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the debt. (Citing Richardson v. Thomas, 13 Gray, 381; Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, ib. 387; Bell v. Morrison, 1 Pet. 351.] – In re D. P. Kingsley (Mass. D.), 1 B. R. 66; s.c. 3 Pitts. L. J. (N.s.) 277; 7 Am. Law Reg. (N.s.) 423; In re H. P. Harden (Me. D.), 1 B. R. 97 ; s.c. 1 L. T. B. 48.
See EXAMINATION, 10. Locus STANDI. - See ASSIGNEE, III. 1, 2; FIRST MEETING, 2; Proof, III.;
1. The return of the marshal is prima facie evidence of the due giving of notice, and unless rebutted is sufficient authority for the register to proceed, and cause an assignee to be chosen. — In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
2. Semble, that the return of the messenger as to service of notice on the creditors is not conclusive. — In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
See EXECUTION, 6; FEES, III. ; NOTICE ; PERISHABLE PROPERTY; REGISTER, 2; RENT, 2.
MESNE PROCESS. — See STATE PROCESS.
MESSENGER. See MARSHAL. MEETINGS. — See FEES, I. 6; FIRST MEETING ; SECOND AND THIRD MEETINGS. MORTGAGE. — See FRAUDULENT PREFERENCE, 2-4; PROOF, I. 2; SALE OF
INCUMBERED PROPERTY, 3, 4; SECURED CREDITOR, 1; STAY OF PROCEED
1. The provision in § 11, as to service of notice by mail, or personally on creditors, applies as well to creditors residing without as to those residing within the United States. — In re J. Heys (N.Y. S. D.), 6 I. R. R. 52.
2. The schedule should state the abode and the post-office address of the creditor, and personal service of notice may be ordered at the former, or service by mail at the latter. — In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
3. Wm. D. Hill filed his petition in bankruptcy; the notice to a creditor gave the name as Wm. B. Hill. The creditor appeared at the first meeting, and objected that the notice was insufficient. Held, that the objection was not tenable by him. — In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
4. The warrant stated that the residence of a creditor was unknown, but stated where the creditor formerly resided. The notice served by the marshal merely stated that the residence was unknown. Held, that this was sufficient. In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
5. The messenger ought to copy into the notices to be served and published the exact language contained in the warrant, but an immaterial variance may be disregarded, and the omission in the notices of the former residence of the creditors, which was stated in the warrant, is immaterial. — In re J. Pulver (N. Y. S. D.), 6 I. R. R. 76.
6. Though a court has made a general order, directing in what newspapers within its district notices to creditors shall be published, yet the register has dis
cretion to order publication to be also made in newspapers outside of the district. In re J. H. Robinson (N.Y. S. D.), 6 I. R. R. 29.
7. The publication in the newspapers of the notice to creditors must be completed before the commencement of the ten days preceding the return day of the warrant, and if the first meeting is adjourned in consequence of the notices not having been published in due time, the notices of the adjourned meeting must be completed ten days before the adjourned day. – In re P. C. Devlin (N.Y. S. D.), 6 I. R. R. 61; s.c. 1 L. T. B. 32.
See AMENDMENT; AssignEE, I. 16; DISCHARGE, II. 3–10; IV. 6; DISMISSAL OF PETITION, 1; EXAMINATION, 7; FEES, III. 1, 2; MARSHAL; PastNERSHIP, 3; PROOF, II. 6.
PARTNERSHIP. 1. A., B., and C. were partners; A. resided in New York, B. and C. in Ohio. A. filed a petition in bankruptcy in the Southern District of New York; B. and C. applied for leave to file in the petition in the same district. Held, that the court in the said district had no jurisdiction to entertain their application, inasmuch as A. had petitioned as an individual debtor, and prayed for an individual discharge. – In re J. A. Boylan (N.Y. S. D.), 6 I. R. R. 28.
2. A. residing in the Southern, and B. in the Eastern, District of New York, petitioned to be adjudged bankrupts in the court for the Southern District; the petition alleged that they were partners, and had been in business in the Southern District at the times when the debts set forth in the schedule had been contracted. It appeared, by the schedules, that there were no individual debts or assets of either A. or B. Held, that the court had no jurisdiction to declare B. a bankrupt until he had filed his petition in the Eastern District. — In re F. T. Prankard (N.Y. S. D.), 1 B. R. 51.
3. A firm cannot be adjudged bankrupt on the petition of one of its members, until notice of the petition has been given to the other members. — In re H. Lewis (N.Y S. D.), 1 B. R. 19; In re F. T. Prankard (N.Y. S. D.), 1 B. R. 51.
4. If a firm has been dissolved, the partners cannot be adjudged bankrupt on the petition of one of them, though there are partnership debts, provided that there are no partnership assets. Semble, it would be otherwise, if there were both partnership debts and partnership assets. Citing Ex parte Hartz, 1 N.Y. Leg. Obs. 39; McDaniel v. King, 5 Cush. 469, 476.] — In re J. D. Crockett (N.Y. S. D.), 2 B. R. 75.
5. A debtor filed his individual petition with one schedule and one inventory, but the schedule showed that part of the debts were debts of a partnership, of which the petitioner was a member, and the inventory showed that part of the assets were credits due to said partnership. After the petitioner had been adjudged a bankrupt, he petitioned for leave to amend his petition, schedule, and inventory, so that his partner might be joined with him in the final orders of discharge. The leave was granted. — In re W. H. Little (N.Y. S. D.), 1 B. R. 74; 8.c. 3 Pitts. L. J. (N.8.) 268.
6. A. and B. were partners. A. petitioned that he himself and the firm might be adjudged bankrupts. B. subsequently petitioned that he and A. might be adjudged bankrupts, and prayed for an order to join in the proceedings begun by A. Held, that such order was unnecessary; that B.'s petition showed his assent to the proceedings begun by A., and that on A.'s petition would take place the proceedings in respect to the creditors of the firm, and of A. individually; and that on B.'s petition would take place the proceedings in regard to the creditors of B. individually. In re H. Lewis (N.Y. S. D.), 1 B. R. 19.
7. F., a member of a firm which had been dissolved, filed his petition in bankruptcy. Held, that partnership as well as separate creditors could prove their debts against F.'s estate. (Citing Donnelly v. Corbett, 3 Seld. 300; Kelley v. Drury, 9 Allen, 27; Baldwin v. Bank of Newbury, 1 Wallace, 234; Worthington v. Jerome (Ms N.Y. S. D. C. C.)]— In re Frear (N.Y. S. D.), 1 B. R. 201.
8. Semble, that a discharge of a bankrupt, granted on his individual petition, would release him from liability for the debts of a partnership of which he had been a member, but which had been dissolved before the commencement of the proceedings in bankruptcy. – In re Bidwell (N.Y. N. D.?), 2 B. R. 78.
9. A., a member of a partnership, which had been dissolved, filed his individual petition, inserting in the schedule debts contracted by the partnership. There were no partnership assets. Held, that A. was entitled to a discharge from the partnership debts, and that it was not necessary to make the other members of the firm partners. [Citing Hersey's Case, 3 P. Wms. 23; Tucker v. Orley, 5 Cranch, 34.] — In re IV. C. Abbe (N.J. 1).), 2 B. R. 26; s.c. 3 Pitts. L.J. (n.s) 589; 4 Pitts. L. J. (N. s.) 127; 7 Am. Law Reg. (N.s.) 824.
10. Debts due a partnership, but assigned to one of the partners, remain joint cstate, unless, before the bankruptcy, notice of the assignment has been given to the debtors. [Citing Ex parte Usborne 1 Gl. & J. 358.] — In re 0. Byrne (Pa. W. D.), 1 B. R. 122 ; s.c. 3 Pitts. L. J. (N.s.) 314; 7 Am. Law. Reg. (N. s.) 499.
11. A bona fide transfer for value of all the partnership estate to one partner converts it into separate estate, though both partners know that they are insolvent. But where the firm was dissolved, and such a transfer made to a partner in contemplation of his filing his separate petition, such transfer was held fraudulent and void as against joint creditors. [Citing Robb v. Mudge, 14 Gray, 534; Howe v. Lawrence, 9 Cush. 553; Ensign v. Briggs, 6 Gray, 329; Ex parte Peake, 1 Madd. 346.] — In re 0. Byrne (Pa. W. D.), 1 B. R. 122; s.c. 3 Pitts. L. J. (n.s.) 314; 7 Am. Law Reg. (N.s.) 499.
12. Joint creditors are entitled to share pari passu with separate creditors in the separate estate of a partner, unless it be affirmatively shown that there is either some joint estate, or a living solvent partner. — In re F. Jewett (Ill. N. D.), 1 B. R. 130; s.c. 3 Pitts. L. J. (x.s.) 354; 7 Am. Law Reg. (p.s.) 291.
13. Joint creditors cannot share pari passu with the separate creditors of a partner in the separate estate, though there be no solvent partner, provided that there is some joint estate, and even, semble, if there is no joint estate. [Citing In re Marwick, Daveis, 229; Ex parte Kennedy, 2 De G. M. & G. 228; Howe v. Lawrence, 9 Cush. 553; Somerset Potters' Works v. Minot, 10 Cush. 592.] — In re 0. Byrne (Pa. W. D.), 1 B. R. 122 ; s.c. 3 Pitts. L. J. (n.s.) 314; 7 Am. Law Reg. (x.s.) 499.
14. A note given by a partner for a firm debt can be proved against the separate estate of such partner. Whether a note signed by a firm and indorsed by a partner, can be proved against both the joint and separate estates, quære. [Citing In re Babcock, 3 Story, 393 ; In re Marwick, Daveis, 229; Collins v. Hood, 3 McLean, 186 ; In re Ingall, 5 Law Rep. 401 ; Agawam Bank v. Morris, 4 Cush. 99; Ex parte Brown, 1 Atk. 225; Ex parte Emly, 1 Rose, 61; In re Farnum, 6 Law Rep. 21; Borden v. Cuyler, 10 Cush. 476.] — Mead v. Nat. Bank of Fayetteville (N.Y. N. D. C. C.), 2 B. R. 65; s.c. 4 Pitts. L. J. (N.s.) 137; 7 Am. Law Reg. (n.s.) 818; 1 L. T. B. 108.
15. A partner is not entitled to a dividend from the estate of his bankrupt partner, on a debt due to him, until all the joint debts are paid. — In re F. Jewett (Ill. N. D.), 1 B. R. 131; s.c. 7 Am. Law Reg. (N.s.) 294.
See AssIGNEE I. 2-4; CREDITOR'S PETITION, 5; EXEMPTED PROPERTY, 2, 3; INVENTORY, 1; SCHEDULE, 5, 7.
PERISHABLE PROPERTY. 1. The court, before the appointment of the assignee, ordered goods sold by the marshal. The bankrupt bought them, through a third party, at a private sale by the marshal. The court enjoined the bankrupt from intermeddling with the goods, on the ground that the sale was void, the bankrupt, before the appointment of the assignee, standing in a fiduciary relation to the creditors. – March v. Heaton (Mass. D.), 2 B. R. 66.
2. In involuntary bankruptcy the court cannot order property sold as perishable till it is in the possession of the messenger. – In re H. F. Metzler (N.Y. S. D.), 6 I. R. R. 74. See AssIGNEE, II. 2.
PETITION. 1. A petition, schedule, and inventory, so badly written as to be illegible, were not allowed to be filed. — Anon. (N.Y. N. D.) 3 Pitts. L. J. (N.s.) 81.
2. The oath of allegiance annexed to the petition may be taken before the register. — In re A. J. Walker (Mass. D.), 1 B. R. 67.
See CREDITOR'S PETITION; DISMISSAL OF PETITION; INVENTORY; SCHED
PLEADING. 1. To an order to show cause why a creditor's petition should not be granted, a written answer must be filed. Form 61 is not such an answer. — In re Sutherland (Oregon D.), 1 B. R. 140.
2. On a creditor's petition, a rule issued to the defendant to show cause why he should not be adjudged a bankrupt. The defendant filed a paper denying the acts of bankruptcy charged, and demanding a trial by jury. Held, that this was a proper response to the rule, and that no other answer to the petition was necessary. Whether an answer to a creditor's petition is ever necessary, quære.Phelps v. Clasen (Minn. C. C.), 2 West. Jur. 221.
3. Form 61, filed by a debtor in answer to a creditor's petition, amounts to the general issue, and the creditor need file no replication.— In re M. L. Dunham, Ex parte Welch (N.Y. S. D.), 2 B. R. 9.
See CREDITOR'S PETITION, 4-7. PREFERENCE. See CONFESSION OF JUDGMENT; FRAUDULENT PREFERENCE.
PREFERRED CLAIM. - See PRIORITY.
PRESUMPTION. — See BURDEN OF PROOF; COMMERCIAL PAPER; CONTEMPLA
TION OF BANKRUPTCY AND INSOLVENCY. -FRAUDULENT PREFERENCE, 3.
1. The claim of the bankrupt's attorney for services and disbursements in the proceedings in bankruptcy is not entitled to priority in payment under $ 28. In re L. Heirschberg (N.Y. S. D.), 1 B. R. 195. .
2. Under a Pennsylvania statute, a landlord is entitled to receive out of the proceeds of goods of his tenant, taken in execution while on the demised premises, the amount of rent due, not exceeding the rent for a year. A tenant became bankrupt, and the landlord made a demand on the assignee, before the bankrupt's goods were removed from the premises, for the rent due, being for less than a Fear. Held, that he was entitled to priority of payment out of the proceeds of the goods. Whether he could have distrained, quære. — In re B. F. Appold (Pa. E. D.), 1 B. R. 178; s.c. 25 Leg. Int. 180; 7 Am. Law Reg. (N.8.) 624; 1 L. T. B. 83.
See SALE OF INCUMBERED PROPERTY, 4. PROCESS. -See Act oF BANKRUPTCY, 1; ATTACHMENT; EXECUTION, 6; FEES,
STATE PROCESS; SUFFERING PROPERTY TO BE TAKEN.
I. What debts can be proved. 1. A creditor may include in his proof of a debt due, interest to the time of the adjudication of bankruptcy.— In re F. Orne (N.Y.S. D.), 6 I. R. R. 84; s.c. 2 Pitts. L. J. (n.s.) 613.
2. A creditor by receiving a mortgage to secure his debt, knowing the mortgage to be in fraud of the Act, cannot, in proceedings in involuntary bankruptcy, surrender his security, and prove his debt. — In re T. Princeton (N.Y. S. D.), 1 B. R. 178; s.c. 1 L. T. B. 125.
3. A creditor who has received payment of a debt in fraud of the Bankrupt Act, is not thereby prevented from proving other debts. — In re N. S. Arnold (Cal. D.), 2 B. R. 61.
4. If a creditor obtains judgment against his debtor, after the latter has been adjudged a bankrupt, he cannot prove against the bankrupt's estate, either on the original debt, for that is merged in the judgment, nor on the judgment, for the debt due on that arose only after adjudication. In like manner, the officer's fees incurred before the rendition of the judgment, are merged in the judgment, and cannot be recovered from the bankrupt's estate. [Citing Holbrook v. Foxes, 27 Me. 441; Pike v. McDonald, 32 Me. 418; Sampson v. Clark, 2 Cush. 173; Kellogg v. Schuyler, 2 Denio, 73; Faxon v. Baxter, 11 Cush. 35; Carrington v. Holabird, 17 Conn. 530.] — In re D. B. Williams (Conn. D.), 2 B. R. 79; s.c. 1 L. T. B. 107, 113; 3 Am. Law Rev. 374.
5. A national bank, which has discounted a note at a usurious rate of interest, is yet a creditor who has a debt provable in bankruptcy under $ 39. [Citing U.S. v. Babbit, 1 Black, 55; Harris v. Runnells, 12 How. 79; Bank of U.S v. Oroens, 2 Pet. 527; Farmers' Bank v. Burchard, 33 Vt. 346; Bank of Manchester v. Nolan, 7 How. (Miss.) 508; Fleckner v. Bank of U.S., 8 Wheat. 338.]