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panic. In the year 48 B. C., after the civil war, to call this law by its specious title, although there Julius Caesar suffered debtors to discharge their is a provision contained therein, to facilitate the obligations by transferring all their property at an discharge of debtors unable to raise the necessary appraised value to their creditors. This was termed fees. In practice, the rapacity of clerks, has rendered “cessio bonorum,” and not only exempted the debt- section 51 of the law, a stumbling block, and a source ors from the harsh penalties of the old law, but of scorn, ridicule and contempt to all legally disposed released any property coming into the debtor's pos- persons. The testimony of lawyers proves that the session, subsequently, from liability to execution - assumption of judicial powers by these political apso far only as that portion of the property was pointees is both a wonder and a shame. An appeal requisite for the subsistence of the debtor. One to the court is almost sure to result in humiliation fundamental distinction between the Common Law to the lawyer and the bankrupt. Are not the very and the Civil Law theory of bankruptcy, if the for- motion papers for securing a review of clerical mismer term is permissible in a limited sense, is that doing, first inspected by this functionary in his deleunder the Roman doctrine the property of the bank- gated, proxied, judicial prerogatives? Is it not rupt was vested in the vendee - the Anglo-Saxon financially impossible to carry on appellate proceedconception vests the estate in a trustee. (1)
ings? Verily and the clerk, wily, astute and alert, The distinctions between insolvency and bank- knows this better than any one. Again I reiterate ruptcy, at one time distinctly differentiated, is now the “poor bankrupt,” in these days of civilization practically obsolete. Almost all important countries rescued from the barbarities of Draco and Numa ; to-day possess some form of insolvency or bankruptcy freed from the inherited shadow of the Fleet and the law, and until the millenium, it is fair to presume Marshalsea, in his rights as a freeman seeking the that the polity of most governments and the com- protection of a court, whose jurisdiction is founded mercial prosperity of nations will require some in equity and “ in foro conscientiae," at last ignomeans of relieving individuals from the consequences miniously consigned to, and extinguished in the pomof speculation, rash enterprise and extravagance. posity and tyranny of “clerkdom.” Surely these are Whether it is advisable to have a permanent General but the trappings of justice. Bankruptcy Law like the one that exists at present The origin of the word " bankruptcy,” which one in this country, is a topic bristling with many diffi- writer ascribes to the custom of Florentine mer. culties. Certain it is, that the law enacted in 1898, chants, unable to liquidate their obligations, to suffer was warranted by the condition of the business a “breaking” of their benches or counters, is older world, but undoubtedly the presence of a statute so even etymologically. The Italian, old High German, favorable to the position of debtors is an encourage- Anglo Saxon and French words, “ banca,” signifying ment to the perpetuation of the very condition that bank, “bancarotta,” for bankruptcy, “ benc," " banc," the law was intended to alter. In actual practice it or “banque," were only translations of the classical has encouraged speculation and business temerity in phrases originating from the Latin words mensa,” many instances, as is amply demonstrated by the mensarius — table on which bankers told their money, fact that many persons have repeatedly taken ad- | the latter derivatively, a banker. To become a bankvantage of its provisions, since its enactment. This rupt, in classical Latin, not civil law verbiage, was feature of its operation will doubtless bring about “a mensa surgere,” literally, to rise from the table, an amendment limiting its availability to debtors the Italian custom probably being a corruption or after a first discharge. The method of collecting fees misinterpretation of the ancestral one. - an antiquated relic of medievalism — has unques- Irrespective of etymological history, the examples tionably prevented many honest but unfortunate cited prove the antiquity of the origin of laws redebtors from taking the benefit to which they were specting insolvent debtors. The evolution of such entitled in all morality, expediency and justice. The legislation from the middle ages down to modern fee system is at best, conditionally an evil necessity; times can be found in almost any text-book on the under this law, it has been a source of oppression, subject of bankruptcy. The early legislation of and frequently the only extraneous evidence of the England evinces, of necessity, much crudeness, down lack of uniformity in its application to business un- to the statute of Anne, in the year 1706 (2). This fortunates. In some cases it is actually a misnomer
(2) Mr. Hunter, one of the learned counsel in the (1) Kings, during the Middle Ages, when the neces- case of Sturges v. Crowninshield, traces the evolution sities of a depleted treasury, or the clamor of an of legislation on this subject as follows: impoverished populace, pressed them urgently, seem Coke Litt., 290 B. to show that imprisonment for debt to have had an effective manner of abolishing debts was unknown to the Common Law of England, being
a wholesale basis. As a rule only the Jewish even against Magna Charta. creditors sustained the brunt of this generosity on bridge in 1267 (52 Hen., III, chap. 23), first allowed the part of rulers. Hallam remarks in chap. ix, of imprisonment for debt. In 1283, the statute of Acton his work on the Middle Ages:
He cites 5
The Statute of Marl
Burnel 11 of Edw. I (1283) afforded this remedy to conceive the process of reasoning in an ordinance of foreign merchants. 13 Edw. I (chap. 2) gave same St. Louis, where, 'for the salvation of his own soul remedy against servants, bailiffs, chamberlains and and those of his ancestors, he releases to all Chris- all manner of receivers. The 19 Hen. VII (chap. 9) tians a third part of what was owing by them to gave like process in actions of the case and debt Jews.'"
as in trespass. Statute of 8 Eliz. (chap. 2) restricted
“ One is at a loss to
law eliminated the penal element prevalent in all upon the subject of bankruptcy is almost as absolute previous enactments, provided for the appointment as to give it limitless and plenary discretion. The of a commission by the Lord Chancellor, for a dis- only restriction placed upon this attribute of sovcharge of the debtors person, and after acquired ereignty is as to its uniformity. “To come within property, after he had received “a certificate of con- the constitutional provision a bankrupt law.must be formity," specifying that he had obeyed the statute, uniform throughout the United States." See Day v. and stamped its character upon all subsequent legis- Bardwell (3 Bank Reg., 455, 97 Mass., 246); In re lation. To quote the language of Mr. Bush: “This Dillard (9 Bank Reg., 8). Uniformity has been dehumane enactment has been followed in all subse- fined, after a concrete fashion by many decisions. quent legislation on the subject. It recognized that When the assignee takes in each State whatever the object of the system is two-fold: (1) To dedicate would have been available to execution creditors." the property of an insolvent debtor to the ratable See In re Ruth (1 Bank Rek. Sup., 154); In re payment of his debts; and (2) to grant him a dis- Appold (ibid., 178). The exemptions allowed under charge from his existing obligations, to the end that the various State enactments, are guaranteed by this he may be restored to the activities of life, freed from constituional limitation, although discrepancies in the burdens visited upon him by previous misfortunes amount are immaterial. In re Appold (1 Bank Reg., in business. It may be justly remarked that there is 621). The comprehensiveness of this power granted nothing more to be accomplished by any law on the to congress, a branch of the federal government, subject; all other provisions are matters of detail must be a source of no little difficulty to those more or less effectively designed to accomplish these , theorists who still believe in the inherent sovereignty ends." It may be well to premise before arriving of the States, as independent powers. Such an anomat the discussion of the Law of 1898, that its bearing. alous conception of sovereignty is in no other form machinery and administrative functions ought to be of government logically thinkable. For instance: tested by this criterion of excellence, always remem- The Federal Constitution does not deny to congress bering that no human legislation can be perfect even the power to infringe vested rights, or to violate the in ideal.
obligation of contracts. In re Jordan (Bank Reg., The laws of 1800, 1841, 1867, with amendments 180); In re Kean (ibid., 368); Legal Tender cases thereto, were based substantially upon provisions in (12 Wall., 457). Yet article 1, section 10, of the the enactments of the mother country. The well Federal Constitution, expressly denies this power to known difficulties encountered by judges and lawyers the States (3). The enactment of State insolvent in reconciling the provisions of State laws dealing with the subject of insolvent debtors, with the federal (3) The history of this far-reaching section of the measures passed under the authority conferred by federal Constitution has been told by Bancroft, His
tory of the United States, vol. VI, pages 361-2, paragraph 4 of section 8, article 1, of the Federal delegates from Connecticut had agreed among them. Constitution, have evoked the highest efforts of the selves 'that the legislatures of the individual States most learned judges on the bench. By these de- ought not to possess a right to make any laws for the dis
charge of contracts in any manner different from the cisions the subjects of bankruptcy and insolvency
agreement of the parties.' * . . For the rest, King, as have been freed from scholastic and archaic distinc- we have seen, proposed a clause forbidding the States to tions, and brought down to the level of practical fa- interfere in private contracts; but the motion cility. The famous case of Sturges v. Crowninshield, i been condemned as reaching too far; and instead of 4 Wheat., 198, lessened the material differences it, at the instance of Rutlege, the convention denied
to the States the power * to pass bills of attainder between bankruptcy and insolvency, defining bank- 1 or ex post facto laws.'” In this manner it was supruptcy as “the stoppage and breaking up of business posed that laws for closing the courts, or authorizing from inability to carry it on.” The cases of Morse the debtor to pay his debts by more convenient instal
ments than he had covenanted for, were effectively v. Hovey (1 Barb. Ch., 404, and i Sand. Ch., 187)
prohibited. But Dickinson, as we have seen, after decide that the word “bankruptcy” bears a meaning consulting Blackstone, mentioned to the house that co-extensive with insolvency, being equivalent to that the term ex post facto related to criminal cases only, word in the Constitution. The powers of congress
and that restraint of trade from retrospective law in civil cases would require some further provision,
Before an explanatory provision had been made, the this right to a decree. She issued the proclamation section came into the hands of the committee of April 20, 1585, authorizing certain commissioners to revision and style. That committee had no authority compound controversies and causes. James I, a idea to bring forward any new proposition, but only to by the counsels and pen of Lord Bacon, on the 11th make corrections of style. Gouverneur Morris reta ned of November, 1618, issued a similar, but enlarged the clause forbidding ex post facto laws; and, resocommission, in which the term insolvency is expre:sly lute, not “to countenance the issue of paper money mentioned, and its nature described. Charles I, in 1630, and the consequent violation of contracts,” he 01 issued a similar commission. In 1660 the Republican himself added the words: “No State shall pass lawg Parliament passed an insolvent law like the previous 'altering or impairing the obligation of contracts." The
In the 23rd of Charles II the first great regular convention reduced the explàtory words to the shorter insolvent act was made. About forty acts of insol- form: “No State shall pass any law impairing the vency from that time to 1819, in Great Britain. The obligation of contracts." “In this manner," the his. first Statute of Bankruptcy was passed in 1542, being torian naively remarks, “an end was designed to be the 34th Henry VIII. The 13th Elizabeth and 21st of made to barren land laws, laws for the instalment of James I followed, being the principal statutes.
debts, and laws closing the courts against suitors."
laws discharging the person and after acquired versa, are substantially conciliated. As the essential property is not a violation of the Constitution.” Wil- element of bankruptcy is insolvency, the new law, son v. Matthews (32 Ala., 332); but such provisions in a manner rather subversive of old principles decan have no extra territorial effect. See Ogden v. fines it as follows: "A person shall be deemed Saunders (12 Wheat., 369); Boyle v. Jacharie (6 insolvent within the provisions of this act whenever Peters, 635).
the aggregate of his property, exclusive of any propThe advisability of limiting further the powers of erty which he inay have conveyed, transferred, concongress in this regard, is not now relevant to our verted or removed, with intent to defraud, hinder or inquiry. Upon the whole, no one will be prepared delay his creditors, shall not at a fair valuation, be to deny that this momentous prerogative has been sufficient in amount to pay his debts." This is cerexercised with discretion, wisdom and justice, con- tainly a more practicable rule than the rather equivogress being fully impressed with the grave respon- cal utterances scattered throughout the decisions, and sibility resting upon it. The principle upon which when intelligently and fairly administered, can work the framers of the Federal Constitution proceeded no injustice to the party dgainst whom a petition in limiting the power of the States to enact bank- has been filed. ruptcy laws, has been expressed by Chief Justice This act specifies five acts of bankruptcy, that of Marshall in the case of Sturges v. Crowninshield (4 1867 ten acts. Wheat., p. 199): "The Constitution does not grant Under subdivision (c) of section 3 of the present to the States the power of passing bankrupt laws, act, it is provided that solvency at the time of filing or any other power, but finds them in possession of it, the petition against an involuntary bankrupt is a and may either prohibit its future exercise entirely, complete defense, a provision wisely calculated to or restrain it so far as national policy may require.” discourage persecution and sporadic resort to the In other words, the inherent right of “independent machinery of the courts. and sovereign States " is merged in the Federal Con- Farmers and wage earners are excepted from perstitution, so far as bankruptcy powers are concerned, sons subject to adjudication as bankrupts in involunand as in this case, where the defendant ple"d tary cases, these proceedings being limited to other an action of assumpsit, upon two promissory notes, natural persons, unincorporated companies, and “indated March 22, 1811, the defense of discharge” corporated companies engaged principally in manuunder a State insolvent act of April 3, 1811, the facturing, trading, printing, publishing, or mercantile State has exercised a power expressly forbidden by pursuits, owing debts to the amount of one thousand the Federal Constitution, and the discharge” is dollars or over.” Private bankers are also brought accordingly invalid. There is nothing in this alleged within this provision. doctrine of State sovereignty to prevent the majority Any natural person may become a voluntary of the States under section i of article 5 of the con- bankrupt. stitution, stating the manner of making amendments A partnership may be adjudged a bankrupt during to the Constitution, from "amending? ” the rights the continuance of the partnership business or after of individual States out of existence.
its dissolution and before the final settlement thereof. That, practically, such a course of action would These provisions are unequivocal, except that as ever be adopted by the States, is absurd even imagin- one writer has remarked in reference to the provision atively; it illustrates, however, how fundamentally respecting manufacturing corporations, it would be wrong the opposite conception is in theory.
difficult to say under what heading mining corporaThe National Bankruptcy Act, approved July 1, tions could be placed. 1898, created a wave of discussion throughout the In order to avail creditors of the benefits of this business world. Upon the whole it was generally act, the petition must be filed within four months conceded, that the moment was opportune, and the from the commission of any of the alleged acts of legislation, practically necessitated by extreme exi- bankruptcy. This is required by section 3 of the gency. The bench and the bar of the country were act, subdivision (b). 'agreed as to its general policy, although there had An important decision affecting the interpretation been considerable opposition to various sections, of this part of the law was decided November 28, “some of the opposition even being in favor of strik- 1898, in the United States District Court, Southern ing out the involuntary features of the bill. Such a District of New York, reported in the New York one-sided measure would have reproduced the great- Law Journal for December 6, 1898. This was deest dissatisfaction eventually, and would at first blush cided on a motion to restrain the disposition of a militate against justice and fairness in administra- bankrupt's assets by the assignee, who by an assigntion. The present measure is a result of compro- ment dated November 9, 1898, made by the bankrupt mising the extreme advocates on both sides. Those Henry Gutiwillig, for the benefit of his creditors, who leaned too favorably toward debtors, and vice took possession of the property. On the following
day the petitioning creditors filed a petition asking If this view of the historian be sound, and his authori- for an adjudication of bankruptcy, and praying for ties seem to bear him out, the power of the States to pass insolvent laws, must have been expressly repug.
a restraining order against the assignee until the nant to the framers of the Constitution.
adjudication. Judge Adams delivered the opinion of
the court. After citing sections 3, 4 and 59, of the reasons and citations, laid down these fundamental act of July 1, 1898, declaring such an assignment to propositions: be itself an act of bankruptcy," and authorizing
I. In the absence of statutory grounds, the cases creditors within four months thereafter to file a pe- cited were decided upon the principle that voluntary tition in bankruptcy, and sections 18 and 19, pro- assignments are in effects acts of bankruptcy, fraudviding for notice and subpoena to the debtor, the ulent, not at common law, or under the 13th Elizacourt proceeds: “Section 4 provides that upon an beth, but because they divest the Bankruptcy Court's impartial trial, the debtor may be adjudged an invol- jurisdiction and the creditor's choice of a trustee, untary bankrupt. By sections 55 and 44, a meeting being a fraud upon the act, viz., ipso facto fraud of creditors is required to be held after an adjudi- without regard to the actual intention. cation of bankruptcy, at which a trustee of the bank
II. Section 67, subdivision (e) of the present act, rupt's estate is to be chosen by the creditors, or upon
providing that any transfers made within four their failure to agree, to be appointed by the court. months prior to the filing of the petition“ with intent From the above provisions it is obvious that in
to hinder, delay, or defraud creditors, shall be null every case of involuntary proceedings in bankruptcy, and void," must be construed in the light of the a considerable interval of time, more or less, must previous proposition, viz., “the debtor must be held elapse between the filing of the petition and the to have intended the necessary effect of his act” (4). appointment of a trustee competent to take and
III. administer the estate. If in such cases the assigned
The clause in section 70, providing that the
trustee shall be vested by operation of law with the assets legally belong to the bankrupt's estate, it is the duty of this court, under section 2, sub- title of the bankrupt “as of the date when he was divisions 3 and 15 of the statute, upon suitable appli
adjudged a bankrupt," does not affect the question. cation, either to grant an order restraining the volun- The purpose of that clause was to protect the after tary assignee from disposing of the property in the acquired property of the bankrupt from vesting in meantime, or else to appoint a receiver to take imme- the trustee, also that the trustee takes the previously
acquired property, not when he is appointed trustee, diate possession of it.” The court then laid down the following preliminary
but when the bankrupt is adjudicated such. propositions :
The court alludes to subdivision 4 of the same I. Voluntary assignments for the benefit of cred-section, giving to the trustee property previously
transferred in fraud of creditors, as enforcing its itors, as practiced in this State and others, do not originate in the State statutes, but in the common
position. Motion was denied. law power of the debtor to dispose of his property.
Both the decision and the general discussion by the II. The New York State law of 1860, and subse- court are eminently sound. It is no disparagement to quent acts regulate to a certain extent this power
(4) The case of Bray et al. v. Cobb (U. S. District of distribution and provide various securities Court, Eastern District of North Carolina, decided in therefor.
December, 1898), holds that chapter 3, section 3, sub
section 4, defining acts of bankruptcy, is "made a III. These State measures do cover in part the
general assignment for
creditors," original purpose of bankruptcy laws, namely the irrespective of insolvency.
“ It is equal distribution of the debtor's property among per se an act of bankruptcy." his creditors.
Bros. & Co. v. Geo. M. West Co. (U. S. Dist. Ct., East
ern Dist. of Virginia, January, 1899) Judge Waddill IV. State statutes in permitting preferences to
“A general assignment of one's estate and employes, and creditors at the debtor's option to the effects to trustees constitutes an act of bankruptcy, extent of one-third of the assets are opposed to and the current of authority, both English and Ameriequality of distribution — the aim of bankruptcy the case of Boese v. King (108 U. S., 385), decided under
can, is to the same effect." The court quoted from laws.
the act of 1867. The case of Davis v. Bohle et al. ([In V. A general assignment made under State laws re Sievers), U. S. Circuit Ct. of Appeals, Eighth Cirsimilar to the statute in New York, cannot be con
cult, February, 1899), accords with the New York case.
“ Under an English bankrupt act, sidered “as a proceeding commenced under State which made it an act of bankruptcy if a person exeinsolvency laws" within the meaning of the last para- cuted any fraudulent conveyance or transfer with graph of the act of 1898. The question raised by the intent to defeat or delay his creditors, it was repeatmotion must be decided upon general bankruptcy edly held that a voluntary assignment by a debtor
of his whole estate for the equal benefit of all his principles and the other provisions in the present law.
of bankruptcy, In answer to the contention of the assignee that because such a conveyance was fraudulent in fact, there exists no provision in the Bankruptcy Act, but because it was constructively fraudulent, and in making assignments voidable unless made with intent violation of the Bankrupt Act, in that it provided for
a different mode of administration upon the effects to defraud creditors, and the assignee to contention of the insolvent debtor than that contemplated by that by section 70 of the act itself, “the trustee takes the act.” The case of In re Theodore E. Curtis et al. the estate of the bankrupt as of the date he was ([Bank of Waverly), U. S. District Ct., Southern Dist. adjudged a bankrupt," the assignee thereby arguing of Illinois, January, 1899), also harmonizes with these
See, also, case of Chemical National Bank v. that as the property was assigned previously, the Meyer & Dickinson (U. S. Dist. Ct., East. Dist. of trustee could not take title, the court, after giving its N. Y.), where this case was cited and approved.
the benefit of
In the case of Lea
The court held:
say that the propositions enunciated are almost self- 151), decided that the concealment or destruction of evident legally and from the standpoint of business books, prior to the passage of the Bankruptcy Act, common sense. Any other interpretation would have was not “in contemplation of bankruptcy" under been the signal for amending the law, so as to set at section 14, subd. “b” of the act (5). rest any doubtful or technical constructions. The In re Price et al., U. S. Dist. Ct., Southern District leading decisions under the act of 1867 accord with of New York, February 2, 1899, it was decided that, that of the court in this case, and the English de- | under section 58 of the act, providing for the notice cisions while from the general principles of equity by mail of ten days, to all creditors, thereafter "the jurisprudence perhaps hostile to a part of the court's published and mailed notices of application for a cpinion, are yet under the exceptions made by the discharge should contain a notice of examination of decisions after the enactment of Insolvent Debtors' the debtor to avoid the necessity of further notice Acts, harmonious.
to all creditors in case such an examination should Another important decision by the same court, as be allowed.” Only one examination is to be ordito the status of mechanics' liens under the Bank-narily allowed. ruptcy Law, reported in the New York Law Journal In re Kletchka, U. S. Dist. Ct., Southern District for December 19, 1899, holding that mechanics' liens of New York,, February, 1899, it was decided that, even if perfected by a compliance with the prere- under section 67, subd. (C), of the act providing that quisite statutory provisions, are dissolved by a liens obtained through supplementary proceedings petition filed in involuntary bankruptcy, within four within four months should be dissolved by the adjumonths after the filing of the liens, was squarely dication, the court could, under the powers conferred overruled in the United States Circuit Court of by section 2, subd. 15, make “such orders as are Appeals, Wallace, circuit judge, delivering the necessary for that purpose” (6). opinion of the court.
In re Adolf Friedman, U. S. Dist. Ct., Southern
District of New York, March 1899. In this case a The argument of the lower court that under the New York Mechanics’ Lien Law, requiring the filing motion was made by a creditor of the bankrupt, that of a notice in the office of the County Court, in order the trustee pay his claim in full out of the assets. to perfect the lien, the lien thus obtained being The ground of the motion was a lien of an attachwithin the express terms of section 67 of the Bank- ment issued in a suit brought by the creditor against
the bankrupt and levied on a stock of merchandise, ruptcy Law, as a lien created or obtained through December 8, 1898. A petition in involuntary banklegal proceedings,” and therefore voidable by the trustee in bankruptcy, was disposed of by the Appel- 28th, a receiver in bankruptcy was appointed. On
ruptcy was filed December 14, 1898. On December late Court, as follows:
January 6, 1899, Friedman was adjudicated a bank“A legal proceeding is any proceeding in a court rupt. February 10, 1899, the receiver was elected of justice by which a party pursues a remedy which
trustee. Subsequently, appraisers were appointed the law affords him. The term embraces any of the who appraised the assets and the stock of merchanformal steps or measures employed in the prosecution dise. Thereafter the merchandise being sold at or defense of a suit. In the section it obviously auction, the trustee held the proceeds of the sale. refers to the use of judicial process, the phraseology On the date of the filing of the petition, a motion being “levies, judgments, attachments or other liens was made to discharge the attachment, which was obtained through legal proceedings.” The filing of denied by the State court. The creditor had proved notice of a mechanic's lien has no necessary relation his claim as an unsecured debt. The trustee claimed to the initiation or prosecution of a suit. The filing that this act constituted a waiver of any claim under is essential in order to maintain the action to fore- the attachment. The creditor applied for leave to close the lien, because otherwise the lien does not withdraw his proof, no dividend having yet been attach, but it is no more a preliminary step in the declared. The referee decided that der ch cirsuit, than is the protesting of a note in a suit against cumstances the proof of claim is not to be deemed the indorser. It is a proceeding of the same kind as irrevocable election, and that the creditor should as filing a chattel mortgage or recording a deed.” be permitted to withdraw his proof (7). The case of Coulter (2 Saw., 42; 6 Fed. Cas., 637) under the old act, upheld the validity of mechanics'
(5) This decision properly overruled a liens, although in the Matter of Cook et al. (3 Biss., had considerably confused the ideas of
cases holding a contrary view. The previous cases
insolvency" 116; 6 Fed. Cas., 381), the court decided that the and 'bankruptcy." lien claimant could not institute proceedings in the (6) Johnson v. Rogers, 15 B. R. I.; 13 Fed. Cases, 794; State courts after a petition in bankruptcy had been In re Pitts, 9 Fed. Rep., 542; Olney v. Tanner, 10 Fed. filed, the court in bankruptcy upholding the claimant's Rep., 101, 113. rights under the lien.
(7) This opinion seems to be in harmony with the
best previous authorities, notwithstand the fact that The purpose of the act to protect the liens of me- a number of cases decided under the act of 1867 conchanics and materialmen is far-sighted and humane. tained contrary expressions. In re Jaycox et al., et
In the Matter of Isidor Stark, U S. Dist. Ct.. N. B. R., 241, 13 Fed. Cases, 409, it was held that if Southern Dist., N. Y., March, 1899, the referee fol- in ignorance of the fact that he is secured, he should
a creditor had proved his claim as an insecured debt, lowing the case of Buckingham v. McLean (13 How., be allowed to withdraw his proof and prove as a