12. Petition for Confirmation and Order to show Cause thereon.

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 303.)

An application for the confirmation of the composition at ......% offered by the bankrupt to his creditors, having been filed in court, and it appearing that such composition has been accepted by a majority in number of all of the creditors whose claims have been allowed, and that such creditors represent a majority in amount of such claims, and the consideration required by section 12-b of the Bankruptcy Act of 1898 having been deposited in the place designated by this court, and subject to the order of

the Judge (or Judges) of said court; and it also appearing that said composition is for the best interests of the creditors, and that the bankrupt has not been guilty of any of the acts, or failed to perform any of the duties which would be a bar to his discharge, and that the offer and its acceptance are in good faith and has not been made or procured by any means, averments or acts contrary to the Acts of Congress relating to bankruptcy; and it further appearing that an order to show cause why such composition should not be confirmed. has heretofore been made herein, and due notice having been given, as required by section 58-a, (2), of said Bankruptcy Act, and no

specifications of objection to such confirmation having been filed, and the court being satisfied in all of the particulars specified in section 12-b of said Act; it is

Ordered, that said composition be, and the same hereby is, in all respects confirmed; and it is further

Ordered and Decreed, that the distribution of the moneys deposited with the in these proceedings to the order of Judge, (or Judges) shall be made by the (trustee) herein, by checks drawn and signed by him, and countersigned by Esq., the referee in charge of this case, as follows:

1. That he first pay the costs of these proceedings and the claims entitled to priority as set forth in schedule "A" hereto annexed and made part of this order.

2. That he pay to the persons named in schedules "B" and "C" hereto annexed and made part of this order the amounts set opposite their respective names, the same being a composition dividend of

.% upon the claims of the general creditors of said bankrupt which have been scheduled, proven, or allowed by the referee herein. 3. That he pay the balance of the deposit remaining in the Bank after making the aforesaid payments to the bankrupt or his attorney.

Witness the Hon.

Court House in the City of

Judge of said Court at the this ........ day of

19...

[Schedules as above annexed and signed by referee.]

CERTIFICATE OF REFEREE THEREON

In the District Court of the United States,

for the

District of

IN THE MATTER OF

D. J.

I,

་་

Referee in Bankruptcy in charge of the above

entitled proceedings, do hereby certify that the list of creditors and

the amount due them respectively are correctly set forth in the annexed schedules.

And I further certify that the calculation of payments to be made under the composition confirmed herein and as set forth in the said annexed schedules is correct.

Dated

19...

Referee in Bankruptcy.

Only the judge has power to confirm.
In re Sonnabend, 18 Am. B. R. 117.

Section strictly construed. In re Frear, 10 Am. B. R. 199, 120 Fed. 978; In re Rider, 3 Am. B. R. 178, 96 Fed. 808.

Broadway Trust Co. v. Mannheim, 14 Am. B. R. 122, 47 Misc. (N. Y.) 415, 95 N. Y. Supp. 93.

Reorganization agreement not to be confirmed as a composition under the Act. In re Northampton Portland Cement Co. (D. C., Pa.), 25 Am. B. R. 565, 185 Fed. 542.

When confirmation should not be withheld.

In re French, 25 Am. B. R. 77, 181 Fed. 583.

Upon entry of order of confirmation, the title to bankrupt's property immediately revests in him. In re Winship Co. (C. C. A., 7th Cir.), 9 Am. B. R. 638, 120 Fed. 93, 56 C. C. A. 45.

Rights of bankrupt under lease made by his trustee.

The Bracklee Co. v. O'Connor (N. Y. Sup. Ct.), 24 Am. B. R. 499, 67 Misc (N. Y.) 599, 122 N. Y. Supp 710.

Order of confirmation in effect a discharge and may be pleaded in bar with like effect.

Mandell & Co. v. Levy (N. Y. Sup. Ct.), 14 Am. B. R. 549, 47 Misc. (N. Y.) 147, 93 N. Y. Supp. 545.

United States ex rel. Adler v. Hammond (C. C. A., 6th Cir.), 4 Am. B. R. 736, 104 Fed. 862, 44 C. C. A. 229.

Glover Grocery Co. v. Dorne, 8 Am. B. R. 702, 116 Ga. 216.

Ross v. Saunders (C. C. A., 1st Cir.), 5 Am. B. R. 350, 105 Fed. 915, 45 C. C. A. 123.

Stone v. Jenkins, 4 Am. B. R. 568, 176 Mass. 544.

Mortgage creditor cannot recover a deficiency judgment on foreclosure against bankrupt.

American Woolen Co. v. Cohen, 142 App. Div. (N. Y.) 880.

Confirmation of a composition of a bankrupt co-partnership releases the partners from individual liability for firm debts.

Abbott v. Anderson et al., 31 Am. B. R. 877.

If not pleaded is deemed waived.

Dimock v. Revere Coffee Co., 117 U. S. 559, 29 L. Ed. 994.

Laches on part of creditor to correct amount of scheduled claim.

In re Wilkins, 27 Am. B. R. 235, 191 Fed. 94.

Effect of failure to carry out a composition.

In re A. B. Carton & Co., 17 Am. B. R. 343, 148 Fed. 63.

In re Maytag-Mason Motor Co., 35 Am. B. R. 160, 223 Fed. 684.

Except in case of fraud, a creditor knowing that he is not included in schedules cannot afterwards complain of the omission.

In re Abrams and Rubins, 23 Am. B. R. 25, 173 Fed. 430.

Application of funds on failure of composition.

In re Wiener, 32 Am. B. R. 777, 215 Fed. 278.

Liability for expenses. s. c. 33 Am. B. R. 355, 217 Fed. 173.

Effect of.

On an action for deceit.

Friend v. Talcott (U. S. Sup.), 30 Am. B. R. 31, 228 U. S. 27, 57 L. Ed. 718, affg. 24 Am. B. R. 708.

Acceptance of dividend under composition held in New York to release security in absence of agreement to the contrary.

McDonald v. Taylor & Co. (N. Y. App. Div.), 26 Am. B. R. 635, 144 App. Div. (N. Y.) 329.

The endorser of an accommodation note is not discharged from liability because payee had participated in and assented to a composition made by principal debtor.

Easton Furniture Mfg. Co. v. Caminez (N. Y. App. Div.), 27 Am. B. R. 29, 146 App. Div. (N. Y.) 436.

See contra. In re Benedict (D. C., N. Y.), 18 Am. B. R. 604, 140 Fed. 55. Effect of secured creditor.

Moschkovitz v. Wagner (City Ct. N. Y.), New York Law Journal, Jan. 19, 1916, p. 1440.

Distribution on composition.

Judge to prescribe manner.

In re Lane, 11 Am. B. R. 137, 125 Fed. 772.

As to referee's powers thereon.

In re Fox, 6 Am. B. R. 525.

Right of unscheduled creditor to share.

In re Ennis & Stoppani (D. C., N. Y.), 25 Am. B. R. 383, 183 Fed. 859. Claims not proved within one year.

In re Brown, 10 Am. B. R. 588, 123 Fed. 336.

In re Lane (supra).

In re French (D. C., Mass.), 25 Am. B. R. 77, 181 Fed. 583.

In re Blond (D. C., Mass.), 34 Am. B. R. 193, 188 Fed. 452

Bankrupt may oppose allowance of claims.

In re Lane (supra).

In re French (supra).

But not heard to oppose claim of creditor who has received a preference.
In re Ghinasin, 34 Am. B. R. 818.

Order confirming a composition is a judgment granting a discharge reviewable by appeal under § 25-a.

In re Friend (C. C. A., 7th Cir), 13 Am. B. R. 595, 134 Fed. 778, 67 C. C. A. 500.

An order refusing to confirm a composition on the sole ground that "it is not for the best interests of creditors," is not a bar to a subsequent discharge, and therefore is not a final order denying a discharge from which an appeal will lie under § 25-a (2) of the Act authorizing an appeal from a judgment denying a discharge.

In re McVoy Hardware Co. (C. C. A., 7th Cir.), 29 Am. B. R. 322, 200 Fed. 949, 119 C. C. A. 337.

Ross v. Saunders (C. C. A., 1st Cir.), 5 Am. B. R. 350, 105 Fed. 915, 45 C. C. A. 123.

But see, United States ex rel. Adler v. Hammond (C. C. A., 6th Cir.), 4 Am. B. R. 736, 104 Fed. 862, 44 C. C. A. 229.

Parties to appeal.

Marshall Field & Co. v. Wolf & Bro. Dry Goods Co. (C. C. A., 8th Cir.), 9 Am. B. R. 693, 120 Fed. 815, 57 C. C. A. 326.

Ross v. Saunders (supra).

Time to appeal. In re McCall, 16 Am. B. R. 670, 145 Fed. 898, 76 C. C. A. 430.

Form No. 357

APPEARANCE OF OBJECTING CREDITOR IN COMPOSITION

In the District Court of the United States for the

District

In Bankruptcy No.

Bankrupt.

· To the District Court of the United States for the

District

The clerk of this court will please enter my appearance as attorney for a creditor of .....

of .....

the above-named bankrupt, who desires to file a specification of objection to the confirmation of his proposed composition herein.

Cross-references.- Consult, generally, § 12. See also General Order XXXII, for time within which this appearance must be entered, and compare Equity Rule XVII, Vol. IV, post.