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port valuing the property destroyed at and making the companies liable for about $9000.00 on $20,000.00 face value of insurance policies, to the payment of a fair amount of which the bankrupt's officers had looked for money to meet all of its obligations and resume business. The bankrupt refused to accept the adjustment as binding upon it and brought suit against the insurers. Its counsel, however, realizing the binding force of the adjustment, joined in by the bankrupt's own appraiser, and feeling that recovery of a larger amount was under the law in the face of such adjustment, impossible, convinced the bankrupt's officers that they had no choice but to accept the amount so fixed, which, of course, left the bankrupt insolvent. The facts just detailed developed, as I understand the evidence, after May 28th, the date of the assignment. At that time the bankrupt's officers believed themselves justly entitled, and expected, to receive insurance money considerably in excess of liabilities.

Viewed in this light, the transaction falls properly within the rule indicated in Hill vs. Standard Tel. Mfg. Co., 9 Dist. Rep. 445, where the court, citing Cowan vs. Penna. Plate Glass Co., 184 Pa. 1, Neal's App. 129 Pa. 64, and Mueller vs. Monongahela Fire Clay Co. 183 Pa. 450, says:

"Where an officer or director, who is a creditor of an insolvent corporation, manages to have his claim preferred over those of other creditors whose debts are equally meritorious, the presumption of equity is that he has taken an unfair advantage of his special knowledge and special power to save himself to their prejudice; and if he would escape the consequence of this presumption and hold his preference, he must rebut it by showing that the circumstances of the transaction make it just and right that he should be paid before the other creditors. *** The presumption of fraud will not arise, of course, unless at the time the security is taken or the payment is received the corporation is insolvent."

If the bankrupt's officers knew on May 28, 1915, or had been advised by their counsel that the Company was, right or wrong, irretrievably committed to an adjustment binding it to a settlement of a little over $9000.00, with no hope of ever by action at law recovering more on policies calling for $20,000.00 the result would be entirely different, and the decision would. have to be against the validity of the assignment, following the conclusion reached in Hill vs. Standard &c. Co., supra.

This memorandum might end here, were it not for another element in the case which must be considered. The fund can properly be awarded to the claimants only insofar as they act for one or more of their cestuis que trustent as creditors of the bankrupt, endeavoring to assert through their trustees, the claimants here, their equitable lien on it. That is to say, Wolfinger is liable for having accommodated the bankrupt and

is, through trustees for himself and others, asserting a claim against money in the hands of the bankrupt's trustee which was pledged to them to secure him against loss by reason of such liability. To obtain standing in court so as to assert such claim, it is a condition sine qua non that Wolfinger prove his claim like any other creditor in his position. No claim upon the funds under the court's control can be recognized without a proof of debt before it. Is Wolfinger's claim a provable debt though he is only liable to pay for accommodating the bankrupt but has not yet in fact paid? There is no doubt of it under the authority of Swarts vs. Stiegel, 8 A. B. R. 689, 117 Fed. Rep. 30, and kindred cases, which hold that the debt of a principal debtor to his accommodation maker before the latter has paid the obligation is a contingent liability founded upon contract, and, falling directly within the meaning of Sec. 63 (4) of the bankrupt law, may be proved and allowed against the bankrupt's estate. This puts him in a position to receive that portion of the estate which is found to belong to him at such time when he, upon making good his undertaking by payment, classifies himself as a creditor having a claim on which the liability of the bankrupt has thus become fixed. Then we have Sec. 57 (i) which provides that "whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and, if he discharge such undertaking in whole or in part, he shall be subrogated to that extent to the rights of the creditor," which has been held to include an accommodation maker.

It is, of course, plainly implied, where not expressed by the act, that no distribution is to be made upon a claim proving a debt or liability of this character until the creditor dis. charges the obligation in whole or in part, and, accordingly, no such creditor may be permitted to realize on rights he may have upon funds in court until he has not only proved his claim but wholly or partly discharged the obligation on which the claim is founded. Thus the order to be entered on the claim of the trustees named in the assignment, allowing their claim for the balance of money received by the bankrupt's trustee on the assigned policies and now in the latter's hands, must be conditioned on the cestuisque trustent filing proofs of their claims and showing payment to the holder of the notes involved to the extent of at least $3409.81, the amount of the fund over the disposition of which this litigation has arisen.

End of Volume Nine.

INDEX

ACTS OF ASSEMBLY CONSTRUED.

1810, March 20, 5 Sm. 172, Sec. 26.
NER vs. CRAIG, 183.

Affidavit of Claim. WER-

Poor Directors.
POOR, 27.

BINGAMAN

1824, March 29, P. L. 200, Sec. 6.
vs. DIRECTORS OF THE
1832, March 15, P. L. 146, Sec. 41. Wills. McGINLEY'S EST., 67.
1864, March 17, P. L. 53, Sec. 1. Executors. NAGLE'S EST., 190.
1864, April 27, P. L. 641. Partition. REIFSNYDER ET AL. vs.
REIFSNYDER ET AL., 50.

1866, May 17, P. L. 1096. Dower. KINTZER'S EST., 152.
1887, May 23, P. L. 158, Sec. 5. Witnesses. O'REILLY
READING TRUST CO., 110.

VS.

1893, April 6, P. L. 10. Incorporation of Beneficial Society. IN
RE PA. STATE CAMP PATRIOTIC ORDER OF AMERI-
CANS, 17.

1895, June 29, P. L. 403. Control of Fiscal Affairs of County.
BINGAMAN vs. DIRECTORS OF THE POOR, 27.
1901, June 4, P. L. 364. Municipal Liens. BORO. OF WEST
READING vs. SCHLEGEL ET AL., 169.

1901, July 9, P. L. 614. Service. HAAG ET AL. vs. MT. LAU-
REL SPRING WATER CO., 46.

1906, March 5, P. L. 78, Sec. 3. Election Laws. DIETRICH vs.
DUNKELBERGER, 179.

1907, March 22, P. L. 29. Dower. KINTZER'S EST., 152.
1909, May 6, P. L. 452. Municipal Liens. BORO. OF WEST
READING vs. SCHLEGEL ET AL., 169.

1910, June 4, P. L. 404, Sec. 17. Assignment for Benefit of Cred-
itors. WERLEY vs. MADEIRA, 188.

1911, School Code. Public Playgrounds. STAAB ET AL. vs.
READING SCHOOL DISTRICT ET AL., 173.
1913, May 28, P. L. 358. Equity. THALHEIMER vs. HOSIERY
CO., 57.
1915, Practice Act. Affidavit of Defense. LINCOLN vs. READ-
ING ELECTRIC CO., 133.

1915, Practice Act, Sec. 5. Statement. BULLOCH ET AL. vs..
METACOMET HOME ASSOC., 161.

1915, Practice Act, Sec. 20. Practice, C. P.

DIRECTORS OF THE POOR, 27.

BINGAMAN vs.

1915, Practice Act, Sec. 20 and 21. BARTO vs. SHAFFNER, 20.
1915, Practice Act, Sec. 21. Affidavit of Defense. KEISER vs..
COUNTY OF BERKS, 132.

AFFIDAVITS OF DEFENSE (See Practice, C. P.)

AGENCY (See Principal and Agent).

ALIENATION OF AFFECTION.

1. Gist of the Action.

The gist of an action for damages for alienation of affection
being the loss of the affection and society of the spouse, it may be
predicated upon the averment of both seduction and alienation_by
other means. BARTO vs. SHAFFNER, 20.

ASSIGNMENTS.

1. Assignment of Interest in Real Estate. NIES vs. NIES'
EXTRX., 85.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

1. Deed of Assignment-Exemption-Assignee's Account-Ex-
ceptions by Creditors-Laches.

Where in making an assignment for the benefit of creditors the
assignor in the deed reserves "so much as is exempt from levy
and sale on execution," and promptly thereafter appraisers, ap-
pointed by the court on the assignee's petition, set aside personal
property to the value of $300 elected to be retained by the as-
signor, a creditor holding notes of which the assignor was maker
and in which the right to exemption was waived, has no standing
to file exceptions to the account of the assignee one year and four
months after it was filed on the ground that the assignee had not
accounted for the property that had been appraised and set apart
to the assignor.

The reservation of exempt property in a deed of assignment for
the benefit of creditors is notice to creditors of the claim of the
assignor. IN RE ASSIGNED EST. OF KEINE ET AL., 136..

2. Insolvency Act 4 June, 1910, P. L. 404, Sec. 17-Right to
Sue Assignee Without Leave of Court.

The Insolvency Act of 4 June, 1910, P. L. 404, Sec. 17, providing
that the assignee "shall be liable to suit in his representative ca-
pacity, by any person seeking to recover specific property, if such
property could have been recovered as against the creditors of the
insolvent levying an execution thereon," does not make the as-
signee an officer of the Court in any such sense as is a receiver
appointed in equity, and, therefore, a plaintiff may institute an
action of replevin against an assignee without leave of Court.

No one can participate in the distribution of a fund who claims
adversely to it. WERLEY vs. MADEIRA, 188.

ATTORNEY AND CLIENT.

1. Scope of Authority-Rescission of Contract.

Whilst counsel employed to examine the title of property about
to be purchased by their client is not by such employment alone
authorized to agree to a rescission of his client's contract, yet such
authority may be inferred from evidence that in the course of the
transaction the scope of authority was so enlarged as to make
their rescission of the sale the act of their client. DEININGER
vs. ROTHERMEL, 108.

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Notwithstanding the parties originally intended a sale absolute
or conditional, the contract finally entered into prevails, and if a
bailment is disclosed, the property bailed will be ordered delivered
to the bailor. IN RE MATYSKEILA, 204.

2. Charge on Land.

A grantor who conveys land to an adopted daughter, subject to
payment by the latter, her heirs and assigns, of a monthly sum to
the grantor during his life, is entitled to receive in full out of the
proceeds of the sale of the land by the grantee's trustee in bank-
ruptcy, arrears due him under such charge. IN RE HARNER,
194.

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