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mortgage given him by the maker of the note to secure its payment. [Citing Lanckton v. Wolcott, 6 Met. 306; Amory v. Francis, 16 Mass. 308; Richardson v. Wyman, 4 Gray, 553; Agawam Bank v. Morris, 4 Gush. 99; Richardson v. City Bank, 11 Gray, 261; Ex parte Bennet, 2 Atk. 527; Parr's Case, 18 Ves. 65; Ex parte Goodman, 3 Madd. 373; In re Plummer, 1 Phil. 56; Peacock's Case, 2 Gl. & J. 27; Ex parle Adams, 3 Mont. & Ayr. 157; Ex parte Hedderly, 2 M. D. & De G. 487 ; In re Babcock, 3 Story, 393.] – In re N. 0. Cram (Me. D.), 1 B. R. 132; s.c. 1 L. T. B. 65.
2. A creditor who holds property pledged to him by the bankrupt and his partner, to secure a debt due from the bankrupt, may prove for the excess of his claim over the value of the security, without abandoning the latter, and may vote for the assignee in respect to such excess; but he must set forth the value of his security. — In re II. C. Bolton (N.Y. S. D.), 1 B. R. 83.
3. A secured creditor, who proves his debt without disclosing his security, forfeits his security. [Citing Haxton v. Corse, 2 Barb. Ch. 506, 531; s.c. 4 Edw. Ch. 585; Grugeon v. Gerrard, 4 You. & C. 119; Ex parte Solomon, 1 Gl. & J. 25; Ex parte Spottiswood, 1 Fonbl. Bankruptcy Reps. (x.s.) 20; Ex parte Hornby, Buck, 351; Ex parte Downes, 1 Rose, 96; Ex parte Eggington, Mont. 72.]— Stewart v. Isidor (N.Y. Common Pleas), 1 B. R. 129.
4. A secured creditor must prove his claim according to Form 21. — In re 8. D. Bridgman (Ga. D.), 1 B. R. 59 ; s.c. 1 L. T. B. 48.
See AssIGNEE, I. 1; CREDITOR'S PETITION, 1; DISCHARGE, III. 3; EXECUTION; JUDGMENT; LIEN; Proor, I. 2; SALE or INCUMBERED PROPERTY ; STAY OF PROCEEDINGS, 3.
SERVICE. - See NOTICE, 1-3.
SET-OFF. – See AssignEE, I. 5.
SPECIFICATIONS. 1. A creditor who has proved his debt may file his specification of the grounds of his opposition to the discharge of the bankrupt at any time before the time fixed by G. 0. 24. — In re A. Baum (N.Y. S. D.), 6 I. R. R. 28.
2. When, on the return day of the order to show cause why a discharge should not be granted, a creditor appears to show cause, and the proceedings are adjourned to a later day, the creditor can file specifications of the grounds of opposition within ten days after the adjourned day. — In re D. Tallman,, 1 B. R. 145.
3. Specifications of grounds of opposition to a bankrupt's discharge may be amended by leave of court. — In re W. D. Hill (N.Y. S. D.), 1 B. R. 42; In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 50; s.c. 3 Pitts. L. J. (N.s.) 233; 25 Leg. Int. 60.
4. The allegations in specifications of grounds of opposition to a bankrupt's discharge must be allegations of fact, distinct, precise, and specific, and not merely in the language of $ 29, or so general as really not to advise the bankrupt what facts he must be prepared to meet. [Citing Brereton v. Hull, 1 Denio, 75; Chadwick v. Starrett, 27 Me. 138.] - In re R. C. Rathbone (N.Y. S. D.),
1 B. R. 50; s.c. 3 Pitts. L. J. (N.s.) 233; 25 Leg. Int. 60; 1 B. R. 65; 1 L. T. B. 44; In re A. Beardsley (N.Y. S. D.), 1 B. R. 52; s.c. 1 L. T. B. 46; In te N. A. Son (N.Y. S. D.), 1 B. R. 58; s.c. 3 Pitts. L. J. (N.s.) 242; In re G. 3. Manson (N.Y. S. D. ), 1 B. R. 115; In re D. Tyrrel (N.Y. S. D.), 2 B. R. 73; In re H. J. Hansen (N.Y. S. D.), 2 B. R. 75; In re F. A. Dreyer (N.Y. S. D.), 2 B. R. 76; see Welch v. Lawson (Md. D.), 1 Balt. Trans. 67.
5. A specification of grounds of opposition to a bankrupt's discharge, which alleges that the bankrupt has fraudulently conducted his business, by being ostensibly a clerk but really a partner in a business, but which does not state what the business is, or who the partners are, is insufficient. — In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 50; s.c. 3 Pitts. L. J. (N.s.) 233; 25 Leg. Int. 60.
6. A specification of the grounds of opposition to a bankrupt's discharge, which alleged that the original indebtedness of the bankrupt to the creditor was created through the false and fraudulent representations of the bankrupt, is insufficient, as not setting forth the nature and circumstances of the fraud. Semble, that if properly alleged, yet it would not be ground for refusing the discharge, as a debt created by fraud is not affected by the discharge. — In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 65; s.c. 1 L. T. B. 44.
7. A specification of the grounds of opposition to a bankrupt's discharge, which sets forth that the bankrupt has placed his property in his wife's hands, is too vague, unless it means that he has placed all his property in her hands; otherwise it should state what property.
So a specification, setting forth that the bankrupt has withheld books, papers, and documents, should state what books, &c., unless it means that he has withheld all his books, &c.
So a specification, setting forth fraud against the Bankrupt Act, should specify the particular fraud. — In re W. D. Hill (N.Y. S. D.), 1 B. R. 42.
8. A specification, in opposition to the discharge of a bankrupt, alleged that the bankrupt had, since the passage of the Bankrupt Act, being insolvent, paid servants' wages to the amount of $1,400. It appeared that he had only paid $400. Held, that it was not open to the objecting creditor to allege, under this specification, that $400 was too large a sum. - In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
9. A specification of grounds of opposition to a bankrupt's discharge, which alleges that the bankrupt has omitted certain property and debts from his schedule, is insufficient, unless it alleges that the omissions were wilful, fraudulent, or negligent. It is not sufficient to allege that the schedule was “false” or “untrue.". In re A. Beardsley (N.Y. S. D.), 1 B. R. 51; s.c. 1 L. T. B. 46; In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 65; s.c. 1 L. T. B. 44; In re W.C. McVey (Miss. D.), 2 B. R. 85.
10. A specification of the grounds of opposition to a bankrupt's discharge, which alleges that he swore falsely on his examination, but does not allege that such false swearing was wilful, nor that it was in relation to a material fact, is insufficient. — In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 65; s.c. 1 L. T. B. 44.
11. A specification of the grounds of opposition to a discharge alleged that the bankrupt had influenced the action of certain creditors (named) since the filing of his petition by a pecuniary consideration and obligation. Held, with doubt, to be
sufficiently definite. Held, subsequently, that the charge was not proved. — In re G. S. Mawson (N.Y. S. D.), 1 B. R. 115; s.c. (N.Y. S. D.), 1 B. R. 153.
12. A specification of the grounds of opposition to a discharge, that the bankrupt has procured the assent of a creditor to his discharge, without alleging that he has procured it by a pecuniary consideration or obligation, is insufficient. — In re G. S. Mawson (N.Y. S. D:), 1 B. R. 115. See DISCHARGE, III. 8–10, 13; IV. 5; EXAMINATION, 13.
STAMP. The Internal Revenue Office holds that,
(1) A register's deed to the assignee should be stamped as a general agreement; and if it contains powers, these should have their appropriate stamps.
(2) The assignee's bond should have a dollar stamp. (3) A letter of attorney to represent creditors should have a fifty-cent stamp.
(4) A deed of the assignee to purchasers should be stamped like other deeds. - 6 I. R. R. 68. See FRAUDULENT TRANSFER, 2.
STATE COURTS. The district courts have no authority, under the Bankrupt Act, to issue injunctions to State courts or their officers. [Citing Peck v. Jenness, 7 How. 612.] - In re H. Campbell (Pa. W. D.), 6 I. R. R. 174; s.c. Leg. Int. 356 ; 7 Am. Law Reg. (N.s.) 100; 1 L. T. B. 30; In re W. Burns (Pa. W. D.), 6 I. R. R. 182 ; s.c. 24 Leg. Int. 357; 7 Am. Law Reg. (N.s.) 105; 1 L. T. B. 47.
See ACT OF BANKRUPTCY, 3; AssiGnEE, III. 8; LIEN, 2; STATE INSOLVENT LAWS; STATE PROCESS; STAY OF PROCEEDINGS.
STATE EXEMPTION Laws. - See EXEMPTED PROPERTY, 6–11.
STATE INSOLVENT Laws. The Bankrupt Act, after June 1, 1867, ipso facto suspends all action on future cases arising under a State insolvent law, where that law acts on the same subject matter, and on the same persons as the Bankrupt Act. [Citing Golden v. Prince, 4 Wash. C. C. 313; Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213; Ex parte Eames, 2 Story, 322; Griswold v. Pratt, 9 Met. 16; Ziegenfuss' Case, 2 Ired. 463.] — Commonwealth v. O‘Hura (Pa. State District Court), 6 I. R. R. 125; s.c. 2 Pitts. L.J. (n.s.) 553; 24 Leg. Int. 284; 6 Am. Law Reg. (N.s.) 765. See ACT OF BANKRUPTCY, 3; BANKRUPT ACT, WHEN IT TAKES EFFECT, 2, 3.
STATE OFFICERS. — See SHERIFF ; STATE PROCESS. STATE PROCESS. — See Act OF BANKRUPTCY, 1; ARREST; ATTACHMENT; ExECUTION, 1-5; EXEMPTED PROPERTY, 12; JUDGMENT; State Courts.
STATUTE OF LIMITATIONS. See LIMITATIONS, STATUTE OF.
STAY OF PROCEEDINGS. 1 The court will stay proceedings in a State court to recover a debt which is provable in bankruptcy, whether the debt is one which would be discharged by a discharge in bankruptcy or not. — In re M. Rosenberg (N.Y. S. D.), 2 B. R. 81. 2. The 21st section of the Act forbidding legal proceedings by a creditor who has proved his debt, applies only to those debts which would be, or have been, released by a discharge. Quære, whether G. O. 27 extends the rule so as to include all debts. — In re J. W. Seymour (N.Y. S. D.), 6 I. R. R. 60.
3. A railroad company having petitioned to be adjudged bankrupt, proceedings in behalf of mortgagees for foreclosure and sale of the road were enjoined; an order was made for the receiver appointed by the State court to deliver up the property of the road to the assignee, and for a sale of the franchise and property of the road. — In re Ala. & Fla. R.R. Co. (Fla. D.), 1 B. R. 100.
4. In an action against A., in a State court, the plaintiff had judgment, and A. appealed to the Court of Appeals, giving a bond, with sureties, to prosecute the appeal. A. afterwards filed his petition in bankruptcy. Subsequent to this, but before A. had obtained his discharge, the plaintiff in the action gave notice of a motion to compel A. to furnish new security, one of A.'s sureties having become insolvent, or to abandon his appeal. The district court enjoined the plaintiff from proceeding with his motion. - In re B. F. Metcalf (N.Y. E. D.), 6 I. R. R. 223 ; s.c. 1 L. T. B. 46.
5. M. paid for a house, but the title was made to his wife. The law of New York does away with implied trusts, but provides that such a conveyance shall be presumed fraudulent as against the creditors at the time of the person paying the consideration, and that a trust shall result in favor of such creditors to the extent necessary to satisfy their just demands. B., the creditor of M., brought a complaint in a State court against M. and his wife. M. was subsequently adjudged a bankrupt on his own petition, and B. proved his debt in bankruptcy. The court ordered proceedings in the State court stayed both against A. and his wise, on the ground that the rights of creditors to enforce the trust had passed to the assignee. — In re L. Meyers (N.Y. S. D.), 1 B. R. 162.
6. After an adjudication in involuntary bankruptcy, the court ordered a stay of proceedings commenced in a State court by A. against the bankrupt. On a motion by A. to vacate the order of stay: held, it was not open to him to question the validity of the debt of the petitioning creditor. — In re J. W. Fallon (N.Y. S. D.), 2 B. R. 92.
7. Whether a court can order stay of proceedings in a State court outside of the District, quære. — In re F. A. Hirsch (N.Y. E. D.), 2 B. R. 1.
8. When proceedings in bankruptcy are pending in the court of one district, the court of another district has no jurisdiction to grant an injunction staying a suit in the courts of that State in which the latter district is situated. - In re H. A. Richardson (N.Y. S. D.), 2 B. R. 74.
9. Creditors who have been enjoined from proceeding in a State court to enforce their claim, are not guilty of contempt, though they proceed in the State court, if such proceeding does not tend to enforce their claim. — In re F. A. Hirsch (N.Y. E. D.), 2 B. R. 1:
10. An injunction should not be issued to restrain proceedings in a State court against the bankrupt for contempt committed before the filing of the petition. In re M. W. Hill (N.Y. N. D.), 2 B. R. 53.
See ARREST, 8; AssigneE, III. 1, 2; EXECUTION, 5; INJUNCTION; JUDGMENT; LIEN, 2; STATE COURTS.
SUFFERING PROPERTY TO BE TAKEN. 1. A. fraudulently suffered judgment to be obtained against him for the purpose of protecting his property. This was before the passage of the Bankrupt Act, but his property was taken on execution after the passage of said act. Held, that A. had committed an act of bankruptcy. - In re J. Shick (N.Y. S. D.), 6 I. R. R. 183; s.c. 1 L. T. B. 28.
2. If an insolvent debtor suffers his property to be taken on legal process, so that the natural and probable result will be to give a creditor a preference, he will be presumed to have intended to give a preference; and if he could have prevented the taking by filing his voluntary petition in bankruptcy, and has not done so, he must be held to have "suffered” the property to be taken within the meaning of § 39; and such a suffering is a transfer not in the ordinary course of business, and therefore prima facie fraudulent by $ 35. [Citing Buckingham v. McLean, 13 How. 150; Gibson v. King, 1 C. & Marsh. 458; Gore v. Lloyd, 12 M. & W. 463; Denny v. Dana, 2 Cush. 160; Beals v. Clark, 13 Gray, 18; Ogden v. Jackson, 1 Johns. 370; Locke v. Winning, 3 Mass. 325; Phanix v. Assignees of Ingraham, 5 Johns. 412.]— In re J. Black (N.Y. S. D.), 1 B. R. 81; s.c. 1 L. T. B. 39 ; In re A. W. Craft (N.Y. S. D.), 1 B. R. 89. SUITS BY AND AGAINST BANKRUPT.-See AssigNEE, III. 1, 2; ASSIGNMENT, 2.
Form 45 when served is a summons, and therefore, under G. O. 2, blanks of that Form may be furnished to registers. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 86; s.c. 1 L. T. B. 22.
SUSPENSION OF PROCEEDINGS.— See DISMISSAL OF PETITION.
Tixes. Directions to internal revenue collectors how to collect taxes due from bankrupts are given by the office of Internal Revenue in 6 I. R. R. 154; 3 Pitts. L. J. (N.S.) 97.
TRIAL BY JURY. 1. When, on a creditor's petition, a trial by jury is had to ascertain the fact of the alleged bankruptcy, it seems that the jury may find the existence of the bankruptcy, though the petitioning creditor fail to prove his debt before them. — Phelps v. Clasen (Minn. C. C.), 2 West. Jur. 221.
2. On the trial by jury under $ 41, the burden of proof is on the creditor to show that the facts set forth in his petition are true. — In re Hoppock, Ex parte Brock (N.Y. S. D.), 2 B. R. 2. See DISCHARGE, III. 7.
TRUSTEE. -See ATTACHMENT, 2; EXECUTION, 4.
UNLIQUIDATED CLAIMS. — See AssIGNEE, I. 5; Proof, II. 4. WARRANT. — See AMENDMENT; DISCHARGE, IV. 6; FEES, I. 3, 4; NOTICE, 4, 5. WIFE.— See CoXCEALMENT OF Assets, 2; EXAMINATION, 1, 5, 26, 27, 29, 30;
EXEMPTED PROPERTY, 5; INVENTORY, 2; SPECIFICATIONS, 7; STAY OF PROCEEDINGS, 5.