Second. While insolvent, the said Company on the ... day of 19..., made a general assignment for the benefit of creditors, under the general assignment law of the State of by which it conveyed to as assignee, all of its property of every kind, for the equal benefit of all of its creditors. The assignee accepted the trust and duly qualified by executing a bond and taking the oath prescribed by the State Statute, and entered into possession of all the assigned estate. The deed of assignment provided that the assignee should pay "reasonable counsel and attorney's fees for preparing such general assignment and for advice and services to be furnished and rendered him in the course of the administration of the trust hereby created." Within four months after this deed of assignment the ..... Company, upon a petition by three of its creditors, was adjudicated a bankrupt in the District Court of the United States for the .. district of ..., and the assignment set aside as in contravention of the Bankruptcy Act. A trustee was thereafter duly appointed, who has duly qualified and taken possession of the estate of said bankrupt. Third. The appellants filed a claim against the bankrupt estate for professional services rendered the bankrupt in preparing the said general assignment for the benefit of creditors, and the assignee thereunder in advising and acting for him in respect to his duties and in defending a suit brought to wind up the corporation in a State Court, and for services rendered the assignee in opposing the adjudication of bankruptcy. The items of this claim were as follows: The appellants asserted and claimed that each of said items constituted a prior charge upon the assets and asked to have same paid by the trustee in preference to the unsecured creditors. The trustee and certain creditors excepted to each item of this account. The referee upon the evidence, found and certified that the services had been rendered as claimed and were reasonably worth the amount claimed, but that the same did not constitute expenses allowable as a priority payment and were not otherwise a lien. He allowed the item of $............. as an unsecured claim against the estate. but disallowed the other items as not being debts of the bankrupt. His order was duly excepted to and the questions certified to the court in due form. The District Judge sustained the referee so far .... as he held the claims to be not entitled to priority and adjudged that none of the items constituted a debt, provable for any purpose against the bankrupt estate. From this judgment the appellants have appealed and assigned error. Upon this state of facts this court desires the instruction of the Supreme Court, that it may properly decide the questions of law thus arising: First. Is a claim for professional services rendered to a bankrupt corporation in the preparation of a general assignment, valid under the law of the State of .... entitled to be paid as a claim entitled to priority out of the estate of the corporation in the hands of a trustee in bankruptcy, when the corporation was adjudicated an involuntary bankrupt within four months after making the assignment, and the assignment set aside as in contravention of the bankrupt law? Second. Is a claim for professional advice and legal services rendered such an assignee, prior to an adjudication of bankruptcy against the assignor, the assignment providing that the costs and expenses of administering the trust should be first paid, entitled to be proven as a priority claim against the bankrupt estate? Third. Is a claim against such an assignee for legal services rendered at his employment in resisting an adjudication of involuntary bankruptcy against the assignor, allowable as a priority claim when the necessary effect of the adjudication would be to set aside the assignment under which the assignee was acting? Fourth. If not entitled to be allowed as priority claims, may either of the items described in the foregoing questions be proven as unsecured debts of the bankrupt corporation? It is, therefore, ordered that a copy of this certificate, under the seal of the court, be filed with the clerk of the Supreme Court at Washington. Judges of the United States Circuit Court of Appeals for the Circuit sitting in said cause. [Certificate of clerk attached.] Cross-reference. See § 25, ante. Randolph v. Scruggs (U. S. Sup.), 10 Am. B. R. 1, 190 U. S. 533, 47 L. Ed. 1165. Right to certify. Power may be exercised by either judges of Circuit Court of Appeals, or district judge. If from District Court, the question certified must be after final judgment and a question of jurisdiction alone Bardes v. First Nat. Bank of Hawarden, 3 Am. B. R. 690, 175 U. S. 526, 44 L. Ed. 261. First Nat. Bank v. Klug, 8 Am. B. R. 12, 186 U. S. 202, 46 L. Ed. 1127; Columbia Iron Works v. Nat. Lead Co. (C. C. A., 6th Cir.), 11 Am. B. R. 340, 127 Fed. 99, 62 C. C. A. 99. See, also, Van Wagenen v. Sewall, 160 U. S. 369, 40 L. Ed. 460; Maynard v. Hecht, 151 U. S. 324, 38 L. Ed. 179; McLish v. Roff, 141 U. S. 661, 35 L. Ed. 893. If from Circuit Court of Appeals, any question on which the court desires instruction may be certified. Such certificate brings up only questions of law. Cross v. Evans, 167 U. S. 60, 42 L. Ed. 77. Geo. M. West Co. v. Lea Bros. & Co., 2 Am. B R. 463, 174 U. S. 590, 43 L. Ed. 1098. Bardes v. First Nat. Bank, etc. (supra). [Ed. Note.] In latter form of certification, no appeal, writ of error of appellate process is required. In this it differs from certification of jurisdictional question by district judge. SUBDIVISION XVI RECEIVERS IN EQUITY (As receivership proceedings in equity are frequently resorted to in the case of corporations in preference to bankruptcy proceedings it has been thought desirable to include forms covering such proceedings. The following forms were prepared by Messrs. Macomber & Skivington, attorneys and counsellors-at-law, Rochester, N. Y., and it is through their courtesy that we are enabled to present them to the profession.- EDITORS.) FORM No. 450. Bill of Complaint for Appointment of Receiver in Equity. 451. Resolution of Corporation Consenting to Receivership. 452. Answer to Bill for Appointment of Receiver in Equity. 453. Decree Appointing Receivers in Equity. 454. Petitions for Modification of Decree Appointing Receivers so as to Continue Operation of Business. 455. Order Modifying Decree Appointing Receivers so as to Continue Operation of Business. 456. Notice of Order Appointing Receiver. 457. Oath of Receiver. 458. Bond of Receivers. 459. Order Approving Bond of Receivers. 460. Petition for Payment of Compensation to Receiver. 461. Order for Payment of Compensation to Receiver. 462. Petition for Appointment of Attorneys for Receivers. 463. Consent to Act as Attorneys for Receivers. 464. Order for Appointment of Attorneys for Receivers. 465. Petition for Order that Creditors File Claims and for Appointment of Special Master to Take Proof Thereof. 466. Order Requiring Creditors to File Claims and Appointing Special Master to Take Proof. 467. Notice to Creditors to Prove Claims. 468, Petition for Order Authorizing Receivers to Renew Notes and to Borrow Money on Notes. 469. Order Authorizing Receivers to Renew Notes and to Borrow Money on Notes. 470. Petition for Appointment of Appraisers. 471. Order Appointing Appraisers. Form No. 472. Decree Modifying Decree of Sale and Directing Sale. 473. Notice of Sale and Application for Confirmation Thereof. 476. Notice of Motion to Confirm Sales. 477. Order Confirming Sale of Real Property. 478. Receivers' Deed. Form No. 450 BILL OF COMPLAINT FOR APPOINTMENT OF RECEIVER IN EQUITY United States District Court: To the Honorable, the Judges of the United States District Court, bill of complaint, on behalf of himself and of all other creditors of defendant, a corporation created by, and existing under and by virtue of the laws of the State of ... citizen of the State of ... a upon your complainant alleges as follows: First: That your complainant is a citizen of the State of...... and is a resident of the city of..... county, State of .... Second: Upon information and belief that the defendant ... is now and was at all times hereinafter mentioned, a corporation duly created by and organized and existing under and by virtue of the laws of the State of ..... and has its principal Third: Upon information and belief that the defendant was incorporated and organized for the purpose of.... [Add facts showing past financial success of corporation.] Fourth: Upon information and belief that the business conducted by the defendant and its predecessors has been conducted successfully and prosperously for upwards of years and was a growing and profitable business up to [Here insert reasons for present financial difficulties of corporation.] Fifth: Upon information and belief that a statement of the assets and liabilities of the defendant as of assets as follows: .... 19..., shows making a net worth or an excess of assets over liabilities as of 19..., of ... Sixth:19 Upon information and belief that a large portion of the defendant's liabilities is on notes of which the most in amount are held by various banks. That the defendant has been obliged to renew from time to time its notes for some time past and has been unable for some time past to pay its notes or any portion thereof. That many of its notes are becoming due from time to time. That one of the banks which holds defendant's notes to a very large amount has instituted a suit at law on it and threatens to enter judgment and issue execution thereon. That other creditors of defendant are insisting upon payment of their claims. That the defendant has no credit. That the defendant must, in order to prosecute its business, purchase supplies and raw material from time to time and hire skilled workmen and salesmen in steadily increasing amounts and numbers as the business in which the defendant is engaged improves. That although every effort has been made, defendant is unable and will be unable under existing financial conditions to secure sufficient funds to meet its necessary current and operating expenses and to make payments on its past due accounts and on its notes as they become due from time to time. That the defendant is without means or collateral to effect new loans and is unable to secure sufficient moneys wherewith to meet its 19. This paragraph can be varied to suit the particular facts. |