It is intended to continue this Digest, annually, in the January number of each volume of the Review.

1. If a debtor conceals himself to avoid the service of an order made for his examination on proceedings supplemental to execution issued in a civil suit, he commits an act of bankruptcy. Such an order is "process" within the meaning of § 39. — In re Hoppock, Ex parte Brock (N.Y. S. D.), 2 B. R. 2.

2. A general assignment for the equal benefit of all creditors made bona fide before June 1, 1867, is not an act of bankruptcy. 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. 3. A debtor made an assignment under a State Insolvent Law, May 25, 1867, for the benefit of all his creditors, for the purpose of preventing P., one of his creditors, from obtaining a preference. The assignment was registered in a State court; P. applied to the State court to have the security of the trustees under the assignment increased, but afterwards filed a petition that A. might be adjudged bankrupt, alleging the assignment as an act of bankruptcy.

Held, 1. That the assignment was an act of bankruptcy, because made to delay, defraud, or hinder creditors, and because made to defeat or delay the operation of the Bankrupt Act; and semble, such assignment would be an act of bankruptcy, with whatever intent made. [Citing McLean v. Meline, 3 McLean, 199; McLean v. Johnson, ib. 202; Shawhan v. Wherritt, 7 How. 627.]

2. That P. was not estopped by his application to the State court from appearing as petitioning creditor.

3. That the Bankrupt Act was so far in operation after the date of its passage, but before June 1, 1867, that the State court had no jurisdiction in the matter of the assignment. - In re W. H. Langley, Ex parte Perry, 1 B. R. 155;

s.c. 1 L. T. B. 34; sub nom. Perry v. Langley, 7 Am. Law Reg. (N.s.) 429.
See COMMERCIAL PAPER; CONFESSION OF JUDGMENT; CREDITOR'S PETI-
TION, 4-8; FRAUDULENT PREFERENCE, 1, 2; FRAUDULENT TRANSFER, 2; In-
SOLVENCY, 2;
SUFFERING PROPERTY TO BE TAKEN.

ADJOURNMENT.

- See DISCHARGE, II. 10-12; EXAMINATION, 7; FEES, IV.; FIRST MEETING, 1; NOTICE, 7; SPECIFICATIONS, 2.

ADJUDICATION. - See CIRCUIT COURT, 1; DISMISSAL OF PETITION, 1, 3.

AFTER ACQUIRED PROPERTY.

1. Property acquired by a bankrupt, after filing his petition, does not pass to the assignee. In re J. Barnett (Pa. W. D.), 4 Pitts. L. J. (N.s.) 73.

2. Property acquired by a bankrupt after he has filed his petition, but before the order of adjudication, does not pass to the assignee, though the schedules to the petition are unsatisfactory and have been ordered to be amended, and he cannot properly be examined concerning such property. In Form 18 “is possessed" is probably a mistake for "was possessed."— In re C. G. Patterson (N.Y. S. D.), 6 I. R. R. 157; In re S. M. Levy, ib. 163.

See EXAMINATION, 21, 22.

DIGEST OF CASES IN BANKRUPTCY.

491

AMENDMENT.

1. Where the schedule has been amended by adding the names of omitted creditors, the register should issue a new warrant, briefly reciting the proceedings, and ordering service on the creditors whose names have been introduced, by the amendment of notice of a meeting, to prove their debts and choose an assignee, substantially as in the original warrant. These notices should include the names, residences, and amounts of debts of all the creditors, and should be served in the same manner and the same length of time before the meeting, as would have been proper on the original warrant. The newspaper notices need not be repeated, nor need notice be served on creditors on whom prior notices were served, unless they have appeared at meetings held under prior notices, or have proved their debts. At the meeting under these notices, the creditors may choose a new assignee, and apply to the court to put him in the place of an assignee before appointed; but if said before appointed. assignee was elected by the creditors, notice of the application to remove him should be given to all creditors who have proved their debts. In re J. S. Perry (N.Y. N. D.), 1 B. R. 2; s.c. 1 L. T. B. 4.

2. When the schedule was amended by adding the names of omitted creditors, the court ordered a new warrant to issue containing the names of all the creditors, both those who were on the schedule before, and those who were added by the amendment, to be served on them all, notifying them to meet on a certain day to prove debts, &c. The proof of debts already made to remain, as well as the appointment of the assignee, unless the creditors should choose another at the meeting. In re R. Ratcliffe (Pa. E. D.), 1 B. R. 98, s.c. 25 Leg. Int. 92; 1 L. T. B. 47.

3. When omitted creditors are added by amendment in the schedule, and also omitted property in the inventory, a new list of creditors must be made out and sent to every known creditor, with notice of the amendment of the inventory. Whether a new notice is necessary depends on the question whether a new general notice by publication can be required. In re J. Morgenthal (Pa. E. D.), 1 B. R. 98; s.c. 25 Leg. Int. 92.

See AFTER ACQUIRED PROPERTY, 2; CREDITOR'S PETITION, 6-8; INVENTORY, 4; PARTNERSHIP, 5; PROOF, II. 10; SCHEDULE, 8-10; SPECIFICATIONS, 3.

1. G. O. 27, authorizing the District Court to issue a habeas corpus in favor of a petitioner, who during the proceedings in bankruptcy has been arrested in civil process, applies only to the District Court in which the proceedings in bankruptcy are pending. In re J. W. Seymour (N.Y. S. D.), 6 I. R. R. 60.

2. If a bankrupt is taken in execution on a judgment for a debt created by fraud, he is not entitled to be released from arrest. In re J. R. Pettis (N.Y. N. D.), 2 B. R. 17; s.c. 7 Am. Law Reg. (N.s.) 695.

3. A judgment against the bankrupt in a suit for failing to account as factor for goods intrusted to him, is a debt created by his defalcation while acting in a fiduciary capacity, and is therefore not discharged under the Bankrupt Act, and

the bankrupt is liable to arrest on the judgment. — [Chapman v. Forsyth, 2 How. 202, distinguished;] In re J. W. Seymour (N.Y. S. D.), 6 I. R. R. 60.

4. Where the affidavit on which a State court has founded an order of arrest in a civil action against the bankrupt, sets forth a claim against the bankrupt from which he would not be released by his discharge in bankruptcy, the District Court will not relieve him from arrest. In re J. H. Kimball (N.Y. S. D.), 2 B. R. 74.

5. A bankrupt before his discharge was arrested on mesne process issued from a State court in a civil action. The complaint in the action was simply for goods sold and delivered to him, but the affidavit on which the arrest was made alleged that the purchase of the goods was fraudulent. Semble, that he was not entitled to be discharged from arrest. — In re G. W. Kimball (N.Y. S. D), 6 I. R. R. 215; 1 L. T. B. 2.

6. A bankrupt was arrested on a writ issued from a State court; the writ contained a declaration in tort in the nature of deceit, alleging certain fraudu lent representations whereby the bankrupt procured goods and choses in action to be assigned to him, in exchange for a worthless note. On a petition by the bankrupt to be discharged on habeas corpus, held, (1) that the declaration alleged a debt which would not be affected by the bankrupt's discharge; (2) that evidence was not admissible to contradict the allegations of the declaration; and the court refused to discharge him from arrest. — In re J. B. Devoe (Mass. D.), 2 B. R. 11; s.c. 7 Am. Law Reg. (N.s.) 690.

7. The District Court has jurisdiction to inquire whether an action in which a bankrupt has been arrested during the pendency of proceedings in bankruptcy, 's founded on a debt or claim from which his discharge would release him, and to discharge him from arrest, or not, accordingly.-In re L. Glaser (N.Y. S. D.), 1 B. R. 73; s.c. 3 Pitts. L. J. (N.s.) 265; 1 L. T. B. 57.

8. The District Court ordered proceedings in an action against a bankrupt in a State court to be stayed till the determination of the District Court on the question of discharge, and also ordered the bankrupt to be discharged from arrest made under an order in that action. A referee was directed to take and certify evidence as to whether the action was for a claim which would not be released by a discharge. — In re H. Jacoby (N.Y. S. D.), 6 I. R. R. 149.

9. Semble, that the provision in G. O. 27, authorizing the discharge from arrest of a bankrupt when the claim on which he has been arrested is provable in bankruptcy, is not authorized by the Bankrupt Act, unless the claim be also one from which the discharge in bankruptcy would release the debtor.- In re L. Glaser (N.Y. S. D.), 1 B. R. 73; s.c. 3 Pitts. L. J. (N.s.) 265; 1 L. T. B. 57.

10. A bankrupt imprisoned on mesne process from a State court, before the commencement of proceedings in bankruptcy, cannot be discharged on habeas corpus. In re W. A. Walker (Mass. D.), 1 B. R. 60.

11. A. being arrested on a writ gave bail, and afterwards, judgment having been given against him, he surrendered himself. While imprisoned, he filed his petition and was adjudged a bankrupt. After adjudication, an alias execution was duly issued against him and lodged with the sheriff, in accordance with a rule of the court from which the writ issued, which required that a defendant who surrenders himself in discharge of his bail after judgment must be charged

493

DIGEST OF CASES IN BANKRUPTCY.

in execution within three months. Held, that the issuing of the alias execution was not a new arrest, but only a continuation of the old arrest, and as that existed before the commencement of the bankruptcy proceedings, A. was not entitled to be discharged. [Citing Darby v. Baughan, 5 T. R. 209; Ex parte Goldie, 1 Mer. 106; Ex parte Gibbons, 1 Atk. 239; Payne v. Spencer, 6 M. & S. 231; Crump v. Taylor, 1 Price, 74; Ex parte Leigh, 1 Gl. & J. 264.]—In re H. L. Hazleton (Mass. D.), 2 B. R. 12; s.c. 1 L. T. B. 105; 3 Am. Law Rev. 169.

12. The court on habeas corpus released from arrest a discharged bankrupt who had remained imprisoned under State process during the whole of the bankruptcy proceedings. In re M. Simpson (Ill. N. D.), 2 B. R. 17.

13. A bankrupt, while going to the register's office, in obedience to an order to appear there for examination, was arrested under process from a State court issued in a civil action. Held, that it was a breach of privilege as witness and party, and that he must be discharged. [Citing Hurst's Case, 4 Dall. 387;

Ex parte Hurst, 1 Wash. C. C. 186; Lyell v. Goodwin, 4 McLean, 29.] - In re G. W. Kimball (N.Y. S. D.), 6 I. R. R. 215; s.c. 1 L. T. B. 2.

ASSETS.-See AFTER ACQUIRED PROPERTY; ASSIGNEE, II. 5, 6; ASSIGNMENT; CONCEALMENT OF ASSETS; DISCHARGE, I. 1-3; INVENTORY, 1, 2.

ASSIGNEE.

I. Choice, Appointment, and Removal.

1. A secured creditor cannot vote for assignee. - In re Davis (Ohio, N. D.),

6 I. R. R. 149; s.c. 7 Am. Law Reg. (N.s.) 30.

2. The separate creditor of one of the members of a firm which has been adjudged bankrupt, cannot vote for the assignee. - In re Phelps (Ky. D.), 1 B. R. 139.

3. A. filed his individual petition. Held, that creditors of a firm of which A. was a member, could not vote for assignee. In re J. J. Purvis (Md. D.),

6 I. R. R. 173; s.c. 1 L. T. B. 19.

4. Neither one of several joint creditors or joint trustees can vote without the authority of the others, even for his proportional share of the debt; but one partner can vote the full amount of the debt. In re J. J. Purvis (Md. D.),

6 I. R. R. 173; s.c. 1 L. T. B. 19.

5. An unliquidated claim in set-off cannot be regarded in the proceedings for choice of an assignee. In re F. Orne (N.Y. S. D.), 6 I. R. R. 84; s.c. 2 Pitts.

L. J. (N.S.) 613.

6. For the election of an assignee, he must receive the votes of a majority of the creditors who have proved their debts, not merely a majority of the votes cast. In re J. J. Purvis (Md. D.), 6 I. R. R. 173; s.c. 1 L. T. B. 19.

7. An attorney for the creditors is eligible as assignee.

(Md. D.), 2 B. R. 44.

- In re J. H. Lawson

8. It is not a sufficient objection to the appointment of an assignee, who is otherwise a proper person, that he has been of counsel for the bankrupt.

In re

J. Clairmont (Mass. D.), 1 B. R. 42; s.c. 3 Pitts. L. J. (N.s.) 229; 1 L. T. B. 6.

9. To the appointment of an assignee chosen by a majority in number and

VOL. III.

32

value of the creditors, the minority objected, on the ground that he was not a resident of the district. The court refused its approval, regarding the objection of non-residence as insuperable. Anon. (Pa. E. D.) 1 B. R. 29. — In re J.

W. Havens (N.J. D.), 1 B. R. 126.

10. A. was chosen assignee. Some creditors objected to the appointment; (1) because A. was the bankrupt's uncle; (2) because he was the director of a bank to which the bankrupt had, just before filing his petition, confessed a judgment under which all his property had been sold. Both objections were held good, and a new election was ordered. In re A. F. Powell (N.J. D.),

2 B. R. 17.

11. The court declined to withhold its approval from the appointment of an assignee who had been chosen by the only creditor who had proved his claim, there being no question of the competency or character of the assignee chosen. In re J. G. Grant (S.C. D.), 2 B. R. 35.

12. A register having attempted to influence the choice of an assignee, the case was transferred to another register. Semble, that the choice of an assignee need not be approved by the register. In re J. O. Smith (N.Y. S. D.), 1 B. R. 25.

13. When the register is satisfied that any reasons exist why an assignee, elected or appointed, should not be approved by the judge, it is his duty to state such reasons fully. In re A. A. Bliss (N.Y. S. D.), 6 I. R. R. 116.

14. Though no creditors have proved their debts, and there are no assets, yet an assignee should be appointed. Anon. (D.C.) 6 I. R. R. 149.

15. If no creditor attends at the place and time fixed for the first meeting, the judge, or, if there is no opposing interest, the register, is to appoint the assignee. In re M. C. Cogswell (N.Y. S. D.), 6 I. R. R. 85; s.c. 2 Pitts. L. J. (N.S.) 616. 16. The provision of § 14, that the assignee shall give notice of his appointby publication at least once a week for three successive weeks," requires that the interval between two successive publications shall not be less than a week. - In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 86; s.c. 1 L. T. B. 22.

ment "

17. An opposed motion to remove an assignee appointed by the court, can be entertained by the court only, and not by the register. In re E. S. Stokes

(N.Y. S. D.), 1 B. R. 130.

See AMENDMENT, 1, 2; ATTORNEY; FEES, I. 1, 2; FIRST MEETING, 1; SECURED CREDITOR, 2.

II. Powers, Rights, and Duties.

1. An assignee needs no order to sell the unincumbered estate in his hands. - In re G. E. White (N.Y. S. D.), 1 B. R. 1.

2. Application, by an assignee, for leave to sell property as perishable, or because the title is in dispute, or for leave to settle a controversy, must be made to the court, and not to the register. — In re J. Graves (N.Y. S. D.), 1 B. R. 19. 3. In a case where the proceeds of a large part of the bankrupt's personal property were in the hands of the sheriff, the time allowed to the assignee for making return of the property set off by him to the bankrupt, was extended to twenty days after the property should come into his hands. — In re D. Shields (Pa. W. D.), 1 B. R. 170; s.c. 3 Pitts. L. J. (N.s.) 391.