« PreviousContinue »
dent be heard to object on that ground. – O'Neil v. Dougherty, 10 N. B. R. 294.
2. An appeal may be prosecuted in the name of the bankrupt or in that of his assignee. — Ibid.
APPELLATE COURT. — See JURISDICTION, 6.
APPLICATION OF PAYMENT. In the absence of any agreement of parties, or acts indicating intention,
the law will apply the payment of money to the oldest debt. - Cook v. Waters, 9 N. B. R. 155.
ARREST. After proceedings in bankruptcy have been instituted, the Bankruptcy Court has control of the action of the state court, and has a right to protect the bankrupt from arrest; and a creditor should not commence an action thereon in the state court. - In re Williams, 11 N. B. R. 145.
ASSENT OF CREDITORS. 1. Claims proved though not itemized, as might have been required on a contest between creditors or assignee in case of assets, are sufficiently proven to lay the ground of right in the creditor to file his assent. -In re Pierson, 10 N. B. R. 193.
2. A majority in number and value of the creditors whose claims were contracted since Jan. 1, 1869, are sufficient to give assent to the debtor's discharge. — lbid.
3. The right to file assent depends upon and is operative according to the fact of his belonging or not belonging to a certain class; and is not dependent upon a mistaken statement as to the time of the contracting of the debt, wben he filed bis formal proof of debt as a creditor. Ibid.
ASSESSMENT. 1. The order of the district court having jurisdiction over the matter, having called for an assessment, is conclusive; and whether the call was for more than was necessary to pay the debts of the company cannot be inquired into in a suit against the stockholder for the assessment. Upton v. Hansbrough, 10 N. B. R. 368.
2. Under the orders of court appointing an assignee in bankruptcy, an assessment may be made on the unpaid shares just the same as if the same had been ordered by the corporation before bankruptcy, for he represents the corporation for the collection of all its assets. - Myers v. Seeley, 10 N. B. R. 411. See ACTION, 1.
ASSETS. 1. Where, upon the dissolution of a firm, one member takes all the assets, and covenants with the other member to pay all the debts, and afterwards becomes bankrupt, the creditors of the firm may prove their debts and share in the assets tbus taken, equally with the separate creditors. - In re Long, 9 N. B. R. 227.
2. Partnership assets must be applied to the payment of partnership debts, without reference to any disproportion of the interests of the individual partners as between themselves. - In re Lowe, 11 N. B. R. 221.
See ASSIGNEE, 9.
ASSIGNEE. 1. The Bankrupt Act nowhere confers upon an assignee the rights of a judgment creditor. — Cook v. Waters, 9 N. B. R. 155.
2. An assignee cannot be removed upon a petition that does not ask for it, though a hearing thereon may disclose reasons sufficient therefor. His removal must be conducted in accordance with section eighteen of the act, and general order twenty-three, and form number forty. - In re Schapter, 9 N. B. R. 324.
3. The accountability of an assignee for use and disposal of property discussed. Ibid.
4. An assignee has no power to become defendant to a suit in another court than the Bankrupt Court, commenced after petition and adjudication, and therefore any consent he may have given to the proceedings in such suit is null and void. — In re Anderson, 9 N. B. R. 360.
5. The acts of an assignee cannot be collaterally impeached in the state courts. Morris v. Swartz, 10 N. B. R. 305.
6. Assignees in bankruptcy are public officers, whose appointment must at least be approved by the judge of the Federal District Court. — Ibid.
7. Assignees in bankruptcy may sue or be sued in the state courts. — Cogdell v. Exum, 10 N. B. R. 326.
8. An assignee not only succeeds to the rights and liabilities of the bankrupt, but he also represents the rights of the creditors and each of them; and as such representative may maintain or defend proceedings in regard to the property of the bankrupt which on grounds of public policy or otherwise the latter would not be allowed to do. - In re St. Helen's Mill Co., 10 N. B. R. 414.
9. The intent and purpose of the Bankrupt Law is that the property of the debtor (except as exempted thereby) at the time of the filing of the petition, shall vest in the assignee. And the right to subject land alleged to have been fraudulently conveyed to the wife inured to the assignee for the benefit of the creditors. Allen v. Montgomery, 10 N. B. R. 503.
10. Pending the administration of the insolvent's estate in the Bankrupt Court, the creditors cannot in a state court appropriate the property exclusively to their debt. If the property has been acquired in fraud of the creditors, it vests in the assignee for the benefit of creditors; and he has the same remedies that they would have had (had there been no bankrupt proceedings) to reach and subject it to payment of debts. — Ibid.
11. When plaintiffs have been adjudged bankrupts since an action has been brought, the court may direct the verdict to be so framed as to protect the assignees. Wooddail v. Austin, 10 N. B. R. 545.
12. Where judgment was obtained in a state court, and levy made upon execution by the sheriff before proceedings in bankruptcy were begun, the United States District Court has no authority to order the property to be taken out of the hands of the sheriff. The lien under the execution is primâ facie valid, and until the writ is set aside for fraud, or for the reason that it is in violation of the Bankrupt Law, the assignee has no right to immediate possession of any of the property seized before the judgment is satisfied. - In re Shuey, 9 N. B. R. 526.
13. If an assignee in bankruptcy, with knowledge, or with reason to believe, that one claiming to be a creditor of a bankrupt had proved a debt against the
estate of the bankrupt which had no existence, or which was tainted with fraud, should neglect or refuse to contest the allowance of such debt, there is no reason why other creditors, having proved their debts, should not be permitted to interpose and seek the aid of a court of equity to annul the allowance of such debt. - First National Bank v. Cooper, 9 N. B. R. 529.
See ASSESSMENT, 2; ATTACHMENT, 3; BANKRUPT; Costs, 5; EQUITY, 2; EXAMINATION, 3; FRAUDULENT PREFERENCE, 1; JURISDICTION, 3; PRESUMPTION; USURY, 2.
ATTACHMENT. 1. Where property was attached, and more than four months after a bond with sureties was given to dissolve it, the discharge of the defendant in bankruptcy will not prevent the recovery of judgment and the holding of the sureties for the debt. - Holyoke v. Adams, 10 N. B. R. 270.
2. Attachments of property on mesne process, made within four months of bankruptcy proceedings, are dissolved by such proceedings. - Miller v. Bowles, 10 N. B. R. 515.
3. When an attachment has been made returnable to a state court, the assignee in bankruptcy of the debtor may come in as a party to the proceeding on motion, and have the attachment declared dissolved on account of bankruptcy proceedings. — Kent v. Downing, 10 N. B. R. 538.
4. The omission of the attaching creditors to commence proceedings in bankruptcy is not sufficient to rebut the positive averment sworn to in a petition, and not denied, that the attachment proceedings were not taken to defeat the operation of the Bankrupt Act. -- In re Ward, 9 N. B. R. 349.
See LIEN, 1.
ATTORNEY'S FEES. 1. An attorney's account for service to the assignee should be made a part of the assignee's accounts, and be presented at a meeting of the creditors, and be audited as part of the assignee's accounts. - In re Hubbel, 9 N. B. R. 523.
2. Under special circumstances the court may properly, on due notice to all creditors who have proved their debts, institute an inquiry into the services rendered to an assignee by an attorney, with a view to payment of them prior to the holding of any second general meeting of creditors; but the practice is one not to be encouraged. - Ibid.
3. Where an attorney's bill to an assignee, with the exception of four items, was presented at a meeting of the creditors, and no objection was made thereto, and subsequently the register was ordered to “ pass upon, tax, audit, and adjust the bill upon notice to the assignee, and the register, after hearing reported that the bill be paid out of the assets, but the court refused to allow it, and ordered a meeting of the creditors to pass upon and audit it. — Ibid.
BANKRUPT Act. The Bankrupt Act does not ipso facto suspend laws for the collection of debts. - Chandler v. Siddle, 10 N. B. R. 236
See State COURT, 6.
BANKRUPT. Sections 39, 40, 41, 42, and 43 of the Bankrupt Act provide for proceedings against the bankrupt, for injunctions to restrain him and others from making any disposition or transfer of his property, and for taking possession of it, but such proceedings do not transfer the title from the bankrupt. The decree declaring him bankrupt does not of itself have the effect to deprive him of the title and ownership of his property, but they remain in him until the assignee is appointed and qualified, and the conveyance or assignment made to him. – Sutherland v. Davis, 10 N. B. R. 424. See DISCHARGE, 1; MARRIED WOMAN.
BANKRUPT'S DEATH. See JURISDICTION, 11.
BANKRUPTCY. 1. The declaration of bankruptcy having been suggested, and not denied, estops the plaintiff from further proceeding with his suit in a state court, in the absence of an order authorizing it. - Penny v. Taylor, 10 N. B. R. 200.
2. A primâ facie case should be made by the proper proofs, before the debtor can legally be required to appear and show cause, and without such proofs an order would be void and of no effect. — In re Rogers, 10 N. B. R. 444.
3. Commencement of proceedings in bankruptcy means the filing of a petition, supported by such proof as would authorize the court to issue an order of bankruptcy, if no appearance was made by the debtor. - Ibid.
4. The Act of June 22, 1874, requiring that in all cases of involuntary bankruptcy commenced since Dec. 1, 1873, a certain proportion of the creditors should join in the petition, was not intended to apply to cases wherein adjudication had been bad before its passage. — In re Comstock, 10 N. B. R. 451.
See CORPORATION, 12: AGREEMENT; Nonsuit; STATE COURTS, 3.
BANKRUPTCY COURT. It is discretionary for the Bankrupt Court either to order notice or not to the stockholders to pay the balance due on their stock. — Upton v. Hansbrough, 10 N. B. R. 568.
See JURISDICTION, 15, 22; STATE COURT, 5.
BANKRUPTCY PROCEEDINGS. A petition in the United States District Court by a claimant to property for a stay of proceedings under the order of sale of property, as perishable, that he might have an opportunity to substantiate his claim to said property against all persons, does not make the petitioner a party to the bankruptcy proceedings, nor are they binding upon him, nor are the records thereof the best evidence to prove the bankrupt's insolvency at the time of making certain mortgages under which the petitioner purchased, nor are they admissible for that purpose. Marsh v. Armstrong, 11 N. B. R. 125. BANKS, BANKERS. See FIDUCIARY DEBTS; LIEN, 10; INTEREST, 3.
BILL OF SALE. See LIEN, 12.
Books. The general scope of the Bankrupt Act would give plenary power, if section 15 of the Judiciary Act did not, to compel the production of books and papers of the debtor for examination, if pertinent to the issue, and required for the protection of the rights and interest of the petitioning creditor. — In re Mendenhall, 9 N. B. R. 285.
Bond. — See ATTACHMENT, 1.
BURDEN OF PROOF. Mortgagees of personal property took possession some time after execution of the mortgages, which gave the mortgagee a right to sell the property, and sold the same while in actual possession. In a suit by the purchaser against the marshal for seizing the property, the burden of proof is upon the defendant to show that the sale to the plaintiff was not bona fide. — Marsh v. Armstrong, 11 N. B. R. 125.
CAPITAL STOCK. The assignee of certificate of stock may have paid for it to the assignor, and may have relied upon bis representations and those of the officers of the company that the shares bought were fully paid; yet creditors are not bound thereby, and, if the stock was not fully paid, the holder is liable to creditors for the amount remaining unpaid. - Myers v. Seeley, 10 N. B. R. 411.
CHATTEL MORTGAGE. 1. Where a chattel mortgage provided that it should cover subsequently acquired articles, the mortgagor remaining in possession, selling and replacing with other goods, continuing his business, it is fraudulent and void as against creditors, independently of the bankrupt law. - Smith v. Ely, 10 N. B. R. 553.
2. And the mortgagee must account for and be chargeable with all goods sold, whether applied to the payment of his debt or not. — Ibid.
CLAIM. Where a creditor knew that a part of his claim was not valid, but puts it in with a part that is valid, and makes oath that the whole is valid, his whole claim should be rejected, and he should not be allowed to participate in any dividend.
- Marrett v. Atterbury, 11 N. B. R. 225.
CHECK. The simple drawing of a check, without presentation, acceptance, or payment, does not transfer the fund drawn on to the amount of the check from the drawer to the holder thereof. - Strain v. Gourdin, 11 N. B. R. 156.
CHOSES IN ACTION. - See HUSBAND AND WIFE.
COMPENSATION. 1. A committee of creditors appointed in section 43 to settle up a bankrupt's estate, are entitled to compensation for the services, though the act is silent upon the subject. - In re Treat, 10 N. B. R. 310.