Form No. 393

REFEREE'S REPORT TO CLERK UNDER ORDER OF ATTORNEY-GENERAL

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 339.)

For the purposes of complying with sections 53 and 54 of the Bankruptcy Law, Referees in Bankruptcy will carefully fill out this report for each case referred to them immediately upon its conclusion, and transmit the report promptly to the Clerk of the Court having jurisdiction of the case.

A.

IN THE DISTRICT COURT OF THE UNITED STATES. for the

In the Matter of

District of

Case No.

(Bankrupt)

Date of filing petition

Date of this report

1. State whether a voluntary or involuntary case

19

19

2. State whether (a) petition was dismissed; (b) composition confirmed; or (c) case normally administered

3. State occupation of bankrupt

66

66

4. State whether an asset" or no-asset case

5. State whether case was filed in forma pauperis and filing fees not afterward paid ....

1. Represented by priority, secured, and lien claims................

2. Represented by unsecured claims which have been proved and allowed

3. Represented by unsecured claims, as shown by schedules, which have not been proved

4.

TOTAL LIABILITIES

C.

AMOUNTS REALIZED IN THIS PROCEEDING

1. Total amounts realized or received by receiver (or marshal), trustee, and referee

2. Total amount disbursed in conduct of business by receiver (or marshal) and trustee (out of amount shown on preceding line)

3. Net amount realized after deducting expenses of conducting business, as above shown

$.

D.

DISTRIBUTION OF NET ASSETS, AS SHOWN ABOVE (C 3).

1. Total fees and expenses of administration, as analyzed

below

2. Amount paid to bankrupt on account of or in lieu of exemptions

3. Amount paid to priority, secured, and lien creditors.. 4. Amount paid to general creditors.....

5. Payments on reclamation or in commutation of dower, and other payments, if any, not specifically covered by this subdivision "D"

6. Undistributed balance, if any.

7.

TOTAL (must balance with "net amount realized "
see C 3).

$

E.

ANALYSIS OF TOTAL FEES AND EXPENSES OF ADMINISTRATION, AS STATED ABOVE.

1. Amounts paid to referee on account of fees of every nature, excluding filing fees paid by clerk of court:

(a) Commissions and 25-cent fees for filing claims.. $..

(b) Fees as special master, if any..

(c) Other fees, if any.

2. Amount paid to referee on account of expenses, as follows:

(a) For printing and advertising..

(b) For traveling expenses...

(c) For office, clerical, and all other expenses.

3. Amount paid to receiver (or marshal) and trustee on account of commissions, excluding filing fee of $5......

4. Amount paid to attorneys on account of fees.

5. All other expenses of administration..

TOTAL (must agree with D 1)

$

F.

OTHER DATA PERTAINING TO PROPERTY ADMINISTERED.

1. Appraised value of exemptions set off to bankrupt in kind. $......

2. Appraised value of property securing debts of bankrupt

which was not administered in bankruptcy court.... 3. Number and amount of filing fees paid by clerk of court to referee

No.

I CERTIFY that the foregoing is a true statement, as disclosed by the records in the case.

Referee in Bankruptcy.

Address,

Date of closing case

19

SUBDIVISION XIII

SUITS BY TRUSTEE AT LAW AND IN EQUITY

FORM NO. 394. Complaint by Trustee upon Promissory Note, 2676.

395. Complaint against defaulting Purchaser for Deficiency upon Re-sale, 2678.

396.

Bill in Equity to recover a Preference, 2681.

397. Bill in Equity to set aside a Mortgage made within four Months' Period and where Property has been sold free and clear of Liens, 2683.

398. Complaint in State Court to declare Secret Trust, 2696.

399. Complaint in State Court Action to set aside under § 70-e, Bill of Sale, made beyond four Months' Period, 2698.

400. Complaint in State Court Action to set aside voluntary transfer to wife of bankrupt, 2706.

401. Bill in Equity to recover fraudulent Transfer and alleging Conspiracy to defraud, 2708.

402. Petition by Trustee for Leave to levy Assessment for unpaid Stock Subscriptions, 2713.

403. Order directing such Assessment, 2717.

404. Complaint to recover unpaid Stock Subscriptions, 2718.

405. Complaint to recover unpaid Stock Subscriptions (2d Form), 2723.

Form No. 394

COMPLAINT BY TRUSTEE UPON PROMISSORY NOTE

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 340.)

19..., a

1. That the plaintiff is a resident of the city of.. 2. That on or about the ...... day of voluntary petition in bankruptcy was filed in the United States Dis

trict Court for the

District of

by

was duly ad

and on said day the said ...

judicated a bankrupt, and that on or about the .... day of

19..., at a meeting of creditors duly called and held plaintiff was duly appointed trustee in bankruptcy of the said duly qualified and filed his bond in the penalty required, and is still acting as such trustee.

3. Upon information and belief that heretofore on the ..... of ...

19..., at the city of

day

the defendant

made and delivered to the said his certain promissory note in writing, of which the following is a copy: [Here set forth note.]

19..., the date of

4. That on the ....... day of ... adjudication herein, said promissory note was the property of said bankrupt and that all of the rights of the said ...

in

and to said note are now vested in plaintiff, and that plaintiff is the owner and holder of said note.

5. That said note was duly presented at maturity thereof to the defendant and payment duly demanded, but that same was not paid nor any part thereof.

Wherefore, plaintiff demands judgment against the defendant for the sum of $.............. with interest thereon from

....

together with the costs and disbursements of this action.

Plaintiff's Attorney.

Office and Post Office Address,

City of

Street,

[Verification.]

Cross-references.-Consult, generally, §§ 11, 23, 47, 60, 67 and 70.

Suits by trustee. General Principles.

Jurisdiction.

District Court has no jurisdiction except by consent of proposed defendant of a suit to recover money due estate of bankrupt and which belonged to the bank. rupt prior to adjudication.

Harris, Trustee, etc. v. 1st Nat. Bank, etc. (U. S. Sup.), 23 Am. B. R. 632, 216 U. S. 382, 54 L. Ed. 528.

Waiver.

Conferred by consent or general appearance.

McEldowney v. Card, 27 Am. B. R. 937, 193 Fed. 475.

Detroit Trust Co. v. Pontiac Savings Bank (C. C. A., 6th Cir.), 27 Am. B. R.

821, 196 Fed. 29, 115 C. C. A. 663.

Sheppard v. Lincoln (D. C., N. Y.), 25 Am. B. R. 804, 184 Fed. 182.

Trustee no right to sue upon agreement between State receiver of bankrupt corporation and one of its creditors.

Love v. Export Storage Co. (C. C. A., 6th Cir.), 16 Am. B. R. 172, 143 Fed. 1, 74 C. C. A. 155.

May bring plenary action to recover property unlawfully surrendered by temporary receiver.

Whitney, Trustee v. Wenman (U. S. Sup.), 14 Am. B. R. 45, 198 U. S. 539, 49 L. Ed. 1157.

May sue in conversion.

Burns v. O'Gorman Co., 17 Am. B. R. 815, 150 Fed. 226.

Action to compel specific performance.

Henrie v. Henderson (C. C. A., 4th Cir), 16 Am. B. R. 617, 145 Fed. 316, 76 C. C. A., 196; rev'g s. c. 15 Am. B. R. 760, 142 Fed. 568.

Suit to set aside sale of its own stock to a corporation which is insolvent; right of trustee upheld.

Sherrill v. Hutson (Ala. Sup. Ct.), 32 Am. B. R. 532.

May sue for recovery of dividends unlawfully paid out of capital.

Cottrell v. Albany Card & Paper Mf'g Co., 142 App. Div. (N. Y.) 148, 126 N. Y. Supp. 1070.

Action to reach surplus income of trust fund.

Brown v. Barker et al. (N. Y. App. Div.), 8 Am. B. R. 450, 68 App. Div. (N. Y.) 594.

Butler v. Baudouine, 177 N. Y. 530; aff'g 16 Am. B. R. 238, 84 App. Div. (N. Y.) 215.

In re Morris (C. C. A., 2nd Cir.), 30 Am. B. R. 319, 204 Fed. 770, 123 C. C. A. 220.

Ditmar v. Gould, 60 App. Div. (N. Y.) 94, 69 N. Y. Supp. 708.

For waste, right of action passes to trustee.

Bynum v. Scott, 33 Am. B. R. 436, 217 Fed. 122.

Money paid to trustee under mistake is an action equitable in nature. Sufficiency of allegations.

Carpenter v. Southworth (C. C. A., 2nd Cir.), 21 Am. B. R. 390, 165 Fed. 428, 91 C. C. A. 378.

No jurisdiction under § 23-b of a suit to recover property forcibly seized by a creditor against the will and without the collusion of the bankrupt.

Waite v. Gottstein et al., 35 Am. B. R. 353, 224 Fed. 281

Nor for damages for conspiracy.

Lynch v. Bronson, 24 Am. B. R. 513, 177 Fed. 605.

Error in caption of summons and complaint in failing to show representative capacity not fatal.

Newland v. Zodikow, 11 Am. B. R. 770.

Equitable jurisdiction.

When plaintiff held to have adequate remedy at law.

Sessler v. Nemcof (D. C., Pa.), 25 Am. B. R. 618, 183 Fed. 656.

Action by trustee to have contract declared void for illegality denied.

Ernst v. The Terminal Clearing House Ass'n (N. Y. Sup. Ct.), 86 Misc. (N. Y. 295.

Not necessary to obtain an order of the court authorizing trustee to bring a suit in either State or Federal court.

Edwards v. Schillinger, 148 Ill. App. 227.

Traders Ins. Co. v. Mann, 11 Am. B. R. 269, 118 Ga. 381.

Callahan v. Israel, 186 Mass. 383.

Held, however, in Western District of New York to be better practice.