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not supersede a commission, if the infant had held himself out as an adult, but left him to his remedy at law. This practice has not been adopted here.2 At law the proceedings were held voidable, and he could recover at least nominal damages. In this country the adjudication in bankruptcy is conclusive in collateral actions, and the court of bankruptcy should amend all proceedings which would be voidable at law. A court of bankruptcy or equity in either country would probably refuse to interfere after an estate had been settled; so that the affairs could not be restored to their original condition, or where the bankrupt had omitted to avail himself of a right of appeal.5

§ 17. Whether the Debtor can ratify after attaining Majority. - By a recent statute in England all contracts of infants for money lent or goods sold, except contracts for necessaries, are made absolutely void, and incapable of ratification. Trading is not now a holding out which makes an infant liable to be or be made a bankrupt, although whether a fraudulent representation by a person who appears to be of full age will be sufficient is left doubtful. A judgment by default against a debtor, after he came of age, is not a good petitioning creditor's debt; and a conviction of an infant for defrauding his creditors in bankruptcy will be quashed, if there is no evidence of indebtedness for necessaries.7

In this country neither of the decisions would be followed; because the judgment would be a ratification, and because the adjudication could not be impeached collaterally.8

Atk. 146; Ex parte Henderson, 4 Ves. 5 See Ex parte Moule, 14 Ves. 602; 164; Ex parte Barwis, 6 Ves. 601; Ex Re West, 3 De G. M. & G. 198; Re parte Hehir, 3 Dea. & Ch. 107; Ex Mew, 2 Ch. D. 320; Ex parte Proudparte Lees, 1 Dea. 705; Farris v. Rich- foot, 1 Atk. 252. ardson, 6 Allen, 118; Re Derby, 6 Ben. 232, Fed. Cas. No. 3815; McLean v. Dummett, 22 L. T. N. s. 710. See Lovell v. Beauchamp (1894), A. C. 607. 1 Ex parte Watson, 16 Ves. 265; Ex parte Bates, 2 M. D. & De G. 337; Ex parte Unity Bank, 3 De G. & J. 63.

2 See Re Derby, 6 Ben. 232, Fed. Cas. No. 3815.

8 See note 6, p. 11.

4 See cases in note 6, p. 11.

6 Ex parte Kibble, L. R. 10 Ch. 373; Ex parte Jones, 18 Ch. D. 109; overruling Ex parte Lynch, 2 Ch. D. 227, but intimating that Ex parte Unity Bank, 3 De G. & J. 63, may still be law. See Ex parte Lees, 1 Dea. 705.

7 Queen v. Wilson, 5 Q. B. D. 28; Re Beauchamp Bros. (1894), 1 Q. B. 1. See Lovell v. Beauchamp (1894), A. C. 607.

8 Winchester v. Thayer, 129 Mass.129.

Whether proceedings actually begun against an infant can be ratified by him after he is of age has been mooted. If the • ratification would injure innocent third persons, the courts would probably refuse to recognize it. If there were no intervening equity, it would seem that it might validate the proceedings.2

3

§ 18. Insane Debtor. A debtor who is lunatic and incapable of contracting cannot commit an ordinary act of bankruptcy; but if, while sane, or in a lucid interval, he has committed such an act, he may be proceeded against while insane, if he is duly represented by a guardian or committee. The technical act of bankruptcy which consists of filing a voluntary petition may, it seems, be done by his guardian or committee in the interest of equality among his creditors.5

§ 19. Undischarged Bankrupt. A second petition in bankruptcy, while proceedings are pending under an earlier one, and when the bankrupt has not been discharged, is nugatory, and will not be sustained, if it merely affect the same debts and the same property which are comprehended in the pending case. The application of this principle is more extensive in England than here, because there the assignees have a right to take all the after-acquired property of an undischarged bankrupt until the proceedings are closed, so that there can be no assets in the second bankruptcy except by estoppel; and it was until lately held that there could be no valid bankruptcy without assets to administer; but in later cases a second or third bankruptcy is upheld for what it may be worth.

1 Re Derby, 6 Ben. 232, Fed. Cas. 183; Re Lee, 23 Ch. D. 216, Willis, No. 3815. Re James, 12 Q. B. D. 332.

2 Winchester v. Thayer, 129 Mass. 129, 133, per Gray, C. J.

8 Ex parte Priddey, Cooke (7th ed.), 43; Ex parte Stamp, 1 De G. 345; Re Marvin, 1 Dillon, 178, Fed. Cas.No. 9178. 4 Anon., 13 Ves. 590; Re Pratt, 2 Lowell, 96, Fed. Cas. No. 11,371. See Ex parte Farr, 10 L. T. N. s. 44; Re Weitzel, 14 N. B. R. 466, Fed. Cas. No. 17,365; doubting Re Murphy, 10 N. B. R. 48, Fed. Cas. No. 9946.

6;

6 Re Stewart, 3 N. B. R. 108, Fed. Cas. No. 13,419; Ex parte Sydney, L. R. 10 Ch. 208. [See Re Clark (1894), 2 Q. B. 393, where it was held that creditors under a second bankruptcy acquired no rights against the trustee under the first bankruptcy by dealing with the bankrupt without the knowledge of the trustee.]

7 Morgan v. Knight, 15 C. B. N. s. 669; Ex parte Watson, 12 Ch. D. 380;

5 See Ex parte Cahen, 10 Ch. D. Ex parte Butler, 2 M. D. & De G. 731.

If, however, it is shown that a better result will be reached for the creditors, the earlier petition may be stayed, and the later be permitted to proceed.1 If the first case is pending in a different judicial district within the general jurisdiction of the United States, the second may be retained until it is found which will be the more convenient forum.2 If the first case is pending in a country foreign to that in which the second case is begun, and there is reason to suppose that a domestic adjudication will be useful, it may be granted, valeat quantum; otherwise, if there is nothing to be gained by it. So where the first case is by or against only some members of a firm, and the second concerns them all, a joint decree may be rendered for what it may be worth.5

A bankrupt, in this country, may acquire property during his bankruptcy, subject only to the usual legal remedies by his new creditors; and by his old creditors, too, if he should not obtain his discharge; and it is not necessary that a bankrupt should have any assets. If, therefore, a bankrupt who has not obtained his discharge contracts fresh debts to the requisite amount, or acquires fresh property, a second bankruptcy will be valid. In such case the creditors whose debts are provable under the first proceedings are not affected by a discharge acquired under the second, unless they elect to come in and prove. If they do prove, they will be bound by the discharge, if obtained.

1 Ex parte Taylor, 6 De G. M. & G. 737; Ex parte Louch, De G. 463; Ex parte Roberts, 3 De G. F. & J. 747; Ex parte Wieland, L. R. 5 Ch. 486; Re City & County Bank, L. R. 10 Ch. 470; Ex parte Squire, L. R. 4 Ch. 47; Ex parte Walton, L. R. 10 Ch. 215; Ex parte Dimond, L. R. 5 Ch. 743.

2 Re Wielarski, 4 N. B. R. 390, Fed. Cas. No. 17,619. See Act of 1898, § 32, and Rule VI., infra, § 495. Re Flanagan, 18 N. B. R. 439, Fed. Cas. No. 4850.

Re McCulloch, 14 Ch. D. 716; Lyall v. Jardine, L. R. 3 P. C. 318.

Re Robinson, 22 Ch. D. 816.

5 Re Jewett, 15 N. B. R. 126, Fed. Cas. No. 7306.

Fisher v. Currier, 7 Met. 424; Gilbert v. Hebard, 8 Met. 129; Shelton v. Codman, 3 Cush. 318; Whitney v. Willard, 13 Gray, 203; see, per James, L. J., Re Watson, 12 Ch. D. 380, 382; Re Drisko, 2 Lowell, 430, Fed. Cas. No. 4090; affirmed, 14 N. B. R. 551, Fed. Cas. No. 4086. See under an early law which resembled ours, Hovil v. Browning, 7 East, 154; Todd v. Maxfield, 3 B. & C. 222; Van Ingen v. The Justices, 166 Mass. 128-130.

§ 20. Aliens. Strangers were in terms made subject to the bankrupt law of England by 21 Jac. I., c. 19, § 15. This was construed to mean persons who had traded in or to England and who had property there.1 By the statute of 1883, § 6, no alien can be made bankrupt who has not had a dwelling-house or place of business in England.2 This does not mean that every one who has had such residence or place of business may be made bankrupt. Upon general principles of international law no foreigner can be so dealt with by a notice. served upon him out of England, unless, perhaps, if he has committed an act of bankruptcy within the kingdom.3

The general rule with us is that any permanent resident may be made a bankrupt; and in Massachusetts and Maine there are recent statutes, by the former of which foreign corporations having property and a place of business in the State are made subject to the law in respect to such property; and in the latter non-residents are, by implication, at least, included in the description of persons so subject.

§ 21. Partners. When partners, or any two or more of them, are insolvent, they may petition jointly; or some or one of them may petition, and require the others to be summoned. If any of the respondents are not insolvent, the petition as to them is to be dismissed.7

1 Bird v. Sedgwick, 1 Salk. 110; Doddesworth v. Anderson, Raym. 375; Ex parte Williamson, 1 Atk. 81; Williams v. Nunn, 1 Camp. 152, 1 Taunt. 270; Ex parte Smith, Cowp. 403; Alexander ". Vaughan, Cowp. 398; Allen v. Cannon, 4 B. & A. 418. See infra, $465.

2 [But if he be subject to commitment under the Debtors' Act of 1869, a receiving order may be made against him if he be served with process in England. Re Clarke, 4 Manson, 231.]

3 Ex parte O'Loghlen, L. R. 6 Ch. 406; Ex parte Pascal, 1 Ch. D. 509; Re Gutierrez, 11 Ch. D. 298; Ex parte Crispin, L. R. 8 Ch. 374; Ex parte Blain, 12 Ch. D. 522; Ex parte Robinson, 22 Ch. D. 816; Ex parte Pearson

(1892), 2 Q. B. 263. See also Re Hecquard, 24 Q. B. D. 71; Re Duleep Singh, 7 Morrell, 228; Re Nordenfelt (1895), 1 Q. B. 151.

4 Judd v. Lawrence, 1 Cush. 531; Re Goodfellow, 1 Lowell, 510, Fed. Cas. No. 5536; Re Boynton, 10 Fed. Rep. 277; Phelps v. McDonald, 99 U. S. 298.

5 Stat. 1890, c. 321; Buswill v. Iron Hall, 161 Mass. 224; Kelley v. Lumber Co., 167 Mass. 28.

6 Stat. 1891, c. 109; Stetson v. Hall, 86 Me. 110; Peabody v. Stetson, 88 Me. 273; Chipman v. Peabody, 88 Me. 282.

7 Re Penn, 5 N. B. R. 30, Fed. Cas. No. 10,927; Re Bennett, 2 Lowell, 400, Fed. Cas. No. 1314; Act of 1898, § 5, infra, § 468.

§ 22. Retired Partner. - Partnerships continue for the purposes of the act, after a voluntary dissolution, until the joint affairs are settled. All the courts held that a retired partner remained liable to proceedings so long as joint assets remained undisposed of, and most of them so long as joint debts were outstanding.2 The words of the late law included both categories.

Whether a partner already adjudged bankrupt can petition against or for the firm, quære. It has been held that his assignees may.4

§ 23. Surviving Partner. Where one of two partners has died, the survivor may be made bankrupt, both as an individual and as surviving partner, and his assignees will have the right to recover partnership property from the heirs or representatives of the decedent. In administering the affairs, the assignees are to marshal the assets between joint and separate creditors, as if all were living. In one of the States the administrator has by statute the right to wind up the affairs.8

Where a

§ 24. Special, Dormant, and Nominal Partners. special partner has failed to comply with the terms of the law, and thereby becomes liable as a general partner, he may, at the election of the creditors, be included in a petition against the firm. Persons held out to the world generally as partners,

1 Act of 1898, § 5 a, infra, § 468. 2 See Parker v. Phillips, 2 Cush. 175; McDaniel v. King, 5 Cush. 469; Re Crockett et al., 2 Ben. 514, Fed. Cas. No. 3402; Re Noonan, 3 Biss. 491, Fed. Cas. No. 10,292; Re Williams, 1 Lowell, 406, Fed. Cas. No. 17,703; Re Grady, 3 N. B. R. 227, Fed. Cas. No. 5654; Re Greenfield, 5 Ben. 552, Fed. Cas. No. 5772; Re Crockett, 2 N. B. R. 208, Fed. Cas. No. 3402; Re Foster, 3 Ben. 386, Fed. Cas. No. 4962; Hopkins v. Carpenter, 18 N. B. R. 339, Fed. Cas. No. 6686.

8 Dearborn v. Keith, 5 Cush. 224. Shumate v. Hawthorne, 3 N. B. R. 227, Fed. Cas. No. 5654.

v. Merrick, 4 Met. 537; Howard v.
Priest, 5 Met. 582; Rice's Case, 7
Allen, 112; Briswalter v. Long, 14
Fed. Rep. 153; Adams Bank v. Rice,
2 Allen, 480; Durgin v. Coolidge, 3
Allen, 554; Re Stevens, 1 Sawyer, 397,
Fed. Cas. No. 13,393; Ex parte Leaf,
Mont. & Ch. 662.

6 Burnside v. Merrick, 4 Met. 537; see note 5.

7 Ibid.

8 Re Daggett, 8 N. B. R. 287, 433, Fed. Cas. Nos. 3535, 3536; s. c. nom. Re Sectional Dock Co., 3 Dillon, 83, Fed. Cas. No. 12,606.

9 Lancaster v. Choate, 5 Allen, 530; Re Merrill, 12 Blatch. 221, Fed. Cas.

5 Re Simpson, 1 Atk. 137; Burnside No. 9467.

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