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advances, was also made partly to secure a pre-existing debt incurred outside of the debtor's ordinary business, is prima facie evidence of fraud, and if the mortgage is bad in part it is bad altogether. [Citing Tapley v. Forbes, 2 All. 20; Bartlett v. Decreet, 4 Gray, 111; Heywood v. Reed, ib. 574; Denny v. Dana, 2 Cush. 160 ; Shawhan v. Wherritt, 7 How. 627.] — Tuttle v. Truax (Minn. D.), 1 B. R. 169.
4. A conveyance by an insolvent debtor to secure a pre-existing debt, is a fraudulent preference, and good ground for refusing a discharge. — In re B. N. Foster (N.Y. S. D.), 2 B. R. 81; s.c. 1 L. T. B. 127.
5. B., who was tenant of premises which he had covenanted in the lease to keep insured, paid, while insolvent, a premium on a policy of insurance of the premises. Held, not a fraudulent preference, and no ground for refusing a discharge. — In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
6. Payment to an attorney of his fees is not such a preference as to be cause for withholding a discharge. In re J. W. Sidle (Ohio S. D.), 2 B. R. 77.
7. B., in contemplation of bankruptcy, applied to attorneys, whom he had previously employed, to act for him in the bankruptcy proceedings. They refused unless he paid them both for the services rendered, and those which should be rendered. In compliance with their demand he paid them. Held, that such payment was not a fraudulent preference, nor a ground for refusing B. a discharge in bankruptcy. - In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
8. A. owed B. $10,000, and B. owed A. $2,000; A. and B. settled their accounts by A. paying B. $8,000 in cash; at the time of settlement B. was insolvent. Held, that B.'s crediting A. for the full amount of his debt was not giving a fraudulent preference, and not a ground for refusing B. a discharge in bankruptcy.-In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
See CONFESSION OF JUDGMENT; CREDITOR'S PETITION, 5, 6; DISCHARGE, III. 9; Proof, I. 2, 3; SUFFERING PROPERTY TO BE TAKEN, 2.
FRAUDULENT TRANSFER. 1. A fraudulent conveyance, made before the passage of the Bankrupt Act, is no ground for refusing a discharge. — In re I. Rosenfield (N.J. D.), 1 B. R. 161 ; s.c. 7 Am. Law Reg. (N.s.) 618; 1 L. T. B. 81.
2. The only evidence of an alleged transfer by an insolvent debtor made with intent to defeat the Bankrupt Act was an instrument not properly stamped. Held, that no act of bankruptcy was proved. — In re M. L. Dunham, Ex parte Welch (N.Y. S. D.), 2 B. R. 9.
See Act of BANKRUPTCY, 3; AssigNEE, III. 3, 5, 6; ASSIGNMENT, 3, 4; CONCEALMENT OF Assets, 3; CONTEMPLATION OF BANKRUPTCY AND INSOLVENCY; FRAUDULENT PREFERENCE; PARTNERSHIP, 11; PROOF, I. 2; STAY OF PROCEEDINGS, 5.
II. - See SUMMONS.
III. - See ATTORNEY, 6.
V.-See DISCHARGE, II. 2; FEES, I. 13; Notice, 6; REFERENCE, ORDER OF,
1; REGISTER, 1, 2, 4; SCHEDULE, 10. VII. - See ASSIGNEE, II. 4; DISCHARGE, IV. 7; FEES, I. 13; SCHEDULE,
8, 9, 11.
IX. - See FEES, I. 1.
XIII. — See REGISTER, 2.
XVI. - See PARTNERSHIP, 1.
XIX. - See ASSIGNEE, II. 3.
XXII. - See PERISHABLE PROPERTY, 2.
XXIX. — See EXAMINATION, 30; FEES, IV.
XXXI. — See FEES, V. 2.
XXXIII. — See SCHEDULE, 4.
HABEAS CORPUS. — See ARREST.
INJUNCTION. An injunction granted, under $ 40, will not ordinarily be dissolved, until it is decided whether the debtor is or is not to be adjudged a bankrupt. — In re H. F. Metzler (N.Y. S. D.), 6 I. R. R. 74.
See JUDGMENT; LIEN, 2; PERISHABLE PROPERTY, 1; State Courts; STAY OF PROCEEDINGS.
INSURANCE. See FRAUDULENT PREFERENCE, 5.
INSOLVENCY. 1. “Insolvency," when applied to traders, means inability to pay debts in the ordinary course of business, as persons carrying on trade usually do. [Citing Buckingham v. McLean, 13 How. 150; Thompson v. Thompson, 4 Cush. 127; Lee v. Kilburn, 3 Gray, 594.] – Merchants' Nat. Bank v. Truax (Minn. D.), 1 B. R. 146; 1 L. T. B. 73.
2. The word " insolvency," in the Bankrupt Act, means a simple inability to pay, as debts shall become payable, whereby the business of the debtor will be broken up, without any contemplation of the commission of an act for which he can be put into involuntary bankruptcy; and without any contemplation of applying to be adjudged a bankrupt. [Citing Buckingham v. McLean, 13 How. 150; Shawhan v. Wherritt, 7 How. 627.] - In re J. Black (N.Y. S. D.), 1 B. R. 81; 8.c. 1 L. T. B. 39. See CREDITOR'S PETITION, 6, 7.
INTEREST. See PROOF, I, 1.
INVENTORY. 1. A bankrupt carried on the business of another in his own name, receiving half of the net profits as his compensation. Held, that this right to half the profits was not property to be returned in his inventory as assets. - In re A. Beardsley (N.Y. S. D.), 1 B. R. 121.
2. Where a husband's interest in his wife's real estate has been sold on execution, he is not bound, on afterwards filing his petition to be adjudged bankrupt, to insert it in the inventory. — In re Hummitsh (Mo. E. D.), 2 B. R. 3; 8.c. 3 Pitts. L. J. (N.s.) 494; In re C. W. Pomeroy (Mo. E. D.), 2 B. R. 3.
3. A judgment recovered by a petitioner in bankruptcy should be included in Form 1, Schedule B (2), as personal property, and not in Schedule B (3) as a chose in action. — In re W. A. Sallee (Ky. D.), 2 B. R. 78.
4. An inventory is defective when it does not set forth the separate items of household furniture and wearing apparel; but the omission may be remedied by amendment. — In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
See AMENDMENT, 3; CONCEALMENT OF Assets; PETITION, 1; SCHEDULE, 1, 2; SPECIFICATIONS, 9. INVOLUNTARY BANKRUPTCY. — See Act OF BANKRUPTCY ; CIRCUIT COURT, 1;
COMMERCIAL PAPER; CONFESSION OF JUDGMENT; CREDITOR'S PETITION; DEPOSITION; DISMISSAL OF PETITION, 2, 3; EXEMPTED PROPERTY, 1; FEES, V. 1, 2; FRAUDULENT PREFERENCE, 1, 2; FRAUDULENT TRANSFER, 2; IsJUNCTION ; INSOLVENCY ; JUDGMENT, 2; PERISHABLE PROPERTY, 2; PLEADING ; Proof, I. 2, 5; RENT, 2; RESIDENCE, 1; STAY OF PROCEEDINGS, 6; SUFFERING PROPERTY TO BE TAKEN; TRIAL BY JURY.
JUDGMENT. 1. The court has authority to restrain, by injunction, the taking of the bankrupt's property under executions issued on judgments obtained after the filing of the bankrupt's petition. Semble, no notice need be given of the application for injunction. [Citing Shawhan v. Wherrit, 7 How. 627; Ex parte Christy, 3 How. 292; Ex parte Foster, 2 Story, 131; Ex parte Eames, ib. 322; Parker v. Muggridge, ib. 334; Mitchell v. Great Works Co., ib. 648; In re Babcock, 3 Story, 393; In re Bellows, ib. 428.] — In re Wallace (Oregon D.), 2 B. R. 52; s.c. 3 Am. Law Rev. 174.
2. A bill in equity, which was filed in the Circuit Court in aid of proceedings in involuntary bankruptcy, prayed that the defendant who had obtained judg. ment against the bankrupt in a State court might be enjoined from proceeding under an execution issued on the judgment. Held, that the court had jurisdiction to issue the injunction. [Citing Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612.] — Irving v. Hughes (Pa. E. D. C. C.), 6 I. R. R. 198;
8.C. 2 B. R. 20; 3 Pitts. L. J. (N.s.) 121 ; 24 Leg. Int. 380; 7 Am. Law Reg. (n.s.) 209.
3. Where judgments or taxes have become liens on the property of a debtor, but no levy has been made, before proceedings in bankruptcy are commenced against him, the sheriff will be enjoined from making a levy after the commencement of such proceedings. — Jones v. Leach (Miss. D.), 1 B. R. 165.
4. Judgment having been had against R. in a State court, and execution issued, said court made an order for the examination of R. as a judgment debtor. R. subsequently filed his petition in bankruptcy, and it was thereupon, on the petition of R. ordered, that all proceedings under the order of the State court, and all further proceedings by the judgment creditor upon the judgment, should be stayed. In re H. Reed (N.Y. S. D.), 6 I. R. R. 21; s.c. 24 Leg. Int. 196.
5. The District Court has jurisdiction to restrain judgment creditors from enforcing their liens against the bankrupt's estate in a State court, but it is not bound to interfere; and where there is no suggestion of fraud, and the value of the estate is less than the amount of the liens, it will not interfere. [Citing Ec parte Christy, 3 How. 292; Norton's Assignee v. Boyd, 3 How. 426; McLean v. Rockey, 3 McLean, 235.] — In re T. F. Bowie (Md. D.), 1 B. R. 185; s.c. 3 Pitts. L.J. (N.s.) 448.
6. A judgment creditor of a voluntary bankrupt had, before the proceedings in bankruptcy, obtained a lien on certain land as the property of the bankrupt. The bankrupt filed a petition, alleging that it was doubtful if said land belonged to him, and that on account of the doubt in the title, if sold under the lien, it would not bring its value; and praying that the creditor might be enjoined from selling under the lien. The court declined to interfere by injunction. — Ex parte Donaldson (Pa. E. D.), 6 I. R. R. 199; s.c. 3 Pitts. L. J. (N.s.) 125; 24 Leg. Int. 380; 7 Am. Law Reg. (N.S.) 213; 1 L. T. B. 5.
See ARREST, 2, 3; CONFESSION OF JUDGMENT; DISCHARGE, V. 3, 4; ExeCUTION; INVENTORY, 3; LIEN, 1; Proor, I. 4; II. 9; SCHEDULE, 7; SUFFERING PROPERTY TO BE TAKEN. JURISDICTION.— See ACT OF BANKRUPTCY, 3; ARREST, 1; PARTNERSHIP, 1, 2; RESIDENCE: STAY OF PROCEEDINGS, 7, 8.
JURY. - See TRIAL BY JURY.
LIEN. 1. A., a judgment creditor of B., filed a complaint, in the nature of a bill in equity, against B. and C., seeking to set aside an alleged fraudulent transfer of certain property by B. to C., but did not pray for an injunction or a receiver. Whether A. thus gained a lien which was not affected by B.'s subsequently obtaining a discharge in bankruptcy, qucere. [Citing Storm v. Waddell, 2 Sand. Ch. 494; Utica Insurance Co. v. Power, 3 Paige, 365; Roberts v. Albany & W. S. R.R. Co., 25 Barb. 662; Macy v. Jordan, 2 Denio, 570; Field v. Sands, 8 Bosw. 685; Lowry v. Morrison, 11 Paige, 327 ; In re Allen, 5 Law Rep. 362.]
Stewart v. Isidor (N.Y. Common Pleas), 1 B. R. 129.
2. Creditors, in 1857, filed bills in a State court to obtain possession of property fraudulently conveyed by the debtor. Held, that the lien thus obtained was not divested by proceedings in bankruptcy, and an injunction to restrain proceedings in the State court was refused. — Sedgwick v. Minck (N.Y. S. D. C. C.), 1 B. R. 204.
3. The lien of a national bank on the shares of a stockholder for debts due from him is not divested by the bankruptcy of the stockholder and the appointment of the assignee.— In re E. Bigelow (N.Y. S. D.), 1 B. R. 202.
4. The question of the validity of a lien claimed by a creditor should not be decided on affidavits. — In re C. E. Beck (Pa. E. D.), 1 B. R. 163; s.c. 25 Leg. Int. 164.
See ASSIGNEE, III. 4; EXECUTION; EXEMPTED PROPERTY, 13; FEES, V. 4; JUDGMENT, 3, 5, 6; SALE OF INCUMBERED PROPERTY, 1-4, 6.
LIMITATIONS, STATUTE OF. 1. A debt, barred by the Statute of Limitations of the State where the bankrupt has always resided, and where the proceedings in bankruptcy are had, though not barred by the Statute of Limitations of the State where the creditor resides, cannot be proved in bankruptcy. [Citing Ex parte Dewdney, 15 Ves. 479; Bank of United States v. Donnally, 8 Pet. 361.] – In re H. P. Harden (Me. D.), 1 B. R. 97; s.c. 1 L. T. B. 48.
2. A debt, barred by the Statute of Limitations of the State where the bankrupt has resided for the last ten years, and where the proceedings in bankruptcy are had, but is not barred by the Statute of Limitations of the State where the creditor resides, and where both parties resided when the debt was contracted, cannot be proved in bankruptcy. [Citing Ex parte Dewdney, 15 Ves. 479; s.c. 2 Rose, 59, note (a); Ex parte Roffey, 19 Ves. 468; Ex parte Ross, 2 Gl. & J. 46, 330; Gregory v. Hurrill, 5 B. & C. 341; Taylor v. Hipkins, 5 B. & Ald. 489; Hunter v. Potts, 4 T. R. 182: Potter v. Brown, 5 East, 124; May v. Breed, 7 Cush. 15.]-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.
3. A debt may be proved, though, on its face, barred by the Statute of Limitations. — In re W. H. Knoepfel (N.Y. S. D.), 6 I. R. R. 114.
4. A debt, barred by the Statute of Limitations of the State in which both the creditor and the bankrupt reside, may yet be proved in bankruptcy. [Citing Rawls v. American Life Ins. Co., 36 Barb. 357 ; M Elmoyle v. Cohen, 13 Pet. 312; Townsend v. Jemison, 9 How. 407; Gans v. Frank, 36 Barb. 320; Power v. Hathaway, 43 Barb. 214; Ruggles v. Keeler, 3 Johns. 263; Bulger v. Roche, 11 Pick. 36; Dwight v. Clark, 7 Mass. 515; Decouche v. Savetier, 3 Johns. Ch. 190; Lincoln v. Battelle, 6 Wend. 475; Byrne v. Crowinshield, 17 Mass. 55; Medbury v. Hopkins, 3 Conn. 472; Olcott v. Tioga R.R. Co., 20 N.Y. 210; Ex parte Dewdney, 15 Ves. 479; Smith v. Buchanan, 1 East, 6; Green v. Sarmiento, Pet. C. C. 74; Zarega's Case, 1 N.Y. Leg. Obs. 40, note.] — 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.
5. A debt, barred by the Statute of Limitations of the State in which the bankrupt and creditor have always resided, can yet be proved in bankruptcy, unless it be shown that it is barred throughout the United States. [Citing Ex parte Dewdney, 15 Ves. 479; In re Clendening, 9 Ir. Ch. 284; Huber v. Steiner, 2 Bing. N.C. 202.] — In re J. T. Ray, (N.Y. S. D.), 6 I. R. R. 223 ; s.c. 7 Am. Law Reg. (N.s.) 283 ; 1 L. T. B. 46. See In re J. S. Perry (N.Y. N. D.), 1 B. R. 2; s.c. 1 L. T. B. 4.
6. The entry by a bankrupt on his schedule of a debt, barred by the Statute of Limitations, is not such an acknowledgment, or new promise, as will revive