dismissed, and under said subdivision one the burden of proving solvency shall be on the alleged bankrupt.

[Act of 1867. SEO. 41. and if upon such hearing or trial, the debtor proves to the satisfaction of the court or of the jury, as the case may be, that the facts set forth in the petition are not true, or that the debtor has paid and satisfied all liens upon his property, in case the existence of such liens were the sole ground of the proceeding, the proceedings shall be dismissed and the respondent shall recover costs.]

The bankrupt or any creditor may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow. Under this provision the creditor may appear and assist in the defense of the case, if he so desires. (Secs. 18, b, 59, f.)

Defense of solvency.- An answer to a petition is sufficient, which contains a general denial, and states that the respondent has not committed the acts of bankruptcy set forth, and avers that he should not be declared bankrupt for any cause alleged. (In re Hawkeye Smelting Co., 8 N. B. R. 385.)

d. Whenever a person against whom a petition has been filed as herein before provided under the second and third subdivisions of this section takes issue with and denies the allegation of his insolvency, it shall be his duty to appear in court on the hearing, with his books, papers, and accounts, and submit to an examination, and give testimony as to all matters tending to establish solvency or insolvency, and in case of his failure to so attend and submit to examination the burden of proving his solvency shall rest upon him.

The bankrupt or any creditor may appear and plead to the petition within ten days after the return day or within such further time as the court may allow (sec. 18, b), and if they appear and controvert the facts alleged in the petition, the judge must determine the issues presented by the pleadings and make the adjudication or dismiss the petition. (Sec. 18, d.) A person against whom an involuntary petition has been filed is entitled to have a trial by jury in respect to the question of his insolvency, upon the filing of a written application therefor, at or be fore the time in which an answer may be filed. (Sec. 19, a.)

e. Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an appli

cation is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or applicant shall file in the same court a bond with at least two good and sufficient sureties who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt.

During the pendency of proceedings and until adjudication of bankruptcy, the defendant retains control and title to the property (sec. 70), unless the petitioner file with his petition an application to take charge of and hold the property pending the adjudication, in which event he must accompany it by a bond; or if upon satisfactory proof it is shown that the bankrupt, against whom an involuntary petition has been filed and is pending, has committed an act of bankruptcy, or is neglecting or permitting his property to deteriorate in value, the judge may issue a warrant under which the marshal may seize and hold such property subject to further orders. Before such warrant is issued, however, the petitioner applying therefor must enter into a bond conditioned to indemnify the bankrupt for any damages that may result by reason of such seizure if wrongfully obtained. (Sec. 69, and note under sec. 50, g.) Courts are to appoint receivers or the marshals, upon application of parties in interest, where they find it absolutely necessary for the pres ervation of estates, to take charge of the property of bankrupts after filing of petition, and until it is dismissed or the trustee has qualified. (Sec. 2-3.)

Costs pertaining to the determination of bankruptcy.- Where, in involuntary bankruptcy, there has been litigation of the question whether acts of bankruptcy had been committed, his fee should be allowed the debtor's counsel out of the assets of the bankrupt estate (In re Portsmouth Savings Fund Society, 11 N. B. R. 303; 2 Hughes, 239; Fed. Cas. 11298); and the petitioning creditor is entitled to "the same costs that are allowed by law to a party recovering a suit in equity." (In re Shee han, 8 N. B. R. 353; Fed. Cas. 12788.)

Custody of the property of the bankrupt.— A marshal has no authority under a warrant, issued in response to a petition asking that the property of the debtor be seized provisionally, to seize property outside of his district. (Carr v. Phillips, 18 N. B. R. 527; sec. 5016, R. S.) If the

marshal, in executing a warrant for the seizure of a bankrupt's property, seize that of a stranger, he renders himself liable to an action for trespass, which may be brought in a state court. (Marsh and Palmer, Executors, v. Armstrong, U. S. Marshal, 11 N. B. R. 125.) A receiver may be appointed after an adjudication of bankruptcy and before the selection of an assignee, for the temporary care and custody of the estate, when special circumstances render it desirable. (Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Wkly. Dig. 112; Fed. Cas. 8077.)

If such petition be dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond.

[Act of 1867. SEC. 41. If, upon such hearing or trial, the debtor proves to the satisfaction of the court or of the jury, as the case may be, that the facts set forth in the petition are not true, or that the debtor has paid and satisfied all liens upon his property, in case the existence of such liens were the sole ground of the proceedings, the proceedings shall be dismissed and the respondent shall recover costs.

Courts of bankruptcy are authorized to tax costs, whenever they are allowed by law, and render judgment therefor against the unsuccessful party, or the successful party for cause, or in part against each of the parties, and against estates. (Sec. 2-18.)

Sec. 4. Who may become bankrupts.-a. Any person who owes debts, except a corporation, shall be entitled to the benefits of this Act as a voluntary bankrupt.

[Act of 1867. SEO. 11. And be it further enacted, That if any person residing within the jurisdiction of the United States, owing debts provable under this act exceeding the amount of three hundred dollars, shall apply by petition addressed to the judge of the judicial district in which such debtor has resided or carried on business for the six months next immediately preceding the time of the filing of such petition, or for the longest period during such six months, setting forth his place of residence, his inability to pay all

his debts in full, his willingness to surrender all his estate and effects for the benefit of his creditors and his desire to obtain the benefit of this act, and shall annex to his petition a schedule [here follows contents of schedule] the filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt: 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 to the United States, which oath shall be filed and recorded with the proceedings in bankruptcy. And the judge of the district court, or, if there be no opposing party, any register 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 signed by such judge or register, directed to the marshal of said district, authorizing him forthwith, as messenger, to publish notices in such newspapers as the warrant specifies. [Here follows requirement as to notice.]

SEC. 37. And be it further enacted, That the provisions of this act shall apply to all moneyed business or commercial corporations and joint-stock companies, and that upon the petition of any officer of any such corporation or company, duly authorized by a vote of a majority of the corporators at any legal meeting called for the purpose, or upon the petition of any creditor or creditors of such corporation or company, made and presented in the manner hereinafter provided in respect to debtors, the like proceedings shall be had and taken as are hereinafter provided in the case of debtors. No allowance or discharge shall be granted to any corporation or joint-stock company, or to any person or officer or member thereof: Provided, That whenever any cor poration by proceedings under this act shall be declared bankrupt, all its property and assets shall be distributed to the creditors of such corporations in the manner provided in this act in respect to natural persons.]

The word "bankrupt" includes a person against whom an involuntary petition or an application to set a composition aside or to revoke a discharge has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt. (Sec. 1—4.)

The distinction between voluntary and involuntary bankruptcy is determined by the person filing the petition; if by the debtor, it is voluntary, and if by the creditor, involuntary. While wage-earners and tillers of the soil may partake of the benefits of this act by becoming voluntary bankrupts, they cannot be declared so by the institution of involuntary

proceedings at the instance of the creditors. When once an adjudication has been had all distinction ceases, and the rights and responsibilities of all bankrupts and their creditors are identical. A voluntary bankrupt, unable to pay the necessary filing fees, may be relieved therefrom upon filing an affidavit with his petition in which he shall state that he "is without, and cannot obtain, the money with which to pay such fees." (Sec. 51-2.)

Pursuant to this section any person except a corporation may become a voluntary bankrupt, provided he owes a debt, the term "debt" including any debt, demand or claim provable in bankruptcy. (Sec. 1-11.) The fact that it is a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date, or with rebate of interest upon such as were not then payable and did not bear interest, may nevertheless be proved and allowed. (Sec. 63a.) Provision for filing the petition is made in section 59, a.

b. Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated company, and any corporation engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be subject to the provisions and entitled to the benefits of this Act. Private bankers, but not national banks or banks incorporated under State or Territorial laws, may be adjudged involuntary bankrupts.

Any person,

or

[Act of 1867. SEC. 39. who being a banker, merchant or trader, has fraudulently stopped or suspended and not resumed payment of his commercial paper, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy, and, subject to the conditions hereinafter prescribed, shall be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose debts provable under this act amount to at least two hundred and fifty dollars, provided such petition is brought within six months after the act of bankruptcy shall have been committed.]

Married women.- A married woman cannot be adjudicated a bankrupt where by the law of her domicile she is incapable of making a con