cas. 241. 95. Where a sale is made after the com- mencement of proceedings in bankruptcy, under a decree entered before the adjudica- tion, in an action to foreclose a mortgage in a state court, and a decree for the deficiency is entered against the bankrupt, the decree is a bar to the right of the assignee to raise gage. Cutter, Ass. etc., v. Dingee, 14 N. B. R. 294; 8 Ben. 469; Fed. Cas. 3,518. 96. Tlie value of a seourity cannot be as- certained by the creditors sending it to an auctioneer and having it advertised and sold at auction. In re Hunt, 17 N. B. R. 205; 85 Leg. Int. 71; Fed. Cas. 6,884 97. In the schedule of liabilities the plaintiff's claim was represented as secured.. The plaintiff was present at the composition proceedings and neither objected nor as- sented. On sale of the property, which was security for his deBt,^gs than the amormt of the debt was realized. Held, that the plaintiff was entitled to the percentage agreed upon al the composition, of his un- paid debt. Paret v. Ticknor et al., 16 N. Bj E. 315; 4 DiU. Ill; 5 Cent. Law J. 328; Fed. Cas. 10,711. 98. A sale by a creditor of property of ai debtor iu his possession and on which he hag a valid lien will not be disturbed by the fact that the debtor was insolvent and that the creditor knew it, provided there was no fraud and the property was sold for a fair price. In re EosebeiTy et aL, 16 N. B. R. 340; 8 Biss. 113; Fed. Cas. 12,052. 99. A. sold a tobacco outfit to B., reserv- ing title in himself until B. should pay for it. B. gave C. a deed of trust on it and later sold it to D. D. becoming bankrupt, it was sold by consent, when it was held th,at the balance due A. should be paid prior to the sum due C. In re Binford, 17 N B. R 353; 3 Hughes, 295; Fed. Cas. 1,411. 100. A stipulation in a sale of personal property reserving title in the vendor is, in the absence of fraud, valid against purchas- ers of the vendee for value and without no- tice. Id, 101. The claim of the wife's separate es- tate is prior to that of judgment creditors where the separate estate has been used to improve property of the bankrupt with an agreement that the property is to be deeded to the wife, and the claim should be paid out of the proceeds of the sale of such property. In re Campbell, 17 N. B. R. 4; 3 Hughes, 376; Fed. Cas. 3.348. 102. H., a bankrupt, was indebted to R.. for rent, and as security gave R. a bill of sale of a musical instrument, which he delivered the question of usury in regard to tlie mort- 1 to E. Subsequently H. borrowed the instru. SALES, VL 431 ment, agreeing to return it, but had exclusive use of it several months before he went into bankruptcy. E. petitioned to have his lien enforced. Held, that he had waived what- ever right he might otherwise have had under the bill of sale, and that the transaction was a pledge and not a mortgage. In re Harlow, 10 N. B. R 280; Fed. Cas. 6,070. 103. Where there are two mortgages and the proceeds of a sale in bankruptcy are suf- ficient to pay off the first mortgage as well as costs and expenses, the senior mortgagee is entitled to be paid in full, the same as he would in a case of a sale by way of foreclos- ure of the mortgage. In re Bartenbach, 11 N. B. R 61; 3 Amer. Law T. Rep. (N. S.) 38; Fed. Cas. 1,068. 104. A creditor holding certain securities pledged for his debt applied to the court for an order for a sale of such securities to satisfy said debt, before the appointment of an as- signea Hdd, that a sale could not be ordered until such appointment. In re Grinnell et al., 9 N. B. R 29; 7 Ben. 43; 21 Pittsb. Leg. J. 83; Fed. Cas. 5,830. 105. A sale cannot be ordered by the court until the appointment of an assignee, as such a course would prevent the election given to the assignee by the act: 1. To redeem the property pledged; 3. To sell it subject to the lien; and 3. To release the equity of redemp- tion at an agreed price. Id. 106. A sale made by a creditor secured by a deed of trust, after the commencement of proceedings in bankruptcy, without per- mission of the bankrupt court, will be set aside. Smith v. Kehr, 7 N. B. R 97; 3 DiU. 50; 6 West. Jur. 451; Fed. Cas. 13,071. 107. A mortgagee bid in the property at the mortgage sale for a sum less than the mortgage debt and interest. The court did not err in requiring the mortgagee to pay the costs and expenses of the sale out of the amount bid. In re EUerhorst et al., 7 N. B. R 49; 3 Sawy.' 219; Fed. Cas. 4,380. 108. S. B. & Co. held a lien as security to them on letters patent of the bankrupt. It was ordered by the court that said letters patent should be sold jointly by the assignee and S. B. & Co. and the funds obtained de- posited pending a settlement of the suit. In re Columbian IL Works, 3 N. B. R. 18; Fed. Cas. 3,039. VI. I3sr Geneeal. 109. The provision of the bankrupt act avoiding certain sales applies to sales of bankrupts, not of insolvents. Bromley v.. Goodrich et al., 15 N. B. R 289. 110. When a consignment is made and bills of exchange are drawn for the value, and bills of lading are sent to a third person to be delivered on payment of the bills of exchange, a sale is made in which a general property passes to the consignee, and a spe- cial property is reserved by the consignor until the payment of the value. In re Cham- berlain, 12 N. B. R 280; 2 Hughes, 26t; 14 Amer. Law Eeg. (N. S.) 688; 4 Amer. Law Eeo. 304; Fed. Cas. 4,855. 111. When, under an unrecorded bill of sale, possession is taken of the chattel, under the Massachusetts statutes, the instrument is valid against third persons from the time of its execution unless intervening rights have obtained. Sawyer et aL v. Turpin et al., 13N. B. R271; 91 TJ 8.114.' 112. Where a sale is made conditioned, upon the goods (machinery) being delivered and set up for use, a direction to a servant of the purchaser by the agent to finish plac- ing the machinery, and that he, the agent, would pay the purchaser, is not a waiver of the contract so that title will pass to the pur- chaser if he becomes bankrupt before the- work is done. In re Pusey, 6 N. B. E. 40; Fed. Cas. 11,477. 113. Where a partnership is dissolved and the whole stock transferred to the only solv- ent partner, for the purpose of settling the partnership affairs, a sale by the partner of such stock is not an act of bankruptcy, for- it was designed that a sale by gross should be made, and the statutory presumption is rebutted by the evidence. In re Weaver, 9 N. B. R 182; Fed. Cas. 17,307. 1 14. A court of equity will in no instance expose to sale an interest capable of being reduced to certainty where any doubt exists as to its character and extent. Sutherland et aL V. Lake Sup. S. C, R & L Co., 9> N. B. R 298; 1 Cent. Law J. 137; Fed. Cas. 13,643. 115. To be a bona fide purchaser without notice, a person must be without notice of the equities sought to be enforced at the tirne at 432 SALES, VL" payment of the consideration. Marsh et al., Ex'rs, V. Armstrong, 11 N. B. E. 125. 116. The district court does not have power to order in a summary way the sale of an estate if it appears that it is in the hands of a third person claiming absolute title to it, whether derived from the bankrupt or mot. Knight v. Cheney, 5 N. B. R. 305; Fed. das. 7,883. 117. Money arising from the sale of prop- erty attached represents the property. Money arising from the sale of household property sold under an attachment belongs to the bankrupt as an exemption if claimed. In re Ellis. 1 N. B. R. 154; Fed. Cas. 4,400. 118. District courts do not possess the pow6T to order in a summary way the sale 'Of property, although the same is claimed by the assignee, even though the title thereto is in dispute, if it also appears that the estate is in the possession of a third person holding the same and claiming absolute title to it as his own property, whether derived from the debtor before he was adjudged bankrupt or from some former owner. Gilford et al. v. Helms et al., 19 N. B. R. 113; 98 U. S. 348. 119. A motion to expunge an order for sale of such choses in action belonging to the estate of the bankrupt as " could not be col- lected without inconvenient delay or ex- pense " was made by the register. Held, that the register had the power to make such order. In re The Bank of N. C, 19 N. B. R. 164; Fed. Cas. 896. 120. A party who has levied an execution Tipon the property of the bankrupt before adjudication ought not to proceed to a sale without such permission, and if he does so the sale may be set aside, and he may be held liable for the actual value of the property, regardless of the amount realized upon the sale. In re Hufnagel, 12 N. B. R. 554; Fed. Cas. 6,837. 121. The bankrupt court has authority to order the sale of property pledged or mort- gaged by a bankrupt, and the proceeds to be brought into court, to await the determina- tion of the rights of the pledgee or mort- gagee. In re The Columbian Metal Works, 3 N. B. R. 18; Fed. Cas. 3,039. 122. Commission merchants and pork packers who in the course of business made advances of money for the purchase of hogs which they afterwards packed, under an agreement with the parties to whom such advances were made, stipulated for a lien upon the hogs to secure their advances with interest and their charges and commissions. On the eve of the bankruptcy of a consignor and knowing that such bankruptcy was im- pending, they sold hogs in their possession consigned by the bankrupt and applied the proceeds to their debt. Held, that the sale should not be disturbed. In re Eoseberry et al., 16 N. B. R. 340; 8 Biss. 113; Fed. Cas. 13,053. 123. If goods are sold for cash, but the price is not paid, the non-payment will war- rant a rescission of the sale. In re Foot et aL, 11 N. B. R..153; 11 Blatchf. 530; Fed. Cas. 4,907. 124. A sale of stock, held by a creditor as collateral security, to such creditor for two- fifths of its value, will be set aside, and an- other sale ordered. A bankrupt court has discretion to refuse to confirm a sale for in- adequacy of price, such sale being subject to the approval of the court. In re Bous- field & Poole, 16 N. B. R. 481; Fed. Cas. 1,703. 125. A creditor who takes a bill of sale of property purchased with money furnished by him is not given a preference where such bill of sale does not include more than he was entitled to. In re The Bousfield Mfg. Co.,16N. B. R. 489; Fed. Cas. 1,703. 126. After the adjudication of bank- ruptcy, the defendant, even prior to his dis- charge, is as much at liberty as any other person to purchase property surrendered by him. Traer v. Clews, 115 U. S. 538. 127. The sale by an assignee of all his property for a nominal sum does not pass a claim for a larger amount concealed by the bankrupt from the assignee. Such claim, when afterwards recovered by the bankrupt, could be reached by a creditor after a dis- charge. Clark V. Clark, 17 How. 315. 128. The interest of a tenant in common, not exceeding $5,000 in value, in the dwell- ing-house and land occupied by him as a homestead, is, by the Nevada constitution and laws, exempt from forced sale. In re Swear- inger & Lamar, 17 N. B. R. 138; Fed. Cas. 13,683. 129. "Where the exercise of the power of sale contained in a chattel mortgage will in- SATISFACTION — SCHEDULES, I, U. 433 juriously aflEect the interests of the general creditors of a bankrupt, a court of equity- may restrain such sale. Dwight et al. v. Ames et al., 2 N. B. R. 147; Fed. Cas. 4,314 SATISPACTIOlf. See Attachments; Judgments, U; Mort- gages, 147. SAVINGS BANK. See Banks. SCHEDULES. I List of Creditoks. IL Amount of Debts. in. Amount of Assets. IV. In Relation to Discharge. V. Amendment. VX Verification. VIL Fraud. VIIL In General. See Exemptions, 73; Limitations, Statute op, 9, 36; Partners, 86; Petitions, 116; Pleading and Practice, 143; Ref- eree, 11. I. List of Ceeditoes, See Courts, 98. 1. A.'8 claim was omitted from a bank- rupt's schedule, and no notice was given him of the proceedings except by publication. Sdd, that A.'s claim was barred by the dis- charge, in the absence of averment and proof that such omission was fraudulent. Piatt v. Parker, 13 N. B. R. 14 2. An involuntary petition was filed since December 1, 1873, and the alleged bankrupt made denial of acts of bankruptcy and de- manded a jury triaL Held, under section 39 (act of 1867), as amended June 33, 1874, that he was required to file a list of creditors and the amount of their claims. The Warren Sav. Bank v. Palmer & Co., 10 N. B. R. 239; 10 Phila. 286; 31 Leg. Int. 261; 6 Chi. Leg. News, 566; 21 Pittsb. Leg. J. 193; Fed. Cas. 17,207. 3. The bankrupt is required to file a full list of his creditors, with their places of resi- 38 dence and the sums due them respectively. In re Rosenthal, 10 N. B. R. 191; 1 Cent. Law J. 364 (note); 6 Chi. Leg. News, 342; 31 Leg. Int. 254; Fed. Cas. 12,062. 4. The debtor is not obliged to give a schedule of his creditors until a prima facie case is made against him as to the number and value of his creditors (amendatory act of 1874). In re Soammon, 10 N. B. R. 66; 1 Cent. Law J. 338; 30 Int. Rev. Rec. 33; Fed. Cas. 12,430. 5. Where it appears at the first meeting of creditors that the names of certain cred- itors by whom claims against the estate are presented do not appear upon the schedule, the proof of such claims should be post- poned until after the election of an assignee. In re Milwain, 13 N. B. R. 358; 1 N. Y. Wkly. Dig. 76; Fed. Cas. 9,623. 6. The omission to place a claim upon a list of creditors is merely a circumstance of suspicion. In re Mendelsohn, 12 N. B. R. 533; 3 Sawy. 342; Fed. Cas. 9,420. II. Amount of Debts. 7. A judgment in favor of a bankrupt should be set forth in his schedule. In re Sallee, 2 N. B. E. 73; 2 Amar. Law T. Rep. Bankr. 7; Fed. Cas. 12,356. 8. A debt barred by the statute of limita- tions of Maine is not revived by its entry on the schedule of liabilities of the bankrupt. In re Harden, 1 N. B. R. 97; 1 Hask. 163; 15 Pittsb. Leg. J. 343; Fed. Cas. 6,048. 9. The failure of a bankrupt to state upon the schedule the nature of a debt, if it be a fiduciary one, makes him guilty of fraud. Chapman v. Forsyth, 3 How. 303. 10. Debtors should set down in the sched- ules all the paper they are liable on, with proper explanations. In re Henry et aL, 17 N. B. E. 463; 9 Ben. 449; Fed. Cas. 6,370. 11. In an action brought under sections 35 and 39 of the act of 1867, the bankrupt's schedule of indebtedness is not material evi- dence of insolvency. Tyler, Ass., v. Brock et aL, 17 N. B. E. 339. 12. A mistake without fraud, made by the debtor in his statement of the amount due a creditor, will not vitiate a composition. In re Trafton,14 N. B. R. 507; 2 LoweU, 505: Fed. Cas. 14,133. 434: SCHEDULES, III, IV. 13. Where the district court determines that a statement of the debts sufficiently States the address of a creditor, the decision is binding in a collateral action. Smith et al. V. Engle et al., 14 N. B. E. 481; E. S. 5044 14. Where a decree requires the state- ment of debts and assets to be filed, the pre- sumption in a collateral action is that it was done as directed. Id. 1 5. In the schedule furnished by the bank- rupt in composition proceedings, one debt was understated, but not intentionally. Held, that such mistake would not avoid the com- position. Beebe y. Pyle, 18 N. B. E. 163. III. Amount of Assets. See Assignments, 54; Composition, 50; Es- tates, 183, 317, 318, 319, 345. 16. Where a husband's equitable interest in the estate of the wife has been levied upon and sold, the husband has no longer any in- terest therein to be returned in his schedule. In re Hummitsh, 2 N. B. E. 3; 15 Pittsb. Leg. J. (O. S.) 494; Fed. Cas. 6,866. 17. Where a bankrupt included in his schedule land formerly deeded to his chil- dren, this fact cannot aflEect the rights of his grantees. Adams v. Collier, 133 U. S. 883. 18. A merchant is under obligation to his . creditors to exhibit a statement of his ac- counts when demanded, and if he fails to do so he cannot complain of proceedings in bankruptcy commenced against him with- out the requisite number of creditors joining in the petition, provided a sufBcient number join before the trial P,erin et a), v. Peale, 17 N. B. E. 377; Fed. Cas. 10,981. 19. The fact that the schedules stated the real estate of the debtor as of unknown or uncertain value is not a good objection to a composition. In re Welles, 18 N. B. E. 535; Fed. Cas. 17,377. 20. Upon the question whether the bank- rupt has made a full disclosure in accordance with an order, if application be made to re- view the decision of the district court, the court must be satisfied that the report of the bankrupt is such as a reasonable man could not credit. In re Mooney et al., 15 N. B. E. 456; 14 Blatohf. 204; Fed. Cas. 9,748. 21. Where a bankrupt has failed to put property in his schedule, the right of the as- signee to recover it is not barred by a dis^ charge granted before discovery. Maybin v. Eaymond, Ass., 15 N. B. E. 353; 4 Amer. Law T. Eep. (N. S.) 31; Fed. Cas. 9,338. 22. Growing crops should be placed upon a bankrupt's schedule as personal property- In re Schumpert, 8 N. B. E. 415; Fed. Cas. 13,491. , lY. In Belation to Disohaege. See 1 and 31, ante; Discharge, 27, 88, 139,. 131, 179, 184, 233, 315, 332. 23. The claim of a creditor is barred by a discharge, although he is without notice of the bankruptcy proceedings, provided such claim was fraudulently omitted from the- schedule by the bankrupt. Thurmond v. An- drews et aL, 18 N. B. E. 157. 24. Specifications were filed against a dis- chargerf or corruptly omitting a certain item from the schedule and wilful false swearing to the truth of an afiidavit annexed thereto, which specifications were overruled and a discharge granted. Held, that such action was not a determination of whether or not such item was an asset of the estate. In re Nichols, 19 N. B. E. 419; Fed. Cas. 10,237. 25. Suit was brought by the assignee to have the discharge set aside on the groundf that a large amount of diamonds were omit- ted from the schedule of assets. The suit was not brought within two years after dis- charge. The statute of limitations was pleaded by the defendant and judgment was- awarded him. Pickett, Ass., v. McGavick, 14 N. B. E. 336; 8 Cent. Law J. 303; 13 Alb. Law J. 218, 400; 3 N. Y. WHy. Dig. 378 j Fed. Cas. 11,136. 26. If , by wilfully making a false schedul© or affidavits, the bankrupt prevents notice to a creditor, his discharge may be annulled. Eayl, Adm'x, v. Lapham, 15 N. B. E. 508. 27. A debtor who obtains a discharge pending an action on his note which he omits from his schedule of liabilities, the plaintiff having no notice of proceedings in bank- ruptcy, cannot plead the discharge so ob- tained in bar. Batchelder v. Low, 8 N. B. R 571. 28. The omission of the names of credit- ors in the schedule of a bankrupt with their knowledge and consent is not ground for SCHEDULES, V, VL 435 withholding a discharge. In re Needham, 2 N. B. R 124; 1 Lowell, 309; 2 Amej, Law T. Kep. Bankr. 39; 16 Pittsb. Leg. J. 313; 1 Chi. Leg. News, 171; Fed. Cas. 10,081. 29. In opposition to discharge it was al- leged that the bankrupt had had the bene- ficial interest in the property, in the manage- ment of which he appeared as the nominal agent. This property was not mentioned in his schedule of assets. JSeld, that as the bankrupt had not made a full disclosure, op- posing creditors should not be compelled to specify their objections to his discharge, or be bound by such as they had specified, and case was recommitted to the register for further examination. In re Long, 3 N. B. R 66; 7 Phila. 578; 26 Leg. Int. 849; Fed. Cas. 8,477. 30. If a banker wilfully omits from his schedule property in his possession and use, and books of account, and keeps them from the assignee, he is not entitled to a discharge. In re Beal, 2 N. B. R 178; 1 Lowell, 323; 1 Chi. Leg. News, 326; Fed. Cas. 1,156. 3 1 . The omission of a creditor's name from the schedule of indebtedness of a bankrupt is not sufficient ground for annulling a dis- charge, unless the omission is fraudulent. Symonds v. Barnes, 6 N. B. R 377. Y. Amehdment. See Amendihent, III. 32. When amendments have been made to the schedule, the register should issue a warrant reciting the proceedings and com- manding the marshal to serve upon the cred- itors, whose names have been introduced, notice of a meeting of creditors to prove their debts and choose an assignee. In re Perry, 1 N. B. R 3; 1 Amer. Law T. Rep. Bankr. 4; Fed. Cas. 10,998. 33. A debtor was adjudicated a bankrupt and the warrant was issued for the first meet- ing of creditors. Thereafter it was shown by affidavit that the names of certain creditors had been omitted from the schedule. Amend- ment was permitted, bat the register was di- rected to thereupon direct the marshal to issue a new warrant. Id. 34. Material additions to schedules are not allowable by amendment after the first meet- ing of creditors except to prevent injustice. In some cases the issue of an alias warrant is required. In re Ratcliflfe, 1 N. B. R 98; 25 Leg. Int. 93; 6 Phila. 466; 15 Pittsb. Leg. J. 343; Fed. Cas. 11,578. 35. After the presentation of his schedule, the bankrupt made application for leave to amend to include another creditor. The register certified that this could be done without calling a new meeting of the cred- itors, and that the new creditor could peti- tion the court for the appointment of a new assignee. The opinion of the register was concurred in by the court. In re Carson, 5 N. B. R 290; 5 Ben. 277; Fed. Cas. 2,460. 36. "When a bankrupt amends his schedule after an assignee has been chosen, so as to include an additional creditor for a consider- able amount, it is not necessary to notify the creditors already named in such schedules before the amendment can take place, or to call a new meeting of creditors. Id. 37. A register may allow amendments to schedules on application of the bankrupt at any time the cause is pending before him, but it is better practice to issue an order to creditors to show cause. In re Hellei-, 5 N, B. R 46; 41 How. Pr. 213; Fed. Cas. 6,339. 38. Specifications in opposition to dis- charge were not sustained, but the bankrupt had omitted one claim from his schedule. Held, that the schedule should be amended by inserting the claim. In re Preston, 3 N. B. E. 27; Fed. Cas. 11,392. 39. The bankrupt may, even after the con- sideration of specifications in opposition to discharge, amend his schedule by order of the court. Id. YI. YEEIEIOATIOlf. 40. The act of June 22, 1874, amendatory of the thirty-ninth section (act of 1867), does not require the list of creditors filed to be verified, but, in the absence of any rule to that effect, it is proper to require such list to be verified. In re Hynies, 10 N. B. R 433; 7 Ben. 427; Fed. Cas. 6,986. 41. The intent of the amendatory act of June 23, 1874, is that the list of creditors pre- sented by the debtor in denial of the list pre- sented by the creditors must be sworn to. In re Steinman, 10 N. B. R 214; 6 Biss. 166; 6 Chi. Leg. News, 338; 31 Leg. Int. 269; 21 Pittsb. Leg. J. 200; Fed. Cas. 18,857. 436 SCHEDULES, VII, VUI — SECURED CLAIMS, L YII. Feattd. See 9, ante; Crimes and Ofp'enses, 1. 42. A conveyance of lands for the purpose of protecting the same from sale for the bene- fit of creditors is valid as between the grantor and grantee and would pass to the assignee in bankruptcy, and a failure to include the same in the schedules constitutes a conceal- ment thereof. In re O'Bannon, 3 N. B. E. 6; Fed. Cas. 10,394 43. It does not constitute a fraudulent omission to omit individual liabilities from the schedule of a partnership's liabilities. In re Pierson, 10 N. B. R. 107; Fed. Cas. 11,153. 44. The fraudulent omission from his in- ventory of a portion of his assets by a bank- rupt, contrary to the bankrupt law, may bo prosecuted on information. United States v. Block, 15 N. B. R. 335; 4 Sawy. 311 ; 9 Chi. Leg. News, 234; Fed. Cas. 14,609; sec. 5133, E. S. VIII. In Gbbteeal. See Costs and Fees, 83. 45. A creditor is not prejudiced by a re- fusal of permission to take a copy of the in- ventory, so long as it was produced before the register and made accessible to the cred- itor for the purpose of examining it or the bankrupt. In re TifCt, 18 N. B. R. 237; Fed. Cas. 14,038. 46. Where an assignee does not file his schedule of exempt property within twenty days, creditors are not limited to twenty days after it is filed within which to file ex- ceptions (act of 1867). In re Peabody, 16 N. B. R. 343; 9 Chi. Leg. News, 343; Fed. Cas. 10,866. 47. The assignee of an involuntary bank- rupt, who fails to include a certain claim in his schedule of assets, cannot be held to have elected to abandon it in the absence of any evidence of his knowledge or sufficient means of knowledge of its existenca Dushane v. Bevel, 161 U. S. 518. 48. A bankrupt's schedule cannot be ob- jected to because it does not include prop- erty, his interest in which either as lessee or as husband has been sold by creditors upon execution. In re Pomeroy, 3 N. B. R. 3; Fed. Cas. 11,358. SEAL. See Notary Public, rv. SECURED CLAIMS. L In General. IL By Mortgagk III When Not. IV. Proof of. (a) Jn General. (b) By Mortgagee. (c) Not Provable. (d) Security Waived. (e) Security Not Waived. (f) Withdrawal oi Proof . (g) Without Valuation, V. Sale of Seoueity. Vl Waiver of Security. See Banks, IV; Claims, 49, 57, 59, 75, 340; Commercial Paper, 33; Composition, 63, 64, 158, IV, (c); Courts, 339, 350; Estates, 371; Petitions, 76; Peeferences, 106, 173, 335, 238; Set-off, 37; Trustee, 54; Usury, 8. I. In Geneeal. 1. Advances made on the faith of a secu- rity presently to be given will be protected, notwithstanding changes in the condition of the borrower pending the consummation of the agreement, by actual delivery of the se- curity. Sparhawk et aL, Ass., v. Richards & Thompson, 13 N. B. R. 74; 1 Wkly. Notes Cas. 510; Fed. Cas. 13,305. 2. A. creditor holding collaterals is not bound to apply them before enforcing his direct remedies against the debtor. Lewis, Trustee, v. United States, 14 N. B. R. 64; 93 U. S. 618. 3. Until the debt or liability of a pledge creditor is discharged, he cannot be com- pelled to surrender his security. In re Buse, 3 N. B. R. 53; Fed. Cas. 3,231. 4. Where there are several creditors hav- ing a common debtor, who has several funds, all of which can be reached by one creditor, and only part by the others, the former takes payment out of the fund to which he can resort exclusively, so that all may be paid. In re SauthofE & Olson, 14 N. B. R. 364; 7 Biss. 167; 5 Amer. Law Rec. 173: 8 Chi. Leg. News, 870; 3 Cent. Law J. 554; 3 N. Y. Wkly. Dig. 96; Fed. Cas. 12,379. 5. One creditor may not take part of the fund which otherwise would have been avail- SECURED CLAIMS, 11 437 able for the payment of all creditors, and at the same time be allowed to come in pari passu with other creditors, tm satisfaction out of the remainder of the futids; this prin- ciple does not apply when that creditor obtains by his diligence something which did not and could not form part of the fund. In re Bugbee, 9 N. B. R 258; Fed. Cas. S,115. 6. No proceedings in bankruptcy can de- prive creditors of their just possession of property held as security for a debt without discharging the debt Davis et aL v. Rail- road Co. et al., 13 N. B. R. 358; 1 Woods, 661; Fed. Cas. 3,648. 7. A secured creditor may vote for as- signee on so much of his debt as is unsecured, where the security applies only to a specific portion of his debt. In re Parkes and Parkes, 10 N. B. R. 82; Fed. Cas. 10,751 8. Creditors who are fully secured need not be reckoned in computing the proportion who must join in a composition. In re Van Auken & Crane, 14 N. B. R. 435; Fed. Cas. 16,828. 9. A judgment creditor cannot claim the jurisdiction of the bankrupt court for the collection of his debt fully secured by the only lien on real estate. In re Avery v. Johann, 3 N. B. R 86; 3 Amer. Law T. Rep. Bankr. 93; 4 N. B. R 148; 1 Chi Leg. News, 261; Fed. Cas. 675. 10. Where, on the loan of money, an in- complete security is received, as by confes- sion of judgment, the lender cannot, upon afterward learning of his debtor's insolvency, perfect his security by entering the confes- sion of record. Clark v. Iselin, 9 N. B. R. 19; 10 Blatchf. 304; 31 Pittsb. Leg. J. 82; Fed. Cas. 2,825. 11. Security given by an insolvent out of the ordinary course of business cannot be held valid simply because the debtor volun- tarily gave it without consulting with the creditor either as to security or as to the debtor's condition. Graham v. Stark et al., 3 N. B. R (8 vo. ed.) 357; 3 Ben. 520; 2 ChL Leg. News, 73; Fed. Cas. 5,676. 12. A conveyance, even though fraudu- lent, is not made " in contemplation of bank- ruptcy or insolvency," where there are no other creditors, and the debt is well secured. In re Johann, 4 N. B. R. 143; 3 Biss. 139; Fed. Cas. 7,331. II. By Moetgage. See Mortgages. 13. A debtor filed his petition and enu- merated in his schedule as a creditor holding security, E., from whom he had, with an- other, purchased land, ■ giving in payment promissory notes on which there were sure- ties, to secure whom a deed of trust was made by the debtor and his joint purchaser to C, the deed providing that if any note were not paid the land should be sold and the proceeds given to E. One note was not paid and constituted the debt specified. The court held E. to be a secured creditor and di- rected the sale of the property by the as- signee. In re Stewart, 1 N. B. R. 43; 1 Amer. Law T. Rep. Banki-. 16; 15 Pittsb. Leg. J. 332; Fed. Cas. 13,418. 14. Security for the payment of a note, by way of a deed of trust, given on the prop- erty of the wife of a bankrupt, by the hus- band and wife jointly, is security within the meaning of the bankrupt act of 1867, and such claim should be allowed as a secured demand, although the wife may have died leaving, heirs, and the court will, on proper motion, attend to the application of the se- curity and to the interests of the assignees. In re Hartel, 7 N. B. R 559; Fed. Cas. 6,157. 15. A creditor, whose claim consists of notes and drafts, for which he has no se- curity, and also of a debt secured by mort- gages, can be admitted as a creditor only for that part of his claim which is unsecured, and the indebtedness for which he has se- curity must rest in abeyance until the value of the securities be ascertained in the man- ner provided in the twentieth section of the bankrupt act of 1867. In re Hanna, 7 N. B. R 503; 5 Ben. 5; Fed. Cas. 6,027. 16. A mortgage given by a debtor before becoming insolvent and not in contempla' tion of bankruptcy, to secure a creditor, al- though with intent to prefer, is valid. Dun- ham V. Orr, 3 N. B. R. (8 vo. ed.) 17; 3 Ben. 488; Fed. Cas. 4,143. 17. Although a security by mortgage be out of the usual course of business, yet, un- less the creditor knew of the insolvency or had reasonable cause to infer it, the security will be valid, although the debtor was in- solvent at the time of giving it. Lee v. 438 SECURED CLAIMS, IH, IV, (a). Franklin Ave. G. S. Inst, 3 N. B. E. (8 vo. ed.) 218; 1 Chi. Leg. News, 370; Fed. Cas. 8,188. 18. A security by way of mortgage given more than four months before bankruptcy will be protected, although a change in the former substance ofthedeedsbemade within four months of bankruptcy, if no greater value be put into the creditor's hands than he had before. Sawyer et aL v. Turpin et al., 5 N. B. E. 339; 2 Lowell, 29; Fed. Cas. 13,410. 19. A debt, either wholly or in part se- cured by levy under execution, by pledge of personal property, or by mortgage upon real estate, will sustain a petition in bankruptcy. In re Stansell, 6 N. B. E. 183; Fed. Cas. 13,293. 20. Where a creditor, knovtdng his debt- or's insolvency, takes a mortgage to secure a pre-existing debt, and also a credit given at the time of the execution of the mortgage, the latter, being void as to the debt, is void in toto. Tuttle v. Truax, 1 N. B. R. (8 vo. ed.) 601; Fed. Cas. 14,277. III. When Not. 21. The fact that sureties on a bond are indemnified by a mortgage does not render a claim on the bond a secured claim. In re Lloyd, 15 N. B. E. 257; 5 Amer. LawEec. 679; 15 Alb. Law J. 293; 24 Pittsb. Leg. J. 113; Fed. Cas. 8,429. 2 2. An involuntary petition in bankruptcy was filed. Attaching creditors denied that the requisite number had joined, and alleged that an indorsed note was a secured claim and could not be counted. Ileld, that it was not a secu^red claim. In re Broich et al., 15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1,921. 23. A creditor seizing property by attach- ment issued from a state court, within four months prior to the beginning of bankruptcy proceedings, is not a secured creditor within the meaning of section 5075, Revised Statutes. Id. IV. Peoof of. (a) In General. 24. A creditor holding a claim wholly or partially secured may prove it in bankruptcy, although he may not vote for assignee. In re Davis & Son, 1 N. B. E. (8 vo. ed.) 130; 7 Amer. Law Reg. (N. 8.) 30; 15 Pittsb. Leg. J. 103; Fed. Cas. 3,614 25. The security that must be liquidated, before the creditor can prove his debt in bankruptcy proceedings, must be upon prop- erty, real or personal, of the bankrupt that may be surrendered to the assignee. A claim secured by the guaranty of a third person may be proved as if unsecured. In re Ander- son, 12 N. B. E. 503; 7 Biss. 233; Fed. Cas. 850. 26. It is necessary for the creditor, whose debt is secured by lien, to prove or liquidate his debt as secured, that the court may be fully Informed how to dispose of the assets so as to do equity between all the creditors. In re Winn, 1 N. B. E. 131; 1 Amer. Law T. Rep.Bankr. 17; Fed. Cas. 17,876. 27. A secured debt is provable, within the meaning of section 39 of the bankrupt act of 1867, so as to entitle a creditor holding such debt to file a petition for adjudication of bankruptcy under said section. In re Bloss, 4 N. B. E. 37; Fed. Cas. 1,562. 28. A creditor holding a debt against a bankrupt, whose liability arises by his ac- commodation indorsement of biUg of ex- change, to secure the payment of which the drawers and acceptors have given collateral security, may prove his debt as if unsecured. In re Dunkerson & Co., 13 N. B. E. 413 ; 4 Biss. 353; Fed. Cas. 4,157. 29. A creditor holding security for his debt does not prejudice his claim by proving his debt as one with security, and setting out, in his proof, the particulars of the secu- rity and its estimated value, such proof being prerequisite to any action for the appropri- ation of the security, in satisfaction, in whole or in part, of the debt. In re GrinneU & Co., 9 N. B. E. 29; 7 Ben. 42; 31 Pittsb. Leg. J. 82; Fed. Cas. 5,830. 30. A surety is entitled to prove against the estate of his bankrupt principal, and re- ceive dividends on the whole amount which he is required to pay as surety, without de- ducting any security held by him or the pro- ceeds thereof. Jervis v. Smith, 3 N. B. R. 147. 31. Where under state laws the landlord has a lien for rent, the same will be upheld in a bankruptcy court, and the assignee must take title subject thereto. The landlord may prove his claim for the unexpired term of a lease beyond one year, even though he has been preferred under a state law, for his rent to the end of the year. In re Wynne, 4 N. B. SECURED CLAIMS, IV, (bHd). 439 U. 5; Chase, 227; 2 Amer. Law T. Rep. Bankr. 116; Fed. Cas. 18,117. 32. A creditor holding collateral security- is entitled to have his claim referred to the register for investigation, and the assignee is not justified in rejecting it until proofs have been taken and the matter fully inquired into. In re Nounnan & Co., 6 N. B. R. 579. (b) By Mortgagee. 33. A creditor proposed to prove a debt against a bankrupt, which was secured by a mortgage upon real and personal property. Hdd, that he might prove his claim, upon snaking oath to the amount due him and the securities held therefor. In re Bridgman, 1 N. B. R. 59; 1 Amer. Law T. Rep. Bankr. 48; Eed. Cas. 1,866. 34. A mortgagee applied to the bankrupt court for leave to foreclose his mortgage in another coui't. Seld, that before so doing fae must prove his debt in the bankrupt court as a secured claim. In re Sabin, 9 N. B. R. 383; Fed. Cas. 13,193; In re Frizelle, 5 N. B. R. 133; Fed. Cas. 5,133; MoHenry et aL v. La Societe Franoaise, 16 N. B. R. 385; 95 U. S. 58. 35. The liability of a bankrupt as indorser «n promissory notes having become absolute, a creditor holding a mortgage of property from the maker thereof as security for their payment may prove the full amount of the notes against the bankrupt as indorser. In re Cram, 1 N. B. R. 132; 1 Hask. 89; 1 Amer. Law T. Rep. Bankr. 65, 120; Fed. Cas. 3,343. 36. A, as receiver of B., offered as proof of debt against the bankrupt's estate a, depo- sition setting forth loans of money, payment being secured by bonds, the payment of tlie bonds being secured by mortgage on prop- erty of the bankrupt, and which the claim- ant ofEered to prove as a secured claim. The proof contained no averment as to the con- sideration for the obligation of the bankrupt as set forth in the bonds. Held, that the re- ceiver should be admitted as a secured cred- itor without stating the consideration. In re Lake Superior Ship Canal, Railroad and Iron Co., 10 N. B. R. 76; Fed. Cas. 7,998. (c) Not Provable. 3 7 . When a creditor secured by a mortgage ■elects to pursue the mortgaged premises, lie deprives himself of all right to prove his debt in bankruptcy for any deficiency. In re Iron M. Co., 4 N. B. R. (8 vo. ed.) 645; 9 Blatchf. 330; Fed. Cas. 7,061 38. Secured creditors cannot be reckoned as having provable debts within amended section 39 of the bankrupt act of 1867. In re Crossette et al., 17 N. B. R. 208; Fed. Cas. 3,485. (d) Security Wamedi See Waiver, I, (b). 39. If a creditor prove his full claim with- out reference to his lien or security, and without apprising the bankrupt court of its existence, such an act is a waiver of the lien and a relinquishment of the security to the assignee. Stewart v. Isidor et aL, 1 N. B. R. 139; In re Granger & Sabin, 8 N. B. R. 30; Fed. Cas. 5,684; In re McConnell, 9 N. B. R, 387; 10 Phila. 387; 31 Leg. Int. 61; 21 Pittsb. Leg. J. 107; Fed. Cas. 8,712. 40. The creditor shall have the benefit of any counter bonds or collateral securities which the principal debtor has given to the surety, or person standing in the situation of a surety, for his indemnity, such securities being regarded as trusts for the better se- curity of the debt; but if such creditor prove his debt as unsecured he waives his lien. In re Jaycox & Green, 8 N. B. R. 241; Fed. Cas. 7,242. 41. Proof of debt as unsecured is prima facie an extinguishment of any security held for the same, and may ripen into a conclu- sive extinguishment. In re Parkes & Parkes, 10 N. B. R. 82; Fed. Cas. 10,754. 42. A judgment creditor proved his claim in bankruptcy, but, finding no assets to pay it, attempted to force payment by means of a,fi. fa. Held, that by proving his claim he waived his judgment lien. Heard v. Jones, 15 N. B. R. 402. 43. A preferred creditor may prove his debt upon svurrendering all property received as a preference. Scott v. McCarty, 4N. B. R. (8 vo. ed.) 414; Fed. Cas. 12,518. 44. A mortgagee cannot prove his debt in bankruptcy unless he surrender the mort- gaged property or agree as to its value with, the assignee, so that he may prove for any excess of the debt over such value. High V. Hubbard, 3 N. B. R. (8 vo. ed.) 191; 2 Chi. MO SECURED CLAIMS, IV, (eHs)- Leg. News, 9; 16 Pittsb. Leg. J. 193; Fed. Cas. 6,473. 45. When a security is given a creditor by the bankrupt, of his own property, the cred- itor may not prove his debt unless he sur- renders the security, or it is sold with his consent, when he may prove for the residue of his debt which the security when sold does not discharge. When the security is of a third person, the creditor may prove with- out surrendering the security and may en- force it, provided he does not take from both sources more than the full amount of the debt. In re Cram, 1 N. B. E. 133; 1 Hask. 89; 1 Amer. Law T. Eep. Bankr. 65, 120; Fed. Cas. 3,343. 46. If a mortgage, pledge or lien be given by a principal debtor to secure his surety, and both become insolvent, the holders of the debts for which the surety is bound may have the property applied to the discharge of their debts speciiicaUy. But if the holder of the notes or other privileged debts prove against both estates, they waive their secu- rity. Or if through negligence of the cred- itors the security has been discharged, or if he has lost his lien, the creditors have no equity. They must apply their security so as to prove against either estate for the defi- ciency. Ex parte Morris, 16 N. B. B. 572; 2 Lowell, 424; Fed. Cas. 9,833. (e) Security Not Waived. 47. A security is not waived by merely proving the second claim as a general claim. Hatch V. Seely, 13 N. B. E. 381. 48. A creditor who, in ignorance of his legal rights and in good faith, files proof of a claim secured by a deed of trust, will not be deemed to have waived his lien under such deed, especially if he be acting in a fiduciary capacity. In re Brand, 3 N. B. E. 85; 2 Hughes, 334; 3 Amer. Law T. Eep. Bankr. 66; Fed. Cas. 1,809. 49. A creditor having security may prove his claim to an amount exceeding the value thereof, without abandoning the same, but he is bound to set forth the value of the secu- rity, that he may vote as a creditor in re- spect to the overplus proven by him, upon the choice of the assignee. In re Bolton, 1 N. B. E 83; 3 Ben. 189; 1 Amer. Law T. Rep. Bankr. 120; Fed. Cas. 1,614. 50. A secured creditor had his security appraised, proved his debt for the difference between the appraisement and his debt, and received a dividend. In an action on the security it was held he could recover. Stree- per V. McKee, 17 N. B. E. 419. 51. A creditor whose debt is secured by a. deed of trust upon property of the bankrupt may prove without surrendering his secu- rity, and if the proceeds of sale under the- trust be insufficient to satisfy his demand,, he will be for that deficiency a general cred- itor, to share pro rata in the distribution of the general assets. In re Ruehle, 3 N. B. R. 175; 3 Amer. Law T. Eep. Bankr. 59; 16 Pittsb. Leg. J. (O. S.) 5; 1 Chi Leg. News, 186;. Fed. Cas. 13,113. 52. A joint creditor having security on the separate estate may prove against the- joint estate without relinquishing his secu- rity. He may prove his whole claim against both estates and receive a dividend for each,, but so as not to receive more than the full amount of his debt from both sources. In re Howard, Cole & Co., 4 N. B. R. 185; Fed. Cas. 6,750. (f) WithdvoAJoal of Proof. 53. Where proof is made by a creditor in ignorance of the security, and even when under a mistake in regard to the law in the case, he should be allowed to withdraw such proof, and then prove as a secured creditor, when no injury has resulted to the luise- cured creditor by such improper proof. In re Jaycox & Green, 8 N. B. E. 241; Fed. Cas, 7,343. 54. Where a creditor makes proof of a. claim and makes no mention of security held therefor, the proof being made through in- advertence, he should be given leave to with- draw the proof. In re Clark & Bininger, 5- N. B. R. 255; Fed. Cas. 3,806. (g) Without Valuation. 55. Where the separate estate of a mem- ber of a firm is security for a firm debt, th& firm creditor may prove the claim against, the firm estate without valuation or surren- der of his security, even though there are- no debts against the separate estate. In re- Thomas et al., 17 N. B. R. 54; 8 Biss. 139; ei- Cent. Law J. 151; Fed. Cas. 13,886, SECURED CLAIMS, V, VI 441 56. If one partner pledges his property as security for a firm debt, the creditor may prove his full claim against the firm without a Taluation of the securities. Ex parte Whit- ing, 14 N.-B. R. 307; 2 Lowell, 473; Fed. Cas. 17,573. 5 7 . Creditors can substantiate their claims against bankrupts, so as to comply with all the requirements of section 23 of the act of 1867, without previously ascertaining the value of securities which they hold. In re Bigelow et al., 1 N. B. E. 186; 3 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1,396. Y. Sale of Secueitt. 58. If the debtor, though insolvent, ac- quiesce in a sale of stocks by a secured cred- itor, bis assignee is bound by such acquies- cence, although the stocks are sacrificed. Sparhawk et al. v. Drexel et al., 13 N. B. E. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 18,204. 59. The assignee is not bound by the bank- rupt's ratification or acquiescence in a sale of collaterals made after the commencement of the proceedings in bankruptcy. Id. 60. A secured creditor is entitled to a dividend only upon the balance of his claim after deducting the proceeds of his security. In re Jaycox & Green, 7 N. B. E. 308; 7 West. Jur. 18; Fed. Cas. 7,340. 61. A creditor holding security may be admitted as a creditor only for the balance of his claim after the ^ale of the security. In re Snedaker, 8 N. B. E. (8 vo. ed.) 639. 62. Where stock has been pledged to se- cure a call loan, the pledgee need not, upon the bankruptcy of the pledgor, obtain leave of court to sell the stock and pay the surplus into court. In re GrinneU, 9 N. B. E. 137; Fed. Cas. 5,839. 63. A secured creditor is entitled to apply the proceeds of his se6urity to the payment of his debt and interest to the time of pay- ment, when the contract provides that the principal shaU bear interest until payment. Jn re Haake, 7 N. B. R 61; 2 Sawy. 331; Fed. Cas. 5,883. 64. Under the bankrupt act a bank should prove its demand for a debt due as secured by stock, and by leave of court have it sold, the proceeds to be applied to the payment of the debt, and prove as a creditor of the es- tate for any balance that may remain. In re Morrison, 10 N. B. E. 105; 6 Chi. Leg. News, 110; Fed. Cas. 9,839. 65. If a creditor having a firm note in- dorsed by one partner, and holding his prop- erty as security, obtain payment by a sale of the security after the commencement of the proceedings in bankruptcy, the separate cred- itors are entitled to receive from the joint fund a sum equal to the dividend on the note. In re Foot et al., 12 N. B. E. 337; 8 Ben. 338: 1 N. Y. Wkly. Dig. 76; Fed. Cas. 4,906. 66. After the holder of a note signed by the bankrupt had made proof in full against the estate, an indorser who had been secured by the bankrupt paid the amount to the- holder and disposed of the security. Seld, that he should give credit for the amount realized from his security and take a divi- dend upon the excess only of the original debt as proved. In re Baldwin, 19 N. B. E. 53; 8 Cent. Law J. 186; Fed. Cas. 796. 67. A sale made by a creditor secured by deed of trust, after commencement of pro- ceedings in bankruptcy, without permission of the bankrupt court, will be set aside. Smith V. Kehr, 7 N. B. E. 97; 3 Dill. 50; 6 West. Jut. 451; Fed. Cas. 13,071. 68. The value of a security cannot be as- certained by the creditors sending it to an auctioneer and having it advertised and sold at auction. In re Hunt, 17 N. B. R 305; 35 Leg. Int. 71; Fed. Cas. 6,884. 69. The court has authority to inquire- into and determine the value of securities- held by creditors of an alleged bankrupt, in order to ascertain whether the claims of the- petitioning creditors are of the amount re- quired by law. In re Cal. Pao. R R Co., 11 N. B. E. 193; 3 Sawy. 240; 3 Cent. Law J. 79;. Fed. Cas. 2,315. YI. "Waiter of Seoueitt. r 70. Secured creditors may file a petition in involuntary bankruptcy, and such act is a waiver of the security or relinquishment of the lien. In re Broich et al., 15 N. B. R 11; 7 Biss. 303; Fed. Cas. 1,931. 7 1 . A creditor fully secured may file a pe- tition in bankruptcy without expressly waiv- ing his preference therein, but the better practice is to do so. In re Stansell, 6 N. B. R. 183; Fed. Cas. 13,293. M2 SEDUCTION — SET-OFF, I, (a), (b). 72. A creditor wlio has a lien upon the property of his debtor, by virtue of a judg- ment, execution and levy, or as secured by garnishment, filing a petition for adjudica- tion of bankruptcy without reference to such lien or security, thereby waives the same, and stands as an unsecured creditor. In re Bloss, 4 N. B. R. 37; Fed. Gas. 1,563. 7 3 . Subsequent to the filing of the petition a secured creditor may waive his security and join, thus securing all the rights of an unsecured creditor. In re Crossette et aL, 17 N. B. E. 208; Fed. Gas. 3,435. 74. A creditor instituted proceedings to have debtors adjudicated bankrupts. The debtors filed a petition for composition, and a meeting was ordered to consider it. Cer- tain attaching creditors appeared at this meeting. Held, that they had no such right, unless they should first relinquish their se- curity. In re Scott, Collins & Co., 15 N. B. E. 73; 4 Cent. Law J. 39; Fed. Cas. 13,519. 75. If a creditor is secured by a lien upon the property of the bankrupt, he may either ■release the lien and unite in the composition for his whole debt, or have his security val- ued and come in for the difference. The ^'Home," 18 N. B. E. 557; Fed. Cas. 6,657. SEDUCTION. A judgment for damages recovered by a father for the seduction of a daughter is not a debt created by fraud within the meaning of the bankruptcy act, where there is no prom- ise of marriage, nor arts or devices practiced which can in law amount to legal fraud on the father. Howland v. Carson, 16 N. B. R, 373. SEIZURE. See Marshal, 3, 4, 8-13 ; Pleading and Peac- TiCE, 94, 134; Stat, etc., 35. SERVANTS. See Opeeatives; Wages. SERVICE. ■See Pleading and Practice, XV, (h). SET-OPP. L Estate. (a) In General. (b) Bank. n Creditor. IIL Debts Not Provable. (a) In General. (b) Purchased Before Filing Petition. (c) After Filing Petition. IV. Wife. V. Trustee (Assignee). VL In General. See Petitions, 35; Stockholders, 33. I. Estate. (a) Jn General. 1. A claim against the bankrupt before his bankruptcy cannot be set off against an indebtedness of goods purchased from the assignee, but a claiin against the bankrupt's estate maybe set oflE against an indebtedness for goods purchased from the assignee. Moran et al. v. Bogert, 14 N. B. E. 393. 2. A stockholder, who was indebted to an insolvent corporation for unpaid shares, which had only been nominally paid, the money being immediately taken back as a loan, filed his bill to have set off a debt due him by the corporation. Held, that such un- paid subscription was a trust fund for the benefit of all creditors and could not be set off. Sawyer et aL v. Hoag et aL, 9 N. B. E. 145; 17 WalL 610. 3. A firm, which afterward became bank- rupt, borrowed money for which they gave a joint and several note, which was paid by a co-surety before the bankruptcy, but after the failure of the firm. The co-surety lent other money to the firm, for which collateral was taken. This other debt was unpaid at the time of the bankruptcy. The proceeds of the collateral more than equaled the sec- ond debt Petition was brought to have the proceeds applied on the first debt. The peti- tion was granted. Whiting, Ex parte. In re Dow et aL, 14 N. B. E. 307; 3 LoweU, 473; Fed. Cas. 17,573. (b) Bamk. See Banks, VL 4. A bankrupt who is liable to a bank for notes, on some of which he is principal and others is indorser, may set off an amount on SET-OFF, IL 443 ■deposit to his credit, against his debt to the bank, not including any notes upon which he is surety, unless the principals are insolv- ent. In re North et al., 16 N. B. E. 420; 3 JLoweU, 487; Fed. Cas. 6,764. 5. Where a creditor, a bank, collects money due the bankrupt and gives the same to the sheriff, who applies it on the bank's judgment, the set-oflE does not arise; but it is a fraudulent preference, and the money can be recovered. Traders' Nat. Bank v. Camp- JbeU, 6 N. B. R 353; 14 WaU. 87. 6. The assignees of an insolvent bank sued -the maker of a promissory note held by the bank. The maker of the note, after the re- cording of the deed of assignment to the plaintiffs, and with knowledge of the insolv- ency of the bank and of the assignment, took a transfer of a draft issued by the bank which had been protested. This draft he sought to set off against the claim of the assignees on his note. Held, that the defendant was en- ■titled to the set-off. Shryock et al.. Ass., v. Bashore, 13 N. B. R. 481; Fed. Cas. 13,820. 7. A bank has the right, under the bank- rupt law, to set off the amount of a protested draft against the deposit of an insolvent debtor. In re Petrie et al., 7 N. B. R 333; 5 Ben. 110; Fed. Cas. 11,040. 8. Where there is a conditional transfer •of a draft to the debtor of a bank which drew the draft, the debtor cannot set off such draft against, a note made by him to the bank. Shryock et aL, Ass., v. Bashore, 15 N. B. R 283-287. 9. A depositor in a bank which has made a voluntary assignment may set off a bal- ance to his credit against his note held by the bank at the time of assignment. City Bank v. Sherlock, 16 N. B. B. 63. 10. Plaintiff tendered to the assignee of an insolvent bank, in payment of a judg- ment against himself, a protested draft drawn by defendant bank on a second bank in fa- vor of a third bank, and indorsed to plaintiff.- Held, that the assignee could not accept the protested draft in payment. Bashore et aL V. Rhoads et aL, 16 N. B. R 73. II. Ceeditoe. See Claims, 377; Preferences, 216. 11. Assignee in bankruptcy brought ac- tion to foreclose mortgage given by.K. K. pleaded as a set-off amount due him from bankrupt for personal services. Held, that K. could set off any demand in his favor which is the subject of set-off. Von Sachs, Ass. etc., V. Kretz et al., 19 N. B. E. 83. 12. Assignee in bankruptcy brought ac- tion against IC to foreclose mortgage. K. pleaded as a set-off amount due him from bankrupts, and offered admissions of bank- rupts before bankruptcy. Held, that such evidence was admissible. Id. 13. Previous to commencement of pro- ceedings, the bankrupt firm had been under the management of its creditors, and A. acted as their agent in the sale of its prod- ucts. Prior to the arrangement with its firm's creditors it owed A., but at the time the petition was filed A. owed the firm under the new arrangement, according to which he was to handle the goods as a special ac- count, and in settlement turn over the cash received. Held, that A. could not set off his old account against his debt arising under the new agreement. In re Troy Woolen Co., 8 N. B. R. 413; Fed. Cas. 14,203. 14. In making proof of claim, a creditor did not show that the bankrupt held an un- satisfied claim against him. Assignee brought suit on the claim, and he pleaded the amount allowed on his proof as a set-off. Held, that he was not entitled to such set-off. Russell, Ass. etc., V. Owen, 15 N. B. E. 322. 15. Where creditors of an insolvent cor- poration are also stockholders, they will not be permitted to deduct their claims from their proportions of the unpaid capitaL yet, if their debts are proved, deductions may be made, perhaps, from the assignee's demands, equal to their estimated dividends. Wilbur, Ass., V. Stockholders, 18 N. B. R 178; 13 Phila. 479; 35 Leg. Int. 346; 26 Pittsb. Leg. J. 15; Fed. Cas. 17,636. 16. Against the principal of a debt due a creditor, nothing can be set off except a debt due to the bankrupt from the creditor. In re Purcell, 18 N. B. E. 447; Fed. Cas. 11,470. 17. Where an employee was in the habit of paying out money for his employer, the employee may set off such money as may be in his hands at the time of the bankruptcy of his employer against his salary due. Ex parte Pollard, In re Elliot Felt Mills, 17 N. B. R 238; 2 Lowell, 411; Fed. Cas. 11,352. 18. A creditor who at the time of the bankruptcy has in his possession goods of the bankrupt with a power of sale, or choses 444 SET-OFF, III, (aHo), IV. 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; and this, although the power to sell or to collect would have been revooaJble by the bankrupt before his bankruptcy. In re Dow et al, U N. B. E. 301; 2 Lowell, 473; Fed. Cas. 17,573. 19. A promise to return collateral upon payment of a debt does not bar a set-off, un- less the property has been intrusted to the agent for a purpose inconsistent with such an application of the surplus, so that this would be a breach of trust. Id. 20. A person holding stock of the bank- rupt as collateral for a debt overdue at the commencement of proceedings may, if he has power to sell the stock, retain the sur- plus by way of se(>oflE on another claim. Id. 21. The holder of a note advanced by a factor to a manufacturer and by him dis- counted, who has agreed to a composition with the factor receiving his right to prove the amount of the note against the other par- ties to it, need not, in proving against the manufacturer, give credit for the full amount received by him on composition, but must abate his proof by giving credit for the man- ufacturer's goods in possession of the factor at the time of his bankruptcy. Ex parte Har- ris et al.. In re Cochrane, Jr., 16 N. B. R. 433; 3 Lowell, 568; Fed. Cas. 6,109. 22. Plaintiff was a stockholder, policy- holder and treasurer of a fire insurance com- pany. At the time of the bankruptcy of the company he was indebted for subscriptions on stock, and had in his hands funds which he held as treasurer. He also had a claim against the company for loss sustained by fire. Held, that he could not set off his claim for loss against his subscriptions for stock, nor against the amount due from him as ti'easurer. Soammon v. Kimball, 8 N. B. E. 337; 5 Biss. 431; 18 Int. Eev. Eec. 118; 4 Chi Leg. News, 384; 3 Ins. Law J. 775; Fed. Cas. 13,435. III. Debts !N"ot Pjkovable. (a) Jn General. 23. Where a note is subject to set-off for an amount greater than the note it is not a provable debt. In re Ford et aL, 18 N. B. E. 436; Fed. Cas. 4,933. (h) Pv/rchased Before Filmg. See CT.ATTvrs. 374, 375. 24. A debtor suspecting that his creditor was about to become bankrupt purchased the debt of a creditor of his creditor. Upon pro- ceedings in bankruptcy being had he at- tempted to set ofif this claim against his debt. Held, offset claimed should be allowed. In re City Bank, etc., 6 N. B. E. 71; 4 Chi. Leg. News, 81; 6 West. Jur. 65; Fed. Cas. 3,743. 25. Upon an attempted set-off of a debt due before bankruptcy and one not due till afterwards, both being due at the time of the attempted sei>off, held, these accounts mutual and can be set off against each other. Id. (c) After Filing Petition. See Claims, 376. 26. A bankrupt was formerly a banker. His assignee brought action to recover the balance due on a note which had been pledged with another bank as collateraL After the failure of the bank, claims of de- positors were purchased by the defendants,, which were assented to by the bankrupt. The claims were filed in set-off by the de- fendant. It was held they could not be al- lowed. Eollins, Ass., v. Twitchell & Co., 14 N. B. E. 201; 3 Hask. 66; 5 Amer. Law Eec. 247; Fed. Cas. 13,037. 27. A chose in action which is not nego-' tiable, and on which the assignee must sua in the name of the assignor, does not become a mutual debt or credit so as to be a matter of setoff. Id. 28. A debtor to a bankrupt's estate will not be aided by a court of equity to set off notes of the bankrupt, bought on a specula- tion of the probable dividends, against his. debt. Hunt v. Holmes et al., 16 N. B. R. 101 •,. Fed. Cas. 6,890. IV. "Wife. 29. That a debt is contracted during cov- erture by a feme covert, who, though actually engaged in trade, has not complied with the- requirements of the statutes, is available by her to defeat debts in bankruptcy proceed- ings. In re Slichter, 3 N. B. R 107; Fed. Cas. 13,943. 30. A wife who deposits money with her SET-OFF, V, VI — SHERIFF, L 445 liusband and receives portions tliereof, leav- ing a balance due her at the time of her hus- band's adjudication, is entitled to prove such balance as a general creditor of her husband, and her debt may not be oflEset by the value -of reasonable gifts from the husband, or of an insurance policy on his life for the benefit of the wife. In re Bigelow et al., 3 N. B. R. 170; 3 Ben. 198; 2 Amer. LawT. Eep. Bankr. ■87; Fed. Cas. 1,398. Y. Trustee (Assignee). See Costs and Fees, 64; Estates, 145. , 31. Tlie bankrupt in a composition case stands, as to set-off, in the position of an as- signee, if none has been appointed. In re North et al., 16 N. B. R. 430; 3 LoweU, 487; Fed. Cas. 6,764 32. Assignee under general assignment proceeded to dispose of assignor's property. Assignor was adjudged a bankrupt, and the assignee presented his claim for services, which was rejected. In an action by as- signee to obtain possession of bankrupt's estate, held, that the assignee under the gen- eral assignment was entitled to set off the amount due him for services against the claim Of the assignee in bankruptcy. In re -Catlin, Ass., v. Foster, 3 N. B. R. 184; 1 Sawy. •37; 3 Amer. Law T. 134; 1 Amer. Law TjRep. Bankr. 193; Fed. Cas. 3,519. 33. A debtor gave a creditor his accom- modation notes for an amount greater than the debt, and the notes were discounted and afterwards proved against the debtor's es- tate in bankruptcy. Held, that an assignee could set off against the dividend due the creditor the dividend paid on the notes, and recover from the creditor the balance of the dividend paii In re Puroell, 18 N. B. R. 447; Fed. Cas. 11,470. 34. The assignees sold certain live stock and thereafter brought action for the bal- ance of purchase-money. The defendant sought to set off a bill for keep previous to the appointment of the assignees. This was not allowed, but the defendant was allowed for keep after the appointment. The regis- ter had determined the amount due for such keep without a hearing, and the determina- tion was therefore set aside, unless the plaint- iffs allowed a certain increased amount. Moran et al. v. Bogert, 14 N. B. E. 393. " YI. In Geneeal. See Claims, 378. 35. To constitute mutual demands, within the meaning of the bankrupt act, they should be due to and from the same persons in the same capacity. Rollins, Ass., v. Twitchell& Co., 14 N. B. R. 201; 2 Hask. 66; 5 Amer. Law Rec. 247; Fed. Cas. 13,027. 36. Where the set-off is founded in a duty which the plaintiff owes the defendant, the wrongful act can be waived and a set-off is proper. McCabe, Ass. etc., v. Winship, 17 N. B. R. 113; Fed. Cas. 8,668. 37. Under the act of 1867 a creditor is not entitled to set off an unsecured account due to him from his debtor against moneys re- mitted to him by such debtor with directions to credit them on his raortgage debt and which he refused so to apply. To authorize a set-off there must be mutual credits or mu- tual debts. Libby v. Hopkins, 104 IT. S. 303. 38. A claim for losses on policies of insur- ance may be set off against an indebtedness from the holder to the company for money deposited with him as a banker. Scammon V. Kimball, 13 N. B. R. 445; 93 U. S. 363. SETTLEMENTS. See Married Women, 4, 5, 8, 13. SHEKIPP. I. Liability of. IL In General. See Attachments, 17; Costs and Fees, 34; Injunction, 35; Sales, V, (d). I. Liability of. 1. Where property of a bankrupt is seized, sold, and the money turned over to the exe- cution creditor by the sheriff, under judicial process, but within four months prior to bankruptcy proceedings, the money will have to be paid again by such oflBcer to the as- signee in bankruptcy, notwithstanding such first payment was made in ignorance of the bankruptcy proceedings. Miller v. O'Brien, 9 N. B. R. 36; 9 Blatchf. 370; 31 Pittsb. Leg. J. 83; Fed. Cas. 9,586. 2. A sheriff levying on the bankrupt's property after commencement of proceedinga 446 SHERIFF, II — STATE LAWS, I, IL and selling the same, paying over proceeds to execution creditor, with no actual notice that bankruptcy proceedings had ever been commenced, may still be compelled to ac- count to the assignee, when appointed, for the proceeds of the goods so sold and paid over. In re Grinnell & Co., 9 N. B. R. 29; 31 Pittsb. Leg. J. 82; 7 Ben. 42; Fed. Cas. 5,830. 3. Where a sheriff sold perishable goods under attachment by order of a state court, but without notice of the adjudication of the defendant in bankruptcy, he was guilty of the conversion of the goods, and is liable for the market value of the goods so converted. Long, Ass., V. Conner, 17 N. B. R 540; Fed. Cas. 8,479. 4. Where a court reinstates a proceeding in bankruptcy, without notice to or appear- ance of debtor, the sherifE will not be pro- tected by an order issued therein directing the payment of money to an assignee. Gage et aL V. Gates, 15 N. B. R. 145. II. In Geneeal. 5. A sheriff will not be enjoined from an arrest of a bankrupt on execution pursuant to a judgment recovered on a debt created by fraud. In re Patterson, 1 N. B. R. 58; 3 Ben. 155; 15 Pittsb. Leg. J. 241; Fed. Cas. 10,817. 6. In many particulars, where it is not deemed a violation of his legal duty, a sherifE is deemed the agent of the plaintiff in the execution. O'Brien v. Weld et al., 15 N. B. R. 405; 92 U. S. 81. 7. In Kentucky, after a fl. fa. is delivered to the sheriff, the creditor is not deprived of his lien by an act of bankruptcy on the part of the debtor, committed before the levy is made, but after the execution is in the hands of the sheriff. Waller v. Best, 3 How. 111. SPECIFICATIONS. See Discharge, IL L IL III. IV. STATE LAWS. Contracts Undeh. On Insolvency. State as Creditor. In General. See Lien, 27. I. CONTEACTS UnDEE. See Contracts, VL 1. If a debtor apply for the benefit of a state insolvent law, and the court dismiss the case for want of jurisdiction, this is a conclusive answer to an action on a bond conditioned to apply for the benefit of tha state insolvent laws. Hubert v. Horter, 14 N. B. R. 430. 2. It was not the intent of congress to au- thorize national banks, in respect to interest, to violate the laws of the states within which they might be organized, nor to relieve them of the result of such violation prescribed by the state laws, if they were guilty thereof. Receiver of Ocean Nat. Bank v. Estate of Wild, 10 N. B. K 568; Fed. Cas. 11,624 II. On Insolyenct. See Estates, 76. 3. Assignments under state insolvent laws are void. Rowe v. Page, 13 N. B. R 366.' 4. Although the law under which a state court undertook to distribute the assets of an insolvent corporation did not purport to discharge the debtor from its liabilities, Jield, attempted act of state court in contraven- tion of bankruptcy law. In re Merch. Ins. Co., 6 N. B. R 48; 3 Biss. 163; 20 Pittsb. Leg. J. 33; 4 Chi. Leg. News, 73; Fed. Cas. 9,441. 5. The act of congress passed March 3, 1867, superseded the laws of insolvency of a state, even where the plaintiff and defend- ant are both citizens of the same state ; hence, a discharge under the insolvent laws of a state is no defense to an action brought to re- cover an amount due on open account. Cas- sard et al. v. Kroner, 4 N. B. R. 185. 6. The bankrupt act of 1867, so far as it operated to supersede state insolvency laws, did not take effect until June 1, 1867, and hb- solvency proceedings begun in a state court before that date may be continued after said act has become effective. Martin v. Berry, 3 N. B. R 188. 7. When congress has exercised its power to establish bankruptcy laws, the insolvency laws of the states in conflict with the bank- ruptcy laws are superseded. Therefore, the fact that a state court has taken possession of property Of an insolvent cannot be allowed STATE LAWS, III, IV. UT to defeat the execution of the bankrupt act. In re Safe Dep. and Sav. Inst., 7 N. B. E. 393; Fed. Cas. 13,211. 8. The common law relating to assign- ments for the benefit of creditors is not a part of the state (Michigan) insolvent law, and is not suspended by the national bank- rupt law. Cook et aL v. Rogers, etc., 13 N. B. E.97. 9. The adoption of a bankrupt law does not divest the state courts of jurisdiction over insolvent proceedings pending at the time of its adoption. Lavender v. Gosnell et aL, 12 N. B. R 283. 10. Wliere a bankrupt act is repealed the state insolvent laws are again in full force and need not be re-enacted. Id. 11. The general bankruptcy law suspends all proceedings imder state insolvent laws. In re Mer. Ins. Co., 6 N. B. R 43; 3 Biss. 163; 20 Pittsb. Leg. J. 33; 4 Chi. Leg. News, 73; Fed. Cas. 9,441. 12. The preference, after that of the United States, of the state in which the pro- ceedings are pending, exists simply because of the act of congress, and if congress had not so enacted, or if it should enact other- wise, the preference would cease. The Six Penny Sav. Bank et al. v. The Estate of Stuyv. Bank, 10 N. B. E. 399; Fed. Cas. 13,919. 13. Where a question arose as to the valid- ity of a state (Kentucky) law " to prevent fraudulent assignments in trust for credits ors, and other fraudulent conveyances," held, that such a law was not an insolvent law, and therefore was not superseded by the fed- eral bankrupt law. Ebersole et aL v. Adams, etc., 13 N. B. R 141. 14. In all questions relating to real estate federal courts will follow the decisions of the courts of the state in which the land is situ- ated. In re Zug et aL, 16 N. B. R 280; 23 Int. Eev. Eec. 392;' 34 Leg. Int. 403; 35 Pittsb. Leg. J. 29; Fed. Cas. 18,333. 15. Except where the constitution or stat- utes of the United States otherwise provide, the supreme court adopts the local law of real property as ascertained by the decisions of the state court, whether those decisions are on the construction of the statutes or form part of the unwritten law of the state, which has become a fixed rule of property. Eay V. Brigham et al.,, 12 N. B. E. 145. III. State as Creditor. 16. Where contractors were indebted to the state (New York) for services of convicts, and became bankrupt, held, that the state had a lien upon the machinery and tools of such contractor used upon the prison prem- ises in operating the contract. In re Burt et aL, 13 N. B. E. 137; 12 Blatchf. 253; Fed. Cas. 2,209. 17. A contract for the services of convicts is not void, so far as the state is concerned, although the contractor has failed to make deposit as the law requires. Id. 18. Where the preferred creditor was the state by virtue of a bond given to the people of the state, and the moneys were to be turned into the treasury of the city of New York, it was held that the state was the cred- itor. In re Chamberlin, 17 N. B. R 50; 9 Ben^ 149; Fed. Cas. 2,580. 19. A bankrupt's property was sold to a bona fide purchaser free from all incum- brances. Held, that the right of the state to- taxes due thereon could not be divested. Stokes V. State of Georgia, 9 N. B. R 191. 20. Bankrupt employed convicts from a state under contract by which state was to keep them under good discipline and at dili- gent labor for bankrupt. Held, that damage sustained by failure of state to perform these stipulations should be deducted from contract price in estimating amount due state. In re The Southwestern Car Co., 9 N.. B. R 404; 9 Biss. 76; Fed. Cas. 13,192. 21. A claim proved by A., as the warden of the state prison, for the purchase price of property belonging to the state, is entitled to- priority. In re Miller et aL, 17 N. B. R 403; 26 Pittsb. Leg. J. 8; Fed. Cas. 9,554. 22. The state law as to exemptions hav- ing been changed during the year 1871, the exemption can be allowed only according to the law in force at the close of that year. In re Baer, 14 N. B. R 97; Fed. Cas. 723. IV. In General. 23. No state is bound to permit the oper- ation of foreign laws when they are contrary to its policy or prejudicial to its interests.. In re Bugbee, 9 N. B. E. 258; Fed. Cas. 2,115.. 24. The state laws are not entirely super- seded by the bankruptcy act, but where there- 448 STATUTE OF LIMITATIONS -STATUTORY CONSTRUCTION, I-IU, (a). is a conflict the former remain in force. Gerry's Appeal, 17 N. B. R. 196. 25. A provision in the bankruptcy act adopting the exemption laws in the several states cannot make valid a state exemption law held unconstitutional by the supreme ■court of that state. Bush v. Lester et al., 15 N. B. R. 36. STATUTE OP LIMITATIONS. See Limitations, Statute of. STATUTORY CONSTRUCTION. L The Whole Must be Considbebd. II Not Needed When the Meaning is Plain. IIL Effect. (a) When Prospective. (b) When Retrospective. TV. Of Amendatoet Statutes. V. Of Prohibitoet Statutes. VI. Of Statutes Giving a Remedy. VII. Repeal. vm Of Special Laws. (a) Bankrupt Act, 1867. (b) Act of February 13, 1873. (c) Revised Statutes. (d) Act of June ^S, 187^, IX. Time. X In General. See Constitutional Law, I, (c); CouEfs, 96; Petitions, 69; Stockholder, 19. I. The Whole Must be Ooitsideeed. 1. Where there is an inconsistency be- tween the clauses of the bankrupt act, that one must yield, the non-enforcement of the provisions whereof to their full extent will least interfere with the part it is designed to take in carrying out the objects and purposes ■of the act taken as an entirety. Hoyt et al. V. Freel et al., 4 N. B. R. 31 2. It is a well settled rule that in putting a construction upon any part of a statute, the ■whole is to be considered, and efliect is to be given, if possible, to every clause and section of it; and it is the duty of courts, as far as practicable, so to reconcile the different pro- visions as to make the whole act consistent and harmonious. In re Scott & McCarty, 4 N. B. R 139; Fed. Cas. 13,518. ,' 3. In order to give a uniform and har- monious interpretation to the bankrupt act, all the provisions contained therein m.ust be considered in connection with each other, and the construction of any particular sec- tion determined with reference to all other sections. Lamb v. Damron, 7 N. B. R. 509; 5 Chi Leg. News, 290; Fed. Caa 8,014 4. Sections 35 and 39 of the bankrupt act of 1867 must be construed together and made to harmonize. Tyler, Ass., v. Brock et aL, 17 N. B. R. 239. 5. Section 17 of the bankrupt act of \%t^ providing for settlement of estates in bajik- ruptcy by composition, is to be construed in harmony with the general principle pervad- ing all bankrupt laws. In re Jacobs, 18 N. B. R 48; Fed. Cas. 7,159. II. itf OT Needed Whek the Meaitlng- IS Oleae. 6. Where the language of a statute is transparent and its meaning clear, there is no room for the office of construction. Lewis, Tr., V. United States, 14 N. B. R. 64; 92 U. S. 618. 7. The courts ought not to pronounce a law unconstitutional unless its incompati- bility be clear, decided and inevitable. In re Smith, 14 N. B. R 295; 2 Woods, 458; 8 N. Y. Wkly. Dig. 532; 8 Chi Leg. News, 315; 3 Cent. Law J. 386; 3 Amer. Law T. Rep. (N. S.) 335; Fed. Cas. 12,996. III. Effect. (a) When Prospectme. 8. The remedial provisions of the amend- ments to the bankrupt act, approved June 22, 1874, apply to all pending or future pro- ceedings in causes commenced since Decem- ber 1, 1873. Barnett et aL v, Hightower and Butler, 10 N. B. R. 157; Fed. Cas. 1,009. 9. It is the very essence of a new law that it shall apply to future cases; and such must belts construction unless the contrary plainly appears. Brooke, Ass., v. McCracken, 10 N. B. R. 461 ; 7 Chi Leg. News, 10; Fed. Cas. 1,932. 10. The new provision of section 14 of the STATUTORY CONSTRUCTION, m, (b). 449 bankrupt act of 1874 was designed, where applicable, to apply to cases where there had been an adjudication and not to cases where there had been no adjudication. In re Mo- Keon, H N. B. R. 183; 7 Ben. 513; 3 Amer. Law Rec. 611; 11 Alb. Law J. 7; Fed. Cas. «,858. 11. A debtor who filed a petition was ad- judicated bankrupt on the 23d of June, 1874. Afterward a creditor asked that the adjudi- ■cation be set aside on the ground that re- .quirements of the amended act of June 23, 1874, had not been fulfilled. Held, that the adjudication should be set aside. In re Car- rier & Baum, 13 N. B. R. 308; 38 Pittsb. Leg. J. 57; Fed. Cas. 3,443. 12. Since the amendatory bankrupt act of June 33, 1874, the same number and amount •of creditors must join in the proceedings to force a corporation into bankruptcy that is (required in the case of an individuaL In re Leavenworth Sav. Bank, 14 N. B. R 82; 33 Pittsb. Leg. J. 196; Fed. Cas. 8,166. (b) When Hetrospeotive. 13. Act of June 33, 1874, applying to oases commenced since December 1, 1873, was not meant as a retrospective act, and the adju- dication of a case before its enactment into a, law removed the case beyond legislative -controL In re Raffauf, 10 N. B. R. 69; 6 Biss. 150; 6 Chi. Leg. News, 341; 31 Pittsb. Leg. J. 206; Fed. Cas. 11,535. 14. The amendment to bankrupt act of June 22, 1874, is retrospective and includes ^11 cases commenced since December 1, 1873, in which there has been no adjudication, but ■does not annul or disturb judgments ren- dered or adjudications made and in force when amendment took effect. In re Obear, In re Thomas, 10 N. B. R. 151; 8 DilL 37; 1 ■Cent. Law J. 363; Fed. Cas. 10,395. 15. B. was declared an involuntary bank- rupt prior to June 33, 1874; certain creditors then prayed that proceedings be dismissed on ground that creditors did not include one- fourth in number and one-third in value. Held, amendatory act of June 33, 1874, does not apply to involuntary proceedings in which adjudication was had prior thereto, but only to involuntary proceedings com- jnenced after December 1, 1873. Barnert et 29 al. V. Hightower & Butler, 10 N. B. R. 157; Fed. Cas. 1,009. 16. A. was adjudged a bankrupt on cred- itor's petition before passage of act approved June 32, 1874 On application for an order permitting one-fourth in number and one- third in value of the creditors to join, in com- pliance with section 39, held, that the decree of adjudication having been rendered prior to the approval of the amendatory act, it could not be affected thereby. In re Picker- ing, 10 N. B. R. 308; 1 Cent. Law J. 371; Fed. Cas. 11,130. 17. The act of June 32, 1874, is not retro- spective in its effect and does not apply to cases adjudicated prior to its passage. In re Comstock & Co., 10 N. B. R. 451; 3 Sawy. 138; 6 Chi. Leg. News, 413; 22 Pittsb. Leg. J. 35; Fed. Cas. 3,077. 18. The amendments of June 22, 1874, to section 35 of the bankrupt act are not retro- active. Brooke, Ass., v. MoCracken, 10 N. B. R. 461; 7 ChL Leg. News, 10; Fed. Cas. 1,933. 19. The words of a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be attached to them, or unless the intent of the legislation cannot be otherwise satisfied. In re Perkins et al., 10 N. B. R. 539; 6 Biss. 185; 7 ChL Leg. News, 9; 10 Alb. Law J. 347; 30 Int. Rev. Rec. 185; 1 Cent. Law J. 507; 33 Pittsb. Leg. J. 43; Fed. Cas. 10,983. 20. Where an action is brought by trus- tees of a bankrupt's estate under section 39 of the act of 1867, to recover money paid by way of preference, the proceedings being in- voluntary, and having been commenced and the cause of action having arisen before De- cember 1, 1873, the amendment of 1874, re- quiring proof that the creditor knew that the payment was in fraud of the act instead of that he must have had reasonable cause to believe, has no application. Van Dyke & Brownson v. Tinker, 11 N. B. R. 308; Fed. Cas. 16,849. 21. In cases of compulsory bankruptcy actually commenced, but not determined, before December 1, 1873, the amendments of 1874 do not apply. Singer, Ass., v. Sloan et al., 11 N. B. R. 433; 3 Cent. Law J. 141; Fed, Cas. 13,899. 22. Section 10 of the act of June 23, 1874; 450 STATUTORY CONSTRUCTION, IV-VL changing the period of four to two months, is not retrospective in its operation, and does not aflfect transactions happening before the time fixed for it to take effect. Bradbury, Ass., V. Galloway, 13 N. B. R. 299; 3 Sawy. 346; 1 N. Y. "Wkly. Dig. 34; Fed. Cas. 1,764 23. Under the amendatory act of June 23, 1874, a case is controlled thereby in which conveyance was made before the passage thereof, provided there was no judicial pas- sage on the conveyance previous to the amendment. Boothe, Ass. etc., v. Brooks, Neeley & Co., 12 N. B. R. 398; 1 N. Y. Wkly. Dig. 135; Fed. Cas. 1,650. 24. An assignee in bankruptcy brought an action to recover back a preference in 1873, and while the suit was pending in 1874 the bankrupt act was amended. Held, that the rights of the parties must be determined in accordance with the bankrupt act before its amendment. Slafter, Ass., v. Greer Tur- ner Sugar Ref. Co., 18 N. B. R. 520. 25. The amendments of 1874, so far as they change the existing law in reference to the rights of assignees to recover property transferred in contravention of the bankrupt act, and in reference to the proof of debts by creditors who have taken a preference, are not retroactive, and do not apply where the proceedings in bankruptcy had been previ- ously commenced. Under the prior law a preferred creditor who did not surrender his preference until he was compelled to do so by the judgment of a court could not prove his debt. In re Lee, 14 N. B. R. 89; 33 Pittsb. Leg. J. 196; Fed. Cas. 8,179. 26. A trustee was appointed before the amendment of June, 1874, changing the law so as to require a creditor obtaining a pref- erence to know the debtor to be insolvent, and he had a right to a certain sum of money held by the defendant, but did not com- mence his suit therefor until after the amend- ment. Held, that the amendment did not apply. Tinker v. Van Dyke, 14 N. B. R. 113; 1 Flip. 531; 8 Chi. Leg. News, 335; Fed. Cas. 14,058. 27. It is not necessary to the invalidity of an act alleged to be preferential in its char- acter, which took place prior to December, 1873, that it shall come up to the test im- posed by the amendatory act of June, 1874. The limitation of the retroaction of section 13 of the act oi June, 1874, to the first day of December, 1873, excludes any other period for retroaction. Oxford Iron Co. v. Slafter^ Ass. etc., 14 N. B. R. 380; 13 Blatchf. 455^ Fed. Cas. 10,637. IV. Of Amendatoet Statutes. 28. When existing laws are amended by- enactments that such a section shall read im an altered manner, and the altered section contains in part the old law and in part new provisions, the latter will be construed to re- late to subsequent acts, and the former wiU be considered as having been the law from the time of its first enactment. Oxford Iron Co. V. Slafter, Ass. etc., 14 N. B. R. 380; IS Blatchf. 455; Fed. Cas. 10,637. Y. Of Peohibitoet Statutes. 29. An act may be unlawful as within the prohibition of a statute, and yet a debt or ob- ligation growing out of the act be valid, un- less it appears by a fair construction of th&- statute that it was the intention of the legis- lature that it should be void. In re Moore, 1 N. B. R. 133; 3 Bond, 170; 1 Amer. Law T: Rep. Bankr. 74; Fed. Cas. 10,041. 30. Unless it is clear from the words of a prohibitory statute that an agreement in vio- lation of it is void, the courts will not so de- clare it, but will give effect to the agreement. The intention of the legislature is to be mad© out by referring to the whole statute, and such intention will control the courts in giv- ing it a construction. Id. VI. Of Statutes Giving a Eemedt. 31. An adequate remedy, providing for the enforcement of a new right conferred by act of congress, is not intended to be exclu- sive, such inference only being drawn where a new penalty is imposed; Cook v. Waters et al., 9 N. B. R. 155. 32. A law which creates a liability be- tween citizen and citizen, as further security for the contract of a corporation of which- the obligated person is a member, has in it no penal element whatever, in that sense which makes a court refuse to enforce the penalties of foreign governments. Tinker v.. STATUTORY CONSTRUCTION, VII, VHI, (a). 451 Van Dyke, 14 N. B. R. 113; 1 Flip. 521; 8 Chi. Leg. News, 235; Fed. Gas. 14,058. 33. The eflEect of the provisions of the act of 1874, section 3, is not to confer or take away jurisdiction of the state courts, but simply to allow the federal courts of original jurisdiction to decline to entertain actions at common law to which the assignee is a party, in which the debt demanded is less than the amount which determines the ju- risdiction of those courts in other cases. Goodrich v. Wilson, 14 N. B. R. 555. 34. In an appeal to the supreme court of New York from a judgment recovered on the verdict of a jury for $1,330 for goods con- veyed in violation of the bankrupt act, held, that the act of June 22, 1874, gives the fed- eral courts exclusive jurisdiction over actions brought by assignees to recover property transferred in violation of section 5138, Re- vised Statutes, where the value exceeds $500. Olcott, Ass., V. Maclean et al., 16 N. B. R. 79. YII. Eepeax. 35. One statute is not to be construed as a repeal of another if it be possible to recon- cile the two together. In re McConnell, 9 N. B. R. 387; 10 Phila. 287; 81 Leg. Int. 61; 21 Pittsb. Leg. J. 107; Fed. Cas. 8,712. 36. The clause in section 5031, Revised Statutes, amending section 39 of the bank- rupt law by inserting the word "knew," in- stead of the words "had reasonable cause to believe," is not to be applied to proceedings in bankruptcy commenced before Decem- ber 1, 1873. When substantial rights are cre- ated by statute, or commercial contracts are regulated, the repeal of laws upon which they depend -will not receive a retroactive application, unless the law expressly or by necessary implication so declares. Tinker v. Van Dyke, 14 N. B. R. 112; 1 Flip. 531; 8 Chi. Leg. News, 335; Fed. Cas. 14,058. 37. Those clauses of the bankrupt act of 1867 which authorize an assignee to recover the amount of unlawful preferences paid to particular creditors are not in their nature penal, and their repeal is not subject to the rule of construction applicable to the repeal of penal statutes. Id. 38. Where a right arises under or is given by a statute, and it has been so far perfected that nothing remains to be done by the party. the repeal of the statute does not affect it, or an action for its enforcement. Barnewall & Gaynor, Ass., v. Jones, Dunn & Crawford, 14 N. B. R. 278; Fed. Cas. 1,037. 39. Where there is no express repeal of a law as it stood at the time of the amend- ment, the law will, in the absence of express provisions to the contrary, be deemed to apply and to govern the validity and conse- quences of acts done before it was amended. More especially must the rule be adhered to when the amendatory law contains express provisions fixing the period of its retroaction in certain specified cases, for this specifica- tion almost necessarily leads to the conclu- sion that in all other and unspecified cases the amendment is not to have a retroactive effect. Oxford Iron Co. v. Slafter, Ass., 14 N. B. R. 380; 13 Blatohf. 455; Fed. Cas. 10,637. 40. Where a general clause of an amend- ing law repeals all provisions of the original law inconsistent with those of the new law, it is in general construed to have the effect to substitute the new law for the old, retro- actively as to penalties, forfeitures and dis- abilities. Warren et al. v. Garber, 15 N. B. R. 409; 1 Hughes, 365; Fed. Cas. 17,196. 41. Bankrupts applied for discharge, which was refused for the reason that under amendment of June 22, 1874, to the bankrupt law, they were restricted to assent of cred- itors whose claims originated after January 1, 1869. Held, that section 9, act of June 22, 1874, necessarily repealed proviso to section 5112, Revised Statutes. In re Wheeler et al., 19 N. B. R. 258; 11 Chi. Leg. News, 407; 8 Reporter, 674; 4 Cin. Law BuL 655; Fed. Cas. 17,491. 42. When a bankrupt act is repealed, the state insolvent laws are again in full force and need not be re-enacted. Lavender v. Gosnell & Tripolett, 12 N. B. R. 283. 43. The repeal of a statute, after a lien has been acquired under it, does not affect the lien. Brooke, Ass., v. McCraken, 10 N. B. R. 461; 7 Chi. Leg. News, 10; Fed. Cas. 1,933. VIII. Of Special Laws. (a) Bomhfwpt Act, 1867. 44. By the term " fraudulent preference," used in item 9 of section 39 of the act of 1867, is meant only a preference in fraud of 452 STATUTORY CONSTEUCTION, Vni, (a). the bankrupt act; that is, contrary to its pro- visions. In re Rosenfleld, 1 N. B. R. IGl; 7 Amer. Law Reg. (N. S.) 618; 1 Amer. LawT. Rep. Bankr. 81; Fed. Cas. 13,058. 45. The phrases " since the passage of this act " and " subsequently to the passage of this act " explained and distinguished. Id. 46. That no consequences can be allowed under section 31 to flow from proving a debt inconsistent with section 33 (act of 1867). In re Rosenberg, 2 N. B. R. 81. 47. The phrase "longest period" during each six months means longest period busi- ness was carried on in any district during such time, and not the greater portion of six months. Foster v. Pratt, 8 N. B. R. 57; 3 Ben. 886; Fed. Cas. 4,963. 48. Section 39 of the act of 1867 relates exclusively to proceedings in involuntary bankruptcy. In re Evans, 8 N. B. R. 63; Fed. Cas. 4,553. 49. The word "residence" in section 11 of the act of 1867 is not synonymous with "domicile." In re Watson, 4 N. B. R. 197; Fed. Cas. 17,373. 50. The bankrupt act must be uniform, and therefore, of two possible constructions, that which avoids constitutional objections must be preferred. Ala. & Chatt. R. E. Co. V. Jones, 5 N. B. E. 97; Fed. Cas. 136. 51. The latter clause of the forty-first sec- tion of the act of 1867 was intended to allow the debtor to disprove all the material alle- gations of the petition. In re Skelley, 5 N. B. R. 214; 3 Biss. 260; Fed. Cas. 13,921. 52. A railroad corporation is within the provisions of the thirty-seventh section of the bankrupt act of 1867. The word busi- ness as applied to corporations has a broader meaning than the word commercial, but congress did not intend to give it such scope as to supersede the words monied and eorrir mercial. Sweatt v. Boston, H. & E. R. E, 5 N. B, E. 234; 3 Cliff. 339; 1 Amer. Law T. Rep. Bankr. 373; 6 Amer. Law Rev. 168; Fed. Cas. 13,684 53. There is nothing in the language of the twenty-ninth section of said act which indicates an intention to confine the opera- tions of its provisions to transactions occur- ring after the passage of the act. In re Cretiew, 5 N. B. R. 433; Fed. Cas. 3,390. 54. The first section of the bankrupt act of 1867 does not include, in the powers to be exercised summarily, jurisdiction to foreclose a mortgage upon bankrupt's estate. In re Casey, 8 N. B. R. 71; 10 Blatchf. 376; Fed. Cas. 3,495. 55. The fourteenth and thirty-fourth sec- tions of the bankrupt act of 1867 construed. United States v. Throckmorton et aL, 3 N. B. R. 809; 18 Int. Rev. Eeo. 54; Fed. Cas. 16,516. 56. That part of section 41 of the bank- rupt act Of 1867 providing when jury trial shall be held does not prevent ordinary spe- cial jury when ciroiunstances require. In re Hawkeye Smelting Co., 8 N. B. R. 385. 57. National banks are not included under section 37 of the bankrupt act of 1867, con- gress having made special legislation as to them. Smith v. Mfrs. Nat. Bank, 9 N. B. E. 123; Fed. Cas. 13,076. 58. It is the intention of section 43 of the act of 1867 that, pending proceedings under it, all the ordinary processes and proceed- ings under the act, for the time being, are absolutely superseded and suspended, ex- cepting so far as such processes and proceed- ings are retained by the express words or by the necessary implication of the provisions of such section. In re Trowbridge, 9 N. B. R. 374; Fed. Cas. 14,191. 59. Section 13 of the bankrupt law of 1867, which declares that no creditor proving his claim shall be allowed to maintain any suit therefor at law or equity against the bank- rupt, cannot have any broader scope than is warranted by the letter of the statute. It does not inhibit collateral remedies. The right of action against a party as a stock- holder of a corporation is not affected by the bankrupt law. Allen v. Ward, 10 N. B. E. 385. 60. Section 38 of the bankrupt act con- strued to mean the filing of a petition sus- tained by proof of the acts of bankruptcy and of the claim of the petitioning creditor (1867). In re Rogers, 10 N. B. R. 444; 1 Cent. Law J. 470; Fed. Cas. 13,003. 61. Section 2 of the bankrupt act applies only to cases where suit is brought in regard to property held adversely to the bankrupt and the assignee, or to cases (as amended in 1874) where suit is brought to recover any debt that may be due the bankrupt. Pickett, Ass., V. McGavick, 14 N. B. R. 236; 3 Cent. Law J. 303; 13 Alb. Law J. 318, 400; 2 N. Y. Wkly. Dig. 378; Fed. Cas. 11,126. 62. The language employed in the first STATUTORY CONSTRUCTION, VIU, (bHd), IX. 453 clause of section 35 of the act of 1867 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. The second clause must be limited to cases where the transac- tion 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. Barne- wall & Gaynor, Ass., t. Jones, Dunn & Craw- ford, 14 N. B. R. 378; Fed. Cas. 1,027. 63. Technical trusts, and not those which the law implies from the contract, are em- braced by section 33 of the bankrupt act (1867), while acting in any fiduciary char- acter. Keime v. Graff et al., 17 N. B. E. 319; 5 Rep. 489; 25 Pittsb. Leg. J. 118; Fed. Cas. 7,650. 64. The clause of section 44 of the bank- rupt act (1867) which punishes by imprison- ment any fraudulent disposition of property, obtained on credit and unpaid for, within three months before bankruptcy proceedings, is constitutional and valid. United States v. Pusey, 6 N. B. E. 284; Fed. Cas. 16,098. (b) Act of Felruary 13, 1873. 65. The act of February 13, 1873, applies only to such orders relating to the ratable distribution or payment of dividends as the state courts may have passed prior to the commencement of proceedings in the dis- trict court, or prior to its adjudication in bankruptcy, for the ratable distribution or payment of dividends. Watson v. Citizens' Sav. B. of S. C, 11 N. B. R. 161; 3 Hughes, 200; Fed. Cas. 17,279. (c) Mevised Statutes. 66. The limitation contained in section 5057 of the Revised Statutes applies only where adverse interests in property are in- volved or where the cause of action has ac- crued after bankruptcy. Latting v. Fassman et aL, 17 N. B. R. 183. 67. Section 5031 of the Revised Statutes, in relation to proof of debt, applies also to cases begun prior to December 1, 1873. In re Black et aL, 17 N. B. R. 399; Fed. Cas. 1,459. 68. The acts mentioned in section 5110, Revised Statutes, are not in the nature of offenses or forfeitures, but rather in the nat- ure of violations of conditions precedent. In re Seeley, 19 N. B. R. 1; Fed. Cas. 12,628. 69. The words "fraudulent preference," as used in section 5110, Revised Statutes, do not import moral fraud, but merely mean that a payment shall have been made under circumstances which the law inhibits as a preference. Id. (d) Act of June 2<2, 187 i.. 70. The ninth section of the act of June 33, 1874, amendatory of the thirty-ninth sec- tion of the bankrupt act, does not reqiiire the denial of the debtor that the petitioners constitute one-fourth in number and one^ third in amouiit of the creditors to be sworn to, but, in the absence of a rule of the su- preme court on the subject, it is proper to require such denial to be verified by the oath of the debtor. In re Hymes, 10 N. B. R. 438; 7 Ben. 437; Fed. Cas. 6,986. 71. The ninth section of the act approved June 33, 1874, which relates to the discharge of bankrupts, applies to cases commenced before the act took effect and not then con- cluded, as well as to cases commenced after its passage. In re Franke, 10 N. B. R. 438; 7 Ben. 430 ; 6 Chi. Leg. News, 414 ; Fed. Cas. 5,046. Overruled, In re King, 10 N. B. R. 566; 3 Dill. 3; 1 Cent. Law J. 506; 7 Chi. Leg. News, 3C; 10 Alb. Law J. 349; Fed. Cas. 7,781. IX. Time. 72. The Revised Statutes are to be re- garded as passed December 1, 1873, and all other acts of the same session of congress passed subsequent to that date are to be treated as subsequent acts, repealing the Re- vised Statutes so far as they are inconsistent therewith. In re Oregon Bui. Pr. & Pub. Co., 14 N. B. R. 405; .3 Sawy. 614; 11 Amer. Law Rev. 181; 3 Cent. Law J. 515: 14 Alb. Law J. 130; 3 Amer. Law T. Rep. (N. S.) 469,; Fed. Cas. 10,561. 73. The act of June 33, 1874, purporting to amend and supplement the bankrupt act of 1867, is to be regarded as having been passed subsequent to the passage of the Re- vised Statutes, and, although referring ia 454: STATUTORY CONSTRUCTION, X — STAY OF PROCEEDINGS, L terms to the act of 1867, is to be construed as referring to the provisions of that act as carried into the corresponding provisions of the Revised Statutes, and as amending and supplementing the provisions of the statutes relating to bankruptcy as therein found ex- pressed. Id. X. In Geneeal. 74. A proceeding in bankruptcy, from the filing- of the petition to the distribution of the bankrupt's estate and his discharge, is a single statutory proceeding. In re York & Hoover, 4 N. B.R. 156; 1 Abb. (U. S.) 503; 10 Amer. Law Reg. (N. S.) 36; Fed. Cas. 18,139. 75. A court cannot substitute in the place of an expressed intention embodied in a stat- ute a presumed intention, but must admin- ister the intention of congress as manifested by the words of the bankrupt act (1867). In re Nounnan & Co., 7 N. B. R. 15. 76. The rule that the adoption of a statute carries with it the judicial ccjnstruction of it, considered and authorities referred to. Good- all, Ass., V. Tuttle, 7 N. B. R. 193; 3 Biss. 219; 4 Chi. Leg. News, 473, 485; Fed. Cas. 5,533. 77. A transfer void under laws of the state where made is void under the bankrupt act, as the United States supreme court will follow the construction given to such statute by the highest court of the state. Murry et al. V. Allen, Ass., 7 N. B. R. 401; 17 Wall. 351. 7 8 . The sovereign authority of the country is not bound by the words of a statute unless named therein, if the statute tends to restrain or diminish the powers, rights or interests of the sovereign. United States v. Herron, 9 N. B. R. 535; 30 Wall. 351. 79. Where it was contended that section 17 of the bankrupt act of June 33, 1874, was unconstitutional, on the ground that said act authorized the discharge of a bankrupt upon the surrender of a portion of his assets only, held, that the subject of bankruptcies was committed in full by the constitution to con- gress and it is not to be interpreted or limited by British statutes existing at the time of the separation of this country from Great Britain. In re Reiman et al., 13 N. B. R. 138; 13 Blatchf. 563; Fed. Cas. 11,675. 80. Only those portions of the bankrupt law that are expressly or impliedly adopted by the section relating to corporations apply to them. New Lamp Chimney Co. v. An- sonia Brass & Copper Co., 13 N. B. R. 885; 91 U. S. 656. 8 1 . Where a statute has received a knovsTi judicial construction, and is substantially re-enacted, the legislature is presumed to adopt such construction. Woolsey v. Cade, 15 N. B. R. 338. 82. A., who was insolvent, mortgaged property to B., who knew of A.'s insolvency, to secure a valid loan. In action by A.'s as- signee in bankruptcy to set aside the con- veyance, Tield, that under the amending act of June 33, 1874, in order to nullify the con- veyance, it was necessary that B. knew that it was made in fraud of the provisions of the bankrupt act, or to prevent the property from coming to the assignee or from being distributed under the act. Campbell, Ass., V. Waite et al., 16 N. B. R. 93; 9 Ben. 166; Fed. Cas. 3,374 STAT OP PROCEEDINGS. I. When Allowed. IL When Not Allowed. III. Effect 6v. IV. When to be Made. V. Vacation. See Courts, 311; Injunction; Judgment, 3, I; Suits, L I. When Allowed. 1. Execution in the hands of the sheriff against property of bankrupt will be stayed. In re Jones & Leach, 1 N. B. R. 165; Fed. Cas. 7,475. 2. Creditors brought an action in a state court alleging that while a debtor was in- solvent he purchased certain realty, and praying that the debtor be declared to hold the property in trust. Before the suit was commenced, a voluntary petition in bank- ruptcy was filed, whereupon the said credit- ors proved their debts. The bankruptcy court made an order staying proceedings in the state court, and application was made for an order vacating the order to stay. The application was denied. In re Myers, 1 N. B. R. 163; 3 Ben. 434; Fed. Cas. 9,518. 3. A debt which is contested in a state STAY OF PROCEEDINGS, L 455 court may be allowed to proceed to judgment for the purpose of ascertaining the amount due, which amount may be proved in the bankruptcy proceedings, but execution shall be stayed. In re Bundle and Jones, 3 N. B. E. 49; 1 Chi. Leg. News, 30; Fed. Cas. 13,138; Allen & Co. v. Montgomery, 10 N. B. E. 504. 4. Even though an attachment has been sued out against a bankrupt more than four months before he applies for a discharge and dismissed on giving a bond upon his applica- tion, a state court, pending the question of his discharge, must stay all proceedings therein on a claim provable in bankruptcy, unless unseasonable delay on his part is shown or the court of bankruptcy gives leave to ascer- tain the amount due. Hill v. Harding, 107 U. S. 631. 5. An action against a bankrupt to recover a debt provable against his estate must be stayed until the question of his discharge is determined, notwithstanding the debt may not thereby be barred. In re Eosenberg, 3 N. B. R. 81; 3 Ben. 14; 1 Chi. Leg. News, 103; Fed. Cas. 13,054. 6 . An order of arrest made by a state court in a suit against a bankrupt upon an affidavit showing that the suit was founded on a debt ■created by fraud of the bankrupt will not be vacated by the bankruptcy court, but the suit will be stayed imtil the final determina- tion of the bankruptcy proceedings. In re Migel, 3 N. B. E. 153; Fed. Cas. 9,588. 7. Pending an action by a creditor, the ■debtor filed petition in bankruptcy, but did not apply for a stay of proceedings. Creditor did not prove his claim but proceeded to judgment, after which bankrupt received his discharge. Creditor now sought to ex- amine bankrupt as to his property, on pro- ■ceedings supplementary to judgment, and bankrupt moved to stay the proceedings. Hdd, that the failure to apply for a stay of proceedings in the first instance did not war- rant a refusal of the relief prayed for. The •"World " Co. V. Brooks, 8 N. B. E. 146. 8. Appeal from circuit coTirt to United States supreme court stays all proceedings from time application for appeal was first presented to circuit judge. In re Thornhill et al. V. Bank of Louisiana, 5 N. B. B. 377; Fed. Cas. 13,991. 9. Proceedings in involuntary bankruptcy were begun in one state against a railroad chartered in two states, and while these were pending a petition was filed in the other state. Upon petition of the creditor insti- gating the first suit, held, second one stayed. In re Boston, H. & E. E. E. Co., 6 N. B. E. 309; 9 Blatchf. 101; 6 Amer. Law Eev. 365; Fed. Cas. 1,677. 10. Proceedings to collect a provable debt shall, on application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge, provided there be no unreason- able delay on the part of the bankrupt in en- deavoring to obtain his discharge. In re Bel- den, 6 N. B. E. 443; 5 Ben. 476; Fed. Cas. 1,389. 11. If a mortgagee institutes proceedings to foreclose a mortgage after the commence- ment of proceedings in bankruptcy, such proceedings may, on the application of the assignee, be stayed until the bankruptcy pro- ceedings are closed. Markson et al. v. Haney, 13 N. B. E. 484. 12. In an action of ass«mpsii on promis- sory notes, by holder against makers, a de- fense setting up that defendants were adju- dicated bankrupts, but that time had not arrived for application for discharge, does not constitute a defense, but is sufficient to stay the action and prevent judgment. Frost- man et al. V. Hicks et aL, 15 N. B. E. 41. 13. An action on a claim, originating in contract fraudulently induced, sounding in damages, is within the provisions of the bankrupt law prohibiting any creditor from prosecuting to final judgment a suit on a provable debt before the debtor's final dis- charge has been settled. In re Schwarz, 15 N.B. E. 330; 14 Blatchf. 196; 53 How. Pr. 513; 15 Alb. Law J. 350; Fed. Cas. 13,503. 14. Where a bankrupt is sued for a debt provable, but not proved, in bankruptcy, he has the right to have the suit stayed until the question of his discharge is settled. If no stay is procured, the creditor can never- theless proceed to judgment. Scott v. Ellery, 143 U. S. 381. 15. A bankrupt discharged after judg- ment given against him in a state court, in an action pending where he instituted jao- oeedings in bankruptcy, is entitled to the perpetual stay of execution on such judg- ment. Boynton v. Ball, 121 U. S. 457. 456 STAY OF PROCEEDINGS, H-IV. II. When Not Allowed. 16. When the effect of granting a stay upon a judgment against a corporation be- fore execution returned, or setting aside an execution issued thereon, the stockholders of which are personally responsible, will be to discharge "a person or officer or member thereof," where such liability must be pred- icated of such judgment and execution re- turned unsatisfied, a motion on the part of de- fendants to stay proceedings after judgment must be denied. Allen v. The Soldiers, etc. Co., 4 N. B. E. 176. 17. Proceedings for contempt for failure to obey order in proceedings in state court, supplementary to execution, should not be stayed. In re Hill, 3 N. B. R. 53; Fed, Cas. 6,486. 18. Proceedings in state court will not be stayed until adjudication is had in bank- ruptcy. In re Maxwell & Faxton, 4 N. B. E. (8 vo. ed.) 310. 1 9. A creditor recovered judgment and ex- ecution against a bankrupt in the state court. The bankrupt was subsequently arrested on the execution, and gave a recognizance be- fore a magistrate to appear for examination under the laws of the state for the relief of poor debtors. He appeared, and the exam- ination was continued from time to time. The bankrupt, pending the examination, filed his petition in bankruptcy and an assignee was afterwards chosen. The creditor after- wards filed with the magistrate charges of fraud against the bankrupt, under the stat- ute of the state. Held, that such chairges of fraud are not a new suit which should be stayed under the twenty-first section of the bankrupt act (1867). Minion v. Van Nostrand, 4 N. B. E. 38; 1 Lowell, 458; Fed. Cas. 9,643. 20. After verdict, and before judgment, in an action in tort for slander and malicious prosecution, the defendant was adjudged bankrupt. Defendant moved for a continu- ance pending proceedings in ba,nkruptcy. Held, defendant was not entitled to a stay of proceedings, as the claim was not provable in bankruptcy under section 19 of the act of 1867. Zimmer v. Schleehauf, 11 N. B. E. 313. 21. A stay of proceedings in bankruptcy in the district court is in the discretion of the circuit court, and ought not to be grantedl where it does not appear that the rights of the defendant will be prejudiced. In re Oregon Bull. Print. & Pub. Co., 14 N. B. E. 394; 3 Sawy. 539; 8 ChL Leg. News, 148; Fed. Cas. 10,560; E. 8. 4980, 4986. 22. A surrogate's decree for payment of moneys misappropriated by him as adminis- trator was docketed against the bankrupt, before institution of bankruptcy proceed- ings, and an appeal taken from the surro- gate's decision refusing to commit the debtor for failure to pa.y. Pending the bankruptcy proceedings, the surrogate's decision was re- versed on the appeal and the proceedings- remitted to him to enforce the remedy against the bankrupt's person. Held, thati the proceedings could not be stayed so as to- prevent the commitment of the debtor. In re Whitney, 18 N. B. E 563; Fed. Cas. 17,581. 23. Subsequent to final judgment, a stay of a proceeding for the purpose of putting in motion the remedy of arrest reserved to th© creditor is not allowabla Id. 24. The fact that proceedings in bank- ruptcy are pending against a firm is not a* good plea in abatement in an action against a special partner of the firm against whom the proceedings are not taken; the latter are- consequently not entitled to a stay of pro- ceedings which the statute gives for the pro- tection of the bankrupt. Abendroth v. Van Dolsen, 131 U. S. 66. III. Effect of. 25. A petition for a stay of proceedings- filed under the bankrupt act by a stranger who claims perishable property which may have been ordered sold does not make him a. party to the suit in bankruptcy, nor can he- be bound by the court in bankruptcy against any action of trespass he might bring in a, state court against the marshal for the seiz- ure of his property. Marsh and Palmer, Ex'rs,. V. Armstrong 11 N. B. E. 135. IV. When to be Made. 26. A motion for stay of a suit on grounct! of bankruptcy should be made before triaL Holden v. Sherwood, 18 N. B. R. 111. STAY OF PROCEEDINGS, V- STOCKHOLDERS, I, II, (a), (b). 4:5t V. Vaoation. 27. A stay of proceedings will "be reached •when there is unreasonable delay in the bankruptcy proceedings. In re Belden, 6 N. R R. 443; 5 Ben. 476; Fed. Cas. 1,339. STOCK. See C0EPORA.TIONS, IIL STOCKHOLDEES. L Who Ana n. Unpaid Subsceiption. (a) Preliminary Call Necessary. (b) How Becovered. HL LlABILITT. (a) When Exists. (b) When Enforced. (c) Remedy Statutory. (d) Claim of, in Bankruptcy. (e) Avoidance of. TV. In General. See Laches, 5; Partners, 13; Set-off, 2; Trust, 2. I, Who Abe. 1. The entry of his name on the stock book as a stockholder, though the stock has not been transferred on the books of the company, may be sufficient to give the holder of stock the position of stockholder. Upton, Ass., V. Burnham, 8 N. B. R. 331; 3 Biss. 431; Fed. Cas. 16,798. 2. Party purchasing shares of stock in a company, and in this manner allowing him- self to be held out as a stockholder, takes the responsibility of his action. The person who has caused or allowed his title to be regis- tered on the books of the company cannot deny the truth of that representation and disavow the ownership when it ceases to benefit and becomes a burden. Upton, Ass., V. Hansbrough, 10 N. B. R. 368; 3 Biss. 417; 5 Chi Leg. News, 242; 7 West. Jur. 238; Fed. Cas. 16,801. 3. The acceptance and holding of a cer- tificate of shares in an incorporation makes the holder liable to the responsibilities of a shareholder. Upton, Ass., v. Tribilcock, 13 N. B. R. 171; 91 U. S. 45. II. Unpaid SuBSOEiPTioisr. See Corporations, 24-26, 32; Courts, 263;; Estates, 207, 209; Trustee, 336. (a) Prelvrmna/ry OaU Wecessa/ry. 4. The charter of a company provided that subscribers to stock should pay therefor in a certain manner and that the balance of pay- ments should be subject to call of majority of stockholders. Held, in such case, that ta maintain an action at law for such balance, there must be such call or assessment or something standing in the place thereof, or equivalent thereto, either by the company or a proper tribunal to make stockholder liable. Chandler, Rec, et al. v. Siddle, 10 N. B. R. 236; 3 DilL 477; 1 Cent. Law J. 341; Fed. Cas. 2,594 5. A bankruptcy court may make any call upon the stockholders of a bankrupt com- pany, necessary or preliminary to the collec- tion of the assets, as fully as the stockholders or directors could have done if the company had not gone into bankruptcy. Upton, Ass., V. Hansbrough, 10 N. B. R. 368; 3 Biss. 417; 5 ChL Leg. News, 242; 7 West. Jur. 238; Fed. Cas. 16,801. 6. If the charter of a railroad company provide that in case any stockholder default in the payment of an assessment and the- railroad becomes unable to pay interest ac- crued on its mortgage bonds, the first duty of the company is to enforce the payment of necessary and proper assessments upon thfr stock, and to prevent the misuse of any fic- titious certificates which indicate that the- stock has been fully paid for; but a bank- ruptcy court has no jurisdiction of such pro- ceedings. Gibson et al. v. Lewis, Trustee, 11 N. B. R. 347; 11 Phila. 476; 33 Leg. Int. 22;: Fed. Cas. 5,398. 7. Although the balance on the certificate of stock is made subject to the call of the directors, under the instructions of the stock- holders, the district court may direct the payment of the balance due. Sanger v. Up- ton, Ass., 13 N. B. R. 226; 91 U. S. 56. (b) Mow JRecov&red. 8. To recover the balance due on a sub- scription of stock, the assignee in bankruptcy of a corporation may sue at law. Id. 458 STOCKHOLDERS, HI, (a)-(d). 9. When the court makes an order direct- ing payment of the balance on subscriptions, it is not necessary that the stockholders shall be before the court. Id. 10. Where subscribers to stock of an in- corporated company paid twenty per cent, on their shares, and entered into an agree- ment with the company that further assess- ment should not be made thereon, and cer- tificates for full-paid shares were issued to them after the company was adjudicated a bankrupt, and to satisfy the claims of its creditors it became necessary to assess the unpaid stock, it was held that the agreement was void as to creditors, and that proceed- ings to set aside such agreement should first be commenced in a court of competent ju- risdiction. Scovill V. Thayer, 105 U. S. 148. III. Liability. See Banks, 10-14; Corporations, 23, 37-30; Estates, 208; Trustee, 335. (a) When Exists. 11. A national bank has, in order to pre- vent loss upon a debt previously contracted, a lien upon the share of an individual stock- holder. In re Bigelow, 1 N. B. E. 302; 2 Ben. 469; Fed. Cas. 1,395. 12. In a corporation de facto the stock- holders are liable for the unpaid balances due on certificates of stock. Upton, Ass., v. Hansbrough, 10 N. B. R. 368; 8 Biss. 417; 5 Chi. Leg. News, 243; 7 West. Jur. 338; Fed. Cas. 16,801. 13. When the by-laws of a bank make the stock of its stockholders subject to all in- debtedness of the bank, the bank has a right to enforce this by-law in case of bankruptcy of the stockholder. In re Morrison, 10 N. B. E. 105; 6 Chi. Leg. News, 110; Fed. Cas. 9,839. 14. Where copies of the charter and by- laws were placed in hands of one who subse- quently subscribed for shares of stock, he is bound thereby, although he did not read them. Upton, Ass., v. Tribilcock, 13 N. B. R. 171; 91U. S. 45. 16. A promise to take shares of stock im- ports a promise to pay for them. Id. 16. Where a party takes a certificate of Stock in blank and pays part of it, he is liable for the balance due thereon. Sanger v. Upton, Ass., 13 N. B. R. 336; 91 U. S. 56. 16a: A corporation filed papers for tho purpose of reorganizilig with an increased capital, in accordance with a state statuta The corporation became bankrupt and the assignee thereof brought an action to enforce certain subscriptions. Held, that the defend- ant could not deny the regularity of the or- ganization of the new company. Chubb v. Upton, Ass., 16 N. B. R. 537; 95 U. S. 665. (b) Where Enforced. 17. It is especially the province of a court of equity, in which an account can be stated of the debts and stock and distribution made, to enforce the liability of the stockholders; but one creditor cannot, by an individual suit, appropriate to himself the entire bene- fit of the security and exclude all others. Pollard V. Bailey, Ass., 11 N. B. R 276; 20 Waa 530. (c) Remedy Statutory. 18. At common law the individual liabil- ity of stockholders in a corporation does not exist; it is always a creature of statute. Id. 10. Where the provision for the liabUity of a stockholder is coupled with a provision for a special remedy, that remedy alone must be employed, but a general liability created by statute without a remedy may be en- forced by an appropriate common-law action. Id. 20. The bankruptcy of a corporation does not prevent judgment being obtained against the corporation, and the creditor, in default of obtaining satisfaction under the judg- ment, from the property of the corporation, may pursue the remedy given him by stat- ute against stockholders. Allen v. Ward, 10 N. B. R. 285. (d) Claim of. 21. Under the act of 1867 a bank should prove its demand for a debt due as secured by stock, and, by leave of court, have it sold, the proceeds to be applied to payment of the debt, and prove, as a creditor of the estate, for any balance that may remain. In re Morri- son, 10 N. B. R. 105; 6 Chi Leg. News, 110; Fed. Cas. 9,839. 22. The statutory liability of stockholdeia STOCKHOLDERS, III, (e), IV -STOPPAGE IN TRANSITU. 459 -is not a claim provable against them in bank- ruptcy. James, Adm'x, v. The Atlantic De- laine Co. et aL, 11 N. B. R. 390; Fed. Cas. 7,179. (e) Avoidance of. 23. An arrangement by which stock is nominally paid and the money immediately taken back by way of loan to the stockholder is a device to change the debt from a stock debt to a loan, and is not a valid payment as against the corporation creditors, though it may be good between the stockholder and the company. Sawyer et aL v. Hoag et al., « N. B. R. 145; 17 Wall. 610. 24. It is too late for a stockholder, after the company has become insolvent, to avoid his liability on the ground that false repre- ■sentations were made to him that no assess- jnent could be made on his stock. Upton, Ass., V. Hansbrough, 10 N. B. R. 368; 8 Biss. 417; 5 Chi Leg. News, 242; 7 West. Jur. 238; Fed. Cas. 16,801. 25. Where a party subscribed for shares of stock of a corporation, paying only a por- tion of the par value thereof, held, that his liability for the balance due on said stock is not affected by a representation that there is no personal liability for such balance. Up- ton, Ass., V. Tribilcook, 18 N. B. R. 171; 91 U. S. 45. 26. A stockholder in an insurance com- pany rendered insolvent by a fire caimot es- cape his liability on a stock-note by surren- dering a certificate of indebtedness on one of the adjusted policies and withdrawing his note. Jenkins, Ass., v. Armour et aL, 14 N. B. R. 276; 6 Biss. 813; 8 ChL Leg. News, 267; 23 Int. Rev. Rec. 169; Fed. Cas. 7,260. rV. In Geneeal. See CoEPORATiONS, 31, 33; Contracts, 3; Evi- dence, 20, 25. 27. After commencement of proceedings in bankruptcy against a railroad company, ■the stockholders caused to be bought up in their behalf, with money furnished by them, all the floating debts of the company, except two which constituted a small portion of the indebtedness, and then petitioned that the proceedings should be suspended and the property restored to the company. Held, that upon giving security for the two debts not bought up, the petition should be granted. In re Ind., Cin. & Laf. R. R. Co., 8 N. B. R. 303; 5 Biss. 287; 21 Pittsb. Leg. J. 4; Fed. Cas. 7,023. 28. Stockholders of a bank whose charter provides that they shall be bound respectively for its debts in proportion to their stock therein must pay a sum which shall bear the same proportion to the whole indebtedness that his stock bears to the whole capital. Pollard V. Bailey, Ass., 11 N. B. R. 277; 20 WaU. 530. 29. By reason of their joint and several liability, stockholders do not become copart- ners, so that all the members, as partners, would be liable to be adjudicated bankrupt as a firm. James, Adm'x, v. The Atl. Delaine Co. et al., 11 N. B. R. 390; Fed. Cas. 7,179. 30. The individual liability of stockhold- ers for the debts of the corporation to the amount of their stock is neither property nor a right of property, nor a credit of the bankrupt corporation, and the assignee has no legal or equitable right or interest therein. Dutcher, Ass., v. The Marine Nat. Bank of N. Y. et al., 11 N. B. R. 457; 12 Blatchf. 435; Fed. Cas. 4,203. 31. That the matter of the transfer of shares of railroad stock might be investi- gated by the master, an order of the master was made that certain books and documents be produced. Such order was not complied with, and a motion for an attachment for contempt of court against the president of the railroad was therefore granted. Erie R. R. Co. V. Heath et al., 4 N. B. R. 177; Fed. Cas. 4,513. 32. The debt due to a stockholder for losses sustained by him on policies issued by the corporation cannot be set off against his indebtedness to the corporation for unpaid subscriptions to its stock. Scammon v. Kim- ball, Ass., 13 N. B. R. 445; 92 U. S. 863. STOPPAGE IN TRANSITU. See Sale, 47. 1. L. contracted to sell to the bankrupt certain wine "to arrive" at a fixed price. The wine on arrival was stored in the name of L. in a bonded warehouse chosen by tha 460 SUBPCENA— SUITS, I. bankrupt, and the bankrupt withdrew a part of the wine before his failure, L. consenting as required by the treasury department. After the petition in bankruptcy was filed the remaining wine was withdrawn by L., who paid the whole warehouse charges. The bankrupt's note given for the amount of the purchase came due and was not paid. Seld, that L. had the right of stoppage in transitu, and that the delivery of part was not a de- livery of the whole, with reference to the right of stoppage in transitu as to the re- mainder. In re Beams, 18 N. B. R. 500; Fed. Cas. 1,191. 2. The right of stoppage in transitu de- pends upon the fact that the goods have not come to the actual or constructive possession of the vendee. Id. SUBPCENA. See Pleading and Practice, XV, (h). SUBROGATION. See Mortgages, 48. 1. A party is entitled to be subrogated to the rights of the creditor, without any agree- ment to that effect, where he has been- com- pelled to pay the debt of a bankrupt in order to protect his own rights. Whithed et al. v. Pillsbury and Titoomb, Ass., IS N. B. E. 241; Fed. Cas. 17,572. 2. Where a United States revenue oflSoer made good to the government, by payment, a dishonored check received from a govern- ment debtor, held, that he is subrogated to rights of the United States as a preferred creditor. In re McBride et al., 19 N. B. E. 453; Fed. Cas. 8,663. 3. The firm A. & B. were sureties for a debt which was paid out of the firm assets. On dissolution of the partnership a balance was due to B. from A., who subsequently went into bankruptcy. Hdd, that B. could not be subrogated to the rights of the cred- itor whose claim the firm satisfied, against A.'s estate, as against other creditors of A. In re Smith, 16 N. B. R. 113; Fed. Cas. 12,991. 4. An assignee who redeems pledges is sub- rogated to the rights of the pledgee until, from the proceeds of the pledges redeemed. the fund is made good. McLean et al., Ass.>. V. Cadwalader, 15 N. B. E. 383. 5. Where a creditor having a judgment against a bankrupt, which is a lien upon bis- real estate, proves his debt, and comes in upon the bankrupt's estate for the whole debt, the assignee in bankruptcy is entitled to be subrogated to the rights of the judg- ment creditor as regards his lien upon th» real estate. Wallace v. Conrad, 3 N. B. E. 10. SUITS. I. Injunction and Stat. II. By Assignee. IIL Pleading. IV. Who Plaintiff. V. State Courts and Collateral Action. See Limitations, Statute of, 24, 53; Statu- tory Construction, 61; Trustee, 171, 178, 196. I. Injunction anx> Stat. See Injunction; Stat of Proceedings. 1. Whether a railroad chartered in twa states is two corporations or one, a proceed- ing in bankruptcy wUl be stayed pending a prior proceeding of the same nature in th& other state. In re Boston, H. & E. E. R Co., 6 N. B. E. 209; 9 Blatchf. 101; 6 Amer. Law Rev. 365; Fed. Cas. 1,677. 2. Creditors acquire no right to proceed in an action against a bankrupt pending de- termination of the question of discharge, from the fact that they have not proved their claim. In re Schwartz, 15 N. B. E. 330; 14 Blatohf. 196; 53 How. Pr. 513; 15 Alb. Law J. 350; Fed. Cas. 13,503; sec. 5106, E. S. 3. A creditor instituted suit against a bankrupt for the recovery of a debt alleged to be due for the sale of merchandise; and on aflBdavit showing that the debt was fraud- ulently contracted, an order of arrest was entered and the bankrupt held to bail. fleZd, that the debt was provable, and that a stay of proceedings should be granted until the- question of the bankrupt's discharge should be determined, notwithstanding the debt may not thereby be barred. In re Rosen- berg, 3 N, B. R. 81; 3 Ben. 14; 1 Chi Leg. News, 103; Fed. Cas. 12,054 SUITS, n-iv. 461 4. Complainants filed petition in Louisi- «,na, and proposed a composition, which was accepted, and complainants appointed cus- todians of their property and authorized to protect and collect the same for purposes of •composition. In suit to enjoin a judgment obtained against them, after commencement •of bankruptcy proceedings, held, that bank- rupts did not stand in position of assignee so far as to maintain an action imder Revised Statutes. McGehee et al. v. Hentz et al., 19 N. B. R. 136; Fed. Cas. 8,794. n. By Assignee. 5. A fund was in the hands of an assignee in bankruptcy for distribution, to which as- signees under a general assignment, and as- signees under a special assignment prior to the general one, laid claim. "An equity suit was pending between the parties involving their rights to the fund. Held, that the bank- rupt court would detain the fund until the rights of the parties were determined. In re Sabin, 18 N.,B. E. 151; 10 Chi. Leg. News, 364; 5 Cin. Law BuL 625; Fed. Cas. 13,195. 6. An adjudication of bankruptcy is a suf- ficient excuse, under the laws of Illinois, to ■excuse an assignee for not bringing suit against the maker of the note, in order to hold the assignor. Wills et al. v. Claflin et al., 13 N. B. E. 437; 93 U. S. 185. 7. An assignee in bankruptcy secured a judgment in a state court against B. An ac- tion was brought to set aside a conveyance by B. on the ground of fraud. Objection was made that the assignee could not sue in a state court. Held, that section 711, Revised Statutes, does not extend to this case. Wente V. Young et aL, 17 N. B. E. 90. 8. An action of trover wiU not lie by an assignee against a judgment creditor to re- cover the value of property sold under an execution prior to the commencement of the proceedings in bankruptcy. Gates, Ass., v. American et al., 14 N. B. E. 141; Fed. Cas. 5,269. 9. Suits may be prosecuted to final judg- ment by an assignee to recover the assets of a bankrupt in the circuit or district court in a district other than that in which the de- cree in bankruptcy is entered. Dutcher v. Wright, Ass. etc., 16 N. B. R. 331; 94 U. S. «53. 10. If a debtor transfers property in the United States to prefer an alien, the latter is liable to an action by the assignee of the bankrupt in a court of the United States. Oloott, Ass., V. MacLean et aL, 14 N. B. E. 379. 11. A petition of bankrupt's assignee to recover property from one claiming by vir- tue of voluntary assignment, said petition being brought in the bankruptcy court, is a suit at law within the meaning of the act. In re Krogman, 5 N. B. E. 116; Fed. Cas. 7,936. III. Pleading. See Pleading and Peactick 12. Plaintiff began an attachment suit against a debtor who was adjudicated within four months. Defendant gave bond. Judg- ment for plaintiff and an order for the prop- erty. This order was not obeyed and plaintiff sued on the bond. Defendants urged that plaintifiE's rights were supplanted by the bank- ruptcy proceedings. Held, that such pro- ceedings should have been pleaded and that the state court was not ousted of its jurisdic- tion. Haber v. Klauberg et aL, 15 N. B. E. 377. 13. A creditor who has not proved his claim, though it was provable, sued on it. Defendant pleaded his bankruptcy and that the debt was provable and would be barred by a discharge, and that proceedings were pending. Defendant did not ask that the case be continued to enable him to obtain a discharge. Held, that the claim could not be properly prosecuted to judgment. Hol- land V. Mai-tih, 18 N. B. E. 359. 14. The assignee cannot plead a discharge in bankruptcy in bar in an action against the bankrupt. Serra et aL v. Hoffman & Co., 17 N. B. E. 134 15. Prior to bankruptcy, bankrupts issued warehouse receipts. In an action by the as- signee, held, that on account of fraud he was estopped to deny validity of said receipts. Sharpe, Ass., v. The Phila. Warehouse Co., 19 N. B. R. 378. IV. Who Plaintiff. 16. G., a creditor of a bankrupt, upon re- fusal of assignee to proceed, brought an action in his own name against the bankrupt, as- 402 SUITS, Y. siguee in Ixinlviuptc-y and othere to i-eacU property frauduloutly coucealed or oonveyed by the baukriipt Held, that lie could not maintain the action in his own nivme. G leuny V. Langdon et al., 19 N. R R ::4: OS U. S. 00. 17. A party who purchases a chose in ac- tion from the assignee cajrnot maintain an action thei-eon in his own name in a state court where the laws of the state do not pei^ mit an assignee of a chose in action to sue in his own name. Leach v. Greene, 10 N. B. R. 376. 18. When a suit is brought by a bankrupt with the consent of the trustee in bankruptcy, the verdict, if for the plaintiff, need not bo for the use of the trustee. Southern Es. Co. T. Connor, 10 N. B. R. 53. 19. An assignee in bankruptcy cannot maintain an action in trover where the con- version was consummated before he had a right to possession. Jones v. Miller, Ass. etc., 17 N. B. R. 316; 1 N. J. Law J. 113; Fed. Cas. 7,480. 20. Six months before bankruptcy S. con- veyed real estate to one H., who, four months afterwards, conveyed the same to S.'s wife. Assignee filed bill to set aside conveyances as witliout consideration and in fi-aud of creditors. Held, that assignee in bankruptcy could maintain such suit. Johnson, Ass., v. Helmstaeder et al., 19 N. R R 71. V. State Couets and Collateral Actions. 21. State courts are not divested of juris- diction of cases pending in them by the ini- tiation of bankruptcy proceedings against one party, unless it be brought to the notice of the state court. Bracken v. Johnston, 15 N. B. R 106; 4 Dill. 518; 5 Amer. Law Eec. 461; 4 Cent. Law J. 9; 11 Ainer. Law Rev. 609; 3 N. Y. Wkly. Dig. 578; 1 Ciu. Law Bui. 358; Fed. Cas. 1,761. 22. Sections 1 and 3 of the bankrupt act of 18G7 held not to confer exclusive jurisdic- tion on United Statos courts in suits for en- forcement of right imder the act, but only as to adjudication. Cook v. Waters et al., 9 N. a R 155. 23. The effect of bankruptcy in suits pend- ing in state courts is to stay or suspend them. They may, with leave of bankrupt court, be prosecuted to judgment to ascert;un th* amount due, but execution cannot be issued and executed. Alleu v. Montgomery et al., 10 N. B. R 504 24. A suit in equity is rendered defective nieiely by the bankruptcy of the plaiutitV. and the assignees may be brought forw-.ird by supplemental bill. The Collateral Secu- rity Bank v. Fowleiv Trustee. 10 X. B. R 0S;>. 25. In case of a fraudulent disposition of the property of a corporation by its officers. the stockholders and creditoi-s sltould not be confined to their remedy against the oiricci-s alone, but should be allowed their remeily against the party to whom the transfer has been made. In i-e Jaycox et aL, 7 N. R R 578; Fed. Cas. 7,041. 26. In an action brought by an assignee in bankruptcy to foreclose a mortg-iige a state court has jurisdiction. Burlingame, Ass., v. Farce et al., 17 N. R R 046. 27. Every presumption is iu favor of th& validity of the adjudication in a collateral action, where the bankrupt appcai-s after notice, and makes no objection to the court's jurisdiction. Now Lajnp C. Co. v. Ausoiiia R & C. Co., 13 N. R R 88o: 91 U. S. 656. 28. Rule to sliow cause why certain judg- ment creditors of the bankrupt sliould not be enjoined from proceeding vmder credit- ors' bills against the bankrupt in the state courts, and from enforcing an assignment by the debtor to the receiver appointed in such creditora' suits. Held, tliat siich ci-editow might be enjoined from proceeding further in the suite court. In re Whipple, 13 N. H. R 873: 6 Biss. 510; 8 Chi. Leg. Kews, 134; Fed. Cas. 17,510. 20. All othei" proceedings for the admin- istration of the assets of a debtor are super- seded by proceedings in bankruptcy, subject only to the priorities which were obtjwned by the diligence of any creditor. Id. 30. The question of whether an assign- ment under a state law is void may bo raised in a collateral action. Shryook et al, Ass,, v. Bashore, 18 N. R R 181 ; Fed. Cas. 13,800. 31. Proceedings to preve demaiids arc not seijarate suits at law or in equity, but a part, of the suit in bankruptcy. Leggett v. Allen, 110 U. S. 741. 32. Subsequent to the granting of a new ti'ial, but befoi-e tlie second trial, the defend- SURETY, I-IIL 463. ant received his discharge. The claim was one provable under the bankrupt law. Held, discharge in bankruptcy a bar. Case dis- missed without prejudice to the remedy under bankrupt law. Humble v. Carson, 6 N. B. R. 84. 33. Proceedings in bankruptcy are not a bar to the further prosecution of a suit in the name of the bankrupt. Thatcher v. Rock- well, 105 U. S. 467. SURETY. L Liability. IL Security. m Defense. IV. Release. See Lien, 2; Limitations, Statute of, 11; Paktnees, 193; Preferences, 353; Se- cured Cj.ATMS, 30. I. Liability. See Attachment, 53; Claims, 158, 160. 1. The obligation of the principal arises when the surety becomes liable for his debt. In re Perkins et al., 10 N. B. R. 539; 6 Biss. 185; 7 Chi. Leg. News, 9; 10 Alb. Law J. 347; 20 Int. Rev. Reo. 185; 1 Cent. Law J. 507; 32 Pittsb. Leg. J. 48; Fed. Cas. 10,983. 2. The liability of the principal to his surety, within the meaning of the bankrupt act, is considered as having been contracted when the instrument was signed. Id. 3. To dissolve an attachment the defend- ant gave an undertaking with sureties. It was held that his discharge in bankruptcy would not prevent judgment in an action against his sureties. Holyoke v. Adams, 10 N. B. R. 370. 4. The discharge given a bankrupt does not include a liability as a surety for a pub- lic officer. United States v. Heron, 9 N. B. R.685; 20 Wall. 351. 5. A feme covert does not become a surety for her husband by charging her inchoate right of dower for her husband's benefit. His- cock, Ass. etc., v. Jayoox et al., 13 N. B. R. 507; Fed. Cas. 6,581. II. Seoueities. 6. A surety on a note who takes an assign- ment of a bond for title to land to indemnify himself against loss has priority over judg- ment creditors of the assignor. In re Rey- nolds, 16 N. B. R. 158; Fed. Cas. 11,724. 7. A. becoming surety for B., the latter pledged with the former certain bonds andi stocks to secure him. On the bankruptcy of B., held, that A. was entitled to prove and receive dividends on the whole amount he- was compelled to pay without regard to the securities held. Jervis v. Smith, 3 N. B. R. 147. 8. The fact that the sureties on a bond are indemnified by a mortgage does not ren- der a claim on the bond a secured claim. In re Lloyd, 15 N. B. R. 357; 5 Amer. Law Rec. 679; 15 Alb. Law J. 293; 24 Pittsb. Leg. J. 113; Fed. Cas. 8,429. 9. A mortgage to secure a debt and to se- cure the mortgagee as surety for the mort- gagor constitutes a valid lien upon the prop- erty mortgaged on the date of its record, fort such amount as may be due on the debt se- cured. Milner, Jr., v. Meeks, Ass., et aL, 17 N. B. R. 83; 95 U. S. 252. 10. A creditor is entitled to the benefit of the indemnity held by the surety, and can seek in equity to be subrogated to his rights, reach the security and satisfy his debt. In re Stewart, 1 N. B. R. 42; 1 Amer. Law T. Rep. Bankr. 16; 15 Pittsb. Leg. J. 233; Fed. Cas. 18,418. 11. A. was surety on a note given by a firm in which he was a partner. The note was secured by property of A. A. and the firm both becoming bankrupt, it was held that the creditor should prove the whole debt against the firm assets and the defi- ciency against A's assets. In re May et al.^ 17 N. B. R. 193; Fed. Cas. 9,327. III. Defense. 12. In an action of debt upon a guardian's- bond, in which the surety set up a discharge in bankruptcy, held, a good defense. Reitz V. The People, 16 N. B. R. 96. 13. A surety may pay a debt for which he is contingently liable by giving his indi- vidual note, if such note is expressly received as payment. In re Morrill, 8 N. B. R, 117; 2 Sawy. 356; Fed. Cas. 9,831. 14. Where a judgment against the sure- ties on an appeal bond follows a judgments 464 SURETY, IV — TAXES. against the principal, sureties discharged in bankruptcy pending such appeal must plead :such discharge before judgment is rendered, or it will not avail as a defense. Jones et aL ■V. Coker et al., 16 N. B. E. 343. 15. A joint request was made by the in- dividual members of a firm soliciting B. to become a surety of one of them in an admin- istration bond. A demurrer that the plea set up no debt to the defendant due from the bankrupt firm was sustained and the judgment was afSrmed on appeal Forsyth V. Woods, 5 N. B. R. 78; 11 Wall 484 16. An action was brought upon an un- ■dertaking, on which the defendants were sureties, upon an appeal from a judgment. The judgment debtor was discharged in bank- ruptcy before the afiirmance of the judg- ment, and the defendants set up this dis- charge as a defense. Held, that it was no ■defense. Kuapp et al. v. Anderson et aL, 15 N. B. E. 316. ly. Release. See COMMEECIAL Paper, 14, 59 ; Dischaekb, XIV, (e), 370, XV, (e). 17. A surety on a guardian's bond is not included among those not released by a dis- charge in bankruptcy by section 5117, Re- vised Statutes. Ex parte Taylor, 16 N. B. E. 40; 1 Hughes, 617; 34 Pittsb. Leg. J. 305; Ted. Cas. 18,778. 18. The surety is released by the giving by the holder of a note of an extension to the principal for valuable consideration with- out the assent of the surety. The Valley Nat. Bank v. Meyers, Ass. etc., 17 N. B. E. 257; Fed. Cas. 16,831. 19. An assignee in bankruptcy accepted a lease held by the bankrupt and sold the in- terest so acquired to the lessor. Held, that the guarantor of the lease was discharged from all liability accruing after the com- mencement of the bankruptcy ;proceedings, as the lease was extinguished. White v. Grifflng, 18 N. B. R. 399. 20. A surety cannot be discharged where the creditor is without fault. Watson v. Poague et aL, 15 N. B. E. 473. 21. If a principal debtor becomes insolv- ent or procures a discharge in bankruptcy, a surety is not released, and if the principal is discharged by his creditors the effect is the same. The "Home," 18 N. B. R. 557; Fed. Cas. 6,657, STJBBENDEK. See Preferences, XV. 1. If a creditor prove his debt against the bankrupt, he cannot afterwards sue the bank- rupt on the debt, and proceedings thereon against the bankrupt and unsatisfied judg- ments against the bankrupt are discharged and surrendered by proving the debt In re Levy et aL, 1 N. B. R 66; 3 Ben. 169; Fed- Cas. 8,297. 2. Bankrupts surrendered their property to register, who appointed a watchman to guard and keep it, and submitted a report of his action to the district judge for approval, who ordered testimony taken. In re Bogert et aL, 3 N. B. E. 178; 1 Chi. Leg. News, 343; Fed. Cas. 1,599. 3. When bankrupts delay surrendering their assets, an order will issue for their im- mediate surrender to the proper officer. In re Shafer et aL, 3 N. B. E. 178; 1 Chi Leg. News, 336; Fed. Cas. 13,694. 4. In order to prove a debt imlawfully pre- ferred the party must surrender the unlaw- ful preference wholly — wipe out the security entirely. In re Stephens, 6 N. B. E. 533; 3 Biss. 187; Fed. Cas. 13,365. 5. In voluntary cases the bankrupt may surrender his property, but in involuntary cases the marshal alone is authorized, as mes- senger, to seize and retain bankrupt's prop- erty until assignee is appointed. In re Howes et aL, 9 N. B. E. 423; 7 Ben. 103; Fed. Cas. 6,787. TAXES. See Claims, 99, 100, 131; Constitutional Law, 30; Estates, 324; State Laws, 19. ; 1. A state has a prior lien on all her realty for taxes, which may be enforced to the pi'ej- udioe of any claim of her citizens; but if her claim is for a debt other than taxes, she is not entitled to preference over other creditors of the same class. In re Brand, 3 N. B. E. 85; 3 Hughes, 334; 2 Amer. Law T. Eep. Bankr. 66; Fed. Cas. 1,809. TESTIMONY — TORTS. 465 2. Funds in the hands of an assignee are liable to taxation by the state. In re Mitchell, 16 N. B. R 835; 17 Alb. Law J. 26; Fed. Gas. 9,658. 3. A county treasurer filed a claim against an assignee. The assets of the bankrupt had been sold by the assignee and the proceeds deposited in a designated bank to await the determination of litigation. The funds were subject alone to the control of the court. It was held that they were not liable to the state tax. In re Booth, 14 N. B. R. 333; 8 Chi Leg. News, 307; 1 Gin. Law BuL 131; Fed. Gas. 1,645. 4. A mortgagee out of possession, the Iiolder of a mechanic's lien, or a party who derived title through the assignee in bank- ruptcy, would be entitled to appear and con- test establishment and confirmation of the tax title. Meeks v. Whatley, 10 N. B. R. 498. TESTIMONY. See Evidence; Examination or Bankrupt. TIME. 1 GOMFUTATION, n. General. See Courts, VI; Petitions, V; Pleading AND Practice, 336; Pretbrence, 10. I. Computation. 1. Where any particular number of days "is prescribed by the statute, and the last day falls on Sunday or a public holiday, the last ■day shall be excluded. In re Lang, 3 N. B. R. 151; Fed. Oas. 8,056. 2. Where a decree is not announced and. -delivered by the judge until a date subse- quent to the one on which it was signed, it only takes effect from the latter date. In re B., H. & E. R. R. Co., 6 N. B. R. 333; 9 Blatchf. 409; 6 Amer. Law Rev. 583; Fed. Gas. 1,678. 3. The date of the execution and delivery -of deeds and not date named therein is the time from which to reckon the six months within which a petition in bankruptcy is to be filed where the deed is intended to defraud creditors. In re Rooney, 6 N. B. R. 163; Fed. Cas. 13,033. 4. The act of 1873 provided that the ex- emptions shall be such as allowed by the state laws of 1871. If the state law was changed during the year 1871 the exemptions allowed should be according to the law in force at the close of the year. In re Baer, 14 N. B. R. 97; Fed. Gas. 733. 5. Where a statute requires publication "once in each week for four weeks," seven days should intervene between each publi- cation. In re King et aL, 7 N. B. R. 379; 5 Ben. 453; Fed. Cas. 7,779. 6. December 8, 1869, notes, accoimts and property were assigned by the bankrupt to secure a debt, and April 8, 1870, petition in bankruptcy was filed. Held, that the secu- rities and property were assigned within four months of the filing of the petition in bank- ruptcy. Butcher v. Wright, Ass. etc., 16 N. B. R. 331; 94U. S. 553. II. General. 7. The period of four months before pro- ceedings in bankruptcy vrithin which trans- fers of property are void as preferences, hav- ing been changed, by the act of 1874 to two months, it was held that a preference given before such change more than two months before proceedings vested a right to the prop- erty transferred in the assignee, which was not taken away by the change of law. Aufl- mordt V. Rasin, 103 U. S. 630. 8. Where the question is as to effect of a proceeding instituted on the same day on which an act affecting the validity of such proceeding was passed, the precise time at which the act became a law may be properly inquired into. In re Wynne, 4 N. B. R. 5; Chase, 337; 3 Amer. Law T. Rep. Bankr. 116; Fed. Gas. 18,117. , TITLE. See Estates; Exemptions, IL TORTS. L Are Not Within the Bankrupt Ace. IL Actions for. (a) Judgments in, Provable. (Jo) Verdict Not Provable. IIL When Assignee May Recover foe. IV. Non-assignable. V. Recovery for. 466 TORTS, I-V— TBOVEE. I. Abe IsTot "Within the Bankeupt AOT. See Habeas Cobfus, 3. 1. A suit for fraudulently and deceitfully recommending a person as worthy of trust and confidence is not within the description of assets in the fourteenth section of the bankrupt act of 1867. In re Crockett, 3 N. B. B. 75; 3 Ben/514; Fed. Cas. 3,403. 2. Eights of action for torts to debtor's person do not pass to the assignee. Wright et aL V. Bank, 18 N. B. E. 87; 8 Biss. 343; 18 Alb. Law J. 115; 10 Chi. Leg. News, 348; 6 Eeporter, 339; 36 Pittsb. Leg. J. 11; Fed. Cas. 18,078. 3. On petition to vacate discharge, held, that cause of action ex delicto is not within description of assets which pass to the as- signee. In re Brick, 19 N. B. E. 508. II. Actions foe. See Eepleyin, 1. (a) Judgments im,, Provahle. 4. An action for assault and battery and false imprisonment may be' prosecuted to final judgment after petition in bankruptcy is filed, and a judgment recovered may be proved against bankrupt's estate. In re Hen- nocksburgh & Block, 7 N. B. E. 37; 6 Ben. 150; Fed. Cas. 6,367. 5. Plaintiff had recovered a judgment in an action in tort before petition was filed. Held a provable debt. Howland v. Carson, 16 N. B. E. 373. (b) Verdict Not Provahle. 6. A mere verdict in an action for a per- sonal tort is not a provable debt. Black v. McClelland, 13 N. B. E. 481 ; 7 Chi. Leg. News, 430; 1 N. Y. Wkly. Dig. 174; Fed. Cas. 1,463. III. "When Assignee Mat Keoovee EOE. 7. An assignee in bankruptcy may recover damages for an injury or detention of goods by a party to whom they were transferred by the bankrupt contrary to the provisions of the bankrupt act, and such recovery may be in an action to obtain possession of the property. Schumann, Ass., v. Fleokenstein^ 15 N. B. E. 334; 4 Sawy. 174; 9 ChL Leg* News, 174; Fed. Cas. 13,836. IV. N0N-ASSIGNA3LB. 8. In absence of statute authorizing it, a. right to a penalty cannot be assigned, nor a right of action for tort. Wright, etc. v. Bank, 18 N. B. E. 87; 8 Biss. 343; 18 Alb. Law J. 115; 10 Chi Leg. News, 348; 36 Pittsb. Leg. J. 11; Fed. Cas. 18,078. Y. Eecoveet foe. 9. The injured party can recover but once,, but he may sue joint wrong-doers separately until the full amount of the damages sus- tained is recovered. Sessions v. Johnson et. al., Ass., 17 N. B. E. 64; 95 U. S. 347. TRADER. See Commercial Paper, 85; Definitions, 33- 31; Acts of Bankruptcy, I, (b). TRESPASS. See Marshal, 3, 4, 6, 10-13; Toets, 4 6. TROVER. See PLBADiNa and Practice, 93; Suits, 8, 19. 1. An action of trover can be maintained by an assignee to recover property trans- ferred by bankrupt, who had knowledge of facts sufficient to bring home to the minds of reasonable men knowledge of his insolvency, to a creditor knowing these facts. Risen, Ass., V. Knapp, 4 N. B. R. 114; 1 DilL 186; Fed. Cas. 11,861. 2. An assignee may bring trover for prop- erty converted prior to his appointment as assignee, if done after the filing of the peti- tion in bankruptcy. If the conversion was prior to the filing of the petition, he must sue in equity. Mitchell v. McKibbin, 8 N. B. E. 548; 39 Leg. Int. 413; 31 Pittsb. Leg. J. 77; Fed. Cas. 9,666. 3. Where a party has come lawfully to- possession of propei-ty, trover or replevin wUl. TRUST, 1-V, (a). 467 not lie till after demand and refusal. This does not appeal where, before suit, the de- fendant has disposed of the goods. Linder, Ass., V. Lewis et aL, 19 N. B. E. 455. TRUST. I "When Arises. IL When Does Not Arise. IIL Origin Immaterial in Equity. IV. When Property Passes to Assignee. V. Eecoybrablb by Cestui que Trust in Assignee's Hands. (a) When. (b) When Not. VL In General. See Courts, 6, 40, 131, 148, 171; Discharge, 291; Estates, 163, 235. I. When Aeises. 1. The cestui que trust under a trust deed to secure present loans and subsequent ad- vances will be protected as to such advances against the claims of the borrower, who has declared the land a homestead, and has sub- sequently obtained such advances and fraud- ulently concealed his declaration of home- stead. In re Haake, 7 N. B. E. 61 ; 3 Sawy. 231; Fed. Cas. 5,883. 2. Capital stock or shares — the unpaid subscription in particular — constitute a trust fund for the benefit of the corporation's gen- eral creditors, which trust cannot be defeated by any device short of an actual payment in good faith. Sawyer et aL v. Hoag, Ass., et al., 9 N. B. E. 145; 17 Wall 610. 3. Where land is purchased with the money of A., B. taking the title as a matter of convenience, a trust is raised in favor of A., wholly or in part, as he may have paid all or part of the purchase-money; and such trust is of the realty and of the proceeds thereof, if it has been disposed of to a bona fide purchaser for valuable consideration without notice. In re Pierson, 10 N. B, E. 107; Fed. Cas. 11,158. II. Wheit Does Not Aeisb. 4. Where a creditor has received from his debtor money, under circumstances which were entirely lawful but for the provisions of the bankrupt law, it is free from all trust and claim on behalf of the cestui que trust, unless it is shown that the creditor knew of the trust. White v. Jones, 6 N. B. E. 175; 39 Leg. Int. 825; Fed. Cas. 17,550. 5. Although a note given to a wife by her husband bears an indorsement to the effect that it was given for money accruing to her out of her father's estate, if it was given for funds in which the husband had a marital interest and the proceeds had been reduced to possession by the husband, the note does not constitute a trust or gift in favor of the wife. Canby, Ass., v. MoLear, 13 N. B. E. 33; Fed. Cas. 3,378. III. OEiGii>r Immateeial m Equity. 6. It makes no difference in equity whether a trust is written out by the parties or is a creation of law. In re Jaycox & Green, 7 N. B..E. 308; 7 West. Jur. 18; Fed. Cas. 7,340. IV. "When Peopeety Passes to As- signee. 7. The trust in real estate held by wife of debtor, adjudicated bankrupt, if purchased and paid for by bankrupt in fraud of his creditors, inures as assets to the assignee. In re Meyers, 1 N. B. E. 163; 3 Ben. 434; Fed. Cas. 9,518. 8. Property held in trust merely, by a bank- rupt, does not pass to his assignee, but if he have an interest, or if his trust be coupled with an interest, the assignee in bankruptcy is vested with such interest. Walker, Ass., V. Seigel & Bott et aL, 13 N. B. E 394; 3 Cent. Law J. 508; Fed. Cas. 17,085. Y. Eeooteeable by Cestui Que Teust IN Assignee's Hands. (a) WTien. 9. The beneficiaries may follow a trust fund into the hands of any one receiving it with notice of the trust. In re Tesson et aL, 9 N. B. E. 378; Fed. Cas. 18,844 10. A cestui que trust may recover from the assignee in bankruptcy of the trustee any property into which a portion of the trust fund in the trustee's hands has been converted, so long as the property is distinguishable, such 468 TRUST, V, (b), VI — TRUSTEES, L right only ceasing on failure of means of as- certainment. Cook et aL v. Tullis, 9 N. B. R. 433; 18 Waa 383. (b) When Wot. 1 1 . Where trust property does not remain in specie, but has been made way with by the trustee, the cestui que trust has no longer any specific remedy against any part of his estate in cases of bankruptcy or insolvency, but must come in pari passu with other cred- itors, and prove against the trust estate for the amount due. In re King. 9 N. B. R. 140; In re Janeway, 4 N. B. R. 36; 18 Pittsb. Leg. J. 67; 4 Brewst. 350; Fed. Cas. 7,208; Unge- witter V. Von Sachs, Ass., 8 N. B. R. 178; 4 Ben. 167; 1 Amer. Law T. Rep. Bankr. 334; Fed. Cas. 14,348; In re Hosie, 7 N. B. R 601; 5 Leg. Op. 89; Fed. Cas. 6,711. YI. In General. 12. An arrangement entered into that a partnership may obtain possession of all goods, rights and credits of intestate dece- dent, and which were assets that the admin- istrator only had the right to hold, is a gross breach of trust. Forsyth v. Woods, 5 N. B. R. 78; 11 WalL 484 13. A. willed his estate to B., subject to a payment to be made to C, in trust for the benefit of E. and F. B. held the property for more than thirty years without ever paying over this sum and then became bankrupt. E. and F. claimed the trust fund. Sdd, only an implied or resulting trust and barred by the statute of limitations. In re O'Neale, 6 N. B. R. 435; Fed. Caa 10,513. 14. When an oflicer of a corporation with- out authority executed a deed of trust more than four months before the commencement of proceedings in bankruptcy, but such deed was ratified within such four months, the validity of the deed depends on circum- stances existing at time of ratification. In re Kansas City S. & M. Mfg. Co., 9 N. B. R. 76; Fed. Cas. 7,610. L II. TBUSTEES (ASSIGNEES). In General. Accounts and Repoets. (a) In General. (b) Exemptions. IIL Common-law Teustbes. IV. Fees and Costs. V. Natdeb of Trustee's Duties. VI Nature op Trustee's Title. VIL Property Generally Vesting in Trustee. VIIL PowEEs Not Acquired by Trustee. IX Removal of Trustee. X Rights Acquieed by Teustee. XL Substitution of Trustee as Party. XIL Sale by Trustek XIIL Selection op Trustee. (a) In General. (b) Appointment. (c) Qualifications. (d) Who May Vote for. xrv. Suits Generally by Trustee; XV. Title Not Acquired by Trustee. XVL Trustee m Relation to. (a) Fraudulent Conveyances and. Preferences. (b) General Assignments. (c) Mortgages. (d) Stockholders. (e) Committee of Creditors. (f) Usury. (g) Waiver of Property. See Execution, 19; Limitations, Statute of, 6, 8, 33, 46, 54; Lien, 50; Meeting, 3- 10, 15, 17; Negligence, 1, 3; Partners, 113-138; Petitions, 153-155; Pleading and Practice, 150, 153, 176, 311, 256, 263, 311; Proof of Claims, 33, 53, 63, 69, 70; Referee, 45; Reistt, 2, 9, 37; Schedule, 47; Secured Claims, 7; Statutoey Con- struction, 63; United States, 6. I. In Geneeal. 1. An assignee in bankruptcy should give a separate bond for each case in which he is appointed or elected. In re McFaden, 3 N. B. R. 27; Fed. Cas. 8,785. 2. Eight creditors whose claims amounted to $9,813.13 voted for the chosen assignee; four creditors whose claims amounted to $1,137.08 voted for D. for assignee, and three creditors whose claims amounted to $6,659.95 did not vote. Upon an application that se- curity be required of the assignee, held, that a bond in a reasonable penalty should be re- quired. In re Fernberg et al., 3 N. B. R. 114; TRUSTEES, 11, (a), (b). 469 1 Chi. Leg. News, 163; 2 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 4,743. 3. While an assignee can only be repre- sented in the proceedings by his duly ap- pointed attorney, yet another attorney may appear in court as the assignee's counsel in a particular proceeding, as provided in the Oregon Civil Code. In re Comstock et al., 13 N. B. R 193; 3 Sawy. 517; 8 Chi. Leg. News, 83; Fed. Cas. 8,080. 4. Upon the death of an assignee under the act of 1800, the right of action for a debt due to the bankrupt vested in the executor of the assignee. Richards v. Maryland Ins. Co., 8 Cranch, 84. 5. A discharged bankrupt entered into an agreement with his creditors as to the dis- posal of his property among them, as the culmination of a suit brought after adju- dication, which agreement was not signed by the assignee. Held, the agi'eement was not binding on the estate for want of the assignee's signature, and because the bank- rupt was eiviliter mortuus. In re Ander- son, 9 N. B. R. 360; 3 Hughes, 378; Fed. Cas. 351. 6. It is not necessary that the applica- tion of an assignee for the appearance of the bankrupt be made under oath. In re McBrien, 3 N. B. R. 73; 3 Ben. 513; Fed. Cas. 8,665. 7. When a suit is brought by a bankrupt with the consent of the trustee in bank- ruptcy, the verdict, if in favor of the plaint- iff, need not be for the use of the trustee. Southern Express Co. v. Connor, '13 N. B. R. 53. 8. If, after notice, the assignee permits a pending suit to proceed in the name of the bankrupt, he is bound by the judgment. Thatcher v. RockweU, 105 U. S. 467. 9. If an assignee, with reason to believe that one claiming to be a creditor of the bankrupt had fraudulently proved a debt against the estate, had neglected to contest it, there is nothing to prevent the creditors taking an appeal on the assignee's refusal First Nat. Bank v. Cooper et aL, 9 N. B. R. 539 ; 20 WaU. 171. 10. The acts of an assignee in bankruptcy cannot be impeached collaterally in the state courts. Morris et al. v. Swartz, 10 N. B. R. 305. II. Accounts akd Eepoets. (a) In General. 11. Upon certificate from the register, held, that the register has no power, on the application of creditors, to issue a summons for the examination of a trustee appointed under the bankrupt act, or for the produc- tion by him of books and vouchers. In re Hicks et al., 19 N. B. R. 449; Fed. Cas. 6,457. 12. Upon certificate from the register, held, that the trustee can only be called to account by a petition to court setting forth the grounds. Id. 13. After an assignee's account had been approved, a creditor moved to set aside the confirmation, and examine the conduct of the assignee in selling the bankrupt's prop- erty. Held, that he was entitled to an in- vestigation. In re Peabody, 16 N. B. R. 343; 9 Chi Leg. News, 343; Fed. Cas. 10,866. 14. Creditors are not bound to object to the assignee's account save at a meeting called pursuant to the provisions of the act. In re Clark, 9 N. B. R. 67; Fed. Cas. 3,810. 15. An assignee must make his return when requested by the bankrupt, when he has in fact not received or paid any moneys on account of the estate, even though he may have reason to believe that he will thereafter receive moneys on account of the estate. In re Hughes, 1 N. B. R. 9; 3 Ben. 85; 1 Amer, Law T. Rep. Bankr. 45; Fed. Cas. 6,841. 16. The creditors of the partnership elect the assignee, but he becomes the assignee of the estate of the individuals as well as of the firm. He must keep a separate accoimt of the stock of the copartnership and of the in- dividual estate of each member, but the ex- penses are taken out of the property received by the assignee without reference to whether it was collected from the partnership or the separate estate. Atkinson v. Kellogg, 10 N. B. R. 535; 7 Chi. Leg. News, 9; Fed. Cas. 613. (b) Msemptions. ■ See Exemptions, 63. 17. Rule 19, under the act of 1867, requir- ing assignees to make a report to the court within twenty days after receiving the arti- cles set off to the bankrupt, is to be observed 470 TRUSTEES, III, IV, in all ordinary cases, but it is to receive such a construction as to prevent injustice. Where the property has not come into the possession of the assignee, and a question as to his right is pending in court, the time should be com- puted from the date of the final decision of the court. In re Shields, 1 N. B. R. 170; 15 Pittsb. Leg. J. (0. S.) 391; Fed. Cas. 13,783. 18. A bankrupt who has not complied with the requirements of the state exemp- tion law is not entitled to the benefits thereof, and if the assignee fails to charge himself with property illegally claimed to be exempt his accounts may be excepted to by creditors. In re Jackson et aL, 3 N. B. R. 158 ; Fed. Cas. 7,127. 19. A schedule of property set aside for the bankrupt under the exemption laws was prepared by the register. Held, that it was the duty of the assignee to set aside the property to be exempted without interfer- ence of the register. In re Peabody, 16 N. B. R. 343; 9 Chi. Leg. News, 343; Fed. Cas. 10,866. 20. Where creditors claim that unauthor- ized exemptions are attempted to be made by the assignees they must except to his re- port, but as to real estate the attempt is void and no title passes. In re Gainey, 3 N. B. R. 163; Fed. Cas. 5,181. 21. The only relation sustained by an as- signee to a bankrupt is to set aside the ex- empt property; in other respects he is the agent of the law for the benefit of creditors. Aiken v. Edrington, Sr., et al., 15 N. B. R. 271; Fed. Cas. 111. III. Common-law Teustees. 22. The trustee of a bankrupt corporation who as a creditor has proved his debt can- not be deprived of his right to share in the dividends merely because he has rendered himself individually liable for tlie debts of said corporation. Bristol, Ass., v. Sanford, 13 N. B. R. 78; 13 Blatchf. 341; Fed. Cas. 1,893. 23. Where a mortgage trustee who had appeared and submitted to a receiver of the estate resigned his trust pendente lite, it is unnecessary for his successor to file an orig- inal bill of foreclosure. Sutherland et al. v. Lake Sup. S. C, R. & L Co., 9 N. B. R. 298; 1 Cent. Law J. 137; Fed. Cas. 13,613. 24. Where a note is held by one as trustee for another, it must be proved by the holder as trustee, or by the real owner. Ex parte Dreyfus, 13 N. B. R. 43; 3 Lowell, 305; 1 N. Y. Wkly. Dig. 396; Fed. Cas. 8,043. 25. A provision in a deed of trust empow- ering the cestui que trust to appoint a new trustee upon the failure of the original trustee to act does not authorize the assignee of the cestui que trust to appoint, such power being a personal trust in the cestui que trust. Clark et aL v. Wilson et aL, 16 N. B. R. 356. 26. A. executed a deed conveying land to B. in trust to secure a debt he owed C. The deed contained a clause empowering C. to appoint a new trustee in case B. failed to act. C. becoming bankrupt, his assignees ap- pointed D. as trustee, who sold, the land under the terms of the deed. Held, that the power to appoint a new trustee did not pass to the assignee. Id. lY. Fees and Costs. See Costs and Fees, 2, 90, 94 27. In a case so doubtful that a judicial investigation is necessary, the assignee is en- titled to his commission in preference to one who has obtained judgment against him for a wrongful conversion. In re OberhofiEer, 17 N. B. R. 546; 9 Ben. 485; Fed. Cas. 10,396. 28. The purpose of the amendment to Gen- eral Order No. 30 under the act of 1867 was not to reform the compensation to assignees in all cases. It intended to provide for a small class of cases where a special inade- quacy of compensation appears and great care is shown. In re Many et aL, 17 N. B. R. 429; 9 Ben. 160; Fed. Cas. 9,053. 2 9 . Upon the register certifying into court the claim of an assignee for a per diem, held that, to entitle the assignee to the same, he must show he actually spent the number of days in attention to his trust, and also the necessity for such attention. In re Jones, 9 N. B. R. 491; Fed. Cas. 7,4C1. 30. Under section 38 of the act of 1867, the assignee, if not in funds from the estate at any time to a suflScient extent to defray the expenses for the further execution of his trust, may require that the funds for that purpose shall be advanced or secured to him before he proceeds further. In re Hughes, 1 TRUSTEES, V. 471 ■N. B. E. 9; 3 Ben. 85; 1 Amer. Law T. Eep. Bankr. 45; Fed. Cas. 6,841. 31. An assignee is not allowed to charge the estate of the bankrupt for professional and clerical services until they shall be al- lowed by the court. In re Noyes, 6 N. B, R. S77; Fed. Cas. 10,371. 32. An assignee in bankruptcy, being the trustee of an express trust, is not personally liable for costs in a state court, notwithstand- ing his being an officer of another court pre- vents the funds in his hanas being attached ty the state court. Reade et al. v. Alerhouse •et al., 10 N. B. R 377. 33. When a bill is filed by an assignee without sufficient cause, yet, if there is no imputation of bad faith on the part of the assignee in prosecuting the suit, the costs -will be charged against the bankrupt's es- tate. Coxe V. Hall, 8 N. B. E. 563; 10 Blatchf. 56; 31 Pittsb. Leg. J. 77: Fed. Cas. 3,310. 34. The charge of counsel fees to an as- signee will not in general be allowed prior to his appointment. Where two assignees were appointed jointly, a charge for professional services by the son of one of them was dis- allowed. In re N. Y. Mail S. S. Co., 3 N. B. R. 137; 1 Chi. Leg. News, 310; Fed. Cas. 10,310. 35. Assignees under state laws cannot re- ceive allowances for attorney's fee, nor com- pensation for their own services, when the •debtor has been adjudged a bankrupt. In re Cohn, 6 N. B. R 379; Fed, Cas. 3,966. V. Nat0ee of Teusteb's Duties. See Ct.atms, 34 36. An assignee represents the rights of •creditors as well as the rights of the bank- rupt. In re Wynne, 4 N. B. R. 5 ; Chase, 337 ; ■3 Amer. Law T. Eep. Bankr. 116; Fed. Cas. 18,117. 37. The assignee, under the act of 1867, while in some respects a representative of the bankrupt, is, as to the property of the bankrupt and its administration, primarily •a representative of the creditors. Edmonson V. Hyde, 7 N. B. E. 1; 3 Sa^y. 305; 5 Amer. Law T. Eep. (U. S. Cts.) 880; Fed. Cas. 4,385. 38. The adjudication of bankruptcy is in the nature of a statutory execution for all creditors, and the assignee, as their repre- sentative, may enforce against the debtor every right a judgment creditor could en- force. Barnewall et al., Ass., v. Jones et aL, 14 N. B. E. 378; Fed. Cas. 1,037. 39. The assignee of a bankrupt corpora- tion does not represent the creditors in their right to proceed against a trustee of said cor- poration who has rendered himself person- ally liable for its debts by having signed a false report. Bristol, Ass., v. Sanford, 14 N. B. E. 78; 13 Blatchf. 341; Fed. Cas. 1,893. 40. The assignee is the agent and repre- sentative of the creditors by statutory ap- pointment. The general creditors have no power to act except to vote on the selection of an assignee and on the subject of divi- dends. In re Campbell, 17 N. B. E. 4; 3 Hughes, 376; Fed. Cas. 3,348. 41 . It is the duty of the assignee to appear before the register without notice where the proceedings before the register have been instigated by the assignee; and where he was present in fact, it does not lie in his mouth to say he was not summoned. Id. 42. If ordered by the court, trustees may settle the bankrupt's estate as if no adjudi- cation had been made, and the bankrupt's estate wfere under his own management. In re Darby, 4 N. B. E. 61, 98; 18 Pittsb. Leg. J. 154; Fed. Cas. 8,570. 43. When sufficient goods remain on the premises occupied by the bankrupt to satisfy rent on distress, the assignee should pay the full amount due up to the surrender of the premises to the landlord. Longstreth, Ass., V. Pennock, 7 N. B. R. 449; 9 Phila. 394; 20 Pittsb. Leg. J. 107; Fed. Cas. 8,488. 44. Funds recovered by the assignee in bankruptcy must be distributed among all the creditors and not given to one, although his claim be for consigned goods.^ White v. Jones, 6 N. B. R. 175; Fed. Cas. 17,550. 45 . An assignee may be required to testify as any other witness, and the register has au- thority to make the requisite order. An as- signee is not subject to an examination by any creditor whenever the latter may desire it, but will be protected from tmnecessary annoyance, by refusing an application for his examination unless upon some issues re- ferred to the register. In re Smith, 14 N. B. R. 483; Fed. Cas. 12,988. 46. The register has the power to order the assignee to furnish all necessary informal 4:T2 TEUSTEES, VI tion as to the funds in his hands. In re Clark et aL, 6 N. B. R. 194; Fed. Cas. 3,807. 47. A claim allowed by the register be- fore the appointment- of the trustees, if the trustees so elect, can on notice to the claim- ants be opened and passed upon anew by the register. Where trustees are satisfied a de- mand is correct they can allow it. They can dispose of assets and settle the estate without special orders; keep their own accounts and records; have the aid of the register or judge when needed, and finally have their actions closed by the formal decree of the court. In re Darby, 4 N. B. R. 98 ; 4 N. B. R. 61 ; 18 Pittsb. Leg. J. 154; Fed. Cas. 3,570. 48. Assignee is an ofiScer of the court and acts subject to its orders. The bankrupt is entitled to a certificate of the assignee giv- ing the names and residences of creditors who have proved claims. Motions to compel the assignee to do his duty are properly made before the register. In re Blaisdell et aL, 6 N. B. R. 78; 5 Ben. 430; 42 How. Pr. 274; Fed. Cas. 1,488. 49. Proper notice must be given by the assignee to all creditors, and the register should see that this duty is performed. Its non-performance renders the bankrupt liable to lose his right to a discharge. In re Bushey, 3 N. B. R. 167; 37 Leg. Int. Ill; Fed. Cas. 2,337. 50. When an assignee has accepted his appointment and given bonds, his neglect to take into his custody the deed of assignment and have the same recorded, knowing that no property passed by the assignment, is no ground for withholding a discharge. In re Pierson, 10 N. B. E. 107; Fed. Cas. 11,153. VI. Natuee of Teitstee's Title. 51. The assignee's title to the property of the bankrupt vests by relation to the com- mencement of the proceedings in bankruptcy, although the property was then attached on mesne process, served within four months before, as the property of the debtoi'. Con- ner V. Long, 104 U. 8. 338 ; Chapman v. Brewer, 114 id. 158; International Bank v. Sherman, 101 id. 403. 52. The conveyance of land by a bankrupt to his assignee passes to the latter only such interest as the former has, and if the bank- rupt buys the land subsequently from the as- signee, he purchases only such interest as he could rightfully have conveyed originally to his assignee. Roby v. Colehour, 146 U. S. 153. 53. The assignee takes as a purchaser from the bankrupt with notice of aU outstanding rights and equities as to everything except fraudulent conveyances and preferences in fraud of the bankrupt law. Dudley v. Easton, 104 U. S. 99. 54. The assignee in bankruptcy represents the unsecured or general creditors. ~ He is in no sense the agent or representative of se- cured creditors who do not prove their claims. Id. 54a. The title of an assignee in bankruptcy is paramount to that of a receiver appointed by a state court, although the receiver' b& appointed prior to the filing of the petition in bankruptcy. Smith v. Buchanan et aL, 4 N. B. E. 183. 55. Trustees have no judicial authority^ and, where such is needed, they must resorfc to it just as the bankrupt would have been compelled to do if no proceedings had been instituted. In re Darby, 4 N. B. R 61, 98; IS Pittsb. Leg. J. 154; Fed. Cas. 3,570. 56. An assignee in bankruptcy is only w. trustee, an agent, standing in the shoes of the bankrupt, with power to do what the- bankrupt ought to have done, namely, pay the debts out of the assets. Starkweather V. The Cleveland Ins. Co., 4 N. B. E. 110; 2; Abb. (U. S.) 67; 3 Chi. Leg. News, 77; 38 Leg. Int. 36; 10 Amer. Law Eeg. (N. S.) 333; 5. Amer. Law Eev. 568; Fed. Cas. 18,308. 57. The assignee has all the rights and powers which are given to the whole body of creditors whether at law or in equity. Wilkins v. Davis, 15 N. B. E. 60; 2 Lowell. 511; Fed. Cas. 17,664. 58. An assignee stands in the place of the- bankrupt and is remitted to all his rights of property at the tinje he was adjudged bank- rupt. Eandolph et aL v. Canby, Ass., 11 N» B. R. 296; Fed. Cas. 11,559. 59. If the assignee in bankruptcy has any power over a subject, it must be foimd in the bankrupt law itself. Dutcher, Ass., v. The Mar. Nat. Bank et aL, 11 N. B. R. 457;. 12 Blatchf. 435; Fed. Cas. 4,303. 60. The assignee becomes vested with all the estate of the bankrupt not exempt, and TRUSTEES, VII, VIIL 4Y3 must be considered in the Uglit of a pur- chaser. Bromley, Ass., v. Smith et al., 5 N. B. R. 153; S Biss. 511; 3 Chi Leg. News, 297; Fed. Cas. 1,933. 60a. An assignee of a corporation, ap- pointed under the bankrupt laws of the United States, represents both the corpora- tion and its creditors, and the defense of ir- regular organization cannot be urged against him. Chubb v. Upton, Ass., 16 N. B. R. 537; 95 U. S. 665. 61. The bankrupt act does not confer on the assignee the rights of a judgment cred- itor. Cook V. Waters et al., 9 N. B. R. 155. 62. An assignee occupies the place of the debtor, and is invested with his rights, sub- ject to all the equities which would have af- fected them if he had not become bankrupt. Purviance v. Union Nat. Bank, 8 N. B. R. 447; 80 Leg. Int. 353; 31 Pittsb. Leg. J. 33; Fed. Cas. 11,475. 63. The appointment of an assignee in bankruptcy relates back, and gives him title to the estate, real and personal, legal and equitable rights, interests and things in ac- tion which belong to the debtor on the tiling of the petition. Smith v. Buchanan et aL, 4 N. B. R 133; 8 Blatchf. 153; 3 Alb. Law J. 97; Fed. Cas. 13,016. 64. An assignee is an officer of the court, and is strictly limited to the powers con- ferred by the act and the orders of the court. Any agreement made by him in violation thereof is void. In re Ryan & Griffin, 6 N. B. R. 335; Fed. Cas. 13,183. YII. Peopbett Geneeailt VESTm© EST TeUSTEE. See Attachment, 15, 18; Conflict op Laws, 13; CouKTS, 36; Estates, 17, 61, 63, 83, 104, 131, 165, 313. 65. The right of the assignee to maintain an action does not depend on the instrument of assignment, as the act provides that all choses in action, debts due, etc., shall, in virtue of the adjudication and appointment of the assignee, vest at once in him. Zantzinger v. Ribble, Ass., 4 N. B. R. (8 vo. ed.) 734. 66. Where a creditor obtained judgment for a debt not yet payable and thereby ob- tained a lien by levy, held, the lien was in- valid against the assignee in bankruptcy. Partridge v. Dearborn et al, 9 N. B. R. 474; 3 Lowell, 386; Fed. Caa 10,785. 67. If the debtor's property levied on under an attachment within four months previous has been sold prior to the filing of the petition in bankruptcy, the assignee's rights attach to the money and cannot fol- low the property sold. Conner v. Long, 104 U. S. 338. 88. An assignee of a bankrupt firm takes by his assignment all the property of the firm and of the individual members thereof. In re Leland et al., 5 N. B. R. 333; 5 Ben. 168; Fed. Cas. 8,338. 6 . A petition by the assignee to the bank- rupt court prayed that the claim of a bank be expunged and certain securities be deliv- ered to him. Held, that the claim on a cer- tain extended note on which the bankrupt was indorser might be expunged. In re Granger et al., 8 N. B. R. 30; Fed. Cas. 5,684. 70. An assignee should show some right to the property in controversy in order to make him a party. Conversion by his prin- cipal is not of itself a good reason for sup- posing he has a right to the property in ques- tion. In re Gunther et al., 3 N. B. R. 179. yiii. powees i^ot acquieed bt Teustee. See Estates, 386. 71. An assignee cannot attack the trust he assumed to execute and defend. Johnson, Ass., V. Rogers et al., 15 N. B. R. 1; 5 Amer. Law Rec. 536; 14 Alb. Law J. 437; Fed. Cas.. 7,408. 72. The assignee who had contracted for the manufacture of and received pay for an article is estopped to deny that an article of the kind contracted for, in the possession of the bankrupt at the time of the adjudication, is the one paid for. Ex parte Rookf ord. Rock Island & St. Louis R. R. Co., In re McKay et al., 3 N. B. R. 13; 1 Lowell, 345; 3 Amer. Law T. 105; 1 Chi Leg. News, 337; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 11,978. 73. The laws give the assignee no power to become defendant to a suit in another court than the bankrupt court, commenced after the adjudication. In re Anderson, 9 N.. B. R. 360; 3 Hughes, 378; Fed. Cas. 351. 474 TRUSTEES, IX 74. Judgment creditor's claim was ob- jected to on the ground that the judgment ■was for a debt procured by fraud on the bankrupt and had been secured by default. Held, that the assignee could not set up such defense. It should be set up at the trial when the judgment was had. Stillwell v. Walker, Ass. etc., 17 N. B. R. 569; 6 Cent. Law J. 406; Fed. Cas. 13,451. 75. An attorney agreed with the assignee to conduct a suit on a contingent fee. He collected the money and retained the fee agreed upon. Upon motion to require the at- torney to pay over a portion of the money re- tained, held, that the assignee had no power, without permission of court, to make such an agreement. In re Brinker et aL, 19 N. B. E. 195; Fed. Cas. 1,882. 76. An assignee acquires no rights under the agreement made by a third person to sell property to the bankrupt only on certain conditions as to payment, where, before filing the petition, the bankrupt had wholly failed to perform the conditions. Norton v. Hood, 124 U. S. 20. 77. The bankrupt act does not grant to the assignee any power to institute proceed- ings for the recovery of a statute forfeited, and claimed by the bankrupt either prior or subsequent to proceedings against him in bankruptcy. Bromley, Ass., v. Smith et al., 5 N. B. R. 152; 2 Biss. 511; 3 Chi Leg. News, 297; Fed. Cas. 1,932. 78. An assignee in bankruptcy has no right to examine the bankrupt after his dis- charge from his debts and liabilities prov- able under the bankrupt act. In re Witow- «ki, 10 N. B. R. 209; Fed. Cas. 17,930. 79. An assignee cannot require a creditor ■either to retain or give up a policy of insur- ance upon the life of the bankrupt held by him as collateral security and withdraw his proof of claim. In re Newland, 7 N. B. R. 477; 6 Ben. 843; Fed. Cas. 10,170. IX. Eemotal of Teustee. See COUBTS, 48. 80. Though the facts disclosed may jus- tify the removal of an assignee, he cannot be removed except upon application made for this purpose to the court. In re Schapter, 9 N. B. R. 834; Fed. Cas. 12,438. 81. An assignee having applied to the court for directions, and a reference beings ordered to obtain the information upon which to base the direction, the assignee failed to at- tend the reference, but acted independently. Held, that he be held to the strictest account. Id. 82. Where an assignee has been chosen by creditors on the first warrant, notice of an application to_ remove him should be given so that all creditors that have proved their debts may be heard. In re Perry, 1 N. B. R. 3; 1 Amer. Law T. Rep. Bankr. 4; Fed. Cas. 10,998. 83. The petitioner for a review of an order of the district court denying the application for removal of an assignee had become the sole creditor. Held, that the estate should be transferred to such assignee as he and the bankrupt should name, the former assignee to receive his commissions. In re Sacchi, 6 N. B. R 497; 10 Blatchf. 29; 4 Chi. Leg. News, 289; 43 How. Pr. 252; Fed. Cas. 12,200. 84. Application was made for the removal of the assignee, on the ground that he had not filed a bond and had been disposing of the estate before the composition payments were mada Held, that the assignment was not affected by what had taken place, and that the assignee must file his bond or be removed. In re Leipziger, 18 N. B. R 264. 85. A., who stated that he proposed seek- ing out creditors, and soliciting them to prove their debts and vote for him as assignee, was by such means elected in a number of cases. Held, that the elections must be disapproved. In re , a Bankrupt, 2 N. B. R 100. 86. Matters arising from the election of an assignee in bankruptcy involve no prin- ciple of equity unless fraud is alleged, and as district courts are vested with large pow- ers in,reference to the appointment and re- moval of assignees, the circuit court will not interfere. Woods et al. v. Buckewell et al., 7 N. B. R 405; 2 Dill. 38; 6 Alb. Law J. 391; Fed. Cas. 17,991. 87. A motion to set aside the appoint- ment of the assignee can be entertained by the district judge, upon notice, and not by the register. In re Stokes, 1 N. B. R 180; 1 Amer. Law T. Rep. Bankr. 123; Fed. Cas. 13,475. 88. At the first meeting of creditors, ob- jection was made to the assignee proposed by the petitioning creditor, whereupon aa TRUSTEES, IX. 4Y5 tidjournment was had. At the adjourned meeting the objecting creditors did not ap- pear, and the register reported that no ob- jection was made. Seld, that the former objections remained in force, and the ap- pointment was vacated. In re Norton, 6 N. B. R. 397; Fed. Cas. 10,348. 89. A petition was filed against an as- signee to have him removed for the reason that he attacked two mortgages upon the bankrupt's property without suiHcient cause, and that he delayed a sale for the purpose of -obtaining the rents in order to spend them in liquidation. Held, that the cssignee was justified in his attack upon the mortgages, -and that there was no evidence to show that he collected any rents, or how much he has spent in litigation. In re Saechi, 6 N. B. R. 598; 43 How. Pr. 250; Fed. Cas. 13,201. 90. The creditors having knowledge of the a,ction of an assignee in soliciting his own election, and permitting him to qualify and act for six months without objection, it is too late to ask his removal on that ground. In re Mallory, 4 N. B. R. 38; Fed. Cas. 8,990. 91. It is wrong to allow the bankrupt to select his assignee. Such an assignee might favor the bankrupt at the expense of the creditors' interests. Id. 9 2 . The bankrupt act gives the court po wer "to remove an assignee for any cause which Tenders such removal necessary or expedient. The removal of the assignee is a matter left "to the discretion of the court. Id. 93. An election of a near relative of the bankrupt as assignee will be set aside, and ■the appointment by the register will be con- firmed. In re Zinn et al., 4 N. B. R. 123; 40 How. Pr. 461; Fed. Cas. 18,316. 94. The right of creditors to choose one or more assignees, or trustees, at the first meet- ing cannot be denied; and after an assignee has been appointed he may be removed and trustees appointed in his stead. In re Jones, 2 N. B. R. 20; Fed. Cas. 7,447. 95. Upon a creditor's petition for removal of the assignee, held, that as the assignee had neglected to secure the bankrupt's property, xind had shown gross neglect, he should be sremoved and required to pay the costs of the petition out of his own funds. In re Morse, t? N. B. R. 56; Fed. Cas. 9,853. 96. An assignee of a bankrupt who has a large deposit with a bank which bought up claims against the bankrupt's estate at a dis- count, to set off against such deposit, and who has knowledge of the facts and does not disclose them to other creditors, nor dispute such claims for a set-ofE, does not perform his duty, and should be removed. In re Perkins, 8 N. B. R. 56; 5 Biss. 254; Fed. Cas. 10,983. 97. Where it appeared that a majority of creditors in number and value had duly voted to remove the assignee, but that the creditors were few, and several of them vot- ing for the removal were parties to mortgages and other transactions which the assignees were seeking to impeach, and no money re- mained in the hands of the assignee, and nothing remained to be done excepting to settle those disputes, the court refused to re- move the assignee. In re Dewey, 4 N. B. R. 139; 1 Lowell, 498; Fed. Cas. 3,849. 98. Where an assignee fails to deposit funds belonging to the estate of which he is assignee, and where he suffers a foreclosure of a mortgage, and neglects to purchase it at less than its face, and where he is guilty in the same manner as to a judgment, pays money to satisfy the judgment, pays seven per cent, interest out of the estate, and, at the same time, loans the moneys belonging to the estate at six per cent., and fails to com- ply with the directions of the register, he will be ordered to show cause why he should not be removed, and the register certifying such neglect of duty will be directed to em- ploy counsel to represent the estate. In re Price, 4 N. B. R. 137; Fed. Cas. 11,409. 99. If a creditor, who has been included by an amended schedule, after proving his claim, wishes to have the assignee removed, he can petition the court in accordance with form 40 under the act of 1867. In re Carson, 5 N. B. R. 290; 5 Ben. 277; Fed. Cas. 2,460. 100. The removal of an assignee rests in the discretion of the court, but it is a legal discretion, and cause must be shown to ren- der the removal expedient. In re Blodgett et al., 5 N. B. R. 473; Fed. Cas. 1,552. 101. A court has power to set aside a dis- charge of an assignee and to direct the as- signee to proceed with his duties, when it appears that such discharge has inadveit- ently found its way among the files of the 476 TRUSTEES, X-XIL coiirt. Maybin v. Raymond, Ass., 15 N. B. R. 353; 4 Amer. Law T. Rep. (N. S.) 31 ; Fed. Cas. 9,338. 102. Where an assignee's discharge was improperly made and is set aside, and the assignee is directed to proceed, claims may be proved subsequent to such discharge. In re Maybin, 15 N. B. R. 468; Fed. Cas. 9,337. X. Eights Acquieed by Tetjstee. See Appeals and Wbits op Errob, 3; Ar- bitration, 1; COLLATERAIi ATTACK, 14 103. An assignee in bankruptcy may be hoard as well as the bankrupt in a case where the bankrupt is allowed to bring error on a matter affecting provable claims before the assignee. Hill v. Harding, 107 U. S. 631. 104. When the right of a state court to proceed in a suit is subject to be impeached, it can only be done by the assignee. Val- liant, Ass., v. Childress, 11 N. B. R. 317; 31 Wall. 643. 105. The privilege of an assignee in bank- ruptcy from being cited in proceedings in a state court can only be set up by the as- signee himself or by some person claiming under him, and not by one claiming under a conveyance from the bankrupt before the bankruptcy. Ludeling v. Chaffe, 143 U. S. 301. 106. One partner filed a petition, but the other partners denied bankruptcy; he was adjudicated, and his assignee petitioned the court to declare the others bankrupt. Held, that the assignee had properly instituted the proceedings. Grady et al. v. Heath, 3 N. B. R. (8 vo. ed.) 337; Fed. Cas. 5,654. 107. An assignee in bankruptcy has the right to move for a dissolution of an attach- ment, and it is not proper to put him on terms in this respect. King v. Loudon, Ass., 14 N. B. R. 383. 108. Where personal property of a bank- rupt has been attached, the assignee can take advantage of any remedy which would have been open to a subsequent attaching creditor, since the assignee represents the creditors as well as the bankrupt himself. Beers v. Place et al., 4 N. B. R 150; 36 Conn. 578; 4 Amer. Law T. 136; 1 Amer. Law T. Rep. Bankr. 263; Fed. Cas. 1,338. XI. SuBSTiTUTioir OF Teustee as See Attachment, 5. 109. Where one who files'a petition in; bankruptcy against another is himself ad- judged a bankrupt, his assignee is properly substituted as petitioner in his place. In re Jones, 7 N. B. R. 506; Fed. Cas. 7,450. 110. Where there is a co-assignee, and the assignee plaintiff has absconded, it is not proper to proceed further with the suit until proper proceedings are taken, on notice ta the co-assignee, to compel him to elect whether he will or not be made a party plaintiff to the suit and become responsible- for its conduct. Fenton, Ass., v. CoUerd, 11 N. B. R. 535; 8 Ben. 37; Fed. Cas. 4,781. 111. An assignee in bankruptcy of a plaintiff will not be substituted in the su- preme court in place of such plaintiff where the assignee has reniained idle and allowed the case to go on in the plaintiff's name at his expense and under his management or that of the creditors for whose use he is prosecuting the same. United States v. Peck, 103 U. S. 64. 112. An assignee in bankruptcy may be- substituted as appellant in the supreme court where his assignor has received his discharge in bankruptcy after the case was brought up. Gates v. Goodloe, 101 U. S. 613. XII. Sale by Trustee. See Sales, 30, 104. 113. An assignee can transfer only such title as he may possess. Second Nat. Bank V. National State Bank, 11 N. B. R. 49. 1 14. A purchaser of a claim from an as- signee in bankruptcy takes only his rights. Crawford v. Halsey, 134 U. S. 658; Wisner v. Brown, 123 id. 314 115. If an assignee make a sale of prop- erty, but refuse to deliver possession, he is liable to an action at law if the sale ha» never been brought to the attention of the bankrupt court. Ives et aL v. Tregent, 14 N. B. R. 60. 116. An assignee, directed by the court to sell certain goods at the highest price he could obtain, received an offer which waa TRUSTEES, Xm, (a), (b). 477 higher than one for which he had promised to selL He refused to entertain the higher price. Seld, that he should have rejected the first ■when the higher price was offered. In re Eyan et al., 6 N. B. R 235; Fed. Cas. 12,183. 117. The assignee may, if to the interest of the estate, relieve the property from a lien by discharging the incimibrance, or he may agree with the creditors as to the value of the property, or it may be ascertained by a sale, when the creditor shall only be such for the balanca Beed v. BuUington, 11 N. B. R. 408. 118. The assignee must sell the property of the bankrupt himself. When an auctioneer is employed the assignee must show affirma- tively the necessity of such employment or the auctioneer's charges will not be allowed in his account. In re Sweet et al., 9 N. B. R 48; 21 Pittsb. Leg. J. 83; Fed. Cas. 13,688. 119. The assignee should sell the property of the bankrupt subject to an incumbrance or seek to have it sold free from the incum- brance as he thinks the interests of the cred- itors will be best served. In re McGlellan, 1 N. B. R 91; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 8,694. 120. The right to a homestead exemption is not lost by the delay of the husband to claim it until an order has been applied for by the assignee in bankruptcy to sell the property. Bartholomew, Ass., v. West et al, S N. B. R 12; 3 Dia 290; 7 West. Jur. 441; Fed. Cas. 1,071. 121. The assignee in bankruptcy of a manufacturing corporation having sold a large amount of real estate for what seemed to be an inadequate price to a combination of creditors, the other creditors not having any notice of the time and place of sale, such sale was set aside. In re Troy Woolen Co., 4 N. B. R (8 vo. ed.) 639; 8 Blatohf. 465; Fed. Cas. 14,201. 122. Where the assignee was not made a party to partition proceedings of real estate he may sell the bankrupt's undivided interest therein. Smith v. Sholtz et al., 17 N. B. B. 520. 123. If an assignee desires to settle a con- troversy or to have property sold as perish- able or because the title is in dispute, he must apply to the court by petition. In re Graves, 1 N. B. R. 19; 3 Ben. 100; Fed. Cas. 5,709. 124. An assignee cannot make up out of the general funds of the estate the difference between the net proceeds of the sale of mort- gaged property and the amount stated by the mortgage as due to the mortgagee. In re Purcell et al., 3 N. B. R 10; 3 Ben. 485; 36 How. Pr. 43; Fed. Cas. 11,469. 125. A trustee cannot, as a member of a copartnership, purchase at a sale wherein he as trustee sells. Lockett v. Hoge, 9 N. B. R. 167; Fed. Cas. 8,444. 126. An improper conveyance was made by an assignee in collusion with the pur- chaser. On the conveyance being set aside, the purchase-money was not refunded to the purchaser on his petition. In re Mott, 1 N. B. R 9; Fed. Cas. 9,879. XIII. Selection of Tettstee. (a) In General. 127. A meeting to prove debts and choose an assignee should be organized at the hour designated in the official notice and should be kept open until an assignee is chosen. In re Phelps et al., 1 N. B. B. 189; Fed. Cas. 11,071. 128. A bankrupt had been a member of a firm which was dissolved some months be- fore the bankruptcy. An assignee was chosen by separate creditors. The choice of assignee was confirmed. In re Falkner, 16 N. B. B. 503; Fed. Cas. 4,624. 129. The court will not sanction the prac- tice of soliciting votes of creditors by one seeking to be assignee, especiallj'- when one is a stranger to the creditors and makes it a regular business to seek out creditors. In re Doe, 3 N. B. B. (8 vo. ed.) 308; 1 Chi Leg. News, 123; Fed. Cas. 3,957. 130. The court will not set aside an elec- tion of an assignee on account of any ir- regularity in admitting a claim, when its exclusion would not affect the result. In re Jackson et al., 14 N. B. B. 449; 7 Biss. 380; Fed. Cas. 7,133. (b) Appovrulment. See Death, 5. 131. Where no creditors attend on the day fixed for the first meeting the register may appoint an assignee. In re Cogswell, 1 N. B. 4T8 TRUSTEES, Xni, (c). R. (8 vo. ed.) 63; 1 Ben. 388; Bankr. Reg. Supp.,14; 14Pittsb. Leg. J. 616; 6 Int. Rev. Rec. 85; Fed. Cas. 3,959. 132. An additional assignee may be ap- pointed to act in conjunction with one pre- viously appointed, upon petition to the court showing a sufficient reason. In re Overton, 5 N. B. R. 366; Fed. Cas. 10,635. 133. A register may appoint an assignee in the event of the failure of the creditors to elect when there is no opposing interest, but any creditor has the right to object to the register making the appointment, in which event the duty of making the appointment devolves upon the judge of the bankrupt court. In re Pearson, 3 N. B.R. 151; 2Amer. Law T. Rep. Bankr. 66; Fed. Cas. 10,878. 134. At a first meeting of creditors were five related to the bankrupts. Mainly upon this ground, other creditors asked that these claims be inquired into. The register there- upon postponed proof of these claims, and, there being no choice of assignee, appointed one. Objection was made to such postpone- ment and to the proof of another claim by the agent of the creditor, absent in another state. In view of all the facts the appointment of the assignee was confirmed. In re Jackson et aL, 14 N. B. R. 449; 7 Biss. 380; Fed. Cas. 7,123. 135. The opposing interest which pre- cludes the register from appointing an as- signee is not merely an interest contending by vote, but an interest in opposition to the exercise of the power of appoiatment by him. Id. 136. Assignees are public officers whose appointment must be approved by the judge of the district court. Morris et al. v. Swartz, 10 N. B. R. 305. 137. A provisional assignee should not be appointed unless the court is satisfied that it is necessary for the protection of the prop- erty and tha1> it will inure to the benefit of the creditors. M. & M. Nat. Bank v. The Brady's Bend 1. Co., 5 N. B. R. 491; 19 Pittsb. Leg. J. 5; 3 Chi. Leg. News, 403; 28 Leg. Int. 317; 4 Amer. Law T. 168; 8 Phila. 171; 8 Pittsb. Rep. 336; 1 Leg. Op. 303; 1 Amer. Law T. Rep. Bankr. 373; Fed. Cas. 9,018. 138. An additional assignee m.ay be ap- pointed upon petition to the court showing sufficient reasons, and an application to con- test a claim against the estate will be al- lowed upon petition and affidavits. In re Overton, 5 N. B. R. 866; Fed. Cas. 10,635. 139. Although no creditors have proved debts, and there are no assets, an assignee- should be appointed. Anon., 1 N. B. R. (8 vo. ed.) 133; Bankr. Reg. Supp. 37; Fed. Cas. 457.. (o) QuaUfications. 140. A kinsman of a bankrupt is ineli- gible as assignee. In re Powell, 3 N. B. R. 17; Fed. Cas. 11,854. 141. The mere fact of relationship on the part of a proposed trustee under the bank- rupt act of 1867, to the bankrupt or to & creditor, or to a proposed member of the com- mittee, or on the part of a proposed member of such committee to a creditor or to the bankrupt, cannot be regarded as a disquali- fication. In re Zinn et al., 4 N. B. R. 145; 4 Ben. 500; 43 How. Pr. 64; Fed. Cas. 18,215. 142. The assignee selected had been for several years the book-keeper of one of the bankrupts. The bankrupt and his attorney attended the meeting of creditors and en- deavored to control its action, and both voted under powers of attorney received from dif- ferent creditors. Held, that he was elected in the interest of the bankrupt, and a new- election was ordered. In re Wetmore et al.,. 16 N. B. R. 514; Fed. Cas. 17,466. 143. A director of a bank, for the benefit of which the bankrupt had, before filing his petition, confessed judgment, is ineligible as assignee. In re Powell, 3 N. B. R. 17; Fed> Cas. 11,354. 144. The same person cannot be at the same time a receiver under the state law and a trustee or assignee appointed by the bankrupt court. In re Stuyvesant Bank, & N. B. R. 373; 5 Biss. 566; Fed. Cas. 13,581. 145. The person nominated as one of the trustees, -under section 43 of the act of 1867, was also the receiver appointed under a state court order. Held, he was not eligible. Id. 146. A person who has been of counsel for a bankrupt may be appointed assignee, it being understood that he cannot occupy the position of counsel and assignee at the same time. In re Clairmont, 1 N. B. R. 43; 1 Lowell, 230; 1 Amer. Law T. Rep. Bankr. 6;. Fed. Cas. 3,781. TRUSTEES, XIII, (d). 4Y9» 147. A corporation holding property in three states was adjudged bankrupt and three assignees were appointed, none of whom was a resident of a certain one of said states. The court, in the district from which no as- signee was appointed, declined to approve the election of assignees. In re Boston, H. & E. R. E. Co., 5 N. B. E. 233; Fed. Gas. 1,680. 148. A son of one of the members of a bankrupt firm, who, together with other members of one of the bankrupt's family, present claims against the estate, is not a proper person to appoint as assignee. In re Bogert et al., 3 N. B. E. 161; Fed. Gas. 1,600. 149. An assignee must reside in the dis- trict in which the proceedings are being car- ried on. In re Havens, 1 N. B. E. 126; Fed. Gas. 6,231. 150. The attorney for the creditors may be chosen assignee by the creditors if not otherwise objectionable. In re Lawson, 2 N. B. E. 44; Fed. Gas. 8,150. 151. A person residing without, but hav- ing a place of daily business within, the ju- risdiction of the bankruptcy court, may be appointed an assignee. In re Loder, 2 N. B. E. 161; 2 Amer. Law T. Eep. Bankr. 89; Fed. Gas. 8,459. , 152. An attorney for creditors may be ap- jjointed assignee of the bankrupt's estate. In re Barrett, 2 N. B. E. 165; 2 Hughes, 444; 1 Ghi Leg. News, 202; 2 Amer. Law T. Eep. 182; 11 Int. Eev. Eeo. 21; 1 Amer. Law T. Eep. Bankr. 144; Fed. Gas. 1,048. (d) WTu) May Vote for. See Glaims, 86, 40; Gomposition, 4 153. Greditors of the firm only can partici- pate in the election of assignees for copart- ners, and such election must be by a majority in number and value of creditors who have proved their claims (act of 1867). In re Scheif- fer et al., 2 N. B. E. 179; 1 Ghi. Leg. News, 361; Fed. Gas. 12,445. 154. Efforts of the bankrupt's friends to buy his debts and stop proceedings do not constitute a fraud upon bankrupt act, and constitute no reason for not voting upon the debts for election of assignee. In re Frank, 5 N. B. E. 194; 5 Ben. 164; Fed. Gas. 5,050. 155. Debts proved and filed may be post- poned for investigation before the assignee, and not allowed to be voted upon for as- signee. Id. 156. A creditor may change his vote be- fore signing the certificate of election of an assignee. In re Pfromm, 8 N. B. R. 357; Fed.- Gas. 11,061. 157. The vote of a creditor who votes cor- ruptly should be excluded, but Tjfhere the re suit is not affected by such exclusion a new election will be ordered. Id. 158. An assignee chosen by the greater part in number and value of the creditors- who have proven their claims at the first meeting is assignee by virtue of the law, and the court will not remove him in the absence of any imputation either upon his- capacity or integrity. In re Grant, 2 N. B. E.35; Fed. Gas. 5,692. 159. The vote for assignee should be taken at the earliest pi'actioable moment. Credit- ors who have proved their claims- may post- pone such action until others have proved,, but they are not compelled to do so. So, if the proofs of claims are postponed by the- register, such creditors are not entitled to- vote. They may have the proceedings cer- tified to the court, and if the register's rul- ings were erroneous, the court will set aside- the vote and refer the matter back for a new vote, unless it appears that the vote of the complaining creditor would not change the result. In re Lake Sup. S. G., R. and L. Co., 7 N. B. R. 376; Fed. Gas. 7,997. 1 60. The election of an assignee who prom- ised certain creditors to pay their claims in full in consideration of their giving him powers of attorney to vote for them will be disregarded by the court. In re Haas et al., 8 N. B. E. 189; Fed. Gas. 5,884 161. In a separate adjudication against a bankrupt who has been a member of a firm, the separate creditors are entitled to vote for assignee. In re Falkner, 16 N. B. E. 503; Fed. Gas. 4624 162. When at the first meeting of credit- ors but one proves his debt, he has the right to choose the assignee. In re Haynes, 2 N. B. E. 78; 1 Gaz. 78; Fed. Gas. 6,269. 163. Greditors who have accepted a com- position are not entitled to vote for an as- signee. Ex parte Hamlin, 16 N. B. R 320; 2 Lowell, 571; 5 Gent. Law J. 381; Fed. Cas.- 5,993. 480 TRUSTEES, XIV. 164. Incase of the separate bankruptcy of one member of a firm, a joint creditor is ■entitled to prove his debt and vote for as- signee. In re Webb, 16 N. B. R. 358; 4 Sawy. 526; 10 Chi Leg. News, 27; 5 N. Y. Wkly. Dig. 174; Fed. Cas. 17,317. 165. The managing oflSoers of a corpora- tion, when creditors, have the same rights to vote for assignee as any other claimant. Their debts should be carefully examined by the register, and if he entertains suspicion they should be postponed. In so examining, he should not be called upon to decide doubt- ful proofs. If the claim cannot be readily •explained it should be postponed. In re Northern Iron Co., 14 N. B. E. 856; Fed. Cas. 10,332; E. S. 5083. 166. A secured creditor sold his lien at auction, bid it in himself, and proved his claim for the difference between the face of the claim and the amount bid. He then voted for assignee. Seld, that he had no right to vote, and that the bankrupt act au- thorized no such method of ascertaining the value of a security. In re Hunt, 17 N. B. E. 205; 35 Leg. Int. 71; Fed. Cas. 6,884 XIV. Suits Geneeallt bt Teitstee. See Suits, 16; Courts, 34, 35, 185, 257; Es- tates, 119, 134, 137. 167. An assignee represents the rights of the creditors as well as the bankrupt, and may therefore maintain or defend proceed- ings in regard to the property of the latter, which, on grounds of public policy or other- wise, he would not be allowed to do. In re The St. Helen's M. Co., 10 N. B. E. 414; 3 Sawy. 88; 3 West. Jur. 597; Fed. Cas. 13,233. 168. A suit may be maintained by an as- signee in bankruptcy to collect the assets in district courts other than that where the proceedings are pending. In re Goodall, Ass., 7 N. B. E. 193; 3 Biss. 319; 4 Chi. Leg. News, 473, 485; Fed. Cas. 5,533. 169. It is within the power of congress, in establishing a uniform system of bank- ruptcy, to provide a imiform rule on the subject of limitation of actions, whether by or against an assignee in bankruptcy, and such rule must necessarily supersede state legislation on the subject. Peiper v. Har- mer, 5 N. B. E. 352. 170. An assignee may sue or be sued in the state courts, but the act limits the bring- ing of an action to two years from the time the cause of action accrued. In re CogdeU, Ass., 10 N. B. E. 337. 171. An assignee's failure to sue within two years given by law does not transfer a right of action to a creditor. Trimball v. Woodhead, 103 U. 8. 647; Moyer v. Dewey, 103 U. S. 301. 172. In an action by the assignee in a state court he need not establish the juris- diction of the bankruptcy court. If he shows the adjudication, his appointment as assignee and the assignment to him of the bankrupt's estate, it is sufficient. Cone, Ass., v. Puioell, 11 N. B. E. 490. 173. Federal courts may decline to en- tertain actions brought by assignees for less than $500 in amount. Wente v. Young et aL, 17 N. B. E. 90. 174. An assignee brought suit in equity to obtain possession of a vessel on the ground that he was unable to give the bond required in an action of replevin. Held, that the rem- edy is at law. In re Tlie Oregon L Works, 17 N. B. E. 404; 4 Sawy. 169; 26 Pittsb. Leg. J. 8; Fed. Cas. 10,562. 175. An assignee may sue on a written contract entered into between the bankrupt and the defendant to recover a debt alleged to be due the bankrupt. Babbit v. Burgess, 7 N. B. E. 561; 2 Dili 169; 5 Chi Leg. News, 336; Fed. Cas. 693. 176. Where the property in controversy, at the time the debtor was adjudged bank- rupt, was in the possession of a third person claiming title and dominion of the same, the question of ownership, if the same is claimed by the assignee, must be determined by a suit in equity or by an action at law, subject to re-examination as provided in the law of the forum where the suit is commenced. Knight V. Cheney, 5 N. B. E. 805; Fed. Cas. 7,883. 177. Section 14 of the act of 1867, which provides that the assignee may prosecute all suits pending in which the bankrupt is a party, does not compel him to do so, for under section 3 he may proceed in the United States courts. Traders' Nat. Bank v. Camp- bell, 6 N. B. E. 853; 14 Wall. 87. 177a. An instrument of assignment to an assignee, or copy thereof, is conclusive evi- TRUSTEES, XV. 481 dence of his right to sue for any debt belong- ing to the bankrupt. Oral testimony to prove such assignment is inadmissible, unless evi- dence is first given to show that the orig- inal or a certified copy thereof cannot be produced. Burke v. Winters, Ass., 15 N. B. R. 140. 178. Where an assignee in bankruptcy appears, and litigates in a suit pending in a state court at the time of the bankruptcy, he is bound by the judgment. Westminster v. Heiskell, 119 U. S. 450; Ludeling v. ChafEe, 143 id. 301. 179. The assignee in possession can main- tain a suit in equity in the circuit court to remove the cloud on his title, and the court can enjoin a sale under the levy and a fur- ther levy. Chapman v. Brewer, 114 U. S. 158. XY. Title ISTot Aoquieed by Teustee. See Estates, 142, 161, 277. 180. If a claim in suit had been trans- ferred by a bankrupt more than four months prior to proceedings in bankruptcy, and the suit, though in his name, is for the benefit of the transferee, the assignee in bankruptcy has no interest in the suit. If he consents that the bankrupt may continue to prosecute the suit in his own name, the bankruptcy is not a defense. Thatcher v. Rockwell, 105 U. S. 467. 181. An assignee of the estate of an indi- vidual partner has no such title as will en- able him to call third parties to an account for partnership property, and he cannot re- cover money paid to a creditor, upon the ground that the money was paid to such creditor in fraud of the other creditors of the firm. Amsink et aL v. Bean, Ass., 11 N. B. R. 495; 23 Wall. 395. 182. No title to exempt property passes to an assignee by an assignment. It remains in the bankrupt and at his death it passes to his legal representatives. In re Hester, 5 N. B. R. 285; Fed. Cas. 6,437. 183. Suit was brought by an assignee to recover from an indorser, who received no proceeds therefrom, the amount of a note paid by the bankrupt as maker to the holder, before the maker became bankrupt. The in- 31 dorser was held not liable. Bean, Ass., v. Laflin, 5 N. B. R. .333; Fed. Cas. 1,172. 184. Where the district court at the peti- tion of the assignee issued a rule to show cause against a stranger and the sheriflE, who had seized the goods ten days prior to pro- ceedings in bankruptcy to satisfy a lien for rent, and upon the return of the writ de- livered the goods to the assignee and had them sold, held, the order was void, and the assignee acting under the order was a mere trespasser. Marshall v. Knox, 8 N. B. R. 97; 16 Wall. 551. 185. If a deed without any certificate of acknowledgment is good against a bankrupt, it is good against his assignee. In re Kansas C. S. & M. Mfg. Co., 9 N. B. R. 76; Fed. Cas. 7,610. 186. An assignee must surrender to the owners any property found in the possession of the bankrupt but belonging to others. In re Noakes, 1 N. B. E. 164; Bank. Ct. Rep. 163. 187. A voluntary deed given by a bank- rupt, without fraud, being good as between him and his grantees, cannot be questioned by his assignees in bankruptcy, but only by those who were creditors at the date of the conveyance. Adams v. CoUier, 133 U. S. 383; Warren v. Moody, id. 132. 188. A bank has the right to set o£f the amount of a protested draft against the de- posit of an insolvent debtor. Hence, when the amount of such draft exceeds the amount of the deposit, the assignee is not entitled to the deposit or any part of it. In re Petrie et al., 7 N. B. E. 383; 5 Ben. 110; Fed. Cas. 11,040. 189. An assignee in bankruptcy has no interest in a claim assigned more than two months prior to bankruptcy proceedings and is not a necessary party to its submission to arbitration. Crawford v. Halsey, 134 V. S. 648. 190. Where the court (New York) first ob- tains possession of property and the control of litigation before being interfered with by the banlirupt court, liens by attachment or ex- ecution in the sta,te court prior to the pro- ceedings in bankruptcy take preference of claims of the assignee. Appleton v. Bowles et al., 9 N. B. E. 354. 191. The right of a landlord on a distress warrant is paramount to that of an assignee in bankruptcy where the warrant was issued 482 TRUSTEES, XVI, (a). prior to proceedings in bankruptcy. In re "Weamer, 8 N. B. E. 537. 191a. A power of appointment vested in one who, until the execution of the power, has the title to the property does not pass to an assignee in bankruptcy of the person in whom the power resides. Brandies v. Coch- rane, 113 U. S. 344 XVI. Teustee iit Relation to. (a) FraudAJblent Oon/ueyances cmd Pref- erences. See Featjd, 53; Peepeeences, 3, 161; Claims, 40,44. 102. An assignee in bankruptcy may sue in the state as well as the United States court to recover property disposed of by the bankrupt in fraud of the act. Gilbert v. Priest, 8 N. B. R. 159. 193. An assignee may set aside any con- veyance or fraudulent transfer that, but for the bankrupt act, might have been set aside by creditors after having obtained judgment. Smith, Ass. etc., v. Ely, 10 N. B. R. 553; Fed. Cas. 13,044. 194. An assignee in bankruptcy can bring a suit in a United States district court, other than that in which bankruptcy proceedings are pending, to recover money alleged to have been paid in violation of the act. Shearman V. Bingham et al., 7 N. B. R. 490. 195. Where a creditor brought suit, after proceedings in bankruptcy were begun, to set aside a conveyance claimed to be void, held, that such suit should be brought by the assignee. Thurmond v. Andrews et aL, 18 N. B. R. 157. 196. While an assignee In bankruptcy may bring a suit in the district court of the United States to set aside a conveyance in fraud of the bankrupt's creditors, he is not precluded from bringing such suit in a state court. McKenna v. Simpson, 139 U. S. 506. 197. The assignee of a bankrupt may re- cover insurance moneys assigned by the as- signee to his wife while in contemplation of insolvency and within six months before the filing of a petition in bankruptcy. Vetter- lein V. Barnes, 134 U. S. 169. 198. Six elements are necessary to render a preference void: (1) insolvency; (3) intent to prefer; (3) doing or suffering a thing whicb works a preference. These are on the part of a debtor. On the part of a creditor there are: (1) receiving or being benefited by such preference; (3) having reasonable cause to believe the debtor insolvent; (8) having rea- sonable cause to believe a preference to have been intended. These six make a transac- tion void if it be challenged by assignea Kohlsaat v. Hognet, 5 N. B. R. 159; 4 Ben. 565; Fed. Cas. 7,919. 199. In attacking a conveyance on the ground of fraud, an assignee represents the rights of general , creditors, and may avoid the instrument, though he has no specific lien on the property. Cragin v. Carmichael, 11 N. B. R 511; 3 DilL 519,- Fed. Cas. 3,319. 200. A conveyance made' more than six months before bankruptcy and in fraud of creditors was attacked by the assignee. Held, he could maintain the action. Pratt V. Curtis, 6 N. B. R. 139; 3 Lowell, 87; Fed. Cas. 11,375. 201. The assignee can avoid any convey- ance which the creditors could avoid, al- though made more than six months before bankruptcy. Id. 202. An assignment made twelve months prior to filing a petition is good against the assignee of the bankrupt. The assignee takes only the rights of the bankrupt, except in cases of fraud. In re Arledge, 1 N. B. R. 195; Fed. Cas. 533. 203. If A. conveyed property to B., when in failing circumstances, for the purpose of defrauding creditors, and B. has knowledge of the fact, if A. is adjudged bankrupt, the sale of goods to B. is void, and title vests in the assignee. Bolander v. Gentry, 3 N. B. R. (8 vo. ed.) 656. 204. Fraudulent payments may be recov- ered by a bankrupt's assignee. Morgan et aL V. Mastick, 3 N. B. R. 163; Fed. Cas. 9,803. 205. A firm, having no property but their stock in trade, are insolvent, if, when pressed for debt, they give as a reason that they are unable to pay, and suffer judgment to be ren- dered against them. If such judgment be given within four months prior to applicar tion in bankruptcy, property taken there- under will be restored to the assignee. Wil- son, Ass., V. City Bank, 5 N. B. R. 370. 206. Where any person being insolvent TRUSTEES, XVI, (b), (o). 483 procures or suflei-s his property to be taken on legal process with intent to give prefer- ence to creditors, or to delay or defeat the operation of the act, the assignee 'may re- cover the property so taken, if the person taking it had reasonable cause to believe a fraud on the act was intended and that the debtor was insolvent. In re Lord, 5 N. B. R. 318; Fed. Cas. 8,503. 207. Where a creditor seizes a bankrupt's property by execution and sells the same, the assignee may recover the value, less the cost of selling, but not including sheriff's fees. Sedgwick, Ass., v. Millward, 5 N. B. E. 347; Fed. Cas. 12,618. 208. Where a preference is obtained through a levy of execution, an assignee may proceed, in equity, to set aside the lien, and may make the sheriff, as well as the cred- itor, a party, if the proceeds of the execution be still in the hands of the sheriff. Warren V. Tenth Nat. Bank et al., 7 N. B. R. 481; 10 Blatohf. 498; Fed. Cas. 17,203. 209. An assignee was entitled to judg- ment against a creditor for the value of property seized on execution within four months before the filing of the petition of the bankrupt, who suffered his property to be taken. Christman v. Haynes, 8 N. B. R. 538; Fed. Gas. 2,703. (b) General Assigmnents. See Assignment, 36. 210. The title of an assignee in bank- ruptcy who was, before, assignee under an assignment, relates back to the execution of the deed; and all his acts after he received the property and assets, not inconsistent with his duty as assignee in bankruptcy, wiU be approved by the court. In re Walker, 18 N. B. R. 56; Fed. Gas. 17,063. 211. It is the duty of the assignee in bank- ruptcy to recover from general assignees any assets which the creditors could have recov- ered. Aiken v. Edrington, Sr., et al., 15 N. B. E. 271; Fed. Cas. 111. 212. Except as against an assignee in bankruptcy, an assignment for the benefit of creditors is not void, although it gives priority to certain creditors. Shryock et aL, Ass., V. Bashore, 13 N. B. R. 481; Fed. Cas. 13,830. 213. When an assignee under the laws of Iowa took the bankrupt's property and sold it, acting in good faith, he is not to be held personally liable to the assignee under the bankrupt act for the value of the property. Cragin, Ass., v. Thompson, 13 N. B. R. 81; 3 DilL 513; Fed. Cas. 3,330. 214. A trustee under a private assign- ment had received an amount which he de- posited in his own name. Finding himself insolvent, he withdrew the money and de- posited it as trustee. Two months after- ward he was adjudged bankrupt. The as- signee petitioned to have the money declared to be assets for the general creditors. The motion was denied, a prescribed mode of set- tlement being ordered. Ex parte Hobbs, In re Hapgood, 14 N. B. R. 495; 2 Lowell, 491; Fed. Cas. 6,549. 215. If a trustee deposit the trust funds in a bank in his own name, after his bank- ruptcy the mode of ascertaining bow much belongs to the trust estate is to take the de- posits and withdrawals in the order of their dates and find out how much of the balance belongs to the trust and how much to the general fund, and divide accordingly. Id. 216. Where one made an assignment for the benefit of all his creditors alike, and pro- ceedings were had against the assignee, as the garnishee, on a judgment against the assignor, held, that such an assignment did not come within the state insolvent laws, and was not rendered void by the bankrupt law. Cook et al. v. Rogers, etc., 13 N. B. R. 97. (c) Mortgages. See MOETGAQES, 55, 70, 73, 83, 107. 217. An assignee succeeded to the rights the bankrupt had in property, and a suit may be maintained to correct a descrip- tion in a mortgage given by the bankrupt. Schulze, Ass. etc., v. Bolting, 17 N. B. E. 167; 8 Biss. 174; Fed. Cas. 13,489. 218. An assignee in bankruptcy brought suit to avoid a mortgage void under state laws as in fraud of creditors, neld, that the assignee could maintain such action though the mortgage might not be voidable under the bankrupt law. Wait, Ass. etc., v. The Bull's Head Bank, 19 N. B. R. 500; Fed. Gas. 17,043. 484 TEUSTEES, XVI, (d), (e). 219. The assignee in bankruptcy of a mortgagor stands in the position of a judg- ment creditor, the adjudication being eqiiiva- lent to the recovery of judgment and a levy. Miller, Ass., v. Jones, 15 N. B. E. 150; Fed. Cas. 9,576. 220. An assignee stands in the place of an execution creditor and may impeach the validity of a secret mortgage of his assignor. His right is stronger than the right of the bankrupt. In re Gurney, 15 N. B. E. 373; 7 Biss. 414: 9 Chi Leg. News, 255; 4 Law & Eq. Eep. 28; Fed. Cas. 5,873. 221. An assignee in bankruptcy repre- sents the whole body of creditors, and it is his duty to contest the validity of a mort- gage by which one creditor has obtained a preference. In re Matzger, 2 N. B. E. 114; 1 Chi. Leg. News, 163; 2 Amer. Law T. Eep. Bankr. 53; Fed. Cas. 9,510. 222. A. executed a mortgage to B., and subsequently a second to C, shortly after which C. was adjudged bankrupt, and an as- signee was appointed who took steps to fore- close C's mortgage, and had an order of sale passed. During proceedings on the mortgage to C, B. instituted proceedings to foreclose the first mortgage, making C's assignee de- fendant; a subpoena was served on him, and the bill was taken as confessed for want of appearance, five days after which C's as- signee died. The premises were sold under a deoree in favor of B. Upon a bill filed by a second assignee of C to redeem, held, that the right of redemption was not affected by the sale. Avery, Ass. etc., v. Eyerson et al., 16 N. B. E. 289. 223. A chattel mortage, void as against creditors under a state law and under which the mortgagee had taken possession, having reasonable cause to believe the debtor insolv- ent, is void as against the assignee in bank- ruptcy. Harvey, Ass., v. Crane, 5 N. B. E. 218; 2 Biss. 496; 3 Chi Leg. News, 841; Fed. Cas. 6,178. 224. J. D., subsequently a bankrupt, gave a cliattel mortgage with a schedule attached which was left with the proper officer, but he failed to record the schedule. In that state an unrecorded mortgage is valid as between the parties. The question was whether the assignee could take a good title as against the claimant under the unrecorded mortgage. Held, that the assignee was afiEected by tlia equities as the bankrupt himself. In re Low, 6 N. B. E. 10; Fed. Cas. ■ j(d) Stockholders. See Stockholdee, 8, 16«. 225. Where the assignees in bankruptcy of a holder of stock of a company never ac- cepted the same nor consented to become stockholders, neither they nor the assets of the bankrupt nor their goods are subject to the individual liability of stockholders for the debts of the corporation. American File Co. V. Garrett, 110 U. S. 228. 226. The assignee has the authority of a receiver to collect demands and pay debts, and under the order of the court an assess- ment may be made on the unpaid sliares, just as if the same had been ordered by the corporation before bankruptcy. Myers, Ass., V. Seeley et al., 10 N. B. E. 411; 1 Cent. Law J. 451; Fed. Cas. 9,994. 227. The assignee in bankruptcy has the authority of a receiver to collect demands, and by order of court he may make an assess- ment on unpaid shares just as the corpora- tion could have done. Id. (e) Corrvmittee of Creditors. See Claims, 27. 228. Proceedings in bankruptcy were superseded by an arrangement whereby the estate was to be wound up by a trustee under the control of a committee, when an effort was made to hold a second meeting of creditors. Held, that in the absence of fraud the committee could exercise their discre- tion undisturbed, In re Jay Cooke & Co., 11 N. B. E. 1; 10 Phila. 262; 31 Leg. Int. 357; 1 Wkly. Notes Cas. 51; 9 "West. Jur. 157; 22 Pittsb. Leg. J. 59; 1 Cent. Law J. 580; Fed, Cas. 3,169. 229. Under section 43 of the bankrupt act of 1867, the purport of Which is to substitute trustees, under the direction of a committee of creditors, for the machinery provided by the act, the trustees may proceed to settle tL.e estate as if there had been no adjudica- tion of bankruptcy and the bankrupt was managing his own affairs, taking care to se- cure legal protection to the creditors. In re TRUSTEES, XVI, (f), (g)— UNITED STATES, I-IIL 485 Darby, 4 N. B. R. 61, 98; 18 Pittsb. Leg, J. 154; Fed. Cas. 3,570. 230. A resolution of creditors of a bank- rupt committing his estate for settlement andjdistribution to a trustee, and nominating a committee composed of two members, one of whom is the trustee, to supervise and di- rect the trustee, will not be confirmed. In re StillweU, 2 N. B. R 164; Fed. Cas. 13,447. (f) Usury. 231. An assignee in bankruptcy of one of two joint makers of a note secured by a mortgage cannot maintain a petition to de- clare the security void for usury. Bromley, Ass., V. Smith et al., 5 N. B. R. 152; 2 Biss. 511; 3 Chi. Leg. News, 297; Fed. Cas. 1,922. 232. An assignee in bankruptcy may sue for money paid as usury by the bankrupt. Wheelock v. Lee, 10 N. B. R 363. 233. The assignee can take advantage of usury, and the defense is good so long as any part of the principal debt remains un- paid; and he may apply the usurious interest towards the prinoipaL In re Prescott, 9 N. B. R 385; 5 Biss. 523; 6 Chi. Leg. News, 151; Fed. Cas. 11,389. (g) Waiver of Property. 234. Assignees in. bankruptcy are not bound to accept property of an onerous or unprofitable nature. American File Co, v. Garrett, 110 U. S. 288: 235. Assignees are not bound to accept property assigned by the bankrupt if of an un- profitable and onerous nature which would burden instead of benefit the estata Spar- hawk V. Yerkes, 142 U. S. 1. 236. The title to a patent passes to the assignee in bankruptcy of the patentee sub- ject to the assignee's election not to accept it if in his opinion it is worthless, or would prove burdensome and unprofitable, and he is entitled to reasonable time to make such election. Sessions v. Romadka, 145 U. S. 29. UNITED STATES. I. Unaffected by Bankruptcy Act. IL Has Priokity. III. May Sui! in Equity. IV. Waiter. V. In General. See Estates, 212, 213, 215-219; Sales, 56; State Laws, 12; Limitations, Statute OF, 47. I. Unaj-fected by Bankeuptoy Act. See Courts, 123; Discharge, 237, 265. 1. Debts due to the United States are not within the provisions of the bankrupt act. United States v. Herron, 9 N. B. R 535; 20 Wall. 251. 2. The United States is entitled to priority of payment without regard to the form of the indebtedness. It is in no wise bound by the bankrupt act, and is entitled to priority al- though it does not prove its claim. It need not exhaust the collaterals held by it before claiming priority of payment out of a bank- rupt's estate. Lewis, Tr., v. United States, 14 N. B. R 64; 92 U. & 618. II. Has Peioeity. See Claims, VIII, (g). 3. The United States is not obliged to first exhaust its securities for a claim before en- forcing its right to priority. United States V. Lewis et al., 13 N. B. R. 33; 2 Wkly. Notes Cas. 31; 22 Int. Rev. Rec. 39; 32 Leg, Int. 371; 23 Pittsb. Leg. J. 34; Fed. Cas. 15,595. 4. Although the claim of the United States is against a firm, it is entitled to priority of payment out of the individual estates of the partners. Id. 5. If the United States holds a claim* against a firm of which some of the partner* are aliens, it may claim priority of payment out of the estate of the resident individual, partners, without first resorting to the part- nership effects. Lewis, Tr., v. United States, 14 N. B. R 64; 93 U. S. 618. III. May Sue in Equity. 6. The United States may file a bill in the* circuit court to obtain payment out of a trust fund held by a trustee appointed in proceed- ings in bankruptcy. Id. 486 UNITED STATES, IV, V— USURY, I-IV. IV. "Waiter. 7. A. was surety on a bond given to the United States in a suit to forfeit a steamer and cargo. Before the termination of the suit in favor of the United States, A. became bankrupt and was discharged. The United States sued him and obtained judgment on the bond, which judgment was transferred to B. for a consideration. B. then filed a pe- tition to set aside the discharge. The peti- tion was dismissed. In re Mansfield, 6 N. B. K. 388; Fed. Cas. 9,049. v. In Geneeai,. 8. Property of the United States is sub- ject to contribution for salvage. Douglass v. Davis, 3 N. B. E. 3. TJSUEY. 1 What is Not. IL Who May Plead. III. Who Mat Sue foe. IV. Effect of. V. Eecovbry. VI. Ebs Adjudioata. VIL Bank. VIIl In General. See Evidence, 133; Judgment, 54; Pleading AND Practice, 9; Sales, 95; Trustees, 231-338. I. "What is Not. 1. A stipulation in a judgment that the interest on it shall bear interest if not paid annually is void, and does not make such judgment usurious. In re Fuller, 4 N. B. E. 39; 1 Sawy. 343; 18 Pittsb. Leg. J. 83; 3 ChL Leg. News, 373; Fed Cas. 5,148. II. "Who Mat Plead. 2. The defense of usury can be pleaded by the assignee in bankruptcy so long as any part of the debt for which the usury was paid, or agreed to be paid, remains unpaid. In re Presoott, 9N. B. E. 385; 5 Biss. 533; 6 Chi. Leg. News, 151; Fed. Cas. 11,889. III. "Who Max Sue eoe. See Claims, 371. 3. An assignee in bankruptcy may sue for money paid as usury by the bankrupt, and the right to recover may be enforced by the assignee of the paper against the representa- tive of the lender upon the principle that the payment in violation of law gave no title to the lender. Wheelock v. Lee, 10 N. B. E. 368. IV. Effect of. See Claims, 370, 373, 373; Courts, 83, 355. 4. An assignee in bankruptcy of one of two joint makers of a note secured by a mortgage cannot maintain a petition to de- clare the security void for usury. Bromley, Ass., V. Smith et al., 5 N. B. E. 153; 3 Biss. . 511; 3 Chi. Leg. News, 397; Fed. Cas. 1,933. 5. A loan was made with interest at thirty per cent, per annum, the principal and in- terest at twelve per cent, being secured by a note and mortgage, and the balance of the interest (eighteen per cent.) being repre- sented by a separate note payable in monthly instalments without security. Before the term expired the maker of the note was ad- judged a banknipt. Held, that there should be a rebate upon the note of the interest at eighteen per cent, on the loan for the period it had yet to run. In re Eiggs, Lechtenberg & Co., 8 N. B. E. 90. 6. On exceptions by the assignee in bank- ruptcy against the decision of a register al- lowing the claim of a creditor for principal and usurious interest, held, that the creditor forfeited all of the usurious interest and the assignee might apply the same towards the extinguishment of the principal debt. In re Prescott, 9 N. B. R 385; 5 Biss. 533; 6 Chi. Leg. News, 151; Fed. Cas. 11,889. 7. A bankrupt made an accommodation note for A., for whom a broker sold the note to a Connecticut bank, which paid for it at ten per cent, discount by check on a New York bank, the note being payable in New York. Held, the law of New York governed, and the note was void for usury. In re Dodge et al., 17 N. B. R 504; 9 Ben. 480; Fed. Cas. 3,948. 8. An order authorizing the assignee to surrender to a creditor certain securities on the release of the debt secured thereby was USUEY, V-VIII— VERIFICATION, L 48T granted ex parte on application by the as- signee, and an affidavit setting forth that the debt was due and amounted to more than the value of the securities. On motion to vacate, it appeared that the bankrupt had paid more usury than principal. HeZd, that the order should be vacated and the usurious payments applied upon the principal. In re Hoole, 19 N. B. E. 477; Fed. Gas. 6,673. V. Kecoveet. 9. Where the charter of a bank prohibited -more than a specified rate of interest, it was held that an illegal rate would not render the whole note void, but only the excess be- yond the legal rate, and that if such a note be voluntarily paid, neither the borrower nor his assignee in bankruptcy can recover more than the excess beyond the legal rate of in- terest, and equity will entertain a bill to re- cover such excess. Darby v. Boatman's Sav. Inst., 4 N. B. R. 195; 1 Dill. 141; 3 Chi. Leg. TSTews. 349: 4 Amer. Law T. 117; 1 Leg. Op. 146; Fed. Cas. 3,571. 10. A bill in equity was brought by a bank- rupt's representative against a bank that had ■charged higher interest than allowed by its ■charter to recover the principal and usurious interest from the bank. Held, that only the ■excess over the legal interest could be recov- ered. Tiffany v. Boatman's Sav. Inst., 9 N. B. R. 345; 18 WaR 375. 11. The collaterals given by the bankrupt for a usurious loan cannot be recovered by the assignee unless he tender the amount actually loaned to the bankrupt. Wheelock, Ass. etc., V. Lee, 17 N. B. E. 563. YI. Kes Adjtjdicata. 12. When judgment has been rendered in ■favor of the plaintiff on a plea of usury, the assignee in bankruptcy of the defendant can- not open that question. McKinsey et aL v. .Harding, 4 N. B. R. 10; Fed. Cas. 8,866. VII. Bank. See Bank, 44; Commercial Paper, 30. 13. A state law prohibiting corporations from pleading usury constitutes such state & state in which no rate of interest is fixed by law as against corporation borrowers, within the meaning of the federal banking and currency act, and a national bank doing business in such state can only charge cor- poration borrowers seven per cent., and the defense of usury, with all its pains and pen- alties, applies. Ocean Nat. Bank v. Wild, 10 N. B. R. 568; Fed. Cas. 8,571. VIII. In Geneeal. 14. The reservation of a greater rate of interest than six per centum by a national bank, on discounting a promissory note, does not render the debt for the principal thereof one not provable in bankruptcy. In re Moore, 1 N. B. E. 133; 3 Bond, 170; Fed., Cas. 10,041. 15. A petition having been filed against a debtor alleging that he had cemmittedacts of bankruptcy by suspending payment of his commercial paper, the defendant answered denying his insolvency and alleging a de- fense (i. e., that the note was usurious). Held, that the answer presented an issue of fact upon the suspension of payment; and fur- ther, that it was not the intention of the bankrupt act to force a debtor to pay his commercial paper under penalty of being ad- judged a bankrupt, regardless of any defense he might have against the same. In re Stap- lin, 9 N. B. R. 143; 5 Chi. Leg. News, 638; 5 Leg. Op. 171; Fed. Cas. 13,304. 16. The holder of a note having taken more than lawful interest, the indorser is not liable for more than the holder actually paid with legal interest. In re Many et aL, 17 N. B. R. 514; Fed. Cas. 9,054 VEEIFICATIOIT. I. When Necessary. IL When Not Necessary. III. SUPEICIENOY OP. IV. Before Whom Made. V. In General. See Agent; Attorney; Petition, VIII; Pleading and Practice, 125; Pboof of Debt. I. "When Necessary. 1. In courts where answers are verified in common-law actions, the answer to an in- voluntary petition in bankruptcy must also 488 VERIFICATION, II-V — VOTE, I, (a). be verified. In re Findlay, 9 N. B. R. 83; 5 Biss. 480; 6 Chi. Leg. News, 94; Fed. Cas. 4,789. 2. Where several petitioners join in a pe- tition in separate and distinct rights, a veri- fication by or on behalf of each petitioner is required; but when a petition is filed juris- diction is acquired, and the court may allow an amendment of the verification. In re Simmons, 10 N. B. E. 254; 1 Cent Law J. 440; Fed. Cas. 13,864. 3. The general intent of the amended bankrupt act, approved June 23, 1874, would seem to indicate that the list of creditors presented by the debtor, in denial that the requisite number and amount have joined in the petition, should be sworn to by him. In re Steinman, 10 N. B. R. 214; 6 Biss. 166; 6 Chi. Leg. News, 338: 21 Pittsb. Leg. J. 200; Fed. Cas. 13,357; In re Hymes, 10 N. B. R. 433; 7 Ben. 427; Fed-Cas. 6,986. 4. The provisions of the statute as to veri- fication of the petition must be strictly fol- lowed. It is a matter of substance and right, and is not to be dispensed with under cover of an apparent compliance with the act. In re Keiler et al., 18 N. B. R. 10; 7 Chi. Leg. News, 43; 9 West. Jur. 175; Fed. Cas. 7,647. II. "When Not I^ecessaet. 5. The application of an assignee for the examination of the bankrupt under the twenty-sixth section of the bankrupt act of 1867 need not be verified. In re Lanier, 2 N. B. R.59; Fed. Cas. 8,070. 6. The register, in the exercise of his dis- cretion (section 36, act of 1867), thought proper to grant the order for the bankrupt's examination without requiring a petition, or an affidavit, duly verified, showing good cause for the same. Held, it not appearing that his discretion was improperly exercised, the order must stand. In re Solis, 4 N. B. R. 18; 4 Ben. 143; Fed. Cas. 13,165. 7. A denial of the alleged acts of bank- ruptcy need not be sworn to. In re Hawkeye Smelting Co., 8 N. B. R. 385. III. Sufficiency. 8. The affidavit of an agent or attorney is sufficient to accompany an application for an injunction pending an adjudication in bankruptcy. In re Fendley, 10 N. B. R. 350; Fed. Cas. 4,738.' lY. Bbeoee "Whom Made. 9. The verification of a schedule and in- ventory by a bankrupt is an affidavit and may be sworn to before a notary public. In re Bailey, 15 N. B. R. 48; Fed. Cas. 737. T. In General. lb. If it appears that the petitioning cred- itor in fact authorized the institution of the proceedings in his behalf and so became lia- ble for costs, the matter of signing and au- thentication is purely formal and unimpor- tant to any right of the debtor. In re Raynoiv 7 N. B. R. 537; 11 Blatchf. 43; Fed. Cas. 11,597. 11. The petition was defective, inasmuch as the form prescribed by the supreme court required the affidavit and petition to be sub- scribed by the petitioners. The defect was held to be incurable, since the petition was- not a petition in proxyria forma, such as could be amended. In re Moore et aL v. Hadley, 4 N. B. R. 71 ; 2 Bait. Law Trans. 666; Fed. Cas. 9,764 VOTE. L Fob Trustee (Assignee). (a) What Creditors May. (b) What Creditors May NoU (c) Change of Vote. (d) Failure to Elect. IL Foe Composition. (a) Holders of Proved Claims: (b) Objection to. (c) By One Without Interest. III. For Discharge. IV. On Debts Sold After Proof. -V. Effect of. See Partners, 157; Trustees, 159.- I. Foe Teustee (Assignee).. (a) What Creditors May. 1. The question was certified by the reg- ister as to the correctness of the contention, of certain creditors of the bankrupt, who held, pledges of personalty, to their right to be ad- mitted to a meeting of creditors to prove their debts and choose an assignee. The. court held such right to exist. In re Bolton,. 1 N. B. R. 83; 2 Ben. 189; 1 Amer. Law T. Rep^ Bankr. 120; Fed. Cas. 1,614. VOTE, I, (bH