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Rep. 289; Swan v. Littlefield, 4 Cush. 574; In re Tebbetts, 5 Law Rep. 267; Chapman v. Forsyth, 2 How. 207; In re Holmes, 5 Law Rep. 361; In re Horton, 5 Law Rep. 462; Larrabee v. Talbott, 5 Gill, 426; Cornwell's Appeal, 7 W. & S. 305; Weiner v. Farnum, 2 Barr, 146; Shawhan v. Wherritt, 7 How. 627.] -Day v. Bardwell (Mass. State Sup. J. Court), 97 Mass. 246.
3. The Bankrupt Act does not divest State courts of the jurisdiction necessary to the final administration of the estate of an insolvent who has made a surrender previous to its passage. [Citing Sturges v. Crowninshield, 4 Wheat, 122; Clarke v. Rosenda, 5 Rob. (La.) 27; Beach v. Miller, 15 La. An. 601; Arcenaux v. Creditors, 3 La. 37; West v. Creditors, 5 Rob. (La.) 261 ; s.c. 8 Rob. (La.) 123 ; Dwight v. Simon, 4 La. An. 490.] — Meekins v. Creditors (Sup. Ct. of La.), 19 La. An. 497. See ACT OF BANKRUPTCY, 3.
BANKRUPTCY, ACT OF.— See Act OF BANKRUPTCY. BANKRUPTCY, CONTEMPLATION OF. — See CONTEMPLATION OF BANKRUPTCY
Books of ACCOUNT. 1. The omission by a merchant or tradesman to keep proper books of accounts, is ground for refusing him a discharge, though the omission was not with fraudulent intent. — In re Solomon (Pa. E. D.), 2 B. R. 94; s.c. 25 Leg. Int. 364.
2. One who has been engaged in the general business of soliciting freight for a transportation company, but has also repeatedly purchased and sold goods, drawing bills against his shipments, is a merchant or tradesman, and if he has not kept proper books of account, he will be refused a discharge in bankruptcy.In re O'Bannon (Mo. E. D. P), 2 B. R. 6. BURDEN OF PROOF.- See DISCHARGE, III. 6, 7; PRESUMPTION; TRIAL BY
CERTIFYING QUESTION. 1. The court declined to decide a question certified to it, because it was not raised by parties having the right to raise it, and because it did not arise in any proceeding before the register. – In re J. W. Wright (Ky. D.), 1 B. R. 91.
2. The court will not give an opinion on questions certified to it, if those questions are merely abstract, and have not actually arisen. — In re E. T. Sturgeon (Ky. D.), 1 B. R. 131.
3. When the party who has raised and contested an issue of law, argues it before the register and awaits his decision, he cannot, after a decision against him, move to adjourn the question into court under § 4. In re C. G. Patterson (N.Y. S. D.), 6 I. R. R. 127 ; s.c. 7 Am. Law Reg. (N.s.) 26.
4. The fourth and sixth sections contemplate the certifying by the register to the judge only of questions which actually arise. These are, (1) any issue of fact or of law, raised and contested by any party to the proceedings, but it must be an issue actually raised and existing, and one which has arisen out of proceedings which have taken place, and not an issue likely to arise, or which may be raised thereafter. (2) Any point of matter arising in the course of the pro
ceedings, or upon the result of the proceedings, but it must be a point or matter which has arisen in the course of proceedings which have taken place, or a point or matter which has arisen upon and after the result of proceedings which have taken place, and not a point or matter likely to arise, or which may be raised thereafter, or after a result shall have been arrived at. (3) Any question may be stated by consent by the parties concerned in a special case; but it must be a question to which there are two parties, and one which has arisen out of proceedings which have taken place. — In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
See DISCHARGE, III. 10; EXAMINATION, 17, 18; FEES, I. 34; REGISTER, 5; WITNESS, 2.
CIRCUIT COURT. 1. No appeal lies to the Circuit Court from an adjudication of bankruptcy. – In re M. A. O'Brien (N.Y. N. D. C. C.), 6 I. R. R. 182.
2. To obtain the determination of the Circuit Court on a question arising in the course of bankruptcy proceedings, a petition should be brought in the Circuit Court. An appeal is not the proper method of raising the question in that court. — In re J. M. Reed (Ohio N. D. C. C.), 2 B. R. 2.
3. A writ of error to the District Court to obtain a reversal of an order discharging a bankrupt, was dismissed, the record presenting only questions of fact. Whether a writ of error is ever the proper process to obtain the reversal of such an order, quære. — Ruddick v. Billings (Iowa D. C. C.), 2 West. Jur. 275. See JUDGMENT, 2. CLERK. See DISCHARGE, II. 4, 5; FEES, II.
COMMERCIAL PAPER. 1. The mere stopping payment of commercial paper and not resuming within a period of fourteen days is not, without fraud, an act of bankruptcy. — In re Jersey City Window Glass Co., Ex parte Wigton (N.J. D.), 1 B. R. 113; s.c. 7 Am. Law Reg. (N.s.) 419; 1 L. T. B. 61; In re W. Leeds (Pa. E. D.), 1 B. R. 138; s.c. 3 Pitts. L. J. (N.s.) 301; 25 Leg. Int. 140; 7 Am. Law Reg. (N.s.) 693; 1 L. T. B. 78; In re Cone, Ex parte Gillies (N.Y. S. D.), 2 B. R. 10.
2. Suspension of payment of commercial paper for fourteen days, is prima facie fraudulent. — In re Ballard (Conn. D.), 2 B. R. 84.
3. A banker, merchant, or trader, who has suspended and not resumed payment of his commercial paper for fourteen days, though the suspension was not fraudulent, has committed an act of bank ruptcy. — In re Wells, Ex parte Claflin (N.Y. N. D.), 6 I. R. R. 181; s.c. 7 Am. Law Reg. (N.s.) 163; 1 L. T. B. 20; In re W. C. Cowles (Minn. D.), 1 B. R. 42; s.c. 1 West. Jur. 367.
4. One who saws and sells lumber is a trader within the meaning of § 39. In re W. C. Cowles (Minn. D.), 1 B. R. 42; s.c. 1 West. Jur. 367.
COMMISSIONER, — See PROOF, I. 1, 2.
CONCEALMENT OF Assets. 1. Concealment of assets, as a ground for withholding a discharge, must have been wilful. [Citing Atkins v. Spear, 8 Met. 490; Robinson v. Wadsworth, 8 Met, 67 ; Coates v. Blush, 1 Cush. 564; Rugely v. Robinson, 19 Ala. 404;
Loud v. Pierce, 25 Me. 233.] — In re J. W. Sidle (Ohio S. D.), 2 B. R. 77; In re W. Wyatt (Ky. D.), 2 B. R. 94.
2. A bankrupt was the clerk of a firm of insurance brokers, in which his wife professed to be a partner, though she contributed neither capital nor labor. It appeared that the share of the profits paid to her was paid for the purpose of retaining the services of the bankrupt. The court was of opinion that the money so paid to the wife should have been returned in the inventory of the bankrupt's estate, and as it was not, but was fraudulently concealed by him, a discharge was refused. In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 145; s.c. 2 B. R. 89; 1 L. T. B. 114.
3. Property was conveyed in fraud of the creditors of the grantor with the knowledge of the grantee. The grantee filed his petition to be adjudged bankrupt, but did not place said property in his inventory. Held, that he had concealed his property, and that discharge should be refused. - In re O'Bannon (Mo. E. D. ?) 2 B. R. 6. See DISCHARGE, III. 1, 3; SPECIFICATIONS, 9.
CONFESSION OF JUDGMENT. To a creditor's petition alleging that A., knowing himself to be insolvent, had confessed certain judgments with intent to give a fraudulent preference, A. answered, admitting his insolvency and the confession of the judgments, but denying that they were confessed “with any fraudulent intent, or with the fraudulent intent to give a fraudulent preference.” Held, that the answer was insufficient, that the confession of a judgment with the mere intent of giving a preference, was an act of bankruptcy.- In re R. Sutherland (Oregon D.), 1 B. R. 140. See CREDITOR'S PETITION, 6.
CONTEMPLATION OF BANKRUPTCY AND INSOLVENCY. Where a bankrupt four days before filing his petition, knowing that he was insolvent, made an assignment of all his property for the benefit of his creditors, the presumption that he did it in contemplation of bankruptcy, was held not rebutted by his bare denial of such intent, and a discharge was refused. — In re J. Brodhead (N.Y. E. D.), 2 B. R. 93. See CREDITOR'S PETITION, 6, 7; INSOLVENCY, 2; PARTNERSHIP, 11.
Costs. - See FEES. COUNSEL.–See AssignEE, I. 7, 8; ATTORNEY, 1, 6; EXAMINATION, 19, 20; FEES, V. 1; FRAUDULENT PREFERENCE, 6, 7; PRIORITY, 1; WITNESS, 1.
CREDITOR'S PETITION. 1. A secured creditor may petition that his debtor be adjudged bankrupt. — In re Florida, Atlantic, & Gulf Central R.R. Co., Ex parte Rankin (Fla. N. D.), 1 B. R. 196 ; s.c. 1 L. T. B. 85.
2. A debt may be sufficient to support a creditor's petition, though it was not due at the date of the alleged act of bankruptcy. – Phelps v. Clasen (Minn. D. C. C.), 2 West. Jur. 221.
3. It is said that the oath to a creditor's petition cannot be administered by a register. [It would seem that this must be wrongly reported. Nothing can be
clearer than that the oath can be administered by a register. See $$ 4, 39, and Form 54.] — Anon. (N.Y. N. D.) 6 I. R. R. 189.
4. A creditor's petition praying that A. might be adjudged a bankrupt, averred that A. transferred his property (1) with intent to defeat and delay the operation of the Bankrupt Act, and (2) to give a preference to his creditors. Held, that it was sufficient to prove the second only of these averments. - In re J. T. Drummond (Ind. D.), 1 B. R. 10; 1 L. T. B. 7.
5. A creditor's petition praying that A. and B., copartners doing business under the name of A., may be adjudged bankrupts; and alleging, as an act of bankruptcy, a fraudulent preference by A., is defective, but may be amended before adjudication. — In re W. H. Waite (Mass. D.), 1 B. R. 84.
6. A creditor's petition alleged that the debtor confessed judgment, with intent to give a preference, being in contemplation of bankruptcy, but did not aver that the debtor was insolvent or in contemplation of insolvency. The evidence showed that the debtor was insolvent, but did not show that he was in contemplation of bankruptcy. Held, that the petition was not sustained. Leave was given to amend, by substituting the words “ while insolvent, or in contemplation of insolvency," in lieu of " in contemplation of bankruptcy;” and, on petition to the Circuit Court, the permission to amend was confirmed. — In re A. W. Craft (N.Y. S. D.), 1 B. R. 89; s.c. (N.Y. S. D. C.C.) 2 B. R. 44; Pitts. L. J. (N.S.) 1.
7. A creditor's petition alleged that the bankrupt committed certain acts, being “in contemplation of bankruptcy and insolvency.” There was no evidence that the bankrupt acted in contemplation of bankruptcy. Leave was given to amend by striking out the above words, and substituting " insolvent, or in contemplation of insolvency." — In re J. Haughton (N.Y. S. D.), 1 B. R. 121.
8. The court has power to allow amendments in proceedings in involuntary bankruptcy; but amendments to the petition will not be allowed which introduce new acts of bankruptcy founded upon facts not referred to in the original petition, and alleged to have been committed more than six months prior to the application for leave to amend, where no sufficient reason is given why they were not included in the original petition. [Citing Ex parte Thwaites, 13 Ves. 325; In re Blackburn, 1 De Gex, 332; Ex parte Cheesewright, 1 Rose, 228; In re Frisbee, 4 Law Rep. 483; Smith v. Babcock, 3 Sumn. 583; Thorn v. Germand, 4 Johns. Ch. 363; Western Reserve Bank v. Stryker, Clarke Ch. 380; Steel v. Sowerby, 6 T. R. 171; Cross v. Kaye, ib. 543; Swift v. Eckford, 6 Paige, 22; Lloyd v. Brewster, 4 Paige, 537; Maddock v. Hammet, 7 T. R. 55; The Harmony, 1 Gall. 123; Goddard v. Perkins, 9 N. H. 488; Caster v. Wood, Baldw. 289; Calloway v. Dobson, 1 Brock. 119; Mills v. Campbell, 2 Young. & C. Ex. 389, 398; Lovett v. Cowman, 6 Hill, 223, 227; The John Jay, 3 Blatch. 67; Shields v. Barrow, 17 How. 130; Snead v. M Coull, 12 How. 407; Williams v. Cooper, 1 Hill, 637; Weston v. Worden, 19 Wend. 648; Salters v. Bayard, 12 Wend. 228; Miller v. Watson, 6 Wend. 506; Tobias v. Harland, 1 Wend. 93; The Schooner Adeline, 9 Cranch, 244.] — In re F. C. Crowley, Ex parte Reed (N.Y. N. D.). 1 B. R. 137 ; s.c. sub nom. Reed v. Cowley, 1 L. T. B. 79.
See ACT OF BANKRUPTCY, 3; DISMISSAL OF PETITION, 2, 3; PLEADING; PROOF, I. 5.
DEPOSITION. After a creditor's petition praying that his debtor may be adjudged a bankrupt, is filed, the petitioning creditor may proceed to take depositions before any register in bankruptcy, though the petition has not been referred to a register, and though no order to show cause against the adjudication has been served on the debtor. — In re E. B. Deane, Ex parte Hawkins (Mo. E. D.), 2 B. R. 29; s.c. 3 Pitts. L. J. (N.s.) 583.
FEES, I. 28, 29; PROOF, II. 4-6, 10.
I. Application for Discharge. 1. A bankrupt may apply for a discharge within sixty days after adjudication, though debts have been proved, if no assets have come to the hands of the assignee. — In re B. W. Woolums (Ky. D.), 1 B. R. 131.
2. If, at the time of the application for a discharge, the assignee has not received any money on account of the estate, then no assets have come to his hands within the meaning of $ 29, though there are certain claims due the estate from which nothing has and nothing may be realized. — In re 0. W. Dodge (N.Y. S. D.), 1 B. R. 115; s.c. 7 Am. Law Reg. (N.s.) 438.
3. When there are no assets, and no debts have been proved, it is not necessary for the bankrupt, in applying for the order to show cause against the discharge to furnish the request by the assignee for a second meeting, Form 28. - In re C. H. McIntire (N.Y. S. D), 6 I. R. R. 165.
4. The court refused to act on an application by a bankrupt for his discharge, which was made more than a year after the date of adjudication in bankruptcy. - In re J. B. Willmott (N.Y. N. D.), 2 B. R. 76. See AssiGNEE, II. 5, 6; EXAMINATION, 1, 5; FEES, I. 7-10, 15.
II. Order and Meeting to show cause against Discharge. 1. The court may and will authorize the register to make the order to show cause in Form 51. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 86; s.c. 1 L. T. B. 22.
2. In an uncontested case, the register may issue the order to show cause against the discharge of the bankrupt. — In re H. Gettleston (Cal. D.), 1 B. R. 170.
3. The notice to appear and show cause against a discharge need be mailed to those creditors only who have proved their debts. — In re C. H. McIntire (N.Y. S. D.), 6 I. R. R. 165.
4. The notices to show cause against the bankrupt's discharge which are sent by mail, must be mailed by the clerk, and to the order to show cause must be put the name of the clerk and the seal of the court. – In re J. Bellamy (N.Y. S.D.), 6 I. R. R. 127; s.c. ib. 141.
5. Notice was ordered to be given to creditors to appear on Dec. 27, and show cause why a bankrupt should not receive his discharge. The clerk made his certificate, that true copies of the notice were duly mailed, on the 17th of December, to each creditor. Held, that the certificate was “sufficient" evidence of what it stated, though the copy of the notice served on a creditor is produced