Page images

6. The Amendment of March 3, 1873, allows exemptions, provided for by the state laws of 1871, in preference to judgments of state courts rendered subsequent to the date of the amendment. As being declaratory of the bankrupt law, it is void. — In re Dillard (E. D. Va.), 9 N. B. R. 8.

CONTEMPT. A creditor in Illinois attached a bankrupt's property in February, and an adjudication in bankruptcy was made in March following in New York, and the court in New York enjoined the creditor in Illinois from proceeding under his attachment. The latter disregarded the injunction and went on and sold the property, whereupon he was fined in a process for contempt in New York, the amount the property sold for, and the costs of the contempt proceedings including a counsel fee. Hyde v. Bancroft & Steiner (S. D. N. Y.), 8 N. B. R. 24. See INJUNCTION, 1; JURISDICTION, 1.


CONTINGENT CLAIM. 1. A guardian filed his account, showing a default therein, February 8, 1868. February 24 his surety was discharged in bankruptcy. Held, that the liability of the surety was not of a fiduciary character, and was a contingent claim which might have been proved, and which was extinguished by the discharge. — Jones & Cullom v. Knox (S. C. Ala.), 8 N. B. R. 559.

2. In 1839 R. sold land in St. Louis, giving covenant of an indefeasible estate in fee. Previously, however, one T. owned the land, and when he sold it his wife did not release dower. In 1843 R. was discharged in bankruptcy, and in 1848 T. died. In 1868 T.'s widow recovered a claim for her dower from the owners of the land, who then sued R. on his covenant. Held, that under $ 5, Bankrupt Act of 1841, the claim was not provable against R. in bankruptcy, and hence was not discharged. Riggin v. Magwire (U. S. S. C.), 8 N. B. R. 484.

CONTINUING CONTRACT. Goods were deposited for storage before the depositor went into bankruptcy. After his discharge the goods continued to remain in store. Held, that the liability to pay storage accrued from day to day, and the bankrupt must pay therefor from the date of his discharge. Robinson v. Pesant et al. (C. of App. N. Y.), 8 N. B. R. 426.

Costs. 1. If a creditor procure the assignee to contest the claim of another creditor, and the claim is nevertheless established, the first creditor must pay all the costs of the suit. — In re Troy Woollen Company (N. D. N. Y.), 8 N. B. R. 412.

2. A marshal can only charge for actual, not for constructive mileage. If he has two services to make in the same direction at the same time, he can charge mileage only once. If he has made disbursements beyond what he has received he may charge interest on the balance, but he cannot charge interest on his fees from the time he earned them. — In re Donahue & Page (E. D. Mich.), 8 N. B. R. 453.

3. Costs will be allowed in a suit brought by an assignee, though brought without sufficient cause, unless it plainly appear that the assignee acted in bad faith. - Coxe v. Hale (N. D. N. Y.), 8 N. B. R. 562.

4. Expenses of a creditor in striving to obtain a preference in frustration of the Bankrupt Act cannot be allowed as a charge on the bankrupt estate. — In re Archenbrown (E. D. Mich.), 8 N. B. R. 429.

5. Costs were allowed against a creditor who unreasonably contested a suit brought by the assignee to set aside a preference. — Warren v. Delaware, Lackawanna, and Western Railway Co. (N. D. N. Y.), 7 N. B. R. 451.


DATE OF CLAIM. May 1, 1868, a tenant surrendered his lease and agreed with the landlord that the latter should rent the premises for as much as he could, and the tenant would make up the difference between the amount thus received and the amount that was to have been paid under the lease. At the time of the expiration of the lease the landlord recovered judgment for these balances. Held, that his claim accrued when the lease was surrendered, and so prior to January 1, 1869. — In re Swift (S. D. N. Y.), 7 N. B. R. 591.





DISCHARGE. 1. A bankrupt cannot decline examination under $ 26 on the ground that he was discharged in bankruptcy more than two years previous, – In re Heath go Hughes (S. D. N. Y.), 7 N. B. R. 448.

2. A debtor obtained his discharge in bankruptcy during the pendency of a suit in a state court, fraudulently concealing the bankruptcy proceedings from the plaintiff in said suit. Held, that, said plaintiff having had no notice in fact of the bankruptcy proceedings, the debtor was estopped from pleading his discharge in bar. Batchelder v. Law (S. C. Vt.), 8 N. B. R. 571.

3. If a majority in number and value of the creditors of a bankrupt whose debts were contracted after January 1, 1869, consent in writing to his discharge, he will be discharged from all provable debts, no matter when contracted. - In re Hershman (E. D. Penn.), 7 N. B. R. 604.

4. Creditors assented in writing, with others, to the discharge of the bankrupt, and the consent of the required number was obtained, but on the day appointed for the hearing two creditors claimed the right, without cause, to withdraw their consent. Denied. — In re Brent (U. S. C. C. E. D. Mo.), 8 N. B. R. 444.

5. A discharge is a good defence when properly pleaded in a state court, either at law or in equity, and the question of fraud in obtaining the discharge cannot be entertained. Hudson et al. v. Bingham et al. (S. C. Tenn.), 8 N. B. R. 494.

6. A discharge in bankruptcy will not prevent a creditor from taking a decree in rem against a fund upon which he had obtained a lien by trustee attachment more than four months prior to commencement of proceedings in bankruptcy: – Stoddard v. Locke et al. (S. C. Vt.), 9 N. B. R. 71.

7. The fact that the bankrupt wilfully concealed a part of his assets in the proceedings in bankruptcy that led to his discharge, furnishes no ground for impeaching said discharge in a state court. — Parker v. Atwood, 52 N. H. 181.

8. A bankrupt's discharge cannot be impeached in a state court. The bankrupt law points out the method of setting aside the discharge, and no other is valid. - Alston v. Robinett (S. C. Tex.), 9 N. B. R. 74.

9. A drawee of a bill of exchange dishonored it, and the indorser paid it. Between the time of dishonor and that of payment the drawee was discharged in bankruptcy. Held, that the discharge was a good defence in an action by the indorser. Hunt et al. v. Taylor et al., 108 Mass. 508.

10. A creditor was fraudulently omitted from the bankrupt's schedule, and had no knowledge of the proceedings in bankruptcy until after the discharge. He afterwards applied to the district court to have the discharge set aside. Pending that proceeding he was not allowed to impeach the discharge in an action on the same claim in the state court. Burpee v. Sparhawk, 108 Mass. 111.


DISCONTINUANCE OF BANKRUPTCY PROCEEDINGS. Where all but a few small claims of a bankrupt railroad company were bought in by the stockholders bonâ fide, the bankruptcy court exercised its discretion in suffering the proceedings to be dismissed on proper security being given for the settlement of the remaining obligations, which were required to be prosecuted with due diligence. — In re Indianapolis, Cincinnati, & Lafayette R. R. Co. (U. S. C. C. Ind.), 8 N. B. R. 302.


DISMISSAL OF PETITION. Where there are no other creditors besides the petitioner, the petition will be dismissed upon tender of the full amount due with costs. – In re Sheehan (E. D. Mich.) 8 N. B. R. 353.

DISTRIBUTION OF AssetS. Claims against the bankrupt's estate in favor of the United States are to be paid next after the costs. A penalty incurred for violation of the revenue laws is on the same footing. – In re Rosey (S. D. N. Y), 8 N. B. R. 509.




ESTOPPEL. A bankrupt is not estopped from claiming a homestead exemption by reason of his having made a conveyance of the homestead property in fraud of his creditors, which conveyance was afterwards set aside. – Bartholomew v. West et al. (Neb. D.), 8 N. B. R. 12.



FIDUCIARY RELATION. Bankrupt was agent for the sale of goods under an arrangement to account, and pay over the moneys received monthly. Held, that the funds thus received and not paid over did not form a debt created in a “fiduciary character" within the meaning of $ 33, and the bankrupt was not liable to arrest therefor. - Grover & Baker v. Clinton (W. D. Wis.), 8 N. B. R. 312. See CONTINGENT Claim.

FRAUD. — See Discharge, 10; PLEADING, 1.

FRAUDULENT CONVEYANCE. 1. A bankrupt sold his goods out of the course of business at twenty-five per cent below cost, and the purchaser sold to a stranger at a slight advance, and the second purchaser was informed of all the circumstances. Held, that the assignee might have the sale set aside. – Walbrun v. Babbitt (U. S. S. C.), 9 N. B. R. 1.

2. A conveyance that would be void for fraud as against creditors without regard to the Bankrupt Act, cannot stand, although made more than six months prior to bankruptcy. - Hyde v. Sontag et al. (D. Cal.), 8 N. B. R. 225.

3. Where a deed was made more than four months prior to the bankruptcy of the grantor, but not recorded, and the state law did not require record as a condition precedent, but held conveyances, not recorded, good as between the parties and as to persons having notice, it was held, that the assignee could not upset the conveyance. — Seaver v. Spink (S. C. III.), 8 N. B. R. 218.

4. A., a year after being adjudged bankrupt, conveyed real estate to B., a confederate; B. conveyed to C., a bonâ fide purchaser for value without notice. Held, that the deed could not be set aside as against C. at the suit of the assignee. Beall v. Harrell et al. (U. S. C. C. Ga.), 7 N. B. R. 400.

5. Where fifteen years after a husband purchased some land he conveyed it to his wife through trustees, reserving the right to sell at any time without her consent, and giving the same power to the trustees, and she was given no power to sell or devise, and the husband was in pecuniary embarrassment when the deed to her was made, held, that the evidence did not show the conveyance to be bonâ fide, although it purported to be for debts owed to the wife, and at the suit of the assignee in bankruptcy of the husband the conveyance was avoided. Fisher v. Henderson et al. (S. D. Miss.), 8 N. B. R. 175.

6. Section 35 does not necessarily render void conveyances made by a debtor in failing circumstances, but only such as are shown to have been made with a fraudulent intent; and if such conveyances or transfers are in the ordinary course

of the bankrupt's business the burden is on the party charging fraud to show it. - Tiffany v. Lucas (U. S. S. C.), 8 N. B. R. 49.

7. A trader, in order to meet his obligations, made sale of goods at a low price to a party knowing his insolvency. Held, that the sale could not be set aside, the fraudulent intent on the part of the bankrupt being always essential to render such sales invalid. — Sedgwick v. Lynch (U. S. C. C. S. D. N. Y.), 8 N. B. R. 289.

8. A trust-deed was given by the debtor more than six months before petition filed, and after petition filed the trustee sold the land. Held, that the sale was voidable but not void. — McGready v. Harris (S. C. Mo.), 9 N. B. R. 135. See EsTOPPEL; JURISDICTION, 11.

FRAUDULENT PREFERENCE. 1. A debtor within four months before the petition in bankruptcy was filed suffered her property to be sold on execution, the creditor having reasonable cause to believe the debtor insolvent. Held, that the assignee might have a judgment against the creditor for the value of the property. Christman v. Haynes (E. D. N. Y.), 8 N. B. R. 528.

2. Payments made by the bankrupt in the course of business, in the honest expectation that he can keep along, and with no intention to prefer one creditor to another, furnish no ground for refusing a discharge. — In re Brent (U. S. C. C. E. D. Mo.), 8 N. B. R. 444.

3. The giving of security at the time of a loan by an insolvent person is not of itself a preference. — Clark v. Iselin et al. (U. S. C. C. S. D. N. Y.), 9 N. B. R. 19.

4. Petitioner claimed as for rent on a plantation leased to the bankrupt a preference out of the fund in the assignee's hands, on the ground that at the time of adjudication there was on the plantation property enough to satisfy his debt on which he had a lien, and which was sold by the assignee. Denied, on the ground that he had not enforced his lien at the proper time. — Austin v. ORielly (S. D. Miss.), 8 N. B. R. 129.

5. A debtor, being insolvent, conveyed all his property to two creditors in trust to pay themselves and another in full, and afterwards other creditors pro rata as far as the property would go. Held, a fraudulent preference. - Stobaugh v. Mills et al. (D. Tex.), 8 N. B. R. 361.

6. If a creditor prosecute his claim to judgment and execution, and levy on property, knowing his debtor to be insolvent, the lien thus obtained will not be vacated in bankruptcy unless the debtor do something more in aid of obtaining said lien than passively submitting to the proceedings against him, knowing he had no valid defence. “Procuring” and “suffering,” in $$ 35 and 39, seem, taken in their connection, words of similar import. — Wilson v. City Bank of St. Paul (U. S. S. C.), 9 N. B. R. 97.

7. A debtor gave a trust-deed upon property in lieu of a mechanics’ lien upon the same. Held, a mere change of security and no fraudulent preference. — In re Weaver (E. D. Mo.), 9 N. B. R. 132.

8. The principal on a bond, in order to secure his sureties, obtained mortgages from a debtor of his, and turned them over to his sureties. Held, a preference

« PreviousContinue »