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6. Concealment of a security granted for a prior debt is a fraud.
7. But advancing money to a person who may become a bankrupt, and may then be insolvent, and taking a security for its repayment, is not fraudulent, unless it be done collusi vely, for the purpose of bestowing a preference. 2 Burr. 931.
And by the 8th section it is provided that no suit at law or in equity shall, in any case, be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued.
See for the details of the subject of this section, Owen, B. L. c. 7.
Sect. 2. of the property which does not pass to the assignee.
[ 30 ] It will be proper to subdivide this section by considering, first, the property which will not pass to the assignee, although it may be in the hands or possession of the bankrupt; and secondly, the property of which he has parted with the possession within a limited time, or protected transactions.
1. Of property which does not vest in the assignee.
[ 31 ] Property which a bankrupt holds as trustee, or in autre droit.
1 P. Wms. 314; 1 Sch. & Lef. 328; 19 Ves. 491; 1 John. Ch. R. 450;
2 S. & S. 346; 3 Mad. R. 28; Owen, B. L. 125; 1 Leigh, N. P. 259; 4 B. & Ad. 393; 1 Mont. & Ayr. 689; 2 Mont. dc Ayr. 349; 4 Dea. dc Ch. 47 ; as executor, 4 T. R. 629; 3 Burr. 1369; 1 Atk. 101, 158; as factor, Cowp. 233; Willes, 400; 1 Salk. 160; 3 P. Wms. 187, note; Bull. N. P. 132; as broker, 1 Leigh, N. P. 261, does not pass to his assignee. Nor does the property
of another of which a bankrupt is in possession with the consent of the owner, at the time of the bankruptcy, for a specific purpose, beyond which he has not the right of disposition or alteration. 3 T. R. 316; 7 T. R. 237; 1 T. R. 370; Dougl. 317; 1 B. & C. 5; 2 Madd. R. 192; 9 B. & Cr. 749.
When goods have been purchased by the bankrupt on credit and have not been delivered to him, but have been sent on, the seller may at any time before they have been delivered, stop them in transitu, and prevent such delivery; in this case the property will not pass to the assignee. 2 Vern. 203; 3 East, R. 397; 3 T. R. 466; Cooke, B. L. 418—442. Vide Stoppage in transitu.
The third section of the act, as already noticed, (§ M,) provides for certain goods for the benefit of the bankrupt, which, if they pass to the assignee, do not vest in him for the benefit of the creditors of the bankrupt.
Rights of action arising ex delicto, do not pass to the assignee. 1 Yeates, 245; 2 Dall. 213.
2. Of protected transactions.
[ 32 ] By section 2, it is provided, that all dealings and transactions by and with any bankrupt, bona fide made and entered into more than two months before the petition made and filed against him, or by him, shall not be invalidated or affected by this act: provided that the other party to any such dealings or transactions had no notice of a prior act of bankruptcy, or of the intention of the bankrupt to take the benefit of this act. As to the manner of computing the two months, see 2 Bell's Com. 178, 5th ed.
By the same section it is provided that any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the states respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act, shall not be construed to be annulled, destroyed, or impaired by this act.
Sect. 3. Of the disposition of the bankrupt's property.
[ 33 ] By section 9, it is enacted, that all sales, transfers, or other conveyances of the assignee, of the bankrupt's property or rights of property, shall be made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy.
Sect. 15, enacts, that a copy of any decree of bankruptcy and the appointment of assignees, as directed by the third section of this act, shall be recited in every deed of lands, belonging to the bankrupt, sold and conveyed by any assignees under and by virtue of this act; and that such recital, together with a certified copy of such order, shall be a full and complete evidence both of the bankruptcy and assignment therein recited, and supercede the necessity of any other proof of such bankruptcy and assignment to validate the said deed; and all deeds containing such recital, and supported by such proof, shall be as effectual to pass the title of the bankrupt of, in, and to the lands therein mentioned and described to the purchaser, as fully to all intents and purposes, as if made by such bankrupt himself immediately before such order.
Chap. 4. of the proceedings in bankruptcy before a decree.
[ 34 ] This chapter will be divided into two parts; in the first will be considered the proceedings in case of voluntary bankruptcy; and, in the second, those in adverse proceedings.
Part 1. of proceedings in voluntary bankruptcy.
This part will be examined by considering, first, when the petition is to be presented; secondly, the
form of the petition; thirdly, of the notice.
Sect. 1. When the petition must be presented.
[ 35 ] The seventh section requires that all petitions by any bankrupt for the benefit of this act, and all petitions by a creditor against any bankrupt under this act, and all proceedings in the case to the close thereof, shall be had in the district court within and for the district in which the person supposed to be a bankrupt shall reside, or have his place of business, at the time when the petition is filed; except where otherwise provided in this act.
Sect. 2. of the form of the petition.
[ 36 ] The form of the petition will be considered in a four-fold view; first, the requisites of the petition itself; secondly, of the form of the schedule of the bankrupt's creditors; thirdly, of the schedule of the bankrupt's property; and, fourthly, of the affidavit.
1. of the requisites of the petition itself.
[ 37 ] The principal requisites are the following.
1. That it be addressed to the proper court having jurisdiction over the bankrupt.
2. That it contain a full description of the petitioner, his name, place of residence, profession or occupation. A mistake, in this respect, will greatly embarrass, if not defeat the applicant. See Cress. Ins. R. 157, 178, 254; 2 Glyn & J. 225, 243.
3. That the applicant is indebted in his private capacity, or otherwise, to sundry creditors, a list of whose names is contained, to the best of his knowledge, in a schedule thereunto annexed.
4. That another schedule, properly marked, contains an accurate inventory of his property, rights and credits, of every name, kind and description, and of the location and situation of each and every parcel and portion thereof.
5. That he prays to be decreed a bankrupt.
6. That he may be decreed to have a certificate of discharge from all his debts provable under the act, and be otherwise entitled to all the benefits thereof.
2. Of the schedule of bankrupt's creditors.
[ 38 ] The act requires that the voluntary bankrupt shall, by petition, set forth to the best of his knowledge and belief, a list of his creditors, their respective places of residence, and the amount due to each. Sect. 1. It is well to distinguish between admitted and disputed debts or claims.
3. of the schedule of the bankrupt's property.
[ 39 ] The act requires that the petition shall contain an accurate inventory of the bankrupt's property, rights and credits of every name, kind and description, and the location and situation of each and every parcel and portion thereof. Sect. 1. When property is encumbered, a particular account of each encumbrance, showing the name of the encumbrancer and the nature of the encumbrance, the date when it was created, and other particulars which may enlighten the assignees, should be given.
This schedule should also contain a list of the persons against whom the bankrupt has claims which would pass to the assignee; and it would be proper to distinguish those which are admitted, from those which are disputed, and the good from the bad. This schedule should also exhibit upon what evidence these claims are founded, whether upon judgment, mortgage, bond, bill of exchange, promissory notice, book account, or otherwise.
4. Of the oath or affirmation.
[ 40 ] The last requisite of the act
in relation to a voluntary petition is that it be verified by the bankrupt's oath, or, if conscienciously scrupulous of taking an oath, by solemn affirmation. Sect. 1.
Sect. 3. of the notice of petition.
[ 41 ] The act, section 7, directs that upon every such petition, notice thereof shall be published in one or more public newspapers, printed in such district, to be designated by the court, at least twenty days before the hearing thereof.
Part 2. Of adverse or involuntary bankruptcy before a decree.
[ 42 ] We have already seen,  that to entitle a creditor to proceed against a debtor in order to procure a decree of bankruptcy against him, it is requisite that the debtor should
1. Be a merchant, or using the trade of merchandise; a retailer of merchandise; a banker, factor, broker, underwriter, or marine insurer.
2. Be owing debts to the amount of not less than two thousand dollars.
3. Have committed one of the acts of bankruptcy enumerated in ,
This part will be divided by considering by whom the petition is to be presented; the form of the petition; and the notice to be given.
Sect. 1. By whom the petition it to be presented.
[ 43 ] The petition is to be presented by one or more of the bankrupt's creditors, to whom he owes debts amounting in the whole to not less than five hundred dollars. Sect. 1. It is proper to consider separately who is a petitioning creditor within the meaning of the act, and the nature of the debt.
1. Who may be a petitioning creditor.
1. [ 44 ] The creditors are either several or joint.
1. Several creditors. In general any person who has a legal debt against a person subject to the bankrupt laws may be a petitioning creditor. A factor who has sold goods to the debtor in his own name, may be a petitioning creditor, unless prevented by the interference of his principal. 4 Campb. R. 195; 6 Esp. R. 191. One of several executors of a creditor may alone petition. 1 Selw. N. P. 255.
2. Joint creditors. When there is more than one joint obligee all must join; one of several partners cannot, therefore, be a petitioning creditor in respect of a partnership debt. 1 Taunt. R. 477; 1 Campb. R. 474. But a petition signed by one partner in the name of himself and partner, was holden to be sufficient legal ground for issuing a commission. 1 Dall. 399.
2. Of the nature of petitioning creditor's debt.
[ 45 ] It will be proper to consider the amount of the debt; its legality; when it was created; when it is payable.
1st. The amount of the debt.
[ 46 ] By the act of congress, on the petition of one or more of the bankrupts' creditors, to whom they owe debts amounting in the whole to not less than five hundred dollars, they may be declared bankrupts. Sect. 1.
In England the following cases have occurred in relation to the amount of the petitioning creditor's debt. A debt of a creditor amounting to a hundred pounds in notes, which he had bought at IN. in the pound, was held a sufficient debt of 1007. 1 P. W. 782. A petitioning creditor's debt which did not amount to 100/. at the time of bankruptcy, but was increased to more than 100/. by a promissory note of the bankrupt, due at the time, being endorsed to him before he petitioned for the commission, it was holden that this debt was sufficient to support the commission. 2 T. R. 499. Interest accruing before an act of bankruptcy, cannot be added to the principal sum due on a bill
of exchange, in order to make up the amount required by the act, unless interest be specially made payable on the face of the bill. Buck, Cas. 412; 8 Taunt. R. 660; 2 B. & A. 305 ; 2 Moore, R. 745.
2dly. It must be a legal debt.
[ 47 ] The debt must be a legal debt; no equitable debt will support the commission. 1 Atk. 147; 2 Ves. 407; 1 P. Wms. 782; Stra. 899. See 3 B. & A. 52; 16 Ves. 256.
3dly. When it must have been created.
'[ 48 ] The petitioning creditor's debt should be created before the bankrupt ceases to be a trader, broker, factor, 6cc.; but if a debt be contracted while he is acting in one of these capacities, and a bond given for it afterwards, it will be sufficient. Peake, 64. The taking a security of a higher nature alter the bankruptcy, for a debt of an inferior nature contracted before, does not so far extinguish the original debt as to prevent the creditor from suing out a commission upon it. Stra. 1042; Cas. Temp. Hard. 267. See also 1 Dougl. 293. The debt must be a subsisting debt at the time of the bankruptcy committed. 1 Campb. R. 48a. It was decided under the bankrupt law of 1800, that a note dated after the passing of the bankrupt law, and written on the back of an account, the last item of which was prior to the date of the law, did not warrant a commission. 1 Yeates, R. 50; 2 Dall. 126.
4thly. When it is payable.
[ 49 ] It must be debitum in present, but a warrant of attorney given as a security against running acceptances is debitum in presenti, which will support a commission. 4 Esp. R. 194. A debt due upon an executory contract is not sufficient; 9 East, R. 498; 6 Esp. R. 55; therefore a contract for goods sold and delivered upon an agreement to be paid for by a present bill, payable at a future day, does not create a present debt upon which a commission can be founded. Id. Sed vide Peake, 54. A promissory note, though in the form of a present debt, given in fact as a security for a contingent debt under a marriage settlement, was holden to be an insufficient debt. 1 Glyn & J. 100.
Sect. 2. To what court the petition must be presented.
[ 50 ] As in the case of a voluntary petition, (see 35) when the proceedings are adverse, the petition against any bankrupt under this act, and all proceedings in the case to the close thereof, shall be had in the district court within and for the district in which the person supposed to be a bankrupt shall reside, or have his place of business when the petition is filed, except where otherwise provided in this act. Sect. 7.
Sect. 3. Form of the petition.
[ 51 ] An adverse petition must
1. Be addressed to the proper court.
2. State the name, place of residence and business of the petitioner.
3. Represent that the bankrupt, (naming him, and stating the county, parish or district in which he resides, and his business,) owes to the petitioner a debt of $500 over and above the interest due thereon, (describing the security by which the same is secured,) and that the petitioner is informed, and verily believes, that the said debtor or bankrupt is now owing debts to the amount of not less than two thousand dollars.
4. Set forth, particularly, what act of bankruptcy has been committed.
5. Pray the court that the said debtor be declared a bankrupt.
6. Be dated, signed, and sworn to before the judge or a commissioner, or other competent officer.
The petition must be supported by an affidavit of the truth of the facts therein stated.
Sect. 4. of the notice of the petition.
[ 52 ] It must be published according to the provisions of the seventh section of the act, as mentioned in .
Chap. 5. of the hearing and decree of bankruptcy.
[ 53 ] This chapter will be divided by considering the hearing and decree in the case of a voluntary bankrupt; and the hearing and decree when adverse proceedings have been instituted.
Sect. 1. Hearing and decree in voluntary bankruptcy.
[ 54 ] At the time and place appointed for the hearing, all the formalities required by the law having been observed, all persons may appear and show cause, if any they have, why the prayer of the petitioner should not be granted, sect. 7; and should it appear to the court that the petitioner for a voluntary decree in bankruptcy has not brought himself within the provisions of the act, the decree will be refused. If, for example, the petitioner owes debts which 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; or if the petitioner was incapable of filing a petition in consequence of some personal disability, as infancy, lunacy, coverture or the like. But unless some such legal objection be interposed, a decree declaring the applicant a bankrupt will be made.
Sect. a. of the hearing and decree under adverse proa edings.
f 55 ] Under a petition by a creditor against a bankrupt, the formalities of the law'having been observed, all persons interested may appear at the time and place when the hearing is to be had, and show cause, if any they have, why the prayer of the petitioner should not be granted. Sect. 7.