mentioned and described, upon your petitioner filing in the office of the clerk of this court a bond in double the value of said property to be returned to him conditioned that in the event your petitioner fails to establish his right, title and interest in and to the said property, that then, and in that event, your petitioner will repay to the said receiver, or trustee hereinafter to be elected, the value of the said property so to be delivered to him and all costs and expenses, and your petitioners have such other and further relief, as to this honorable court may seem just and proper.

When right to reclaim exists.

In re Murphy-Barbee Shoe Co., 11 Am. B. R. 428.

In re Hamilton Furniture, etc. Co., 9 Am. B. R. 65, 117 Fed. 774.

In re Patterson and Co., 10 Am. B. R. 748, 125 Fed. 562.

In re Weil, 7 Am. B. R. 90, 111 Fed. 897.

In re Epstein, 6 Am. B. R. 60, 109 Fed. 874.

In re Hildebrant, 10 Am. B. R. 184, 120 Fed. 992.

In re O'Connor, 9 Am. B. R. 18, 114 Fed. 777.

John Silvey Co. v. Tift, 17 Am. B. R. 9, 123 Ga. 804, 51 S. E. 748.

Halsey v. Diamond Distilleries Co. (C. C. A., 3rd Cir.), 27 Am. B. R. 333, 191 Fed. 498, 112 C. C. A. 142.

Purchase with intent not to pay.

In re Henry Siegel Co. (D. C., Mass.), 35 Am. B. R. 130, 223 Fed. 368.

Surrender of payments.

In re Murphy-Barbee Shoe Co. (supra).

[Ed. note.]

In Southern District of New York by order of judges reclamations of property of less than $500 in value must be brought in municipal court.

When consigned goods" may not be reclaimed.

In re Penny and Anderson (D. C., N. Y.), 23 Am. B. R. 115, 176 Fed. 141. Customers of bankrupt stockbroker.

In re Pierson, Jr., and Co. (D. C., N. Y.), 35 Am. B. R. 213, 225 Fed. 889. Burden of proof upon claimant.

In re Murphy-Barbee Shoe Co. (supra).

In re Heckathorn (D. C., Pa.), 16 Am. B. R. 467, 144 Fed. 499.

In re Sol Aarons and Co. (C. C. A., 2nd Cir.), 28 Am. B. R. 399, 193 Fed. 646, 113 C. C. A. 514.

Hecker-Jones-Jewell Milling Co. v. Strasbourger (In re Marks) (C. C. A., 2nd Cir), 33 Am. B. R. 275, 218 Fed. 453, 134 C. C. A. 253.

When right to reclaim denied.

In re Hill Co. (C. C. A., 7th Cir.), 12 Am. B. R. 221 (note), 123 Fed. 866, 59 C. C. A. 354.

In re Simpson Mfg. Co. (C. C. A., 7th Cir.), 12 Am. B. R. 212, 130 Fed. 307, 64 C. C. A. 553.

In re Priegle Paint Co., 23 Am. B. R. 385, 175 Fed. 586.

See, In re Froelich Rubber Refining Co., 15 Am. B. R. 72, 139 Fed. 201.

In re O'Connor, 7 Am. B. R. 428, 112 Fed. 666.

In re American Knit Goods Mfg. Co. (D. C., N. Y.), 19 Am. B. R. 212, 155 Fed, 906.

In re Berg (D. C., Mass.), 25 Am. B. R. 170, 183 Fed. 885.

In re Russell and Birkitt, 5 Am. B. R. 608.

Election of remedies.

When claimant has filed a claim and voted for the trustee with knowledge of the bankrupt's fraudulent representations, he may not afterwards rescind the contract, withdraw his claim and reclaim the goods.

Standard Varnish Works v. Haydock (C. C. A., 6th Cir.), 16 Am. B. R. 286, 143 Fed. 318, 74 C. C. A. 456..

In re Kenyon, 19 Am. B. R. 194, 156 Fed. 863.

In re Pierce (C. C. A., 8th Cir.), 19 Am. B. R. 664, 157 Fed. 757, 85 C. C. A. 14. Nauman Co. v. Bradshaw (C. C. A., 8th Cir.), 27 Am. B. R. 565, 193 Fed. 350, 113 C. C. A. 274.

Waiving the fraud by ratification of contract.

Fowler v. Britt Carson Shoe Co. (Ga. Sup. Ct.), 27 Am. B. R. 232.

In re Stewart, 24 Am. B. R. 474, 178 Fed. 463.

Rescission of contract.

Right to rescind depends upon the conditions and intention of the buyer, when the contract was made, irrespective of conditions at time of delivery.

In re Levi and Picard, 16 Am. B. R. 756, 148 Fed. 654.

In re Rose, 14 Am. B. R. 345, 135 Fed. 888.

In re Levi and Picard, 17 Am. B. R. 430, 155 Fed. 262.

McEwen v. Totten (C. C. A., 5th Cir.), 21 Am. B. R. 336, 164 Fed. 837, 90 C. C. A. 599.

In re McDonald, 14 Am. B. R. 797, 138 Fed. 463.

Southern Pine Co. v. Savannah Trust Co. (C. C. A., 5th Cir.), 15 Am. B. R. 618, 141 Fed. 802, 73 C. C. A. 60.

In re Davis, 7 Am. B. R. 273, 112 Fed. 294.

Bloomingdale v. Empire Rubber Mfg. Co., 8 Am. B. R. 74, 114 Fed. 1016.

Wm. Openhym and Sons v. Blake (C. C. A., 8th Cir.), 19 Am. B. R. 639, 157 Fed. 536, 87 C. C. A. 122.

Haywood Co. v. Pittsburgh Industrial Iron Works, 19 Am. B. R. 780, 163 Fed.

799.

In re Darlington (D. C., N. Y.), 20 Am. B. R. 800, 163 Fed. 385.

In re Dunlop (Dunlop v. Mercer) (C. C. A., 8th Cir.), 19 Am. B. R. 361, 156 Fed. 545, 86 C. C. A. 435.

In re Schindler, 19 Am. B. R. 800, 158 Fed. 458.

In re Susquehanna Roofing Co., 23 Am. B. R. 5, 173 Fed. 150.

Crucible Steel Co. of America v. Holt (C. C. A., 6th Cir.), 23 Am. B. R. 302, 174 Fed. 127, 98 C. C. A. 101, aff'd, 224 U. S. 262 56 L. Ed. 756.

Ellet-Kendall Shoe Co. v. Ward (C. C. A., 8th Cir.), 26 Am. B. R. 114, 187 Fed 982, 110 C. C. A. 320.

Fraudulent concealment of financial condition, when hopelessly insolvent.
In re Spann (D. C., Ga.), 25 Am. B. R. 551, 183 Fed. 819.

Gillespie v. J. C. Piles and Co. (C. C. A., 8th Cir.), 24 Am. B. R. 502, 178 Fed. 886, 102 C. C. A. 482.

Talcott v. Henderson, 31 Ohio St. 162.

See, In re Lewis (D. C., Pa.), 10 Am. B. R. 741, 125 Fed. 143.

In re Sol Aarons and Co. (supra).

In re Hecker-Jones-Jewell Milling Co. v. Strasbourger (In re Marks) (supra). Donaldson v. Farwell, 93 U. S. 631.

Not necessary that false representations should be the sole and exclusive con sideration for the credit, but only that they were a material consideration. In re Gany, 4 Am. B. R. 576, 103 Fed. 930.

Right of defrauded vendor for false or fraudulent representation not affected by amendment of 1910. In re J. S. Appel Suit and Cloak Co., 28 Am. B. R. 818, 198 Fed. 322.

What petition should contain.

Sufficient allegations to sustain a complaint in trover, or such as are required by the strictest practice in an affidavit in replevin.

In re Levi and Picard (D. C., N. Y.), 17 Am. B. R. 430, 155 Fed. 262.

In re Marengo Co. Mercantile Co., 29 Am. B. R. 46, 149 Fed. 474.
Contra.

In re Pierce (supra).

Where there has been no false representations inducing the sale it is necessary to allege and prove the intent of the bankrupt not to pay at the time of making the contract; not so, however, where false representations have been made which are relied upon.

In re New York Commercial Co. (C. C. A., 2nd Cir.), 35 Am. B. R. 779, overruling doctrine of, In re Levi and Picard (D. C., N. Y.), 16 Am. B. R. 756, 148 Fed. 654 and s. c. (supra).

See, Ellet-Kendall Shoe Co. v. Ward (C. C. A., 8th Cir.) (supra).

In re Hamilton Furniture and Carpet Co. (D. C., Ind.) (supra).
Trustee proper party to defend against reclamation.

In re Schlessel, 18 Am. B. R. 434.

Bankrupt's testimony at first meeting of creditors is admissible against his trustee upon a hearing in reclamation proceedings had after death of bankrupt. In re Thompson (D. C., N. J.), 28 Am. B. R. 794, 197 Fed. 681

Money paid under a mistake of fact is impressed with a constructive trust which follows it in the hands of the trustee in bankruptcy. In re Jacob Berry and Co. (C. C. A., 2nd Cir.), 16 Am. B. R. 564, 147 Fed. 208, 77 C. C. A. 434. See, on following funds in hands of factors.

Bills v. Schliep (C. C. A., 2nd Cir.), 11 Am. B. R. 607, 127 Fed. 103, 62 C. C. A. 103.

Form No. 367

NOTICE OF MOTION TO RECLAIM

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 313.)

....... day of

Please take notice that upon the annexed petition of verified the 19..., and upon the petition in bankruptcy and all the proceedings herein, I shall move this Court, at a Stated Term thereof to be held at the United States Court House in the City of

on the

19.., at ... ... o'clock in the

........

......

....

... day of noon of said

day, or as soon thereafter as counsel can be heard, for an order directing and requiring ... Esq., the receiver (or trustee) herein, to turn over and deliver to the property mentioned and described in Schedule "A" hereto annexed, or so much thereof as has come into his possession, [upon such petitioner executing and filing herein a bond in the sum and form required by this Court,] and for such other and further relief as may be just and proper in the premises.

Form No. 368

PETITION TO RECLAIM CONSIGNED GOODS

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 314.

2. That heretofore on or about the ...... day of ...

19..., a petition in involuntary bankruptcy was filed in this Court.

appointed receiver of all the assets and effects of said alleged bankrupt duly qualified and is now acting as such receiver.

3. (An order of adjudication in bankruptcy herein was entered on the ...... day of .....

19...).

.....

......

4. That heretofore and between the ... day of and the ...... day of 19.... both dates inclusive, petitioner, at the special instance and request of the said .... the bankrupt herein, delivered upon consignment to the said

the goods, wares and merchandise specified in the schedule hereto annexed, marked Exhibit "A", and made a part hereof. 5. That prior to the delivery of the said goods, and on or about the day of .. 19..., the said petitioner and ...........

entered into an agreement in writing, a copy of which is hereto annexed and marked Exhibit "B" and made part hereof as though herein specifically set forth.

That the goods referred to in the annexed schedule were delivered subject and pursuant to the conditions set forth in the said agreement, and are and remain the absolute property of petitioner, who is entitled to the immediate possession of same.