Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, ,893 IN HEnORY OP ^ JUDGE DOUGLASS BOARDMAN FIRST DEAN OP THE SCHOOL By his Wife and Daughter A. n. BOARDMAN and ELLEN D. WILLIAMS I Cornell University Library KFN5365.A45S25 3 1924 021 908 235 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021908235 BANKRUPTCY PRACTICE UNDER THE LAW OF THE UNITED STATES OF 1867; TOGElHEK WITH THE AMENDATOEY ACT OF 1868, THE GENERAL OBDEES, FORMS, RULES OF THE SOUTHERN DISTRICT OF THE RULES OF THE CIRCUIT COURT FOE THE SOTTTHERBT DISTRICT OF NEW YORK, IN THE SECOND CIRCXJIT : AND A DIGEST OF ALL THE DECISIONS THEREUNDER, TO SEPTEMBER, 1868. . I. ANNOTATED. V' ^,, V' t o\-. BT \." - ' \ THORNDIKE SAJCT .NDERS, , f OOtJUSBtOB AT LAW AND SOLIOITOK IN BAlIKE"nPTOT. NEW YORK: DIOSSY & COMPANY, LAW BOOK PUBLISHERS. 1868. [Entered, according to Act of Congress, In the year One Thonsand Eight Hundred and Sixty-Eight, hj DIOSST a COMPAS Y, in the Clerk's Office of the District Court for the Southern District of New York.] CONTENTS, Page, Act of 1867, 5 Amendatoet Act of 1868, 79 GrENEEAL OeDEKS OP SUPEEMB CoUET, : 83 Forms in Bankeuptoy, 93 Rules in Equity noticed, 182 Rules of Southeen District of New York, .... 183 Rules of Circuit Court, Southern Disteiot of New York, Second Circuit, 193 Index to Practice, 227 Index to Rules Southern District New York, . . . 236 Index to Circuit Court Rules, 238 Table op Cases, 242 ABBREVIATIONS PECULIAR TO THIS WOEK B. JR., . . . Bankkupi Register. Int. Rev. Rec, . . . Internal Eevenue Record. B. O., . . . Bankrupt Gtazette. N. D., . . . . Northern District. E. D., . . . Eastern District. TT'. B., . . . ■ Western District. S. B., . . • SouinERN District. Other contractions are in the ordinary forms. Cases from the Bankrupt Register have been cited Tvith the number of the volume in some instances following the name of the work, thus — " Sherburne, E. B. Mo., B. R., 1, 155,"— i. e., Sherburne, Eastern Dis- trict of Missouri, Bankrupt Register, vol. 1, page 155. BANKRUPTCY PRACTICE. THE ACT OF 1867. COUKTS OF BANKKITPTCT. SEC. 1. Be it enacted hy the Senate and House of Representati'Des of the United States of America in Congress assembled, That the several district courts of the United States be, and they hereby are, constituted courts of bankruptcy, and theyfj"^''^^;^^ shall have original jurisdiction in their respective ^^ "^^'■^• districts in all matters and proceedings in bank- ruptcy, and they are hereby authorized to hear and adjudicate upon the same according to the provisions of this act. The said courts shall be always open for the transaction of business under this act, and the powers and jarisdiction hereby granted and conferred shall be exercised as well in vacation as in term time, and a jiidge sitting in chambers shall have the same powers and juris- diction, including the power of keeping order and punishing any contempt of his authority, as when sitting in court. And the jarisdiction hereby con- ferred shall extend to all cases and controversies arising between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy ; to the collection of all the assets of the bankrupt ; to the ascertainment and liquidation of the liens and other specific claims thereon ; to the adjustment of the various priorities 6 BANKRUPTCY PRACTICE. and conflicting interests of all parties ; and to the marshaling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors ; and to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the pro- ceedings in bankruptcy. The said courts shall May compel have fuU authority to compel obedience to all of con'Spt orders and decrees passed by them in bank- ruptcy, by process of contempt and other remedial process, to the same extent that the circuit courts now have in any suit pending therein in equity. Said courts may sit for the transaction of business Sit anjr •' dutrlot" ^^ bankruptcy at any place in the district, of which place, and the time of holding court, they shall have given notice, as well as at the places desig- nated by law for holding such courts. Interference with State law, exists only where case arises after law of United States goes into operation. Common- wealth ex rel. James Millingar v. Michael O'Hara, Dist. Alleghany Pa., Int. Rev. Rec, VI, 125. Jurisdiction, superior and exclusive. Barrows et al, La., B. R., 1, 123; Loeb, Sume; Winter, Same. District court may entertain bill in equity for injunction restraining judgment creditors from selling estate levied on. But this jurisdiction not exclusive. Bowie, Md., B. R., 1, 186. Jurisdiction confined to the district. So, where injunc- tion alleged to have been violated in district other than where it is issued, attachment refused. Hirsch, E. D. N. T., B. R., 2, 1. jurisdic- ^^CI. 2. And be it further enacted, That court^!"°"tlie several circuit courts of the United States within and for the districts where the proceedings in bankruptcy shall be pending shall have a gene- ral superintendence and jurisdiction of all cases and questions arising under this act ; and, except when special provision is otherwise made, may, upon bill, petition, or other proper process, of any How mat- party aggrieved, hear and determine the case as a tfroi^V court of equity. The powers and jurisdiction BANKRUPTCY PRACTICE. 7 ]iereT)y granted may be exercised, either by said^^„^*i^^^" court, or by any justice thereof, in term time or ^f 0^27" vacation. Said circuit courts shall also have con- current jurisdiction with the district courts of the same district, of all suits at law or in equity, which may or shall be brought by the assignee in bank- ruptcy against any person claiming an adverse in- terest, or by such person against such assignee, touching any property or rights of property of said bankrupt transferrable to or vested in such as- signee ; but no suit at law or in equity shall, in g^j^^ any case, be maintainable by or against such as- ^In^i^ifr signee, or by or against any person claiming an®*^ ^"■ adverse interest, touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued, for or against such assignee: provided, that nothing herein contained shall revive a right of action barred at the time such assignee is appointed. This section refers lo original jurisdiction only. O'Brien, N. D. N. Y., Int. Rev. Rec., VL, 182. Questions arising in progress of cause not to be appealed, but to be brought by petition stating points decided, tliat peti- tioner is aggrieved, and praying reversal. Reed, Circ. Ct. N'. D. Ohio, B. R, 2, 2. OF EEGISTEKS. SEC. 3. A7id be it further enacted,' That it shall be the duty of the judges of the district courts of the United States within and for the several districts to appoint in each congressional district in said districts, upon the nomination and recommen- Ecgisters, -^ how ap- dation of the chief justice of the supreme court of pointed, the United States, one or more registers in bank- ruptcy, to assist the judge of the district court in the performance of his duties under this act. N"o person shall be eligible to such appointment un- 8 BANKRUPTCY PEACTICB. §0^°*' less lie be a counselor of said court, or of some one of the courts of record of the State in which he resides. Before entering upon the duties of his of- fice, every person so appointed a register in bank- ruptcy shall give a bond to the United States, with i3ona,F.9. coj^^ition that he will faithfuUy discharge the duties of his office, in a sum not less than one thousand dollars, to be fixed by said court, with sureties satisfactory to said court, or to either of the said justices thereof; and he shall, in open Oath, F. 8 court, take and subscribe the oath prescribed in the act entitled "An act to prescribe an oath of of- fice, and for other purposes," approved July sec- ond, eighteen hundred and sixty-two ; and also that he will not during his continuance in office be, directly or indirectly, interested in or benefited by the fees or emoluments arising from any suit or matter pending in bankruptcy in either the dis- trict or circuit court in Ms district. SEC. 4. And he it further enacted^ That every Power of register in bankruptcy, so appointed and quali- rcgister. ^^^^ shall have power, and it shall be his duty, to make adjudication of bankruptcy, to receive the 7^i?.' *Kn'ie surrender of any bankrupt, to administer oaths in 4,l''''^'^''£i'll proceedings before him, to hold and preside at meetings of creditors, to take proof of debts, to make all computations of dividends, and all orders of distribution, and to furnish the assignee GO. 8. with a certified copy of such orders, and of the schedules of creditors and assets filed in each case, to audit and pass accounts of assignees, to grant e, '27.' 45 26, protection, to pass the last examination of any bankrupt in cases whenever the assignee or a creditor do not oppose, and to sit in chambers and despatch there such part of the administrative business of the court and such uncontested mat- ters as shaU be defined in general rules and orders, or as the district judge shall in any particular mat- BANKRUPTCY PRACTICE. 9 ter direct; and lie shall also make sliort memo- "^^ *'• "■ randa of. Ms proceedings in each case in which he shall act, in a docket to be kept hy him for that purpose, and he shall forthwith, as the pro- ceedings are taken, forward to the clerk of the dis- trict court a certified copy of said memoranda, which shall be entered by said clerk in the proper minute- book to be kept in his ofiice, and any register off;?2.^" the court may act for any other register thereof ; provided, however, that nothing in this section con- tained shall empower a register to commit for con- Not to oom- tempt, or to hear a disputed adjudication, or any temp" &"!'' question of the allowance or suspension of an order of discharge ; but in all matters where an issue of jg^^gg ^gj,. fact or of law is raised and contested by any party a!ij*oui*ned° to the proceedings before him, it shall be his d^ity*''*'""""^''' to cause the question or issue to be stated by the opposing parties in writing, and he shall adjourn g. o h. the same into court for decision by the judge. No S"Y.fi9°' register shaU. be of counsel or attorney, either in or*^' out of court, in any suit or matter pending in Not to be bankruptcy in either the circuit or district court of L"™^^' his district, nor in an appeal therefrom ; nor shall he be executor, administrator, guardian, commis- sioner, appraiser, divider, or assignee, of or upon any estate within the jurisdiction of either of said courts of bankruptcy, nor be interested in the fees or emoluments arising from either of said trusts. The fees of said registers, as established by thiSj,gggp^j^by act, and by the general rules and orders required ""^°™- to be framed under it, shall be paid to them by the parties for whom the services may be ren-547 go. dered in the course of proceedings authorized by^^'^^'^"' this act. Register has power as to all matters where no contest ex- ists. Where contest exists his decision is final, unless party re- quests certificate. Gettleston, Cal.. B. R., 1, 170 ; Patterson, S. B. N. T., Int. Rev. Rec, VI., 127. 10 BANKRUPTCY PRACTICE. " Issues to be adjourned" are such as actually arise. Pul- ver, S. D. N. T., VI. Int. Rev. Rec, 77; Wright, Ky., 1 B. R., 91; Sturgeon, Ky., 1 B. R., 131. On certificate, register to give opinion. Rule 19, S. D. N. Y., post. Registers have power to administer oaths in all matters where commissioners of the circuit courts have power so to do, and com- missioners may take proofs of debt in all cases subject to revision by court or register. Act approved July 25, 1868, amending an act to establish a uniform system, &c. Protection, — i. e., ftom arrest. Glasser, S. D. N. Y.,\ B. R., 73. Fees on deDOsition to be paid by creditor. Mackintyre, S. D, N. Y., VI., Int. Rev. Rec, 29. On direct examination by party calling witness on cross-exam- ination by other party. SchoQeld, S. D. K Y, 2 B. R., 1. Register to SEC. 5. And he it further enacted, That the be directed ^ ' \\'^°G% J^*^S6 of the distn-ct court may direct a register 1, 29, 30. ' to attend at any place within the district, for the purpose of hearing such voluntary applications under this act as may not be opposed, of attend- ing any meeting of creditors, or receiving any proof of debts, and, generally, for the prosecution of any bankruptcy or other proceedings under Traveling this act ; and the traveling and incidental ex- Ice.. S47. pgQggg Qf such register, and of any clerk or other officer attending him, incurred in so acting, shall be settled by said court, in accordance with the rules prescribed under the tenth section of this act, and paid out of the assets of the estate in re- G. o, 12. spect of which such register has so acted ; or if there be no such assets, or if the assets shall be insufficient, then such expenses shall form a part of the costs in the case or cases in which the regis- ter shall have acted in such journey, to be appor- rowers tioned by the judge ; and such register, so acting, d^m""" shall have and exercise all powers, except the • II '^P' ^' power of commitment, vested in the district court G, 0.2,10. fQp the summoning and examination of persons or witnesses, and for requiring the production of books, papers, and documents : provided always, that all depositions of persons and witnesses taken on certifi- cate. BANKRUPTCY PRACTICE. H before said register, and all acts done by Mm, shall be reduced to writing and be signed by him, and shall be filed in the clerk' s office as part of the proceedings. Such register shaU be sub- f^'jjj,^^*,!^ ject to removal by the judge of the district court, and all vacancies occurring by such re- moval, or by resignation, change of residence, death, or disability, shall be promptly filled by other fit persons, unless said court shall deem the continuance of the particular oflice unnecessary. SEC. 6. And 1)6 it further enacted, That any party may party shall, during the proceedings before a regis- Jon ofjSSge ter, be at liberty to take the opinion of the district judge upon any point or matter arising in the course of such proceedings, or upon the result of such proceedings, which shall be stated by the re- gister in the shape of a short certificate to the judge, who shall sign the same if he approve thereof; and such certificate, so signed, shaU be binding on aU the parties to the proceeding ; but ^,^^.^^5^ ^ every such certificate may be discharged or varied o- u- by the judge at chambers or ia open court. In any bankruptcy, or in any other proceedings within the jurisdiction of the court under this act, the par- ties concerned, or submitting to such jurisdiction, ^uie s. d. may at any stage of the proceedings, by consent, ^- ^" ^^■ state any question or questions in a special case for the opinion of the court ; and the judgment of the court shall be final, unless it be agreed and stated judgment in such special case that either party may appeal, unfess*"** if, in such case, an appeal is allowed by this act. The parties may also, if they think fit, agree, that ^' upon the question or questions raised by such spe- cial case being finally decided, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, or any property, or the amount of any disputed costs on debt or claim, shall be paid, delivered, or transfer- 2 BANKRUPTCY PRACTICE. red by one of sucli parties to tlie other of tliem either with or without costs. Question touching allowance of discharge, not capable of beiiKr certified; does not arise in the cause, &c. Mawson, b. U. N. r., B. iJ., 1, 33. Certificate can be taken only by party as bankrupt, cred- itor or witness cited to answer for contempt. Fredenburgh, 6. 1). N. Y., B. iJ., 1, 34. And only as to questions whicli actually arise. Pulver and other cases, § 4, cited. SEC. 7. And ie it further enacted, That par- -vitness ties and witnesses summoned before a register shall '°D'd','ina''*'loe bound to attend in pursuance of such summons ;?otect1on, at the place and time designated thisrein, and shall 11,43.^^'^°' "be entitled to protection, and be liable to 'process ' ' of contempt in like manner as parties and wit- nesses are now liable thereto in case of default in Faiseswear-g^^j^^ance under any writ of subpoena; and all ahed. persons willfully and corruptly swearing or affirm- ing falsely before a register shall be liable to all the penalties, punishments, and consequences of perjury. If any person examined before a register Refusal to shall rcfuse or decline to answer, or to swear to or be refOTed. sigu Ms examination when taken, the register shall ^ *• refer the matter to the judge, who shall have power to order the person so acting to pay the costs thereby occasioned, if such person be compellable p^Cent.by law to answer such question or to sign such ex- amination, and such person shall also be liable to be punished for contempt. OF APPEALS. SEC. 8. And he it furtJier enacted, That ap- peals may be taken from the district to the circuit Appeaiato courts in all cases in equity, and writs of error court? by may be allowed to said ch-cuit courts from said whom. district courts in cases at law under the jurisdic- tion created by this act when the debt or damages claimed amount to more than five hundred dollars ; BANKRUPTCY PRACTICE. 13 and any supposed creditor, whose claim is wholly®- °- ^^■ or in part rejected, or an assignee who is dissatis- Form es, fled with the allowance of a claim, may appeal statement from the decision of the district court to the circuit Tis*"'" ' court for the same district ; but no appeal shall be allowed in any case from the district to the circuit court unless it is claimed, and notice given thereof to the clerk of the district court, to he entered „. ,. ., ' Time Imut. With the record of the proceedings, and also to theeafi>r ap- assignee or creditor, as the case may he, or to the defeated party in ec[uity, within ten days after the entry of the decree or decision appealed from. The appeal shall he entered at the term of the circuit court which shall he first held within and for the dis- trict next after the expiration of ten days from the time of claiming the same. But if the appellant in writiag waives his appeal before any decision thereon, proceedings may be had in the district '^^y'^^''^*- court as if no appeal had been taken, and no ap- peal shall be allowed unless the appellant at the time of claiming the same shall give bond in man- Bond to be ner now required by law in cases of such appeals. !N^o writ of error shall be allowed unless the party wnt of er- ■^ "' ror, when. claiming it shall comply with the statutes regulat- ing the granting of such writs. - Questions to be brought by petition, not by appeal. Reed, see § 2. SEC. 9. And be it further enacted, That in cases arising under this act no appeal or writ of Appeal to error shall be allowed in any case from the circuit preme courts to the supreme court of the United States unless the matter in dispute in such case shaU ex- ®- o- as ceed two thousand dollars. GENERAL OEDEES. SEC. 10. And be it further enacted, That the justices of the supreme court of the United States 14 BANKRUPTCY PRACTICE. to be mad" subject to tlie provisions of tMs act, eliall frame general orders for the following purposes : For regulating tlie practice and procedure of tlie district courts in bankruptcy, and the several forms of petitions, orders, and other proceedings to G. 0. 82. Ibe used in said courts in all matters under this act ; For regulating the duties of the various ofBicers of said courts ; For regulating the fees payable, and the charges and costs to be allowed, except such as are estab- lished by this act, or by law, with respect to all proceedings in bankraptcy before said courts, not exceeding the rate of fees now allowed by law for similar services in other proceedings ; For regulating the practice and procedure upon appeals ; For regulating the filing, custody, and inspec- tion of records ; And generally for caiTying the provisions of this act into effect. After such general orders shall have been so framed, they, or any of them, may be rescinded or varied, and other general orders may be framed in manner aforesaid, and all such general orders so framed shall, from time to time by the justices of the supreme court, be reported to Congress, with such suggestions as said justices may think proper. VOLUNTAET BANKEUPTCT. — COMMEKCEMENT OP PEOCEEDINGS. Who to ap- SEC. 11. And he it further enacted, That if any person residing within the jurisdiction of the United States, owing debts provable under this act exceeding the amount of three hundred doUars, ?'a,ii,2'7.^'shaU apply by petition, addressed to the judge of the judicial district in which such debtor has re- Rlflfid nr P.n.TTMprl nn "hnHinoaa friT flio aw TYi/-»Ti+>ia BANKRUPTCY PRACTICE. 15 next immediately preceding tte time of filing such |-;^-y^^i« petition, or for the longest period during such six^'^- months, setting forth his place of residence, his ina- bility to pay all his dehts ui full, his wiUiagness to surrender aU his estate and effects for the benefit what to ai- of his creditors, and his desire to obtain the bene- '*^^" fit of this act, and shall annex to his petition a schedule, verified by oath before the court, or be- fore a register in bankruptcy, or before one of the commissioners of the circuit court of the United States, containing a full and true statement of aU his debts, and as far as possible, to whom due, Euie s. d. with the place of residence of each creditor, if ' known to the debtor, and if not known, the fact to be so stated, and the sum due to each creditor, also the nature of each debt or demand, whether founded on written security, obligation, contract, or otherwise, and also the true cause and conside- ration of such indebtedness in each case, and the place where such indebtedness accrued, and a statement of any existing mortgage, pledge, lien, judgment, or collateral or other security given for the payment of the same ; and shall also annex to g. o. ss. his petition an accurate inventory, verified in like manner, of all his estate, both real and personal, assignable under this act, describing the same, and stating where it is situated, and whether there are any, and, if so, what incumbrances thereon, the filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt ; ^ ^ Provided, that aU citizens of the United States pe- titioning to be declared bankrupt, shall, in filing such petition, and before any proceedings thereon, take and subscribe an oath of allegiance and fidel- f^f^°^^ gy ity to the United States, which oath shall be filed "*i«»- and recorded with the proceedings in bankruptcy. And the judge of the district courts, or, if there be no opposing party, any register of said court, to be 16 BANKRUPTCY PRACTICE. 5" Y _^4 g; designated by tlie judge, shall fortliwitli, if he be ^■^^- satisfied that the debts due from the petitioner ex- mrrant, ^gg^ three hundred dollars, issue a warrant, to be signed by such judge or register, directed to the n"y.a° marshal of said district, authorizing him forthwith, Notices, as messenger, to publish notices in such newspa- how given. o ^ .r jr Euie s. D. pers as the warrant specifies ; to serve Avritten or 24.^'^' ^ printed notice, by mail or personally, on all credi- Notices, to tors upon the schedvile filed with the debtor' s pe- whom. ^ ^ tition, or whose names may be given to him, in ad- dition, by the debtor, and to give such personal or What to other notice to any persons concerned as the war- rant specifies, which notice shall state : First. That a warrant in bankruptcy has been issued against the estate of the debtor. Second. That the payment of any debts and the delivery of any property belonging to such debtor to him or for his use, and the transfer of any property by him, are forbidden by law. G.0.13. TJiird. That a meeting of creditors of the debtor giving the names, residences, and amounts, so far as kno\\aa, to prove their debts and choose one or more assignees of his estate, wUl be held at a court of bankruptcy, to be holden at a time and place designated in the warrant not less than ten nor more than ninety days after the issuing of the same. Residence of debtor. A citizen of Massachusetts acquired domicil in California, abandoned this with intent to remove to Massachusetts ; did so by -n-ay of Paris, spending a year in transit. Residence for purpose of application considered to have been Mas- sachusetts from time of leaving California. Walker, Mass., B. i?., 1, 91. Carrying on business. Where petition said, " has been a clerk in New York city," held insuflacient. Petitioner intended to return to Chicago. Was unmarried, and hved in Jersey. Petition dismissed. Magie, S. D. N. Y., B. R., 1, 138. Petitioner alleged " carrying on," &c. Petitioner, a clerk in New York, lived in Jersey. 170 out of 212 creditors in New York city. Held, petition properly filed in New York city. Belcher, S. D. N. Y., B.B,\, 202. BANKRUPTCY PRACTICE. 17 Agent under a power of attorney. Principal's name over door. " Carries on business," at that place. Bailey, S. D. N'. Y., B. R, I, 178. As to filing individual, instead of copartnership petition, so that it gives an actual preference to individual creditors legally. As to creating a joint estate for same purpose, by purchase of worthless partnership debts by separate creditors. Byrne, W. D. Pa., B. R., 1, 122. Property, the legal title of which is in bankrupt, although really a cover and fraud on the creditors of another, is assets. O'Bannan, K D. Mo., B. R., 2, 6. Claim for damages is property. Orme, S. D. N T., Int. Rev. Rec, VI., 85. Statute limitations. Entry of debt on schedule not a revivor. Kinsley, Mass., B. R., 1, 67 ; Harden, Maine, B. R., 1, 97. Advisable to insert such debts on schedule. Ray, S. D. N. Y., Int. Rev. Rec., VI., 223; Perry, N. D. N. Y, B. R., 1, 2. A debt so barred is also discharged in bankruptcy. Dififer- ence between a provable debt, and one that can be proved. 1st, refers to nature, 2d, to circumstances surrounding debt. A debt barred by (he statute, though provable, cannot be proved. (In- ference, it need not be inserted in schedules.) Kinsley, Mass., 1 p. R., 67 ; Harden, Maine, B. R., 1, 97. Naming creditor in schedule gives him no rights (infer- ence from). Altenheim, S. D. N. Y, Int. Rev. Rec, VI., 117. " Residence, &C., unknown." Schedule should show dili- gence in inquiry. Residence, I. e., abode, not business place. Pul- ver, S. D. N. Y, Int. Rev. Rec., VL, 77. Schedule A., 3. " Whether," &c., requires party to allege or deny existence of stated facts. Orme, S. D. N. Y, Int. Rev. Rec., VL, 116. Papers may be amended, at discretion of register. Ib. Orders to amend should specify particulars. § 26, and cases. Variation of name — as of middle letter — where creditor not misled, not material. So held, where name, Wm. D. Hill, given Wm. B. Hill. Hill, 8. D. N. Y, Int. Rev. Rec, VL, 51. Petition and schedules are filed with clerk. Order of refer- ence is taken. Bankrupt therein required to attend before a regis- ter named, at a certain time. If bankrupt do not appear, register may adjourn day. If bankrupt still remain away, petition may be dismissed on register's report. Hatcher, Ky., 1 B. R., 91. Register may be changed for cause. As when he tries to influence action of creditors m choosing assignee. Smith, S. D. N. Y, B. R., 1, 25. Interval before first meeting. Ten to ninety days, to be at discretion of Register. Hays, S. D. N. Y., Int. Rev. Rec, VL, 52. Publication may be in foreign newspaper, at discretion of register. Robinson, S. D. N. Y, Int Rev. Rec, VL, 29. No revenue stamps required, int. Rev. Act, § 195. First meeting ordered for 24th July ; first publication was 15th July. Not ten days. Devlin, S. D. N. Y, Int. Rev. Rec, VL, 61. 2 18 BANKRUPTCY PRACTICE. " Given," i. e., advertised and mailed. Id. Form of order, to show cause why adjudication should not be annulled. Stern, S. D. N. Y., Int. Rev. iJec, VI., 87. Proceedings annulled, on request of all, but one, proved creditors before appointment of assignee. Miller, W. D. Pa., B. R., 1, 165. OF ASSIGNMENTS AND ASSIGNEES. SEC. 12. And be it further enacted. That at First meet- the meeting, held In pursuance of the notice, one of tSf'spo?" the registers of the court shall preside, and the messenger shall make return of the warrant and of his doings thereon ; and if it appears that the notice to the creditors has not been given as required in the warrant, the meeting shall be forthwith adjourned, and a new notice given as required. If the debtor Deajiiof dies after the issuing of the warrant, the proceed- ings may be continued and concluded in like man- ner as if he had lived. ceedings. F. 7. debtor. Creditors not proved cannot be heard, even to ask adjourn- ment for purpose of proving. W. D. Hill, S. D. N. Y., Int. Rev. Rec, VI., 51. SEC. 13. And be it further enacted, That the h^w^choaen Creditors shall, at the first meeting held after due notice from the messenger, in presence of a register 5 1 13 designated by the court, choose one or more assig- '- ' nees of the estate of the debtor ; the choice to be w 19, 20. made by the greater part in value and in number Q Q g p. of the creditors who have proved their debts. K JJjj^^'^f no choice is made by the creditors at said meet- ing, the judge, or, if there be no opposing interest, the register, shall appoint one or more assignees. Or appoint- j£ an assignee, so chosen or appointed, fails within five days to express in writing his accep- n"'t.,^8. "■ tance of the trust, the judge or register may fill the vacancy. AU elections or appointments of assig- v^f U8?"'iiees shall be, subject to the approval of the judge ; and when in his judgment it is for any cause need- ful or expedient, he may appoint additional as- BANKRUPTCY PRACTICE. 19 signees, or order a new election. The judge at any time may, and, upon tlie request in writing of any creditor wlio has proved his claim, shall re- quire the assignee to give good and sufficient l)ond bonf,F!i7. to the United States, with a condition for the faith- ful performance and discharge of his duties ; the bond shall be approved by the judge or register by his indorsement thereon, shall be filed with the record of the case, and inure to the benefit of all creditors proving their claims, and may be prose- cuted ia the name and for the benefit of any in- jured party. If the assignee fails to give the l>ond ^auure^o within such time as the judge orders, not exceed- ^i^- ing ten days of the notice to him of such order, the judge shall remove him and appoint another ia his place. No creditor appearing, register appoints. Cogswell, S. D. N. Y., Int. Rev. Bee., VI., 85. Meetingf to be had at hour named, and to continue until assig- nee chosen or apparent that none will be. Phelps et al., Ky., B. H., 1., 139. Creditor having security worth less than his claim may, without abandoning his security, prove excess and vote thereon. Bolton, ^S: n. JSr. Y., B. R., 1, 83. Creditors having security not to vote for assignee. Davis & Son, N: B. Ohio, Int. Rev. Rec, VI., 140. Register may postpone proofs of debt under certain circum- stances, as § 23, and take deposition on the subject. Orme, 8. D. N. Y., Int. Rev. ijec, VI. 85. Vote can be cast by party or duly constituted attorney, at- torney at law not such ; one partner can cast vote of firm without authority of others, — one of several joint creditors must have such authority, and cannot vote for proportionate part ; a firm counted as one creditor,— an individual creditor votes : majority of all .proved necessary to elect. Purvis, Md., Int. Rev. Rec, VI., 173. Individual creditor, no vote where firm is in bankruptcy, see § 36. Phelps et al, Ky., B. R., 1, 139. Assignee must reside in the district. Havens, N. J., B. R., 1, 126. Must not be related to, or interested in a corporation whose debt has been secured by, bankrupt. Powell, N. J., B. R., 2, 17. Motion to set aside assignee must be made to court — not to register. Stokes, S. D. N. Y., B. R., 1, 130. Register must certify to judge any reason with which he is acquainted why assignee should not be approved. Bliss, S. D. K Y., Int. Rev. Rec., VI., 116. 20 BANKRUPTCY PRACTICE. One who was counsel to bankrupt, but is not, may be as- signee. Clairmont, JSIass., 1 B. B., 42. Assignee may be removed when because of new election after amendment by bringing in new parties, creditors, he is su- perfluous. Perry, sub, § 26. PEOPEETT VESTING IN ASSIGNEE. SEC. 14. And be it further enacted, That as Assignment soon as Said assignee is appointed and qualified, F. M.'^°*'tlie judge, or, where there is no opposing interest, Kuie s D *^® register, shall, by an instrument under his N. Y,,9. hand, assign and convey to the assignee aU the es- tate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and b«!k.°' such assignment shaU relate back to the com- mencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is titaaheo^ then attached on mesne process as the property of the debtor, and shall dissolve any such attachment dissolved*" made within four months next preceding the com- mencement of said proceedings: provided, how- ever, that there shall be excepted from the opera- ration of the provisions of this section the neces- sary household and kitchen furniture, and such ^•^o- other articles and necessaries of such bankrupt as G.o. 19. ^^^ ^^^^ assignee shall designate and set apart, having reference in the amount to the family, con- dition, and circumstances of the bankrupt, but al- together, not to exceed in value, in any case, the sum of five hundred dollars ;. and also the wearing apparel of such bankrupt, and that of his wife and children, and the uniform, arms, and equipments of any person who is or has been a soldier in the militia or in the service of tlfe United States ; and such other property as now is, or hereafter shaU be, exempted from attachment, or seizure, or levy on execution by the laws of the United States, and BANKRUPTCY PRACTICE. 21 such, other property not included in the foregoing exceptions as is exempted from levy and sale upon execution or other process or order of any court by the laws of the State in which the bankrupt has his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such State exemption laws in force in the year eighteen hundred and six- ty-four: provided, that the foregoing exception shall operate as a limitation upon the conveyance o the property of the bankrupt to his assignees, and in no case shall the property hereby excepted pass to the assignees, or the title of the bankrupt thereto be impaired or affected hj any of the provisions of Determina- this act ; and the determination of the assignee insigSee^siji1)V the matter shall, on exception taken, be subject toionofamrt the final decision of the said court : and provided further, that no mortgage of any vessel or of any Mortgage, other ^oods or chattels, made as security for any^'a'o!"^**'^' debt or debts, in good faith and for present con- siderations, and otherwise valid, and duly re- corded, pursuant to any statute of the United States, or of any State, shall be invalidated or af- fected hereby ; and all the property conveyed by property the bankrupt in fraud of his creditors ; all rights asSgmment. in equity, choses in action, patents and patent rights and copyrights ; all debts due him or any person for his use, and all liens and securities therefor ; and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any per- son arising from contract or from the unlawful taking or detention of or injury to the property of Assignee's the bankrupt ; and all his rights of redeemiag such^'"'*" °Y' property or estate, with the like right, title, power, *''*'• and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might or could have had if no assignment had 22 BANKKUPTCT PRACTICE. been made, shall, in virtue of the adjudication of Ibanknaptcy and the appointment of his assignee, be at once vested in such assignee ; and he may fog contfn-' sue for aud recover the said estate, debts, and ef- S^ee! "' fects, and may prosecute and defend all suits at law or in equity, pending at the time of the adjudi- cation of bankruptcy, in vrhich such bankrupt is a party in his own name, in the same manner and with like effect as if they might have been pros- ecuted or defended by such bankrupt; and a copy, duly certified by the clerk of the court ti«e''ofM-°*^^^^^^ the seal thereof, of the assignment made by Bignee. ^^q judgc or register, as the case may be, to him as assignee, shaU be conclusive evidence of his title as such assignee to take, hold, sue for, and re- cover the property of the bankrupt, as hereinbe- fore mentioned ; but no property held by the bank- rupt in trust shall pass by such assignment. No Actions person shall be entitled to maintain an action against as- . , . • i. t j. j? j.\ • Bignee. agamst an assignee m bankruptcy for any thmg done by him as such assignee, without previously giving him twenty days' notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering Bankrupt's amcuds, should he see fit to do so. Wo person acooiL'tf shall be entitled, as against the assignee, to with- hold from him possession of any books of account of the bankrupt, or claim any lien thereon ; and abiteb°y*° no suit in which the assignee is a party shall be death. abated by his death or removal from office, but the same may be prosecuted and defended by hia successor, or by the surviving or remaining as- Asaignee siguee, as the case may be. The assignee shall K'^luprahave authority, under the order and direction of iM^lo.^'' the court, to redeem or discharge any mortgage or ^" ^' conditional contract, or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the BANKRUPTCY PRACTICE. 23 condition tliereof, or to sell the same, subject to STich mortgage, lien, or other incumbrances. The debtor shall also, at the request of the assignee, "eraTe'n- and at the expense of the estate, make and exe- ^'''""'™'°- cute any instruments, deeds, and writings which may be proper, to enable the assignee to possess himself fully of all the assets of the bankrupt. The assignee shall immediately give notice of his ap^pSntl^ appointment, by publication at least once a week, pf^g'; uuie for three successive weeks, in such newspapers asfo,°i^'^' shall, for that purpose, be designated by the court, due regard being had to their general circulation in the district, or in that portion of the district in which the bankrupt and his creditors shall reside, and shall, within six months, cause the assignment J|^en^^" to him to be recorded in every registry of deeds or other office within the United States where a con- veyance of any lands owned by the bankrupt ought by law to be recorded ; and the record of Sslgnmentf such assignment, or a duly certified copy thereof, n"'-!.! qP* shall be evidence thereof in all courts. Reqister may take estate before assignee appointed. Has- brouclc, S. D. N. Y., Int. Rev. Rec, VI., 115. Relation back. June 25, 1867, petition filed. Aug. 19, new schedules filed. Sept. 10, same amended. 12, adjudication. 13, warrant. 23, first meeting. 25, examination ordered. On Aug. 25, bankrupt borrowed $5,000. Assignment held not to cover this property. Patterson, S. D. N. Y., Int. Rev. Rec., VI., 157. Claim for damages is property. Orme, ./S D. N. Y, Int. Rev. Rec, VI., 85. Assignee takes same rights as execution creditor. Appold, K D. Pa., B. R., 1, 179. Assignee takes subject to liens. Court may direct hquidation. See §§ 1, 20, 22. Winn, N. D. Ga., B. R., 1, 132. Assignee, by order of court, may sell incumbered property free, and lien may be transferred to proceeds. Salmon,-^''. D. Oa., B. R., 2, 19. Mere judgment no lien. Levy made after filing petition set aside. Pennington, assignee, v. Sale, N. D. Miss., 1 B. R., 157; Jones v. Leach, N. D. Miss., 1 B. R., 165. Mortgaged premises sold by assignee under order of court, where a aifierence in former and present value of same appears. Stewart, N. D. Ala., B. R., 1, 42. 24 BAJ*fKRUPTCT PRACTICE. National Bank has lien on shares for debt of shareholder, ■where so provided in by-laws. Bigelow & others, S. D. N. T., B. R, 1, 202. First execution levied, second received by sheriff 10 A. M., Nov. 5, 1867. 3 P. M. same day, petition filed. Second execu- tion a lien. Smith, 8. D. N. T., B. R., 1, 170. General assignees, where no fraud or intent to go into bankruptcy exists, retain assigned property, and have a lien. Sedgwick, assignee, v. Place, S. D. N. T. Circ, B. R., 1, 204; Arledge, S. D. Oa., B. R., 195. Deficiency. Assignee selhng mortgaged property not obliged to make out of estate to the creditor the difference between the nett proceeds and the debt. Purcell, &c., S. D. N. K, B. R., 2,10. ' A creflitor's bill, unaccompanied by receiver, not a lien. Stewart v. Isidor, N. f. Com. Pleas, B. R., 1, 129. Landlord's right to distrain not a lien. Appold, K D. Pa., B. R., 1, 179. " No property held in trust for," &c. passes. Assignee must deliver up property to owners, and they may maintain ordi- nary action in State court. Noakes, Md., B. R., 1, 164. Property conveyed in fraud of creditors. In 1857 bankrupt made general assignment, which has been set aside as fraudulent, and from which decision appeal pending. Assignee in bankruptcy obtains injunction restraining parties. Beiser, S. D. N. T., B. R., 1, 108. Afterwards, on bill by assignee to recover property, it appears that a receiver had been appointed. Held, a lien had attached, and the injunction dissolved. Same at suit of Sedgwick and Sedgwick, assignee, v. Minck, et al., S. D. N. T. Circ, B. R., 1, 204. " Conveyed by," — i. e., caused to be made by. Meyers, S. D. If. T., B. R., 1, 102. Where such conveyance prior to passage of bankrupt law, property vests in assignee. Stewart v. Isidor, N'. T. Com. Pleas, B. R., 1, 129; Meyers, S. D. N. Y., B. R., 1, 162. The 35th section does not limit the right in this respect. Brad- shaw, assignee, v. Klein, Ind., B. R., 1, 146. Exemptions. That bankrupt's wife possesses property, no reason for nmiting. Articles of luxury or ornament (gold watches, pianos, &c.) not articles which may be set apart. The property exempt by State law is in addition to the $500 exemption ; and this may, as in Indiana, permit bankrupt to retain gold watch. There, the limit is $300 of any description of property. As- signee's decision, refusing to set apart $175 of necessary house- hold property, reversed. Cobb, Ind., B. R., 1, 106. Property exempt by State law is in addition to what as- signee may set apart. Euth, E. D. Penn., VI. Int. Rev. Rec, 166. Exemptions are of separate property only not of partner- ship assets. Hafer, R D. Pa., B. R., 1, 147. BANKRUPTCY PRACTICE. 25 Each partner entitled to full exemptions out of firm assets. Judge Hill, dictum, Hiss., B. R., 1, 187. Property that lies under attacliment, if exempt by this law, is to be returned to debtor. Money received from sale represents property. Ellis, luvol., E. D. Mo., B. R., 1, 154. Mesne process — all other than final process. Pennington, assignee, v. Lowenstein, N. D. Miss., B. R., 1, 157. Money resulting from book debts cannot be exempted, al- though bankrupt property has been sold under execution. Law- son, Md., B. R., 2, 19. Assignee may delay " setting apart" exempt property, if he has not come into possession, and if the title is in question, until twenty days after final decision of court. Shields, W. D. Pa., B. R, 1, 170. SEC. 15. And ie it further enacted, That the Assignee to ■ 111-1 -i-i ' t* 1 collect as- a-ssignee shall aemand and receive from any and sets. g. o. all persons holding the same all the estate as- signed, or intended to l)e assigned, nnder the pro- to seii. g. visions of this act; and he shall sell all such un-s.'D.N.Y.* incumljered estate, real andrpersonal, which comes §§'26,17, as. to his hands, on such terms as he thinks most for the interest of the creditors ; but upon petition of any person interested, and for cause shown, the court may make such order concerning the time, ^o™ 64,65. place, and manner of sale, as will,^in its opinion, ^ ^^_ prove to the interest of the creditors ; and the as-^'i^^go signee shall keep a regular account of all money ^'• received by him as assignee, to which every cred- itor shall, at reasonable times, have free resort. Assiqnee may sell without order of court. White & lilay, S.D.N7T.;iB.R., 1. Neither court nor register is the general adviser of as- signee. Sturgeon, Ky., 1 B. R., 131. That assignee had sold for $800, and a personal fee of $200, what was, within fom- months after, offered for $20,000 by purchaser, is sufllcient to repel idea of bona fides in the sale Mott, S. D. N. Y., 1 B. R., 9. Assignee's SEC. 16. And he it furtTier enacted, That the assignee shall have the like remedy to recover allremoYy! said estate, debts, and effects in his own name as 26 BANKRUPTCY PRACTICE. the debtor miglit have had if the decree in bankrupt- cy had not been rendered and no assignment had been made. If, at the time of the commencement of the proceedings in bankruptcy an action is pending in the name of the debtor for the recovery in plndtog^ of a debt or other thing which might or ought to pass to the assignee by the assignment, the assig- nee shall, if he requires it, be admitted to prose- cute the action in his own name, in like manner and with like effect as if it had been originally commenced by him. 'No suit pending in the name of the assignee shall be abated by his death or re- by deathf^ moval ; but upou the motion of the surviving, or remaining, or new assignee, as the case may be, he shall be admitted to prosecute the suit, in like manner and with like effect as if it had been origin- ally commenced by him. In suits prosecuted by autoorityl'^the assignee, a certified copy of the assignment made to him by the judge or register shall be con- clusive evidence of his authority to sue. SEC. 17. And he it further enacted, That the assignee shall, as soon as may be after receiving money."'"* any money belonging to the estate, deposit the same in some bank in his name as assignee, or Kuies.D. otherwise keep it distinct and apart from all other N Y 20 ■ '' ■ money in his possession ; and shall, as far as prac- ticable, keep all goods and effects belonging to Keepcs- the estate separate and apart from all other goods tinct. in his possession, or designated by appropriate marks, so that they may be easily and clearly dis- tinguished, and may not be exposed or liable to be taken as his property or for the payment of his debts. When it appears that the distribution of invesfment the estate may be delayed by litigation or other derei' "' cause, the court may direct the temporary invest- ment of the money belonging to such estate in se- curities to be approved by the judge or register of BANKRUPTCY PRACTICE. 27 said courf, or may authorize the same to Tbe de- posited in any convenient bank, upon such inte* rest, not exceeding the legal rate, as the bank may contract with the assignee to pay thereon, jj^ «§ is, 25, 28. shall give written notice to all known creditors, by Notice of mail or otherwise, of all dividends, and such notice FJ28!" of meetings, after the first, as may be ordered by the court. He shall be allowed, and may retain, n. Y.,i2.' out of money in his hands, all the necessary dis- bursements made by him in the discharge of his^jj^^.^^ duty, and reasonable compensation for his servi- ^|^uree- ces, in the discretion of the court. He may, under the direction of the court, submit any controversy arising in the settlement of demands against the estate, or of debts due to it, to the determination of arbitrators, to be chosen by him and the other t1oS"''G.o. party to the controversy, and may, under such^°" direction, compound and settle any such contro- trovira'y ."' versy by agreement with the other party, as he ^" ^' "' thinks proper and most for the interest of the creditors. Assiqnee to apply to court, not to register. Graves, S. B. N. Y., B.B., 1, 19. SEC. 18. And he it further enacted, That theS',^™!"* court, after due notice and hearing, may remove Sonf&t an assignee for any cause which, in the judgment of the court, renders such removal necessary or ^ "' expedient. At a meeting called by order of the g. 0. 23. court in its discretion for the purpose, or which shall be called upon the application of a majority of j, ^^ ^^^^j, the creditors in number and value, the creditors «' may, with consent of the court, remove any assig-j^^j^g j, nee by such a vote as is hereinbefore provided for^.Y./T. the choice of assignee. An assignee may, with the consent of the judge, resign his trust and be discharged therefrom. Vacancies caused by death vacancies ° in office of. « 28 BAITKRUPTCT PRACTICE. F. u. Qj. otherwise in the office of assignee may be filled by appointment of the court, or, at its discretion, by an election by the creditors, in the manner hereinbefore provided, at a regular meeting, or at a meeting called for the purpose, with such notice thereof in writing to all known creditors, and by such person, as the court shall direct. The resig- Generai da- nation Or removal of an assignee' shall in no way signee ran- release him from performing all things requisite on his part for the proper closing up of his trust and the transmission thereof to his successors, nor shall it affect the liability of the principal or surety on the bond given by the assignee. When, by death or otherwise, the number of assignees is re- duced, the estate of the debtor not lawfully dis- su^yivor- posed of, shall vest in the remaining assignee or assignees, and the persons selected to fill vacan- cies, if any, with the same powers and duties re- lative thereto as if they were originally chosen. Any former assignee, his executors, or adminis- trators, upon request, and at the expense of the estate, shall make and execute to the new assignee all deeds, conveyances, and assurances, and do all other lawful acts requisite to enable him to re- cover and receive all the estate. And the court may make all orders which it may deem expedi- ent to secure the proper fulfillment of the duties of any former assignee, and the rights and inte- rests of all persons interested in the estate. Ko person who has received any preference contrary to the provisions of this act shall vote for or be eligible as assignee ; but no title to property, real or personal, sold, transferred, or conveyed by an assignee, shall be affected or impaired by reason of his ineligibility. An assignee refusing or un- reasonably neglecting to execute an instrument m^y^t when lawfully required by the court, or disobey- puniBhed. jjjg ^ lawful Order or decree of the court in the BANKRUPTCY PRACTICE. 29 premises, may be punished as for a contempt of court. Motion to set aside appointment to be made to court, not to register. Stokes, S. D. N. T., B. R., 1, 130 ; New Yorlj Mail Steamship Co., S. D. N. Y., Aug. 12, 1868. Aa to the SEC. 19. And le it further enacted, That aUbankrSpt debts due and payable from the bankrupt at the time o/ae- time of the adjudication of bankruptcy, and aUbankraptcy debts then existing but not payable until apayabi^m future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the bankrupt. AU. demands against the bankrupt for°o^|°"'"' or on account of any goods or chattels wrongfully ''«rt«'i- taken, converted or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with conditional interest. If the bankrupt shall be bound as"*''""^'. drawer, indorser, surety, bail, or guarantor, upon ^ 27. any bill, bond, note, or any other specialty or con- tract, or for any debt of another person, and hisfa'atfaf!' liability shaU not have become absolute until after the adjudication of bankruptcy, the creditor may prove the same after such liability shall have be- come fixed, and before the final dividend shaU have been declared. In all cases of contingent debts and contingent liabilities contracted by the bankrupt, and not hereia otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends if the contingency shall happen before the order for the final dividend ; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove 30 BANKRUPTCY PRACTICE. J'^f^'^^^'for the amount so ascertained. Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt or any part thereof in discharge of the whole, shall be en- titled to prove such debt, or to stand in the place of the creditor if he shall have proved the same, although such payments shall have been made after the proceedings in banki-uptcy were com- ^^^' menced. And any person so liable for the bank- rupt, and who has not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules, and subject to such limitations and regula- Eent. tions as may be established by such rules. Where the bankrupt is liable to pay rent, or other debt falling due at fixed and stated periods, the credi- tor may prove for a proportionate part thereof, up to the time of the bankruptcy, as if the same grew due from day to day, and not at such fixed and uniiqnidat- stated pcriods. If any bankrupt shall be liable conSf wfor unliquidated damages arising out of any con- goods con- j^ , . J. j> -1 verted, tract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No ^^ debts other than those above specified shall be proved or allowed against the estate. Debts barred by statute limitations of place where petition is filed. Provable, and can be proved. Ray, S. D. N. Y., Int. Rev. Bee, VI., 223; Perry, N. D. N. T., B. R., 1, 2 : Shepard, N. D. N. Y.,B.B.,1, 115. Provable and cannot be proved. Kinsley, Mais., B. R., 1, 67 ; Harden, Me., B. R., 1, 97. Debt on loan of confederate money, to hire substitute for Confederate army, void. Same, where consideration Confederate bills of credit. Milner, N. D. Ga., B. R., 1, 10 ; Id., 1, 108. §21. BANKRUPTCY PRACTICE. 31 Under individual petition copartnership creditors may prove. Assets administered according to § 36. Frear, S. D. N. Y., B. R., 1, 202. Usurious debt provable. As to reservation usurious interest by National Banli. Mo'ore, S. D. 0., B. R., 1, 123. Proof of debt waives lien acquired by creditor's bill not yet in decree. Stewart v. Isidor, Corri,. Pleas, N. Y., B. R., 1, 129. So as to any lien, if proof does not refer to it. Id. Proof of debt cannot be withdrawn, but may be amended. Loweree, S. D N. Y., Int. Rev. Rec, VI., 115. SEC. 20. And be it further enacted, That in all cases of mutual debts or mutual credits between mts. setoff tlie parties, the account between them shall be stat- ed, and one debt set off against the other, and the balance only stall be allowed or paid, but no set-off shall be allowed of a claim in its nature not provable against tbe estate : Provided, that no set-off sliall Exceptions, be allowed in favor of any debtor to tlie bankrupt of a claim purchased by or transferred to him. after tlie filing of the petition. When a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien therieon for securing tlie tor for bai- payment of a debt owing to Mm from the bank- rupt, lie shall be admitted as a creditor only for the balance of the debt after deducting the value of such how bai-^_ property, to be ascertained by agreement between ta'"«'i- him and the assignee, or by a sale thereof, to be made p g^ ^^^^ in such manner as the court may direct; or the^j/^^lj' creditor may release or convey his claim to the as- ^^ ^^< ^^• signee upon such property, and be admitted to prove his whole debt. If the value of the property k secnrity exceeds the sum for which it is so held as security, leb^'^' the assignee may release to the creditor the bank- rupt' s right of redemption therein, on receiving such excess ; or he may sell the property, subject to the claim of the creditor thereon ; and in either case the assignee and creditor, respectively, shall execute all deeds and writings necessary or proper 32 BANKRUPTCY PRACTICE. to consummate the transaction. If the property is not so sold or released and delivered up, the cred- itor shall not be allowed to prove any part of his debt. This section limits section 22. Assignee may sell mortgaged land, subject to, or, in con- junction with the raortfjagee, free from lien, without order ot court. McClellan, Ky., B. R., 1, 91. Court may order sale of mortgaged premises free and clear, transferring lien to proceeds. Barrow et at, La., B. R., 1, 123 ; Loeb, Smne; Winter, Same; Salmon, N. D. Ga., B. R., 2, 19. Proof of debt must mention lien, or it is waived. Stewart V. Isidor, N. Y. Com. Pleas, B. R., 1, 129. Mortgage for securing payment of a debt, bankrupt not hav- ing at that time been insolvent, or in contemplation of insolvency, and although covering entire stock, valid. Dunham, S. D. N. T., B. R., 2, 10. If creditor holds security from persons other than bank- rupt, and on which he has received nothing, he may prove whole debt. So held where bankrupt was indorser. Creditors held real estate as collateral. Massachusetts principle that the lien to be closed first distinguished as dependent on the use of the word debtor, in the State law, for all liable for the debt. Cram, Me., B. R., 1, 133. Creditor having reasonable cause to believe debtor in- solvent, took chattel mortgage. Insolvent told him that the chattel so conveyed was subject to lien, that a certain judgment would go against him. and he should be subject to great loss; and the creditor opened an account at his bank for money so loaned on mortgage in a third party's name. Request for recognition of his lien refused. Bank, &c. v. Truax, assignee, Minn., B. R., 1, 146. Levy before filing petition gives lien. Schnepf, E. D. N. T., Int. Rev. Rec., VI., 214 ; Smith, S. D. N. Y., B. R., 1, 170. Levy after fihng petition gives no lien. Pennington, assignee, V. Sale, W. D. Miss., B. R., 1, 157. Before securities can be sold, debt must be proved un- der § 22. Bigelow et al, E. D. N. Y, 1, 186. The by-laws of a National bank gave a lien on shares of member to secure any indebtedness. Held lien under this law, and creditor bank permitted to apply same towards indebted- ness. Bigelow, S. D. N. Y., B. R., 1, 202. BANKRUPTCY PRACTICE. 33 SEC. 21. And be ii further enacted, That no creditor proving Ms debt or claim shall be al-^^im "^ lowed to maintain any suit at law or in equity 7DmIdy.'^*' therefor against the bankrupt, but shall be deemed ^'^^^ to ha;ve waived all right of action and suit against the bankrupt, and all proceedings already com- menced, or unsatisfied judgments already ob- tained thereon, shall be deemed to be discharged and surrendered thereby ; and no creditor whose Provable dfl-iTn^ Tint debt is provable under this act shall be allowed to enforceable ■^ . by legal prosecute to final judgment any suit at law or in means. equity therefor against the bankrupt, until the question of the debtor's discharge shall have been determined ; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge, pro- vided there be no unreasonable delay on the part of the bankrupt in endeavoring to obtain his dis- charge: and provided also, that if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judg- ment, for the purpose of ascertaining the amount May ^pro- due, which amount may be proved in bankruptcy, ^^^f™^?**" but execution shall be stayed as aforesaid. If any *™°""*- bankrupt shall, at the timie of adjudication, be liable upon any bill of exchange, promissory note, uabuity'in or other obligation in respect of distinct contracts a^Snot"^ as a member of two or more firms carrying on^ separate and distinct trades, and having distinct estates to be wound up in bankruptcy, or as a sole trader and also as a member of a firm, the circum- stance that such firms are in whole or in part com- posed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend in respect of such distinct contracts against the es- tates respectively liable upon such contracts. 34 BANKRUPTCY PRACTICE. State court cannot be enjoined. Burns, TF. 2>. Pa., Int. Rev. Rec, VI., 182; Campbell, W. D. Pa., Int. Rev. Rec, 174; Irving V. Hughes, E. D. Pa., B. R., 2, 20; Act of March, 1793, c. 5. Parties may be enjoined. Reed, S. D. N. T., Int. Rev. Rec, VI., 21 ; Metcalf, K D. N. T., Int. Rev. Rec, VI., 223 ; Myers, S. D. N. Y., B.R., 1, 162; Irving v. Hughes, E. D. Pa., B. R., 2, 20. Form of stay. Reed, S. D. N. Y., int. Rev. Rec, VI., 21. Form of injunction. B. R., l, 18. Except where there is judgment, and it is followed by levy, and so becomes a lien. Donelson, E. D. Pa., Int. Rev. Rec, VI., 199 ; and others, supra. Injunction under such circumstances dissolved. Creditor al- lowed summary hearing. Hafer, E. D. Pa., B. R.. 1, 165; Beck, E. D. Pa., B. R., 1, 165. Section does not refer to debt not dischargeable hereunder. Seymour, S. D. N. Y, Int. Rev. Rec, VI., 61. Court may require proceeding to be by bill in equity. Irving v. Hughes, E. D. Pa., B. R., 2, 20. Same case, witliout name, VI. Int. Rev. Rec, 199. Before appointment of assignee. Bankrupt obtains in- junction, after, assignee applies. Bowie, Md., B. R., 1, 185. SEC. 22. And he it further enacted., That all Proof of proofs of debts against the estate of the bank- agaLtthe ^upt, bj OX in belxalf of creditors residing witliin ^Mkrupt, the judicial district where the proceedings in ^''"*™*'*® bankruptcy are pending, shaU be made before one of the registers of the court in said district, and by or in behalf of non-resident debtors before any register in bankruptcy in the judicial districts where such creditors, or either of them, reside, or before any commissioner of the circuit court au- thorized to administer oaths in any district. To § 4 and entitle a claimant against the estate of a bankrupt a™f°'i°'«"Ho have his demand allowed, it must be verified 01 IBOO. ' by a deposition in writing on oath or solemn af- Deposition.gjjjjg^^Qjj before the proper register or commis- G. o. 6. sioner, setting forth the demand, the consideration F.22. thereof, whether any and what securities are held F.2t. BANKRUPTCY PRACTICE. 35 therefor, and whetlier any and wliat payments have "been made thereon ; that the sum claimed is justly due from the bankrupt to the claimant ; that the claimant has not, nor has any other person for Ms use, received any security or satisfaction what- ever other than that hy him set forth ; that the claim was not procured for the purpose of influ- encing the proceedings under this act, and that no bargain or agreement, express or implied, has been made or entered into, by or on behalf of such creditor, to sell, transfer, or dispose of the said claim, or any part thereof, against such bankrupt, or take or receive, directly or indirectly, any mo- ney, property or consideration whatever, whereby the vote of such creditor or assignee, or any action on the part of such creditor or any other person in the proceeduigs under this act, is or shall be in any way affected, influenced or controlled, and no claim shall be allowed unless all the statements set forth in such deposition shall appear to be true. Such oath or solemn affirmation shall be made by where the claimant testifying of his own knowledge, un- sent, less he is absent from the United States, or pre- F, 14 24 25 vented by some other good cause from testifying, 26. ' ' in which cases the demand may be verifled in like^ „ *' G. 0,3. manner by the attorney or authorized agent of the claimant testifying to the best of his knowledge, information and belief, and settiag forth his means of knowledge, or, if in a foreign country, the oath of the creditor may be taken before any minister, consul, or vice-consul of the United States ; and the court may, if it shall see fit, require or receive further pertinent evidence, either for or against the admission of the claim. Corporations may verify ^.j^^jj^jg ^^ their claims by the oath or solemn affirmation of t£?g°™ow &eir president, cashier, or treasurer. If the proof '^^'^ is satisfactory to the register or commissioner, it^nuo aa''^ shaU be signed by the deponent, and delivered or*'^"^®- G. O.IO. F. 66, 67. 36 BANKEUPTCT PRACTICE. sent by mail to the assignee, wlio shall examine the same and compare it with the books and accounts of the bankrupt, and shall register, in a book to be kept by him for that purpose, the names of creditors who have proved their claims, in the order in which such proof is received, stating the time of receipt of such proof, and the amount and nature of the debts, which books shaU be open to the in- conrtmay spectiou of all the creditors. The court may, on ^Sm the application of the assignee, or of the bankrupt, cwms^.^"' or without any application, examine upon oath the bankrupt, or any person tendering or who has made proof of claims, and may summon any per- son capable of giviag evidence concerning such proof, or concerning the debt sought to be proved, and shall reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality or mistake. Proof of debt cannot be withdrawn, but may be amended. Lowerree, S. D. N. Y., Int. Rev. Rec, VI., 115. Need not anticipate defenses. Knoepfel, S. D. N. T., int. Rev. Rec, VI., 115. Partnership debt to be stated as due the firm. Judge Wylie, D. a, Int. Rev. Rec., VI., 150. Proof by creditor holding security must show this. Bridg- man, S. D. Ga., B. R., 1, 59. Creditor residing in same district where proceedings in banlt- ruptoy of his debtor are pending must make proof of his debt be- fore a register of that district. Haley, Ala., B. R., 2, 13. May be before United States commissioner although bankrupt and creditor both reside in same district. Sheppard, N. D. N. Y., B. R, 1, 115. Cannot be before a notary public in any case. Strauss, S. D. Ohio, B. R, 2, 18. " Creditor must file his deposition or he is not a proved creditor. Sheppard, K D. N. Y., B. R., 1, 115. Proofs of debt are to be sent to assignee to be registered. S. D. N. Y. Rule, B. R., 2, 21. Proofs of debt to be returned by assignee to register. S. D. N. Y. Rule, B. R., 1, 1. Power to several jointly cannot be executed by one alone, as to prove, &c. Phelps et al., Ky., B. R., 1, 139. BANKRUPTCY PRACTICE. 37 SEC. 23. And he it further enacted, That when p^o„j„j a claim is presented for proof before the election dS°„'i of the assignee, and the judge entertains doubts ^^ay^be^ of its validity, or of the right of the creditor to »°'*°°''^- prove it, and is of opinion that such validity or right Euie e. ought to be investigated by the assignee, he may di^G^b^s. postpone the proof of the claim until the assignee is chosen. Any person who, after the approval of this act, shall have accepted any preference, hav- creditor ing reasonable cause to believe that the same was prove ox- *-' cept, &c. made or given by the debtor, contrary to any 5§ 35, 27. provision of this act, shall not prove the debt or claim on account of which the preference was made or given, nor shall he receive any divi- dend therefrom, until he shall first have surren- dered to the assignee all property, money, bene- fit, or advantage, received by him under such preference. The court shall allow all debts duly f.^'iirfY.® proved, and shall cause a list thereof to be made^^' and certified by one of the registers ; and any I*; ^^ ^"^^ creditor may act at all meetings by his duly con- ^^^y aotV stituted attorney the same as though personally tuteYaSor- present. ^^^,2^,. Register may postpone proof of claim where court may, and take other proof on the subject. Orme, 8. D. N. T., Int. Rev. Rec, VI., 85; Smith, S. D. N. Y., Int. Rev. Rec., VI., 126. A claim in suit and contested is one proper to be postponed. Jones, Va., B. R., 2, 20. One having reasonable cause to believe another insolvent takes a mortgage as security not permitted to surrender and prove under this section. Princeton, Wis., B. R., 1, 178. SEC. 24. And he it further enacted, That a supposed creditor who takes an appeal to the cir-^^^^^'^*°Jg^i cuit court from the decision of the district court re- ^°^ '^^°'^" jecting his claim, in whole or in part, shall, upon entering his appeal in the circuit court, file in the fj ™ *'• clerk's office thereof, a statement in writing of his claim, setting forth the same, substantially, as in 38 BANKRUPTCY PRACTICE. a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in Kke manner, and like proceedings shall thereupon Ibe had in the pleadings, trial, and detei-mination of the cause, as in an action at law commenced and prosecuted, in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. The final judg- ment of the court shaU be conclusive, and the list Costs. °^ debts shaU, if necessary, be altered to conform thereto. The party prevailing in the suit shall be entitled to costs against the advei'se party, to be taxed and recovered as in suits at law ; if recover- ed against the assignee they shall be allowed out My°e^-™'' of the estate. A bill of exchange, promissory note, brretS^edOr Other instrument, used in evidence upon the copfes!"^ proof of a claim, and left in court or deposited in the clerk's office, may be delivered, by the regis- ter or clerk having the custody thereof, to the per- son who used it, upon his filing a copy thereof, attested by the clerk of the court, who shall in- dorse upon it the name of the party against whose estate it has been proved, and the date and amount of any dividend declared thereon. OF PKOPERTr PEEISHABLE AND IN DISPUTE. SEC. 25. And he it further enacted, That when May be sold j^j appears to the satisfaction of the court that the estate of the debtor, or any part thereof, is of a G. 0. 22. perishable nature, or liable to deteriorate in value, the court may order the same to be sold, in such li^*'"'^"' manner as may be deemed most expedient, under the direction of the messenger or assignee, as the case may be, who shaU hold the funds received in place of the estate disposed of ; and whenever it appears to the satisfaction of the court that the BANKRUPTCY PRACTICE. 39 title to any portion of an estate, real or personal, wMcli has come into possession of tlie assignee, or wMch. is claimed by Mm, is in dispute, tlie court °til!™^^ may, upon tlie petition of tlie assignee, and after^"" such, notice to the claimant, Ms agent or attorney, as the court shall deem reasonable, order it to Tbe sold, under the direction of the assignee, who shall hold the funds received in place of the estate dis- posed of ; and the proceeds of the sale shall be considered the measure of the value of the prop- erty in any suit or controversy between the par- ties in any courts. But this provision shall not prevent the recovery of the property from the pos^ ^f^'Sn"'*^ session of the assignee by any proper action com-**™^'^- menced at any time before the court orders the sale. EXAMINATION OF BANKBtrPTS AND WITNESSES. SEC. 26. And be it further enacted, That the court may, on the application of the assignee in toect-^pT bankruptcy, or of any creditor, or without any ap- f.' ^' °' plication, at aU times require the bankrupt, upon reasonable notice, to attend and submit to an ex- amination, on oath, upon all matters relating to the disposal or condition of his property, to his mattera. * trade and dealings with others, and his accounts hk i*. s*. f. concerntag the same, to all debts due or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof^^^^^^^^^ according to law, which examination shall be in g^^^J^J""' writing, and shall be signed by the bankrupt and filed vdth the other proceedings; and the court ^- *®' *'• may, in like manner, require the attendance of other per- any other person as a witness, and if such person l™^- ^- ^• shall fail to attend, on being summoned thereto, f. 4s, 49. the court may compel his attendance by warrant directed to the marshal, commanding him to ar- £"" p?o- 40 BANKRUPTCY PRACTICE. rest such person and bring him forthwith before the court, or before a register in bankruptcy for ^''■''''^'^* examination as such witness. If the bankrupt is imprisoned imprisoned, absent, or disabled from attendance, dlred°to be the court may order him to be produced by the^™*""^''" jailor, or any officer in whose custody he may be, g. 27. or may direct the examination to be had, taken, and certified, at such time and place, and in such manner as the court may deem proper, and with like eflfect as if such examination had been had in court. The bankrupt shall, at all times, until his discharge, be subject to the order of the court, andSi"Mm"!'2i?''^ property, due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or ex- pense, the assignee may, under the direction of the court, sell and assign Sttch debts or other property in such manner as the court shall order. No divi- dend already declared shall be disturbed by reason of debts being subsequently proved ; but the cred- itors proving such debts shall be entitled to a divi- dend equal to those already received by the other Accounting creditors before any further payment is made to fec^^F^sl!' the latter. Preparatory to the final dividend, the assignee shaU. submit his account to the court and file the same, and give notice to the creditors of such filing, and shaU also give notice that he will apply for a settlement of his account, and for a discharge from all liability as assignee, at a ^*- time to be specified in such notice, and at such time the court shaU audit and pass the accounts of the assignee, and such assignee shaU, if required F. 37 l)y the court, be examined as to the truth of such account, and if found correct, he shall thereby be ^' ^'' discharged from all liability as assignee to any 419. creditor of the bankrupt. The court shaU there- BANKRUPTCY PRACTICE. 47 ■apon order a dividend of tlie estate and effects, or of such part thereof as it sees fit, among such, of the creditors as have proved their claims, in pro- * *' portion to the respective amount of their said^^Y. debts. In addition to all expenses necessarily in- curred by him in the execution of his trpst, in any case, the assignee shall be entitled to an allowance Jjo" of al^ for his services, in such case, on all moneys re- under. ^*"" ceived and paid out by him therein, for any sum not exceeding one thousand dollars, five per centum thereon ; for any larger sum, not exceeding five cases;" thousand dollars, two and a half per centum on the excess over one thousand dollars ; and for any larger sum, one per centum on the excess over five thousand dollars ; and if, at any time, there shall not be in his hands a sufiicient amount of money to defray the necessary expenses req^uired for the further execution of his trust, he shall not be obliged to proceed therein until the necessary funds are advanced or satisfactorily secured to him. If, by accident, mistake, or other cause, without fault of the assignee, either or both of the said second and third meetings should not be held within the times limited, the court may upon mo- tion of an interested party, order such meetings, with like effect as to the validity of the procedings as if the meeting had been duly held. In the or- der for a dividend, under this section, the following Priorities ■ claims shaU be entitled to a priority or prefer- ence, and to be first paid in full in the following order : First. The fees, costs, and expenses of suits, and the several proceedings in bankruptcy under this act, and for the custody of property, as herein provided. Second. AU debts due to the United States, and aU taxes and assessments under the laws thereof. 48 BANKRUPTCY PRACTICE. Third. All debts due to the State in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws of such State. Fourth. Wages due to any operative, clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bankruptcy. Fifth. All debts due to any persons who, by the laws of the United States, are or may be entitled to proviaions a priority or preference, in Hke manner as if this men'ts'^T'act had uot been passed : Always provided, That Sf state""^ nothing contained in this act shall interfere with af taT ""'' the assessment and collection of taxes by the au- thority of the United States or any State. Cl£lini of attorney for fees and disbursements, not entitled to priority ; only those due register, marshal and clerk contem- plated. Heirsohberg, S. D. N. Y., B. R., 1, 195. See § 27, and notes, for what are necessary expenses. OP THE BANKBTJPT'S DISCHARGE, AND ITS EFFECT. whenmay SEC. 29. And he it further enacted, That at dFscMrge' any time after the expiration of six months from G.'o."25. the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from his debts, and the court shall thereupon order notice to be given n"y.^'2?' l>y ™^il to aU creditors who have proved their ^0.23. debts, and by publication at least once a week in such newspapers as the court shall designate, due regard being had to the general circulation Notice, to whom. F. 62, BANKRUPTCY PRACTICE. 49 of the same in the district, or in that portion of the district in which the bankrupt and his cred- itors shall reside, to appear on a day appointed for that purpose, and show cause why a dis- charge should not be granted to the bankrupt. No discharge shall be granted, or, if granted. Discharge, be valid, if the bankrupt has willfully sworn causL ae- falsely in his affidavit annexed to his petition, s 31. ' schedule, or inventory, or upon any examina- tion in the course of the proceedings in bank- ruptcy, in relation to any material fact concern- ing his^estate or his debts, or to any other ma- terial fact; or if he has concealed any part of his estate or effects, or any books or writings relating thereto, or if he has been guUty of any fraud or negligence in the care, custody or de- livery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, excepting such property as he is permitted to retain under the provisions of this act, or if he has caused, permitted, or suffered any loss, waste, or destruction thereof; or if, within four months before the commence- ment of such proceedings, he has procured his lands, goods, money, or chatels to be attached, sequestered or seized on execution ; or if, since the passage of this act, he has destroyed, muti- lated, altered, or falsified any of his books, doc- uments, papers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his cred- itors ; or has removed or caused to be removed any part of his property from the district, with intent to defraud his creditors ; or if he has given any fraudulent preference contrary to the pro visions of this act, or made any fraudulent pay ment, gift, transfer, conveyance, or assignment of 50 BANKRUPTCT PRACTICE. any part of his property, or has lost any part thereof in gaming, or has admitted a false or fic- titious debt against his estate ; or if, having knowl- edge that any person has proved such false or fic- titious debt, he has not disclosed the same to his assignee within one month after such knowledge ; or if, being a merchant or tradesman, he has not, subsequently to the passage of this act, kept proper books of account ; or if he, or any person in his behalf, has procured the assent of any cred- itor to the discharge, or influenced the action of any creditor at any stage of the proceedings by any pecuniary consideration or obligation ; or if he has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, di- rectly or indirectly, absolutely or conditionally, for the purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of pre- venting the property from coming into the hands of the assignee, or of being distributed under this act in satisfaction of his debts ; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever contrary to the true intent of this act ; and before any dis- taken by * Charge is granted, the bankrupt shall take and "^ subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matter, or thing specified in this act as a ground for with- holding such discharge, or as invalidating such discharge if granted. Petition of bankrupt to be filed with clerk; a certified copy taken, and served on register, with certified copy of order of I'eference. Bellamy, S. D. N. T., Int. Rev. Rec., VI., 127. Form 51 to be made by register, returnable before the court at office of register, names newspaper, orders publication three •weeks successively, once a week, in two newspapers. Id. " No assets," — i- «-, has received no money. Dodge, S. D. N. . T., B. R, 1, 115. BANKRUPTCY PRACTICE. gX " If no debts," or " if no assets,"—*, e., m either case bank- rupt may apply after sixty days. Woolums, Ky., 1 B. R., 131. Register issuing form 51 transmits to clerk a list of proved debts. Assignee sends similar list at same time. Bellamy, S. D. N. Y., Int. Rev. Rec, VI., 142. Notices to be mailed to those who have proved only. Me- la tyre, S. D. N. Y., Int. Rev. Rec., VI., 165. To be sent by clerk. His certificate sufficient proof of per- formance. So when notice produced directed creditor to appear December 2d eri^or for 27th. Townsend, ^5^. D.KY.,1 B. R., 1. Must be seven days' interval between publications, and after last one. BeUamy, 8. D. N. Y, Int. Rev. Rec, VI., 86. Proceedings on return day to be adjourned, if examination pending. Mawson, S. D. N. Y., B. R., 1, 41. Section 26, and cases thereunder. Onus on creditor. Hill, S. D. N. Y, B. B., 1, 42. Must be " willfully " false statements, and specifications should so allege. Reference to register to report testimony. Rathbone, S. D. N. Y., B. R., 1, 66. Concealed estate. The wife knew nothing of her husband's business, except to sign such papers as were brought to her by him. Had no property at marriage except some furniture which had been given her, and which was sold four years after for $600. Husband kept no account with his wife; never rendered her any statement ; never been paid, or agreed to be paid, for his services. Husband pretended to act as agent for his wife. Tnis, and his un- certainty and prevarication, shows a clear case for refusing a dis- charge. Hill, S. D. N. Y, B. R., 1, 114. Bankrupt's name over door. He was in charge of busi- ness ; received one-half of net profits. The business had been bought in the name of another, who paid two-thirds cash and one- third notes. These notes were paid as they fell due out of the re- ceipts. Insufficient to prove that bankrupt had any interest in the business which he concealed. Discharge granted. Beardsley, S. D. N. Y, B. R., 1, 121. In business depending on personal exertions (insurance brokerage). Bankrupt received one-tenth net earnings as salary ; his wife receives two-tenths as dividend, for interest which she purchased for $4,000 from retiring partner, but whose place in the labor she had not filled. Held, whole three-tenths was property of bankrupt. Discharge refused. Rathbone, 8. D. N. Y., B. R., 1 145. Wife had, by the sale of two out of three unfinished houses, acquired means to complete the third and leave a surplus. This property had been the husband's (the bankrupt's). Others in the same business as bankrupt had made money. Creditors had sold on execution bankrupt's interest in this property. Discharge granted. Hummitsch, E. D. Mo., B. R., 2, 3. Wife bought house in which herself and bankrupt lived, for part cash and part ($6,000) her notes, indorsed by her husband. Lease 52 BANKRUPTCY PRACTICE. was made to husband at annual rent sufficient to pay accruing notes, taxes, and insurance. Creditors had sold on execution bankrupt's interest in house. Discharge granted. Pomeroy, E. D. Mo., B. R., 2, 3. " Suffer." " Contemplation of insolvency." See cases Secor, Black, Craft, cited sub § 39. A solicitor of freight for transportation company, also bought and shipped flour and grain, but kept no regular blotter, ledger, or day book. Kept only check and order books. Dis- charge refused. O'Bannan, E. D. Mo., B. R., 2, 6. Bankrupt may lawM^y influence creditor by any other means than pecuniary consideration. Mawson, S. D. N. Y., B. R., 1, 115. Where debtor paid the attorney of withdrawing creditor $20, and explained on examination that this was not a condition to withdrawing opposition, the firm said to be influenced not being produced. Discharge granted. Mawson, S. D. N. Y., B. R., 1, 153. That a debt was created by fraud, no ground for refusing discharge. So, also, as to fraudulent conveyance made prior to passage of bankrupt act. "Since passage of act " relates to all causes for refusal, up to mutilating books. " Since," from the time of; " subsequently," at any time after. Eosenfleld, N. J., B. R, 1, 162; Tallman, S. D. N. Y., B. R., 1, 122. SEC. 30. And he it further enacted, That no Second person who shall have Ibeen discharged under this "^°^ ^act, and shall afterwards hecome bankrupt, on his own application shall Tbe again entitled to a dis- charge, whose estate is insufficient to pay seventy per centum of the debts proved against it, unless the assent in writing of three-fourths in value of his creditors who have proved their claims is filed at or before the time of application for discharge. But a bankrupt who shall prove to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous banltruptcy, or who has been voluntarily released therefrom by his creditors, shall be entitled to a discharge in the same manner and with the same effect as if he had not previously been bankrupt. BANKRUPTCY PRACTICE. 53 SEC. 31. And le it further enacted, That any|p^«fl?„»^. creditor opposing the discharge of any Tsankrupt, J<='=M<'n- may file a specification in writing of the grounds ^^''■ of Ms opposition, and the court may in its discre-G"o,'2t'^' tion order any question of fact so presented to be^' ^' tried at a stated session of the district court. n^y. a?" 22. Creditor not proved cannot be heard although named in schedule. Hill, S. D. N. T., Int. Rev. Bee, VI., 51 ; Levy, S. D. N. Y., B. a., 1, 66. May file objection at any time after proof of debt. Baum, ;S: n. JSr. r., int. Ren. Rec., VI., 29. May object though not proved. Sheppard, iV. D. N. Y., 1, 115. Register not to pass upon their validity nor delay proceeding on their account. Puffer, N. D. N. Y. , B. R., 2, 17. SpeciflCSltion must particularize facts descriptive of offense : time, place, person, &c. Hill, S. D. N. Y., B. R., 1, 42 ; Maw- son, ,S'. D. N. Y, B. R., 1, 115. May be amended at discretion of court. Mclntyre, S. D. N. Y, B. R., 1, 115. On return day, if specification filed, register certifies his pro- ceedings and the opposition, to the court. Assignee makes return (F. 35), although he may have reason to believe that he will receive funds. Bankrupt takes oath required by § 29. Hughes, *S: B. N. Y, B. R., 1, 10. Specifications to be filed within ten days after day for show- ing cause, appearance to be entered on the day. TaHman, S. D. N. Y, B. R., 1, 145. " On the day." — The day for showing cause or the adjourned day, if any. Thompson, S. D. N. Y., B. R., 1, 65. Reqister files all papers with the clerk. B. R., 1, 97, Rule S. D. N. Y.;Gr-0.7.. Adjournment sine die, or to day certain, enlarges time for filing specifications in first case till new order and ten days in last till ten days after adjourned day. Seckendorf, S. D. N. Y, B. R., 1, 185 ; Tallman, S. D. N. Y, B. R., 1, 145. Trials not directed to be by jury are to be before referee (§ 38). Hearing any Saturday, stated session in term on four days' notice to party and to clerk. Rule S. D. N. Y, B. R., 1, 58. Onus on creditor. Hill, S. D. N. Y, B. R, 1, 42. SEC. 33. And he it further enacted, That if when to be it shall appear to the court that the bankrupt has '^^"''^"s^''- in all things conformed to his duty under this act, 54 BANKRUPTCY PRACTICE. «i9,33. and that he is entitled, imder the provisions there- of, to receive a discharge, the court shall grant him a discharge from all his debts except as herein- after provided, and shall give him a certificate thereof under the seal of the court, in substance as follows : disteict couet of the united states, District op : Form of. Whereas has been duly adjudged a bank- rupt under the act of Congress establishing a uniform system of bankruptcy throughout the United States, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said be forever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the day of , on which day the petition for adjudication was filed by (or against) him ; excepting such debts, if any, as are by said act excepted from the opera- tion of a discharge in bankruptcy. Given under my hand and the seal of the court at , in the said district, this day of , A. D. [Seal.] , Judge. SEC. 33. And he it further enacted, That no No debt debt created by the fraud or embezzlement of the created by •' wmie'act- t'^^'i^^^pt) or by his defalcation as a public officer, iSfofflcf?''" o^ while acting in any fiduciary character, shaU be afy^apacf' discharged under this act; but the debt may be *^J^Jg''/a^" proved, and the dividend thereon shall be a pay- '> ^'- ment on account of said debt ; and no discharge Notto affect granted under this act shall release, discharge, or jotatdebt- aflfect any person liable for the same debt for or vsdth the bankrupt, either as partner, joint contrac- tor, indorser, surety, or otherwise. And in aU pro- BANKRUPTCY PRACTICE. 55 ceedings in bankruptcy commenced after one year Pg°/|fte"r from the time this act shall go into operation, no ""'= y^'"'- discharge shall be granted to a debtor whose assets 5 50 do not pay fifty per centum of the claims against his estate, unless the assent in writing of a majority in number and value of his creditors who have proved their claims is filed in the case at or before the time of application for discharge. Judgment for damages for a trespass (malicious impris- onment and whipping), is discharged by certificate, and bankrupt, if in arrest, must be discharged. Simpson, S. D.IU., B. R., 2, 18. Damages for deceit is debt created by fraud. Devoe, Mass., B. R., 2, 11. A judgment upon debt created by fraud does not extin- guish that quality so as to bring it under the operation of a dis- charge. Patterson, S. D. N. Y., B. R., 1, 58. " Go into operation." This clause net to apply to case com- menced prior to 1st January, 1869. And amended, requiring after 1st January, 1869, assets to' equal fifty per centum o? AaXms proved against his estate, upon which he shall be liable as principal debtor, unless, &c. Act amending, Sc, approved June 25, 1868. SEC. 34. And be it further enacted, That a discharge duly granted under this act shall, with Djacharge with the exceptions aforesaid, release the bank- ^"at'S? rei rupt from aU debts, claim Sj liabilities, and de-'*°^®" mands which were or might have been proved 519. against his estate in bankruptcy, and may be pleaded, by a simple averment that on the day of its date such discharge was granted to him, setting the same forth in /icBc verba, as a full and complete bar to all suits brought on any such debts, claims, liabilities, or demands, and the certificate shall be conclusive evidence in favor of such bankrupt of to^m"/*^' the fact and the regularity of such discharge : faSy^fd^': Always provided, Thdt any creditor or creditors "viSfn two of said bankrupt, whose debt was proved or prov-Slafter- able against the estate in bankruptcy who shall ^o'bftlikln see fit to contest the validity of said discharge ontJ~^'^^^ 56 B^iJSrKEUPTCY PEAOTICE. N?Y,fi7.°"tli6 ground that it was fraudulently obtained, may, at any time within two years after the date there- vf, apply to the court which granted it to set aside and annul the same. Said application shall he in writing, shall specify which, in particular, of the several acts mentioned in section twenty-nine it is intended to give evidence of against the Itonkrupt, setting forth the grounds of avoidance, and no evi- dence shall be admitted as to any other of the said acts ; but said application shall be subject to Notice to amendment at the discretion of the court. The bankrupt, court shall cause reasonable notice of said applica- Euie s. D.tibn to be given to said bankrupt, and order him to N.T.,16. appear and answer the same, within such time as to the court shall seem . fit and proper. If, upon the hearing of said parties, the court shall find that the fraudulent acts, or any of them, set forth as aforesaid by said creditor or creditors against the bankrupt, are proved, and that said creditor or creditors had no knowledge of the same until after Judgment the granting of said discharge, judgment shall be D N. Y.' given in favor of said creditor or creditors, and the discharge of said bankrupt shaU be set aside and annulled. But if said court shall find that said fraudulent acts, and all of them, set forth as aforesaid, are not proved, or that they were known to said creditor or creditors before the granting of said discharge, then judgment shall be rendered in favor of the bankrupt, and the validity of his discharge shaU not be afiected by said proceed- ings. Debts barred by statute limitation also discharged. Kinsley, Mass., B. R., 1, 67; Harden, Me., B. R., 1, 95. Vague averments insufficient. Time, place, and facts, and so on, must be alleged. Molntire, S. D. K T., B. R., 1, 115. Trials not directed to be before jury, are to be had before commissioner or register. Hearing any Saturday in term, on four days' notice to clerk and parties. S. D. JSf. Y. Rule, B. R., \, 58. BANKRUPTCY PRACTICE. 57 PEEFEEENCES AND EEAUDTJLENT COBTVEYANCES DECLAEED VOID. SEC. 35. And be it further enacted, That if preference any person, being insolvent, or in contemplation ^|,*^>^gf<»"" of insolvency, v^itliin four months before the filing of the petition by or against him, with a^^- view to give a preference to any creditor or per- son having a claim against him, or who is un- der any liability for him, procures any part of his property to be attached, sequestered, or sezed on execution, or makes any payment, pledge, assignment, transfer, or conveyance of any part of his property, either directly or in- directly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited there- ^^ ^^^ by, or by such attachment, having reasonable ^^™s^"*- cause to believe such person is insolvent, and^JJIf'*"' that such attachment, payment, pledge, assign- ment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the vahae of it, from the person so receiving it, Anytranfer or so to be benefited ; and if any person being months!'^ insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other disposition of any part of his property to any person who then has reasonable .cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such pay- ment, sale, assignment, transfer, or other con- veyance is made with a view to prevent his property from coming to his assignee in bank- ruptcy, or to prevent the same from being dis- 58 BANKRUPTCY PRACTICE. ^^^- tribnted under this act, or to defeat the olsject of, or in any way impair, hinder, impede or de- lay the operation and effect of, or to evade any of the provisions of this act, the sale, assign- ment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer, or conveyance Prima facie is not made in the usual and ordinary course of evidence of ' ' fraud. business of the debtor, the fact shall be prima facie evidence of fraud. Any contract, cove- nant, or security made or given by a bankrupt foX^r'op-'^^ other person with, or in trust for, any cred- posing void^^Qj. f^p securing the payment of any money as a consideration for or with intent to induce the creditor to forbear opposing the application for discharge of the bankrupt, shall be void ; and if any creditor shall obtain any sum of money or other goods, chattels, or security from any per- son as an inducement for forbearing to oppose, or consenting to such application for discharge, every creditor so offending shall forfeit all right to any share or dividend in the estate of the bank- rupt, and shall also forfeit double the value or amount of such money, goods, chattels, or se- curity so obtained, to be recovered by the assignee for the benefit of the estate. " Reasonable cause," &C. Mortgagee knew that a prior mortgage existed ; tliat debtor was unable to pay his employees at his mill. Held sufficient to show cause to believe. Also that mort- gage being a conveyance not in regular course of business, was prima facie evidence of fraud. Tuttle v. Truax, assignee, Minn., B.R., l,if^ fC^ A general assignment, untainted by fraud, and when bank- rupt had no intention of taking bankrupt discharge, valid. Sedg- wick, assignee, o. Place, S. D. N. T., B. R, 1, 204. Where creditor loaned money on chattel mortgage open- ing account for his money in the name of and subject to the check of third party knowing that the property taken was subject to lien already, that a judgment was pending over debtor, — Seldg suffi- BANKRUPTCY PRACTICE. g9 cient to show reasonable cause for believing debtor to be insol- vent. Merchant's N. Bank of Hastings v. Truax, &c., Minn., 1 BANKEITPTCT OF PAETNEESHIPS AND CORPO- EATIONS. ' Petition by SEC. 36. And he it further enacted, That where ^ two or more persons who are partners in trade ^•'o'"- shall be adjudged bankrupt, either on the petition g^O'l^D^ of such partners or any one of them, or on the pe- ^- ^•' ^• tition of any creditor of the partners, a warrant ■,va„^t shall issue in the manner provided Iby this act, ^ *^' upon which all the joint stock and property of the copartnership, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as are hereinbefore excepted ; and all the creditors of the company, and the sepa- debS. §§ w, rate creditors of each partner, shfill be allowed to ' prove their respective debts : and the assignees Assignee ^ jr. ? o jjQ^ chosen shall be chosen by the creditors of the company, and duties, and shall also keep separate accounts of the joints j.^ ^j ^s stock or property of the copartnership and of the separate estate of e ach member thereof ; and after deducting out of the whole amount received by such assignee the whole of the expenses and dis- bursements, the net proceeds of the joint stock shall be appropriated to pay the creditors of the copartnership, and the net proceeds of the sepa- rate estate of each partner shall be appropriated orTduors. to pay his separate creditors ; and if there shall be any balance of the separate estate of any part- ner, after the payment of his separate debts, such balance shall be added to the joint stock for the payment of the joint creditors ; and if there shall be any balance of the joint stock after pay- ment of the joint debts, such balance shall be di- vided and appropriated to and among the separate estates of the several partners, according to their 60 BAl^KRUPTCT PRACTICE. Discharge. respective right and interest therein, and as it would have been if the partnership had been dis- solved without any bankruptcy ; and the sum so appropriated to the separate estate of each part- ner shall be applied to the payment of his separate debts ; and the certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings had been against him alone under this act ; and in all other respects the proceedings against partners shall be Preceding couducted iu the like manner as if they had been provisions ■' applied, commenced and prosecuted against one person alone. If such copartners reside in different dis- Different tricts, that court in which the petition is first filed districts. s]iall retain exclusive jurisdiction over the case. A firm can be adjudicated only under general order 18. A voluntary petition subsequent to an erroneous adjudication of the firm, petitioner not having assented or been notified, taken as as- sent so as to validate former adjudication. Lewis, S. D. iV. Y., B. R., 1, 19. ' Two partners of dissolved firm residing in diflferent dis- tricts must each file petition, then follow this section. Where peti- tioner states that all partners are bankrupt, all must be brought in under general order 18 before discharge. Prankard, S. D. N. Y,, B. iJ., 1, 51. Joint estate, distribution, &c. Byrne, cited su5 § 27. Where a petition requires adjudication of a firm, all the partners must be brought iu under G. 0. 18, or no discharge can be granted. Little, S. D. N. Y, B. R., 1, 74. Unless petition requests adjudication of firm, other part- ners cannot have leave to join. Boylan, S. D. N. Y, VI. Int. Rev. Rec, 28. Corpora- tions may petition. Form 3. SEC. 37. And be it furtJier enacted, That the provisions of this act shall apply to all moneyed, business, or commercial corporations and joint- stock companies, and that upon the petition of any officer of any such corporation or company, duly authorized by a vote of a majority of the corporators present at any legal meeting called for the purpose, or upon the petition of any cred- BANKEUPTCY PEACTICB. Ql itor or creditors of such corporation or company, made and presented in tlie manner hereinafter pro- vided in respect to delators, the like proceedings prscejin!? shall be had and taken as are hereinafter provided Applied!''' in the case of debtors ; and all the provisions of Duties of this act which apply to the debtor, or set forth hisSorporauIn duties in* regard to furnishing schedules and in- ventories, executing papers, submitting to exam-N. Y.,i. ' inations, disclosing, making over, secreting, con- cealing, conveying, assigning, or paying away his money or property, shall in like manner, and with like force, effect, and penalties, apply to each and every officer of such corporation or company in re- lation to the same matters concerning the corpora- tion or company, and the money and property thereof. All payments, conveyances and assign- yg^^ ^^^J^_ ments declared fraudulent and void by this act*'^"''- when made by a debtor, shall in. like manner, 535. and to the like extent, and with like remedies, be fraudulent and void when made by a corpo- ration or company. No allowance or discharge shall be granted to any corporation or joint- stock company, or to any person or officer or member thereof: provided, that whenever any corporation by proceedings under this act shall be declared bankrupt, all its property and assets shall be distributed to the creditors of such cor- poration in the manner provided in this act ia respect to natural persons. OF DATES AND DEPOSITIONS. SEC. 38. And he it further enacted, That the filing of a petition for adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor, upon which an order ^^en pro- may be issued by the court, or by a register in the^^^eK manner provided in section four, shall be deemed 62 BANKRUPTCY PRACTICE. and taken to be the commencement of proceed- ings in bankruptcy under this act ; the proceedings in all cases in bankruptcy shall be deemed mat- freSsre ters of record, but the same shall not be req^uired ot record. ^^ ^^ recorded at large, but shall be carefully filed, kept, and numbered in the oflBice of the clerk of the court, and a docket only, or short memo- randum thereof, kept in books to be provided for that purpose, which shall be open to public in- spection. Copies of such records, duly certified under the seal of the court, shall in all cases be records to primafacie evidence of the facts therein stated. Evidence or examinations in any of the proceed- Examina- ings uudcr tMs act may be taken before the court, tions, how 'D J ; tobe taken. or a register in bankruptcy, viva voce, or in writ- ss 5 7 22 ^^ before a commissioner of the circuit court, or 26,«. G. iby affidavit, or on commission, and the court may Reference ^ircct a reference to a register in bankruptcy, or ^^Ki^ "" other suitable person, to take aitd certify such ex- amination, and may compel the attendance of vsdt- miy"b?" nesses, the production of books and papers, and compelled. )^t^q giviug of testimony, in the same manner as in ^5 1,4, 6, 7. g^j^g jjj^ equity in the circuit court. INVOIiTJNTAEr BANKRUPTCY. Who may SEC. 39. Aiid he it further enacted, That any beadj^Tdg- person residing and owing debts as aforesaid, who, ™p'- after the passage of this act, shall depart from the State, district, or Territory, of which he is an inhabitant, vrith intent to defraud his creditors, or being absent, shall, with such intent, remain ab- sent ; or shall conceal himself to avoid the service j._ 55. of legal process in any action for the recovery of a debt or demand provable under this act ; or shaU conceal and remove any of his property to avoid its being attached, taken, or sequestered on legal process ; or shall make any assignment, gift, sale. BANKEUPTCT PRACTICE. 63 conveyance, or transfer of his estate, property, rights, or credits, either within the United States or elsewhere, with intent to delay, defraud, or hin- der his creditors ; or who has been arrested and held in custody under or by virtue of mesne pro- cess or execution, issued out of any court of any State, district, or Territory, within which such debtor resides or has property, founded upon a demand in its nature provable against a bank- rupt' s estate under this act, and for a sum exceed- ing one hundred dollars, and such process is re- maining in force and not discharged by payment, or in any other manner provided by the law of such State, district, or Territory applicable thereto, for a period of seven days ; or has been actually imprisoned for more than seven days in a civO. ac tion, founded on contract, for the sum of one hun- dred doUars or upwards ; or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money, or other property, estate, rights, or credits, or give any warrant to confess judgment, or procure or suifer his property to be taken on legal process, with in- tent to give a preference to one or more of his cred- itors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, .by such disposi- tion of his property, to defeat or delay the opera- tion of this act ; or who, being a banker, merchant, or trader, has fraudulently stopped or suspended and not resumed payment of his commercial pa- per, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy, and, subject to the conditions hereinafter pres- ^^^^ g^ cribed, shall be adjudged a bankrupt, on the peti- ^'' '^• tion of one or more of his creditors, the aggregate Raies.n. of whose debts provable under this, act amount^' ^■'''' 64 BANKRUPTCY PRACTICE. to at least two hundred and fifty dollars, provided such, petition is brought within six months after the act of bankruptcy shall have been commit- dnuS^"'" ted. And if such person shall be adjudged a bankrupt, the assignee may recover back the money or other property so paid, conveyed, sold, assigned, and transferred contrary to this act, pro- vided the person receiving such payment or con- veyance had reasonable cause to believe that a fraud on this act was intended, or that the debtor was insolvent, and such creditor shall not be al- lowed to prove his debt in bankruptcy. Objection that petitioning creditor represented no provable claim, takes precedence of the petition in decision. Moore, S. D. 0,, B. R, 1, 123. Petition must specify facts, days, &c., particularly. Cone, &c., S. D. N. Y., N. T. Times, Aug. 1, 1868. Creditor's petition may be amended after argument, and before judgment Waite, &o., invol., 2fass., B. JR., 1, 84 ; Craft, S. D. N. Y., B. R., 1, 89 ; Houghton, S. D. N. Y., B. R, 1, 121. One that was filed before June 1, 1867, permitted to be amend- ed as a matter of form only, not as to matters of substance not new to creditors. Crowley, N. D. N. Y., B. R., 1, 137. " Intent to delay," A question of fact to be proved. Mo- tives established by res gtsim. " His father had a debt that would sweep off everything," proves insolvency. Unnecessary to show that a suspension or stoppage of payment was fraudulent. What evidence sufficient to establish. " Conveyance, with intent to de- lay, hinder, and defraud." " Preference by insolvent." " Suspen- sion for fourteen days." Cowles, invol., Minn., B. R., 1, 43. Conveyance with intent to delay, &c. insolvency not an element here. Dunham, &o., B. R., 2, 10. A mortgage of entire stock, if debtor be solvent, and not in contemplation of insolvency, not such. Id. An instrument in writing, but unstamped, is void, and cannot be received in evidence of such a charge. Id, Giving a mortgage upon whole stock, to secure a note coming due (which the debtor is unable to pay), is an act tending to delay creditors and to give a preference. Waite, Mass., B. R., 1, 84. No conclusive presumption tjiat general assignment made before June, 1867, for benefit of creditors, was made to delay or hinder them. Intent to delay one creditor, not int«nt contemplat- ed. Claflin V. Wells, N. D. N. Y., Int. Rev, Rec., VI., 181. BANKRUPTCY PRACTICE. Where no intent to defraud creditors, or to prevent property- reaching assignee, assignment not act of bankruptcy. Sedgwick, &o., V. Place, S. D. N. T., B. R., 1, 204. " His creditors." All, not all but one. Claflin v. Wells, N. D. N. Z, Int. Rev. Rec, VI., 181 ; Dunham, &c., S. D. N. Y., B. R., 2, 10. Contrary. Langley, S. D. 0., B. R., 1, 155. " Suffer ," mere passiveness, or failure to file a voluntary pe- tition when insolvent, and being sued, implies pressure, and is dis- tinguishable from " procure." Herein decisions under Acts of 1801 and 1841, and of England, not applicable. And : " Contemplation of insolvency." Knowledge of inabili- ty to pay debts as they accrue, distinguished from " contemplation ofbanhruptcy," which is an intention to do some act specified as an act of bankruptcy, as to file a petition. Black v. Secor, S. D. N. Y., B. R., 1, 81; Craft, S. £>. iV. Y, B. B., 1, 90. Suffering a sale from inability to prevent, not an act of bankruptcy, although thereby creditor may be preferred. As sale by trustees under Internal Improvement Act of Florida. Florida, &c. Railroad Co., N. D. Fla., B. R, 1, 196. Suffering property to be taken on fictitious judgment. Schick, S. D7N.Y.,Int.Rev. Rec., VI., 183. A person must be understood to intend the necessary consequences of his acts. Black, &c., S. D. N. Y., B. R., 1, 181. Confession of judgment, and suffering property to be taken on legal process, being insolvent, an act of bankruptcy. Craft, S. D. N. Y, B. R., 1, 89. When person permitted his property to be taken on legal process, he being insolvent, he must be presumed to intend to give a preference. Haughton, S. D. N. Y, B. R., 1, 121. Sheriff unable to find debtor to serve summons. Others un- able to serve order for examination. Friends say debtor has gone West, but refuse to state where. Verdict by jury against creditor, that he had committed act of bankruptcy. Brock v. Hoppock, S.D.N. Y.,B.R.,2,2. tive days between the doing an act and the filing of a peti- tion in bankruptcy sufficient to raise presumption of its being done in contemplation of bankruptcy. Byrne, W. D. Pa., B. R., 1, 122. A warrant to confess judgment. The facts and character of debtor's business negativing idea oi intent to prefer, or to defeat and delay, insu£6cient to sustain petition. Leeds, K D. Pa., B. R., 1, 138. Stoppage or suspension for fourteen days need not be fraudulent. Wells, JST. D..N. Y, Int. Rev. Rec, VI., 181. Suspension and non-resumption for fourteen days must be fraudulent to constitute act of bankruptcy, but the act \sprima facie evidence of fraud. Jersey City Window Glass Co., N. J., B. R., 1, 113. 5 66 BANKRUPTCY PRACTICE. Suspension for fourteen days, unaccompanied by fraud, is not an act of bankruptcy. Fraud must be shown by facts. Leeds, E. D. Pa. B.R., 1, 138; Cone, &c., S.-D. N. Y., B. R., 2, 10. Proceedings hereunder, on apphcation of all (but one) proved claims dismissed, vacated, and annulled. Marshal directed to re- deliver property. Application made to register. Miller, Tf. D. Pa., B. R., 1, 106. Fees to be paid by creditors until sufficient estate, §§ 4, 47 ; G. 0. 29. In Pennsylvania, before adjudication, creditors deposit $50, and give bonds in §150. B. R., 1, 147. Same exemptions as under voluntary petition. Ellis, E. D. Mo., B. R., 1. 154. cottlto SEC. 40. Andieit further enacted, THhsiiu-^on petitioiof t^® filing of tlie petition autliorized. by the next motA'dITp- preceding section, if it shall appear that sufficient eSowMMe grounds exist therefor, the court shall direct the shouid°not entry of any order requiring the debtor to ap- baSp"'' pear and show cause, at a court of bankruptcy to *'"■ be holden at a time to be specified in the order, G.0.16. not less than five days from the service thereof, Gio.i.s, why the prayer of the petition should not be Injunction, granted ; and may also, by its injunction, restrain the debtor, and any other person, in the meantime, from making any transfer or disposition of any of the debtor' s property not excepted by this act from the operation thereof and from any interference Tn^ilht therewith ; and if it shall appear that there is ^"■jI"^ ^1^1^ probable cause for believing that the debtor is about to leave the district, or to remove or conceal his goods and chattels or his evidence of property, or make any fraudulent conveyance or disposition thereof, the court may issue a warrant to the marshal of the district, commanding him to arrest the alleged bankrupt and him safely keep, unless he shall give bail to the satisfaction of the court for his appearance from time to time, as required by the court, until the decision of the court upon the petition or the farther order of the court, and forthvnth to take possession provisionally of all BANKRUPTCY PRAOTIOE. 67 the property and effects of the delotor, and safely keep the same until the further order of the court. A copy of the petition and of such order to show cause shall Tbe served on such debtor by delivering ^^'™^" the same to him personally, or leaving the same at Form 59. his last or usual place of abode ; or, if such debtor cannot be found, or his place of residence ascer- tained, service shall be made by publication, in such manner as the judge may direct. No further proceedings, unless the debtor appear and consent g"^s.^i). thereto, shall be had until proof shall have been given, to the satisfaction of the court, of such ser- vice or publication; and if such proof be not given on the return day of such order, the pro- ceedings shall be adjourned and an order made that the, notice be forthwith so served or pub- lished. Injunction ■will not be dissolved until decision arrived at. Metzler » ^^^^ cation in the manner hereinbefore provided for the service of the order to show cause ; and if the**-^"^^' bankrupt is absent, or can not be found, such schedule and inventory shall be prepared by the messenger and the assignee from the best informa- tion they can obtain. If the petitioning creditor petitioning shall not appear and proceed on the return day, app^earLg? or adjourned day, the court may, upon the petition of any other creditor, to the required amount, " proceed to adjudicate on such petition, without requiring a new service or publication of notice to the debtor. After adjudication too late to move to set aside adjudica- tion and settle with debtor. Trustees, under § 43, the only way then. Sherburne, K D. Mo., B. R., 1, 155. SUPEKSEDINa THE BANKEUPT PEOOEEDIlirGS BY AEBAWaEMENT. SEC. 43. ATid he it further enacted, That if j^rce at the first meeting of creditors, or at any meeting ^»^;*''^j.*" of creditors to be specially called f6r that purpose, ^ay nomiu- and of which previous notice shall have been *** *"'='*^' given for such length of time and in such manner j-.es. as the court may direct, three fourths in value of the creditors whose claims shall have been proved 70 BANKEUPTCT PRACTICE. shall determine and resolve that it is for tlie inte- rest of the general body of the creditors that the estate of the bankrupt should be wound up and settled, and distribution made among the creditors by trustees, under the inspection and direction of a committee of the creditors, it shall be lawful for the creditors to certify and report such resolution to the court, and to nominate one or more trustees to take and hold and distribute the estate, under the direction of such committee. If it shall appear to the court, after hearing the bankrupt and such creditors as may desire to be heard, that the reso- lution was duly passed and that the interests of the creditors will be promoted thereby, it shall con- firm the same ; and upon the execution and filing by or on behalf of three-fourths in value of all the creditors whose claims have been proved of a con- sent that the estate of the bankrupt be wound up and settled by said trustees according to the terms of such resolution, the bankrupt, or his assignee Property to lu bankruptcy, if appointed, as the case may be, eltotS shall, under the direction of the court, and under oath, convey, transfer, and deliver all the property and estate of the bankrupt to the said trustee or trustees, who shall, upon such conveyance and transfer, have and hold the same in the same man- ner, and with the same powers and rights, in all respects, as the bankrupt would have had or held the same if no proceedings in bankruptcy had been taken, or as the assignee in bankruptcy would have done had such resolution not been passed ; and such consent and the proceedings Bindin on thcreuuder shall be as binding in all respects on a}]^^™bieany creditor whose debt is provable, who has not signed the same, as if he had signed it, and on any creditor, whose debt, if provable, is not proved, as if he had proved it ; and the court, by order, shall direct all acts and things needful to be done to BANKRUPTCY PRACTICE. 71 carry into effect such, resolution of the creditors, and the said trustees shall proceed to wind up and settle the estate under the direction and in- spection of such committee of the creditors, for the equal benefit of all such creditors ; and the wind- ing up and settlement of any estate under the pro- be^pro^ea- visions of this section shall be deemed to be pro- ISruptcy ceedings ia bankruptcy under this act; and the said trustees shaU have all the rights and powers of assignees in bankruptcy. The court, on the ap- ^''""""^ plication of such trustees, shall have power to §§6, 7, 22, summon and examine, on oath or otherwise, the ' bankrupt, and any creditor, and any person in- g. 0.10. debted to the estate, or known or suspected of hav- ing any of the estate ia his possession, or any other person whose examination may be material or necessary to aid the trustees in the execution of their trust, and to compel the attendance of such persons and the production of books and papers in the same manner as in other proceedings in bankruptcy under this act ; and the bankrupt shall have the like right to apply for and obtain a^'^''''"^^- discharge after the passage of such resolution and 5 29. the appointment of such trustees as if such reso- lution had not been passed, and as if aU the pro- ceedings had continued in the manner provided in the preceding sections of this act. If the resolution shall not be duly reported, or the consent of the creditors shall not be duly filed, or if, upon its fil- ing, the court shall not think fit to approve thereof, the bankruptcy shall proceed as though no reso- lution had been passed, and the court may make all necessary orders for resuming the pro- ceedings. And the period of time which shall have elapsed between the date of the resolution and the date of the order for resuming proceedings shall not be reckoned in calculating periods of time prescribed by this act. 72 BANKRUPTCY PRACTICE. PENALTIES AGAINST BANKRUPTS. de?Sa°o°; SEC. 44. Andheit further enacted, ThsA from orbaSpt^^^ after the passage of this act, if any debtor or bankrupt shall, after the commencement of pro- ceedings in bankruptcy, secrete or conceal any property belonging to his estate, or part with, con- ceal, or destroy, alter, mutilate, or falsify, or cause to be concealed, destroyed, altered, mutUated, or falsified, any book, deed, document, or writing re- lating thereto, or remove, or cause to be removed, the same, or any part thereof, out of the district, or otherwise dispose of any part thereof, with in- tent to prevent it from coming into the possession of the assignee in bankruptcy, or to hinder, im- pede, or delay either of them in recovering or re- ceiving the same, or make any payment, gift, sale, assigment, transfer, or conveyance of any property belonging to his estate, with the like intent, or shall spend any part thereof in gaming, or shall, with intent to defraud, willfully and fraudulently con- ceal from his assignee, or omit from his schedule any property or effects whatsoever ; or if, in case of any person having, to his knowledge or belief, proved a false or fictitious debt against his estate, he shall fail to disclose the same to his assignee within one month after coming to the knowledge or belief thereof ; or shall attempt to account for any of his property by fictitious losses or expenses ; or shall, within three months before the commence- ment of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels with intent to defraud, or shall, with intent to de- fraud his creditors, within three months next be- fore the commencement of the proceedings in bank- BANKRUPTCY PRACTICE. 73 ruptcy, pawn, pledge, or dispose of, otlier tlian by lona fide transactions in tlie ordinary way of Ms trade, any of Ms goods or chattels wMch have "been obtained on credit and remain unpaid for, lie shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of the United States, shall be punished by imprisoment, with or how pun- without hard labor, for a term not exceeding three '* years. PENALTIES AGAINST OEEICEBS. SEC. 45. And le it furtTier enacted, That if offenses of any judge, register, clerk, marshal, messenger, "ng'toeun- assignee, or any other officer of the several courts of bankruptcy shall, for anything done or pre- tended to be done under this act, or under color of doing anything thereunder, willfuUy demand or take, or appoint or aUow any person whatever to take for him or on his account, or for or on ac- count of any other person, or in trust for him or for any other person, any fee, emolument, gratuity, sum of money, or anything of value whatever, other than is allowed by this act, or which shall be allowed under the authority thereof, such per- son, when convicted thereof, shall forfeit and paypunish- the sum of not less than three hundred dollars andof "* ^^^^^' not exceeding five hundred dollars, and be impris- oned not exceeding three years. SEC. 46. And be it further enacted. That If Forgery of any person shall forge the signature of a judge, of officers register, or other officer of the court, or shall forge """"^terfeit. n ms seal or or counterfeit the seal of the courts, or knowing-lyJooiments X, J. -, i J. -i . ° "^ tobefelony concur m using such forged or counterfeit signa- ture or seal for the purpose of authenticating any proceeding or document, or shall tender in evi- dence any such proceeding or document with a 74 BANKRUPTCY PEACTICB. false or counterfeit signature of any such judge, register, or other officer, or a false or counterfeit seal of the court, subscribed or attached thereto, knowing such signature or seal to be false or coun- terfeit, any such person shall be guilty of felony, ifihJaf™' and upon conviction thereof, shall be liable to a fine of not less than five hundred dollars, and not more than five thousand dollars, and to be impris- oned not exceeding five years, at the discretion of the court. TEES AND COSTS. SEC. 47. And lie it further enacted, That in G!^fi";29,each case there shall be allowed and paid, iu addi- 80. % 4, 6. ^-jjj^ ^Q ^^ £ggg q£ ^j^g clerk of the court as now es- G. o. 30. tabUshed by law, or as may be established by general order, under the provisions of this act, for fees in bankruptcy, the following fees, which shall be applied to the payment for the services of the register : — For issuing every warrant, two dollars. For each day ia which a meeting is held, three dollars. For each order for a dividend, three dollars. For every order substituting an arrangement by trust deed for bankruptcy, two dollars. For every bond vrith sureties, two dollars. For every application for any meeting in any matter under this act, one dollar. For every day' s service while actually employed under a special order of the court, a sum not ex- ceeding five dollars, to be allowed by the court. For taking depositions the fees now allowed by law. For every discharge when there is no opposition, two dollars. BANKRUPTCY PRACTICE. 75 Sucli fees stall have priority of payment over all other claims oiit of the estate, and before a war- rant issues the petitioner shall deposit vrith the clerk, fifty dollars as security for the payment thereof ; and if there are not sufficient assets for the payment of the fees, the person upon whose petition the warrant is issued shall pay the same, and the court may issue an execution against him to compel payment to the register. Before any dividend is ordered, the assignee ^^.^^^^^^j ^ shall pay out of the estate to the messenger the fol- o- 12,29, so. lowing fees, and no more : — First. For service of warrant, two doUars. Second. For all necessary travel, at the rate of five cents a mile each way. Third. For each written note to creditor named in the schedule, ten cents. Fourth. For custody of property, publication of notices, and other services, his actual and neces- sary expenses upon returning the same in specific items, and making oath that they have been ac- - tually incurred and paid by him, and are just and reasonable, the same to be taxed or a(^usted by the court, and the oath of the messenger shall not be conclusive as to the necessity of said expenses. Oatli not conclusive. For cause shown, and upon hearing thereon, such further allowance may be made as the court, in its discretion, may determine. The enumeration of the foregoing fees shaU not3^"anoe.°''' prevent the judges, who shall frame general rules and orders in accordance with the provisions of section ten, from prescribing a tariff of fees for all other services of the officers of courts of bankrupt- cy, or from reducing the fees prescribed in this section in classes of cases to be named in their rules and orders. 76 BANKRUPTCY PRACTICE. Questions may be raised by exception or by certificate. Sherwood, E. Pa., B. R., 1, 74. Fees provided for advertising notices. Kew Yorh Times to receive for notices by marshal, $5 ; by assignee, $5 ; by clerk, $7. Commercial Advertiser, for marshal and assig- nee's notices, $4.25 each, and for clerk's notices, $6, being for three publications, once a week. Rule S. D. N. T., Int. Rev. Rec, VI., 206. [If the attorney's name be added, an additional charge is made. —Ed.] A meeting for examination of bankrupt, $3. Clark, K D. K Y., Int. Rev. Rec, VI., 206. Register's traveling fees, in an unopposed case, limited to $12, though he may have expended more; and only three jour- nies, although he may have made more. Sherwood. E. D. Pa., B. R., I, 75. " Special orders" are those notspecifically required by the Act to be done by the register. One not entered, of course, in every case. Form 4 is not a special order. Sherwood, E. D. Pa., B. R., 1, 74 ; Dean, Ky., 1, B. R., 22 ; Bellamy, 5: D. N. Y., Int. Rev. Rec., VI., 141 ; Robinson, S. D. N. Y., B. R, 1, 40. Register. Not allowed. $5 for examining petition and sche- dules ; certifying the same. Meeting for adjudication under order. Form 4. Forty-five cents for certified copy of any paper. G. 0. 30 exceeds the power of the justices. Pee bill of 1853 allows ten cents per folio for copy, and fifteen cents per folio for certificate. For this paper, therefore, the charge is to be thirty-five cents. Nor for certified list of creditors who have proved their debts, unless dividend has been ordered. Nor for choice of assignee, F. 15. Nor for order and notice to him. Nor for making transfer of estate, and only $1 for application for second and third meetings. Nor allowed for application for final meeting, when allowed for second and third. Nor more than $3 for attending second and third meetings. Nor more than twenty cents per folio for deposi- tions upon final examination. Nor for stationery, postage, inci- dental expenses, clerk hire, &c., and generally is entitled only to fees expressly allowed by law. The register is not entitled to the same fees as clerk for similar services in addition to his other fees. Dean, Ky., B. R., 1, 26. Same, and charges for application for first meeting ; certified list of creditors to warrant ; order to show cause, and copy to clerk disallowed ; and except that the order of reference on petition for discharge is a special order, and register entitled to $5 for meeting on return day, and $5 for examination of bankrupt, and proceed- ings, instead twenty cents per folio. Robinson, 8. D. N. Y., B.R.,\,4a. Clerk. Allowed for filing and entering papers, ten cents each, and also fifteen centy the Register. Whenever an order is made by a register in any proceeding in which notice is required to be given to either party before the order can be made, the fact that the notice was given, and the substance of the evidence of the manner in which it was given, shall be recited in the preamble to the order, and the fact also stated that no adverse interest was represented at the time and place appointed for the hearing of the matter upon such notice ; and whenever an order is made where adverse interests are represented before the register, the fact shall be stated that the opposing parties consented thereto, or that the adverse interest represented made no opposition to the granting of such order. IX. — Notiflcation to Assignee of Ms Appointment. It shall be the duty of the register, immediately upon the appointment of an assignee, as prescribed in sections 12 and 13 of the act (should he not be present at such meeting), to notify him by personal or mail service of his appointment; and in such notification the assignee so appointed shall be re- quired to give notice forthwith to the court or register of his acceptance or rejection of the trust. X. — Testimony — How Taken. The examination of witnesses before a register in bankruptcy may be conducted by the party in person, or by his counsel or attorney, and the witnesses shall be subject to examination and cross-examination, which shall be had in conformity with the mode now adopted in courts of law. The depositions upon such examination shall be taken down in writing by the register in the form of narrative, unless he determines that the examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the register. Any question or questions which may be objected to shall be noted by the register upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the question ; and the court shall have power to deal with the costs of incompetent, immate- rial, or irrelevant depositions, or parts of them, as may be just. In case of refusal of a witness to attend, or testify before a register, the same proceed- ings may be had as are now authorized with respect to witnesses to be produced on examination before an examiner of any of the courts of the United States on written interrogatories. XI. — Minutes Before Register — Filin ; etc. A memorandum made of each act performed by a register shall be in suitable form, to be entered upon the minute-book of the court, and shall bo BANKRUPTCY PRACTICE. 87 forwarded to the clerk of the court not later than by mail the next day after the act has been performed. Whenever an issue is raised before the register in any proceedings, either of fact or law, he shall cause the same to be stated in writing in the manner required by the 4th and 6th sections of the act, and certify the same forthwith to the district judge for his decision. The pendency of the issue undecided before a judge shall not necessarily sus- pend or delay other proceedings before the register or court in the case. XII. — Accounts for Services of Register and Marshal. Every register shall keep an accurate account of his traveling and inci- dental expenses, and those of any clerk or other officer attending him in the performance of his duties in any case or number of cases which may be re- ferred to him ; and shall make return of the same under oath, with proper vouchers (when vouchers can be procured), on the first Tuesday in each month ; and the marshal shall make his return, under oath, of his actual and necessary expenses in the service of every warrant addressed to him, and for custody of property, publication of notices, and other services, and other actual and necessary expenses paid by him, with vouchers therefor when- ever practicable, and also with a statement that the amounts charged by him are just and reasonable. XIII. — MarsTial as Messenger. It shall be the duty of the marshal as messenger to take possession of the property of the bankrupt, and to prepare, within three days from the time of taking such possession, a complete inventory of all the property, and to return it as soon as completed. The time for making the inventory and return may be enlarged, under proper circumstances, by special order of the district court. He shall also, in case the bankrupt is absent, or cannot be found, prepare a schedule of the names and residences of his creditors, and the amount due to each, from the books or other papers of the bankrupt that may be seized by him under his warrant, and from any other sources of information ; but all statements upon which his return shall be made, shall be in writing, and sworn to by the parties making them, before one of the registers in bankruptcy of the court, or a commissioner of the courts of the United States. In cases of voluntary bankpuptcy, the marshal may ap- point special deputies to act, as he may designate, in one or more oases, as messengers, for the purpose of causing the notices to be publislied and served as required in the 11th section of the act, and for no other purpose. In giving the notices required by the third subdivision of the 11th section of th^ act, it shall be sufiScient to give the names, residences, and the amount of the debts (in figures) due the several creditors so far as known, and no more. 88 BANKRUPTCY PRACTICE. XIV. — Petitions and Amend/menis. All petitions, and the schedules filed therewith, shall be printed, or writ- ten out plainly, and without abbreviation, or interlineation, except where such abbreviation or interlineation may be for the purpose of reference; and whenever any amendments are allowed, they shall be written and signed by the petitioner on a separate paper, in the same manner as the original schedules were signed and veriiied ; and if the amendments are made _to diflerent schedules, the amendments to each schedule shall be made sep- arately, with proper reference to the schedule proposed to be amended, and each amendment shall be verified by the oath of th« petitioner in the same manner as the original schedules. XV. — Priority of Actions — {Involuntary Bankruptcy). Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bankruptcy committed by said debtor on different days within six months prior to the filing of said pe- titions, and the debtor shall appear and show cause against an adjudication of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commission of the earliest act of bankruptcy ; and in case the several acts of bankruptcy are alleged in the different pe- titions to have been committed on the same day, the court before which the same are pending may order them to be consohdated, and proceed to a hear- ug as upon one petition ; and if an adjudication of bankruptcy be made upon either petition, or for the commission of a single act of bankruptcy, it shall not be necessary to proceed to a hearing upon the remaining petitions unless proceedings be taken by the debtor for the purpose of causing such adjudication to be annulled or vacated. XVI. — Filing Petitions in different Districts. In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicil; and such petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions ; and in case of two or more petitions against the same firm in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions; and in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the pe- tition first heard ; and the court which makes the first adjudication of bank- ruptcy shall retain jurisdiction over all proceedings therein until the same BANKEUPTCT PRACTICE. 89 shall be closed. In case two or more petitioins for adjudication of bank- ruptcy shall be filed in different districts by different members of the same copartnership for, an adjudication of the bankruptcy of said copartnership, the court in -which the petition is first filed, haying jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shaE be closed ; and if such petitions shall be filed in tlie same district action shall be first had upon the one first fiied. XVII. — Concerning Redemptions of Property and Com- pounding Claims. Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and discharge any mortgage, or other pledge, or deposit, or lien upon any property, real or personal, or to relieve said property from any conditional contract, and to tender performance of the conditions thereof, or to compound any debts, or other claims, or securities due or helonging to the estate of the bankrupt, the assignee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor in the ofi&ce of the clerk of the district court j and thereupon, the court shall appoint a, suitable time and place for the hearing thereof, notice of which shall Tje given in some newspaper, to be designated by the court, at least ten days before the hearing, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition, authorizing such act on the part of the assignee. XVm. — Proceedings in Case of Copartnerships. In case one or more members of a copartnership refuse to join in a peti- tion to have the firm declared bankrupt, the parties refusing shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of ,the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition,and to make proof, if he can, that the copartnership is not insolvent, or has not committed an act of bankruptcy, and to take all other defenses which any debtor proceeded against is entitled to take by the provisions of the act ; and in case an adjudication of bankruptcy is made upon the peti- tion, such copartner shall be required to furnish to the marshal, as messen- ger, a schedule of his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudica- tion of bankruptcy shall be made. 90 BANKRUPTCY PKACTICE. XIX. — Duties of Assignees. The assignee shall, immediately on entering upon his ■ duties, prepare a complete inventory of all the property of the bankrupt that comes into his possession ; and all sales of the same shall be by public auction, unless other- wise ordered by the court. Every assignee shall keep full, exact and regii- lar books of account of all receipts, payments, and expenditures of money by him, and shall make report to the court, vrithin twenty days after re- ceiving the deed of assignment, of the articles set off to the bankrupt by him, according to the provisions of the 14th section of the act, with the esti- mated value of each article, and any creditor may take exceptions to the de- termination of the assignee within twenty days after the filing of the report XX. — Composition with Creditors — {ArMtration). Whenever an assignee shall make application to the court for authority to submit a controversy arising in the settlement of demands against the bankrupt's estate, or of debts due to it, to the determination of arbitrators, or for authority to compound and settle such controversy by agreement with the other party, the subject-matter of the controversy and the reasons why the assignee thinks it proper and most for the interest of the creditors that it should be settled by arbitration or otlierwise, shall be set forth clearly and dis- tinctly in the application; and the court, upon examination of the same, may immediately proceed to take testimony and make an order thereon, or may direct the assignee to give notice of the application, either by publica- tion, or by mail, or both, to the creditors who have proved their cUiims, to appear and show cause, on a day to be named in the order and notice, why the application should not be granted, and may make such order thereon as may be just and proper. XXI. — jyisposal of Property hy Assignee. In making sales of personal property, the assignee shall give at least ten days' notice of the time and place of the sale, and of the articles to be sold, by advertisement in one or more newspapers, to be designated by the court or by a register, and by posted handbills, or otherwise, as he may think best for the interest of the estate, or as the court may order; and he shall give like notice of the sale of any real estate at least twenty days before such sale. Upon his application to the court, and for good cause shown, the as- signee may be authorized to sell any specified portion of the bankrupt's es- tate at private sale. The court, by order in special cases, may dispense with newspaper and handbill advertisements. In making sale of the fran- chise of a corporation, it may be offered in fractional parts, or in certain numbers of shares, corresponding to the number of shares in the bankrupt corporation. And in making sale of the real estate ot a bankrupt, the BANKRUPTCY PRACTICE. 91 assignee shall, unless otherwise ordered by the court, offer the same in lots or parcels, if it exists in separate parcels, in such manner as may be for the interest of the creditors of the estate. XXII. — Perishable Property. In all cases where goods or other articles come into possession of the messenger, or assignee, which are perishable, or liable to deterioration in value, the court may upon application, in its discretion, order the same to be sold, and the proceeds deposited in court. XKlll.— Service of Notice. The notice provided by the 18th section of the act, shall be served by the marshal, or his deputy, and notices to the creditors of the time and place of meeting provided by the section, shall be given through the mail by letter, signed by the clerk of the court. Every envelope containing a notice sent by the clerk or messenger shall have printed on it a direction to the postmaster at the place to which it is sent, to return the same within ten days unless called for. XXIV. — Opposition to Discharge. A creditor opposing the application of a bankrupt for discharge, shall en- ter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file his specification of the grounds of his opposition, in writing, within, ten days thereafter, unless the time shall be en- larged by order of the district court in the case, and the court shall there- upon make an order as to the entry of said case for .trial on the docket of the district court, and the time within which the same shall be heard and decided. XXV. — Second and Third Meeting of Creditors. Whenever any bankrupt shall apply for his discharge, within three months from the date of his being adjudged-a bankrupt under the provisions of the 29th section of the act, the court may direct that the second and third meetings of creditors of said bankrupt, required by the 27th and 28th sections of said act, shall be had on the day which may be fixed in the order of notice for the creditors to appear and show cause why a discharge should not be granted such bankrupt; and the notices of such meeting shall be suf- ficient if it be added to the notice to show cause, that the second and third meetings of said creditors shall be had before the register upon the same day 92 BANKEUPTCY PRACTICE. that cause may be shown against the discharge, or upon some previous day, or days. [In the southern district of New York second and third meetings are re- quired only where there are assets. B. R., 1, 2G.] XXYl.— Appeals. Appeals In equity from the district to the circuit court, and from the cir- cuit to the supreme court of the TJnited States, shall be regulated by the rules gOYcrning appeals in equity in the courts of the United States. Any supposed creditor who takes an appeal to the circuit court from the decision of the district court rejecting his claim, in whole or in part, according to the provisions of the 8th section of the act, shall give notice of his intention to enter the appeal within ten days from the entry of the final decision of the district court upon his claim ; and he shall file his appeal in the clerk's office of the circuit court within ten days thereafter, setting forth a statement in writing of his claim in the manner prescribed by said section ; and the assig- nee shall plead or answer thereto in like manner within ten days after the statement shall be filed. Every issue thereon shall be made up in the court, and the cause placed upon the docket thereof, and shall be heard and de- cided in the same manner as other actions at law. XXVII. — Imprisoned Debtor. If at the time of preferring his petition the debtor shall be imprisoned, the court, upon his application, may order him to be produced upon habeas corpus by the jailor or any officer in whose custody he may be, before the register, for the purpose of testifying in any matter relating to his bankrupt- cy, and if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may, upon like application, discharge him from such imprisonment. If the petitioner during the pendency of the proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the district court, upon his application, may issue a writ of habeas corpus to bring him before the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable, he shall be discharged; if not, he shall be re- manded to the custody in which he may lawfully be. Before granting the order for discharge, the court shall cause notice to be served upon the cred- itor, or his attorney, so as to give him an opportunity of appearing and being heard before the granting of the order. XXVIII. — Deposit and Payment of Moneys. The district court in each district shall designate certain national banks, if there are any within the judicial district, or if there be none, t^jen some other safe depository, in which all moneys received by assignees or paid intc BANKBUPTCr PRACTICE. 93 court in the course of any proceedings in bankruptcy shall be deposited ; and every assignee, and the clerk of said court, shall deposit all sums received by them severally, on account of any bankrupt's estate, in one designated de- pository, and every clerk and assignee shall make a report to the court of the funds received by him, and of deposits made by him, on the first Monday of every month. No moneys so deposited shall be drawn from such depository unless upon a check, or warrant, signed by the clerk of the court, or by an assignee, and countersigned by tlie judge of the court, or one of the regis- ters designated for that purpose,- stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or war- rant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be' forthwith made in a book kept for that purpose by the as- signee or the clerk ; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the case of each es- tate. A copy of this rule shall be furnished' to the depository so designated, and also the name of any register authorized to countersign said checks. 'XXl'K.-^Prepayment or Security of Fees. The fees of the register, marshal and elerk shall be paid or secured in all cases before they shall be compelled to perform the duties required of them by the parties requiring such service ; and, in the case of witnesses, their fees shall be tendered or paid at the time of the service of the summon.s or sub- poena, and shall include their traveling expenses to and from the place at which they must be summoned to attend. The court may order the whole, or such portion of the fees and costs in each cas^ to be paid out of the fund in court in such case, as shall seem just. XXX. — As to Fees and Costs. To the Clerh of the Court : — For each notice required to be sent by mail when signed by the clerk, ten cents; the postage to be prepaid by the party required to give such notice. To the Cleric and Register : — For evfery copy of any paper in proceedings in bankruptcy, twenty-five cents for certifying the same, and in addition thereto, ten cents for each folio of 100 words. To the Register: — For every order made where notice is required to be given, and for certifying copy of the same to the clerk, one dollar. For every certificate of question to be certified to the district judge, under the 4th and 6th sections of the act, one dollar. For every proof of debt, twenty-five cents; and where testimony is taken, the fees prescribed by law may be added. In cases wherethe debtor has no means, and makes* proof to the satis- faction of the court, that he is unable to pay the costs prescribed by the act, find these orders, the judge in his discretion may direct that the fees and costs . 94 BANKEUPTCT PEACTICE. therein sliall not exceed the sum required by the act to be deposited with the clerk. XXXI. — Costs in Contested Adjudications. In eases of involuntary bankruptcy, where the debtor resists an adjudi- cation, and the court, after hearing, shall adjudge the debtor a bankrupt, the petitioning creditor shall recover, to be paid out of the fund, the same costs that are allowed by law to a party recovering in a suit in equity ; and in case the petition shall be dismissed, the debtor may recover like costs from the petitioner. XXXII. — As to Forms and Schedules. The several forms specified in the schedules annexed to these orders for the several purposes therein stated, shall be observed and used with such alterations as may be necessary to suit the circumstances of any particular case. In all cases where, by the provisions of the act, a special order is re- quired to be made in any proceeding, or in any case instituted under the act in a district court of the United States, such order shall be framed by the court to suit the circumstances of the particular case ; and the forms, hereby prescribed, shall be followed, as nearly as may be, and so far as the same are applicable to the circumstances requiring such special order. In proceedings in equity,^nstituted for the purpose of carrying into effect the provisions of the act, or of enforcing the rights and remedies given by it, the rules of equity practice established by the supreme court of the United States, shall be followed as nearly as may be. In proceedings at law insti- tuted for the same purpose, the rules of the circuit court regulating the practice and procedure in cases at law, shall be followed as nearly as may be. XXXIII. — Omissions and Amendments. Whenever a debtor shall omit to state, in the schedules annexed to his petition, any of the facts required to be stated concerning his debts or his property, he shall state, either in its appropriate place in the schedules, or in a separate affidavit to be filed with the petition, the reason for the omission, with such particularity as will enable the court to determine whether to ad- mit the schedules as sufficient, or to require the debtor to make further efforts to complete the same according to the requirements of the law ; and in making any application for amendment to the schedules the debtor shall state under oath the substance of the matters proposed to be included in the amendment, and the reasons why the same had not been incorporated in his schedules as originally filed, or as previously amended. In hke manner he may correct any statement made during the course of his ex- amination. FOEMS m BANKHUPTCY. Ji^orm No. 1. PETITION BT DEBTOR. To the Honorable , Judge of the District Court of the United States, for the District of : — The Petition of , of the of in the county of , and State of , and district afore- said, respectfully represents : — That he has for months next immediately preceding the filing of this petition, at , within said judicial district; that he owes debts exceeding the amount of three hundred dollars, and is unable to pay all of the same in full; that he is willing to surrender all his estate and effects 'for the ben- efit of his creditors, and desires to obtain the benefit of the act entitled '• An act to establish a Uniform System of Bankruptcy throughout the United States," approved March 2, 1867 : That the schedule hereto annexed, marked A, and verified by your pe- titioner's oath, contains a full and true statement of all his debts, and (so far as it is possible to ascertain) the names and places of residence of his credi- tors, and such further statements concerning said debts as are required by the provisions of said act : That the schedule hereto annexed, marked B, and verified by your pe- titioner's oath, contains an accurate inventory of all his estate, both real and personal, assignable under the provisions of said act : — Wherefore, Tonit petitionee prats, that he may be adjudged by the court to be a bankrupt, within the purview of said act ; and that he may be decreed to have a certificate of discharge from all his debts provable under the same. -, Solicitor, [or, Attorney,'] &c. 96 BANKRUPTCY PRACTICE. OATH TO FOEEOOIKa PETITION. [N. B. — ^If petitioner is not a citizen, the last clause of this oath should be omitted.] United States of America. District of , ss : I, the petitioning debtor mentioned and described in the fore- going petition, do hereby make solemn oath [or, affirmation] that the state- ments contained therein are true according to the best of my knowledge, information, and belief; and I do further make oath [or, affirmation] that I am a citizen of the United States of America, and that I will bear true faith and allegiance to the same. , Petitioner. Subscribed and sworn [or, affirmed] to, before me, this day of A. D.18 . U. S. District Judge, {Register in Banhruptcy, or, U. S. CommissionefT^ BANKRUPTCY PRACTICE. 97 is" 13 Co <® •2 ^ w l-l & a w X u =0 P V O ^ fo 13 to Nature and consideration of the debt, and whether contracted as copartner or joint contractor ; and, if so, with whom. § 1 < « €» 1 if 1® o ■32 S Order of payment; Pre- [ ferred Claims. 1. Debts due to the United States, and taxes and assessments under the laws thereof. 2. Debts due to the State of , and taxes and assessments under the laws of said State. 3. Wages due clerk, ser- vant, &c., to an amount not exceed- ing $50, for labor per- formed within six months. 4. Other debts preferred by said act. fts 98 BANKRUPTCY PEACTICE. « 1-4 ca w P o BANKRUPTCY PRACTICE. 99 .99. -i^ ^ o o cr.9 ■i3 , tM ? 3 == t- .^4 ^ -S g §3 M ?r O T3 03 CD T3 fa-^ - o E

-is K; 00 _ "!> P f >* Co .9 '^ P-i Q aw- wn, icu- m ^ -t^ i«l ■a a § f the notk imep III g oa a Ss u whet artne: any horn. J3 liability, d as copi or with 0, with w c-a Pi !ss or ( of the reside eof acte tor, lis mi ^ tot« a oS a .9 So «> 9 ni Z" u ii:^' g ■oc-, a S < 13 m «^ CO m CO 'S (u £ a 1, residenc the holde d his busi a u ll ith the names the names of be stated, an indorser.] £ 1 id due, w under should able as ja S a— ' 00 g nd w set fi etitio ioner 5 c3 C.ti 3 »r-° g ffl *3 «3-S ft 3 ^P3M ^d he Notes or s thereof, ai der known on which t §1 1 ^sM K -^ X 3 ^ s 63 ^ »4 ''^ » to & (D 5s .a oj "O , S « -je [N. ers, m the na lars as & a BANKRUPTCY PRACTICE. 101 "5. S3J2 §3 ti-c ti -t^ d o -a tu S CI a, O a II M 5" So O ^ fe § M 3 9 t2 5J ti o g to a ^ ri rtf ffl o « S -»^ 03 . 18 , before me personally came , the person mentioned in and who subscribed to the foregoing petition and schedule, marked A, respectively, and who being by me first duly sworn [or, affirmed], did declare the said schedule to be a statement of all his debts, &c., in accordance with the act of Congress entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. District Judge, [or. Register, or, U. S. Commissioner.] OATH TO SCHEDULE B. United States of America. District of , ss : On this day of , A. D. 18, before me personally came , the person mentioned in and who subscribed to the foregoing petition and schedule, marked B, respectively, and who being by me first duly sworn [or, affirmed], did declare the said schedule to be a statement of all his estate, both real and personal, in accordance with the act of Congress en- titled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. District Judge, [or, Register, or, U. S. Commissioner.'] Form No. 2. COPAETWEKSHIP PETITION. [In case of a copartnership, the form will be as follows :] To the Honorable , Judge of the District Court of the United States for the District of The Petition of , and , of , in the county of , and state of , and district afore- BANKRUPTCY PRACTICE. 109 said, respectfully represents : That the said , and , copartners transacting business at , in the county of , and state of , and in said district, have for the months. [Or, That the said , and , members of a copartnership composed of themselves and one of , in the county of , and state of , have for the months : — next immediately preceding the filing of this petition at within said judicial district ; that the members of said copartnership owe debts ex- ceeding the amount of three hundred dollars, and are unable to pay all their debts in full; that they are willing to surrender all their es- tate and efiects for the benefit of their creditors, and desire to obtain the benefit of the act entitled "An act to establish a uniform system of bank- ruptcy throughout the United States," approved March 2, 1867. That the schedule hereto annexed, marked Aj and verified by their oaths, contains a full and true statement of all the debts of said copartner- ship, and, as far as possible, the names and places of residence of their cred- itors, and the further statements concerning such debts required by the pro- visions of said act. That the schedule hereto annexed, marked Bj verified by their oaths, contains an accurate inventory of all the estate of said copartnership as re- quired by the provisions of said act. And said further states, that the schedule hereto annexed, marked C, verified by his oath, contains a full and true statement of all his individual debts ; and, as far as possible, the names and places of res- idence of his creditors ; and the further statements concerning such debts required by the provisions of said act; and that the schedule hereto an- nexed, marked D, verified by his oath, contains an accurate inventory of all his individual estate, as required by the provisions of said act. And said further states, that the schedule hereto annexed, marked B, verified by his oath, contains a full and true statement of all his individual debts, and, as far as possible, the names and places of res- idence of his creditors, and the further statements concerning such debts required by the provisions of said act ; and that the schedule hereto an- nexed, marked P, verified by his oath, contains an accurate inventory of all his individual estate as required by the provisions of said act.] [N. B. — Similar clauses to be added for individual schedules of each copartner joining in the petition.] Wheeefoee, tour petitioners pray, that after due proceedings had, they may be adjudged by a decree of the court to be bankrupts within the pur- view of said act; and upon their compliance with the requirements of the said act, and all the orders and directions of the court made in pursuance thereof, they may be severally decreed to have a ceetiwcate or disohaege trom 110 BANKRUPTCY PRACTICE.. ALL THEIR DEBTS provable Under said act, and otherwise entitled to all the benefits thereof. Petitioners. [N. B. — The form of the oath to the petition is to be modified by em- ploying the plural for the singular number, and by the addition of clauses to cover the schedules of each copartner.] Form No. 3. OOEPOEATION PETITION. [N. B. — ^If a petition in bankruptcy is filed by a corporation, an authen- ticated copy of a vote or other action of the stockholders (or, party or par- ties entitled to act in behalf of such corporation), authorizing such proceedings should be filed with the petition, and which, in substance, should be as fol- lows.] Statement to accompany petition of corporation {in 'bank- ruptcy). At a meeting of the stookholdees, \pr, of the board of directors, or trustees, as the case may be,] of the company, [or, association, or, Bank, or, Society,] a Corporation created by , of the State of , held at , in the county of , and State of , on this day of , A. D. 18 , the condition of the affairs of said Cor- poration having been inquired into, and it being ascertained to the satisfaction of said meeting that the said corporation was insolvent, and that its affairs ought to be wound up, it was voted \or, resolved] by a majority of the cor- porators [or, stockholders, or, directors, or, trustees] present at such meeting, (which was duly called and notified for the purpose of taking action upon the subject aforesaid;) that be, and thereby — authorized empowered, and required to file a petition in the district court of the United States for the district of , within which said corporation has carried on its business, for the purpose of having the same adjudged bank- rupt ; and that such proceedings be had thereon as are provided by the act of Congress entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. In witness whereof, I have hereunto subscribed my name as president f Seal 1 ["''i other officer or agent] of said corporation, and affixed t of Corporation./ the seal of the same this day of , A. D. 18 . President [or, other officer] of said corporation. BANKRUPTCY PRACTICE. m [N. B. — In case of a corporation, the following changes are to be made in the form of petition already prescribed, viz. : The substitution of the name of the corporation for that of the individual petitioner, and the omission of the prayer for a discharge and the following passage substituted: '^ And that like proceedings may he had in the premises as in said act are provided in res- pect to natural persons." The language of the oath to the corporation petition may be changed to correspond with the form of the petition.] F'orm No. 4. (And see Rule southern district of New York, 1, 4.) OKDEE OF BEFEKENCE TO KEaiSTEE. In the district court of the United States, For the district of In Bankkuptct. In the matter of A petitioner for adjudication in bankruptcy of himself District of , ss. : Whereas , of the county Oi , state of and district aforesaid, has, on this day of , A. D. 18 , at o'clock m., filed in the of&ce of the clerk of said court a petition for adjudi- cation In bankruptcy against himself, according to the provisions of the act of Congress entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. It is thereupon ordered, that said petition be referred to , one of the registers in bankruptcy of this court, to make adjudication there- on, and take such other proceedings therein as are required by said act; and further, that the said shall, on or before the day of , at o'clock m., filed with said register a duplicate copy of said petition, and the schedules thereto annexed, and that he attend before said register on said day, and thenceforth as said register may direct, to submit to such orders as may be made by said register, or by this court relating to his said bankruptcy. And further, that until otherwise ordered by the court, the said register shall act upon the matters arising in this case at his ofllce, at at such times as he shall fix for that purpose. 112 BANKRUPTCY PRACTICE. Witness the honorable seal thereof, at , in said district, on A. D. 18 , 5 Seal of { court, '.} , judge of the said court, and the day of , Clerh of District Court, for said district. Form No. 5. ADJUDICATION OF BANKEUPTOY UPON DEBTOB'S PETITION. In the District Court of the United States, For the District of • In Bankbuptct. In the matter of By whom a petitioner for adjudication of bankruptcy was filed on the day of , A. D. 18 , in said court: At , in said district, on the day of , A. D. 1 8 . Before , one of the registers of said court in bankruptcy. I, THE Undersigned, a register of said court in bankruptcy, upon good proof before me , taken, do find, that the said has become a bankrupt within the true intent and meaning of the Act of Con- gress entitled "An Act to establish a uniform system of bankruptcy through- out the United States,'' approved March 2, 1867 ; and I do hereby declare and adjudge him a bankrupt accordingly. Register in JBanhruptcy. [N. B. — "When a debtor is declared a bankrupt upon a creditor's petition, the order should be made by the court and entered as an order of the court in substantially the form above prescribed.] BANKRUPTCY PEACTICB. 113 Form, No. 6. [See Rule S. D. N. T., 4, 5.] WAEEAITT TO MESSENGEE. (^Voluntary Banhruptcy.) In Bahkrottot. In the District Court of the United States, For the District of In the Matter of By whom a Petition for Adjudication of Bankruptcy was filed on the day of , A. D. 18 , in said court. District of , ss : To the Marshal of the District of : — G-EEETiNo: — ^Whereas, a petition for adjudication of bankruptcy and for relief, under the act of Congress entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, was, on the day of > 18 , filed by , of , in said district, upon which he hath been found and adjudged a bankrupt, there being no opposing party thereto : — ^You abb, therefore, HEREBY DIRECTED, A3 MESSENGER, to publish times in the — [Here name the newspapers in which the notice is ta b&published,1 (the first publica- tion to be made forthwith), the following notice, to wit : — This is to give notice : That on the day of , A. D. 18 , a warrant in bankruptcy was issued against the estate of , of , in the county of , and state of , who has been adjudged a bankrupt on his own petition; that the payment of any debts and delivery of any property belonging to such bankrupt, to him, or for his use, and the transfer of any property by him are forbidden by law ; that a meeting of the creditors of said bankrupt to prove their debts, and to choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden [here designate the place, and building, room or office where the court is to be held] before , register, on the day of , A. D., 18 , at o'clock, M. And tou are further directed to serve written or printed notice, forth- with, either by mail or personally [those upon whom personal service is to be made should be designated by the court or register] on all creditors upon the schedule filed with said bankrupt's petition [or, where names may be given 8 114 BANKRUPTCY PRACTICE. you in addition thereto by the debtor], at least ten days before the appointed meeting of said court, in the following form, to wit : — To Mr. , of , county of , and state of , creditor of , bankrupt. Tou are hereby notified that a warrant in bankruptcy has been issued out of the district court of the United States for the district of , against the estate of , adjudged a bankrupt upon his own petition ; that the payment of any debts, and the delivery of any property belonging to said bankrupt, to him, or for his use, and the transfer of any property by him are forbidden by law ; that a meetmg of the credit- ors of said bankrupt, to wit : [here insert names of the several creditors of bankrupt, with their places of residence and amount of their debts, respec- tively, in the following form, e. g. : — A. B. ,1 Boston, Mass., . . . . | $500] to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy to be holden on the day of , A. D. 18 , at o'clock, M., at {here insert the place, luUding, room or office where the court will he hdc[\, before , register. And have you then there this warrant, with your doings thereon. Witness the Honorable , judge of the said court, and the f Seal of 1 seal thereof, at , in said district, on the t the court. / ^ayof , A. D. 18 . Clerk of District Court, for said district. Forntt No. 7. EETtTKN OF MESSEITGEE TO ACCOMPAWT "WAEEANT. [N. B. — This return may be endorsed on the warrant, or follow the signature of the clerk.] district of , ss : At , on the day of , A. D. 18 .—By virtue of the within warrant, I have caused the notice therein ordered to be pub- lished, by advertisement, times in the newspapers within mentioned ; the first publication of which was on the day of , A. D. 18 , in \here mention newspaper in which first publication was had\. And I also, on the day of , A. D. 18 , sent by mail or served personally upon the creditors and others named in said warrant a copy of the notice re- quired thereby to be sent to, or served on them : — And aU of said notices were according to the directions set out in said warrant. BANKRUPTCY PEACTICB. Fees. 115 1. For service of warrant $2 00 2. For necessary travel miles, at 5 cents per mile each way 3. For each written notice to creditor named in the schedule, 10 cents 4. For actual and necessary expenses in publication of no- tices [N. B. — If there an any other necessary expenses, the same may be inserted in specific terms, numbering the same consecutively.'] U. S. Marshal, as Messenger, District of District of , ss : , A. D. 18 . Then personally appeared the , and made oath that the above expenses returned by him, in addition to his fees, were actually and necessarily incurred and paid by him, and that the same are just and reasonable. Before me, , District Judge, [or, Register in Bankruptcy.'] Form Ifo. 8. eeghstek's oath of office. United States or America, District of , ss : I, , having been duly nominated and recommended by the Chief Jus- tice of the supreme court of the United States, and appointed by the district judge of the United States for the district of , as a register in bankruptcy under the act entitled " An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, do solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel or encouragement to persons engaged in armed hos- tility thereto ; that I have neither sought nor accepted, nor attempted to exer- cise the functions of any office whatever under any authority or pretended au- thority in hostility to the United States ; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within 116 BANKRUPTCY PRACTICE. the United States hostile or inimical thereto. And I do further swear, that to the best of my knowledge and ability, I will support and defend the con- stitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same ; tiat I take this obli- gation freely, without any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter; and also, that I will not, during my continuance in office, be directly or indirectly interested in, or benefited by, the fees or emoluments arising from any suit or matter pending in bankruptoy in either . the district or circuit court in this district. So help me God. Subscribed and to, before me this day of , A. D. 18 . District Judge. Form, No. 9. OFFICIAL BOND OF EEGISTEE. In the District Court of the United States, For the District of In Bankkuptot. Know all men bt these Presents: That we \insert names and res- idences in full of hondsmeri\ are held and firmly bound to the United States of America in the sum of dollars, lawful money of the United States, to be paid to the United States, for the payment of which, weU and truly to be made, we bind ourselves and each of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , Anno Domini one thousand eight hundred and Whereas the said , having been on the day of , A. D. 18 , appointed by the honorable , judge of the dis- trict court of the United States for the district of a register in bankruptcy, in and for said district, this bond is executed pur- suant to the third section of the act of Congress entitled " An act to es- tabhsh a uniform system of bankruptcy throughout the United States,'' ap- BANKRUPTCY PEACTICE. 117 pr6Yed March % 1867, and is conditioned for the faithful discharge of the duties pertaining to said office of register in bahkruptcyi In witness whereof, we have hereunto set our hands and seals this day of , A. D. one thousand eight hundred and , [!■• s.] , [i-s.] Signed, sealed, and filed in office of the clerk of said district court. Attest : , Clerk District of {N. B. — The above bond to be indorsed with the approval of the judge of the district court, thus: "I hereby approve the within bond, and DECLARE THE SURETIES THEREON TO BE SATISFACTORY;" and the usual Cer- tificate of the clerk of the district, as to the exact time and date of filing. If'orm No. 10. [See Rule 5, S. D. N. T.] COMMON OEDEE. In the District Court of the United States, For the District of In the Matter of Bankrupt In BANKRtfPltCt. District of , si Upon the application of At in said district, on the day of , A. D. 18 , Before Mr. , one of the registers of said district court, in bankruptcy. ,of , in the county of and 118 BANKRUPTCY PRACTICE. State ot , there being no opposing interest, [or, the party, or parties, appearing assenting thereto,] It is Ordered : [Sere insert the order.] Witness the Honorable , Judge of the said court, and the seal thereof, at , in said district, on the f Seal of 1 day of , A. D. 18 . 1 the Court. / ^ ' Cleric of District Court, for said district. Form No. 11. CEETIFIED MEMOKANDtJM: OF FIEST MEETING OF CEEDITOES. In the District Court of the United States, Por the District of In the Matter of - In BANKRtrPTOT. Bankrupt . ff At on the Before Mr. , in said district day of , A. D. 18 Register in Bankruptcy. District of ,ss: Memorandum. — This being the day appointed by the court for the first meeting of creditors under the said bankruptcy, ■whereof the notice re- quired in that behalf has been duly given, I, the undersigned, register of the said court in bankruptcy, sat at the time and place above mentioned, pur- suant to such notice, to take the proof of debts and for the choice of as- signee under the said bankruptcy ; and I do hereby certify that the greater part in number and in value of the creditors who have proved their debts ■were present, or duly represented, and made choice of , of, , in the county of , and State of , as the assignee of the said bankrupt's estate. [Or, Failed to make choice of an assignee of said bankrupt's estate, and there being no opposing interest, I appointed , of , in the county of , and State of , as assignee of the same. BANKEUPTCY PRACTICE. 119 [Or, Failed to make choice of an assignee of said baniirupt's estate, and tliere being no opposing interest, I further certify to the court the failure to make such choice of assignee, in order that the court may take action in the premises Register in Bankruptcy. [N.B. — When the matter of appointment is referred to the court, the re- gister may, if requested, certify the names of the persons proposed at the creditor's meeting and the votes given for each.] Form No. 13. ABSTRACTS OF PEOCEEDINaS TJNDEE SECTION EOUE — EOKM OP MEMOEANDTTM TO BE EETTJKNED TO CLEEK BY In the District Court of the United States, For the District of In the Matter of Bankrupt Ik Bankruptcy. Before Mr. District of •A-t , in said district, on the day of , A.D. 18 . Register in Bankruptcy. Memorandum.— This day attended the first meeting of creditors of , the bankrupt aforesaid, at said , where choice was made of assignee as appears by the papers herewith returned. [Here insert particu- lar statement of all tJiat was done lefore the register.] Register in Bankruptcy. [N.B. — ^A memorandum of what is done in each case respectively must be returned on separate sheets of paper.] 120 BANKRUPTCY PRACTICE. Form No. 13. CEEDITOES WHO HAVE PEOVED THEIE DEBTS AT EIEST MEETING. In the District Court of the United States, For the District of In the Matter of Bankrupt In BANKEUPTor. At , in said district, on the day of , A.D. 18 . Before Mr. , Register in Banleruptcy, District of , s$ : The following is a list of creditors who have this day proved their debts : — Names of Creditors. Besidcnce- Debts Proved. Dolls. Cts. Register in Banhruptcy, BANKKUPTOY PEACTICE. 121 Form No. 14. rOEM OF SPECIAL LETTER OE ATTOKKEY. In the Matter of Bankrupt In Bankrwtot. To- Sir : [or, Messrs., or, Gentlemen,] I, [or, we,] hereby authorize you, or any one Of you, to attend the meeting of creditors in this matter, advertised or directed to be holden at , on tlie day of , before , or on the day advertised in the ]_Name the Newspapers^ or any adjournment thereof, and then and there for , and in name to vote for or against any proposal or resolution that may be lawfully made or passed at such meeting or adjourned meeting ; and in the choice of assignee, or assignees of the estate of the said bankrupt, and for , or , to accept such appointment of assignee. Dated this day of , A.D. 18 . Witness to the signature of Exhibited to me this day of , A.D. 18 Register in Bankruptcy. 122 BANKRUPTCY PRACTICE. Form No. 15. CHOICE OF ASSIGNEES. {First Meeting of Creditors^ In the District Court of the TJnited States, For the District of In the Matter of Bankrupt In Bankruptot. At . , in said district, on the day of ,18 . Before Mr. Register in Bankruptcy. District of , ss : Memorandum. — This being the day appointed by the court for the first meeting of creditors in the above bankruptcy, and of which due notice has been given in the [Here insert the names of the newspapers in which notice ■ was puUished,] and by special notice served personally, or through the mail. We, whose names are hereunder written, being the greater part in number and in value, of the creditors of the said , bankrupt aforesaid, present at this meeting, and who have proved our debts, have cliosen, and do hereby nominate and choose [Here insert the name, or names of assignees, with their places of residence, respectively] to be the assignee of the said bankrupt's estate and effects, and we do desire that he [or, they] may be appointed such assignee, accordingly : I^nnips of Creditors above mentioned. Eesidences of the same, Amount of Debt. • Dolls. Cte. BANKRUPTCY PEACTICE. 133 I [or, we] do hereby accept the said trust, [or, appointment.] Assignee . I, , a register of the said court in bankruptcy, do hereby approve of, and confirm the said choice of assignee . , Register in Bankruptcy. * hereby app3int Mr. , of , to act as solicitor, and attorney in the above bankruptcy. , Register [or. Assignee.] -, District Judge. * N. B. — If no attorney be appointed, strike the latter form out, and when the appointment is made file an appointment as above, signed by the assignee. The district judge will indorse hereon, in case of approval of the above, thus: "Approved." J^orm JVo. 16. NOTIFICATION OF APPOINTMENT OF ASSIGNEE. In the District Court of the United States, For the District of In the Matter of - In Banzruptct Bankrupt . District of ,ss: To ,of and State of -, in th 3 county of I DO HEREBY CERTIFY to you, that you Were duly [chosen or, appointed] assignee [or, one of the assignees] of the estate and effects of the above- named bankrupt, at the first meeting of the creditors, on the day of 124 BANKKtJPTCT PRACTICE. , A. D. 18 , and I do hereby approve and confirm said election [or, appointment-] and I do further certify, that the greater part in value and in number of the creditors of said bankrupt who had proved their claims were present, or were duly represented at said meeting. Dated at , the day of , A.D. 18 . Judge of said District, [or. Register in Bankruptcy.] [IT. B. — If the appointment is made by the judge, the last clause should be omitted.] Acceptance of Assignee. [N. B. — To be indorsed on notification, or to follow it.] To WHOM IT MAT coNOERK : Be it known, that I hereby signify my ac- ceptance of the trust of assignee of the estate of the above [or, within] named bankrupt this day of , A. D. 18 . If'orm Ko. 17. BOND OF ASSIGNEE. In the District Court of the United States, For the District of In the Matter of Bankrupt Ik BiXKErPTCT. District of , ss .• KSOW ALL MEK BT THESE PRESENTS I That We, , of of ; and of are held and firmly bound unto the TTnited States of America in the just and full sum of dollars, to the payment whereof well and truly to BANKRUPTCY PRACTICE. 125 be m^de, we bind ourselves, our and eacb of our heirs, executors, and administrators. Signed, sealed, and delivered at , this day of , A. D. 18 . The said , having been, on the day of , A. D. 18 , by order of the district court of the United States for the district of ; In Bankruptct, appointed assignee of the estate of a bankrupt, this bond is executed pursuant to the thirteenth section of the act of Congress entitled " An act to establish a uniform system of bank- ruptcy throughout the United States," approved March 2, 1867; and is conditioned for the due and faithful discharge of all duties by the said , as such assignee, and in compliance with the orders and directions of the court in the matter of bankruptcy of the said Signed, sealed and delivered in presence of— [L. S.J [L. S.] -, [L. S.] [N. B. — To be indorsed on the above " On the day of A. D. 18 ."i Approved : District Judge, [or, Register in Bankrupicif.'] , I^orm No. 18. ASSIGNMENT OF BANKKUPT'S EFFECTS In the District Court of the United States, For the District of In the Matter of Bankrupt -In Baneeuptoy. District of , ss : Know all men by these presents, that , of the of , in the county of , and state of , in said district ha been duly appointed assignee 1/ more than one assignee is appointed, insert ac- 126 BAITKRUPTOT PKACTICB. cordingly] in said matter. Now, therefore, I, , judge of said district court, [or, register in bankruptcy of said district,] by virtue of tlie autliority vested in me by the 14th section of an act of Congress en- titled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, do hereby convey and assign to the said , assignee, as aforesaid, all the estate, real and personal, of the said , bankrupt, aforesaid, including all the property, of vrhatever kind, of vfhich he is possessed, or in which he was interested, or entitled to have on the day of , A.D. 18 , with all his deeds, books, and papers relating thereto, excepting such property as is exempted from the operation of this assignment by the provisions of said fourteenth section of said Act. To HAVE AND TO HOLD all the forcgoing premises to the said , and his heirs forever, In trust, nevertheless, for the use and purposes, with the powers, and subject to the conditions and limitations set forth in said Act. In witness whereof, I, the said judge [or, the said register] have here- f L. s. 1 ^^''O s^' "^y hand, and caused the seal of said court to be loftheciurt.; aflixed, this day of , A. D. 18 . District Judge, [or, Register in Bankruptcy.] Farm No. 19. NOTICE OF ASSIGNEE OF HIS APPOINTNMET. {In Bankruptcy.) District of , ss : At , the day of , A. D. 18 . The undersigned hereby gives notice of his appointment as assignee of , of , in the county of , and state of , within said district, who has been adjudged a bankrupt upon his own petition, [or, on creditor's petition ; or, as the case may be] by the district court of said dis- trict. , Assignee, &c. To , "BANKRUPTCY PRACTICE. 127 Form, No. 20. EXEMPTED PEOPEETT. Ill the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankruptcy. At , on the day of , 18 , District of , ss : The following is a schedule of property designated and set apart to be re- tained by the bankrupt aforesaid, as his own property, under the provisions of the 14th section of the act of Congress entitled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867 : General Head. Necessary household and kitchen furniture. Other articles and neces- saries Wearing apparel of bank- rupt and his family. . .. Equipments, if any, as a soldier Other property exempted by the laws of the United States Property exempted by State laws Particular Description. Value. Dolls. CtS, -, District Judge [or, Begister.] 128 BANKRUPTCY PRACTICE. Form, No. 21. la the District Court of the United States, Por the District of In the Matter of Bankrupt . In Bankruptcy. District of , ss. : On this day of , A. D., 18 , before me, , a register in bankruptcy [^or, United States Commissioner, or other proper officer] of said district, personally appeared , of , in the county of , and state of , and who, after being duly sworn [or, affirmed] and examined, at the time and place aforesaid, upon h oath, says that , the person by [or, against] whom a petition for adjudication of bankruptcy is filed, w at and before the filing of the said petition, and still , justly and truly indebted to this deponent [or, the firm of , composed of this deponent and , transacting business at ,] in the sum of dollars and cents, for which said sum of dollars and cents, or any part thereof, this deponent has not nor any person by order, or to this deponent's knowl- edge or behef, for use, received any security or satisfaction whatso- ever, save and except the , hereinafter mentioned ; that the claim was not procured for the purpose of influencing the proceedings under the act of Congress entitled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867 ; that no bargain or agreement, expressed or implied, has been made or entered into by or on behalf of this deponent to sell, transfer or dispose of said claim, or any part thereof, against said bankrupt, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of this deponent [or, the firm of which this deponent is a member] for assignee, or any action on the part of this deponent, or any other person, in the proceed- ings under said act, has been, is, or shall be in any way affected, influenced, BANKRUPTCY PRACTICE. 129 or controlled ; IRere insert a particular description of the debt, and also of the property held as security, and the estimated value of such property.'] Deponent Subscribed and sworn \pr, affirmed] to, at , on the day of , A. D. 18 . Before me i District Judge [or, Register in Bankruptcy, or, U. S. Commissioner.] Received by me, at , this day of , A. D. 18 . ■ J Assignee. Form No: 22. DEPOSITION FOK PEOOP OP DEBT WITHOUT SECUEITT. In the District Court of the United States, For the District of In the Matter of Bankrupt . In Banekupict. District of , ss : At , in the county of , and State of , oh the day of , A. D. 18 , before me came , of , in the county of , and state of , and made oath [or, afiirmation] and says, that the said , the person whom a petition for adjudication of bankruptcy has been filed, at and before the filing of the said petition, , and still justly and truly indebted to this deponent in the sum of, [Here state the amount, and describe the consideration of the debt, and whether any, and what, payments have been made thereon,] for which said sum of dollars and cents, or any part thereof, this deponent says that he has not, nor has any person by h order, or to this deponent's knowledge or be- 9 130 BANKEUPTCY PRACTICE. lief, for use, had, or received any manner of satisfaction or security ■n-tatsoever. And this deponent further says that the said claim was not procured for the purpose of influencing the proceedings under the act of Congress entitled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867; that no bargain or agreement, express or implied, has been made or entered into by or on behalf of this deponent, to sell, transfer, or dispose of said claim, or any part thereof, against said bank- rupt, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of this deponent for assignee, or any action on the part of this deponent, or any other person in the proceed- ings under said act, has been, is, or shall be in any way affected, influenced or controlled. Deposing Creditor. Subscribed and sworn [or, affirmed] to before me. Register in Bankruptcy. Form No. 23. DECLAEATIOIT FOE PEOOP OP DEBT BY OPPICEE OF COEPOEATION. In the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankruptcy. District of I) ) of , in'the county of , and State of ; president, \or, cashier, or, treasurer, or, as the case may be] of , being a corporation incorporated by and under the laws of the State of , and carrying on business at , in the State of , being duly sworn, do solemnly declare that I am such officer, and duly authorized to make this proof, and that the statement of the BANKEUPTOT PRACTICE. ISJ between the said corporation and the said bankrupt, hereunto annexed, is a full, true, and complete statement of account between the said corporation and the said bankrupt ; and that it is within my own knowledge that the debt thereby appearing to be due from the estate of said bankrupt to the said corporation was incurred on or before the day of , and for the consideration therein stated ; and that to the best of my knowledge and belief the said debt still remains unpaid and unsatisfied. And I do further declare that said claim was not procured for the purpose of influenc- ing the proceedings under said act, and that no bargain or assignment, ex- press or implied, has been made or entered into by or on behalf of said cor- poration to sell, transfer or dispose of the said claim, or any part thereof, against such bankrupt, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of such cor- poration, or of any person in the proceedings under said act was, is, or shall be, in any way, affected, influenced, or controlled. President [or, as the case may he'] of the Company, [or. Association.] Declared under oath at , this day of , A. D. 18 Before me, Register in Banhruptey. Form No. 24. AFFIDAVIT FOR PEOOF OF DEBT BY AGENT OE ATTOEKEY. In the District Court of the United States, For the District of , In the Matter of Bankrupt - In Bankruptcy. District of , ss : On this day of , A. D. 18 , before me, , register in bankruptcy, \pr, U. S. commissioner, or other proper officer,] of said dis- 133 BANKRUPTCY PRACTICE. trict, personally appeared , of , in the county of , and state of , attorney, [or, authorized agent,] of , in the county of , and state of , and after being by me duly sworn [or, affirmed,] says that the said , the person by [or, against] whom a petition for adjudication of bankruptcy has been filed, , at and before the filing of the said petition, and still justly and truly indebted to the said , in the sum of dollars and cents, [ITere particularly describe the consideration of the debt, and whether any, &o.,] for which said sum of dollars and cents , or any part thereof, this deponent says that he has not, nor has any person by his order, or to this deponent's knowledge or belief, for use had or received any manner of satisfaction or security whatsoever. And this de- ponent further says, that the claim was not procured for the purpose of in- fluencing the proceedings under the act of Congress entitled " An Act to establish a uniform system of bankruptcy throughout the United States,'' approved March 2, 1 867 ; that no bargain or agreement, express or imphed, has been made, or entered into, by, or on behalf of such creditor to sell, transfer, or dispose of said claim, or any part thereof, against said bankrupt, or to take or receive, directly or indirectly, any money, property, or con- sideration whatever, whereby the vote of such creditor or assignee, or any action on the part of such creditor, or any other person in the proceedings under said act, has been, is, or shall be, in any way affected, influenced, or controlled. And this deponent further says, that he is duly authorized by his principal to make this affidavit, and that it is within his knowledge that the aforesaid debt was incurred, as and for the consideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied. Subscribed and sworn [or, affirmed] to, this day of i 18 , before me. District Jvdge, [or, Register in Bankruptcy ; or, U. S. Commissioner.} Received by me, this day of , A. D. 18 . Assignee, BANKRUPTCY PRACTICE. 133 Form No. 25. PROOF OF DEBT "WITH SECTJEITY BY AGENT. In the District Court of the United States, Por the District of In the Matter of Bankrupt - In Bankruptot. At , in said district, on the day of , A. D. 18 . Before Mr. , Register in Bankruptcy. District of , ss : On the day above mentioned, personally came , attorney [or, au- thorized agent] of , who being duly and examined at the time and place aforesaid, upon h oath, says that , the per- son whom a petition for adjudication of bankruptcy is filed, w at and before the filing of the said petition, and still justly and truly indebted to the said , in the sum of dollars and cents, for which said sum of dollars and cents, or any part thereof, this deponent has not, nor any person by order, to this de- ponent's knowledge on belief, for the use of said , re- ceived any security or satisfaction whatsoever, save and except the hereinafter mentioned. And this deponent further says that he is duly au- thorized by his principal to make this deposition, and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated ; and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied ; that the claim was not procured for the purpose of influencing the proceedings under the act of Congress en- titled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867 ; that no bargain or agreement, expressed or implied, has been made, or entered into, by or on behalf of such creditor to sell, transfer, or dispose of said claim, or any part thereof, against said bankrupt, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of such cred- itor for assignee, or any action on the part of such creditor, or any other 134 BAITKRUPTCt PRACTICE. person ia the proceedings under said act, has been, is, or shall be in any •way aflfected, influenced, or controlled. [Here insert a description of the debt, and also of the property held as secu- rity, and the estimated value of such property.] Subscribed and to, this day of , A. D. 18 . Before me, " '' Register in Bankruptcy. day of , A. D. 18 . Received by me, this Form No. 26. LETTER OF ATTOENEY TO EEPEESENT CEEDITOK. In the District Court of the United States, For the District of In the Matter of Bankrupt In Bankruptot. To- Sir, [Messrs., or Gentlemen :J — I, , of the of , in the county of , and state* of , do hereby authorize you [or, either of you] to attend the meeting, or meetings -of creditors of the banlcrupt aforesaid, advertised, or directed to be held at a court of bankruptcy at , on the day of , A. D. 18 , the day notified in the warrant issued to the messenger by said court in said matter, or at such other place and time as may be appointed by the court for holding such meeting or meetings, or at which such meeting or meetings, or any adjournment or ad- journments thereof, may be held, and then and there, from time to time, and as often as there may be occasion, for , and in name to vote for or against any proposal or resolution that may be then submitted under the 12th, 13th, 14th, 18th, 19th, 21st, 22d, 23d, 27th, 28th, 33d, 36th, 37th, 42d, and 43d sections of the act entitled " An act to es- BANKRUPTCY PRACTICE. 135 tablish a uniform system of bankruptcy throughout the United States," approved March 2, 1867 ; and in the choice of assignee, or assignees, of the estate of the said bankrupt, and for , [or, either of us] to accept such appointment of assignee ; and with like powers to attend and vote at any other meeting, or meetings, of creditors, or sitting, or sittings, of the court, which may be held therein for any of the purposes aforesaid, or the declaration of dividend, or for any other purpose in whatsoever. In witness whereof, have hereunto signed and affixed seal the day of , A. D. Signed, sealed, and delivered in ^ presence of — interest 18 -, [l. s.] -, [l. s.] -, ]l. a] [Note. — The party executing the above letter of attorney may acknowl- edge the same before a judge, register, clerk, or commissioner of the court, or any officer authorized to take the acknowledgment of deeds or other in- struments' in writing.] [N. B. — -Tlpon the above letter of attorney should be indorsed the follow- ing certificate of the register, to wit : " Exhibited to me, this day of , A. D. 18 . at .] Register in Bankruptcy. Form No. 27. AFFIDAVIT OF LOST BILL OE NOTE. In the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankeuptct. District of On this day of , A. D. 18 , at , comes before , of , in the county of , and state 136 BANKRUPTCY PRACTICE. of , and makes and says that he has made a careful search for the bill of exchange [or, note,] the particulars whereof are under written, and which ha been proved under this estate by , but that he, this deponent, has not been able to find the same, and verily believes that the same has been lost or mislaid ; and this deponent further says that he has not, nor has the said , or any person or persons, to their use, to this deponent's knowledge or belief, negotiated the said bill, [or note,] nor in any manner parted with, or assigned, the legal or beneficial interest therein, or any part thereof; and that he, this deponent, is the per- son now legally and beneficially interested in the same, and entitled to re- ceive for his own use all dividends in respect thereof. Bill or Note above referred to. Drawer or Maker, Acceptor. Stun. Subscribed and A. D. 18 . to, before me, , on this day of Register, or U. S. Oommissioner [or, other proper officer."] Upon the above-named deponent signing the annexed letter of indemnity, and giving security to the satisfaction of the official assignee, I direct the dividend to be paid to him. Register in Bankruptcy. Form of notice of Indemniflcaiion to Register. In the matter of , of , Bankrup to. Sir : The bill [or, note] mentioned below, proved by , under this estate, having been lost or mislaid, and the following dividend having been BANKRUPTCY PEACTICB. 137 declared thereon, but not yet paid, viz : — , in consideration of your paying to or to order the dividend above men- tioned , hereby undertake to indemnify you against all claims of any .other person to the said dividend, or any part thereof; and from all loss, damage and expense, 'which you or your executors or administrators may sustain by reason of your making such payment to me; and if it should hereafter appear that the said sum of $ , or any part thereof, with the dividend already received or declared up to this day, exceed the amount of the bill [or, note] hereby engage to repay the same to you, or to the as- signee, or assignees, of the above estate, with interest at the rate of per cent, per annum from this day. Dated at , this , A. D. 18 . Bill or Note above referred to. Date. DraTfor or3Iaker. Acceptor. Sum. To Mr. ■ Sureties of Creditor receiving Dividend. Register in Bankruptcy. 138 BANKRUPTCY PRACTICE. Form No. 28. NOTICE AND KEQtTEST OF ASSIGNEE. Rula S. D. N. Y., 12. (Second meeting of Creditors.) In the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankeuptct. To the Hon. , Jndge of tke District Court, [or, Register in Bankruptcy"] in the above District, Sir : I, [or, we] the assignee of the estate of said bankrupt , respectfully represent, that have accepted the appointment of assignee of said estate; that the period of three months has elapsed since the date of the adjudica- tion of bankruptcy in said case, and request that the court will order a gen- eral meeting of the creditors of said bankrupt , to which may make report of proceedings in trust, according to the provisions of the twenty-seventh section of the bankrupt act of March 2, 1867. Assignee. Order thereon — By the Court or Register. Upon the foregoing application of , assignee of the estate of , bankrupt, it is Ordered that a second general meeting of the creditors of said bankrupt be held at , in said district, on the day of , A. D. 18 , at o'clock m., at the office of , one of the registers in bankruptcy in said district, for the purposes named in the twenty-seventh section of the bankrupt act of March 2, 1867. And it is further Ordered, That the assignee give notice of said meeting by sending written or printed notices by mail, post-paid, of the time and place of said meeting to all known creditors of said bankrupt; and that also notify the bankrupt to be present thereat; and shall also BANKKUPTCT PRACTICE. 139 pubUsh notice of the time and place of said meeting on two different days in the newspaper called the , printed at , at least days prior to said meeting. Witness the Honorable , Judge of the said court, and the seal thereof, at , in said district, on the Clerh of District Court, for said District. Form No. 29. FOEM OF EETUEIiT OF ASSIGNEE TO BE SUBMITTED TO THE EEGISTEE IN BANKEUPTCT PEESIDING AT SAID MEETING. In the Matter of Bankrupt In Bankeuptct. District of , ss : I, \or, we,] assignee of the estate of , a bankrupt, do certify that have caused the notices required by the foregoing order to be pub- lished in the newspaper called the , printed at , on the day of A. D. 18 ; and that have caused written or printed notices of the time and place of said meeting to be sent by mail, post-paid, to all known creditors of said bankrupt. Said notices were mailed at the post-office in , on.the day of , A. D. 18 , at days prior to the date appointed for the said meeting. Subscribed and to, at , this day of , A. D. 18 Before me, Register in Banhruptcy. [IT. B. — ^Like forms may be used for the third meeting of creditors, and for subsequent meetings, if such are ordered by the court.] 140 BANKEUPTCT PRACTIOE. Form No. 30. DIVIDEND MEETING. In the District Court of the United States, For the District of In the Matter of Bankrupt In BiNKRUPTcr. At , in said district, on the day of , A.D. 18 . District of , ss ; Memorandum. — That at a meeting of the bankrupt's creditors duly called and held this day for the purposes set forth in the 27th section of the act entitled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, we, the undersigned, being the majority in value of the creditors of the said bankrupt present, or repre- sented at this meeting, seeing that it appears by the accounts of the assignee , now filed, that there is a balance of dollars, standing to the credit of this estate, in the Bank of , and a balance of dollars in the hands of the , do Resolve that after payment of all proper costs, charges, and expenses, and after deducting and retaining a sum sufficient for all undetermined claims, which, by reason of the distant residence of the creditors, or for other reason satisfactory to us, have not been proved, and for other expenses and contingencies, the sum of dollars remains for distribution among the creditors of the above-named bankrupt, who have proved their debts against the said bankrupt's estate. And it was further Resolved by the undersigned creditors that the said sum be divided among the creditors who have proved their claims against said estate, and that such proceedings be had for declaring and paying said divi- dend as are required by the 27th section of said act. Creditors. . hereby certify to the above. Register in Bankruptcy. BANKRUPTCY PRACTICE.] 141 PJT. B. — Iq case one-half in value of tlie creditors shall not be repre- sented at such meeting, the fact shall be so stated in the memorandum, and the amount to be divided, and the order for a dividend, shall be made and signed by the assignee in accordance with the provisions of the 27th section of said act.] [N. B.— Like forms may be used for the further proceedings provided for in the 28 th section of said act] Form No. 31. KOTICE OF DIVIDEND, In the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankruptcy. At , on the day of , A. D. 18 . Sir : I hereby inform you that you may, on application at my office, , on the day of , or on any day thereafter, between the hours of , receive a warrant for the divi- dend due to you out of the above estate. If you cannot personally attend, the warrant will be delivered to your order on your filling up and signing the subjoined letter. The bills and securities, if any, exhibited at the time of the proof of your debt must be produced to me before the warrant of dividend can be received. I am, sir, your obedient servant, , Assignee. To 18 . Subjoined letter authorizing assignee to give warrant to party other than creditor To Mr. , Assignee in Bavkruptey of the estate of , Bankrupt. Sir : [or, Messrs.] Please to deliver to the dividend warrant payable to me out of the above estate. Yours, &c., , Creditor. 143 BANKRUPTCY PEACTICE. Form No. 32. LIST OF PROOFS AND CLAIMS FOE DIVIDEND. In the District Court of the United States, For the District of In the Matter of Bankrupt . - In Bankkuptot. At , in said district, on the day of , 18 , A list of deMs proved and claimed under the Bankruptcy of , aforesaid, with dividend, at the rate of per cent, this day declared thereon by Mr. , one of the Itegisters in Bankruptcy of the said District Court. No. Creditors. To be placed alpbabetically, and the names of all the parties to tne proof to be carefully set forth Sum proved. The claims to be set forth in the sa: manner at the end of the whole of the profits. Dollars. Cents. Dividend. Dolls, Cts. -, Register in Bankruptcy. BANKRUPTCY PEACTIGE. 143 i» < ^ o H m te rt M r/3 r/i rict of ts prov this da at? "fe- "s ^ "i Is Q 55 Pi S ;d !=! . 1-; fio S 2 o ^ tn E« 'a ca P. a 144 BANKRUPTCY PRACTICE. Form No. 34. PETITION OP ASSIGNEE FOE POWER TO BELIEVE PROP- ERTY FROM LIEN. In the District Court of the United States, Por the District of In the Matter of Bankrupt . In Bankruptot. To- , assignee of the estate of said banlsrupt, respectfully re- presents that a certain portion of said bankrupt's estate, to wit : [IHere de- scribe the estate or property and its estimated value,'] is subject to a mortgage, [Describe the mortgage^ or to a conditional contract, [Describing it,} or to a lien, [Describe the origin and nature of the lien,'] or, (if the property be per- sonal property,) has been pledged or deposited and is subject to a lien for, [Describe the nature of the lien,} and that according to the best judgment of your petitioner it would be for the interest of the creditors of said estate that said property should be redeemed and discharged from the lien there- on. Wherefore pray that may be empowered to pay out of the assets of said estate in hands the sum of , being the amount of said lien, in order to redeem said property therefroto. Dated this day of , A. D. 18 . , Assignee. [N. B. — If the prayer is for a sale of the property, strike out all after the words ^^ judgment of your petitioner," and insert "it would be for the inter- est of the creditors of said estate that said property should be sold, subject to said mortgage, lien, or other incumbrance. Wherefore he prays that he may be authorized to make sale of said property, subject to the incumbrance thereon, in the manner prescribed by the general order for the sale of prop- erty not incumbered." BANKRUPTCY PRACTICE. 145 Form No. 35. assignee's EETTJEN where THEEE ABE NO ASSETS. In tlie District Court of the United States, For tiie District of In the Matter of Bankrupt At - In Bankruptcy. , in said district, day of , A. D. 18 ; , of , in the county , and says that he, this on the District of , ss : On the day aforesaid, before me comes of , and state of , and makes deponent, as assignee [or, one of the assignees] of the estate and effects of the above named bankrupt, neither received nor paid any moneys on account of the estate. Subscribed and to, at , this day of , A. D. 18 . Before me, , Register in Bankruptcy. Form No. 36. assignee's notice foe settlement of his accounts prepaeatoey to pinal dividend. In the District Court of the United States, For the District of lu the Matter of Bankrupt . At on the To Sir: ► In Bankruptcy. day of A. D. 18 . This is to give you notice that I have filed my final accounts as assignee 10 146 BANE31UPTCT PRACTICE. of the estate of , bankrupt, in said court, and that on the day of next, I shall apply to said court for the settlement of my said accounts, and for a discharge from all liability as assignee of said estate in accordance with the provisions of the twenty-eighth section of the bank- rupt act of March 2, 1867. Tours, &c., , Assignee. Form No. 37. AFFIDAVIT TO BE MADE BY ASSIGNEE, In the District Court of the United States, For the District of In the Matter of Bankrupt . In Bankeuptot. District of , ss : On this day of , A. D. 18 , before me comes , of , in the county of , and state of ,"and makes , and says that he, this deponent, was, on the day of , A. D. 18 , appointed assignee of the estate and effects of the above named bankrupt, and that as such he has conducted the settlement of the said estate. That the account hereto annexed containing sheets of paper, the first sheet whereof is marked with the letter \Re,ference may here also he made to any prior account filed by deponenfj is true, and such account contains entries of every sum of money received by deponent, on account of the estate and effects of the above-named bankrupt, and that the payments pui-porting in such account to have been made by deponent have been so made by him. And he asks to be allowed for said payments and for charges of settlement as set forth in said accounts. , Assignee. Sworn to and subscribed at , , in said district of , this day of , A. D. 18 . Before me, Register in BanJenipicy. BANKETJPTCT PEACTICE. 147 CO CO , A. D. 18 . I also within days after the date of the within warrant sent written or printed notice, as within directed, to the within named , bankrupt, and to the creditors named on the schedule delivered to me by him, and herewith returned. The notices sent by mail were deposited in the post-ofiSce at , on the day of , A. D. 18 , with the proper postage stamp affixed thereto, and those delivered personally by me to said creditors were delivered at the times and the places set opposite to the name of each, and all of said noti- ces were according to the directions set out in this warrant. Marshal, [or. Deputy Marshal^ Messenger. Fees and Expenses. 1. Service of warrant 2. Necessary travel at the rate of 5 cents a mile each way. 3. Notice to creditors, 10 cents each 4. Actual expenses in publishing notices as follows 5. Actual expenses in custody of property and other services as follows 00 [Here render the particulars.'] Marshal, [or, Deputy Marshal^ Messenger. Affidavit as to Expenses. District of A. D. 18 . Personally appeared the said , messenger, and made oath that the above expenses returned by him under numbers four and five have been actually incurred and paid by him, and are just and reasonable. One of the Registers in Bankruptcy in said district. BANKRUPTCY PRACTICE. 171 Form, No. 60. ADJUDICATION WHEBE DEBTOR IS FOUND NOT BANK- EUPT. In. the District Court of the United States, For the District of In the Matter of Bankrupt In Bankruptot. At , in said district, on day of , A. D. 18 . Before Honorable , judge of the district of District of , ss : This cause came on to be heard at , in said court, and [Sere state the proceedings, whether there was no opposition, or, if opposed, state what proceedings were had, and when and where, and what counsel appeared for the several parties.] And thereupon, and upon consideration of the proofs in said cause, (and the arguments of counsel thereon, if any,) it was FonND that the facts set forth in said petition were not proved ; and it is therefore Ordered, That said pe- tition be dismissed, and that all proceedings under the same be vacated and annulled. Witness the Honorable , judge of the said court, and / ,h**' "L } the seal thereof, at , in said district, on the day of , A. D. 18 . . Clerk of District Court, for said district. [N. B. 1. — If default be made by the debtor to appear pursuant to the order upon a creditor's petition, the subsequent order may be made by a register in bankruptcy. . [N. B. 2. — If no schedule of creditors shall be delivered to the messenger by the bankrupt, the messenger shall prepare such schedule from the best in- formation he can obtain, and send notices accordingly.] 173 BANKRUPTCY PRACTICE. Form No. 61. DENIAL OF BANKKUPTCT, AND DEMAND FOE JUET BY DEBTOR. In the District Court of the United States, For the District of In the Matter of the Petition of , Creditor, vs. , Debtor. •■ In Bankeuptot. At , in said district, on the day of A. D. 18 , District of , ss : And now on this return day [or, adjourned return day] for the hearing of said petition, the said appears and denies that he has committed the act of bankrupcy set forth in said petition, and avers that he should not be declared bankrupt for any cause in said petition alleged, and this he prays may be inquired of by the court, [or, he demands that the same may be inquired of by a jury.] Witness the Honorable Judge of the said court, and j Seal of • the seal thereof, at , in said district, on the I the court, f , „ A -n 1 Q day of , A. D. 18 . ClerTc of District Court, for said district. BAITKKUPTCy PEACTICE. 173 Form No. 62. OEDEE OF COUET UPON DENIAL OF BANKEUPTOy AND DEMAND FOE JTJET TEIAl. {Involuntary Bankruptcy.) In the District Court of the United States, For the District of In the Matter of the Petition of , Creditor, vs. , Debtor. - Ik Bankruptot. At , in the said district, on the day of , 18 . District of , ss : Upon the demand in writing filed by the respondent to said petition, that the fact of the commission of an act of bankruptcy may be inquired of by a jury, it is Ordered, That said issue be submitted to a jury at the present term of this court, (if a jury be in attendance,) or, if in vacation, at the next term of this court. Witness the Honorable /Seal of \ the seal thereof, at \thB court./ ' day of , judge of the said court, and I in said district, on the A. D. 18 Cleric of District Court for said district. 174 BANKRUPTCY PRACTICE. F(yrm, No. 63, APPOINTMENT or TEUSTEES UNDER SECTION 43. In the DLstrict Court of the United States, For the District of In the Matter of - In Bankruptot. Bankrupt . At this meeting of the creditors of said bankrupt, called specially by- order of said court, for the purpose of determining in what manner the estate of said bankrupt shall be settled, it was resolved by-4hree-fourths in value of the creditors whose claims have been proved, as follows : 1st. That itisfortheinterest of the general body ofthe creditors of said that the estate of said , bankrupt, should be wound up and settled, and distribution made among the creditors by trustees under the inspection and direction of a committee of creditors. 2d. That this resolution be certified and reported to the court. 3d. That be nominated as trustee to take, hold and distribute said estate. 4th. That , of , of , be the committee of the creditors under whose direction the said trustees shall act. Creditors. Amount of Debts. Dolls. Cts. Affidavit of Bankrupt. A. B., the said banKrupt, being duly sworn, \or^ affirmed] says that the names of the persons affixed to the foregoing resolution represent three- BANKRUPTCY PRACTICE. 175 fourths in value of all his creditors whose claims have been proven against his estate. Subscribed and to, before me, this day of , A. D. 18 . Register, [or, U. S. Commissioner.} Certificate of Register thereon. In the District Court of the United States, For the District of (In Bankruptcy.) At , the day of , A. D. 18 ,1 hereby certify that at a meeting of the creditors of said , held this day in pursuance of a notice regularly given according to the provisions of the act of Congress entitled, &c., approved March 2, 1867, [or, according to the order of the court, as the case may be,] the above resolutions were adopted and signed by three fourths in value of the creditors of said bankrupt, who were present or represented at said meeting. Register in Bankruptcy, Order of the Court on above Proceedings. In the District Court of the United States, For the District of In the Matter of Bankrupt In Bankruptot. The foregoing certificate having been filed and read, it is Ordered, That the said shall convey, transfer, and deliver all his property or estate to , as trustee by deed, in the following form : District of , ss : In the district court of the United States for said district. This indenture made this day of , A. D. 18 , between . , (the debtor,) of , in the county of , and state of , and , on behalf and with the consent of , creditors of the said , witness- ETH, that the said , (the debtor,) hereby conveyif, transfers, and delivers all his estate and efifects to , absolutely, to have and to hold the same in the same manner and with the same rights in all respects as the said would have had or held the same if no pro- 176 EA2TKRUPTCY PRACTICE. ceedings in bankruptcy had been taken against him, to be aj)plied and ad- ministered for the benefit of the creditors of said , in like man- ner as if said had been at the date hereof duly adjudged bank- rupt, and the said (trustees) had been appointed assignee in bankruptcy un- der said act In testimony whereof, the said , (debtor,) and the said , (trustees,) in acceptance of said trust, have hereunto set their hands and seals> this day of , A. D. 18 . Executed in presence of — , [l. s.] , [l. s.] , [l. s.] This day appeared before me, a register in bankruptcy, the above-named , (banJcrupt,) and acknowledged the foregoing instrument by him signed to be his free act and deed. i Begister in Bankruptcy. We hereby give our assent to the execution of the above deed: Names of Creditors. Kesidence. Amount. Dolls. Cts, Oath of Bankrupt. In the District Court of the United States, For the District of In the Matter of Bankrupt . In Bankruptot. , the said bankrupt, being duly sworn, doth depose and say that he has conveyed, transferred and delivered all his property to the trustees in the above indenture named, and that the BANKRUPTCY PRACTICE. 177 persons signing their consent to the above conveyance represent three- fourths in value of all his creditors whose claims have been proved against his estate. Bankrupt. Subscribed and sworn \or, affirmed] this day of , A. D. 18 . Before me, , Register in, Bankruptcy. Witness the Honorable , judge of the said court, and the f Seal of 1 seal thereof, at , in said district, on the day tihe court.! ^f , A. D. 18 . Clerk of District Court, for said district. Advertisement of Trustee. In the District Court of the United States, For the District o^ (In bankruptcy.) This is to give notice, that by an indenture bearing date the day of , A. D. 18 , " , of , has conveyed and assigned all his estate and effects whatsoever to , as trustee, upon trust for the benefit of all the creditors of , and that said conveyance was duly executed according to the provisions of the 43d section of the bankrupt act of March 2, .1867. Dated this day of , A. D. 18 . Trustees. Order of Court. The foregoing proceedings under the 43d section of the bankrupt act of March 2, 1867, having been placed on file and read, it is Ordered, That all proceedings upon said petition in bankruptcy be stayed until the further order of the court. Witness the Honorable , judge of the said court, and the f Seal of 1 seal thereof, at , in said district, on the day I tte court, /of 4 D 18 12 Clerk of District Court, for said district. 178 BANKRUPTCY PEACTICE. Form No. 64. OEDEK CONCEENING SALE OP PKOPEETT BY ASSIGNEE. la the District Court of the United States, For the District of In the Matter of Bankrupt In Bankrtjptot. At , in said district, on the day of , A. D. 18 . District of , ss : Upon the representation of , a creditor of said , and upon the proofs filed therewith, it is Ordwtd, That the real estate of said bankrupt, when offered for sale by his assignee, shall be sold in lots or par- cels as follows, [-Here follows the direction by referenee to plat or any other specific description or order in which the property shall he sold.] Witness the Honorable , judge of the said court, and f Seal of > the seal thereof, at , in said district, on the day I the court. J ^f A J) ig . Clerk of District Court, for said district. Form No. 65. OEDEE CONCEENING SALE OP PEOPEETY OF COEPOEATIOlir. In the District Court of the United States, For the District of In the Matter of the bankruptcy of A Corporation formed under the laws of the State of - In Bankruptot. At , in said district, on the day of , A. D. 18 . District of , ss : Upon the representation of , a creditor, [or, the party ' BANKRUPTCY PEACTICE. I79 interest,] and upon the proofs filed therewith, it is Ordered, That the fran- chise of said corporation be sold in fi-actional parts according to the number of shares therein, as follows, [2/ there le one thousand shares of the cor- poration, the. order may require that the franchise he sold infractions of , or in any other proportion.] Witness the Honorable , judge of said court, and f Seal of > the seal thereof, at , in said district, on the day \th(icourt.j <,f , A. D. 18 . Clerk of District Cotirt, for said district. Form No. 66. OKDEK OF DIMINUTION OF CLAIM. In the District Court of the United States, For the District of In the Matter of Bankrupt In Bankruptcy. At , in said district, on the day of , A. D. 18 . District of ,ss: Upon the evidence submitted to this court upon the claim of , against said estate, {and, if the fact be so, upon hearing counsel thereon,) it is Ordered, That the amount of said claim be reduced from the sum of , as set forth in the affidavit in proof of claim filed by said creditor, in said case, to the sum of , and that the latter-named sum be entered upon the books of the assignee as the true sum upon which a dividend shall be computed, [if with interest, insert, " with interest there- on from the day of , A. D. 18 ."] Witness the Honorable , judge of the said United States District Court. C2erle of District Court, for said district. 180 BANKRUPTCY PRACTICE. Form No. 67, EXPTTNGING OE ALLOWANCE OE CLAIM. In the District Court of the United States, For the District of In the Matter of Bankrupt - In Bankruptot. At on the day of in said district, A.D. 18 . District of , ss : Upon the evidence submitted to the court upon the claim of against said estate, (and, if the fact be so, upon hearing counsel thereon^ it is Ordered, That said claim be disallowed and expunged from the list of claims upon the assignee's record in said case. Witness the Honorable , judge of said United States District Court. Clerk of District Court, for said district, [N. B. — If the claim is found to be good, say, " It is Ordered, That said claim he established to the fuU amount thereof."^ BANKRUPTCY PEAOTICE. 181 Form JVo. 68. IN CASE OP DISALLOWANCE THE CEEDITOE MAT FILE THE rOLLOWINa NOTICE OF APPEAL. In the DLstrict Court of the United States, For the District of In the Matter of Bankrupt . - In BANKEXTPTor. To At , on the day of , A. D. 18 Assignee of said estate : You are hereby notified that I claim an appeal from the decision of the judge of said court made on the day of , A. D. 18 , refusing to allow my claim when presented against the estate of , bankrupt, to the circuit court of the United States next to be holden at , iu said district, on the day of , A. D. 18 . [If the appeal is from a disallowance of part of the claim, instead of " re- fusing to allow my claim," say, " reducing my claim."] , Creditor. [Add Statement, § 24.] EULES IN EQUITY. The Eules governing Proceedings in Equity and Appeals — forming a part of this practice — are published so conveniently that it is deemed unne- cessary to insert them here. The Rules at Common Law of the Second Circuit are inserted hereafter — not only because of their applicability to Bankruptcy Practice in this District, but because of the difficulty of obtaining them in convenient form. EULES IN BAIS^KRUPTCY. SOUTHERN DISTRICT OP NEW YORK. At a stated term of the district court of the United States of America for the southern district of New York, held at the city of New York, in and for said district, on the 22d day of June, in the year of our Lord, one thousand eight hundred and sixty-seven. Present — The Honorable Samuel Blatchfokd, District Judge. Ordered, That the following Rules, Orders, and Regulations be prescribed as rules governing proceedings in bankruptcy in the district court of the United States'for the southern district of New York, under the Act entitled " An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2d, 1867, in addition to and with reference to the " General Orders in Bankruptcy," and the Forms specified in the schedules thereto annexed, framed by the justices of the supreme court of the United States, in pursuance of the tenth section of said act, and adopted by said court and promulgated May 16th, 1867. Extract from the Minutes, George P. Betts, Clerh. JRule 1. In voluntary bankruptcy, where the petition states that , the debtor, whether an individual, a copartnership, a corporation, or a joint-stock com- pany, has resided or carried on business for the six months next immediately preceding the time of filing the petition, or for the longest period during such six months, in the city and county of New York, the petitions shall be deferred, in rotation, by Form No. 4, to the several registers appointed in the six Congressional districts therein, commencing with the fourth and ending with the ninth, in the order of the times of filing such petitions ; and where in any other county, the petition shall be referred, by Form No. 4, to the register appointed in the Congressional district in which such county is em- braced. A petition may be otherwise referred for special reasons, or in 184 BANKKUPTCT PEACTICE. cases not herein provided for. In involuntary bankruptcy, the register -will be designated with reference to the special circumstances of each case. The order, Form No 4, designating the register to act upon the petition, in voluntary bankruptcy, shall, in the case of a register in any district in the city and county of New York, specify as the place where the register shall act upon the matters arising under the case, and the warrant, Form No. 59, in involuntary bankruptcy, shall, in a like case, specify as the place where the meeting of the creditors will be held, the ofiSce of the register as desig- nated by him, by a writing filed with the clerk. In the case of a register in any district other than one in the city and county of New York, the order, Form No. 4, in voluntary bankruptcy, shall specify as the place where the register shall act upon the matters arising under the case, an office of the register as designated by him in like manner, in the county in which is the place of residence of the petitioner, or the place of business of the copartner- ship corporation, or joint-stock company, as set forth in the petition, having due regard always to the proximity and convenience of such office to such place of residence or place of business ; and, in a like case, in the warrant. Form No. 59, in involuntary bankruptcy, the place will be designated with reference to the special circumstances of the case. The day named in the order. Form No. 4, for the attendance of the bank- rupt before the register, in voluntary bankruptcy, and the day named in the warrant, Form No. 59, for the meeting of creditors, in involuntary bank- ruptcy, will be fixed with reference to the convenient and speedy progress of the case. Every register in a district other than the city and county of New York, shall, by a writing filed with the clerk, designate the days on which he will attend at a place or places within each county in his district. Every register may, in any case referred to him, fix the times when he will act upon the several matters arising under such case, other than the at> tendance of the bankrupt, as fixed by the order. Form No. 4, and the meet- ing of creditors as fixed by the warrant, Form No. 59 ; but the Register shall not, without leave of the court, be at liberty to change the place spe- cified in the order. Form No. 4, or to act upon the matters arising under a ease in involuntary bankruptcy at any other place than the one specified in the warrant. Form No. 59, as the place for the meeting of creditors. Rule 2. The adjudication of bankruptcy, Form No. 58, shall contain a provision that the case be referred to one of the registers, naming him, to take such proceedings thereon as are required by the act. Rule 3. Whenever a petition is referred to a register in a voluntary case, and whenever, in an involuntary case, an order is made, on an adjudication of bankruptcy, referring the case to a register, the clerk, at the time he sends BANKRUPTCY PRACTICE. 185 or delivers to the register a copy of the order of reference, shall pay to him ' the sum of twenty-five dollars out of the fifty dollars deposited with the clerk under section 47 of the act, the same to be applied to the payment of such fees of the register as are chargeable to the petitioner making the de- posit. Whenever, by a return made to the court, by the register, of the fees so chargeable for services rendered by him, it shall appear that the ag- gregate amount of such fees exceeds the aggregate payments made thereou to the register out of the fifty dollars, the clerk shall, if requested by the register, make further payments to him thereon to the amount of such fees, until the fifty dollars shall all of it be paid out, and thereafter the fees of the register which are chargeable to such petitioner shall be paid or secured in like manner with the other fees provided for by Rule 29 of the " General Orders in Bankruptcy." The foregoing provisions of this Rule shall not apply to a case of volun- tary bankruptcy, where, under Rule 30 of the " General Orders in Bank- ruptcy," the judge shall direct that the fees and costs in the case shall not exceed the sum required by the act to be deposited with the clerk ; but, in every such case, such of the disbursements paid out by the register and marshal for the purposes specified in Rule 12 of the " General Orders In Bankruptcy,'' and returned by them under oath, under said Rule 12, as are chargeable to the petitioning debtor, shall be refunded to them severally by the clerk out of such sum ; and the clerk, marshal, and register shall perform the duties required of them by such, petitioning debtor without first re- quiring payment or security for their fees, subject to the application by the court to such fees, of so much of such sum as shall remain after refunding such disbursements. Mule 4. The register shall, under Rule 7 of the " General Orders in Bankruptcy,'' examine the duplicate copy of the petition and schedules specified in Form No. 4, and such duplicate copy shall either be a copy of such filed original, certified by the clerk under the seal of the court, or else a duplicate original, signed and verified in like manner with the original petition and schedules filed with the clerk, and shown by evidence satisfactory to the register to be such duplicate original ; and the certificate of the register, required by said Rule 7, as to the correctness in form of the petition and schedules, shall be made in writing, and be signed by him, on the duplicate copy which he so examines ; and he shall not issue any warrant under Form No. 6, until he shall have so made a certificate, after such examination, that the petition and schedules are correct in form. No such certificate shall be made unless the whole eleven of the sheets composing schedules A and B, in Form No. 1, form part pf the schedules to the petition. 186 BANKRUPTCY PRACTICE. Rule 5. The warrant issued under section 11 or section 42 of the act, according to Form No. 6 or Form No 59, shall specify two, if there be two, and, if not, then one, of the newspapers named in Rule 21, published in the county stated in the petition as the one in which the debtor, whether an individ- ual, a copartnership, a corporation, or a joint-stock company, has resided or carried on business for the six months next immediately preceding the time of filing the petition, or for the longest period during such six months the selection of such newspapers to be made by the register to whom the petition or case is referred. The notices to be published in pursuance of the warrant shall be published twice in each newspaper selected. The warrant shall designate the creditors on whom personal service is to be made, and notice shall be served by mail upon all creditors other than those so designated. No creditor resident out of this district shall be de- signated for personal service. Whenever a debtor shall furnish, at his own expense, to the marshal, printed copies of the notices required to be served by the warrant, no fee shall be allowed to the marshal for copying into the notices the names and places of residences of the creditors and the amounts of their debts. The warrant, Form No. 6, shall be regarded as process under Rule 2 of the " General Orders in Bankruptcy,'' and such warrant shall, before it is issued to the marshal, in addition to being signed by the clerk and sealed with the seal of the court, be signed by the judge or the register at the fool thereof, in the following form, with the date : " Issued by me, , 18 , , District Judge, [or Register in Bankruptcy."] Whenever the order Form No. 10 is used by a register, the conclusion of said Form may be varied so that the order may be attested or signed by the register alone. Bide 6. All proofs of debt which shall be made and verified prior to the election or appointment of an assignee, shall be delivered or sent to the register to whom the case is referred. If the register entertains doubts of the validity of any claim, or of the right of a creditor to prove it, and is of opinion that such validity or right ought to be investigated by the assignee, he may post- pone the proof of the claim until the assignee is chosen. Hule 7. In case no choice of an assignee is made by tne creditors at their first meeting, or in case an assignee, chosen by the creditors, fails within five BANKRUPTCY PEACTICE.- 187 days to express iu writing his acceptance of the trust, or m case of a vacan- cy in the office of an assignee, caused by his removal, resignation, death, or other cause, John Sedgwick, Esquire, of the city of New Tork, counselor at law, will be appointed assignee where the judge is required by the act to appoint the assignee, and where the said John Sedgwick is appointed by the register, such appointment is hereby approved by the judge. In special cases, vacancies in the office of assignee will be filled by an election by the creditors, or by the appointment of an assignee other than the one named. Rule 8. Under Rule 9 of the " Greneral Orders in Bankruptcy,'' an assignee shall notify the register of his acceptance or rejection of the trust, and the reg- ister shall immediately, on receiving such notice, report it to the clerk of the court Rule 9. Every assignee shall, immediately on receiving an assignment of an estate in bankruptcy, send or deliver such assignment to the clerk of the court, who shall make a true copy of it, and certify such copy under his hand and seal of the court, and such certified copy shall then be placed and' kept by him on file, and the original assignment shall be returned to the assignee. Rule 10. Notice of the appointment of an assignee shall be given by publication once a week for three successive weeks in two of the newspapers named in Rule 21, at least one of which shall be a newspaper published in the city and county of New Tork, such newspapers to be selected by the register with due regard to the requirements of section 14 of the act. Rule 11. Notices of sale by an assignee under Rule 21 of the " General Orders in Bankruptcy," shall be advertised in two, if there be two, and if not, then in one, of the newspapers named in Rule 21, published in the county where the sale is to take place, the selection of such newspapers to be made by the register. Rule 13. The notice to creditors of dividends or meetings, required by the 17th 27th, and 28th sections of the act, shall be such as is provided for by the or- der contained in Form No. 28, and the register shall select one newspaper, in which the notice shall be published, from among the newspapers specified in Rule 21, 188 BANKRUPTCY PRACTICE. Rule 13. The list of debts provided for by section 23 of the act, shall be made and certified by the register to -whom the petition or case is referred, and he shall place thereon all debts which are duly proved. Rule 14. The assignee shall, under section 27 of the act, produce and file vouchers for all payments made by him, except as to items in regard to which the court shall, for reasonable cause, dispense with vouchers. Rule 15. The notice by the assignee, under section 28 of the act, of the filing of his account, and of his application for a settlement and discharge, shall be . given by him by sending written or printed notices by mail, prepaid, of such filing, and of the time of such application, to all known creditors of the bankrupt. Rule 16. All questions for trial or hearing, under sections 31 and 34 of the act, shall be tried or heard at a stated session of the court, on four days' notice of trial or hearing, to be served by either party upon the other party, and upon the clerk, and a calendar of the same shall be made. Rule 17. The application, under section 34 of the act, to set aside and annul a discharge, shall be verified by the oath or affirmation of the applicant, and the answer of the bankrupt to the application shall answer specifically the allegations of the application, and shall be verified in like manner. Rule 18. The demand in writing for a trial by jury, under section 41 of the act, shall be signed by the debtor or his attorney. Rule 19. AH issues, questions, points, and matters stated in writing, under Rule 11 of the " General Orders in Bankruptcy," or under the 4th section or the 6th section of the act, or according to Form No. 50, and adjourned into BANKRUPTCY PRACTICE. 189 court for decision, or stated in a special case for the opinion of the court, shall be certified to the judge by the register by a certificate, -which shall also state briefly the opinion of the register on the issue, question, point, or matter, and shall be delivered or sent to the clerk; and no oral or written argument shall be allowed on any such issue or question, unless by special leave of the court. Rule 20. In pursuance of Rule 28 of the " General Orders in Bankruptcy," the following national banks in this district are designated as those in which all moneys received by assignees or paid into court in the course of any proceedings in bankruptcy shall be deposited, namely : In the city and county of New York — Bank of New York, National Banking Association. In Westchester county — Westchester County National Bank, at Peekskill; and First National Bank, at Sing Sing. In Putnam county — Putnam County National Bank, at Carmel. In Rockland county — Rockland County National Bank, at Nyack. In Orange county — Highland National Bank, at Newburgh ; Goshen National Bank, at Goshen ; and Walkill National Bank, at Middletown. In Sullivan county — National Union Bank, at Monticello. In Dutchess county — Farmers' and Manufacturers' National Bank, at Poughkeepsie. In Columbia county- — Farmers' National Bank, at Hudson. In Ulster county — National Ulster County Bank, at Kingston. In Greene county — Tanners' National Bank, at CatskilL All moneys received by the clerk of the court on account of any bank- rupt estate, or paid into court in the course of any proceedings in bank- 190 BANKRUPTCY PRACTICE ruptcy (except the sums deposited with the clerk under section 47 of the act), shall be deposited in said bank in the city and county of New York ; and all sums received by an assignee on account of any estate of which he is assignee, shall be deposited in such one of said banks as he shall select by a writing to be signed by him and filed with the clerk. The check, or war- rant, for drawing moneys deposited by the clerk, shall be signed by the clerk and countersigned by the judge. The check, or warrant for drawing moneys deposited by an assignee, shall be signed by him and countersigned by the register designated to act in the case of the estate on account of ■which such moneys were deposited. Rule 21. The following newspapers are designated as those in which all publica- tions required by the Act, or the " General Orders in Bankruptcy," or these Rules, may be made, namely: In the city and county of New York — - New York Times, and Commercial Advertiser. In Westchester county — Statesman, at Yonkers ; and Republican, at Sing Sing. In Putnam county — Putnam Free Press, at Carmel; and Cold Spring Recorder, at Cold Spring. In Rochland county — Rockland County Journal, at Nyack ; and Rockland County Messenger, at Haverstraw. In Orange county — Daily Journal, at Newburgh ; Goshen Democrat, at Goshen ; Middletown Press, at Middletown ; and Tri-States' Union, at Port Jervis. In Sullivan county — MonticeUo Republican, at Montioello. In Dutchess county — Poughkeepsie Eagle, at Poughkeepsie; and Poughkeepsie Telegraph, at Poughkeepsie. In Columbia county — Columbia Republican, at Hudson ; and Hudson Gazette, at Hudson. In Ulster county — Kingston Journal, at Kingston ; and Kingston Argus, at Kingston. In Greene county — Examiner, at Catskill; and Windham Journal, at Windham. BANKRUPTCY PRACTICE. 191 The marshal and the clerk, and every register or assignee, when required to publish any notice or advertisement, shall preserve and return to the court a copy, cut from each newspaper in which it is published, of each no- tice and advertisement as published, with a certificate as to the particulars of the publishing, showing that the required pnblication has been made. Rule 22. In case of the absence of the judge at the time and place noticed or ap- pointed for any hearing or proceeding before him in bankruptcy, or if the matter then fails to be called or acted on, the same shall be deemed contin- ued, without other order to the next sitting of the court thereafter, at which time the like proceedings may be had thereupon as if first noticed or ap- pointed for such day. Ruli 23. If the marshal shall, under Rule 13 of the " General Orders in Bankrupt- cy," appoint special deputies to act as messengers, he shall, as far as possi- ble, designate one or more of such special deputies to be attached to the office of each register, for the purpose of causing the notices to be published and served which are specified in the warrants issued in the cases referred to such register. Rule 24. All notices served or sent by mail by the marshal, the cleri, or an assig- nee, shall be so written or printed and folded that the direction, postage stamp and post mark shall be upon the notice itself) and not upon an en- velope or other separate piece of paper. Rule 25. Special cases not comprehended within the foregoing Rules, or the " G-eneral Orders in Bankruptcy," or the Forms, shall be submitted to the judge. 192 BANKRUPTCY PEACTICE. AMENDMENTS TO EULES. At a stated term of the district court of the United States of America for the southern district of New York, held at the city of New- York, in and for said district, on the first day of July, in the year of our Lord, one thousand eight hundred and sixty- seven. Present — The Hon. Samcel Blatohford, District Judge. Ordered, That Rule 3 of the Rules, Orders, and" Regulations in Bank- ruptcy prescribed by this court, June 22, 1867, be amended by striking out the word " fifteen " and inserting the word " twenty-five," and by striking out the words " under oath," where they first occur in said Rule. Ordered, That Rule 5 of said Rules^ Orders, and Regulations be amended by striking out the words " by the petitioner or his attorney, or in default thereof;" and also by striking out the words " but in the city and county of New York, one of them shall be a morning paper and one an evening paper." Ordered, That Rule 7, of said Rules, Orders, and Regulations be amended by striking out the words '' also where the assignee is appointed by the reg- ister subject to the approval of the judge," and inserting instead the follow- ing : " where the said John Sedgwick shall be appointed by any register, such appointment is hereby approved by the judge ;" and also by striking out the last sentence and inserting instead the following : " In special cases, vacan- cies in the office of assignee will be filled by an election by the creditors, or by the appointment of an assignee other than the one above named." Ordered, That Rule 10 of said Rules. Orders, and Regulations be amended by striking out the word " assignee ■* where il last occurs, and inserting in- stead the word " register." Ordered, That Rule 11 of said Rules, Orders, and Regulations be amended by striking out the words " assignee ; but in the city and county of New York, one of them shall be a morning paper, and. one an evening paper," and inserting instead the word " register." Ordered, That Rule 12 of said Rules, Orders, and Regulations be amended by striking out the word " assignee," and inserting instead the word " reg- ister." Ordered, That Rule 21 of said Rules, Orders, and Regulations be amended by striking out the words " Port Chester Monitor at Port Chester," and in- serting instead the words " RepMican at Sing Sing." Extract from the Minutes, George F. Betts, Cleric. EULES CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN THE SECOND CIRCUIT. Common Law Rules. (See General Orders, 32.) Rule 1. — Form of Meal Actions. Suits relating to the title or possession of land (including all real actions), are to be the same in form, in this court, and to be conducted by like pro- cesses, as are now used in the supreme court of the State of New York. Hule 2. — Commencemeni of Suits. Other actions at law shall be commenced by capias ad respondendum, or summons, in which shall be expressed the true cause of action ; except that bills of privilege may be filed, according to the usual course of the court, at the election of the plaintiff. Bute 3. — Writs — Signature, Test, and Time. Writs and process must be signed and sealed by the clerk, and have the name of the attorney at whose instance they issue indorsed upon them. Usually, they are to bear test the day they are issued, and may be re- turnable the same day, or any day thereafter (Sunday excepted), in term, or vacation ; but alias and pluries writs may be tested on the return day of the next preceding process; and writs of execution, attachment for contempt of 13 194 BANKRUPTCY PRACTICE. court, or non-payment of costs, writs of error, mandamus, or inliibition, and writs of recognizance of bail in civil causes, must be returnable in term. When bail is to be charged, the capias ad satisfaciendum shaU be placed in the marshal's ofllce, at least six days before the return day thereof. Rule 4^. — Bail; When, and Amount. The defendant may be held to bail, of course, in actions of debt, cove- nant and assumpsit, where the suit is on an obligation or agreement to pay money, and the writ expresses the cause of action and the true amount due ; bail may be taken to double the amount stated in the writ, provided, how- ever, that the addition to such amount shall not in any case exceed one thou- sand dollars. In all other cases (except when regulated by statute), bail shall not be exacted without an order of a judge indorsed upon the writ. Rule 5. — Excessive Bail, Penalty. If the writ is issued for a sum greater than is justly due, the plaintiff shall pay all costs incurred in proceedings to obtain a mitigation of bail. Rule 6. — Rules against the Marshal. Rules, that the marshal return process, or bring in the body, shall be rules often days, "or that he show cause, at the expiration of that time, be- fore one of the judges at chambers, why an attachment should not issue against him ;" and in default of sufficient cause shown, an attachment may be ordered, and such attachment may be proceeded upon, before either of the judges, and the marshal be committed or discharged upon his order ; all the proceedings shall be filed, and a rule of court be entered upon the final order of the judge in conformity thereto. Rule 7. — When Bail to he put in. In bailable suits, the defendant shall appear, and put in bail to the action and give due notice thereof, within ten days after the return day of the process served upon him, or, if the suit was removed to this court from a State court, within ten days after filing a copy of the process in this court. Rule 8. — Exception to Bail. The plaintiff shall except to bail and give notice thereof, within four days after notice that the same has been put in, and, in default thereof, such bail shall be deemed perfected. BANKRUPTCY PRACTICE. igg Rule 9. — Justification of Bail. Witliin four days after notice of exception, the bail shall justify, or new bail be put in and perfected ; and if bail justify at any time subsequently such subsequent justification shall not affect any proceedings on the bail bond, or against the officer, which may have been instituted, unless upon the special order of a judge, and on such terms as he shall impose. Rule 10. — Before whom. Bail may justify before the clerk, or one of the commissioners to take affidavits, &c., appointed by this court, with a right of appeal to one of the judges at chambers, and thence to the court. Rule 11. — Waiver of Bail The service of a declaration before bail shall be put m, or the acceptance of a plea before the time of exception to bail shall have expired, shall not be construed to be a waiver of bail, or of justification. Rule 12. — Assignment of Bail Bond. If bail to the officer becomes special bail, and the plaintiff except there- to, he may nevertheless take an assignment of the bail bond, if bail to the action is not duly perfected. Rule 1"^.— Terms for Staying Proceedings. The following shall be terms on which proceedings in the suit on the bail bond shall be stayed, or the attachment against the officer set aside. 1st. Putting in and perfecting bail above, and paying the costs of the suit on the bail bond, or of the attachment and proceedings thereon and of the motion, unless a full compliance with these terms shall have been pre- viously offered. 2d. Consenting to place the cause in the same condition of progress as if bail had been duly put in and perfected. And if by the default in put- ting In bail, a trial shall have been lost, then the suit on the bail bond, or proceedings on attachment, shall stand as security with such leave to pro- ceed thereon, as the judge may allow. Rule 14:.—Dtfendant''s Appearance. The appearance of the defendant indorsed on the capais shall be a suffi- cient appearance, where special bail is not required. 196 BANKRUPTCY PRACTICE. Rule 15. — Mitering Mules of Course. All rules, which, by the practice of this court, either party is entitled to enter -without special application to the court, may be entered as well in vacation as in term, and shall have the like effect as if entered in term. Rule 16. — Mule to Declare. The defendant having perfected his appearance, may, at any time there- after, take a rule against the plaintiff " to declare within twenty days after service of notice of the rule, or be non-prossed." Mule 17. — Mule to Plead, &c. The rule to plead, answer, or join in demurrer, shall be a rule of twenty days after service of a notice of the rule, and of a copy of the pleading to be answered ; except the rule to join in demurrer to a plea in abatement, which shall be a rule of four days only. Mule 18. — Service of JSci. Fa. In suits commenced by scire facias, the service of the writ shall be per- sonal on the party to be summoned, except in proceedings for the revival of a judgment, or continuance of other liens. Mule 19. — The Same. A scire facias upon recognizance, or» to revive a judgment, or continue any other lien, shall be served by personal summons of the defendant, or, if he cannot be found, by leaving a copy at his residence or usual place of business : and the marshal shall return the manner of service. If the de- fendant has no known residence or place of business within the district, the plaintiff may proceed as heretofore by two writs of scire facias. But the return of "nihil" by the marshal shall also state the reason for not making the service as above directed. Mule 20. — Mules to Plead on ScL Fa. Upon the return of "scire feci" to a scire facias, or "nihil" to an alias scire facias, the rule shall be that the defendant appear and plead in twenty days, or judgment; but notice of the rule to appear need not be served; nor notice of the rule to plead unless the defendant appear. BANKRUPTCY PRACTICE. 197 Rule 21. — JRespoTideas Ouster and Default. When there shall have been a judgment of respondeas ouster on demur- rer to a plea in abatement, the plaintiflf having served the defendant with a notice of the judgment, may, after four days from the day of service of such notice, cause the default of the defendant in not pleading to be entered. Rule 22. — Terms of Waiving a Default. After default entered, the party shall not be bound to accept a declara- tion, pleading, or answer of course, unless the opposite party shall file an affidavit of merits, and serve a copy, pay, or offer to pay the costs of the default, and consent to place the cause in the same condition as if the pleading had been duly filed and served. Rule 23. — Judgment after Default, and Damages. The party in whose favor a default has been entered, may, at any day after, enter a rule for such judgment as is to be rendered by law by reason of the default ; and in all actions sounding in damages after judgment for the plaintiff by default, or on demurrer, the damages shall be assessed on writ of inquiry ; the damages on notes, biUs, or specialties for the payment of money, shall be assessed by the clerk. Rule 24. — Caption of Pleadings. The caption of declarations and all subsequent pleadings may be of the return day of the writ, and need not be stated as of any term of the court All pleadings must be signed by an attorney of the court. Rule 25. — Order to Show Cause of Action, &o. No order to show cause of action, mitigate bail, or for a bill of particu- lars, will be allowed, except upon affidavit showing probable cause therefor ; nor unless the order to show cause is applied for within four days after the arrest; and for particulars, within four days after the pleading, under which it is demanded, is filed and served. Rule 26. — Pleas to be Sworn, &c. ^ In actions founded upon contract, the defendant, if he shall appear and plead the general issue, shall annex to his plea, and file therewith an affidavit that he has a good and substantial defense upon the merits as he is advised by his counsel and verily believes, together with a certificate of counsel that he so advised the party ; otherwise such plea may be treated as a nullity. 198 BANKRUPTCY PRACTICE. Rule 27. — Gertlficate of Counsel. Special pleas or demurrers to pleadings shall be accompanied by a cer- tificate of a counselor of this court, that in bis opinion the special plea or demurrer is well founded ; otherwise the plea or demurrer may be treated as a nullity. Rule 28. — Plea in Abatement — When to he Served. If a plea in abatement is not served within ten days from the day of service of a notice of the rule to plead and copy of the declaration, the plaintiff shall not be held to receive the same without a special order of the court or a judge. Rule 29. — Amendment of Pleadings. The plaintiff may at any time before default for not replying shall be en- tered, if the plea shall be a special plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend the declaration ; and the rule to plead, which may have been taken against the defendant, shall then be deemed to be from the day of the ser- vice of a copy of the amended declaration : and in like manner where there shall be a demurrer to a declaration or other pleading, not being a plea in abatement, the party against whom the demurrer shall be taken, at any time before default for not joining in demurrer is entered, may amend the pleading demurred to : and in these cases the respective parties may amend of course, and without costs ; but shall not be entitled so to amend more than once. Nor shall any amendment be made without first entering in the book of common rules, a rule for the amendment, and either amending the pleading on file in a distinct manner, showing the amendment, or filing a copy of the amended pleading. Rule 30. — Cause, wTien to he deemed at Issue. If the defendant shall plead the general issue, and if the plaintiff shall not within twenty days after service of a copy of the plea, amend the decla- ration, or if either party shall in pleading, in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to such pleading within twenty days after service with a copy thereof, the cause shall, in each of these cases, be deemed to be at issue at the end of such twenty days. Rule 31. — Notices to he in Writing, and How Served. All notices shall be in writing ; and unless the party to be served there- with be an attorney of this court, residing in the city of New York, or shall have employed an attorney of this court, it shall be sufficient service BANKRUPTCY PRACTICE. I99 upon him to put up any notice, declaration, or other pleading or paper, in a conspicuous place in the clerk's office ; or the same may be given to the party. But if notice of a retainer shall be received after a copy of a de- claration and notice of rule to plead shall have been put up in the clerk's office, and before the defendant's default has been entered, a copy of the declaration and notice of the rule to plead, stating the time when the declar- ation and notice were put up in the clerk's office, shall be served on the de- fendant's attorney : and the time of pleading, in such case, shall be from the day of serving in the clerk's office, deducting the time that may have elapsed between the receipt of the notice of retainer and such service on the de- fendant's attorney. Bule 32. — Sermee of Notices and Pleadings. After notice of retainer, all notices, pleadings, and papers, shall be served on the attorney: provided, however, that where a defendant is returned in custody and remains in jail, and has retained no attorney, a copy of the declaration and notice of rule to plead shall be delivered to such prisoner, or to the officer or keeper of the jail in whose custody he is ; and, provided further, that where the object is to bring a party into contempt for disobey- ing any rule or order of court, the service shall be on him personally, unless otherwise specially ordered by the court. Rule 33. — Attorney's Agents and Service. When an attorney of this court who does not reside in the city of New York, has no agent in this court, but has one in the supreme court of the state, residing' in this city, he shall he considered the agent of such attorney in this court ; and if there is no such agent, service of all notices and papers directed to the attorney, by affixing the same in a conspicuous place in the clerk's office, shall be sufficient. Rule 34. — Appointment of, and Service on Agents. Service on an attorney's agent shall be as valid in all cases, as if made on the attorney himself. The appointment of agents in this court shall be in writing, signed by the attorney and filed with the clerk,, who shall keep a catalogue of the same with the attorney's names alphabetically arranged. Rule 35. — Notices of Trial, &c. Notices of trial, argument, hearing, or motion, are to be for the first day of term : if however sufficient cause is shown therefor, an order may be ob- tained from the court or a judge, permitting such notice to be given for any other day of term including times to which the court may stand adjourned. 200 BANKRUPTCY PRACTICE. Rule 36. — Notices of Justification. Notices of justification of bail, notices of motions, argument, or hearing, shall be served at least four days before the time of such justification, hear- ing, &c., and eight days, when the same shall be served pursuant to the 31st and 34th rules of this court. Notices of trial shall be at least eight days. Rule 37. — Computation of Time. The day on which any rule shall be entered, or order, notice, pleading, or paper served, shall be excluded in the computation of the time for complying with the exigency of such rule, order, notice, pleading, or paper ; and the day on which a compliance therewith is required, shall be included : except where it shall fall on a Sunday, in which case the party shall have the next day to comply therewith. Rule 38. — Notice of Enumerated Motions. The attorney of either party may give notice of argument of issue in law, or on writs of error or cases made, and set them down for hearing, and either party shall be at liberty to bring them on when called upon his no- tice, and if the other party does not appear, he may take such judgment or order, as he is entitled to thereupon, by default. Rule 39. — Motions to he made before the court. Motions in arrest of judgment; to set aside nonsuit; verdict, or inquisi- tion otherwise than for irregularity only ; to withdraw pleadings fronqi the files; or alter the minutes of court; to quash indictments; for a new trial; in relation to writs of error, mandamus, or certiorari ; to stay proceedings be- yond a stated term ; or for the judgment of the court on issues at law or case made ; or for the relief of special bail after they are fixed at law, must be made before the court in term. Rule 40. — Other Motions. All other motions may be made before either of the judges out of court. Rule 41. — Commissions. Commissions to take testimony may be taken out by either party after suit brought. Rule 42. — Notice thereof. Four days' notice shall be given in writing to the opposite party or his attorney, of the intention to sue out a commission, together with the names BANKRUPTCY PRACTICE. 201 of the commissioner or commissioners, witness or witnesses, when known, and residence and occupation of commissioners and witnesses, when known, and of the facts expected to be proved. Rule 43. — Rules therefor. At the expiration of the four days, a rule may be entered of course, in the common rules ordering such commission, unless proceedings are previously stayed by a judge, or unless the attorney of the opposite party file a written consent to admit on the trial, that the witness named will swear to the facts stated. Rule 44. — Seal, Directions, and Costs. All commissions must be issued under the seal of the court and signed by the clerk, with the name of the attorney moving it subscribed thereto. Thuy may be directed to one commissioner or three ; but no costs shall be taxed for the services of more than one commissioner, unless both parties unite in requiring a greater number. Rule 45. — Proceedings to be Stayed. After a commission is actually issued and in a train for execution, pro- ceedings may be stayed in the cause by a judge, on proper cause shown, a reasonable time for the execution and return thereof. Rule 46. — Where Moved. A commission may be moved for before the court, or a judge out of court (under special circumstances to be allowed by the court or judge), and the proceedings in such case are to be conformable to the rules of this court and the district court applicable thereto. Rule 47. — How Executed. A commission may be executed by a majority of the commissioners named therein, if more than one, and shall be accompanied by written or printed instructions directing the manner of its execution and return. Rule 48. — Interrogatories — How settled. The interrogatories for the direct and cross-examination shall be annexed to the commission, and in case the parties disagree respecting them, be pre- sented to a judge for his allowance at one time ; a copy of the direct inter- rogatories, with a notice of the time of presenting the same for allowance, shall be served eight days before such time, and copies of cross interrogato- ries four days after such service. 202 BANKRUPTCY PRACTICE. Bule 49. — When Witnesses not named— Objections. Witnesses not named in the commission may be examined by the com- missioners, and if the depositions are objected to on trial, the court will de- cide upon the sufficiency of the excuse for not naming them ; all objections to the depositions for this cause, shall, however, be deemed waived, unless notice in writing is given thereof to the opposite party, within four days after the commission is opened. Rule 50. — Return of Commissions. Commissions executed within the United States may be returned by mail, addressed to the clerk, and having the title of the cause marked upon the envelope; those executed out of the United States, may be returned in like form, by the usual mode of transmitting letters between such place and the city of New Tork. Rule 51. — Judgment as in case of Nonsuit. Motion for judgment, that the suit be dismissed for not going to trial, may be made after the discharge of the jury, in the same term for which notice of trial was given, or at the next term ; and the plaintiff shall not be per- mitted to stipulate to try the cause at the next term, unless upon sufficient excuse, to be approved by the court, for not having proceeded to trial ; and if the costs ordered to be paid on permission to stipulate, be not paid within twenty days after such permLssion, the defendant may, after demand and ser- vice of a certified copy of the order to pay costs, and of the taxed bill, on filing an affidavit of such demand and service, and of non-payment, enter judgment that the suit bedismissed in the same manner as if no permission had been given. Rule 52. — Papers to he furnished to the Court. Each judge shall be furnished at the argument, with a copy of the case, bill of exceptions, demurrer to evidence, demurrer book, or special verdict; or, on motion for a new trial upon newly discovered evidence, with copies of the affidavits or papers, whereon the motion is founded or opposed; or, if the motion be in arrest of judgment, with copies of the pleadings, or so much thereof as may be necessary; together with the points intended to be made by the respective parties. And copies of the affidavits and papers on which such motions are founded, shall be served on the opposite party, four days before the day for which the motion is noticed. BANKRUPTCY PRACTICE. 203 Rule 5'S.— Security for Costs. If the plaintiff at the commencement of the action be, or pending the same become, a non-resident of this State, or if on demand in writing by the defendant's attorney, like notice of his residence shall not be, the de- fendant may, upon proof of either such cause, enter a rule of course, that the plaintiflf give security for costs, within ten days after service of notice thereof, or be non-prossed. Mule 54. — Bond and Justification. The security shall be a bond to the opposite party, filed in the clerk's office, duly executed by some sufficient person residing within the district, in the penalty of one hundred dollars (unless a larger penalty shall be di- rected by the court or a judge), with a condition that if the plaintiff shall discontinue his action, or it be dismissed or non-prossed, or if judgment shall pass against him therein, he shall pay all such costs as shall be ad- judged or awarded against him in such action. The sufficiency of the security may be excepted to ; and thereupon such security shall justify be- fore the clerk within the respective periods, and in like manner as is the practice with respect to special bail. And on failure of giving such security, or in default of such justification, and on due proof of the service of notice of such rules, and of any such default, a judgment of non-pros may be entered. Rule 55. — Notes of Issue, and Calendar. "When a cause is noticed for trial or argument for the first day of the term, a notice thereof, with a note of the issue and of the pleadings and the attorneys' names, shall be delivered to the clerk on or before the Thursday .next preceding the term. And the clerk shall, as early as the following day have the calendar of causes to be tried, made up, arranging them according to the dates of their issues. And no cause shall be put upon the calendar, without the special order of the court, unless the note of issue shall be fur- nished as is hereby required. Rule 56. — Beatli of a Party. Where an action is pending in this court, and either party dies before final judgment and the cause of action survives, the legal representatives of the deceased party may, on presenting letters testamentary or of admin- istration in open court, be admitted voluntarily to come in and prosecute or defend such suit, as party thereto ; the letters testamentary or of adminis- tration remaining deposited in court during such term, to the end that any legal objection to the right of such representative to appear, may be taken. 204 BANKRUPTCY PRACTICE. Rule 57. — The Same. The order admitting such party, unless assented to by the opposite party, shall be nisi in the first instance, and become absolute if sufficient cause be not shown against it, ■within four days after notice thereof. Hule 58. — The Same. If such representative be appointed more than ten days before a stated term, an order may be entered nisi, in the common rules, authorizing him to prosecute or defend, and shall become absolute if not vacated or sus- pended, by order of a judge or the court, within ten days after service of a copy thereof on the attorney of the opposite party. Jiule 59. — The Same. When such rule is entered out of court, the letters testamentary or of administration, shall at the same time be deposited with the clerk, and so remain until the succeeding term, or until the rule becomes absolute, or is vacated as before provided. Hule 60. — Venire for Jurors. The clerk shall, fifteen days before a stated term, (and as many days before a special session, or adjourned term, as circumstances will permit, where fifteen days do not intervene), issue to the marshal a venire requiring him to summon twenty-four grand jurors, and thirty-six petit jurors. If the state of public business requires a greater number of petit jurors, a mandate shall be obtained from one of the judges, and be indorsed on the venire, directing the additional number of jurors to be summoned, which shall then be re- garded as part of such venire. Jiule 61. — Jurors — When to be summoned. AU jurors residing out of the city of New York, shall be summoned at least six days, and petit jurors residing within the city, four days before the return day of the venire. Rule 62. — JF'orm of Venire. The venire shall specify the qualifications of jurors; "free and lawful men, resident within the southern district of New York, above the age of twenty-one, and under the age of sixty years, each of whom shall have in his awn name, or right, or in trust for him or his wife, a freehold in lands, messuages, and tenements (or a personal estate if Tesident within the city of New York), of the value of one hundred and fifty dollars, free of all reprises, debts, demands, or incumbrances whatsoever." BANKRUPTCY PRACTICE. 205 Hule 63. — Return — Panel to be furnished. The marshal shall annex to the return of every venire, a panel of jurors summoned, designating their names, residence, and occupation, and, at the request of any party indicted, or having a civil cause on the calendar for trial, the clerk shall furnish him with a copy of the panel. Rule 64. — Inquests. Inquests in causes may be taken, out of their order on the calendar, at the opening of the court, or on any day after the first day in term, provided the intention is expressed in the notice of trial, and a suflScient affidavit of merits be not filed and a copy thereof served : and when an inquest is regu- larly taken, the same shall not be set aside except on payment of the costs thereof, and of opposing the motion. Rule 65. — Rules for Judgment. Rules for final judgment shall be absolute from the time of entry, unless conditional in tlieir terms ; and the party obtaining the same is entitled to proceed thereon, instanter. Rule 66. — Proceedings — How stayed. Proceedings upon judgments may be stayed by motion to the court, or by order of a judge, and a case agreed or settled, or a bill of exceptions signed, will, per se, stay proceedings thereon. Rule 67. — Case to set aside Nonsuit, &c. Whenever it shall be intended to move to set aside a verdict, except for irregularity, a case may be prepared by the party intending the motion, and a copy thereof served on the opposite party, before judgment is rendered and entered upon such verdict, who may, within four days thereafter, pro- pose amendments thereto, and serve a copy on the party who prepared the case; and if the parties cannot agree together in regard to such amend- ments, then, within four days thereafter, either party may give the other notice to appear, within a convenient time, and not more than four days after service of such notice, before the judge who tried the cause, to have the case and amendments settled : and the judge shall thereupon correct and settle the same, as he shall deem to consist with the truth of the facts ; but if the parties shall omit, within the several times above limited, unless the same shall be enlarged by a judge, the one to. propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter 206 BANKRUPTCY PEACTICE. to have agreed to the amendments as prepared : and if the party omit to make a case Ti/ithin the time above limited, unless the time shall be enlarged as aforesaid, he shall be deemed to have waived his right thereto. Mule 68. — Rotice of Motion for a Nem Trial. If judgment has been rendered upon a verdict, the party intending to move for a new trial, shall give four days notice in writing to the opposite party, of any motion to stay execution thereon, and also of the petition in- tended to be filed pursuant to 18th section of the act of Sept. 24, 1789, unless a shorter time be allowed by the court or a judge. Rule 69. — Bill of Exceptions. — Proceedings. Where exceptions to the opinion of the court are taken by either party on the trial of a cause, or there is a demurrer to evidence interposed, or a special verdict found, the party shall not be required to prepare his bill of exceptions at the trial, or his demurrer or statement of the evidence, or to put in form the special verdict, but shall merely reduce such exceptions to VTiting, or make a minute of the demurrer to the evidence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the court; or the court will themselves, at the request of either party, note the point and the bill of exceptions, demurrer to evidence, and special ver- dict, shall afterwards be drawn up, amended and settled, within such times, and under the same rules and regulations as are observed with respect to cases. Rule 70. — The Same. The same rules and regulations shall apply to cases made upon verdicts taken subject to the opinion of the court, and it shall be the duty of the party in whose favor such verdict shall be taken, to make and prepare the case. "Where a case shall be made, with leave to turn the same into a spe- cial verdict, or bill of exceptions, the party shall not be at liberty to do either at his election, but the court may, if they think proper, prescribe the one which he shall adopt. Hule 71. — Stay of Proceedings. When a bill of exceptions shall be taken on the trial, the same may, be- fore judgment, be used instead of a case on motion for a new trial, and no- tice of such motion, together with service of a copy of such bill of excep- tions, shall operate to stay all further proceedings, until the decision of the court; provided that proceedings shall not be longer stayed than if a case had been regularly made. BANKRUPTCY PRACTICE. 207 Huie 73. — Division of Opinion. In cases of division of opinion between the judges on points of law, the court, at the instance of either party, will forthwith note such points in writing. Hule 73. — Proceedings thereon. Either party may, within four days thereafter, serve on the other a statement, or certificate in writing, of such points, and also of facts in the case upon which the points arose, and if no amendments are proposed there- to within two days, such statement shall be filed, and shall be engrossed by the clerk, and be certified to the supreme court, under the seal of this court. Rule 74. — The Same. In case of disagreement between the parties, the statement or certificate shall be submitted to the court, and be settled by the judges, as in the mat- ter of a case, or bill of exceptions. Hule 75. — Criminal Cases. The like practice shall be pursued, in certifying a division of opinion in proceedings on indictments. Rule 76. — Placita of Records. The placita of judgment records shall be of the day when issue was joined, or the default was entered, and need not be stated as of any term of the court. Rule 77. — Continuances Abolished. Continuances by vice comes non misit breve, or curia advisari vult, are abolished in this court, and instead thereof, an entry shall be made that the cause was duly continued until the time when the trial, judgment, or other act of the court therein, requiring an entry on the record was had. Rule 78. — Sale of Real Estate under Execution. In the sale of real estate under execution issuing from this court, the marshal shall conform his proceedings to the directions of the law of this State, now in force, in relation to the sale of real estate on execution, and in addition to the certificate filed with the clerk of the county, where the lands sold, are situated, shall file a copy thereof with the clerk of this court. 208 BAJsTKEUPTCT PRACTICE. JRulelQ. — Redemption of Land Sold. Eedemption of lands, sold under execution out of this court, may be made in tlie same manner, and with lilie effect, and by the same persons, as prescribed by the law of this state now in force. And the sales by the marshal shall be made subject to such redemption. Rule 80. — Security on Writ of Error. On suing out a writ of error to the district court, and before the clerk seals the same, the plaintiff in error (other than the United States), shall file security, with two or more sureties, to be approved by one of the judges of the court (in the sum of five hundred dollars, when the writ of error does not operate as a supersedeas), conditioned to prosecute his writ of error to effect, and answer all damages and costs awarded against him. Rule 81. — Return to Writ of Error. The clerk shall forthwith make return to a writ of error, by transmitting a certified copy of the record, and all proceedings in the cause (including the bill of exceptions, when one has been signed by the judge, and filed by the party), under the seal of the court. Rule 82. — Assignment and Joinder of Errors. The plaintiff in error shall assign errors within two days of the term in which the writ is returned, first following the return thereof, and the de- fendant shall join issue, within two days after the assignment, unless, in either case, the court by special order shall enlarge the time. Rule 83. — Order to appear and Join in Error. No further order on the defendant in error to appear, and join in error, need be given, than the citation required by statute, provided that the same is served twenty days previous to the return of the writ of error. Rule 84. — Judgment for not assigning Errors. If the plaintiff in error fails to appear and file his assignment of errors, within two days after the return of the writ of error, the defendant may have a rule of course, for judgment of non pros. But if there are not two days remaining in term after the return of the writ of error, the plaintiff will be entitled to the two first days of the succeeding term. BANKRUPTCY PRACTICE. 209 Rule 85. — Amount — How proved. The plaintiff in error may, by affidavit, show, and prove the value of the matter in dispute, in order to sustain ^^jurisdidio of the court, and a suggestion shall thereupon be entered on the record. Rule 86. — Certiorari for Diminution. No certiorari for diminution shall issue, without the affidavit of the party, showing reasonable cause for alleging diminution, and in what such diminu- tion consists ; nor shall it be allowed after issue in error joined, without spe- cial order. Rule 87. — When Flaintiff ex-parte. In every cause in which the defendant in error fails to appear, the plain- tiff in error may proceed ex-parte. Rule 88. — When Writ of Error issued. When a bond with sureties is approved by the judge and filed, the clerk may seal a writ of error, without mandate or allov^ance by the judge. Rule 89. — Continuance of Order to Stay Proceedings. A judge's order, staying proceedings, accompanied with service of no- tice of motion, and copies of proofs to be used thereon, shall stand in force until revoked or modified by one of the judges, or until the order of tho court thereon. But if the party obtaining such order, shall not proceed thereon at the next term, the opposite party may enter an order of course, vacating such stay of proceedings, and for his costs in consequence thereof Rule 90. — Consents to he in, Tfri^mg'. No agreement, or consent, between the parties or their attorneys, in re- spect to the proceedings in court, shall be binding, unless reduced to writing, and signed by the party against whom it shall be alleged or suggested. Rule 21.— Attorney' s Liability for Costs. When a suit shall be commenced for a non-resident, and also when, at any time pending the action, the plaintiff shall remove out of the district, and the attorney shall thereafter proceed in such suit without security for costs being given, he shall in either case be deemed to have become secuiily 14 210 BANKRUPTCY PRACTICE. for costs to an amount not exceeding one hundred dollars. Provided that this rule shall not apply where one of several plaintiffs resides within the district. Rule 92. — Payment of Money into Court. Upon payment of money into court, except with a plea of tender, the plaintiff, if he accept thereof in full of the debt or damages claimed, shall serve the defendant with a bill of costs, and give two days' notice of taxa- tion : and unless the defendant pays the costs, within two days after the same shall be taxed, the plaintiff may take out the money and proceed in the cause, and shall be entitled to judgment for the amount so taken out of court: but execution shall be indorsed, " to levy the costs of suit." And where money is paid into court, the amount shall not be struck out of the declaration or verdict, but the plaintiff shall deduct the same from his exe- cution. Rule 93. — Attorneys, <6c. — How Admitted. Attorneys and counselors of the supreme court, and solicitors and coun- selors of the court of chancery, of this State, may, on presentation of their licenses to the clerk and his report of their degree, have an order of course entered in open court in term time, or in the common rules in vacation, ad- mitting them to the same standing in this court ; and attorneys and solici- tors of the said courts, may also be admitted as proctors, and counselors of the said courts may be admitted as advocates, on the admiralty side of this court ; all such officers first taking and subscribing the oaths of office, pre- scribed by the constitution and laws of the United States. Rule 94. — Clerik to Tax Costs and Sign Records. The clerk may tax or certify bills of costs, and sign judgment records. In case of the absence of the clerk from the city, or his inability to transact business, his deputy or chief clerk, is authorized to sign judgments, and tax or certify all bills of costs in this court, other than those of the clerk. Rule 95. — iVb Costs — when. No costs shall hereafter be taxed by either party, as against the other, on motion made pursuant to the iOth rule of this court, except for disburse- ments actually incurred, unless upon proceedings taken under the 5th rule of this court. BANKRUPTCY PRACTICE. 211 Rule 96. — Attorney's Costs. The costs of parties, except as otherwise regulated by law, shall bo al- lowed according to the rates, for the time being, in the supreme court of this State ; and for taking depositions, under the act of Congress, or under commissions, the same charges, and no other, shall be taxed, as if the depo- sitions had been drawn and engrossed by the attorneys; and no other charges or expenses, incurred in taking such depositions, or executing or returning commissions, shall be taxed by one party against the other. Rule 97. — Appeals from Taxation. Appeals from a taxation of costs may be made instanter to a judge out of court, but no costs shall be allowed to either party on such appeal. Rule 98. — Notices 'before Judge out of New TorJc. No notice (except to settle a case, or bill of exceptions) can be given for proceedings, before a judge, out of the city of New York, without an order first obtained for that purpose, or an affidavit showing both judges absent from the city. Rule 99. — Setting Down Causes. Causes will be called in their place on the calendar, and no motion will be entertained to set them down for a particular day, and if not moved for trial, when called, the party entitled to bring them on will be regarded in default, unless the entire calendar is called again. Rule 100. — Counsel— How to Sum Up. Where two counsel, on each side, either in civil or criminal causes, sum up to the jury, or argue to the court, the arguments shall be heard alter- nately, and not from both counsel consecutively on the same side. Rule 101. — Satisfaction of Judgments. The clerk of this court, and, in case of his sickness, or inability to trans- act business, or absence from the city, his deputy, or chief clerk, being of the degree of attorney, or counselor of this court (and whose appointment shall have been duly filed in the clerk's office), may take the acknowledg- ment of satisfaction of judgment entered in this court. 213 BAJSTKEUPTCT PRACTICE. Rule 102. — Mules of District Court Adopted. In cases not provided for by the rules of this court, the rules of the district court of the southern district of New York, for the time being, whether now in force, or subsequently adopted, so far as the same are ap- plicable, are to be considered as rules of this court. Mule 103. — Service of Process where Marshal interested. The sheriff, and under sheriff, of the city and county of New York, are appointed to serve process issued out of this court, in all causes in which the marshal of the southern district of New York, or his deputy, is a party. Mule 104. — Commissioners Appointed. The clerk of this court, and his chief clerk or deputy, the general deputy of the marshal of the southern district of New York (and the said chief clerk or deputy of the clerk, and general deputy of the marshal, being de- signated by appointments duly filed in the clerk's office), and the clerk of each of the counties within the southern district of New York (other than the city and county of New York, for the time being, shall, ex officio, be commissioners to take affidavits, and acknowledgment of bail, in civil causes, depending in the courts of the United States, pursuant to the provisions of the acts of Congress, in that behalf: And all orders heretofore made for the appointment of such commissioners are hereby annulled. Equity Rules. Mule 105. — Motion for Injunction. No motion for an injunction (except to stay waste) shall be heard, unless a copy of the bill, and of the depositions to be offered in its support, shall be served on the adverse party, or his attorney, at least four days before mo- tion made. Mule 106. — Cause against the Motion — How Shown. The defendant may show cause against the allowance of an injunction, either by plea, an.swer, or demurrer to the bill, or by parol exception to its legal sufficiency, or by deposition, disproving the equity on which the mo- tion is founded. BANKRUPTCY PRACTICE. 3l3 Rule 107. — Supporting Proofs. Suppletory or supporting proofs may, at the discretion of the court or judge, be offered by the complainant to rebut the cause shown by the de- fendant; but the reception of such additional proofs is not to permit the introduction of further proofs in opposition thereto, by the defendant, pre- vious to the final hearing upon the merits. Rule 108. — Testimony — How Taken. If a general commission is not issued, pursuant to the 25th rule of the supreme court, within ten days after replication filed, either party may give notice of the examination of witness before the standing examiner of this court ; and three months from the time of the replication shall be allowed the parties for taking their depositions before the examiner. Rule 109. — Hearing on the Pleadings. When no proceedings are taken by either party, within thirty days after replication, for the examination of witnesses, out of court, either party may set the cause down for hearing upon the pleadings. Rule 110. — Oral Proof in Court. Whenever it is intended to offer oral proof in open court, the party pro- posing it shall give due notice to the opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he will move for an examination. Rule 111. — Motions before a Judge. AU special motions, in reference to matters of practice, may be made in open court, or before a judge at chambers. Rule 112. — Depositions — Proceedings where. No rule, or order, need be entered for the publication of testimony : but so soon as the commissioner, or examiner, shall have completed the testi- mony offered, the party taking it shall cause the deposition to be filed in the clerk's office, and forthwith give notice thereof to the adverse party. Either party may thereupon enter a rule, of course, that the clerk open the commission, or deposition, and file the same. 214 BANKRUPTCY PEACTICE. Rule 113. — Exceptions to Testimony. WitMn four days after the clerk shall have prepared copies of the de- positions (provided the same were applied for in two days after the notice of the filing thereof), the adverse party may give notice of exception, be- fore a judge at chambers, to the proofs, or any part of them, on account of any irregularity in taking the deposition, or executing the commissions : and if no such notice of exceptions is given, all objections to the form, or manner, in which the proofs were taken, shall be deemed waived. Rule 114. — Enrolling Decree — When Suspended. When a motion for re-hearing is made during the term, at which a de- cree has been rendered, the enrolling, or recording of such decree, shall be suspended, until the final disposition of such motion by the court. Rule 115. — Adjournment by a Master. A master, or examiner, in taking proofs, or in matters of reference, shall not, without the written consent of all parties, or the authorization of one of the judges, adjourn proceedings, pending before him, for a longer time than ten days. Rule 116. — Appeals. An appeal can be taken from no other than final decrees. Rule 117. — Wlien Decree Final. A decree shall be deemed final when in a state for execution without further action of the court below. Rule 118. — Appeals from, and Return. Every appeal to the circuit court, in a cause of admiralty and maritime jurisdiction, shall be in writing, signed by the party, or his proctor, and de- livered to the clerk of the district court, from the decree of which the ap- peal shall be made ; and it shall be returned to the court, with the necessary documents and proceedings, within twenty days, and by the first day of the term next after the delivery thereof to the clerk, unless a longer time is allowed by the judge. Rule 119. — Matter of Appeal. The appeal shall briefly state the prayers or allegations of the parties tc the suit in the district court, in the proceedings in that court, and the decree BANKRUPTCY PEACTICE. 215 with the time of rendering the same. It shall also state whether it is in- tended, on the appeal, to make new allegations, to pray different relief, or to seek a new decision on the facts, and the appellants shall be concluded in this behalf, by the appeal filed. Rule 120. — Service of Appeal. A. copy of the appeal shall, at the same time, be served en the proctor of the appellees, in the court below. And an affidavit of the due service of such copy shall be filed with the appeal. And no process or order shall be necessary to bring the appellees into this court. Rule 121. — Return to Appeal. If in the appeal it shall not be intended to make new allegations, to pray different relief, nor to seek a new decision of the facts, then the pleadings, evidence and decree in the district court, with the stipulations in the cause, and the clerk's account of the funds in court, in the cause, if any, shall be certified to this court with the appeal. But in all cases the statement of facts agreed between the parties, or settled by the judge of the district court, and on file, according to the practice of that court, may be certified in the place of the evidence at large. Rule 122.— The Same. If it shall be intended to seek only a new decision of the facts, then the pleadings of the parties, with the stipulations in the cause, and the clerk's account of the funds in court, if any, and the exhibits and depositions in the cause, shall be certified to this court with the appeal. But the proofs need not be c^rtified unless specially required by the appellant or ordered by this court. Rule 122.— The Same. If it shall be intended to make new allegations, or to seek new relief, then the return to the petition of appeal shall only contain copies of the process issued upon the libel, and of the return thereof, the account of the clerk of the funds in court, in the cause, the depositions and exhibits, and the stipulations in the cause. Rule 124. — Time for Return. The appellant shall cause the notice of appeal, and an affidavit of the service of a copy thereof, with the documents required to be returned with the appeal, to be filed in this court within four days after the return is com- pleted by the clerk ; otherwise the appeal shall not be received, and shall be 216 BANKRUPTCY PEACTICB. deemed deserted ; and a certificate in this behalf shall be made to the court from which the appeal is made, which may proceed to the execution of ita decree. Rule 125. — When Cause in Court. This court shall be deemed possessed of the cause, from the time of fil- ing the appeal, with the documents required to be returned therewith, in this court. Bule 126 — When Appellant Proceeds ex-parte. If the appellee does not enter his appearance within the two first days in term, succeeding the filing the appeal, and proceedings, and affidavit of service of notice thereof on him, the appellant may proceed ex-parte in the cause, and have such decree as the nature of the case may demand. Rule 127. — Answer — Notice of Hearing. No answer, or issue, need be given Xp the appeal. Each party may notice the cause for hearing, for the term to which the appeal is made (if made in term time) or if made in vacation, for the term next succeeding. Rule 128. — Writ of Inhibition. A Writ of inhibition will be awarded, at the instance of the appellant, when circumstances require, to stay proceedings in the court below ; notico of such application having been previously given. Rule 129. — Writ of Mandamus. A mandamus may in like manner be obtained to compel a return of the appeal when unreasonably delayed by the clerk, or court below. Rule 130. — Notice of Opposition to New Proofs. If the appellee shall have any cause to show why new allegations, or proofs, should not be offered, or new relief prayed, on the appeal, he shall give four days' notice thereof, and serve a copy of the affidavit containing the cause intended to be shown : and such cause shall be shown within the two first days of the term ; otherwise the appeal shall be allowed according to its terms. Rule 131.— Proceedings where New Allegations. If new allegations are to be made, or different relief prayed, in this court, then the libelant in the district court, shall exhibit, in this court, a BANKRUPTCY PRACTieil. 217 libel, on oath, within ten days, to which the adverse party shall, in twenty days, answer on oath, subject in each case to the extension of those periods, by order of either of the judges of this court; and on a default in this be- half, the court will on motion, without notice, make such order for finally disposing of the cause, on the default of the party^ as the nature of the case may require. 'Rule Wi.— Hearing — When. After the libel and answer, whether newly filed in this court, or certified from the district court, shall be filed in this court, the cause shall be pro- ceeded in to a hearing, as in other cases. But where interrogatories have been answered in the district court, or written testimony taken, the same may be used in this court. Rule IBS.— Motion to enforce Decree Below. The appellee may move this court to have the decree made in the dis- trict court carried into effect, subject to the judgment of this court, or of the supreme court on appeal, upon giving his own stipulation to abide and perform the decree of such courts : and this court will make such order, unless the appellant shall give security by the stipulation of himself, and competent sureties, for payment of all damages and costs, on the appeal in this court, and in the supreme court, in such sums as this court shall direct. Rule 134. — WTien Decree JExecuted. In cases where an appeal shall lie from the decree of this court, the final decree shall not be executed until ten days shall have elapsed from the pro- nouncing or filing of the decision of the c6urt. Rule 135. — Ajypeal to Supreme Court. When appeal shall be made from the decree of this court, the appellant shall, within four days from the pronouncing or filing of such decision, un- less further time is allowed by the judge, make and serve on the adverse party a statement of the testimony on the trial, excepting such evidence as was in writing, which shall be properly referred to therein. The party on whom the same shall be served shall, in four days after such service, propose amendments thereto, or the statement shall be deemed acquiesced in, and the statement and amendments, unless acquiesced in, shall be submitted by the appellant to the judge, in four days afterwards, for settlement ; and the same, when settled, shall be engrossed by the clerk, and, with the written ievidence, shall be deemed the proofs on which the decree is made, and shall operate as a stay of further proceedings in this court. 218 BANKRUPTCY PRACTICE. Rule 136. — District Court Rules Adopted. In all cases, in civil causes of admiralty and maritime jurisdiction, not expressly provided for by the foregoing rules of this court, the rules of practice of the district court for the southern district of New York being in force at the time, and whether established before or after these rules (not being inconsistent with these rules), are adopted, and are to be received as rules of practice in this court. At a stated circuit court of the United States, held at the city of New York, in and for the southern district of New York, on the 28th day of April, A. D. 1838— Present, the Hon. Samuel R. Betts. Ordered, That the rules adopted for the practice of this court go into operation on the first Monday of August next. A true copy from the minutes. Feed. I. Betts, Clerk. SUBSEQUENT RULES, AND AMENDMENTS. Imprisonment — WJiere. March 4th, 1840. In all cases in which persons convicted of offenses against the statutes of the United States shall be sentenced to imprisonment, and the sentence shaU not also specify that the party be kept at hard labor, it shall be the duty of the marshal to cause such party to be imprisoned in any one of the prisons within the city and county of New York which he may select for the purpose. Rule 137. — Juries — Sow draion. Hereafter, jurors to serve in this court shall be designated by ballot, ac- cording to the method of forming grand and petit juries now practiced in the highest court of law in this State, except that the panels shall be certified to the marshal by the clerk of this court, or his deputy, if present at the drawing, and except, further, that it shall not be necessary for either judge BANKRUPTCY PEACTICB. 219 of tMs court, or any judge of a State court, or justice of the peace, to be present at the drawing, or for any notice thereof to be published. Rule 138.— The Same. The jurors shall be drawn from the ballot-boxes kept by the clerk of the city and county of New Tork, in all cases except as is provided for and di- rected by Rule 140. In case of default or defect of jurors at term, or the dis- charge of a panel, and the summoning a new one in its place, the venire may be made returnable forthwith, or at any convenient day in term, and, in either such case, the drawing shall be at the time directed by the court or either of the judges. Hule 139. — And full number obtained. In case a sufficient number of grand jurors shall not appear on the' return of the venire, or, after appearing, shall be excused by the court, or absent themselves, so that there shall be in attendance less than sixteen grand jurors duly qualified, the court may, by order, direct the marshal forthwith to summon the number of persons necessary to complete such grand jury. Jiule 140. — Juries, whence drawn. The court, or either of the judges, may, from time to time, by order to the clerk (to be by him indorsed on the venire), direct the whole, or any part of the jurors required to serve at any term, or portion of a term, to be returned from such parts of the district, besides the city and county of New Tork, as the court or judge may designate, so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of the district with jury service. Mule 141. — The Same. lA executing venires issued pursuant to Rule 140, the clerk assisting in drawing shall insert upon the panels, and certify, the names of qualified jurors residing in the following places only in the counties hereafter named, (and shall omit the names of jurors drawn from the box who reside else- where), to wit : in Stuyvesant and Hudson, in Columbia county ; in Athens and Catskill, in Greene county ; in Saugerties and Kingston, in Ulster county ; in Poughkeepsie and Fishkill, in Dutchess county ; in Newburgh and New Windsor, in Orange county ; in Castleton, in Richmond county ; in Brooklyn, Williamsburgh and Flatbush, in Kings county, and in Flushing and Jamaica, in Queens county. Rule 143. — When County Clerics may draw. The clerks of the several counties within the district fn which venires are to be executed, are empowered to draw jurors and certify panels 220 BANKRUPTCY PRACTICE. for this court, in the same manner practiced for the highest court of law of the State, when the clerk of this court or his deputy is not present at the drawing. Bule 143. — Where County Clerk refuses to act. In case the clerk of the city and county of New York, or any county in this district, shall refuse to draw jurors for this court, or shall not permit the officers of this court to use the boxes provided and kept in his office for drawing juries to serve in the State courts, the marshal shall immediately thereupon procure copies of the lists of jurors qualified to serve in the highest court of law of the State, prepared, from time to time, pursuant to the law of the State, in the different wards of the city of New York, and in the other places designated in Rule 141, and file the same with the clerk of this court, verified by the official certificate of the officers with whom the same are filed or deposited, or by that of the officers required by the law of the State to prepare and authenticate them, or, if such proof is refused, or cannot be obtained, then by affidavit ; and the clerk shall thereupon prepare proper boxes and ballots conformably to the practice in the State courtjs, and the drawing of jurors from such boxes shall be made and conducted thereafter by the marshal and clerk according to the mode now practiced under the law of the State, except that a publication of any previous notice thereof, or the attendance thereat of either of the judges of this court, or any other magis- trate, shall not be necessary. Commissioners to take Affidavits, &c. March 12th, 1841. The clerk of this court, and also the clerk of the district court of the United States for the southern district of New York, and the chief clerk, or deputy of each of said clerks (the said chief clerk or deputy being designated by appointment duly filed in the office of the said clerks respectively), for the time being, shall, ex officio, be commissioners to take affidavits and ac- knowledgments of bail in civil causes depending in the courts of the United States, pursuant to the provisions of the acts of Congress in that behalf; and the said clerks and deputies are also hereby respectively authorized and em- powered to take bail within the southern district of New York pursuant to the act of Congress of March 2d, 1793. The Same. April 17th, 1845. So much of standing Rule 99 of this court as prohibits motions to set down causes placed on the calendar for a particular day, and also so much of standing Rale 104, as designates and appoints the general deputy of the marshal of the southern district of New York, ex officio, a commissioner to take affidavits and acknowledgments of bail, in civil causes depending in the courts of the United States, be, and the same are, hereby abro- BANKRUPTCY PRACTICE. 331 gated and repealed, but no other portions of the said rules' are to be affected by this order. Masters and examiners in chancery, designated and appointed by this court to act as such, on the equity side thereof, shall, ex officio, be commis- sioners to take affidavits and acknowledgments of bail, in civil causes de- pending in the courts of the United States, and to take bail within tlte southern district of New York, pursuant to the provisions of the several acts of Congress in that behalf; and every such master in chancery for the time being is hereby designated and appointed, ex officio, commissioner as aforesaid. This rule or order is not to affect the rule or order of the court in this behalf, entered March 12th, 1841. Costs of Parties. June 28th, 1845. In place of the provisions of Rule 96 of this court for the taxation of costs of parties, the costs of parties (their attorneys, solicitors and coun- sel) shall be allowed and taxed conformably to the regulation and appoint- ment of costs made in the last proviso but one to section one. No. 167, of the act of Congress approved May 18th, 1842, entitled " An Act making appropriations for the civil and diplomatic expenses of Grovernment for the year 1842." Por services rendered pursuant to the course of practice in this court, for which no fees are appointed specially by acts of Congress, or of the State of New York, in force, there shall be allowed, on taxation, the same rates of compensation as, by the usages or adjudications of this court, or the supreme court of the United States, were allowed therefor at the time of the passage of the act of May 18th, 1842, aforesaid. In all cases of taxation of costs, fees shall be allowed, as having been ap- pointed by the laws of the State, only according to the rates allowed for like services, in similar cases, in the highest courts of law or equity, of original jurisdiction, of the State of New York. Papers on Appeal. September 2d, 1845. On appeals, no paper proceedings shall be read in this court, unless they be papers duly sent up by the court below, and on file in this court, or orig- inal papers on the files of this court, or copies of such papers duly certified by the clerk of this court. Evidence to sustain Injunctions. Mat 18th, 1846. Hereafter, on motions for an injunction, because of the infringement of a patent-right, the complainant shall not be permitted to give evidence to rebut the cause shown by the defendant against the allowance thereof, other than to a denial that the defendant uses the discovery or invention claimed by 223 BANKEUPTCT PRACTICE. the complainant, or to a claim by the defendant that he acts under an as- signment or license from the patentee ; and, on motions for injunctions to stay waste, only to a defense set up justifying the waste ; and, in neither case shall such suppletory or supporting proofs be received, unless the court, or one of the judges, on satisfactory cause shown, shall, by order previously made, allow the same to be given ; and so much of Rule 107, of the standing rules in equity of this court adopted April 28th, 1838, as may be inconsis- tent herewith, is repealed. Motions for injunctions shall be brought on by the complainant on the day named in the notice, if the court is then in session, and in default there- of, the defendant may move that the notice be discharged for the term, with costs, unless further time is given, or the hearing is delayed by order of the court. Abatement of Actions. April 1st, 1850. No action, real or personal, shall abate by the death, marriage, or other disability of either party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court, on motion may allow the cause to be contin- ued by or against the successor in interest, on the usual notice to the party interested, or such other notice as may be directed by the court. Commissioners to take Affidavits, &c. OOTOBEB 10th, 1850. The cleric of this court, and the clerk of the district court of the United States for the southern district of New York, and also the chief clerk or deputy of each of said clerks, and also the county judge of each of the coun- ties within the southern district of the State of New York, and also the standing masters in chancery appointed by this court (such officers respec- tively being of the degree of counselor at law, of this or of the supreme court of the State of New York), shall each be, ex officio, and is hereby ap- pointed by this court, a commissioner of this court, to take affidavits in civil causes depending in the courts of the United States, and to execute and perform all the powers conferred by the act of Congress entitled, " An Act in addition to the Act entitled, ' An Act to establish the judicial courts of the United States,' " approved March 2d, 1793 ; and the act of Congress entitled " An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States," approved February 20th, 1812 ; and the act of Congress entitled " An Act in addition to an Act en- titled 'An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States,' " approved March 1st, 1817 ; and the act of Congress entitled " An Act further supplementary to BANKRUPTCY PRACTICE. 223 an Act entitled 'An Act to establish the judicial courts of the TTnited States,' passed the 24th September, 1789," approved August 23d, 1842 ; and the act entitled " An Act to amend, and supplementary to the act entitled ' An Act respecting fugitives from justice and persons escaping from the ser- vice of their masters,' approved February 12th, 1793," approved September 18th, 1850. The Same. Januaey 20th, 1851. The clerk of this court, and the clerk of the district court of the United States for the southern district of New York, and also the chief clerk or deputy of each of said clerks (such chief clerk or deputy being designated in writing by the clerk appointing him, and the appointment being approved by the circuit judge of this circuit, or, in case of his absence from the dis- trict, by the district judge, and such designation, with the approval in- dorsed thereon, being filed in his office by each of the said clerks respective- ly), and also the standing masters in chancery appointed by this court, and also the county judge of each county within the southern district ©f New York, other than the county of Kings and the city and county of New York (if the said ofiScers before named shall be each of the degree of counselor at law of this court, or of the supreme court of the State of New York), whether said officers are in office at the time of making this order, or shall be subsequently appointed or elected thereto, shall be, while holding such office, ex officio, commissioners of this court, and each of such officers, whilst in office is hereby appointed a commissioner to take affidavits in civil cases, depending in the courts of the United States, and to execute all the powers and perform all the duties authorized or conferred by the act of Congress en- titled, " An Act in addition to the Act entitled ' An Act to establish the ju- dicial courts of the United States,' " approved March 2d, 1793 ; and the act of Congress entitled, " An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States," ap- proved February 20th, 1812; and the act of Congress entitled, "An Act in addition to the Act entitled, ' An Act for the more convenient taking of affidavits and bail in civil causes depending in courts of the United States,' " approved March 1st, 1817; and the act of Congress entitled, "An Act fur- ther supplementary to an Act entitled, ' An Act to establish the judicial coinrts of the United States,' passed the 24th September, 1789," approved August 23d, 1842 ; and the act entitled, " An Act to amend and supple- mentary to the Act entitled, 'An Act respecting fugitives from justice, and persons escaping from the service of their masters,' approved February 12th, 1793," approved September 10th, 1850 ; or of any other act of Congress having relation to sucti commissioners and their duties and powers. 224 BANKRUPTCY PRACTICE. Juries — How drawn. - January 29th, 1851. Except as may be from time to time otherwise specially ordered by the court, when hereafter a venire shall issue pursuant to the standing rules of the court, for the purpose of summoning petit jurors to serve in this court, the marshal or other ofBcer to whom such venire shall be directed, shall, wiih the clerk, or his deputy, repair therewith to the office of the clerk of the city and county of New York, and there, at least ten days before the re- turn of such venire, in the presence of the said clerk of the city and county, and of the marshal, or other such officer, the clerk or deputy shall proceed, if the clerk of said city and county shall consent thereto, to draw out of the box of jurors qualified, according as the law of the State of New Y6rk was on the 20th day of July, 1840, to serve in the highest court of law thereof, kept by the clerk of the said city and county, the names of so many jurors as by the said venire shall be required to be summoned. And the clerk of this court shall immediately make out and certify under his hand a panel of the jurors so drawn, with their respective additions and places of abode, and deliver the same to the marshal or other such officer, and the persons so cer- tified shall be summoned to serve as jurors pursuant to such venire; and, if any of the persons whose names are so drawn shall be dead, or removed from the city and county, or not qualified as aforesaid, within the knowledge of the clerk or marshal, then such names shall be disregarded, and the clerk shall forthwith proceed to draw out of the said box other names, until the said panel shall be completed. Whenever the court shall order petit jurors under such ventre to betaken wholly, or in part, from any county or counties within the district other than the city and county of New York, the panel or panels thereof shall bo drawn, certified and summoned, in like manner as is directed in the preced- ing order or rule. Reporter to Refurnished Materials. October Term, 1851. "Whereas, Samuel Blatchford, Esq., counselor at law, has been appointed reporter of the decisions of the circuit judge in the circuit courts of the United States, held in the second circuit thereof: Ordered, That the solicitors, attorneys and proctors of said court, in case of motions for new trials, demurrers, writs of error, appeals in admiralty, and cases in equity, bringing on the argument, furnish the said reporter witlx a copy of the case, demurrer book, error book, apostles, including all proofs in the court below, and in this court, in the case, and of the pleadings and proofs in equity, as the case may be, at or before the commencement of the argument. BANKKXJPTCY PRACTICE. 225 Cornvnissiomrs given other Powers. Januaet 27th, 1853. All and each of the commissioners appointed by this court, by order or rule, entered January 20th, 1851, to take affidavits in civil causes depending in the courts of the United States, &c., be, and the said commissioners are .hereby, appointed and authorized to act as commissioners, and each of them is hereby appointed to act as a commissioner, under the provisions of the act of Congress entitled, " An Act for giving effect to certain treaty stipula- tions between this and foreign governments for the apprehension and delivering up of certain offenders," approved August 12th, 1848. Grand Jv/ry-^ When to attend. Mat 7th, 1853. The clerk shall issue a venire to the marshal for a grand jury to be in at- tendance at the commencement of each regular term of this court. Money in Court to he Defposited. September 21st, 1859. AU money brought into court in any suits pending in this court shall be deposited by the clerk of the court in the United States Trust Company, upon such terms as shall be agreed between the clerk and the company aaid approved of by the court. Juries— How Brawn. November 11th, 1867. It having been found impracticable to obtain jurors for the courts of the United States in this district from the jury boxes used by the authorities of the State of New York, in the city and county of New York, for the pro- curing of juries for the courts of said State, in said city and county, It is now ordered, that the clerk of this court and the clerk of the district court of the United States for this district, make out and file in the office of the clerk of this court, a list of persons to serve as jurors in the courts of the United States for this district, and that such list be made out in the same manner as, by the laws of the State of New York, the public officers charged with the duty of ma.king out the list of jurors to serve as jurymen in the courts of said State, in and for said city and county, are required to make out such list. And it is further ordered, that the said clerks, from time to time, correct and revise such list, as they may deem it necessary so to do, to the end that such list may be made and kept, so far as practicable, "in conformity with the laws of the State of 15 BANKRUPTCY PRACTICE. New York ; and it is further ordered, that, from the list so made and filed, grand and petit jurors shall be selected, and shall be drawn by lot, in accordance, so far as practicable, with the laws of the State of New York, by the said clerks, as from time to time the same may be ordered by the courts of the United States in this district, and a list of the per- sons so drawn, certified by said clerks, shall be attached to the writ or venire issued to the marshal for the suntmoning of such jurors ; and it is further ordered, that, as to all matters relating to the selecting, draw- ing, and swearing of jurors for said courts, the said clerks follow, so far as practicable, the provisions in respect thereto, contained in the laws of the State of New York. And it is further ordered, that the order made by this court on the 29th day of January, 1851, in regard to the drawing and summoning of jurors, be, and the same is hereby vacated. INDEX TO PRACTICE Page Abate, actions where not.. .21, 22, 26 Absent debtor 40 " creditors, proof by 35 Abbreviations 88 Acts of bankruptcy 62, 63, 65 Actions against assignee . . 5, 6, 22, 39 " passed to assignees ... .21, 26 Accommodation paper 101 Accounts — bankrupt's 22 " of assignee 25,44,46 " of assignee-^— form of. . . 147 " of assignee — notice of settlement 145 " of assignee to be audit- ed 44,46,85 " of assignee to be filed. . 46 " of register 10 Act takes effect 79 Adjudication of bankruptcy. . . .68, 69 85, 112 " on creditor's peti- tion, form. .167 etseq. " may be opposed. .67, 68 Adjournment first meeting 18 " final meeting, ex- amination pend- ing 51 " of issues into court.. 9, 11 " to be only for good " cause 85 Administrator, title as 22 Advertisements 16, 23, 48, 67 Additional assignee 18 " names of creditors. . . 43 Agent — carries on business, where 17 " for creditor, proof by.. .35, 131, 1?2 " property held by bankrupt as 22,24 Affirmation included in oath. ... 78 Affidavit by assignee 146 Page Aliens may apply. 14 Allegiance, oath of 15 Altering books 72 Allowance of claim, form of order 180 Amendments 17, 40, 43, 88, 94 Amendatory act 80 Annulled proceedings 18 Appeal 12, 13, 37, 92 Application — by whom .... 14 " for discharge 48, 50 " to set aside discharge.. 55 Appointment of assignee 18 " notice to assignee of 86 " notice by assignee of 23 " of trustees — order for 174: etseq. Appearance 15, 69, 84 Approval of assignee 18, 19 Arbitration — when 27, 90 Arrangement GOet seq. Arrest — protection against. .41 et seq. " of bankrupt— when. .41, 43, 66 Assent of creditor 52, 80 Assignment with intent to de- fraud 57,58,63, 64 " without intend to de- fraud ....24,58, 64, 65 " to assignees, form. . . 125 " provisions concern- ing 20,21,23 " to trustees 175 et seq. " relation back of. . .20, 23 " to be recorded 23 Assignee — choosing of 18, 19, 59 " additional 18 " qualifications of 19, 20 " approval of 19 " notices of appointment.. .86, 123 " bond of. 19,124 228 INDEX. Page Assignee — general duties of . .21-28, 44r46, 51, 59, 64, 75-90 " fees and compensation. . ..45, 47,77 " suits against 7, 22 '■ punishment of. 28 et seq. " vacancy in office of 28 " removal of . . . . 19, 20, 27, 29, 148, 149, 150 death of 26,28 " order for new election . . 151 et seq. " memorandum of choice of 122 " evidence of title of . . .22, 26 sales by 90 " order for sale 178 " takes subject to lien. .. . 23 " petition of, to relieve ■ from lien 152 " survivorship of 28 " when to determine divi- dends 45 " includes plural 78 " return of no assets, form . 145 " notice settlement of ac- counts 145 affidavit of. 146 '■' order for settlement of . . 148 " form of accounts of..... 147 Assimilated jurisdiction 79 Assent of creditor 52, 55, 80 Assets — ^when to be collected. . 25, 26 " what constitute 17 Attachments dissolved 20 Attorney's fees not entitled to priority 48 Attorney — creditor may act by. . 37 " proof by........ 131, 132 letter of.-. 131 Auditing accounts 44, 4G, 85 Bankrupt not subject to arrest. 41, 42, 43 " " " except. 66 " when to attend before register 84 " indebted as bail 29 " examination of ... 39, 40 " " order for 153 ' oath of 50 ' oath to assignment to trustees 176 ' to convey, when re- quired ...23,40 " subject to order of court. 40 Page Bankrupt — ^petition for discharge of 159 " when to be discharged. 54 " specification of objec- tions against 160 " books of account of. 22, 52 " notice of examination of witnesses 42 " penalties against 72 Bankrupt law — ^interference with State law G Bankruptcy — second 52 " involuntary 62 Banks — deposits in 26 Bail — debt due by bankrupt as. . 30 " for bankrupt, when to prove. 30 Banker — stopping or suspending 63 Bad debts ,. 46 Bills, &c., to be returned 37 Books of account of bankrupt. 22, 52 " falsifying 72 " trader not keeping 52 " production of 10 " schedule of 107 Bond of register 8, 116 " of assignee 19, 123 Breach of trust not discharged. . 54 Causes of action pass to assignee 21 " Carrying on business" . ... 14, 16, 17 Certificate — costs on 11 " as to what question 9, 10, 11 " form of 157 Choice of assignee 18 Chattel mortgage, when valid.. .. 21 Christmas 79 Choses in action — schedule 104 Check, how signed 92 Circuit court 6, 7 Citizen's oath of allegiance 15 Clerk of court — duties 83, 84 " fees of 78,93 Claims 29 ei seq. " compounding 27,89 " proof of, to be sent assig- nee 36 " proof of. 36 Claim for damages — property.... 17 Claims purchased by debtor to " bankrupt 31 " disputed, how settled 33 " order for diminution of. . 179 " " expunging or allowing . . . 180 INDEX 229 Page Claims — appeal to sustain 181 Clerk — where carries on business 16 " priority of debt due .... 43 Copartnership proceedings. . 59 et seq. " creditors under in- dividual petition 31,45 " estate, 59 " petition by 108 Commencement of proceedings 14, 62, 84 Concealment of debtor 62, 65 " ofproperty...51, 62, 72 " of books 72 Confession of judgment 63, 65 Contested issues 9, 11 Contemplation of bankruptcy; .63, 65 " of insolvency . .52, 57, 63, 65 Corporation included in person . . 78 " may petition 60, 61 " petition by 110 " proof by 35,130 " not to receive dis- charge...... 61 " order for sale of property of 178 Conveyance — fraudulent 57, 58, 63, 72 " with intent to de- lay 63, 64 Confederate debts 30 Commissioner United States. ..34, 81 Contracts to forbear opposition. . 58 Commissions to take testimony. . 62 Conditional hability 29 Contingent liabihty 29 Compensation to assignee 27. 45, 47, 77 Controversy — assignee to settle 27 Compounding claims 27, 89 Conveyed by 24 Copy of assignment to be filed. . 22 Conversion of goods, debt for. .. 29 Columbia, district of. 79 Costs on certificate 11 " on contested adjudications 94 " contempt 12 " involuntary procedings. . . 68 " appeal 38 Contempt .5, 12, 29, 40, 42, 62 " register not to commit 9 Counsel to bankrupt as assignee 20 Court seal, forgery of 73 Courts of bankniptcy 5, 6, 7 Page Counsel to witness 41 Custody, debtor held in 42, 63 Creditors — notice to 16 " bill, when lien 24 " choose assignee 18 " list of 120,142 " may remove assignee 27 " petition, &c 63 ei seq. " " adjudication, &c 167 " priority 60 " meetings..l6, 18, 19, 44, 45 " having security. . . 19, 37 " proofs by. ..19, 32, 34, 35, 36, 59, 129 et seq. " vote, when 18,19 " act by attorney 37 " proving, waives lien, &c 31 etseq. " cannot enforce prov- able claims 33 Creditor contracting to forbear opposition 58 to prove affirmatively his objections .51, 53, 68 may attack discharge, &c 55 Creditors — what to share. . 43 etseq. " to determine division of estate 44 " may nominate trus- tees, &c 69 Damages, claim for, property .. .. 23 " unliquidated, how as- sessed 30 Days of attendance of register. . 85 " meetings of creditors. . ..16, 18, 19, 44, 45 " sitting 85 " " fee for 78 Dates and depositions 61 Deeds to be executed by debtor 23 Destroying books, &c 72 Deceit is fraud 55 Debtor — concealing himself 62 " penalties on 72 " imprisoned, how exam- ined 40 " oath by 50 " petition for discharge. . 48, 50, 158 " when to be arrested .41,42 " subject to order of court 40 " death of 18 230 INDEX. Page Debtor — order finding, not bank- rupt 171 " discharge from arrest . 43 " " from debts. . 41, 49,54 Debt provable 29 ei seq. " how proved 32,35,57,59 " forms for proving . . . 129 et seq. " list of 36,142 " outstanding 46 " not discharged T.54, 55 " discharged 29, 30, 55 Deposited, money to be 26, 92 Delay by bankrupt 33 " intent to 64 Defalcation in office by bankrupt 54 Deficiency on mortgage 24 Departing from district, &c 62 Demand for trial 67 " form of 172 Death of debtor 18 " not to abate pro- ceedings 18 Death of assignee 26 " not to abate suits 22 Depositions by creditors 34, 61 " forms for .... 129 e< seq. " fees on 10 " of witness to act of bankruptcy 165 District — jurisdiction confined to 6 " court, jurisdiction 5,6 " " control over State courts 34 " clerk's duties 83 Discharge from arrest 43 " petition for 48, 50 " form of notice of ... . 159 " petition to set aside. . 55 " when granted. . 51, 54, 71 " objections to 41, 49, 50, 53, 91 " no, to corporations . .. 61 " when refused 41,49, 51, 71, 88 " contract to forbear op- position 58 " form of 53 " effect of. 17,55 District of Columbia — courts in 79 Diminution of claim, order for 179 Disallowing claim, form for 180 " " appeal 181 Distinct contracts 33 Page Distinct — estate to be kept .... 26 Dividend, how made . ..33, 44 ei seq. " notice of 27,45,141 " memorandum of 140 " list of debts for. ..142, 143 Different districts, petitions in..60, 88 Disbursements of assignees 27 Disputed title 39 " claims, how adjusted. . 33 Distribution of estate 43 et seq. Dockets to be kept 9, 83 " to be open to inspection 84 Documentary evidence, disposi- tion of 38 " produc- tion of 10 Documents, falsifying 72 Election, by proving debt 32 " by assignee 22 Embezzlement, debt for 54 Enjoined, who may be 33, 34 Equity of redemption 21 Estate taken by register 23 " " marshal 60 " to be kept distinct 26 " when invested 26 " distribution of 43 "~ order for sale of, form. .. . 178 Evidence of title of assignee 22, 23, 26 " of fraud 58 " documentary, returned.. 38 " generally.... 39, 41, 61,62, 71,86 Extortion by officer 73 Examination 39, 40, 41, 42, 62, 71 " fees on 10,41 " forms on 153 et seq. " may be adjourned. . 42 " of papers by regis- ters 85 Exemptions 20, 21, 24, 25, 66, 106 Executions — when lien 24 False statement by bankrupt.. .49, 41 False swearing 12 Factor — property held as 22 Falsifying books 72 Fees 9, 10, 41, 47, 66, 74, 75, 76 77, 78, 93 Fifty per centum 55 First meeting of creditors. .16, 18, 19 Firm debt — how stated 36 Final dividend 40 Fiduciary debt 54 INDEX. 2'31 Page Fictitious debts or losses 72 Piling of papers ■ 53, 85 Forgery of officer's signature. ... 73 Forms may be varied 94 Forms for injunction referred to 18, 34 Fourth of July 79 Forging court seal , 73 Fraud— debt created by 54 et seq. " prima fade evidence of. . 58 " examination as to 42 Fraudulent conveyance. .. .24, 57, 72 " pledges and prefer- ence 57 et seq. Fraud not ground of opposition 52 " not extinguished by judg- ment 55 Further dividend 46 Furniture — when exempt 20 Gaming affects discharge 50 " when an offense 72 General Orders 3, 14, 83 General assignment. ..24,58, 64 etseq. "Given" 18 Gifts — when fraudulent. ... 57 et seq. Goods set apart 20 " conversion of. 29 Habeas corpus 43, 92 " His creditors" 65 Hindering assignee 72 Injunction — form of order refer- red to 18 Injunctions-form of, referred to.. 34 Instruments to be executed by debtor 23 Insolvency — contemplation of. .52, 57 In prison when act of bankruptcy 63 Imprisoned debtor — how exam- ined 40,92 Individual creditors — liow pre- ferred 17 Intent to delay 64, 65 Influencing selection of assignee 17 Influencing creditor. 52 Interference with State laws. ... 6 Investment of estate ; 26 Inventory of property 15, 102 Interval before first meeting ... 16, 17 Interlineation 88 Involuntary bankruptcy.. ..62, 66, 67 68,69 " " forms on 161 etseq. Page Interpretation of words 78 Indictment against bankrupt 72 Issues contested — course on 9, 10, 11, 87 ~ " " certificate of. . 157 Joint debtors , 59 " " with bankrupt 54 " stock companies 60 " estate 45, 59 Jurisdiction of the several courts 5 6,7 " superior and exclu- sive 6 " confined to district. . 6 Justice has power of court. . . . 5, 6 Jury — demand of 67, 172 " fees 78 " order for trial by 173 Judgment — effect of on fraudu- lent debt 55 " confession of 63, 65 " on certificate, when final 11 '• no lien 23 Knowledge previous to discharge by creditor. 56 Last day included, except 78 Leases 14 Legal title only in bankrupt 17, 24 Letter of attorney — form of ... . 121 Levy on execution 24, 32, 67 List of debts 120, 142, 143 Limitation — statutes of ... .17, 30, 56 " of suits against assig- nee 7 Liens 22, 23, 24, 32, 67 " maybe waived -31 " when redeemed 22, 24, 89 " petition to redeem 144 Lying in prison 63 Lost will, affidavit, &c 135 et seq. Losses — fictitious 72 " in gaming 50, 72 Liability — conditional, contin- gent, &c 29 Limitation of proceedings to at- tack discharge 56 Marshal made messenger.. . ...16, 113 " duties of. ... ..16,40, 42,66, 68, 81 " fees of.., 75,-77,78,87 232 INDEX Page Marshal — extortion by 73 " includes deputies 78 Meaning of words 78 Merchant stoppin<^ or suspendinjf 63 Memorandum by register. . . .86, 118 . et seq., 122 Messenger includes assistants. . . 78 Meetings of creditors 16, 18, 19 44, 45, 91 •' not held in time 47 " to elect new assig- nee 27, 151 " form of request for 2d 138 " memorandum of, for di- vidends 140 Mesne process 25 Minute books 9, 84 Misdemeanor 73 Money to be deposited 26 " when exempt. 25 " when represents proper- ty 23,25 Mortgaged premises— when to be sold 23, 31, 32 Mortgage— when valid. .21, 31, 32, 64 Mutilating books , . , 72 Mutual debts 31 Motion to set aside assignee .... 29 Name — variation in 17 National Bank lien 24, 32 Newspapers — how selected. . . .17, 48 Necessaries exempt 20 Notices — first meeting 16 " second meeting 44 " appointment assignee. . 23 86, 123 " sale 90 " dividends 27, 45 " filing accounts 44 " application for dis- charge 48, 159 •' application to annul discharge 56 Non-resident creditors, proof by 35 No assets 50, 51 " returns of. 145 Oath of register 8, 115 " of bankrupt 50 " to schedules 108 " administered by register, . 10, 81 " by witness on examination 154 " of allegiance 15 " of assignment to trustees. . 1761 Page Oath includes affirmation 78 Objections to testimony 42 " by creditor 51 '' specifications of.. ..53, 160 Obedience — how enforced 6 Offenses 72, 73 Officers — penalties on .... , 73 Opinion of judge 8, 9, 10, 11, 12 Omissions 40, 94 Operation of act. 55, 79 Orders by registers 86 Onus prohandi. 51, 53, 68 Opposition to discharge 41, 49, 50, 53,91 " contract to forbear. . .. 58 Order to show cause involuntary 166 Order of discharge — when 53, 34 " " petition for 48 " " opposition to. . 53 " ' may be pleaded 55 " " under second bankruptcy . . 52 " " does not release joint debtors... 54 " " after one year... 55 " " how made and enforced 6, 7 " of reference to register. .. . 17 " form of, general 117 Outstanding debts. 46 Payment of fees 9, 10, 41, 75 Papers — ^falsifying 72 Party may obtain opinion of judge 11, 12 Papers may be amended 18 " production of. 10 " filed and indorsed 17, 83 Partners — petitions by, and against 59, 60, 89, 108 Partnership debt — how stated. , . 36 Payment of dividends 44, 46, 47 " fraudulent 57,72 " when act of bankrupt- cy 63 " when assignee to re- cover 58, 63 " of money 92 Partnership property — exempt or not 24, 25 " " distribution of 60 Permitting to be taken, &c 63 Penalties against bankrupt. 72 " " officers........ 73 INDEX. 233 Page Person includes corporation .... 78 Petition, how written 88 " contents of 15,60,64 forms for 96,108,110 " to be filed 17 " to be referred to regis- ter 17,84, 111 " form of, to relieve from lien 144 " instead of appeal, when 6 for discharge 48, 50, 158 Perishable property 38, 91 Pending actions 22 Pledge valid, when , 22, 31 Pledgee, proof by 32 Plea by debtor 68 Power of register 8, 9, 10, 11, 12, 85 Power of attorney. ..35, 36, 121, 134 Power of assignee over estate. . 21 Postponement of proof. 37 " first meeting. ... 18 " final meeting. ... 51 " examination, &c. 85 Prison, lying in 63 Provable debts, what 29, 30, 31 " not enforceable, when 33 Property, what 17, 23 " conveyed in fraud. . 24, 57, 63 " perishable 38 " in dispute 39 *' form of order for sale of 178 " assigned, what. .21, 23, 24 " belonging to third per- sons 24 Priority of creditors' petitions 60, 88 " in payment of debts .... 43, 47,48 Process 39,84 Pledging goods 57 ct seq. Proceedings, when commenced. . 61 " how commenced. . 14, 63,84 " how annulled. . . .18, 66 " are matters of record 62, 85 " evidence of 62 Preferences within four months 57 " legal, when .-. 17 Present value 29 Preferred creditor 37 Protection 8, 11, 42, 85 Page Proof of debt . .29, 32, 34, 35, 36, 59 " forms for. .. 130 et seq. " cannot be with- drawn 31 " amendment of .. .. 31 " postponement of. 37 " refusal of. 32 " refusal appealable 37 " waiveswhat.31, 32, 33 " to be sent to assig- nee 36 Procuring property to be taken 63 " &o., ground for oppo- sition. ... 49 Publication first meeting 16 " appointment assignee 23 " notices salei . . .27, 39, 40 " dividend 44 " in foreign papers ... 17 Punishment of assignee 28 " of bankrupt 40 Qualifications of register 8 " of assignee 19 Questions 53, 68 " to be adjourned, what 10 ei seq. Refusal to answer, by witness. .9, 12 " to obey, by bankrupt. . 12, 40 Receiver on creditor's bill, lien of 24 Reference of petition 17, 84, 111 " to take testimony 62 Rent • 30 Revenue stamps 17, 64 Residence 14, 16 " of assignee 19 Resignation of assignee 27 Removal of assignee, 19, 20, 27 " forms on 148 ef seq. " ofregister 17 " of property 63 Relation back 20, 23 Return by assignee of service of notices 139 Record of assignment 23 " of proceedings 62, 85 Reasonable cause 32, 57, 58 Replication 58 Request for second meeting — form 138 Redemption of property. ..22, 31, 89 234 INDEX Page Eight to restrain no lien 24 Register — appointment of 7 qualifications of 8 bond of. 8, 116 oath of 8, 115 form of order of ref- erence to Ill may take estate 23 cannot act as attorney 9 fees of ..74, 75, 76,87, 93 fees paid by -whom. . 9, 10,75 " to be directed by court 10 to be furnished with . signed process 84 powers over witnesses 10, 86 powers generally. .8, 9, 10, 11, 12, 85 subject to removal. . 11 subject to change. ... 17 to examine papers. . 85 may order amend- ments 43 signs warrant 16 contents of orders by 86 issues order for final meeting 50 may postpone proofs of debt 37 memoranda to be made by 86 memoranda, forms of 119, 122, 142 to make list of debts 51 may take opinion...S, 9, 10 not to commit for con- tempt 9 to administer oaths, when 10, 81 files all papers 53, 85 Sale of estate 25, 31, 32, 38, 39, 90 " order concerning 178 " fraudulent 63, 72 Schedules, what 15 " amendment of 40 Seal of court, forgery of 73 Service of notices 16, 18, 41, 67, 69,91 Set-off 31 Security, creditors having 37 Setting apart delayed, when 25 Servants, wages of 43, 48 Page Seizure, warrant for involuntary. 168 Second meeting 44, 45, 91 " bankruptcy 52 Secreting estate 72 Ships, mortgages on 21 Sitting, a day to be six hours. . . 85 Specification of objection to dis- charge .53, 160 Special order 76 State courts not to be enjoined. . 34 State insolvent laws affected. .. . 6 Staying suits 33, 34 " form of order referred to 34 Stoppage or suspension 63, 65, 66 Statute limitations, effect of. . 17, 30 Stamps, revenue 17, 64 Suits against assignee 7, 22 Suffer , 52, 65 Surviving assignee 28 Suspension 63, 65, 66 Surety, proofs by and against.. .. 29 Supreme court, appeal to 13 Sunday 79 Suits pending 22, 26 " when stayed 33, 34 Subpoena 12, 84 " forms for, &c. . . .155 ei seq. Taxes, national and State 38 Testimony to be taken. . . .39, 41, 61, 62, 71, 86 Territorial courts 79 Thanksgiving 69 Third meeting 45, 91 Time to appeal 12 " to attend before register. , . 17 " for first meeting 17 Title of assignee to estate 22, 26 Time, to attack discharge 56 " computation of. 78 Traveling fees 10, 75 et seg. Trust property in hands of bank- rupt 17,22,24 Trader 52, 63, 65 Trial 53, 67,68 " demand of order for.. ..172, 173 Transfer of property 57, 63 Trustees 69, 70 " forms on appointment. . 174 et seq. " advertisement on, form. 177 Unknown facts, allegation 17 Unliquidated damages, assess- ment 30 INDEX. 235 Page Usurious debt, provable 31 Uniform, arms, &c; 20 Vague averments insufficient., .53, 56 Vacancy in office of assignee. ... 28 Varied, forms may be 94 Validity of discharge, contest- ing 56 Variation in name 17 Vessels, mortgages on 22 Voluntary proceedings 14 Vouchers of assignee 44 Warrant 16, 39, 59, 66, 68 " forms of, &c 113 et seq. " of seizure, involuntary, . 168 " to arrest bankrupt 68 " to confer judgment, . ,.63, 65 Wages entitled to priority 48 Wearing apparel exempt 20 "Whether" 17 Wife, where bona fide owner of Page property formerly of bank- rupt 51 Wife — cover for bankrupt's prop- erty 51 " examination of. 40, 41 Witness, examination of, ..10, 12, 40, 41, 62 " oath of, on examination 154 " on claim of debt 36 " punishable for contempt 12, 62 " summons for and return 155 " entitled to protection. . 12 " deposition to aot of bankruptcy 165 " refusing to assignee,. ..9, 12, 39,42 " fees of 41,78 Writ of error 13 Waiver of appeal 13 " of lien 31,32 " legal remedy 33 II^DEX KULES m BANKRUPTCY FOR THE , SOUTHERN DISTRICT OF NEW YORK. Page Assignee must accept within five days 187 " John Sedgwick, when to be 187 " to send assignment to clerk..... 187 " notice of appointment of 187 " notice of settlement of account 188 " when to file vouchers . 188 " when to keep copies of advertisement, &c.. .. 191 Advertisement, sale 187 Annulling discharge, application and answer 188 Advertisements — copies to be kept 191 Absence of judge 191 Adjournment, because of absence 191 Adjudication in involuntary pro- ceedings to refer, &c 184 Attendance before register — day of 184 " day of to be designat- ed by register 184 Argument — oral, when 189 Attorney — when to sign demand for trial 188 Banks for deposit 189 Certificate— correctness. 1 85 Pago Certificate of issue, what to con- tain 189 Clerks to make certified copy of assignment, and file same. 187 " to keep copies of advertise- ments, &c 191 Checks — how drawn 190 Court may permit oral argument on issues 189 Deposits — in what banks 189 " how drawn 190 Demand for jury trial — how sign- ed 188 Debtor or attorney to sign de- mand 188 Discharge — application to annul . 188 " answer to application 188 Direction on notices 191 Examination of papers 185 Envelopes not to be used 191 Fees to registeii 185 Hearing 188 " when judge absent, cause on 191 Issues — certified, what to contain 189 Judge — absence of 191 Jury trial demanded, how signed 188 INDEX. 237 Page List of debts to be certified...... 188 Marshal to keep copies of adver- tisements, &c 191 " special deputies of. .... . 191 Notices — how published 186, 187, 190 " copies to be kept 191 " when printed, marshal's charges '. 186 " how printed and folded . 191 ■ " of dividends 187 of trials 188 " of settlement of assig- nee's accounts 188 Newspapers — ^what 187, 190 Opinion of register — ^when given 188 Oral argument — ^when 189 Petitions^ — to whom referred. .. . 183 Proofs of debt to be sent to as- signee 186 " " may be postpon- ed... .....:. ..; 186 Publication notices.. . . ..'. . . .187, 190 Post-marks, &c 191 Kegister — to what, petitions re- ferred 183 Page Register — to designate day of at- tendance 184 fees to 185 " to examine papers 185 " to make certificate of correctness on papers 185 " may postpone proofs of debt 186 " to countersign assignee's warrants 190 " to give his opinion, when 188 " to certify list of debts. . 188 " to keep copies of adver- tisements, &c 191 Reference of petitions — to whom 183 " adjudication in invol- untary proceedings to contain 184 Sale — notice of. 187 Sedgwick, John— when assignee 187 Special deputies 191 Trials— where. .... .,. 188 Veriflca,tion — ^when 188 Voucher by assignee 188 Warrant^— to contain 186 " for money, how drawn 190 lE'DEX CIECUIT COURT RULES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN THE SECOND CIRCUIT. CO.MMON LATV ETJLES. Page Action, order to show cause of. . 197 Abatement of actions 222 Affidavits, before whom 212, 220, 222, 223, 225 Agreements to be in writing. . 209 Amendment of pleadings 198 " of case 205,206 Agents, of attorneys 199 " service upon 199 " appointment of. 199 Assessment of damages 197 Assignment of errors 208 Appearance of defendant, what sufficient 195 Appeals from taxation of costs. . 211 Attorney, when liable for costs. . 209 " how admitted 210 Argument — papers furnished on 202 Bail, when to be taken of course 194 when by order of judge. . 194 amount of 194 penalty for requiring too great an amount of 194 when to be put in 194 exception to, and justifica- tion and perfection of 194,195 waiver of 195 assignment of bail bond. . 195 terms of staying proceed- ings in suits on bail bond 195 Bill of exceptions, per se, a stay of proceedings 206 when and how to be made up 206 Bond for costs. Pago . 203 Calendar, when to be made up 203 Caption of pleadings 197 " of judgment records. . . . 207 Certificate of counsel to pleas or demurrers 198 Case made, to set aside verdict. . 205 206 " subject to opinion of the court. . '. 206 " turned into bill of ex- ceptions, &c 206 Cause of action, order to show. . 197 Certiorari for diminution 209 Clerks of counties 219, 220 Commencement of suits 193 Commissions to take testimony, rules in relation thereto. .200, 201, 202 Computation of time 200 Consents to be in writing 209 Continuances abolished 207 Commissioners appointed. ..212, 220, 222, 223, 225 Costs, upon commissions for tak- ing testimony 201 " where too great bail is re- quired 194 " attorney, when liable for 209 " security for 203, 209 " on payment of money into court without plea of tender 209 " by whom taxed 210 " what motions do not carry 210 INDEX 239 Page Costs of attorneys, what allowed 211, 221 Criminal cases, division in 207 Default, upon iifliat terms to be waived 197 " rule for judgment on. . 197 " for not bringing on cause when called on calen- dar 210, 211 Death of party, proceedings on. . 203, 204 Division of opinion 207 Diminution, certiorari for 209 District court rules adopted 211 Error, proceedings on writ of. . 208, 209 Exceptions, bill of, when and how to be made up. . . 206 " may be used on mo- tion for a new trial 206 Execution, sale of real estate un- der 207 " when returnable. . . . 194 Interrogatories 201 Inquests, when and how taken. . 197, 205 Issue, when formed 198 " notes of, when to be de- livered to the clerk. . . . 203 Joinder in error 208 Judgment on default 197 " as in case of nonsuit 202 " when may be entered after permission to stipulate 202 " staying proceedings on 205 " rules for, when abso- lute 205 " placitaofrecordsof. .. 207 " by whom signed 210 " satisfaction of, before whom acknowledged 211 Jurors— venire for 204,218, 219, 224, 225 " when to be summoned. . 204 " how many to be sum- moned 204 " whence to be obtained. . 219 Justification of sureties 200, 203 Page Marshal's return of panel 205 Monies in court, where to be de- posited 225 Motions — what to be made be- fore the court 200 " what before a judge. . 200 " what do not carry costs 210 " for new trial after judg- ment 206 Notices — to be in writing, and how to be served 198,199 " when on agent, when put up in the clerk's oface 199 " time of notice 199 " what may be given by either party 200 " of proceedings before a ^\xigQ out of New Torh 211 " of motion 200 New trial after judgment, motion for.. 206 Notes of issue, when to be deliv- ered to the clerk 203 Nonsuit 202 Objections to commissions 202 Orders to show cause of action, &o. 197 Panel of jurors to be furnished by the clerk upon request. 205 Papers to be furnished to the court on argument. 202,221 Payment of money into court without plea of tender. 210 Plaoita of judgment records 207 Process — to be signed and sealed by the clerk 193 " how tested, and return- able 193 " how long to be in mar- shal's hands to charge bail,.. 194 " service of, where mar- .. shal is a party, or is interested 211 Pleas — ^when to be sworn, &c. . . 197 " in abfitement, when to be served 198 " amendment of. ; 197 Eeal actions — form of 193 240 INDEX. Page Real estate — ^sale of. 207 Return to writ of error. 208 Records to be signed 210 Reporter to have materials 224 Rules — against the marshal 194 " to be entered in vacation 196 " to declare, plead, answer, or join in demurrer . . 196 " for default on judgment o(respondeas ouster. , 197 " for judgment on default . 197 " for commissions ....... 201 Redemption of lands sold under execution 208 Return of commissions 202 Sale of real estate. 207 Scire facias — rules in relations to proceedings by 196, 197 Security for costs 203, 218 Satisfaction of judgments — be- fore whom acknowledged .... 211 Service of process, where marshal is a party, or interested 211 fage Service of papers. . 199, 200, 202, 211 Setting down cause, not allowed 211 Stay of proceedings on judgment 206 " " after commis- sion 201 " " how long in force 209 " " what oper- ates as. . . 207 Stipulation to try cause 202 Summing up causes, order of.... 211 Taxation of costs — by whom ... 210 " " appeals from , 211 Time of notices, rules, &c. — how computed , 200 Venire for jurors 204, 205 Waiver of default 197 "Writs •.. 193 Witnesses on commissions 202 Writ of error 208, 209 EQUITY KULES. Adjournment by a master or ex- aminer 214 Appeals, papers on 220 Deposition, proceedings on 213 Exceptions to testimony 214 Enrolling of decree, when to be suspended. 214 Hearing on the pleadings 213 Injunction, what papers to be served on motion for 212 " cause against order for, how showed 212 " Buppletory or sup- porting proofs on motion for 212 Injunction— evidence to sustain 221,222 Motions, before whom to be made 213 Setting down cause upon plead- ings 213 Supporting proofs .213, 222 Testimony, oral, in court, prac- tice, when to be taken 213 " in writing, how taken 213 " time allowed for tak- ing 213 " publication of 213 " exceptions to 214 INDEX 241 BTJLES ON Page Ulegations, showing cause against offering new 216 " practice, when they are to be made. . 216 Answer, not to be put in on ap- peal 216 Appeal to be in writing, form of, when to be returned . . 215, 221 " service of, and return to 215 " when return to, to be made 215,216 •' to supreme court, pro- ceedings on .• . . . 217 " when to be deemed in circuit court 216 " when to be proceeded in 216 Decrees, what may be appealed from 214 " what are final 214 " when to be executed.. 217 " of district court, when appellee may move to have executed, 217 District court rules adopted .... 218 APPEALS. Page Ex-parte, when appellant may proceed 216 Hearing, notice for 216 '• when 217 Inhibition, writ of. 216 Mandamus, writ of 216 Motion to enforce decree 217 New allegations or relief. . . .216, 217 Notice for hearing to be given by either party 216 New proofs, opposition to 216 Relief, practice, where new is prayed 216, 217 Service of appeals 215 Testimony, practice when new is intended to be taken 216, 217 " in district court, when to be used 217 Writ of inhibition 216 16 TABLE OF CASES. Page rage Altenhain, 17 Claflin V. Wells, . 64,65 Appold, . . 23, 24, 45 Caldwell, Phelps & Co., 19,36 Arledge, 24 Camp, . Clairmont, 67 20 Bashford, 52 Cowperthwaite, . 67 Bank, &c. v. Truax, &c., 32 Cowles, &c.. 64 Burns, 33 Carpenter, 42 Bellamy, 50, 51, 76 Cone, 64,65 Baum, 53 Craft, &c., . 52 64,65 Bornstein, 67 Corner v. Miller, 50 Boylan, 60 Cobb, . 24 Bliss, .... 19 Cram, 32 Beiser, 24 Crowley, 64 Beiser ads. Sedgwick, 24 Collins, . ... 41 Bailey, 17 Blumenthal ads. Isidor, 41 Davis & Son, 19 Beardsley, 51 Donaldson, 34 Bridgman, . 36 Devoe, 43,55 Black, 52, 65 Drummond, 68 Bowie, 6,34 Dodge, 50 Bolton, . 19 Dean, . 45 76,77 Blake, .... 42 Devlin, 17 Belcher, . 16 Dunham, 32, 64, 65, 68 Bigelow et al., 24, 32 Byrne, 17, 45, 60, 65 Ellis, 25,66 Barrow et al., 6, 32 Ermer v. Miller, . 79 Bradshaw v. Klein, . 24 Beck, .... 34 Florida, &c. R. R. Co., 65 Brock V. Hoppock, . 65, 68 Frear, . Fredenburg, 31 12,41 Cogswell, 18 Campbell, 34 Graves, 27 Commonwealth v. O'Hara, 6 Grlasser, . 10,42 Claik, . . , . 76 Griffin, 41 TABLE OF CASES. 243 Page Page G-ettleston, 9 Loeb et al, 6,32 Leeds, 65,66 Haley 36 Lowenstein ads. Pennington, Hasbrouck, 23 Ass'e, .... 25 Hoppock ads. Brock, 65, 68 Hill, ir, 18, 51, 53 Metcalf, &C., . 34 Hays, 17 Mclntire, ... 51 53,56 Hughes, 53 Mackintyre, . . .10, 41,43 Hatcher, . 17 Morford, 43 Harden, 17,30 Metzler, &c., . 67 Haughton, 64, 65 May, &c 25 Hummitsch, . 51 Mott, .... 25 Hazleton, 43 Minck ads. Sedgwick, 24 Havens, 19 Milner, .... 30 Hirsch, 6 Mawson, . . . 12,51,52,53 Haver, &c., . 24,34 McClellan, . . _ . 32 Hughes ads. Irving, 34, 67 Milingar v. O'Hara, . 6 Herschberg, 48 Morgenthal, 43 . Miller 18,66 Isidor V. Blumenthal, 41 Miller ads. Ermer, 79 Isidor ads. Stewart, . 24, 31, 32 Moore, .... 31,64 Irving V. Hughes, . 34,67 Magie, .... Meichants' National Bank v. 16 Jacoby, 43 Truax, Adm'r., 58 Jewett, 45 Meyers, .... 24,34 Jones V. Leach, 23 Judson, 41,42 New York Mail Steamship Jersey City Window-glass Co., 29 Co, . . . 65 Noakes, .... 24 Jones, '. 37,43 Orme, . . .17, 19, 23, 37,43 Knoepfel, . 36 Okell 41 Kingsley, 17, 30, 56 O'Bannon, .... 17,52 Klein ads. Bradshaw, 24 O'Brien, .... 7 Koch, 42 O'Hara ads. Commonwealth, Kimball, 42 &c., 6 Levy, . 41,42,53 Purves, .... 19 Loweree, 31,36 Patterson, . . 9,23,41 42,55 Leach ads. Jones, 23 Pulver, .... 10 12,17 Lewis, .... 60 Puffer, 53 Little, 60 Perry, . . . .20, 30, 43 Leachman, . 41 Petti.s, 43 Langley, . 65, 79 Prankard, 60 Lawson, 25 Pomeroy, .... 52 dn TABLE OF CASES. ^ Page Page Phelps et al., . 19, 36 Seokendorf, . . 42, 53 Place ads. Sedgwick, 24, 58, 65 Sheppard, 30, 36, 53 Pejinington v. Lowenstein, Stokes, 19,29 &o., .... 25 Salmon, . 23, 32 Pennington v. Sale, &c. 23,32 Sturgeon, 10,25 Purcell, &c.. 24 Sutherland, . 68 princetonj 37 Simpson, . . . ^ 55 Powell, ... . 19, 36 Sherburne, . 69 Strauss, . . . i 36 Ray, .... 30 Sale, &c. ads. Pennington, . 23,82 Reed, .... . 7, 13, 34 Shields, .... 25 |lQbinson, 17,76 iuth, .... 24 Townshend, . 51 lankin v. F. A. & G. C. R. R. Tanner, . . . ^ 41,42 ! Co. Kathbone, 65 Thompson, . 53 51 Tuttle V. Truax, 58 losenfield, . 42, 52 Tallman, 42, 52, 53 ilatcliffe, . 43 Truax ads. Tuttle, . 58 Truax ads. Merchants' N. Seymour, 34, 42, 43 Bank, &c 32,58 gtern, .... 18 Stick, .... 66 VanTuyl, • . 41, 42 ^chnepf, 32 ^mith 17, 24, 32 White & May, . 25 Stewart, . 23 Walker, . 16,43 Stewart v. Isidor, 24, 31, 32 Waite, .... 64 ^on, 45 Wright, 10 Sherwood, . 76 Winter, .... 6,32 Selig, .... 41 Wells,. . 64, 65 Secor, &c., . . 52, 65 Woolums, 51 Sedgwick, Ass'e v. Beiser, &c., 24 Winn, 23 Sedgwick v. Place, . 24, 58, 65 Walton, .... 45 ^edgwick v. Minck, 24 Wylie, Judge, Direoiione, 36 Schofield, 10,41 THE END.