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DIGEST OF CASES IN BANKRUPTCY.
[The present number of the Digest contains decisions reported in the National Bankruptcy Register, beginning with part 8 of Vol. VII., and including part ? of Vol. IX., together with selections from the latest State Reports.]
ACCOMMODATION INDORSER. — See Act oF BANKRUPTCY, 2.
Account Books. A bankrupt cannot have his discharge if he has failed to keep books of account since March 2, 1867, so that an accountant can determine the condition of his business therefrom. — In re Schumpert (N. D. Miss.), 8 N. B. R. 415.
ACT OF BANKRUPTCY. 1. Mere non-payment of a note for fourteen days, where the debtor denies his liability and satisfies the court that he has good reason to do so, and that there is at least doubt about his liability, does not constitute an act of bankruptcy. – In re Munn (N. D. III.), 7 N. B. R. 468.
2. An accommodation note is not commercial paper, and an accommodation indorser cannot be adjudged bankrupt for failure to pay the note. — In te Clemens (U. S. C. C. E. D. Mo.), 9 N. B. R. 57. (Reversing decision of district court, s. C. 8 N. B. R. 278.)
3. It is not an act of bankruptcy for a debtor to suspend payment of his commercial paper for fourteen days if he is under injunction during that time by the bankruptcy court not to make any disposition of his property. - In re Pratt (U. S. C. C.), 9 N. B. R. 47.
4. Failure without excuse to pay commercial paper for fourteen days constitutes an act of bankruptcy, and it is not necessary to allege the insolvency of the delinquent. — In re Guy Wilson (N. D. Ill.), 8 N. B. R. 396.
See COMMERCIAL PAPER, 1; FRAUDULENT PREFERENCE, 7.
• ADJUDICATION IN BANKRUPTCY. Adjudication was made November 6, and November 19 bankrupt moved to set aside. Refused, on account of delay in making the motion. - In re Neilson (E. D. Mich.), 7 N. B. R. 505.
See JURISDICTION, 20.
ADVERSARY SUIT. It seems an adversary suit against an insolvent person may be prosecuted to judgment up to the moment of bankruptcy, and the preference thereby gained is good unless there be complicity between the creditor and debtor. Per BRADLEY, J., dissenting, in Buchanan v. Smith (U. S. S. C.), 7 N. B. R. 526.
AGREEMENT OF CREDITORS. - See COMPOSITION, 1.
ANSWER. — See PLEADING, 2; PRACTICE, 5.
APPEAL. 1. An appeal to the supreme court will not lie from a decision of the circuit court in the exercise of its supervisory jurisdiction conferred by section 2.Hall v. Allen (U. S. S. C.), 9 N. B. R. 6.
2. In cases where the circuit court exercises supervision over the summary proceedings of the district court there is no appeal to the supreme court. – Marshall v. Knox et al. (U. S. S. C.), 8 N. B. R. 97.
3. No appeal from the action of the circuit court in the exercise of the supervisory jurisdiction conferred in section 2 of the Bankrupt Act lies to the supreme court. — Mead v. Thompson (U. S. S. C.), 8 N. B. R. 529. See PRACTICE, 6.
ARREST. — See FIDUCIARY RELATION.
ASSIGNEE. 1. No manner of voting in the choice of assignee by creditors is prescribed by the Bankrupt Act, and it is only necessary that the choice be distinctly ascertained. Creditors who have proved their claims may postpone the choice of assignee until other creditors have proved, if they choose, though the act intends that the assignee should be chosen as soon as possible, and a postponement by the register of proof of claims disputed is no ground for deferring the choice of assignee. In such case the creditors whose claims were postponed may have the proceedings certified to the court, and, if the postponement is found erroneous, a new election may be ordered. — In re Lake Superior Ship, Canal, R.R., & Iron Co. (E. D. Mich.), 7 N. B. R. 376.
2. A creditor agreed to pay the entire debts of some other creditors out of his own pocket if they would give him a power of attorney to vote at the election of assignee. He by such means got himself elected. Held, on the recommendation of the register, that the official assignee be appointed instead. — In re Haas & Samson (S. D. N. Y.), 8 N. B. R. 189.
3. Pending a petition in bankruptcy by M. against J., M. himself was adjudged bankrupt. Held, that M.'s assignee could be substituted in the proceedings against J. – In re Jones (D. Ind.), 7 N. B. R. 306.
4. The condition of the bankrupt's assets should be made known to the creditors by the assignee, if he knows they are ignorant of the same; and when he knows a bank has on deposit a large amount of money belonging to the estate, and the bank claims a set-off, it is sufficient cause for removing the assignee if he did not make known the fact to a creditor inquiring. Such removal may be made on a petition to the circuit court directing the district court to remove the assignee and to appoint a successor. — In re Perkins (C. C. N. D. IIl.), 8 N. B. R. 56.
See ATTACHMENT; Costs, 2; FRAUDULENT CONVEYANCE, 4; JURISDICTION, 2, 7, 11, 15, 17; PRACTICE, 11; PROOF OF CLAIM, 10; RENT; STATE LAW.
ASSIGNMENT. Whether the assignment in a case of involuntary bankruptcy relates back to
the time of filing petition by the creditor, as to third parties, quære. - Lenihan v. Haman et al. (N. Y. S. C.), 8 N. B. R. 557.
ATTACHMENT. The district court, on petition of the assignee in bankruptcy, issued a summons to show cause against a sheriff who some days prior to bankruptcy proceedings had levied on property under a lien, and the goods were sold under proceedings on the summons; the assignee was held a trespasser, and the sale void. — Marshall v. Knox et al. (U. S. S. C.), 8 N. B. R. 97. See LIEN.
ATTORNEY. An attorney appeared for the bankrupt and waived important rights of his principals, the effect being to admit the allegations in the petition. Six months after, the bankrupt asked to have the proceedings set aside therefor. Held, that if the bankrupt had acted promptly, the motion would have been granted, but that the delay was fatal. — In re Republic Insurance Co. (N. D. III.), 8 N. B. R. 317.
AUCTIONEER. — See SALE BY ASSIGNEE.
BAILOR AND BAILEE. Where a bailee, with the consent of the bailor, mixed the wheat of the latter with his own, and afterwards became bankrupt, held, that the bailor could only come in and prove as a general creditor for the value of his wheat. — Adams v. Myers (D. O.), 8 N. B. R. 214.
(Act of 1841.)
(Act of 1867.) $ 1. - See INJUNCTION, 1; JURISDICTION, 7, 8, 9, 17; PRACTICE, 4, 6, 7. § 2. — See APPEAL, 1, 3; INJUNCTION, 1; JURISDICTION, 5, 7, 13, 15; LMM
TATION; PRACTICE, 4, 7.
$ 6. — See JURISDICTION, 17.
$ 13. — See AssignEE, 1. $14. - See ASSIGNMENT; CONSTITUTIONAL LAW, 4; DISCHARGE, 6; FRAUDU
LENT PREFERENCE, 9; HOMESTEAD, 1; JURISDICTION, 9; LIEN; LIFE INSURANCE, 2; PRACTICE, 4; STATE LAW.
$ 16. — See AssignEE, 3; JURISDICTION, 9. $ 19. - See CONTINGENT CLAIM, 1; INFANCY; PAYMENT ; PROOF OF
. CLAIM, 11..
$ 22. — See PROOF OF CLAIM, 6.
§ 26. — See DISCHARGE, 1.
§ 28. — See DISTRIBUTION OF Assets.
§ 31. — See DISCHARGE, 8.
§ 34. — See DISCHARGE, 5, 8. § 35. — See FRAUDULENT CONVEYANCE, 1, 3, 6; FRAUDULENT PREFERENCE,
6, 8, 9; JURISDICTION, 17.
§ 37. — See NationAL BANKS. § 39. - See Act or BANKRUPTCY, 4; COMMERCIAL PAPER, 1; FRAUDULENT CONVEYANCE, 2, 7; FRAUDULENT PREFERENCE, 6; INFANCY.
§ 40. — See INJUNCTION, 1.
§ 42. - See AssignMENT.
§ 47. - See Costs, 2.
STEAD, 2. AMENDMENT OF MARCH 3, 1873. — See CONSTITUTIONAL Law, 1, 2, 4, 5, 6;
BANKRUPTCY. – See AssIGNMENT.
BURDEN OF Proof. The onus is on the debtor to prove affirmatively that the allegations in the petition are not true. — In re Price and Miller (E. D. Mich.), 8 N. B. R. 514.
Call LOAN. — See Practice, 2.
v induced B. to take hen preparing to then to the money never.
CHECK. A. fraudulently induced B. to take his check for $1000 as cash, knowing that the bank had refused his checks, and then preparing to go into bankruptcy. B. claimed the whole by petition, on the ground that the title to the money never vested in A. Held, that B. could only share pro rata. — In re King (Sup. C. Ga.), 8 N. B. R. 285.
CHOICE OF ASSIGNEE. A creditor may change his oral vote for assignee before he has signed the certificate of choice; and where it is charged that a creditor gave his vote for
assignee corruptly, the court will not remit the matter for a new election, unless it appear that the alleged corrupt vote produced the election. — In re Pfromm (E. D. Mich.), 8 N. B. R. 357. See AssiGnEE, 1; JURISDICTION, 13; PROOF OF CLAIM, 5.
COMITY. - See PROOF OF CLAIM, 4.
COMMERCIAL PAPER. 1. Non-payment of commercial paper is a continuous act of bankruptcy, and an adjudication in bankruptcy may be made therefor more than six months after the paper became due. — In re Jacob Raynor (N. D. N. Y.), 7 N. B. R. 527.
2. A., not being a merchant, entered a firm to benefit a relative, and closed up the business as soon as he found it unprofitable. After the dissolution he gave his note to a creditor by way of settlement. Held, not to be commercial paper.
3. To a petition against a debtor charging bim with an act of bankruptcy in suspending payment of his commercial paper, the debtor filed an answer denying his insolvency, and setting up that the paper in question was usurious. Demurrer to this answer was overruled. - In re Staplin (E. D. Mo.), 9 N. B. R. 142. See ACT OF BANKRUPTCY, 2, 3, 4; DISCHARGE, 9; PROOF OF CLAIM, 13.
COMPOSITION. 1. Creditors agreed to take a certain per cent. of their several claims in notes at six months. One creditor secretly stipulated with the debtor that, as a consideration for his signing, the debtor would at once discount and pay his notes. Held, that the amount paid under that stipulation could be recovered by the assignee. — Bean v. Amsink (S. D. N. Y.), 8 N. B. R. 228.
2. A preference paid to obtain signatures to a composition deed may be recovered by an assignee in bankruptcy, by other innocent creditors, or by the debtor himself. — Bean v. Brookmire & Rankin (U. S. C. C. E. D. Mo.), 7 N. B. R. 568.
CONFLICT OF Laws. — See JURISDICTION, 3.
CONSENT. — See DISCHARGE, 4.
CONSTITUTIONAL Law. 1. The Amendment of March 3, 1873, is constitutional in cases where the proceedings were begun after that date. — In re Everitt (S. D. Ga.), 9 N. B. R. 90.
2. The Amendment of March 3, 1873, is constitutional. It does not destroy the uniform character of the bankrupt act. — In re Smith (N. D. Ga.), 8 N. B. R. 401.
3. A homestead exemption law cannot protect property against a judgment and execution issued prior to the enactment of the law. To give it such a retrospective effect would be to impair the obligation of contracts. — Gunn v. Barry (U. S. S. C.), 8 N. B. R. 1.
4. The Amendment of March 3, 1873, is constitutional. — In re Kean et al. (W. D. Va.), 8 N. B. R. 367.
5. The Bankrupt Act is not unconstitutional as lacking uniformity between the several states in the matter of liens. Nor are the Amendments of June 8, 1872, and March 3, 1873, unconstitutional as being retrospective in their effects on liens.