« SebelumnyaLanjutkan »
BALLOT, government, a diminutive ball, i. e. a little ball used in giving votes; the act itself of giving votes. A little ball or ticket used in voting privately, and, for that purpose, put into a box, commonly called a ballot-box, or in some other contrivance.
BAN. A proclamation, or public notice; any summons or edict by which a thing is forbidden or commanded. Vide Bans of Matrimony; Proclamation.
BANC or BANK. The first of these is a French word signifying bench, pronounced improperly bank. 1. The seat of judgment as banc le roy, the king's bench; banc le common pleas, the bench of common pleas. 2. The meeting of all the judges or such as may form a quorum, as, the court sit in banc.
BANE, • this word was formerly used to signify a malefactor. Bract. L 2, t. 8, c. 1.
BANISHMENT, crim. law. A punishment inflicted upon criminals, by compelling them to quit a city, place or country, for a specified period of time, or for life. Vide Deportation; Relegation.
BANK, com. law. 1. A place for the deposit of money. 2. An institution, generally incorporated, authorised to receive deposits of money, to lend money, and to issue promissory notes, usually known by the name of bank notes. 3. Banks are said to be of three kinds, viz. of deposit, of discount, and of circulation; they generallyperform all these operations. Vide Mete. & Perk. Dig. Banks and Banking.
BANK BOOK, commerce, is a book which persons dealing with a bank keep, in which the officers of the bank enter the amount of money deposited by him, and of all notes or bills deposited by him, or discounted for his use.
BANK NOTE, contracts. A
bank note resembles a common promissory note, (q. v.) issued by a bank or corporation authorised to act as a bank. It is in fact a promissory note, but such notes are not, for many purposes, to be considered as mere securities for money, but are treated as money or cash, (q. v.) 1 Sch. & Lef. 318, 319; 11 Ves. 662; 1 Roper, Leg. 3; 1 Ham.R. 189,524; 15 Pick. 177; 5 G. & John. 58; 3 Hawks, 328; 5 J. J. Marsh. 643. These notes are not like bills of exchange, mere securities, or documents for debts, nor are they so esteemed; but are treated as money, in the ordinary course and transactions of business, by the general consent of mankind; and, on payment of them, when a receipt is required, the receipts are always given as for money, not as for securities or notes. 1 Burr. R. 457; 12 John. R. 200; 1 John. Ch. R. 231; 9 John. R. 120; 19 John. 144. Bank notes are assignable by delivery, Rep. Temp. Hard. 53; 9 East, R. 48; 4 East, R. 510 ; Dough 236. The holder of a bank note is prima facie entitled to prompt payment of it, and cannot be affected by the fraud of any former holder in obtaining it, unless evidence be given to bring it home to his privity. 13 East, R. 135; Dane's Ab. Index, h. t.; Pow. on Mortg. Index, h. t.; U. S. Dig. h. t. Vide Note; Promissory note; Reissuable note.
BANK STOCK is the capital ot a bank. It is usually divided in shares of a certain amount, as five hundred dollars, one hundred dollars, and the like. This stock is generally transferable on the books of the bank, and considered as personal property. Vide Stock.
BANKER, comm. law. A banker is one engaged in the business of receiving other persons' money on deposit, to be returned on demand, discounting other persons' notes, and issuing his own for circulation; one who performs the business usually | transacted by a bank. Private bankers are generally not permitted. The business of bankers is generally performed through the medium of incorporated banks. A banker may be declared a bankrupt by adverse proceedings against him. Act of congress of 19 Aug. 1841. See 1 Atk. 218; 2 H. Bl. 235; 1 Mont. B. L. 12. Among the ancient Romans there were bankers called argenlarii, whose office was to keep registers of contracts between individuals, either to loan money, or in relation to sales and stipulations. These bankers frequently agreed with the creditor to pay him the debt due to him by the debtor.
BANKERS' NOTE, contracts. la England a distinction is made between bank notes, (q. v.) and bankers' notes. The latter are promissory notes, and resemble bank notes in every respect, except that they are given by persons acting as private bankers. 6 Mod. 29. 3 Chit. Com. Law, 590; 1 Leigh's N. P. 338.
BANKRUPT. A person who has done, or suffered some act to be done, which is by law declared an act of bankruptcy; in such case he may be declared a bankrupt. This definition does not include voluntary bankrupts who may be declared to be so under their own petitions. It is proper to notice that there is much difference between a bankrupt and an insolvent. A man may be a bankrupt and yet be perfectly solvent, that is, eventually able to pay all his debts; or, he may be insolvent, and, in consequence of not having done, or suffered, an act of bankruptcy, he may not be a bankrupt. Again, the bankrupt laws are intended mainly to secure creditors from the waste, extravagance and mismanagement, by seizing the property out of the hands of the debtors, and placing it in the custody
of the law; whereas the insolvent laws only relieve a man from imprisonment for debt after he has assigned his property for the benefit of his creditors. It is true in the bankrupt law of the United States, to be noticed presently, an unusual clause has been added, which enables a person to become a voluntary bankrupt; in which case the object seems to be to relieve the bankrupt regardless of the benefits of creditors. Both under bankrupt and insolvent laws the debtor is required to surrender his property for the benefit of his creditors. Bankrupt laws discharge the person from imprisonment, and his property, acquired after his discharge, from all liabilities for his debts; insolvent laws simply discharge the debtor from imprisonment, or liability to be imprisoned, but his after-acquired property may be taken in satisfaction of his former debts. 2 Bell, Com. B. 6, part 1, c. 1, p. 162.
This subject will be considered by taking a view of, 1, the courts and officers; 2, the bankrupt; 3, the bankrupt's property; 4, the proceedings in bankruptcy before a decree; 5, the hearing and decree; 6, the proof of debts; 7, the dividends; 8, bankrupt partners; 9, the crimes committed in bankrupt proceedings.
Chap. 1. Of courts, and officers.
Sect. 1. of the district courts.
[ 2 ] The sixth section of the act of congress directs that for the purpose of exercising its jurisdiction in bankrupt cases, the district court shall be deemed always open. Jurisdiction is given to this court in all matters and proceedings in bankruptcy arising under this act, and any other act which may hereafter be passed on the subject of bankruptcy. In considering its jurisdiction, it will be convenient to take a view of its judicial, legislative, and executive capacities.
1. of its judicial jurisdiction.
[ 3 ] The subjects of its judicial jurisdiction will be first examined, and, secondly, the manner of exercising it.
1st. The jurisdiction conferred on this court by the sixth section of the act extends:
To all cases and controversies in bankruptcy arising between the bankrupt and any creditor or creditors, who shall claim any debt or demand under the bankruptcy.
To all cases and controversies between such creditor or creditors, and the assignee of the estate, whether in office or removed.
To all cases and controversies between such assignee and the bankrupt, and to all acts, matters and things to be done under and in virtue of the bankruptcy, until the final distribution, and settlements of the estate of the bankrupt and the close of the proceedings in bankruptcy.
2dly. This jurisdiction is to be ex ercised summarily, in the nature of summary proceedings inequity. And the district judge may adjourn any point or question arising in any case in bankruptcy, into the circuit court for the district, in his discretion to be there heard and determined. Sect. 6.
By the first section of the act, it is provided, however, that any person so declared a bankrupt at the instance of a creditor, may, at his election, by petition to such court within ten days after its decree, be entitled to a trial by jury before such court, to ascertain the facts of such bankruptcy; or if such person shall reside at a great distance from the place of holding such court, the judge in his discretion may direct such trial by jury to be had in the county of such person's residence, in such manner and under such directions as the said court may prescribe and give.
And again, when a majority in number and value of the creditors of the bankrupt, who shall have proved their debts at the time of the hearing of the petition of the bankrupt for a dis
charge, shall, at such hearing, file their written dissent to the allowance of a discharge and certificate to such bankrupt, or if, upon such hearing, a discharge shall not be decreed for him, the bankrupt may demand a trial by jury, upon a proper issue to be directed by the court, at such time and place, and in such manner as the court may order. Sect. 4.
By the eighth section it is enacted that all proofs of debts and other claims shall be open to contestation in the proper court, having jurisdiction over the proceedings in the particular case in bankruptcy, and as well the assignee as the creditor shall have the right to a trial by jury, upon an issue to be directed by such court, to ascertain the validity and amount of such debts or claims; and the result therein unless a new trial shall be granted, if in favour of the claims, shall be evidence of the validity and amount of such debts or claims.
2. of the legislative capacity of the district court.
[ 4 ] In its legislative capacity the court has power:
To prescribe, from time to time, suitable rules, regulations, and forms of proceedings in all matters of bankruptcy; which rules, regulations, and forms, shall be subject to be altered, added to, revised, or annulled, by the circuit court of the same district, and other regulations and forms, substituted therefor; and in all such rules, regulations, and forms, it shall be the duty of the said courts to make them as simple and brief as practicable, to the end to avoid all unnecessary expenses, and facilitate the use thereof by the public at large.
To prescribe, from time to time, a tariff or table of fees and charges, to be taxed by the officers of the court, or other persons, for services under this act, or any other on the subject of bankruptcy; which fees shall be as low as practicable with reference to the nature and character of such services. Sect. 6.
3. Of the executive capacity of the district court.
[ 5 ] In its executive capacity the district court has authority
To appoint commissioners. Sect. 5, 7. And doubtless for gross misconduct or negligence may remove them. 14 Ves. 204; Viner's Ab. Creditor and Bankrupt, O, pi. 3.
To appoint or remove assignees at its discretion, toties quoties. Sect. 3. Sect. 2. of the circuit court. 6 ] For the purpose of hearing determining any point or question arising in any case of bankruptcy which may have been adjourned by the district judge into the circuit court, this latter shall be deemed always open. Sect. 6.
[ 7 ] By the eighth section of the act of congress, it is enacted that the circuit court within and for the district where the decree of bankruptcy is passed, shall have concurrent jurisdiction with the district court of the same district of all suits at law or in equity which may and shall be brought by any assignee of the bankrupt against any person or persons claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt, transferable to, or vested in, such assignee.
[ 8 ] Jurisdiction is given to the circuit court to entertain appeals from the district court; which appeal is to be tried at the first term of the circuit court after it has been taken, unless, for a sufficient reason a continuance shall be granted. It may be heard and determined by the said court summarily, or by a jury, at the option of the bankrupt. This court has power to discharge the bankrupt and grant him a certificate, as provided in the act. Sect. 4.
Sect. 3. of the courts of the Dis,
trict of Columbia, and of the territories of the United States.
[ 9 ] The sixteenth section of the act confers and vests all jurisdiction, power, and authority conferred upon and vested in the district courts of the United States by the act of congress of the 19th of August, 1841, in cases of bankruptcy, upon and in the circuit court of the United States for the District of Columbia, and in and upon the supreme or superior courts of any of the territories of the United States, in cases of bankruptcy, when the bankrupt resides in the said District of Columbia, or in either of the said territories.
Sect. 4. of commissioners of bankruptcy.
 These are officers appointed by the court. Sec. 4, and sections 5 and 7, of the act of Congress. They must reside in the county where the bankrupt lives, when appointed to receive proof of debts, and perform other duties under the provisions of this act. Sect. 5. They are required to perform many important duties, the principal of which are
To take proof of debts and other claims. Sect. 5.
To report to the court.
To examine the bankrupt and report the result to the court.
To examine witnesses in cases of exceptions and to report the evidence to the court. Sect. 4.
Sect. 5. of assignees of bankrupt.
[ 11 ] The assignees are appointed by the court, and may be removed at its discretion.
Sect. 3. They have powers, duties, and are subject to liabilities, which will be separately considered.
1. Of the powi r of assignees.
[ VI ] Among their powers the following may be enumerated:
Generally to administer the property of the bankrupt. Sect. 3, 9.
To allow bankrupt property not exceeding in value three hundred dollars, subject to the supervision of the 1 court. Sect. 3.
To compound debts under the direction of the court. Sect. 11.'
By and under the direction of the court, to redeem or discharge any mortgage or other pledge, or deposit, or lien upon any property, real or personal, whether payable in present or at a future day, and to tender a due performance of the conditions thereof. Sect. 11.
2. Of the duties of assignees.
To give a bond, when required by the court, with at least two sureties, in such sum as it may deem proper, conditioned for the due and faithful discharge of all their duties, and their compliance with the orders and directions of the court; which bond shall be taken in the name of the United States; and shall, if there be any breach thereof, be sued and suable, under the order of such court, for the benefit of the creditors and other persons in interest. Sect. 9.
To prosecute or defend all suits in law or in equity, then pending, in which the bankrupt is a party, to their final conclusion. Sect. 3.
To pay all assets received by him in money, within sixty days afterwards, into court, subject to its order respecting its future safe-keeping and disposition. Sect. 9..
To sell and convey the property of the bankrupt under the orders of the court. Sect. 9.
3. Of the liabilities of assignees. [ 14 ] For any act committed by
him inconsistent with the power delegated to him by law, he is personally responsible; if, for example, he seize or retain the possession of property which is not vested in him, he may be sued by the owner. 2 Stark. R. 354. And he will be liable, in general, for the acts of his agents, 1 Atk. 86; but when he uses sufficient and proper precaution, he will not be held
responsible; as, when he employs a broker to sell goods, who immediately, fails; if, at the time he was employed, he enjoyed a good reputation, and the assignee exercised a due degree of circumspection, he will not be liable. 1 Keny. R. 38; Amb. 218; 1 Atk. 90.
The assignee of a bankrupt, like any other assignee, is liable to the performance of the covenants of a lease of premises of which the bankrupt was lessee, or assignee, while he occupies such premises; but, by assigning the same over, he will be discharged from all future liability. Dougl. R. 183. But he is not bound to take possession, unless the lease will yield some profit to the estate.
Sect. 6. of the clerk of the court.
[ 15 ] The clerk is required by the thirteenth section to keep the records of the court. See § 81.
He is allowed for affixing his name and seal to any form, or certifying a copy thereof, when required thereto, as a compensation, the sum of twentyfive cents, and no more. Sect. 13. And to such fees as are prescribed by the fee bill established by the judge.
Chap. 2. of the bankrupt.
[ 16 ] The act of congress classifies bankrupts into two kinds, namely into voluntary and involuntary bankrupts; and they will be here so considered.
Sect. 1. Of voluntary bankrupts.
[ 17 ] It is enacted by the first section of the act of congress, that there be, and hereby is, established throughout the United States, a uniform system of bankruptcy, as follows: All persons whatsoever residing in any state, district, or territory of the United States, owing debts, which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, who shall by petition sup