person. And, for the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction." [32 Stat. L. 799.] The provisions here amended are set out in vol. 1, pp. 672, 674. Retroactive effect. There is nothing in this amendment to indicate that it was intended to have a retroactive effect. "The fact of the amendment makes it clear that the former rule should be construed according to the plain language thereof." Murphy v. W. T. Murphy & Co., (Iowa 1904) 101 N. W. Rep. 486. When the four months' limitation begins to run.- Section 3 b, relating to the limit of time for filing a petition in involuntary bankruptcy after acts of bankruptcy committed, is not to be read in connection with sections 60 a, 60 b, as amended, and in the case of a transfer which was neither fraudulent nor required to be registered, the four months' limitation begins to run from the date of the transfer and not from "the date when the beneficiary takes notorious, exclusive, or continuous possession or the creditors have actual notice thereof. Little v. Holley Brooks Hardware Co., (C. C. A. 1904) 133 Fed. Rep. 874. Distress for rent. The levy of a landlord's distress warrant for rent does not constitute a preference within the meaning of this section, as it does not enable the landlord "to obtain a greater percentage of his debt than any other of such creditors of the same class," as there is no other creditor of the same class, and the landlord is simply enforcing a priority given him by law, and an act of bankruptcy cannot be founded thereon. Belknap, (1904) 129 Fed. Rep. 646. In re A chattel mortgage which under the state laws does not need to be recorded to render it valid as between the parties and general creditors, need not be recorded under the Bankruptcy Act, and if made more than four months before the bankruptcy, it need not be recorded within such time to save its being held a preferential transfer under the Bank ruptcy Act. Meyer Bros. Drug Co. v. Pipkin Drug Co., (C. C. A. 1905) 136 Fed. Rep. 396. "Reasonable cause to believe."-" Reasonable cause to suspect" that a person is insolvent is not equivalent to "reasonable cause to believe" that a person is insolvent, and a case of preferential payment is not made out by the procuring of payment by a creditor bank of notes discounted by a merchant customer of long standing on discovery that they had been forged by him, though the money was raised by a sale of the debtor's entire property to his brother-inlaw. Gnichtel v. Hightstown First Nat. Bank, (N. J. 1904) 57 Atl. Rep. 508. Knowledge or intent of insolvent. An intention on the part of the insolvent to give a preference by means of a transfer he makes, is not indispensable to the existence of a voidable preference under this section as amended. It is sufficient that a transfer of the insolvent's property is made, which has the effect to give a preference, and that the party who receives it has reasonable cause to believe that it is intended by the party who procures the transfer, or who gives the transfer the effect of a preference, that it should have that effect, although the insolvent is innocent of that intention. Western Tie, etc., Co. v. Brown, (C. C. A. 1904) 129 Fed. Rep. 728. Deposit of money in bank and application thereof. Neither the deposit of money în a bank by the bankrupt within four months prior to the bankruptcy, on open account, subject to check, nor the application of such sum by the bank upon a note against the bankrupt constitutes a preference if the bank acted without reasonable cause to believe the bankrupt insolvent or that a preference was thereby intended. In re Scherzer, (1904) 130 Fed. Rep. 631. Application of credits. Under this section a transfer of the debtor's property may constitute a preference, although the property is not conveyed to the preferred creditor, if the effect of the transfer is to enable the creditor to receive out of the debtor's estate a larger percentage of his claim than others of the same class obtain. Western Tie, etc., Co. v. Brown, (C. C. A. 1904) 129 Fed. Rep. 728. A company was hiring laborers to gather ties, the insolvent operating stores and supplying the men. The custom of the company was to deduct the amount of supplies furnished from the earnings of each man on sending him a check on the bi-weekly pay. roll account, and to send the insolvent a check to cover the supplies. The insolvent owed the company more than $20,000 when, within four months of the filing of a petition in bankruptcy, the company retained the amount owing the insolvent for supplies for three months, crediting it on the claim against him. It was held that this was a voidable preference, preventing proof of the company's claim, unless it pay to the trustee the amount so credited. Western Tie, etc., Co. v. Brown, (C. C. A. 1904) 129 Fed. Rep. 728. Mutual debts and credits. Preferences voidable under these sections as amended are not allowable as set-offs against claims of the preferred creditors under section 68, on the ground that the preferences and the claims constitute mutual debts and credits. Western Tie, etc., Co. v. Brown, (C. C. A. 1904) 129 Fed. Rep. 728. Effect of preference on right to file petition. A payment made to a creditor more than four months previous to the filing of a petition by him in involuntary proceedings against the debtor will not prevent his filing the petition, even though if made within the four months it would have been a preferential payment. In re Girard Glazed Kid Co., (1391) 129 Fed. Rep. 841. SEC. 14. [Filing fees, and expenses of recovering property.] That clause two of subdivision b of section sixty-four of said Act be, and the same is hereby, amended so as to read as follows: "(2) the filing fees paid by creditors in involuntary cases, and, where property of the bankrupt, transferred or concealed by him either before or after the filing of the petition, shall have been recovered for the benefit of the estate of the bankrupt by the efforts and at the expense of one or more creditors, the reasonable expenses of such recovery." [32 Stat. L. 800.] The provision here amended is set out in vol. 1, p. 683. SEC. 15. [First and subsequent dividends.] That subdivision b of section sixty-five be, and the same is hereby, amended so as to read as follows: "The first dividend shall be declared within thirty days after the adjudication, if the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as have not been, but probably will be, allowed equals five per centum or more of such allowed claims. Dividends subsequent to the first shall be declared upon like terms as the first and as often as the amount shall equal ten per centum or more and upon closing the estate. Dividends may be declared oftener and in smaller proportions if the judge shall so order: Provided, That the first dividend shall not include more than fifty per centum of the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as probably will be allowed: And provided further, That the final dividend shall not be declared within three months after the first dividend shall be declared." [32 Stat. L. 800.] The provision here amended is set out in vol. 1, p. 687. SEC. 16. [Jurisdiction of suits to recover property transferred.] That subdivision e of section sixty-seven and subdivision e of section seventy of said Act be, and the same are hereby, amended by adding at the end of each such subdivision the words: "For the purpose of such recovery any court of bankruptcy as herein before defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction." [32 Stat. L. 800.] The provisions here amended are set out in vol. 1, pp. 692, 702. 66 Any court of bankruptcy."-" The jurisdiction which is conferred is on any court of bankruptcy, which, as defined in the act, means, speaking generally, any District Court of the United States throughout the states and territories. This jurisdiction, moreover, is made concurrent with that of the state courts, which would have had jurisdiction if bankruptcy had not intervened, which is only fulfilled by giving the trustee the choice, where he goes out of the district of his appointment, of resorting either to the state court which would have been competent to dispose of the case, or to the United States District Court located in the same territory." Lawrence v. Lowrie, (1903) 133 Fed. Rep. 995. cised on the condition imposed by section 23 b of securing the consent of the proposed defendants. Gregory v. Atkinson, (1904) 127 Fed. Rep. 184. Jurisdiction to recover preference, etc. Sections 60 b, 67 e, and 70 e, as amended, confer jurisdiction on the bankruptcy court of a plenary suit by the trustee to reach alleged rights of the bankrupt in a farm and stock and personal property thereon, alleged to have been transferred to a resident of another state within four months of the bankruptcy. Horskins v. Sanderson, (1904) 132 Fed. Rep. 415. The amendment expressly confers jurisdiction by proceedings in equity in a district court to set aside "all conveyances, transfers, or incumbrances of his property, made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the state, territory, or district in which such property is situate." Johnston v. Forsyth Mercantile Co., (1904) 127 Fed. Rep. 845. Existing rights. -- This amendment is not confined to cases subsequently arising, but applies to existing rights of action in pending bankruptcy proceedings. Pond v. New York Nat. Exch. Bank, (1903) 124 Fed. Rep. 992. A Suits in equity-to recover payment. suit by the trustee to recover a payment made by the bankrupt alleged to constitute an unlawful preference may be brought in equity in the bankruptcy courts, it being analogous to a judgment creditor's suit to set aside a fraudulent conveyance. In re Worrell, (1903) 125 Fed. Rep. 159. To try title to property. A bill in equity in the District Court filed by the trustee in bankruptcy against an adverse claimant of property to try the title thereto under this section is not a proceeding in bankruptcy within the meaning of section 24 b, but an independent suit, although the District Court is the court of bankruptcy having jurisdiction of the bankrupt's estate, and an injunction is asked restraining prosecution of a suit in replevin in the state court. Doroshow v. Ott, (C. C. A. 1905) 134 Fed. Rep. 740. For accounting as to transferred accounts. A trustee in bankruptcy may file a bill in equity in the District Court for an account ing against parties to whom the bankrupt has fraudulently transferred certain book accounts, although the face value of the accounts is known to complainant, their actual value being known only to defendants. McNulty v. Feingold, (1904) 129 Fed. Rep. 1001. Plenary suits and summary proceedings.— The distinction between the controversies arising in bankruptcy which must be determined by plenary independent suits and those which may be heard on summary petition depends upon who has possession of the subject-matter of the controversy. A summary petition is an appropriate remedy to declare void as a preference a mortgage given by the bankrupt on property, the proceeds of which are in the custody of the court. In re Noel, (1905) 137 Fed. Rep. 698. Review. A final judgment in an action at law by a trustee in bankruptcy for the specific recovery of personal property brought in the District Court under section 70, as amended, cannot be reviewed by the Circuit Court of Appeals by appeal under section 25 a, but only by writ of error under section 24 a, or the provisions of the Circuit Court of Appeals Act. Delta Nat. Bank v. Easterbrook, (C. C. A. 1904) 133 Fed. Rep. 521. SEC. 17. [Bankruptcy records.] That said Act is also amended by adding thereto a new section, section seventy-one, to read as follows: "SEC. 71. That the clerks of the several district courts of the United States shall prepare and keep in their respective offices complete and convenient indexes of all petitions and discharges in bankruptcy heretofore or hereafter filed in the said courts, and shall, when requested so to do, issue certificates of search certifying as to whether or not any such petitions or discharges have been filed; and said clerks shall be entitled to receive for such certificates the same fees as now allowed by law for certificates as to judgments in said courts: Provided, That said bankruptcy indexes and dockets shall at all times be open to inspection and examination by all persons or corporations without any fee or charge therefor." [32 Stat. L. 800.] SEC. 18. [Compensation of referees and trustees restricted.] That said 'Act is also amended by adding thereto a new section as follows: "SEC. 72. That neither the referee nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized and prescribed in this Act." [32 Stat. L. 800.] SEC. 19. [Pending cases not affected.] That the provisions of this amendatory Act shall not apply to bankruptcy cases pending when this Act takes effect, but such cases shall be adjudicated and disposed of conformably to the provisions of the said Act of July first, eighteen hundred and ninety-eight. [32 Stat. L. 801.] Application of provision. The provision applies to the administration of bankruptcy cases proper, and not to a suit brought by a trustee. Pond v. New York Nat. Exch. Bank, (1903) 124 Fed. Rep. 992. BRIDGES. See RIVERS, HARBORS, AND CANALS, post. BUREAU OF CORPORATIONS. See COMMERCE AND LABOR, post, p. 58. BUREAU OF MANUFACTURES. See COMMERCE AND LABOR, post, p. 58. CARRIERS. Act of Feb. 9, 1905, ch. 564, 49. Sec. 1. Lists of Passengers to Be Delivered to Officers of Customs, 49. 2. In Effect, 50. CROSS-REFERENCES. Transportation of Insect Pests, see AGRICULTURE, ante, p. 2. Lists of Alien Passengers, see IMMIGRATION, post, p. 106. Carriers, see INTERSTATE COMMERCE, post. Carriage of Obscene Literature Prohibited, see OBSCENITY, post. An Act To amend section nine of the Act of August second, eighteen hundred and eighty-two, concerning lists of passengers. [Act of Feb. 9, 1905, ch. 564, 33 Stat. L. 711.] [SEC. 1.] [Lists of passengers to be delivered to officers of customs.] That in lieu of the list in duplicate of passengers now prescribed by section nine of the Act approved August second, eighteen hundred and eighty-two, entitled "An Act to regulate the carriage of passengers by sea," the master shall submit for inspection to the officer of customs who first makes demand therefor, and shall subsequently deliver with his manifest of cargo on entry, a correct list, signed and verified on oath by the master, of all passengers taken on board the vessel at any foreign port or place, specifying, in the manner to be prescribed from time to time by the Secretary of Commerce and Labor, the name of each passenger, age (if a child of eight years or under), sex, married or single, location of compartment or space occupied during the voyage (if the passenger be other than a cabin passenger), whether a citizen of the United States, number of pieces of baggage, and if any passenger die on the voyage the list shall specify the name, age, and cause of death of each deceased passenger. [33 Stat. L. 711.] The section here amended is set out in vol. 1, p. 726. See further IMMIGRATION, post, p. 101. SEC. 2. [In effect.] That this Act shall take effect on July first, nineteen hundred and five. [33 Stat. L. 711.] CEMETERIES. [Encroachments by railroads.] The provisions of the Act of June 28, 1902, ch. 1301, set forth in vol. 1, p. 734, are repeated in the subsequent Acts of March 3, 50 1903, ch. 1007, 32 Stat. L. 1128; April 28, 1904, ch. 1762, 33 Stat. L. 495; March 3, 1905, ch. 1483, 33 Stat. L. 1196. Volume X. |