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PRESUMPTION. — See BURDEN OF PROOF; COMMERCIAL PAPER; CONTEMPLATION OF BANKRUPTCY AND INSOLVENCY. - FRAUDULENT PREFERENCE, 3.
PRIORITY. 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 year. 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.s.) 624; 1 L. T. B. 83.
See SALE OF INCUMBERED PROPERTY, 4. PROCESS. — See ACT OF BANKRUPTCY, 1; ATTACHMENT; EXECUTION, 6; FEES,
II. 1, 3; STATE PROCESS; SUFFERING PROPERTY TO BE TAKEN.
1. 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. Onoens, 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.] – In re A. Moore; Ex parte Nat. Exch. Bank of Columbus (Ohio S. D.), 1 B. R. 123 ; s.c. 1 L. T. B. 74.
6. A debt, incurred by a loan of Confederate Treasury notes, is not provable in bankruptcy. [Citing Craig v. Missouri, 4 Pet. 410; Briscoe v. Bank of the Commonwealth, 11 Pet. 257; Bank of Tennessee v. Union Bank of Louisiana, 2 Am. Law Rev. 346; The Prize Cases, 2 Black, 635; Shortridge v. Mason, 2 Am. Law Rev. 95; Darrington v. State Bank of Alabama, 13 How. 12; Toler v. Armstrong, 4 Wash. C.C. 297.] – J.J. Milner (Ga. D.), 1 B. R. 19, 107; 7 Am. Law Reg. (N.s.) 371; 1 L. T. B. 15; 2 Am. Law Rev. 570.
See LIMITATIONS, STATUTE OF, 1-5; PARTNERSHIP, 7, 14; SECURED CREDITOR, 1, 2.
II. Proof, How made. 1. A creditor may prove his debt before a United States commissioner, though he resides within the district where the proceedings in bankruptcy are pending. - In re L. Sheppard (N.Y. N. D.), 1 B. R. 115; s.c. 7 Am. Law Reg. (N.s.) 484; 1 L. T. B. 49.
2. If a creditor resides within the district where the proceedings in bankruptcy are pending, he cannot make proof of his debt before a United States comunissioner. — In re L. B. Haley (Ala. D.), 2 B. R. 13. But see now Act of July 27, 1868, $ 3.
3. A creditor cannot make proof of his claim before a notary public. — In te B. Strauss (Ohio S. D.), 2 B. R. 18.
4. A creditor, whose debt was not included in the bankrupt's schedule, filed a deposition claiming unliquidated damages, alleging the same to amount to 850,000, but did not pray that the same might be assessed by the court. Held, that the claim was not duly proved. - In re 0. H. Clough (N.Y. S. D.), 2 B. R. 59 ; s.c. 4 Pitts. L. J. (N.s.) 25.
5. Semble, that if a creditor's deposition as to his debt has not been delirered, or sent by mail, to the assignee, the creditor cannot be considered as having proved his debt, though he has filed the deposition with the clerk. – In Te L. Sheppard (N.Y. N. D.), 1 B. R. 115; s.c. 7 Am. Law Reg. (N.S.) 484; 1 L. T. B. 49.
6. The bankrupt is not entitled, before the first meeting, to notice of depositions filed in support of proof of debts before such meeting. — In re C. G. Patterson (N.Y. S. D.), 6 I. R. R. 127 ; s.c. 7 Am. Law Reg. (N.s.) 26.
7. A creditor has a right to serve a notice on the register, protesting against the proof of certain claims, and requesting to be notified if such claims are offered for proof. - In re J. 0. Smith (N.Y. S. D.), 1 B. R. 25.
8. When the validity of a claim is questioned, the register ought to hear the evidence offered to support and to impugn it. - In re F. Orne (N.Y. S. D.), 6 I. R. R. 84, s.c. 2 Pitts. L. J. (N.s.) 613.
9. In proving a debt evidenced by a promissory note, the note must be produced if called for by the register; but if a judgment has been obtained on the note, the note need not be produced. So, it seems, an assignee can require a note to be produced before paying a dividend on it. — In re W. H. Knoepfel (N.Y. S. D.), 6 I. R. R. 114.
10. A creditor cannot withdraw his proof of a debt, nor a deposition in support of it, but he may be allowed and required to amend. — In re J. M. Loweree (N.Y. S. D.), 6 I. R. R. 115.
See AMENDMENT, 2; ASSIGNEE, 11. 4; EXAMINATION, 9; SECURED CREDITOR, 4.
III. Effect of Proof. Till a creditor has proved his claim, he has no right to be heard. [It does not appear whether the creditor wished to be heard in opposition to the discharge, or in what other part of the proceedings.] — In re H. L. Brisco (D.C.), 2 B. R. 78.
See DISCHARGE, III. 1, 2; EXAMINATION, 9, 10; SALE OF INCUMBERED PROPERTY, 5; SECURED CREDITOR, 3.
RAILROAD. A railroad company is a business corporation within the meaning of $ 37. — Rankin v. Florida, Atlantic, & Gulf Central R.R. Co. (Fla. N. D.), 1 B. R. 196; s.c. 1 L. T. B. 85.
See STAY OF PROCEEDINGS, 3.
REFERENCE, ORDER OF. 1. Form 4 is not a special order, but is what G. 0. 5 calls a general order, made by the District Court in the case. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 141.
2. Where a petitioner in bankruptcy fails to attend before the register on the day fixed in the order of reference, he may appear on a subsequent day, and proceedings may be begun and carried on without a new order of reference. — In re B. H. Hatcher (Ky. D.), 1 B. R. 91; s.c. 1 L. T. B. 48. See FEES, I. 11, 13-15.
REGISTER. 1. Semble, that in an uncontested case the register to whom the case is referred has all the powers of the District Court in relation thereto, except to commit for contempt. — In re H. Gettleston (Cal. D.), 1 B. R. 170.
2. If one who has been adjudged a bankrupt on his own petition requests the register to receive a surrender of his property, the register is authorized and required to receive the property and safely keep it, till it can be turned over to the assignee. G. 0. 13, requiring the marshal to take possession of the property, applies only to cases of involuntary bankruptcy. – In re A. E. Hasbrouck (N.Y. S. D.), 6 I. R. R. 115.
3. The list made by the register under SS 23, 27, Forms 32, 33, is to be given by the register to the assignee. It can be made up from the book which the assignee is by $ 22 to keep. — Anon. (N.Y. S. D.) 1 B. R. 2; 2 B. Ř. 21.
4. The register has power to order an assignee to submit and file the account required by $ 28. If no assets have come to the hands of the assignee, Form 35 is such account. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 86; 8.c. 1 L. T. B. 22.
5. The register has no authority to sanction a prospective payment by the assignee, unless the matter is specially referred to him; but he may refer a question as to such prospective payment to the court. — In re B. F. Appold (Pa. E. D.), 1 B. R. 178; s.c. 25 Leg. Int. 180; 7 Am. Law Reg. (x.s.) 624; 1 L. T. B. 83.
See AssiGNEE, I. 12, 13, 15, 17; II. 2, 4; ASSIGNMENT, 1; CERTIFYING QUESTIONS, 3, 4; CREDITOR'S PETITION, 3; DISCHARGE, II. 1, 2, 6; III. 4, 5, 11, 13; IV. 7; EXAMINATION, 3, 8, 15-17, 19; FEES, I.; NOTICE, 6; PETITION, 2; Proof, II. 8, 9; SCHEDULE, 9-11; SUMMONS.
RENT. 1. The assignee may, if it is for the benefit of the bankrupt's estate, be authorized to continue paying the rent for premises demised to the bankrupt. – In re B. F. Appold, note (Pa. E. D.), 1 B. R. 178; s.c. 25 Leg. Int. 180; 7 Am. Law Reg. (N.s.) 624; 1 L. T. B. 83.
2. Goods of the bankrupt remained stored in the building of A., both before and after the appointment of the assignee in involuntary bankruptcy, and until they were sold. It was claimed that the rent accrued, due A. before the appointment of the assignee, should be paid by the marshal and charged in his account. But the court held, that it should be paid by the assignee and charged in his account. — In re F. B. Walton (Mo. E. D.), 1 B. R. 154. See PRIORITY, 2.
RESIDENCE. 1. Proceedings in involuntary bankruptcy must be commenced in the district in which the debtor resides. — In re J. M. Palmer (N.Y. S. D.), 6 I. R. R. 45.
2. A., born in Boston, afterwards acquired a domicile in California. Subsequently he left that State, with no intention of returning there; and, after residing abroad for eleven months, returned to Boston; and, in less than two months after his return, filed his petition in bankruptcy. Held, that on leaving California, with no intention of returning, his domicile of origin revived; that he must be considered as having resided within the District of Massachusetts for the six months preceding the filing of the petition, within the meaning of $ 11; and that therefore the District Court of the District of Massachusetts had jurisdiction. Citing The Venus, 8 Cranch, 253; The Indian Chief, 3 Rob. 12; Cragie v. Cragie, 3 Curteis, 435; Curtiss's Case, 3 Rob. 21, note (a).] - In re W. S. Walker, Ex parte Wiggin (Mass. D.), 1 B. R. 90; s.c. 1 L. T. B. 38.
3. A person who resides in one district, and is employed as a book-keeper in another district, does not so carry on business in the latter district that he can there be adjudged a bankrupt. [Citing In re Kinsman, 1 N.Y. Leg. Obs. 309.] — In re W. H. Magie (N.Y. S. D.), 1 B. R. 138.
4. B. resided in one district, but acted as agent and attorney for his brother in buying and selling goods in another district, at an office having his brother's name on the sign. He was well known by those who had dealings with him to be doing such business at that office; his compensation was half the profits. Held, that he was carrying on business in this latter district within the meaning of § 11. [Citing In re Kinsman, 1 N.Y. Leg. Obs. 309.] — In re T. Bailly (N.Y. S. D.), 1 B. R. 177.
5. One who twelve months before filing his petition in bankruptcy failed in business and has since continued as a clerk, on a yearly stated salary, with his
successors in business up to the time of filing his petition, “carries on business" in the district in which he has so acted as clerk within the meaning of $ 11. — In re W. K. Belcher (N.Y. S. D.), 1 B. R. 202. See ASSIGNEE, I. 9; SCHEDULE, 3, 4.
RULES. — See Forms; GENERAL ORDERS.
SALE OF INCUMBERED PROPERTY. 1. An assignee may sell real estate, subject to a lien, without an order of the court. — In re J. McClellan (Ky. D.), 1 B. R. 91; s.c. 1 L. T. B. 48.
2. The court can order property of the bankrupt on which there is a lien to be sold free of the lien, the lien being transferred to the proceeds of the sale. — In re L. F. Salmons (Ga. D.), 2 B. R. 19; s.c. 3 Pitts. L. J. (N.s.) 541.
3. The court may order real estate in Louisiana, under mortgage, to be sold free of the mortgage, the mortgagee's lien being transferred to the proceeds of the sale. — In re R. H. Barrow (La. E. D.), 1 B. R. 125; s.c. 1 L. T. B. 63.
4. When mortgaged property is sold, under $ 20, and the proceeds of the sale are less than the amount due on the mortgage, the creditor has no right to have the difference made up to him in priority of other creditors. — In re P. Purcell (N.Y. S.D.), 2 B. R. 10.
5. A creditor who has not made the deposition as to his debt, cannot apply to the court to have security held by him sold under $ 20.- In re E. Bigelow (N.Y. E. D.), 1 B. R. 186.
6. A bankrupt had given notes on which A. was surety, and had conveyed land to A. in trust if the notes were not paid, that the land should be sold, and the proceeds applied to pay the notes. On the application of the assignee, the court ordered the property to be sold by the assignee; the proceeds to be held subject to the lien of the creditor. — In re T. R. Stewart (Ala. D.), 1 B. R. 42; 8.c. 3 Pitts. L. J. (N.s.) 222; 1 L. T. B. 16.
See AssiGNEE, III. 4; EXECUTION, 2, 5.
SCHEDULE. 1. A petitioner is required to employ in his schedule and inventory only those forms which are appropriate to his debts and property. He should, however, state why he does not use those forms which he omits. — Anon. (D.C.) 6 I. R. R. 149.
2. G. 0. 14 forbids the use of dots of reference [thus “ "'] to indicate any thing necessary to be stated in the petition and schedule. — In re F. Orne (N.Y. S. D.), 6 I. R. R. 116.
3. The residence of creditors should be so stated in the schedule as to insure notice to them, either personally or by mail. — In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
4. When a debtor states in the schedule that the residence of a creditor is unknown, he should show in the schedule, or in a separate affidavit, what efforts he has made to ascertain the present residence of the creditor, especially where he shows that he had, or has, information as to where the creditor once resided. In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
5. A judgment debt, due a firm, may be entered in the schedule either as