« AnteriorContinuar »
14 Stat. 521.
2 March 1867. the party claiming it shall comply with the statutes regulating the granting of such
writs. Ibid. & 9. 17. In cases arising under this act, no appeal or writ of error shall be allowed in Appeals and
any case from the circuit courts to the supreme court of the United States, unless the writs of error to matter in dispute in such case shall exceed two thousand dollars. the supreme court.
18. The justices of the supreme court of the United States, subject to the provisions Ibid. @ 10. of this act, shall frame general orders ; (a) for the following purposes :General orders.
For regulating the practice and procedure of the district courts in bankruptcy, and the several forms of petitions, orders and other proceedings to be used in said courts
in all matters under this act: Duties of officers. For regulating the duties of the various officers of said courts :
For regulating the fees payable and the charges and costs to be allowed, except such as are established by this act or by law, with respect to all proceedings in bankruptcy before said courts, not exceeding the rate of fees now allowed by law for similar ser
vices in other proceedings : Appeals.
For regulating the practice and procedure upon appeals :
For regulating the filing, custody and inspection of records :
After such general orders shall have been so framed, they or any of them may be rescinded or varied, and other general orders may be framed in manner aforesaid ; and all such general orders so framed shall from time to time be reported to congress, with such suggestions as said justices may think proper.
IV. VOLUNTARY BANKRUPTCY. 2 Mar. 1867 2 11.
19. If any person (b) residing within the jurisdiction of the United States, owing
debts provable under this act, exceeding the amount of three hundred dollars, shall Who may be ad- apply, by petition (c) addressed to the judge of the judicial district in which such judged bank
debtor has resided or carried on business for the six months next immediately precedrupt. Of the petition. ing the time of filing such petition, or for the longest period during such six months,(d)
setting forth his place of residence, his inability to pay all his debts in full, his willing
ness to surrender all his estate and effects for the benefit of his creditors and his desire Schedules. to obtain the benefit of this act; and shall annex to his petition a schedule, verified by
oath, before the court or before a register in bankruptcy, or before one of the commissioners of the circuit court of the United States, containing a full and true statement of all his debts,(e) and, as far as possible, to whom due, with the place of residence of each creditor,(g) if known to the debtor, and if not known, the fact to be so stated, and the sum due to each creditor ; (h) also, the nature of each debt or demand, whether founded on written security, obligation, contract or otherwise,(i) and also the true cause and consideration of such indebtedness in each case, and the place where
such indebtedness accrued, and a statement of any existing mortgage, pledge, lien, Inventory. judgment or collateral or other security given for the payment of the same;
and shall also annex to his petition an accurate inventory, verified in like manner, of all his estate, both real and personal, assignable under this act,(k) describing the same,
and stating where it is situated, (?) and whether there are any, and if so, what encum(a) As to what is a special order in bankruptcy, see Ex parte revived the domicil of origin, and that the court had jurisdiction. Bellamy, 1 Ben. 474.
Ex parte Wiggin, 1 Bank. Reg. 90. A district court has no power, (6) Any person may take advantage of the act; its provisions on the petition of copartners, one of whom resides in another are not confined to traders. Morgan v. Mastick, 2 Bunk. Reg. district, and has no place of business within the jurisdiction, to
decree such copartner a bankrupt. Ex parte Prankard, 1 Bank. (c) If the petition be illegible, it will be orderod to be taken Reg. 51; and see Ex parte Kinsman, 1 N. Y. Leg. Obs. 309. off the file. Anon. 3 Bank. Reg. 15.
(e) Debts barred by the statute of limitations of the domicil, (d) Where a petitioner in bankruptcy had carried on business should be embraced in the schedule. Ex parte Perry, 1 Bank. and resided in New York, for twenty years prior to June 1866, Reg. 2. and removed to New Jersey in that year, it was held, that his (g) The act requires such a statement of the creditor's residence petition was properly filed in the district court for the southern as will insure notice, either personally, or by mail; the creditor's district of New York. Ex parte Belcher, 1 Bank. Reg. 202. So, place of abode must be stated, so far as it is possible to ascertain where the petitioner was engaged as agent and attorney for his it; and if he have another place of business, his post-office adbrother, in buying and selling merchandise in New York city, at drers also. Ex parte Pulver, 1 Ben. 381. an office having a sign with his brother's name on it, and was (h) It is sufficient to state the original amount and date of the well known by those who had dealings with him, to be doing debt; the interest is a matter of computation. Ex parte Hill, 1 business at that office, it was held to be a carrying on of business Ben. 321. within the meaning of this section. Ex parte Bailly, 1 Bank. (1) It is necessary to state whether any note has been given, or Reg. 177. But where a bankrupt had heen a member of a manu- judgment rendered for the debt; and whether any other person facturing firm in New Jersey, which failed and stopped business, is jointly liable therefor. Ex parte Orne, 1 Ben. 420. It is sutliand while continuing to reside in New Jersey, had an office in cient to schedule a judgment, as owing to a partnership by the New York, where he received and wrote letters, and was settling firm name. Anon. 6 Int. R. Rec. 150. up the business of the firm, it was held, that he was not carrying (k) Where a bankrupt has charge of, and conducts, in his own on business in New York, within the meaning of the statute. Ex name, the business of another, taking half of the net profits, as a parte Little, 2 Bank. Reg. 97. So, where the petitioner, formerly compensation for his services, his right to a share of such net in business for himself in Chicago, had been employed for upwards profits need not be reported as assets. Ex parte Beardsley, 1 of a year, as a bookkeeper, in New York city, but lived with his Bank. Reg. 121. And where a husband's equitable interest in his father at Elizabeth, New Jersey, it was held, that the district wife's property has been sold under execution, he has no longer court for the southern district of New York had no jurisdiction. any interest to be returned in his schedules. Ex parte HumEx parte Magie, 1 Bank. Reg. 138, 153. Where a bankrupt, born mitsh, 15 Pitts. L. J. 494; 8. C. 2 Bank. Reg. 3; Ex parte Pomeroy, in Boston, became domiciled in California, but left that state with Ibid. 3. no intention of returning, and after a residence of several months (1) The bankrupt's household furniture and wearing apparel in Europe, returned to Boston, and in less than two months must be set forth in separate items. Ex parte Hill, 1 Ben. 321. thereafter, filed his petition in bankruptcy, it was held, that the As to where a judgment in favor of the bankrupt is to be schoact of leaving California, with no intention of returning, at once duled, see Ex parte Sallee, 2 Bank. Reg. 78.
brances thereon; the filing of such petition shall be an act of bankruptcy, and such 2 March 1867. petitioner shall be adjudged a bankrupt:(a) Provided, That all citizens of the United States petitioning to be declared bankrupt shall, on filing such petition, and before any proceedings thereon, take and subscribe an oath of allegiance and fidelity Oath. to the United States, which oath shall be filed and recorded with the proceedings in bankruptcy. 20. The judge of the district court, or, if there be no opposing party, any register Reference to ro
gister. of said court, to be designated by the judge, shall forthwith, if he be satisfied that the debts due from the petitioner exceed three hundred dollars, issue a warrant, to be Warrant. signed by such judge or register, directed to the marshal of said district, authorizing him forth with, as messenger, to publish notices in such newspapers as the warrant specifies; (b) to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, (c) or whose names may be given to him in addition by the debtor; and to give such personal or other notice to any persons concerned as the warrant specifies, which notice shall state:
I. That a warrant in bankruptcy has been issued against the estate of the debtor: Notice.
II. That the payment of any debts, and the delivery of any property belonging to such debtor, to him or for his use, and the transfer of any property by him, are forbidden by law :
III. That a meeting of the creditors of the debtor, giving the names, residences and amounts, so far as known, to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at a time and place designated in the warrant, not less than ten nor more than ninety days after the issuing of the same.(d) 21. At the ineeting held in pursuance of the notice, one of the registers of the court
Ibid. & 12 shall preside, and the messenger shall make return of the warrant and of his doings thereon; (e) and if it appears that the notice to the creditors has not been given as rant. required in the warrant, the meeting shall forthwith be adjourned, and a new notice given as required. (g) If the debtor dies after the issuing of the warrant, the proceed- Proceedings not
to abate by ings may be continued and concluded in like manner as if he had lived. (h)
V. OF THE ASSIGNMENT. 22. The creditors shall, at the first meeting held after due notice from the messen- 2 Mar. 1867 & 13. ger, in presence of a register designated by the court, choose one or more assignees of the estate of the debtor;(i) the choice to be made by the greater part in value and Choice of asin number of the creditors who have proved their debts.(k) If no choice is made by the creditors at said meeting,(?) the judge, or if there be no opposing interest, the register, shall appoint one or more assignees.(m) If an assignee so chosen or appointed fails, within five days, to express in writing his acceptance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall be sub- Approval of the
judge. ject to the approval of the judge ; (n) and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees, or order a new election.(o)
Return of war.
14 Stat. 522.
(a) Where the petitioner fails to attend before the register, on assignee, is unauthorized and improper. Ex parte Smith, 1 the day fixed in the order of reference, he may, nevertheless, be Bank. Reg. 25. The court will not sanction the solicitation of votes adjudged a bankrupt within a reasonable time thereafter. Ex of creditors by persons seeking thereby to be chosen assignees. parte Hatcher, 1 Bank. Reg. 91.
Anon., 2 Bank. Reg. 100. (6) The register may direct publication in newspapers of other (k) A creditor who has made probate of his debt, but retains states, in addition to those designated by rule of court. Ex parte the deposition in his own possession, is not competent to vote for Robinson, 1 Ben. 270. The publication must be completed before an assignee. Ex parte Sheppard, 1 Bank. Reg. 115. A creditor the commencement of the period of ten days immediately pre holding security cannot vote in the election of an assignee. Ex ceding the return day of the warrant. Ex parte Devlin, 1 Ben. parte Davis, 16 Am. L. R. 30; 8. C. 6 Int. R. Rec. 149; and see Ex 335. An omission to publish the notice in one of the papers parte Altenheim, 1 Ben. 431. The attorney of a creditor duly designated for that purpose, is a sufficient irregularity to set empowered to prove the claim, cannot vote for an assignee, unless aside the proceedings. Ex parte Hall, 2 Bank. Reg. 68.
specially authorized to do so. Ex parte Lowerre, 1 Ben. 406. A (c) Creditors residing without the United States are to be noti- firm can only vote as one creditor. Ex parte Purvis, 6 Int. R. fied by publication only. Ex parte Heys, 1 Ben. 333; see Ex Roe. 173. An unliquidated claim on the part of the bankrupt parte Townsend, 1 Bank. Reg. 1. The messenger ought to copy into against a creditor, is to be disregarded in proceedings for the the notices the exact language contained in the warrant; but an choice of an assignee. Ex parte Orne, 1 Ben. 361. immaterial variance will be disregarded. Ex parte Pulver, 1 (1) After the meeting, the register has no power to permit a Ben. 381.
creditor to alter his vote, and thereby cause a failure to elect. (d) Where the creditors reside abroad, the register has a dis. Ex parte Scheiffer, 2 Bank. Reg. 179. cretion in giving the time for the first meeting of creditors, not (m) If no creditor attend at the meeting, it is the duty of the exceeding ninety days from the issuing of the warrant. Ex parte register to appoint an assignee. Ex parte Cogswell, 1 Ben. 388. Heys, 1 Ben. 333.
So also, if no person receive a majority of the votes in value and (c) The return of the messenger is not conclusive in all cases; number of the creditors who have proved their claims. Ex parto but if prima facie good, it is sufficient authority to proceed. Ex Purvis, 6 Int. R. Rec. 173; Ex parte Scheiffer, 2 Bank. Reg. 179. : parte Pulver, 1 Ben. 381. What is a sufficient return, where the There can be no informal vote by the creditors; if they do not residence of the creditor is unknown. Ibid.
elect, it is the province of the judge, or if there be no opposing (9) If a creditor be misnamed in the notice, a new notice must interest, of the register, to appoint. Ex parte Pearson, 2 Bank. be given, unless waived by appearance. Anon., 6 Int. R. Rec. Reg. 151. 149. Where an amendment has been allowed, a new warrant (n) It is the duty of the register to state to the judge any reashould issue. Ex parte Perry, 1 Bank. Reg. 2; beo Ex parte sons which he may know to exist, why the election or appointRatcliffe, Ibid. 98; 8. c. 25 Leg. Int. 92; Ex parte Devlin, 1 Ben. ment of an assignee should not be approved. Ex parte Bliss, 1 835.
Ben. 407. (h) A discharge cannot be granted after the death of the (0) If an assignee be chosen by the greater part in value and debtor; inasmuch as it is then impossible to comply with the number of the creditors who have proved their claims, and there requirements of the 29th section. Ex parte O'Farrell, 2 Bank. be no imputation either upon his capacity or integrity, the judge Rug. 154. 8. c. 2 Am. L. T. Bank. 106.
cannot interfere. Ex parte Grant, 2 Bank. Reg. 35. If a mistako (i) Any attempt of a register to influence the choice of an occur, the court can correct it before approval. Ex parte
2 March 1867. 23. The judge at any time may, and upon the request in writing of any creditor Assignee may be
who has proved his claim, shall require the assignee to give good and sufficient bond required to give to the United States, with a condition for the faithful performance and discharge of bond. Approval.
his duties; (a) the bond shall be approved by the judge or register by his endorsement thereon, shall be filed with the record of the case, and enure to the benefit of all cred
itors proving their claims; and may be prosecuted in the name and for the benefit of In default, to be any injured party. If the assignee fails to give the bond within such time as the judge removed,
orders, not exceeding ten days after notice to him of such order, the judge shall remore
him and appoint another in his place. Ibid. 2 14. 24. As soon as said assignee is appointed and qualified,(6) the judge, or, where Assignment to
there is no opposing interest,(c) the register shall, by an instrument under his hand, be executed.
assign and convey to the assignee, all the estate, real and personal, of the bankrupt,
with all his deeds, books and papers relating thereto; and such assignment shall relate Effect thereof. back to the commencement of said proceedings in bankruptcy ; (d) and thereupon, by
operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee,(e) although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four
months next preceding the commencement of said proceedings: (9) Exempt pro
25. Provided, however, that there shall be excepted from the operation of the property.
visions of this section, the necessary household and kitchen furniture, and such other articles and necessaries of such bankrupt as the said assignee shall designate and set apart, having reference in the amount to the family, condition and circumstances of the bankrupt, but altogether not to exceed in value, in any case, the sum of five hundred dollars; (h) and also the wearing apparel of such bankrupt, and that of his wife and children; and the uniform, arms and equipments of any person who is or has been a soldier in the militia, or in the service of the United States; and such other property as now is, or hereafter shall be, exempted from attachment, or seizure or levy on execution by the laws of the United States; and such other property not included in the foregoing exceptions as is exempted from levy and sale upon execution, or other process or order of any court, by the laws of the state in which the bankrupt has his domicil at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such state exemption laws in force in the
year Not to pass by 1864:(i) Provided, that the foregoing exception shall operate as a limitation upon assignment.
the conveyance of the property of the bankrupt to his assignees; and in no case shall
property hereby excepted pass to the assignees, or the title of the bankrupt thereto Scheiffer, 2 Bank. Reg. 179. A motion to set aside the appoint- retain his household furniture, not exceeding $500 in value. Es ment of the assigneo must be made to the distriet judge, on parte Cobb, 1 Bank. Reg. 106. But the exemption of $500 onght notice, not to the register. Ex parte Stokes, 1 Bank. Reg. 130. not to be allowed in all cases, without discrimination. Ex parte If it should appear, that the bankrupt had brought in one or Ruth, 16 Am. L. R. 157; 8. c. 6 Int. R. Rec. 166. A sum of miney more of his friends, though bona fide creditors, and had hy them may be set apart for the use of the bankrupt, under this clause. chosen an assignee, who was also his friend and in his interest, Ex parte Thornton, 17 Am. L. R. 42; 8. c. 2 Bank. Reg. 68. But the court would withhold its approval. Ex parte Bliss, 6 Int. R. an allowance in money cannot be made to a bankrupt, who has Rec. 116. See Ex parte Scbeiffer, 2 Bank. Reg. 179.
no personal chattels, out of the assets collected by his assignee. (a) An assignee chosen by the creditors may be required to Ex parte Lawson, 2 Bank, Reg. 19. Partnership property cannot give security. Ex parte Fernberg, 2 Bank. Reg. 114.
be set apart for the use of the individual members of a bankrupt (6) Until the appointment or election of the assignee is firm. Ex parte Hafer, 25 Leg. Int. 148; 8. c. 1 Bank. Reg. 147. approved, the register has no authority to execute an assign- Real estate may, in some cases, be set apart for the bankrupt, mont. Ex parte Scheiffer, 2 Bank. Reg. 179.
but only whero it will not injure the sale of other real estate, or (c) The register has the right to convey the estate to the work adversely to the interests of the creditors. Ex parte Edassignee, whon there is no opposing interest, though the title to wards, 2 Bank. Reg. 109; contrà, Ex parto Thornton, 17 Am. L. the property be in dispute. Ex parte Wylie, 2 Bank. Reg. 53. R. 42; 8. C. 2 Bank. Reg. 68; Ex parte Jackson, Ibid. 158; Ex
(d) The assignee's right of possession cannot be interfored with parte Gainey, Ibid. 163. But real estate cannot be so set apart, by a replevin, issued cut of a state court after the filing of the in contravention of the vendor's lion for unpaid purchase-money. petition. Ex parte Vogel, 2 Bank. Reg. 138. Property acquired Ex parte Perdue, 2 West, Jur. 279; 8. c. 2 Bank. Reg. 67; and by the bankrupt between the time of filing his petition, and the see Ex parte Whitehead, 2 Bank. Reg. 180. As to the title of the final discharge, does not vest in the assignee. Ex parte Patter. bankrupt to real estate set apart to him by the assignee, see Ex Bon, 1 Ben, 508: Ex parte Levy, Ibid. 496; Ex parte Rosenfield, parte Watson, 2 Bank. Reg. 174; 8. C. 2 Am. L. T. Bank. 93. 15 Pitts. L. J. 245; 8. c. 1 Bank. Reg. 60. And a prior bona fide (1) The amount of property exempted by the state laws is lien gives a prior claim which the district court may ascertain exclusive of the $500 which may be set apart for the bankrupt, and liquidate. Ex parte Winn, 1 Bank. Reg. 131; Ex parte under the act of congress. Ex parte Ruth, 16 Am. L. R. 157; s. Schnepi, 16 Am. L. R. 204; Ex parto Hambright, 2 Bank. Reg. c. 6 Int. R. Rec. 166; Ex parte Cobb, 1 Bank. Reg. 106; Ex parto 157; Armstrong v. Rickey, Ibid. 150. A general assignment for Feely, 3 Bank. Reg. 15. The assignee cannot set apart for the the benefit of creditors, untainted by fraud, is valid as against use of the bankrupt, under the state laws, property specifically the assignee. Sedzwick v. Place, 1 Bank. Reg. 201; 8. P. Serg- mentioned in the art of congress; the allowance, under the state wick v. Minck, Ibid. 204. With the exception of property fraudu. law, must be of a different kind of property. Ex parte Feely, 3 lently conveyed by the bankrupt, the assignee takes nothing Bank. Reg. 15. If the bankrupt select, under the state law, probut what was yested in the former. Ex parte Hambright, 2 perty which is also exempted by the bankrupt act, there can be Bank. Reg. 157. He takes the same rights as the bankrupt had no second allowance, in lieu thereof, under the latter laws. Ex in the property, and no more; subject to all liens, encumbrances parte Noakes, 1 Bank. Reg. 161. In Pennsylvania, a vested ex. and oquities, except attachments and conveyances in fraud of pectant interest of a bankrupt in a sum of money, payable at his creditors. Rockford, Rock Island and St. Louis Railroad Co. v. own death, or at the death of another, not exceeding three hun. Mekay, 3 Bank. Reg. 12. See Wallace v. Conrad, 26 Leg. Int. dred dollars in valne, may be set apart for the use of the bank8. c. 3 Bank. Reg. 10.
rupt. Ex parte Bennett, 17 Am. L. R. 34; 8. c. 2 Bauk. Reg hai. (@) See Nash v. Nash, 12 Allen 315. The bankrupt’s wife can- Where, by the state laws, real property to a certain amount is not claim dower in his lands, during his lifetime. Kelly v. exempted from levy and sale, provided the debtor comply with Strange, 3 Bank. Reg. 2.
the requirements of the law; and the bankrupt fails to comple, (9) Attachments in state courts brought within four months, such property is not exempt from the operation of the bankrupt before a commencement of proceedings in bankruptcy, are dis- act. Ex parte Farish, 2 Bank. Reg. 62; Ex parte Jackson, Ibid. solved. Ex parte Ellis, 1 Bank. Reg. 154; Pennington v. Lowen. 158. The approval by congress of the new constitution of North stein, Ibil. 157; Ex parte Brand, 2 Am. L. T. Bank. 66.
Carolina did not extend the exemption under the bankrupt act. (h) Every bankrupt, who is a householder, is absolutely enti. Ex parte McLean, 2 Lank. Reg. 173. tled, in addition to tho amount exempted by the state laws, to
cute and defend suits.
be impaired or affected by any of the provisions of this act; (a) and the determination 2 March 1867. of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court: And provided further, that no mortgage of any vessel, or of any Chattel mortother goods or chattels, made as security for any debt or debts, in good faith and for facerdot to be present considerations, and otherwise valid, and duly recorded, pursuant to any statute of the United States, or of any state, shall be invalidated or affected hereby.(6)
26. And all the property conveyed by the bankrupt in fraud of his creditors ; (c) Choses in action all rights in equity,(d) choses in action, patents and patent rights, and copyrights; assignee. all debts due him, or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person, arising from contract, or from the unlawful taking or detention, or of injury to the property of the bankrupt, and all his rights of redeeming such property or estate, with the like right, title, power and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might or could have had, if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee ; (e) and he may sue for and recover the said estate, debts and Power to prose effects, and may prosecute and defend all suits at law or in equity, pending at the time of the adjudication of bankruptcy, in which such bankrupt is a party, in his own name, in the same manner and with the like effect as they might have been prosecuted (g) or defended by such bankrupt. And a copy, duly certified by the clerk of Certified copy of the court, under the seal thereof, of the assignment made by the judge or register, as
assignment to be
evidence. the case may be, to him as assignee, shall be conclusive evidence of his title as such assignee, to take, hold, sue for and recover the property of the bankrupt, as hereinbefore mentioned; but no property held by the bankrupt in trust shall pass by such Trust property
not to pass. assignment.
27. No person shall be entitled to maintain an action against an assignee in bank- Notice to he ruptcy, for anything done by him as such assignee, without previously giving him given of intended twenty days' notice of such action, specifying the cause thereof, to the end that such assignee. assignee may have an opportunity of tendering amends, should he see fit to do so. No Possession of person shall be entitled, as against the assignee, to withhold from him possession of books. any books of account of the bankrupt, or claim any lien thereon; and no suit in which Suits not to the assignee is a party shall be abated by his death or removal from office, but the abate by death same may be prosecuted and defended by his successor, or by the surviving or remain- assignee. ing assignee, as the case may be. The assignee shall have authority, under the order Power to redeem and direction of the court, to redeem or discharge any mortgage or conditional contract,
mortgages, &c. or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same, subject to such mortgage, lien or other encumbrances. (h) The debtor shall also, at the request Further assurof the assignee, and at the expense of the estate, make and execute any instruments, deeds and writings which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt.
28. The assignee shall immediately give notice of his appointment,(i) by publica- Notice of aption, at least once a week for three successive weeks, in such newspapers as shall for pointment. that purpose be designated by the court, due regard being had to their general circulation in the district or in that portion of the district in which the bankrupt and his creditors shall reside ; and shall, within six months, cause the assignment to him to Assignment to be be recorded in every registry of deeds, or other office within the United States, where recorded.
(a) Property of the bankrupt exempt, both by the state law vests in the assignee. Ex parte Meyers, 1 Bank. Reg. 162. and the bankrupt law, from levy and sale, cannot be sold after (e) The assignee represents the whole body of creditors, and it he has filed his petition in bankruptcy, though previously levied is his right and duty to contest the validity of any mortgage by on by the marshal. Ex parte Griffin, 2 Bank Reg. 85. Exempt which one creditor has obtained a preference over another. Ex property does not pass by the assignment. Ex parte Lambert, 2 parte Metzger, 2 Bank. Reg. 114; see Merchants' Bank of HastBank. Reg. 1: 8.
ings v. Truax, 1 Bank. Reg. 146; Ex parte Kerr, 2 Bank. Reg. (6) A chattel mortgnge, though bona fide, is not valid, unless 124. duly recorder under the state law. Ex parte Soldiers' Business (9) So amended by act 27 July 1868. 15 Stat. 228. Messenger and Dispatch Co., 2 Bank. Reg. 172. Nor unless the (h) The assignee may have an order for the sale of real estate mortgagee enter into possession, as required by the state law. mortgaged to the bankrupt. Ex parte Stewart, 15 Pitts. L. J. Ex parte Manly, 2 Am. L. T. Bank. 89. The assignee cannot 222; 8. c. 1 Bank. Reg. 42; Ex parte Salmons, 15 Pitts. L. J. 5+1; make up out of the general funds, any difference between the net 8. C. 2 Bank. Reg. 19; Dwight c. Ames, Ibid. 147. Ile takes, sul proceeds of the sale of the mortgaged property, and the amountject to prior bona fide liens. Ex parte Smith. 1 Bank. Reg. 169. due the mortgago-creditors. Ex parte Purcell, 2 Bank. Reg. 10. Such as a vendor's equitable lien for unpaid purchase-monev: If the property be not worth the sui due the creditor, the Ex parte Perdue, 2 Bank. Reg. 67; 8. c. 2 West. Jur. 279. And assignee his no duties in respect to it. Ex parte Lambert, 2 the sheriff's lien for his costs, which have accrued under an Bank. Reg. 138.
attachment, dissolved by the proceedings in bankruptcy. Ex (c) The a-signee may recover property conveyed by the bank. parto Housberger, 2 Bank. Reg. 33. rupt in fraud of creditors, before the passage of the act. Brad- (i) No discharge can be granted, unless it appear that notice shaw r. Klein, 16 Am. L. R. 505 ; $. c. 1 Bunk. Reg. 146. So, he of the appointment of the assignee was duly published. Ex may receive the proceeds of property sold ly tho sherill, unóler parte Bellamy, 1 Ben. 390. But if the notice be published three a jugment confessed in fraud of the bankrupt law. Wilson r. times in the course of two weeks, instead of once a week for Brinkman, 2 Bank. Reg. 149.
three successive weeks, as required by the act, this will not pre (d) The resulting trust for a bankrupt in real estate purchased vent the granting of a discharge. Ex parte Littlefield, 3 Bank. with his funds, and conveyed to his wife in fraud of creditors, Reg. 13.
2 March 1867.
Record to be evidence.
Powers of the
Snits not to be
a conveyance of any lands owned by the bankrupt ought by law to be recorded ; and the record of such assignment, or a duly certified copy thereof, shall be evidence
thereof in all courts. Ibid. & 15. 29. The assignee shall demand and receive from any and all persons holding the
same, all the estate assigned or intended to be assigned under the provisions of this assignee. act; and he shall sell all such unencumbered estate, real and personal, which comes
to his hands, on such terms as he thinks most for the interest of the creditors; (a) but upon petition of any person interested, and for cause shown, the court may make such order concerning the time, place and manner of sale, as will, in its opinion, prove to the interest of the creditors. And the assignee shall keep a regular account of all money received by him as assignee, to which every creditor shall, at reasonable times, have
free resort.() Ibid. 2 16. 30. The assignee shall have the like remedy to recover all said estate, debts and Remedies of the effects, in his own name, as the debtor might have had, if the decree in bankruptcy assiguee. had not been rendered and no assignment had been made.(c) If, at the time of the May prosecute
commencement of proceedings in bankruptcy, an action is pending in the name of the pending actions.
debtor, for the recovery of a debt or other thing, which might or ought to pass to the assignee by the assignment, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, in like manner and with like effect as if it had been
originally commenced by him. No suit pending in the name of the assignee shall be abated by death
abated by his death or removal; but upon the motion of the surviving, or remaining or new assignee, as the case may be, he shall be admitted to prosecute the suit in like manner and with like effect as if it had been originally commenced by him. In suits prosecuted by the assignee, a certified copy of the assignment made to him by the
judge or register shall be conclusive evidence of his authority to sue. Ibid. & 17. 31. The assignee shall, as soon as may be after receiving any money belonging to Deposit of funds.
the estate, deposit the same in some bank, in his name as assignee, or otherwise keep it distinct and apart from all other money in bis possession; and shall, as far as practicable, keep all goods and effects belonging to the estate separate and apart from all other goods in his possession, or designated by appropriate marks, so that they may be easily and clearly distinguished, and may not be exposed or liable to be taken as his property or for the payment of his debts. When it appears that the distribution of the estate may be delayed by litigation or other cause, the court may direct the temporary investment of the money belonging to such estate, in securities to be approved by the judge or a register of said court; or may authorize the same to be deposited in any convenient bank, upon such interest, not exceeding the legal rate, as the bank may contract with the assignee to pay thereon.
32. He shall give written notice to all known creditors, by mail or otherwise, of all ings, &c.
dividends; and such notice of meetings, after the first, as may be ordered by the court. Compensation. He shall be allowed, and may retain out of money in his hands, all the necessary dis
bursements made by him in the discharge of his duty,(d) and a reasonable compensation for his services, in the discretion of the court. He may, under the direction of the court, (e) submit any controversy arising in the settlement of demands against the estate, or of debts due to it, to the determination of arbitrators, to be chosen by him and the other party to the controversy; and may, under such direction, compound and settle any such controversy, by agreement with the other party, as he thinks proper
and most for the interest of the creditors. Ibid. & 18. 33. The court, after due notice and hearing, may remove an assignee for any cause
which, in the judgment of the court, renders such removal necessary or expedient. signee.
At a meeting called by order of the court, in its discretion, for the purpose, or which shall be called upon the application of a majority of the creditors in number and value, the creditors may, with consent of the court, remove any assignee by such a
vote as is herein before provided for the choice of assignee. An assignee may, with Vacancies, how the consent of the judge, resign his trust and be discharged therefrom. Vacancies
Notice of meet
Removal of as
caused by death or otherwise in the office of assignee may be filled by appointment (a) He may sell the unencumbered assets, without any order (C) The assignee may recover property fraudulently disposed
Ex parte White, 1 Bank. Reg. 1. Where a sheriff of by the bankrupt, by summary proceedings in the district makes a levy after the filing of the petition in bankruptcy, the court. Bill v. Beckwith, 2 Bank. Reg. 82; Ex parte Meyer, Ibid. Ansignee must sell, and deposit the proceeds, subject to the order 137. of the court. Pennington v. Sale, 1 Bank. Reg. 157. Ho must (d) See Ex parte Appold, 16 Am. L. R. 624; Ex parte Sher. surrender to the proper owners, property found in the possession wood, 25 Leg. Int. 76; 8. c. 1 Bank. Reg. 74; Ex parte Walion, of the bankrupt, but not belonging to him. Ex parte Noakos, 1 Ibid. 154; supra, note b. And as to counsel fees, see Ex parte Bank. Reg. 164; see Ex parte Vogel, 2 Bank. Reg: 138.
New York Mail Steanship Co., 2 Bank. Reg. 137. The court may (6) The bankrupt's landlord is entitled to be paid the amount authorize him to expend money in finishing chattels which he of his acerving rent for the use of the demised premises, for the finds in an incomplete and unsaleable condition. Dwight v. time the same was necessarily occupied by the assignee, for the Ames, 2 Bank. Reg. 147. storage of the bankrupt's effects. Ex parte Appold, 16 Am. L. (e) The register has no jurisdiction in the premises. Ex parte R. 624; Ex parte Walton, 1 Bank. Reg. 164; and soo Ex parte Graves, 1 Bauk. Reg. 19. Rose, 2 Balt. L. Tr. 625.
And see Bradshaw v. Klein. 16 Am. L. R. 505.