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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 bad, 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 GI. & 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. Sleiner, 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' the debt. (Citing Richardson v. Thomas, 13 Gray, 381; Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, ib. 387; Bell v. Morrison, 1 Pet. 351.] – 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; In re H. P. Harden (Me. D.), 1 B. R. 97; s.c. 1 L. T. B. 48.
See EXAMINATION, 10. Locus STANDI. — See ASSIGNEE, III, 1, 2; First MEETING, 2; PROOF, III.;
MARSHAL. 1. The return of the marshal is prima facie evidence of the due giving of notice, and unless rebutted is sufficient authority for the register to proceed, and cause an assignee to be chosen. — In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
2. Semble, that the return of the messenger as to service of notice on the creditors is not conclusive. — In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
See EXECUTION, 6; FEES, III. ; NOTICE; PERISHABLE PROPERTY ; REGISTER, 2; RENT, 2.
MESNE PROCESS. — See State PROCESS.
MESSENGER. — See MARSHAL. MEETINGS. — See FEES, I. 6; FIRST MEETING ; SECOND AND THIRD MEETINGS. MORTGAGE. — See FRAUDULENT PREFERENCE, 2–4; Proof, I. 2; SALE OF
INCUMBERED PROPERTY, 3, 4; SECURED CREDITOR, 1; STAY OF PROCEEDINGS, 3.
NOTICE. 1. The provision in § 11, as to service of notice by mail, or personally on creditors, applies as well to creditors residing without as to those residing within the United States. — In re J. Heys (N.Y. S. D.), 6 I. R. R. 52.
2. The schedule should state the abode and the post-office address of the creditor, and personal service of notice may be ordered at the former, or service by mail at the latter. – In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
3. Wm. D. Hill filed his petition in bankruptcy; the notice to a creditor gave the name as Wm. B. Hill. The creditor appeared at the first meeting, and objected that the notice was insufficient. Held, that the objection was not tenable by him. — In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
4. The warrant stated that the residence of a creditor was unknown, but stated where the creditor formerly resided. The notice served by the marshal merely stated that the residence was unknown. Held, that this was sufficient. – In re J. Pulver (N.Y. S. D.), 6 I. R. R. 76.
5. The messenger ought to copy into the notices to be served and published the exact language contained in the warrant, but an immaterial variance may be disregarded, and the omission in the notices of the former residence of the creditors, which was stated in the warrant, is immaterial. — In re J. Pulver (N. Y. S. D.), 6 I. R. R. 76.
6. Though a court has made a general order, directing in what newspapers within its district notices to creditors shall be published, yet the register has dis
cretion to order publication to be also made in newspapers outside of the district. In re J. H. Robinson (N.Y. S. D.), 6 I, R. R. 29.
7. The publication in the newspapers of the notice to creditors must be completed before the commencement of the ten days preceding the return day of the warrant, and if the first meeting is adjourned in consequence of the notices not having been published in due time, the notices of the adjourned meeting must be completed ten days before the adjourned day. - In re P. C. Devlin (N.Y. S. D.), 6 I. R. R. 61; s.c. 1 L. T. B. 32.
See AMENDMENT; ASSIGNEE, I. 16; DISCHARGE, II. 3–10; IV. 6; V.1; DISMISSAL OF PETITION, 1; EXAMINATION, 7 ; FEES, III. 1, 2; MARSHAL; PARTNERSHIP, 3; PROOF, II. 6.
PARTNERSHIP. 1. A., B., and C. were partners ; A. resided in New York, B. and C. in Ohio. A. filed a petition in bankruptcy in the Southern District of New York; B. and C. applied for leave to file in the petition in the same district. Held, that the court in the said district had no jurisdiction to entertain their application, inasmuch as A. had petitioned as an individual debtor, and prayed for an individual discharge. – In re J. A. Boylan (N.Y. S. D.), 6 I. R. R. 28.
2. A. residing in the Southern, and B. in the Eastern, District of New York, petitioned to be adjudged bankrupts in the court for the Southern District; the petition alleged that they were partners, and had been in business in the Southern District at the times when the debts set forth in the schedule had been contracted. It appeared, by the schedules, that there were no individual debts or assets of either A. or B. Held, that the court had no jurisdiction to declare B. a bankrupt until he had filed his petition in the Eastern District. — In re F. T. Prankard (N.Y. S. D.), 1 B. R. 51.
3. A firm cannot be adjudged bankrupt on the petition of one of its members, until notice of the petition has been given to the other members. - In re H. Lewis (N.Y S. D.), 1 B. R. 19; In re F. T. Prankard (N.Y. S. D.), 1 B. R. 51.
4. If a firm has been dissolved, the partners cannot be adjudged bankrupt on the petition of one of them, though there are partnership debts, provided that there are no partnership assets. Semble, it would be otherwise, if there were both partnership debts and partnership assets. [Citing Ex parte Hartz, 1 N.Y. Leg. Obs. 39; McDaniel v. King, 5 Cush. 469, 476.] – In re J. D. Crockett (N.Y. S. D.), 2 B. R. 75.
5. A debtor filed his individual petition with one schedule and one inventory, but the schedule showed that part of the debts were debts of a partnership, of which the petitioner was a member, and the inventory showed that part of the assets were credits due to said partnership. After the petitioner had been adjudged a bankrupt, he petitioned for leave to amend his petition, schedule, and inventory, so that his partner might be joined with him in the final orders of discharge. The leave was granted. — In re W. H. Little (N.Y. S. D.), 1 B. R. 74; 8.c. 3 Pitts. L. J. (N.8.) 268.
6. A. and B. were partners. A. petitioned that he himself and the firm might be adjudged bankrupts. B. subsequently petitioned that he and A. might be adjudged bankrupts, and prayed for an order to join in the proceedings begun
by A. Held, that such order was unnecessary; that B.'s petition showed his assent to the proceedings begun by A., and that on A.'s petition would take place the proceedings in respect to the creditors of the firm, and of A. individually; and that on B.'s petition would take place the proceedings in regard to the creditors of B. individually. — In re H. Lewis (N.Y. S. D.), 1 B. R. 19.
7. F., a member of a firm which had been dissolved, filed his petition in bankruptcy. Held, that partnership as well as separate creditors could prove their debts against F.'s estate. (Citing Donnelly v. Corbett, 3 Seld. 300; Kelley v. Drury, 9 Allen, 27; Balduin v. Bank of Newbury, 1 Wallace, 234; Worthington v. Jerome (Ms N.Y. S. D. C. C.)]— In re Frear (N.Y. S. D.), 1 B. R.
8. Semble, that a discharge of a bankrupt, granted on his individual petition, would release him from liability for the debts of a partnership of which he had been a member, but which had been dissolved before the commencement of the proceedings in bankruptcy. – In re Bidwell (N.Y. N. D.?), 2 B. R. 78.
9. A., a member of a partnership, which had been dissolved, filed his individual petition, inserting in the schedule debts contracted by the partnership. There were no partnership assets. Held, that A. was entitled to a discharge from the partnership debts, and that it was not necessary to make the other members of the firm partners. [Citing Hersey's Case, 3 P. Wms. 23; Tucker v. Oxley, 5 Cranch, 34.]— In re W. C. Abbe (N.J. 1).), 2 B. R. 26 ; s.c. 3 Pitts. L.J. (N.s) 589; 4 Pitts. L. J. (n. 8.) 127; 7 Am. Law Reg. (N.s.) 824.
10. Debts due a partnership, but assigned to one of the partners, remain joint cstate, unless, before the bankruptcy, notice of the assignment has been given to the debtors. [Citing Ex parte Usborne 1 Gl. & J. 358.] — In re 0. Byrne (Pa. W. D.), 1 B. R. 122 ; s.c. 3 Pitts. L. J. (N.s.) 314; 7 Am. Law. Reg. (n. s.)
11. A bona fide transfer for value of all the partnership estate to one partner converts it into separate estate, though both partners know that they are insolvent. But where the firm was dissolved, and such a transfer made to a partner in contemplation of his filing his separate petition, such transfer was held fraudulent and void as against joint creditors. [Citing Robb v. Mudge, 14 Gray, 534; Howe v. Lawrence, 9 Cush. 553; Ensign v. Briggs, 6 Gray, 329; Ex parte Peake, 1 Madd. 346.] - In re 0. Byrne (Pa. W. D.), 1 B. R. 122 ; s.c. 3 Pitts. L. J. (n.s.) 314; 7 Am. Law Reg. (n.s.) 499.
12. Joint creditors are entitled to share pari passu with separate creditors in the separate estate of a partner, unless it be affirmatively shown that there is either some joint estate, or a living solvent partner. — In re F. Jewett (III. N. D.), 1 B. R. 130; s.c. 3 Pitts. L. J. (n.s.) 354; 7 Am. Law Reg. (N.s.) 291.
13. Joint creditors cannot share pari passu with the separate creditors of a partner in the separate estate, though there be no solvent partner, provided that there is some joint estate, and even, semble, if there is no joint estate. [Citing In re Marwick, Daveis, 229; Ex parte Kennedy, 2 De G. M. & G. 228; Howe v. Lawrence, 9 Cush. 553 ; Somerset Potters' Works v. Minot, 10 Cush. 592.] — In re 0. Byrne (Pa. W. D.), 1 B. R. 122; s.c. 3 Pitts. L. J. (N.s.) 314; 7 Am. Law Reg. (x.s.) 499.
14. A note given by a partner for a firm debt can be proved against the separate estate of such partner. Whether a note signed by a firm and indorsed by a
partner, can be proved against both the joint and separate estates, quære. (Citing In re Babcock, 3 Story, 393; In re Marwick, Daveis, 229; Collins v. Hood, 3 McLean, 186 ; In re Ingall, 5 Law Rep. 401; Agawam Bank v. Morris, 4 Cush. 99; Ex parte Brown, 1 Atk. 225; Ex parte Emly, 1 Rose, 61; In re Farnum, 6 Law Rep. 21; Borden v. Cuyler, 10 Cush. 476.] – Mead v. Nat. Bank of Fayetteville (N.Y. N. D. C. C.), 2 B. R. 65 ; s.c. 4 Pitts. L. J. (N.s.) 137; 7 Am. Law Reg. (N.S.) 818; 1 L. T. B. 108.
15. A partner is not entitled to a dividend from the estate of his bankrupt partner, on a debt due to him, until all the joint debts are paid. — In re F. Jewett (III. N. D.), 1 B. R. 131; s.c. 7 Am. Law Reg. (N.S.) 294.
See ASSIGNEE I. 2-1; CREDITOR'S PETITION, 5; EXEMPTED PROPERTY, 2, 3; INVENTORY, 1; SCHEDULE, 5, 7.
PERISHABLE PROPERTY. 1. The court, before the appointment of the assignee, ordered goods sold by the marshal. The bankrupt bought them, through a third party, at a private sale by the marshal. The court enjoined the bankrupt from intermeddling with the goods, on the ground that the sale was void, the bankrupt, before the appointment of the assignee, standing in a fiduciary relation to the creditors. — March v. lleaton (Mass. D.), 2 B. R. 66.
2. In involuntary bankruptcy the court cannot order property sold as perishable till it is in the possession of the messenger. — In re I. F. Metzler (N.Y. S. D.), 6 I. R. R. 74. See ASSIGNEE, II. 2.
PETITION. 1. A petition, schedule, and inventory, so badly written as to be illegible, were not allowed to be filed. — Anon. (N.Y. N. D.) 3 Pitts. L. J. (N.s.) 81.
2. The oath of allegiance annexed to the petition may be taken before the register. — In re A. J. Walker (Mass. D.), 1 B. R. 67.
See CREDITOR'S PETITION; DISMISSAL OF PETITION; INVENTORY ; SCHEDULE.
PLEADING. 1. To an order to show cause why a creditor's petition should not be granted, a written answer must be filed. Form 61 is not such an answer. — In re Sutherland (Oregon D.), 1 B. R. 140.
2. On a creditor's petition, a rule issued to the defendant to show cause why he should not be adjudged a bankrupt. The defendant filed a paper denying the acts of bankruptcy charged, and demanding a trial by jury. Held, that this was a proper response to the rule, and that no other answer to the petition was necessary. Whether an answer to a creditor's petition is ever necessary, quære. — Phelps v. Clasen (Minn. C. C.), 2 West. Jur. 221.
3. Form 61, filed by a debtor in answer to a creditor's petition, amounts to the general issue, and the creditor need file no replication. -- In re M. L. Dunham, Ex parte Welch (N.Y. S. D.), 2 B. R. 9.
See CREDITOR'S PETITION, 4-7. PREFERENCE. — See CONFESSION OF JUDGMENT; FRAUDULENT PREFERENCE.
PREFERRED CLAIM. — See PRIORITY.