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within the general equity powers of a court of bankruptcy, after an adjudication and before the selection of a trustee, to appoint a receiver for the temporary care and custody of the estate, when special circumstances rendered it desirable. Lansing v. Manton, 14 N. B. R. 127, Fed. Cas. No. 8,077; Sedgwick v. Place, 3 Ben. 360, Fed. Cas. No. 12,619. For example, a receiver may be appointed where the apparent titles to property are such on their face that the marshal cannot act efficiently under the usual warrant. Keenan v. Shannon, 9 N. B. R. 441, Fed. Cas. No. 7,640. But no appointment will be made unless the party alleged to hold the property adversely to the complainant is served with process (Hyslop v. Hoppock, 5 Ben. 447, Fed. Cas. No. 6,988), nor where, upon the hearing of the motion, it is not apparent that the ultimate determination of the suit in favor of the complainant is reasonably probable. Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.

Power to Call in Stock Subscriptions.

The court of bankruptcy has jurisdiction and authority to order delinquent stockholders of a corporation to pay up their subscriptions to the capital stock, and if they fail to do so, the trustee has the same right of action that the corporation itself would have had to compel such payment. Sanger v. Upton, 91 U. S. 56; In re Republic Ins. Co., 3 Biss. 452, Fed. Cas. No. 11,704; Payson v. Stoever, 2 Dill. 427, Fed. Cas. No. 10,863. And a provision in the subscription and in the stock certificate that the balance was to be paid on the call of the directors, "when ordered by a vote of a majority of the stockholders themselves," does not prevent the effectual exercise of this power by the court; as a court of equity it has all the power of the directors, or the stockholders, or both collectively. Upton v. Hansbrough, 3 Biss. 417, Fed. Cas. No. 16,801.

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§ 3. a Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground.

b A petition may be filed against a person who is insolvent and who has committed an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after (1) the date of the recording or registering of the transfer or assignment when the act consists in having made a transfer of any of his property with intent to hinder, delay, or defraud his creditors or for the purpose of giving a prefer

ence as herein before provided, or a general assignment for the benefit of his creditors, if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property unless the petitioning creditors have received actual notice of such transfer or assignment.

c It shall be a complete defense to any proceedings in bankruptcy instituted under the first subdivision of this section to allege and prove that the party proceeded against was not insolvent as defined in this act at the time of the filing the petition against him, and if solvency at such date is proved by the alleged bankrupt the proceedings shall be dismissed, and under said subdivision one the burden of proving solvency shall be on the alleged bankrupt.

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.

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

BL. BANK.-2

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.

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.

ACTS OF BANKRUPTCY.

Insolvency of Debtor.

It will be observed that some of the acts of bankruptcy enumerated in the statute can be committed only by a person who is insolvent. As the term was used in former laws on the subject of bankruptcy, "insolvency" was defined as the inability to pay one's debts and meet his engagements as they matured in the usual and ordinary course of his business as persons in trade usually do. But the first section of the present act (clause 15) declares that a person shall be deemed “insolvent," within the provisions of the act, when the aggregate of his property, excluding such as he may have fraudulently conveyed or transferred, or concealed or removed, shall not be sufficient in amount, at a fair valuation, to pay his debts.

The failure to pay a single debt when due, it is said, is not sufficient to establish the fact of insolvency. Driggs v. Moore, 1 Abb. (U. S.) 440, Fed. Cas. No. 4,083.

Fraudulent Conveyances.

A conveyance, sale, transfer, or assignment of property which is fraudulent at common law is an act of bankruptcy; and so is every conveyance or assignment which contravenes the objects and provisions of the bankruptcy law, although it might have been good at common law. Gassett v. Morse, 21 Vt. 627, Fed. Cas. No. 5,264. Thus, a sale of a stock in trade, in gross, without invoice, at night, and for cash, is not a sale made in the ordinary course of business, and may be an act of bankruptcy. Davis v. Armstrong, 3 N. B. R. 33, Fed. Cas. No. 3,624. But a sale of property by a person who is in fact insolvent is not necessarily, and without regard to its character, void under the bankruptcy law. If it was made in good faith and for the honest purpose of discharging a debt, and in the confident expectation that by so doing the person could continue his business, it will be upheld. But if he made it to avoid the provisions of the bankruptcy act, and to withdraw his property from its control, and the vendee either knew or had reasonable cause to believe that the vendor's intention was of this character, it will be avoided. Tiffany v. Lucas, 15 Wall. 410. The sale of a stock of goods will not be considered an act of bankruptcy where the only object of the seller was to change his business, and the purchaser acted in good faith. In re Valliquette, 4 N. B. R. 307, Fed. Cas. No. 16,823. It is not an act of bankruptcy for a railroad corporation to convey its property in trust to secure bonds to be issued and sold, and the proceeds to be applied to pay all its unsecured debts, the same being done in good faith and with a view to enable the company to continue its legitimate business, though it may be technically insolvent, or likely soon to be so. In re Union Pac. R. Co.,

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