ATTACHMENT.
See "Execution"; "Garnishment."
Exemptions, see "Homestead."
been a creditor when the act of bankruptcy charged was committed.-Brake v. Callison (C. C. A.) 201.
A conveyance of property by a debtor to ruptcy, where he had at the time no other creditors.-Brake v. Callison (C. C. A.) 201.
In action by foreign corporation, see "Corpora- creditors cannot be charged as an act of bank- tions," § 5.
ATTORNEY AND CLIENT.
Argument and conduct of counsel at trial in civil actions, see "Trial," § 1. Attorneys in fact, see "Principal and Agent." Signing of specification of objection to bank- rupt's discharge by attorney of objecting cred- itors, see "Bankruptcy," § 10.
1. Compensation and lien of attor-
An insolvent debtor, who fails to pay a law- ful debt when due, and allows the creditor to obtain a judgment thereon and levy on his goods, "suffers and permits" a preference to be obtained through legal proceedings, which con- stitutes an act of bankruptcy, unless the prefer- ence is discharged at least five days before the time fixed for sale under the levy.-Bogen & Trummel v. Protter (C. C. A.) 533.
Evidence to impeach or contradict an alleged bankrupt's appraisal of his goods held erroneous- Attorneys for minority stockholders in litiga-ly excluded on the trial of the issue as to his tion, seeking a sale of the corporation's prop- insolvency.-Bogen & Trummel v. Protter (C. erty to pay liens thereon, held not entitled to C. A.) 533. fees payable out of the proceeds of the property. -Lamar v. Hall & Wimberly (C. C. A. 79.) Attorneys for stockholders in a suit to fore- close liens on a corporation's property held entitled to fees from the proceeds of a sale thereof.-William Firth Co. v. Millen Cotton Mills (C. C.) 141: Southern Cotton Mills & Commission Co. v. Same, Id.; C. E. Riley & Co. v. Same. Id.
Of agent, see "Principal and Agent," § 1. Of court to review its own judgment, see "Judg. ment," § 4.
A merchant charged with bankruptcy, who de- nies insolvency, is required to appear and pro- duce the books, invoices, etc., proper to be kept in such business, to show his financial condition, and his failure to do so without satisfactory ex- planation casts upon him the burden of prov- ing his solvency, under Bankr. Act July 1, 1898, c. 541, § 3d, 30 Stat. 546, 547 [U. S. Comp. St. 1901, p. 3422].-Bogen & Trummel v. Protter (C. C. A.) 533.
Assignees of claims of creditors of a bank- rupt who had come in under an assignment held not entitled to be counted in determining the number of the bankrupt's creditors at the time of the filing of the involuntary bankrupt- cy_petition.-Leighton v. Kennedy (C. C. Â.)
Assignees of claims against a bankrupt, who Conspiracy to defraud by execution of straw had acquired them by assignment from the bail, see "Conspiracy," § 1.
See "Banks and Banking," § 1; "Carriers," § 1. A bailee for hire of services may maintain trespass, trover, or conversion for the disturb- ance of his possession by the wrongdoer, and recover the value of the property as damages. -National Surety Co. v. United States (C. C. A.) 70.
Authority in federal court of state decisions as to character of mortgage by bankrupt, see "Courts," § 7.
Fees of clerk of court, see "Clerks of Courts." Proof of loss insured against by receiver of bankrupt insured, see "Insurance," § 3.
1. Petition, adjudication, warrant, and custody of property-Involun- tary proceedings.
bankrupt's assignee for the benefit of creditors without consideration, held not entitled to be counted in determining the number of the bank- rupt's creditors.-Leighton v. Kennedy (C. C. A.) 737.
An involuntary petition in bankruptcy, by three creditors, will not be dismissed on the application of two of them, against the objec- tion of the third.-In re Lewis (D. C.) 147.
An order of the court consolidating two bank- ruptcy petitions before reference of the case held res judicata as to the necessity of the fil- ing of the second petition. In re McCracken & McLeod (D. C.) 621.
Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], ex- empting a person engaged chiefly in farming or the tillage of the soil from liability to be ad- judged a bankrupt, held not to apply to a cor- poration. In re Lake Jackson Sugar Co. (D. C.) 640.
Evidence held insufficient to establish that a corporation was engaged chiefly in farming or the tillage of the soil, within Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. To entitle a creditor to maintain a petition in St. 1901, p. 3423].-In re Lake Jackson Sugar bankruptcy against his debtor, he must have | Co. (D. C.) 640.
distribution of bankrupt's estate -Appointment, qualification, and tenure of trustee.
Failure of a bankrupt to take steps to re- 3. Assignment, administration, and gain possession of goods removed from the bank- rupt's store by a creditor without the bankrupt's permission, in the absence of collusion, held not to constitute an act of bankruptcy, within Bankr. Act July 1, 1898, c. 541, § 3a, subd. 1, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422]. In re Belknap (D. C.) 646.
A sale of assets by a bankrupt while insolvent in order to obtain funds to pay a creditor threat- ening criminal proceedings, but without any in- tent to defraud other creditors, held not to con- stitute acts of bankruptcy, within Bankr. Act July 1, 1898, c. 541, § 3a, subds. 1, 2, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422].—In re Belknap (D. C.) 646.
Where a landlord's levy under a distress war- rant against his bankrupt tenant did not operate to create a preference, as defined by Bankr. Act 1898, c. 541, § 60, cl. "a," 30 Stat. 562 [U. S. Comp. St. 1901, p. 3446], as amended by Act Cong. Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416], the bankrupt's failure to have the levy released did not constitute an act of bank- ruptcy. In re Belknap (D. C.) 646.
A creditor is not disqualified from filing a petition in bankruptcy because of the receipt of a payment more than four months previous- ly, which, if made within that time, would have been preferential, but is not so under Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended Act Feb. 5, 1903. c. 487, § 13, 32 Stat. 799 U. S. Comp. St. Supp. 1903, p. 416]. -In re Girard Glazed Kid Co. (D. C.) 841.
A rehearing will not be granted, on pretense of reconsidering a case on the merits, but for the real purpose of reviving the petitioner's right of appeal; the time for taking an appeal having expired. If entitled to relief for that purpose, the facts must be shown in the peti- tion. In re Girard Glazed Kid Co. (D. C.) 841.
Warrant and custody of prop-
erty. Proofs of loss under a fire insurance policy running to a bankrupt, who had absconded, may lawfully be made by a receiver appointed by the court of bankruptcy, and expressly au- thorized and directed by the order making the appointment to make such proofs. - Sims v. Union Assur. Soc. (C. C.) 804.
Where an alleged bankrupt gave bond and pledged its property to prevent an attachment in a suit brought within four months prior to the filing of an involuntary bankruptcy peti- tion, such suit would be restrained pending adjudication.-In re Eastern Commission & Importing Co. (D. C.) 847.
A trustee, elected by a majority of the cred- itors of a bankrupt corporation, who had been a stockholder, and who had been previously closely identified with the corporation's man- agement, should not be permitted to serve as against the objections of a dissenting minority. In re Gordon Supply & Mfg. Co. (D. C.) 622. 4.
Assignment, and title, rights, and remedies of trustee in gen- eral.
Where a constable failed to collect a surplus due on an execution sale made by him, he judgment debtor's trustee in bankruptcy.-In was properly ordered to pay the same to the re Geiser (D. C.) 237; In re McGrath, Id.
An inventor's incorporeal interest in an in- vention, pending an application for a patent, does not pass to his trustee in bankruptcy, un- der Bankr. Act July 1, 1898, c. 541, § 70a, cl. 2, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451].- In re Dann (D. C.) 495.
An inventor's incorporeal interest in an in- vention before patent, though transferable un- der Rev. St. § 4895 [U. S. Comp. St. 1901, p. 3385], held not "property," within Bankr. Act July 1, 1898, c. 541, § 70a, el. 5, 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], which passes to the bankrupt's trustee.-In re Dann (D. C.) 495.
Preferences and transfers by bankrupt, and attachments and other liens.
Evidence held to show a voidable preference, and that the claim of the creditor against the estate of the insolvent should be expunged, unless it paid the amount of the preference to the trustee.-Western Tie & Timber Co. v. Brown (C. C. A.) 728.
Under Bankr. Law July 1, 1898, c. 541, § 3445], as amended Act Feb. 5, 1903, c. 487. 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416], a transfer may constitute a prefer- ence, though the property is not conveyed to the preferred creditor.-Western Tie & Tim- ber Co. v. Brown (C. C. A.) 728.
An intention on the part of an insolvent to give a preference is not indispensable to the existence of a voidable preference, under Bankr. Law July 1, 1898, c. 541, § 60, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amend ed Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416].-Western Tie & Timber Co. v. Brown (C. C. A.) 728.
A mortgage given by an insolvent, subse- quently and within four months adjudged a bankrupt, to secure money borrowed at the time, for the purpose of preferring certain of his cred
Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420], conferring bankruptcy jurisdiction on United States Dis-itors, where the lender knew or had reason to trict Courts, held to apply to the powers of re- ceivers and the marshal to take charge of the bankrupt's property in the hands of third per- sons, when necessary for the preservation of the estate. McNulty v. Feingold (D. C.) 1001.
believe that the borrower was insolvent and that such was his purpose, is void under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449].-In re Pease (D. C.) 446.
Claims against and distribu-
No allowance will be made to a general as-1 signee of a bankrupt for his own or his at- torney's services, where they procured the as- signment, which was to the detriment, rather than the advantage, of the estate. In re Cong-ly, without the creditor's knowledge, or the mak- don (D. C.) 478.
Administration of estate.
A court of bankruptcy has jurisdiction to or- der a sale of all the assets of a bankrupt manu- facturing company free from incumbrance.- In re Shoe & Leather Reporter (C. C. A.) 588; In re Flagg Mfg. Co., Id.
To justify an order requiring a bankrupt to pay over money or surrender property to his trustee, it must be clearly shown that he has such money or property in his possession or under his control.-In re Adler (D. C.) 502.
Proceedings to require a bankrupt to sur- render money or property to his trustee should ordinarily be by motion for a rule to show cause, based on evidence brought out in the course of the regular proceedings; formal plead ings being unnecessary. In re Adler (D. C.)
On the question whether a shipment of goods to a bankrupt was pursuant to a sale, or wheth- ed the shipper remained the owner, he has the burden of proof, where the goods were in the actual possession of the bankrupt, and must clearly show his title.-In re Leeds Woolen Mills (D. C.) 922.
One who has obtained possession of goods from a receiver of a court of bankruptcy, who had no right to surrender the same, submits himself to the jurisdiction of the court with respect to all proceedings looking to a restora- tion of the property, and it has power to de- termine its ownership, where that question be- comes incidentally involved.-In re Leeds Wool- en Mills (D. C.) 922.
A court of bankruptcy has jurisdiction to de- termine the ownership of property which was in the actual possession of the bankrupt, and surrendered by him to a receiver appointed in the proceedings; and such jurisdiction is not affected by the fact that the receiver has with- out authority surrendered the property to an- other who claimed ownership.-In re Leeds Woolen Mills (D. C.) 922.
Under Bankr. Act July 1, 1898, c. 541, § 67e, as amended by Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 800 [U. S. Comp. St. 1903, p. 417], a bankrupt's trustee held entitled to main- tain a suit in equity for an accounting in the United States District Court against fraudu- lent transferees of certain accounts.-McNulty v. Feingold (D. C.) 1001.
The entry on the books of a firm of an in- debtedness contracted by one partner individual-
ing of payments thereon by firm checks, cannot convert it into a partnership debt, so as to pre- Iclude the creditor from proving it against the estate of the partner in bankruptcy.-Hibberd v. McGill (C. Č. A.) 590.
Preferences voidable under Bankr. Act July 1, 1898, c. 541, §§ 60a, 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended Act Feb. 5, 1903, c. 487. § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416], are not allow- able as set-offs against claims of the preferred creditor under section 68, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]. - Western Tie & Timber Co. v. Brown (C. C. A.) 728.
Under Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3444], a creditor who had received a preference held not entitled to divide the entire indebtedness according to the notes by which it was evi- denced, and apply the preference to some of them and prove the balance.-Dunn v. Gans (C. C. A.) 750.
A claim of an administrator d. b. n. against the surety on the bond of his predecessor held a fixed liability absolutely owing to the es- tate, as evidenced by a decree of the orphans' court in Pennsylvania, which was provable against the estate of the surety in bankruptcy.— Hibberd v. Bailey (C. C. A.) 575.
A notary public of any state or territory is authorized to administer the oath to a proof of claim, and such oath is sufficiently authenticated prima facie by what purport to be his official signature and seal.-In re Pancoast (D. C.) 643. § 9.
Accounting and discharge of
While a court of bankruptcy has power to re- open the estate of a bankrupt to permit the trustee to maintain an action to recover con- cealed assets, the granting of an application therefor rests in its discretion, and its action will not be reversed, except for an abuse of discretion.-In re Goldman (C. C. A.) 212; In re Gilbert, Id.
Where no trustee of a bankrupt was appoint- ed by creditors, and no meeting held, the fact that more than a year transpired after the closing of the estate did not preclude the court from subsequently appointing a trustee, under Bankr. Act July 1, 1898, c. 541, § 44 (30 Stat. 557 [U. S. Comp. St. 1901, p. 3438], on peti- tion of a creditor.-Clark v. Pidcock (C. O. A.) 745.
§ 10. Rights, remedies, and discharge of bankrupt.
Failure of a bankrupt to keep books showing his true financial condition held no ground for refusing his discharge, under Bankrupt Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], unless such failure was with a fraudulent intent and in contempla- tion of bankruptcy.-Van Ingen v. Schophofen (C. C. A.) 352.
Facts held insufficient to raise a presumption that a bankrupt's failure to properly keep books of accounts showing his financial condition was induced by contemplated bankruptcy.-Van In- gen v. Schophofen (C. C. A.) 352.
A specification of objection to a bankrupt's discharge, under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Cong. Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], for the bankrupt's failure to keep books, held sufficient.-E. H. Godshalk Co. v. Sterling (C. C. A.) 580.
To warrant the withholding of a discharge for failure of the bankrupt to keep books or ree- ords, or for his destruction of them, it must be shown that such failure or destruction was with intent to conceal his financial condition.-In re Allendorf (D. C.) 981.
A specification of objection to a bankrupt's discharge, on the ground that vouchers had been destroyed with intent to conceal the bankrupt's financial condition, held sufficiently specific. E. II. Godshalk Co. v. Sterling (C. C. A.) 580. A specification of objection to bankrupts' dis- The omission by a bankrupt from a state- charge, on the ground that they had made a ment made to a wholesale house of items of materially false statement on which they had liability held not ground for refusing him a dis- obtained credit, which failed to state the sub-charge, under Bankr. Act July 1, 1898, c. 541, stance of such alleged false statement, was $ 14b, cl. 3, as amended by Act Feb. 5, 1903, c. insufficient.-E. H. Godshalk Co. v. Sterling 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, (C. C. A.) 580. p. 411]. for obtaining property by means of a false statement made for the purpose, where the goods obtained and unpaid for at the time of the bankruptcy were not ordered until eight months after the statement was made.-In re Allendorf (D. C.) 981.
Where a bankrupt knowingly concealed cer- tain assets, and made a false oath to his schedules, the fact that he amended the same by including such assets after his acts had
been discovered did not entitle him to a dis- charge. In re Breiner (D. C.) 155.
Where a bankrupt knowingly concealed an interest in his grandfather's estate, and omitted the same from his schedules, to which he made a false oath, he was not entitled to discharge. In re Breiner (D. C.) 155.
§ 11. Appeal and revision of proceedings. An objection that a jurat on specifications of objections to a bankrupt's discharge was in- sufficient cannot be made for the first time on a petition for review.-E. H. Godshalk Co. v. Sterling (C. C. A.) 580.
A bankrupt held entitled under the law of An objection that property of a bankrupt or- Georgia to supplement his homestead exemp-dered to be sold had not been properly inven- tion previously set apart under the statute, up to the limit of value fixed by the statute.-In re Reinhart (D. C.) 510.
Neither a watch and chain, nor a sword and belt, constituting a part of Masonic regalia, are exempt to a bankrupt as wearing apparel under the Vermont statute; nor are the watch and chain exempt as a timepiece, constituting a part of the tools of his trade as a barber, where among such tools there was also a clock; but a hat, although also a part of his regalia, is exempt.-In re Everleth (D. C.) 620.
Specification of objection to bankrupts' dis- charge may be signed by attorneys for the ob- jecting creditors only under exceptional cir- cumstances. In re Milgraum & Ost (D. C.) 827.
Bankr. Order No. 32 held not to prevent sev- eral creditors making the same objections to bankrupts' discharge from joining in the same specification of objections.-In re Milgraum & Ost (D. C.) 827.
Affidavits to specifications of objection to bankrupts' discharge sworn to, "to the best of afliant's knowledge, information, and belief," were sufficiently verified.-In re Milgraum & Ost (D. C.) 827.
toried, not made in the district court, will not be considered on a revisory petition.-In re Shoe & Leather Reporter (C. C. A.) 588; In re Flagg Mfg. Co., Id.
An order fixing an upset price for the assets of a bankrupt corporation, and authorizing pay- ment of a part thereof in bonds secured by mort- gage thereon, will not be reviewed on a revisory petition, where petitioner could not be injured thereby.-In re Shoe & Leather Reporter (C. C. A.) 588; In re Flagg Mfg. Co., Id.
An assignee of a judgment creditor of a bankrupt held a party aggrieved, within Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], and as such entitled to file a petition to review an order de- nying an injunction, but appointing a trustee, under section 24b.-Clark v. Pidcock (C. C. A.)
Where two bankruptcy petitions filed by dif- ferent attorneys for different creditors were consolidated, under General Bankruptcy Order No. 7 (89 Fed. v, 32 C. C. A. xi), a single at- torney's fee should be divided between them, ac- cording to the amount of work done by each.— In re McCracken & McLeod (D. C.) 621.
13. Offenses against bankrupt laws. Bankr. Act July 1, 1898, c. 541, § 29, par. "b," cl. 1, 30 Stat. 554 [U. S. Comp. St. 1901, p. 3433], prohibiting the concealment of as- sets, held not to apply to officers of a bank- rupt corporation.-United States v. Lake (D. C.) 499.
An indictment against a president of a bank- rupt corporation for making a false oath to the schedules of the corporation's assets, in the language of Bankr. Act July 1, 1898, c. 541, § 29, 30 Stat. 554 [U. S. Comp. St. 1901, p. 3433], held not objectionable for failure to specifically allege that the false statement was material.-United States v. Lake (D. C.) 499.
A description of assets of a bankrupt cor- poration alleged to have been omitted from its schedules, in an indictment against its pres- ident, as "one hundred and fifty thousand dol- lars in lawful money of the United States,' held sufficiently specific.-United States v. Lake (D. C.) 499.
BANKS AND BANKING.
Taxation of national banks, see "Taxation," § 1.
§ 1. Functions and dealings.
Where a note payable on demand is given for an overdraft, the bank is entitled to sue
thereon in the same manner as it could have sued for the overdraft.-Hennessy Bros. & Evans Co. v. Memphis Nat. Bank (C. C. A.) 557.
Where monuments called for in a conveyance have been lost or removed, and their original locations are not proved, the courses and distan- ces control the description.-Resurrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A.) 668.
Monuments called for in a conveyance, if standing in their original positions, prevail over courses and distances in case of conflict.-Res- urrection Gold Mining Co. v. Fortune Gold Min- ing Co. (C. C. A.) 668.
A round stake four inches in diameter, set loosely six inches in the ground between two convenient reference points within four feet of it, with two blazes thereon, and an inscription with a lead pencil of the figures "3-2309" on the later blaze, held not to fill the description
Of action by former adjudication, see "Judg- of a post four inches square with the figures ment," § 5.
"3-2309" cut into it, set firmly in the ground. where no reference points are available.-Res- urrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A.) 668.
§ 2. Evidence, ascertainment, and es- tablishment.
Where monuments called for in a conveyance have been lost or removed, the places where they were originally set may be shown by parol. -Resurrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A.) 668.
Parol evidence is incompetent to substitute in a conveyance a call for another monument in the place of the call for the original monument there contained.-Resurrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A.) 668.
Of charter party, see "Shipping," § 1. Of condition, see "Insurance," § 2. Of contract, see "Sales," § 3; "Vendor and Purchaser," § 1.
On appeal or writ of error, see "Criminal Law," § 5.
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