UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY vi7/M,i:Tr". SAvl (L- ;aijfo£i cm. ^AWHan# %IIDNVS01^ %HlMNn3ViV KvXLiiiiKAfi 'Vl^iTM ]T>r'\ Ffv frt ^iUBRARY<9/. ^lIBRARY^k %ojnv3JG^ ^■UNlVik^. i^ ^ ^^ OFCALIFO% HVHaiHv^ ^om^ A TREATISE ON THE Bankruptcy Law of the United States BY HAR©LD REMINGTON Referee in Bankruptcy, Cleveland, 0. Lecturer on the Laiv of Bankruptcy at Western Reserve University Volume II The Michie Company, Law Publishers Charlottesville, Va. 1908 Copyright, 1908 BY Harold Remington. T TABLE OF CONTENTS IN VOLUME II. For Table of Contents in Vol. I, see Vol. I. PART VI. Converting the Assets into Money, CHAPTER XXXVII. Appraisal. § 1924. All Property of Estate to Be Appraised 1203 § 1925. Only Property of Estate Need Be Appraised 1203 § 1926. Appraisers to Be Disinterested 1203 § 1927. And to Be Appointed by and Report to Court 1204 § 1928. Three Appraisers 1204 § 1929. To Be Sworn 1204 § 1930. Method of Arriving at Appraisal Values •. 1205 § 1930^4. Reappraisal 1206 CHAPTER XXXVIII. Sale of Assets. § 1931. Sale to Be on Petition and Order 1207 § 1932. Equity Rules Followed Where Act, Forms and Orders Silent 1208 § 1933. Special Orders as to Manner of Sale 1208 § 1934. As to Auctioneers Conducting Sale 1208 § 1935. Whether Sate to Be for Cash" 1209 § 1936. Bids Both in Bulk and Parcels with Acceptance of Greatest Aggre- gate 1209 § 1937. Trustee's Judgment Ordinarily of Controlling Weight in Fixing Details, but Creditors, and Even Bankrupt, Heard 1209 § 1938. Ten Days Notice by Mail Requisite 1209 § 1939. Public Auction of Real Estate to Be, Also, on Four Weeks Ad- vertisement, and at County Courthouse or on Premises 1210 § 1940. Private Sales, Real Estate or Personal Property, Advertised and Conducted as Court Directs 1210 § 1941. Who May File Petition to Sell: Trustee, Receiver, Marshal, Bank- rupt ; 1211 § 1942. Perishable Property May Be Sold without Notice 1212 § 1943. Sales before Adjudication 1212 § 1944. Meaning of "Perishability." 1212 § 1945. Referee to Order Sale after Reference 1214 § 1946. Before Adjudication Judge Alone to Order Sale, unless Unable to Act 1214 776901 IV TABLE OF CONTENTS. § 1947. To Be at Public Auction, unless Expressely Authorized at Pri- vate Sale 1214 § 1948. For Good Cause Shown May Be at Private Sale 1214 § 1949. Sale'Subject to Approval and to Be for Seventy-Five per Cent.... 1215 § 1950. Trustee's Sale, a Judicial Sale 1215 § 1951. And Court Has Greater Discretion than in Other Sales 1216 § 1952. "Gross Inadequacy" Sufficient to Refuse Confirmation 1216 § 1953. But Mere Inadequacy, or Merely a Better Ofifer, Insufficient 1216 § 1954. Stifling of Competition; Misconduct of Trustee or Unfairness to Bidders 1217 § 1955. Bankrupt May Be Bidder 1218 § 1956. May Accept Bid of Less than Seventy-Five per Cent 1219 § 1957. Inherent Power to Refuse Confirmation or to Set Aside, Even Where Not Expressly Ordered "Subject to Approval." 1219 § 1958. Formal Approval Not Always Essential to Confirmation 1220 § 1959. "Caveat Emptor." 1220 § 1960. Discretion in Approving or Setting Aside Sale Not to Be Revised. except for Abuse 1221 § 1961. Resale 1221 § 1962. Summary Power to Compel Purchaser to Complete Sale 1221 CHAPTER XXXIX. Selling Property Subject to and Free from Liens ; and Trans- ferring Rights to Proceeds. § 1963. May Be Sold Subject to Liens 1223 § 1964. If Not Mentioned to Be Otherwise, Sale Is Subject to Liens 1223 § 1965. May Be Sold Free from Liens and Liens Transferred to Proceeds.. 1223 § 1966. Lienholder's Consent Not Necessary 1225 § 1967. Sale Clear and Free Ordered before Validity or Priority Deter- mined 1225 § 1968. But Not Where Lienholder Who Desires to Bid, Objects 1225 § 1969. Sale Subject to Some Liens Free from Others 1225 § 1970. Order Should Provide for Transfer of Rights to Proceeds 1226 § 1971. No Sale Free and Clear unless Reasonable Prospect of Surplus Ap- pear or Lienholder Requests 1226 § 1972. Parties Relegated to State Court Where Foreclosure Necessary to Bar Rights Not within Jurisdiction of Bankruptcy Court 1227 § 1973. Thus, Where Inchoate Dower Outstanding 1227 § 1974.' But, if Wife Consents, Sale May Be Made Free from Dower 1227 § 1975.. Referee May Order Sale Free from Liens 1228 § 1976. Even Free from Lien Taxes , 1228 § 1977. Even before Validity and Priority of Liens Determined 1228 § 1978. Even Where Located Outside of State, Provided Property Be Per- sonally and in Actual Custody 1228 § 1979. And Consent of Parties Not Necessary 1228 § 1980. Notice to Lienholders Requisite 1229 § 1981.' No Established Form for Notice ^ 1229 § 1982. "Order to Show Cause," Approved Form of Notice 1229 § 1983. Record of Referee to Show Notice and to Whom Given 1230 § 1984. Procedure in Referee's Court to Follow Equity Rules Where Bank- ruptcy Rules Silent 1230 § 1985. How Lienholder to Set Up Lien 1230 TABLE OF CONTEXTS. V § 1986. Separate Accounts of Each Fund to Be Kept ■ 1230 § 1987. Failure to Object to Sale without Separatiooi Waives Rights 1231 § 1988. Taking Additional Evidence, after Sale, to Fix Proportions of Fund. 1233 § 1989. Expenses of Preservation and Sale Paid Out of Particular Fund In- volved 1232 § 1990. Each Fund to Bar Its Own Expenses and Costs 1233 § 1991. Proportionate Part Not to Be Charged against Each Lien 1233 § 1992. Costs and Expenses First Deducted and Liens Paid Out of Remain- der 1233 § 1993. General Costs of Administration Not Chargeable 1233 § 1994. Trustee's Attorney's Fees and Expenses Benefiting Entire Fund Chargeable but Xot Services for Litigating Liens 1^34 § 1995. Referee Has Authoritj^ to Tax Costs and Expenses 1234 § 1996. Costs and Expenses Taxable 1234 § 1997. Lienholder as Purchaser, May Apply Lien on Price, except as to Superior Liens 1236 § 1998. Trustee's Deed or Bill of Sale 1236 § 1999. Remedies against Purchaser 1236 § 2000. Xo Jurisdiction of Suit by Third Part}- against Purchaser from Trustee 1237 PART VII. Costs of Administration, Distribution and Closing of Estates. CHAPTER XL. Cost and Expenses of Administration. § 2001. Jurisdiction to Tax Costs 1244 § 2002. May Be Taxed by Referee 1244 § 2003. May Be Taxed against Successful Party, "for Cause." 1244 § 2004. No Showing of "Cause" Requisite Where Taxed against Unsuccess- ful Party 1245 § 2005. Stenographer's Fees Taxable as Costs 1245 § 2006. Employment of Stenographer at Expense of Estate 1245 § 2007. Compensation Not to Exceed Ten Cents per Folio for Taking and Transcribing 1245 § 2008. Costs in Contesting Claims before Election of Trustee Not Taxable against Estate 1246 § 2009. No Costs in Personam against Parties in Summarj^ Proceedings, Not Personally Appearing 1246 § 2010. No Part of General Costs of Administration to Be Taken Out of Property Not Forming Part of Assets for Administration 1246 § 2011. Policy of Act, Strictest Economy 1247 § 2012. Preliminary Deposits for Referee, Clerk and Trustee 1249 § 2013. First "Priority" — "Actual and Necessary Cost of Preserving Estate Subsequent to Filing Petition." 1250 § 2014. What Included in Term 1250 § 2015. Second "Priority" — Reimbursement of Petitioning Creditors, and of Creditors Recovering Concealed Assets 1252 § 2016. Reimbursement of Creditors Recovering Concealed Assets, etc.... 1253 § 2017. Trustee to Be Given First Opportunity 1253 VI TABLE OF" CONTENTS. § 2018. Disallowance of Unjust Claims before Election of Trustee 1254 § 2019. Third Priority — "Costs of Administration." 1256 § 2020. Equity Rules to Govern Order of Precedence in Class Three 1256 § 2021. Indemnifying Court Officers and Advancing Moneys for Expenses. 1257 § 2022. Reimbursement of Expenses Advanced 1257 § 2023. Xo Reimbursement of Original Deposit except to Petitioning Cred- itors 1257 § 2024. Nor of Attorney's Fees Paid by Bankrupt in Advance 1258 § 2025. No Reimbursement of Bankrupt for Care of Exempt Property.... 1258 § 2026. Reimbursement to Follow Order of Priority of Expenses Them- selves 1258 § 2027. Probable Order of Priority 1258 S 2028. Referee's Expenses 1259 § 2029. "Expenses" Not Covered by Statutory "Compensation" of Referee and Trustee 1259 § 2030. What Are Proper Expenses of Referee 1259 § 2031. No Reimbursement \Miere Expenses Not Required by Act or Rules 1260 § 2032. Method of Apportioning Expenses 1261 § 2033. Expenses of Receivers and Trustees 1261 § 2034. Rent for Use and Occupation 1261 § 2035. Computed at Lease Rate 1262 § 2036. Expense of Conducting Business 1263 § 2037. Auctioneer 1263 § 2038. Premium on Bond 1263 § 2039. Not Necessary to Pay Expenses Out of Pocket First, Then to Be Allowed Reimbursement 1263 § 2040. Cost and Expenses of Litigation 1264 § 2041. Attorney's Fees Incurred by Trustees and Receivers 1264 § 2042. Allowable Attorney's Fees 1265 § 2043. Clerical Work or Ordinary Business Advice Not to Be Charged for at Professional Rates 1265 § 2044. For Many Services Attorney to Seek Pay from Own Client, Not from Estate ^ 1265 § 2045. The Fees Allowed Must Be "Reasonable." 1266 § 2046. "Reasonableness" Left to Sound Judicial Discretion of Court 1267 § 2047. Various Elements to Be Considered, Each Having Modifying Effect 1268 § 2048. Sixth Element, in Bankruptcy Cases, "Economy" 1271 § 2049. Items Properly to Be Grouped According to Separate Contro- versies Involved and Estimate ^lade as to Each Group 1272 § 2050. "Retainer Fees," No Place in Bankruptcy 1274 § 2051. Mere Incidental Benefit from Services in Opposing Adjudication, etc., Not Sufficient 1274 § 2052. Showing to Be Made of Propriety and Reasonableness 1275 § 2053. Notice to Creditors Not Requisite, unless by Local Rule 1275 § 2054. Trustee's and Receiver's Attorney's Fees 1276 § 2055. Not to Employ Attorney to Do Ordinary Business Duties of Trus- tee 1278 § 2056. Fees Allowable for Investigating and Resisting Improper Claims.. 1279 § 2057. But Creditors Not So Entitled Even for Successful Objections to Claims before Election of Trustee 1279 TABLE OF CONTENTS. VH § 2058. No Fees for Preparation of Papers Where Supreme Court's Forms Adequate 1280 § 2059. Whether Trustee Allowed Attorney's Fees for Own Professional Services 1280 § 2060. Attorneys for Creditors Co-Operating with Trustee's or Receiver's Attorney Not Entitled 1281 § 2061. Exhausting Entire Estate in Attorney's Fees in Efforts to Discover Assets 1282 §2062. Fee Bills, Properly, Should Be Itemized 1282 § 2063. Petitioning Creditors' Attorney's Fees 1282 § 2064. Is Matter of Right 1282 § 2065. Only One Fee, Irrespective of Number of Attorneys 1282 § 2066. Apportionment Where Intervening Creditors Assist 1283 § 2067. Apportionment in Cases of Consolidation 1283 § 2068. For What Services Allowable to Petitioning Creditors 1283 § 2069. Allowance Not to Be on Basis of Plaintiffs' in Creditors' Bills.... 1284 § 2070. "Amount Involved," Not Entire Estate but Only Surplus over Valid Liens 1284 § 2071. No Fees to Petitioning Creditors for Objecting to Claims at Elec- tion of Trustee 1285 § 2072. Nor for Examination of Bankrupt after Appointment of Trustee.. 1285 § 2073. But Allowable for Pursuing Property before Adjudication 1285 § 2074. None for Services after Election of Trustee 1285 § 2075. No Allowance in General Out of Mortgaged Property Sold 1285 § 2076. Review of Allowance of Petitioning Creditor's Fees by Appeal.... 1286 § 2077. Bankrupt's Attorney's Fees 1286 § 2078. In Involuntary Cases, Confined to Services Rendered While Bank- rupt in Performance of Duties Prescribed by Law 1287 § 2079. Actual Benefit to Estate Not Test, However 1288. § 2080. Services Must Be Reasonably Necessary and Actually Rendered.. .. 1288 § 2081. Must Be Professional Legal Services, and Not Merely Clerical or Business 1288 § 2082. Legal Assistance in Preparing Schedules, Examining Claims at First Meeting, etc., Proper 1288- § 2083. "Amount Involved" Not Entire Estate, but Only Surplus over Valid Liens 1289 § 2084. No Allowance Out of Mortgaged Property, except for Mere Pres- ervation 1289 § 2085. And None for Services in Opposing Bankruptcy Proceedings 1289- § 2086. For Attendance at Bankrupt's Examination Allowable 1290- § 2087. Whether Fees Allowable for Petition for Discharge, etc 1291 § 2088. No Allowance for Bankrupt's Admission in Writing of Inabillity to Pay Debts, etc., nor for Services in Aid of Adjudication; nor in Contests over Exemptions 1293 § 2089. Bankrupt's Fee Allowable More Discretionary in Voluntary than in Involuntary Cases 1293 § 2090. Test in Voluntary Cases, in General ■. 1294 § 2091. Preliminary Consultations May Be Charged for in Voluntary Cases. 1295- § 2092. Application for Receiver or Other Provisional Remedy Allowed for.. 1295 § 2093. Only One Fee to Be Allowed 1295 § 2094. Bankrupt Paying Attorney in Advance 1296 § 2095. All Payments to Attorney in Contemplation of Bankruptcy Gov- erned by § 60 (d) '• . • • 1296: yijl TABI^E 01^ CONTENTS. § 2096. Whether Different Principles Govern from Those Where Allowed Out of Estate 1296 § 2097. Under § 60 (d) Must Be for Benefit Estate or in Furtherance of Ad- ministration 1296 § 2098. Prepaid Fee to be "Reasonable" and Subject to Re-Examination.. 1298 § 2099. Summary Jurisdiction over Attorney to Require Repayment of Ex- 1298 cess ^"'^^ § 2100 Prepayment before Filing Petition, or at Any Time before Adjudica- tion ■ • • • 1298 § 2101. Prepayment Effected by Giving Security 1298 § 2102. Referee's Compensation 1299 § 2103 Referee's (Commissions Computed on Disbursements to "Credit- ors." 1299 § 2104. Thus, Commissions on Disbursements to Priority and Secured Creditors 1300 § 2105. Property Sold Fr^e of Liens When Lienholder Purchaser 1300 § 2106. In Composition Cases Referee to Receive One-Half of One per Cent ■ 1300 § 2107. "Twenty-Five Cents for Each Claim Filed," Part of "Compensa- tion." 1301 § 2108. Trustee's Compensation 1301 § 2109. Commissions Computed on Disbursements for Expenses and to Creditors 1301 § 2110. Except That in Composition Cases Computed Only on Disburse- ments to Creditors 1302 § 2111. Whether "Disbursement" Includes Proceeds of Property and Trust Funds Surrender to Adverse Claimants, and Exempt Property Sold by Trustee ; 1302 § 2112. Entitled Even Where Outside Agreement to "Credit" Exists and Actual Money Does Not Pass 1302 § 2113. No Absolute Right to Full Commissions: Less May Be Allowed or Allowance Withheld 1303 § 2114. Apportionment Where Three Trustees or Successive Trustees.... 1303 § 2115. Extra Compensation for Conducting Business 1303 § 2116. But Not to Exceed Rate for Trustee's Ordinary Services 1304 § 2117. No Additional Compensation Allowable in "Any Form or Guise." 1305 § 2118. Receiver's Compensation 1306 § 2119. Receiver's Maximum Allowance Properly Not to Exceed Trustee's. 1306 § 2120. Appeal and Review of Expenses, and Cost of Administration 1308 § 2121. Appraisers' Fees 1308 § 2122. Witness Fees and Mileage 1308 § 2123. Bankrupt Not Entitled to Witness Fees 1308 § 2124. But to Reimbursement of Actual Expenses Where Attending 1309 § 2125. But Where Voluntary Removing Residence after Bankruptcy In- stituted .' 1309 § 2126. Whether Officers and Directors of Bankrupt Corporation Entitled to Witness Fees 1309 § 2127. Witness Fees for Attendance without Subpoena Equally Allowable. 1309 § 2128. Amount of Witness Fee 1309 § 2129. Marshal's Fees : ' 1310 § 2130. Marshal May Demand Indemnity 1310 § 2131. May Charge Reasonable Fee for Service on Petition to Show Cause 1310 TABLE OF CONTENTS. IX § 2132. Marshal and Receiver Entitled to Reasonable Compensation, Be- sides Expenses, on Seizure under § 2 (3) 1310 CHAPTER XLI. Distribution to Creditors. ^ 2133. Distribution 1317 § 2134. Order of Priority in Distribution Prescribed by Act 1317 § 2135. Priority Xot Lost by Taking Judgment, nor by Assignment of Claim 1317 § 2136. Not Lost Where Claim Also a Secured Debt 1318 § 2137. Mere Judgments Not Entitled to Priority as Such 1318 § 2138. "Proof" of Priority Claim Requisite, Except for Taxes, etc 1318 § 2139. No Special Form of Proof nor Assertion of Demand Requisite.... 1318 § 2140. "Dividends" on Priority Claims Where Funds Insufficient 1319 § 2141. Taxes 1319 •§ 2142. Assessed before Bankruptcy Though Not Payable until after Ad- judication, Nevertheless "Due and Owing" 1321 § 2143. Back Taxes, Omitted, to Be Paid 1321 § 2144. Delinquent Penalties and Interest 1321 f 2145. Taxes to Be Paid Whether Propert}- Comes into Trustee's Hands or Not 1322 § 2146. Taxes on Exempt Property to Be Paid 1323 § 2147. Taxes to Be Paid' Out of General Fund Though Only One Bene- fited Is Mortgagee, Purchaser, etc 1323 § 2148. But Such Absolute Priority Belongs Solely to State, Municipality, etc., Not to One Who Has Paid or Holds Tax Title 1325 § 2149. "Subrogation" to Tax Lien Sometimes Proper 1327 ■§ 2150. Must Be Owing by Bankrupt and Assessed against Him 1328 § 2151. Firm Taxes in Individual Bankruptcies 1329 § 2152. Funds in Hands of Trustee Taxable, Where Taxable if Similarly Sequestrated by State Legal Proceedings 1329 § 2153. "Tax" Includes Assessment for Local Improvements 1330 § 2154. Nature of Tax. Whether License, Penalty or Tax, Generally Deter- mined by State Law 1330 I 2155. But Not Always 1330 ? 2156. Thus, Franchise Tax 1331 § 2157. But Bankruptcy Court, Forum as to Amount and Legality of Tax.. 1332 I 2158. And Decision of State Board of Assessment Not "Res Judicata".. 1332 § 2159. Nor Is Failure to Pursue Statutory Appeal or Abatement Fatal.. 1332 § 2160. Whether Taxes "Provable" Debts 1333 § 2161. No Formal "Proof" Required: Trustee Must Search for Taxes 1334 § 2162. Year's Limitation for "Proofs" Not Applicable to Taxes 1334 ? 2163. Tax Not Such "Secured" Claim as Requires Exhaustion of Security. 1335 § 2164. Wages of Workmen, Clerks and Servants 1335 § 2165. Must Be "Wages" and Be "Due" and "Earned" 1335 § 2166. Thus. No Priority for Damages for Breach of Contract of Employ- ment 1335 § 2167. Only "Workmen," "Clerks" or "Servants" Entitled 1336 § 2168. Relationship between Parties Governs and Not Solely Kind of Work 1336 § 2169. "Workmen," "Clerks" and "Servants" to Be Given Ordinar}^, Popu- lar Meaning 1336 X TABLE OF CONTENTS. S 2170. "Traveling Salesmen" also Entitled to Priority 1338 § 2171. Definition of "Wage Earner" in §§ 1 and 4 Not Criterion Here 1338 § 2172. Thus, Independent Contractors Not Entitled 1338 § 2173. Exclusive Employment by One Person Not Requisite 1339 § 2174. But Employment by Several Tends to Show Independent Con- tractor 1339 § 2175. "Piece Workers" May Be Entitled 1340 § 2176. Idea of Subordination Implied 1340 § 2177. Correlative Obligations to Serve Implied 1341 § 2178. Must Be Performed within Three Months before Bankruptcy 1341 § 2179. Whether Maj^ Be for Services Covering Longer Period if Priority Claimed Not under § 64 (b) (4) but under § 64 (b) (5) 1341 § 2180. Not to Exceed "Three Hundred Dollars" ' 1342 § 2181. But Perhaps for IMore if Priority Claimed Not under § 64 (b) (4) but under § 64 (b) (5) 1342 § 218?. Reducing Claim to Judgment, Not Such Merger as to Lose Priority.. 1342 § 2183. Nor Is Priority Lost by Assignment of Claim 1342 § 2184. Subrogation of Persons Advancing Money to Meet Pay Rolls 1344 § 2185. Due "Proof" to Be Made of Priority Claim 1344 § 2186. Wages Claims "of Workmen, Clerks and Servants" No Precedence over Valid Prior Liens 1344 § 2187. Priorities Granted by State and Federal Laws 1345 § 2188. "Priority" to Be Distinguished from "Liens" 1345 § 2189. Federal and State Government and Municipality, as Priority Claim- ants 1345 § 2190. Priority Given to "Any Person" by United States Law Preserved.. 1346 § 2191. Government Contracts 1346 § 2192. No Proof of Claims Requisite by Government to Secure Priority.. 1346 § 2193. Year's Limitation for Proving Claims Not Applicable to Govern- ment 1346 § 2194. State Law Priorities Adopted Where Claimants Not in Classes Al- ready Covered by Express Bankruptcy Priorities 1346 § 2195. State Priorities to Laborers, Where Different from Bankruptcy Priorities 1347 § 2196. Whether State Priorities in Cases of Assignments, Receiverships, etc.. Preserved When Custody Superseded by Bankruptcy 1347 § 2197. Wliether State Priorities Dependent on Resort to Particular Reme- dies, Such as Insolvency or State Bankruptcy Proceedings, to Be Recognized 1349 § 2198. Rule Adopting State Priorities, Not to Override § 67 "f" Annulling "Legal" Liens 1351 § 2199. But Claimant Must Comply with All Regulations and Prerequisites of State Priority 1352 § 2200. Whether, Where Bankruptcy Prevents, Compliance Dispensed with, or Levy Permitted and Discharge Stayed to Enable Perfecting of Priority 4 1353 § 2201. Trustee Cannot Perfect Priority Claims 1353 § 2202. Relative Precedence among State Priorities Preserved 1353 § 2203. Where Both State Law and Bankrupt Act Gives Priority to Same Class, Bankrupt Act Excludes State Law 1354 § 2204. Landlord's Priorities 1356 § 2205. Priorities for Furnishing Supplies and Materials for Manufacturing Establishments: Fiduciary Debts as Guardian: Community Prop- erty of Husband and Wife, etc 1357 TABLE Of CONTENTS. XI § 2206. Dividends to General Creditors 1358 § 2207. To Be Paid in Two Dividends 1358 § 2208. Purpose of Two Dividends Protection of Dilatory Creditors 1358 § 2209. First Dividend 1359 § 2210. Dividend within Thirty Daj-s after Adjudication Required Only Where Money in Estate 1359 § 2211. Subsequent Dividends 1359 § 2212. Dividends Need Not Be Returned because of Filing of Subsequent Claims 135« § 2213. Claims Subsequently Filed, to Receive Prior Dividends before X^ew Dividend Declared 1359 § 2114. Need Not Retain Funds until Expiration of Year's Limitation for Proving Claims 1360 § 2215. "Ten Days Notice" of "Dividends" 1360 § 2216. "Dividend Sheets" 1360 § 2217. Unclaimed Dividends 1360 § 2218. Contracting to Postpone One's Dividend to That of Other Cred- itors 1361 § 2219. Adjusting Equities in Dividends among Creditors 1361 § 2220. Postponing Dividends of Some Creditors to Others, Because of Equities 1361 '§ 2221. Thus, Dividing Fund, on Setting Aside Void Transfer, Solely among "Subsequent" Creditors 1362 § 2222. Requiring Surrender of Illegal Advantage before Allowing to Share in Dividends 1363 § 2223. Requirement of Surrender of Preferences before Allowing to Share in Dividends 1363 § 2224. Dividends Not to Be Subjected by Garnishment 1363 § 2225. But Probably May Be by Equitable Action 1363 § 2226. Bankruptcy Court No Jurisdiction to Entertain Such Action 1363 § 2227. If Bankrupt Garnishee, Trustee to Respond 1363 § 2228. Bankruptcy Court Has Jurisdiction over Attorneys' Lien Claims.. 1364 § 2229. Attorney's Right to Lien .- 1364 § 2230. In General 1364 § 2231. Where Partnership Bankrupt, Individual Estates Brought in Though Individuals Not Adjudged Bankrupt 1365 § 2232. And "Consent" Not Necessary 1366 § 2233. Partnership Trustee, Trustee Also of Individual Estates 1366 § 2234. Separate Accounts to Be Kept and Joint Expenses Apportioned.. 1367 § 2235. Property Originally Individual, Becoming Partnership, to Be Ad- ministered as Such 1367 § 2236. Agreement Not Necessarily Express 1367 § 2237. Partnership Debts "Provable" against Individual Both in Partner- ship and in Individual Bankruptcy, Likewise Individual Debts against Partnership 1368 § 2238. Partnership Creditors to Exhaust Partnership Assets, Individual Creditors Individual Assets; Each Sharing in Other Only in Surplus 1368 § 2239. Section 5 Refers Only to Actual Partnerships, Not Those by "Hold- ing Out" 1370 § 2240. Obligations Signed by Firm in Firm Name, Prima Facie Allowable as Firm Debts 1370 XII TABi,E OF conte;nts. § 2241. Individual Debt Assumed by Firm Provable against Partnership if Sufificient Consideration 1370 § 2242. But Assumption Must Be Acquiesced in by Creditors 1371 § 2243. Loan to Enable Partner to Furnish Contributor}' Share Not Firm Debt 1371 § 2244. Mere Joint Obligations, Not Amounting to Partnership Debts, Not Allowable, on Par with Firm Debts 1371 § 2245. Parol Evidence Admissible to Show Obligations Apparently Indi- vidual, to Be Firm Debts 1373 § 2246. Partnership Released by Creditor's Acceptance of Individual Obli- gation 1372 § 2247. Secret Partner's Claim. Not Debt against Partnership 1373 § 2248. Trustee in Individual Bankruptcy of Partner Not to Interfere with Firm Assets, without Consent 1373 § 2249. Member Bankrupt, but Partnership Not, Remaining Partners to Account for Bankrupt's Share 1373 § 2250. In What Court Trustee to Seek Accounting 1373 § 2251. Partnership Affairs Not to Be Administered in Individual Bank- ruptcy, Except by Consent 1373 § 2252. But May Be So Administered if Nonbankrupt Partner Consents.. 1374 § 2253. "Consent" a Question of Fact 1374 § 2254. Partnership Property Comes into Individual Bankruptcy Burdened with Lien in Favor of Firm Creditors 1374 § 2255. Individual Creditors Exhaust Individual Property, Firm Creditors, Firm Property — Each Sharing Only in Any Surplus of Other.. 1375 § 2256. Even Where No Partnership Assets 1376 § 2257. Even Where No Partnership Assets and All Partners Insolvent.. .. 1376 § 2258. Joint and Several Obligations for Partnership Debt, Share in Indi- vidual Estate 1383 § 2259. Partner's Right of Contribution for Paying Firm Debts, Provable in Other Partner's Bankruptcy 1385 § 2260. On Marshaling Partnership and Individual Estates Solvent Part- ner's Excess Contribution Provable against Individual Estate.. 1385 § 2261. Likewise, Partner's Right of Indemnity (Where Surety) for Paying Copartner's Individual Debt Provable against Copartner's Indi- vidual Estate, Entitling to Subrogation to Creditor's Claim 1385 § 2262. But Claim of Retiring Partner for Unpaid Purchase Price of Part- nership Share, Not to Share with Partnership Creditors in Surplus of Remaining Partner's Individual Estate 1385 § 2263. Obligation Signed in Individual Name, Prima Facie Individual Debt 1386 § 2264. Firm Debt Assumed by Partner, Provable against Partner's Indi- vidual Estate 1386 § 2265. "Preferences" and "Legal Liens" on Individual Property Not Nulli- fied by Firm Bankruptcy; and Vice Versa 1386 § 2266. Thus, "Legal Liens" within Four Months, on Individual Property, Not Affected by Partnership Bankruptcy 1386 5 2267. Nor Are Similar Liens on Partnership Property Affected by Indi- vidual Bankruptcy 1386 § 2268. Nor Are "Transfers" by Partnership Voidable as "Preferences," by Bankruptcy of Partner 1387 § 2269. First, Where One Partner in Insolvent Firm Sells Out to Other Who Thereafter Becomes Bankrupt 1387 TABLE OF CONTENTS. XIII § 2270. But if Partnership Creditors Assent to Assumption, Th^y Become Individual Creditors 1388 § 2271. Where Sale Made to Enable Remaining Partner to Claim Exemp- tions 1389 § 2272. Retiring Partner, Surety for Remaining Partner, Entitled to Sub- rogation to Debts He Pays 1390 § 2273. But Retiring Partner's Claim for Purchase Price of Share, Not to Compete with Firm Creditors in Individual Estate of Remaining Partner 1391 § 2274. Whether "Preferential" Transfer by Partnership Voidable Where Remaining Partner Alone in Bankruptcy 1391 § 2275. Second, Where One Partner of Insolvent Partnership Sells Out to Other and Himself Becomes Bankrupt 1391 § 2276. Third, Where Partnership Interest Transferred to Third Persons, Partner Becoming Bankrupt 1392 § 2277. Subrogation by Assignment of Claims after Bankruptcy 1392 § 2278. Subrogation by Agreement with Bankrupt or Creditor 1392 § 2279. Whether Subrogation to Workmen's Priority Claims to Compete with Workmen's Own Later Claims 1393 § 2280. Subrogation of Sureties for Bankrupt to Creditors' Rights and of Creditors to Indemnity Given Sureties 1395 § 2281. Subrogation of Interested Party, Paying to Preserve Assets 1395 § 2282. Mere Volunteers Not Entitled to Subrogation 1396 § 2283. No Subrogation of Trustee to Liens on Exempt Property Paid Off on Eve of Bankruptcy 1396 § 2284. Distribution to Be Based on Order of Court 1396 § 2285. Trustee's Reports 1397 § 2286. Form of Trustee's Reports 1397 § 2287. Review of Order Approving Trustee's Report and Allowing Ex- penses and Commissions 1398 § 2288. If Meeting Called to Consider Report, Ten Days' Notice Requisite... 1398 § 2289. Also,- If Dividend to Be Declared 1398 § 2290. Contents of Notice 1398 § 2291. Auditing of Accounts 1398 § 2292. At Time and Place Set, Report to Be Passed on, Expenses Allowed, Dividends Declared and Distribution Ordered 1399 § 2293. Exceptions to Reports and Orders of Distribution 1399 § 2294. Exceptions to Accounts to Be Filed Promptly 1399 CHAPTER XLII. CivOsiNG AND Reopening of Estates. § 2295. Final Report and Final Meeting 1400 § 2296. Ten Days Notice of Final Reports and Final ^Meetings 1401 § 2297. Trustee's Duty to File Final Report 1401 § 2298. Estate Closed by Order Approving Trustee's Report and Discharg- ing Trustee from His Trust 1401 § 2299. Certifying to Referee's Record and Transmission to District Clerk.. 1401 § 2300. Jurisdiction to Reopen Estates 1401 § 2301. Only One Ground for Reopening — Lack of Full Administration.... 1402 § 2302. Duty of Court to Reopen on Proper Showing 1402 § 2303. But Reopening, Matter of Sound Discretion 1402 XIV TABLE OF COXTEXTS, § 2304. What Is Lack of "Full" Administration 1402 § 2305. No Time Limited for Application to Reopen 1402 § 2306. But Must Be within Reasonable Time: Laches Will Bar 1403 § 2307. Application Not a "Suit" within § 11 (d) Limiting "Suits" to Two Years 1403 § 2308. Procedure: Application to Be to Judge '. 1403 § 2309. No Formality Requisite in Application 1403 § 2310. But Not to Be Indefinite: Should Be Verified and Show Assets Unadministered or Other Lack 1403 § 2311. Who May Apply: Only Creditors Who Have Proved or Alay Prove Claims, Competent 1404 § 2312. Who May Oppose Reopening 1404 § 2313. Whether Third Party Who Has Interests in Property Competent.. 1404 § 2314. Trustee Elected Anew and Administration to Proceed in Usual Man- ner 1404 § 2315. Reopening Does Not Toll Year's Limitation for Proof of Claims.. 1405 PART Mil. Crimes axd Coxtempts. CHAPTER XLIII. Crimes agaixst the Baxkrupt Act. § 2316. Crimes against the Act 1409 § 2317. Section 29 Penal and to Be Strictly Construed 1410 § 2318. Acts Committed before Bankruptcy Not within Statute 1410 § 2319. Continuing Concealment 1410 § 2320. Whether an Ofifense, if Committed before Trustee Appointed 1411 § 2321. Indictment to Be Specific and to Contain All Essential Elements.. 1411 § 2322. Indictment for False Oath to Aver Falsity .and Scienter 1412 § 2323. Schedules of Bankrupt Not to Be Used before Grand Jury 1412 § 2324. Immunity from Use of Bankrupt's Testimony, Effectual Obstacle to Conviction for Perjury 1412 § 2325. Others than Bankrupt Indictable for "False Oath" 1412 § 2326. But Only Bankrupt Indictable for Concealment of Assets from Trustee 1412 §2327. Essential Elements in Proof of "False Oath" 1413 § 2328. In Proof of "Concealment of Assets" 1413 § 2329. Advice of Counsel 1413 CHAPTER XLIV. Coxtempts. § 2330. Contempt, What Constitutes, in General 1414 § 2331. "Willfully Evasive" or "Flagrantly False" Testimony in Face of Court, Contempt 1416 § 2332. Contemp-t Not in Presence of Court 1417 § 2333. Advice of Counsel 1417 § 2334. Contempt before Referee, What Constitutes, Defined by Statute.. 1417 § 2335. Referee Has No Power to Commit 1418 § 2336. Referee Simply to Certify Facts to Judge 1418 § 2337. Making of Certificate, Judicial Act, Not Ministerial Duty 1418 TABLE OF CONTENTS. XV § 2338. Judge to Hear and Punish, if Contempt Committed 1419 § 2339. Power to Commit, Cautiously Exercised 1419 § 2340. Evidence to Be beyond Reasonable Doubt 1419 § 2341. No Punishment for Failure to Comply with Order until Oppor- tunity Given to Show Inability ^ 1419 § 2342. Review of Refusal to Certify 1419 § 2343. Not Reviewable by ' Habeas Corpus 1419 § 2344. Order of District Judge Not Reversed Except for Clear Error 1419 PART IX. Composition with Creditors. CHAPTER XLV. Nature and Effect of Composition. § 2345. Composition Simplj^ Different Method of Administering Estate and Realizing on Same for Creditors 1423 § 2346. Effect of Composition, in General 1424 § 2347. Composition Restores Estate to Debtor 1424 § 2348. Pendency of Petition for Confirmation Suspends Sale and Distribu- tion of Assets 1425 § 2349. Confirmation of Composition in Effect a Discharge 1426 § 2350. Release of Debts Is by Operation of Law and Not by Consent.. .. 1427 § 2351. Claims "Provable," Though Not Actually "Proved," Discharged. . 1427 § 2352. But Must Be "Duly Scheduled." 1427 § 2353. "Duly Scheduled" — As to Time — Difference in Composition from What It Is in Discharge 1427 § 2354. Right to Composition and Effect of Composition, Distinct 1428 CHAPTER XLVI. Procedure on Composition, § 2355. Offer of Composition 1429 § 2356. Statute Strictly Construed and All Requirements to Be Fulfilled.. 1430 § 2357. Irregular Compositions and Settlements in Other than Statutory Manner 1430 § 2358. Special Meeting for Presentation of Offer 1431 § 2359. Examination of Bankrupt and Filing of Schedules Requisite before Offer 1432 § 2360. Offer to Be Accepted in Writing 1432 § 2361. Offer to Be Accepted by Majority in Number and Amount of Al- lowed Claims 1432 § 2362. Creditors Once Accepting May Not Withdraw, Except for Fraud or Misrepresentation 1433 § 2363. Petition for Confirmation of Composition, When May Be Filed.... 1434 § 2364. Designation of Amount and Place of Deposit 1434 § 2365. Deposit to Be Sufficient to Pay All Costs and Priority Claims as Well as Consideration to Creditors 1434 § 2366. Must Cover All Claims Filed and All Schedules 1434 § 2367. Whether Must Cover Deficiency of Secured Claims Not Yet Filed.. 1434 § 2368. What Costs Provided for in Composition 1435 § 2369. Whether Consideration Always to Be in Money 1435 XVI TABI.E OF CONTENTS. § 2370. Form of Application for Confirmation of Composition 1435 § 2371. Ten Days Notice by Mail to Be Given 1436 § 2372. Hearing on Petition for Confirmation of Composition 1436 § 2373. Only Judge to Pass on Application 1436 § 2374. But May Refer Issues to Referee as Special ]\Iaster 1437 CHAPTER XLVII. Opposition to Conformation of a Composition. § 2375. Only Creditors May Oppose Confirmation: Trustee May Not 1438 § 2376. Court !May Refuse Confirmation without Appearance of Any "Party in Interest" Where Procedure Irregular 1439 § 2377. Procedure on Opposition to Composition Similar to That on Dis- charge 1439 § 2378. Entry of x\ppearance Requisite 1440 § 2379. Ten Days Time after Appearance, for Filing Specifications 1440 § 2380. Form and Allegations of Specifications; Similar to Discharge 1440 § 2381. Three Grounds of Opposition 1440 § 2382. Statutory Grounds Requisite to Bar Confirmation on ^lerits 1441 § 2383. Burden of Proof on Opposing Creditor 1441 § 2384. First Ground — "Not- for Best Interests of Creditors." 1441 § 2385. Test of "Best Interest"— Whether More Could Be Realized by Or- dinary Administration 1441 § 2386. Creditors' Acceptance of Offer Xot to Be Lightly Interfered with.. 1442 § 2387. Second Ground — Commission of Act Barring Discharge, Bars Com- position 1443 § 2388. Third Ground — Offer or Acceptance Xot in Good Faith or Procured Improperly 1444 CHAPTER XLVHI. Distribution and Proceedings after Confirmation in Composition Cases. § 2389. Distribution, upon Confirmation of Composition 1445 § 2390. Judge Directs Manner of Distribution 1445 § 2391. Referee Divested of Jurisdiction by Confirmation of Composition Excepted as Otherwise Ordered by Judge 1445 § 2392. Distributing Agent Usually Appointed 1446 § 2393. All Creditors to Share, Whether Proofs Filed or Allowed or Not, unless Limited by Order of Distribution 1446 § 2394. Whether Bound by Year's Limitation for Filing Claims 1446 § 2395. Secured Creditors to Participate to Amount of Deficit 1448 § 2396. But Judge May Limit Time and Require Filing of Proofs of Claims. 1449 § 2397. Closing of Case after Distribution Completed 1449 § 2398. Jurisdiction to Determine Ownership of Property in Custody of Court Not Divested 1449 CHAPTER XEIX. Setting Aside of Composition. § 2399. Court's Power to Set Aside Confirmation for Irregularity 1451 § 2400. Setting Aside Confirmation on Application of Parties 1451 table; op contents. XVII § 2401. Must Be Applied for within Six Months 145^ § 2402. What Not Estoppel of Creditor 1452 § 2403. Burden of Proof on Creditor 145^ § 2404. Only "Parties in Interest" Competent to Petition for Setting Aside. 143^ § 2405. Principles and Practice on Revocation of Discharge, Whether Ap- plicable 145^ § 2406. Petition to Set Aside Composition 1453 § 2407. Leave to File Petition Granted unless Lack of Merit Appears on Face 145S § 2408. Consideration Need Not Be Tendered Back 145-j § 2409. Ignorance of Fraud Sufficiently Alleged in General Terms 1453: CHAPTER L. AppExXLS of Composition Mattijrs. § 2410. Appeals of Composition Matters 1454 § 2411. Whether Appeal, Only Method of Review 1454 § 2412. Who May Appeal 1454 § 2413. Refusal to Confirm Not to Be Reversed, Except for Abuse of Dis- cretion 1455 PART X. Discharge. CHAPTER LI. Nature and History of Discharge. § ^414. Discharge 1459 § 2415. Discharge a Distinct Incident, Not an Essential, of Bankruptcy.. .. 1459 § 2416. May "Go into" or Be "Thrown into" Bankruptcy Repeatedly, Irre- spective of Refusal or Granting of Discharge 1461 CHAPTER EH. Petition for Discharge. § 2417. Petition for Discharge ■ 1464 § 2418. Any Person Adjudged Bankrupt, Competent to Apply for Discharge. 1464 § 2419. Corporations Entitled to Discharge ■ • . 1464 § 2420. Intervening Insanity Does Not Affect Right to Discharge 1464 § 2421. Neither Does Intervening Death 1465 § 2422. No Discharge of Individual in Partnership Bankruptcy unless Indi- vidual Adjudication 1465 § 2423. Discharge Petition to Be Filed after One Month and before End of Year from Adjudication 1465 § 2424. Extension of Time Granted 1465 § 2425. But to Be Applied for before Expiration of Time 1465 § 2426. And Only Because "Unavoidably Prevented:" and "Nunc Pro Tunc" Orders to Cover Laches Improper 1463 § 2427. No Jurisdiction to Discharge, on Petition Filed after Eighteen Months 1466 § 2428. Referee Need Not Notify Bankrupt to File Petition for Discharge. 1467 2 Rem— b XVIII TABLE OF CONTI<;nTS. § 2429. Form of Petition for Discharge 1467 § 2430. Whether Petition to Be Verified 1468 § 2431. Ten Days Notice by Mail, Sent 1469 § 2432. Notice Also by Publication 1470 § 2433. Dismissal of Petition for Want of Prosecution or by Bankrupt.... 1470 § 2434. No Dismissal for Failure to Bring on Hearing in Opposition 1470 § 2435. No Dismissal by Bankrupt after Hearing of Specifications in Oppo- sition 1470 § 2436. Dismissal of or Failure to File Petition for Discharge, in Effect a Judgment Denying a Discharge 1470 § 2437. Second Petition Not Maintainable after Refusal of First, Where Debts . Identical 1471 § 2438. Quaere, Where Debts in Subsequent Bankruptcy Partly Same, Partly New, and Discharge in First Bankruptcy Refused 1474 § 2439. Refusal of Discharge under Former Bankruptcy Act Not Res Judi- cata under Present Act 1476 § 2440. Refusal of Discharge under State Bankruptcy or State Insolvency Law Not Res Adjudicata as to Same Debt in Federal Bankruptcy. 1477 § 2441. Refusal of Discharge No Bar to Subsequent Bankruptcy Petitions nor Adjudications 1477 § 2442. Discharge Not Impeachable Collaterally 1477 § 2443. But Avoiding Effect of Discharge by Showing Debt Excepted from Its Operation, Not "Collateral Attack." 1477 § 2444. Nor "Attack" at All 1477 § 2445. Bankrupt Cannot Voluntarily Surrender Discharge 1477 § 2446. Staying Discharge to Permit Creditor to Perfect Rights against Surety or Exempt Property 1478 CHAPTER LIII. Opposition to Discharge. § 2447. Opposition to Discharge 1485 § 2448. Entry of Appearance and Filing of Speci'fications .». . 1485 § 2449. Entry of Appearance on Time'Essential 1486 § 2450. Appearance May Be by Attorney 1486 § 2451. Entry of Appearance Gives Ten Days Time to File Specifications. 1486 § 2452. Specifications to Be Filed in Writing 1486 § 2453. Not Filed within Ten Days, Dismissed 1486 § 2454. Time Extended but Only for Good Cause 1486 § 2455. Bankrupt to Attend Hearing; No Order Necessary; No Reim- bursement of Expenses 1487 § 2456. Death Not to Abate Opposition Proceedings 1487 § 2457. Who May Oppose Discharge — Court Itself, Not 1487 § 2458. Trustee, Not 1488 § 2459. Any "Party in Interest," and Only Such, May Oppose 1488 § 2460. Must Have Pecuniary Interest 1488 § 2461. Need Not Have Proved, nor Have "Provable," Claim 1488 § 2462. Whether Other than One from Whom Property Obtained by False Representations May Oppose on That Ground 1489 § 2463. Whether Objecting Creditor's Loss of Capacity Pending Hearing, Compels Dismissal of Specifications 1489 Q 2464. Opposition to Discharge Not Criminal Prosecution, and Criminal Law Rules Not Applicable 1489 TABLE OF CONTENTS. XIX § 2465. Refusal of Discharge Not Imposition of Penalty nor Forfeiture.... 1489 § 2466. No Constitutional Right to Discharge 1490 § 2467. Act Liberal towards Bankrupt as to Discharge — Strict Construction in His Favor 1490 § 2468. Right to Discharge and Effect of Discharge, Distinct Propositions. 1491 § 2469. Unless Bankrupt Commits One of Acts Prohibited, His Discharge "Shall" Be Granted 1492 § 2470. Though Bankrupt Owes Nondischargeable Debts; or Onl}^ Debt Scheduled Be Nondischargeable 1493 § 2471. Or Though Opposing Creditor's Debt Nondischargeable or One against Which No Exemption Exists ■ 1494 § 2472. Or Though Only One Debt Exists 1494 § 2473. That Only Partnership Debts Exist No Bar to Discharge in Indi- vidual Bankruptcy ._ 1494 § 2474. Intervening Insanity or Death No Bar 1494 § 2475. Undetermined Petition for Discharge in Pending Bankruptcy under Old Law of 1867, Not Bar 1494 § 2476. Whether Misconduct in Former Bankruptcy Bar 1495 § 2477. Lack of Sufficient "Residence, Domicile or Principal Place of Busi- ness" in District, No Bar 1495 § 2478. Collateral Attack on Jurisdiction for Lack of Residence, etc 1495 § 2479. Filing of Petition for Discharge after Expiration of Year 1496 § 2480. Withholding Discharge or Dismissing Discharge Petition, for Other Causes- — Noncompliance with Rules, Want of Prosecution, etc.. 1496 § 2481. Buying Off Opposition to Discharge 1497 § 2482. Discharge Not Refused for Acts Committed before Enactment of Law 1499 § 2483. Right to Discharge Governed by Law as It Stood at Time of Filing Bankruptcy Petition 1501 § 2484. Fraudulent Acts of Agents and Partners Not Imputable unless Actual Knowledge Exists, Where Commission of "Offense" Is Ground Urged 1502 § 2485. How, Where Ground Charged Is Not Commission of "Offense.".. 1502 § 2486. Whether Act Must Be Committed in Same Capacity in Which Dis- charge Sought, to Bar 1503 § 2487. "Concealment of Assets," as Bar to Discharge 1503 § 2488. "Knowingly and Fraudulently." 1503 § 2489. Intent to Conceal, Most Important Element 1504 § 2490. Honest Mistake, Even Mistake of Law, Excuses 1504 § 2491. Advice of Counsel May Negative Intent 1504 § 2492. But Insufficient Where Legal Questions Are Matters of Common Knowledge; or Facts Not Fully Laid before Counsel, or Unwar- ranted Inferences Drawn from Advice 1505 § 2493. Because Property Claimable as Exempt, Fraudulent Intent Not Necessarily Negatived 1505 § 2494. But Such Fact of Weight as Evidence 1505 § 2495. Willful Undervaluing of Scheduled Assets May Be Concealment.. 1505 § 2496. Preferences Not Amounting to Fraudulent Concealment No Bar.. 1505 § 2497. Concealment Must Be "While a Bankrupt" or After Discharge .... 1506 § 2498. Continuing Concealments 1506 § 2499. Concealment Must Be Concealment from Trustee 1506 § 2500. Concealment before Appointment of Trustee, Insufficient 1506 § 2501. Mere Inability to Account Reasonably for Assets Not Per Se Proof, though Strong Evidence 1507 XX TABLE OF CONTENTS. § 2502. Concealment by Purposely Omitting- Assets from Schedules 1507 § 2503. And Amendment after Discovery Will Not Cure 1507 § 2504. But Omission to Schedule, Not Per Se Concealment 1508 § 2505. Concealment of Fraudulently Transferred Property 1508 § 2506. But Property Must Be Recoverable, Else Not Concealment of Prop- erty "Belonging to Estate 1508 § 2507. Concealment, Even Where Fraudulent Transfer Occurred i\Iore than Four Months before Bankruptcy, if Property Still Recov- erable 1508 § 2508. Or Where It Occurred before Passage of Act, if Still Recoverable. 1509 § 2509. Even Where No Debts Existed and Transfer Fraudulent Only Be- cause in Contemplation of Future Creditors 1510 § 2510. Concealment of Property Held on "Secret" or Resulting Trust, Title Never Having Been in Bankrupt 1510 § 2511. "Secret Trust" in Bankrupt's Favor Generally Requisite to Show Continuing and Intentional Concealment of Fraudulent Transfers. 1511 § 2512. "Secret Trust" Not Requisite Where "Fraudulent Conveyance within Four Months," Ground Charged 1513 § 2513. But "Concealment" and "Fraudulent and Knowing Intent" Provable Otherwise than by Continuing Secret Trust . 1514 § 2514. "Concealment" Must Be of Property "Belonging to Estate." 1514 § 2515. Mere Working for Another, Even without Pay, While Insolvent, No Concealment 1514 § 2516. Thus, Beginning New Business as Agent for Another 1515 § 2517. Exact Value of Assets Concealed Need Not Be Capable of Ascer- tainment, if of Value 1517 § 2518. Even if of Small Value, Intentional Concealment Will Bar 1517 § 2519. Failure of Creditors to Institute Legal Proceedings to Recover Con- cealed Property Tends to Rebut 1517 § 2520. Amendment of Schedules after Discovery of Concealed Assets of No Avail 1518 § 2521. Instances Held Sufficient to Bar Discharge for Concealment of Assets 1518 § 2522. Instances Held Insufficient to Prove Fraudulent Concealment 1519 § 2523. "False Oath" as Bar to Discharge 1521 § 2524. Must Be False Oath or False Account 1523 § 2525. Oath Must Be Authorized by Statute and Administered by One Au- thorized 1523 § 2526. Sufficient if Administered Either before Testifying or Afterwards.. 1523 § 2527. Must Be in or in Relation to Bankruptcy Proceedings 1524 § 2528. "False Oaths" in Poverty Affidavits 1524 § 2529. "False Oaths" in Hearing upon Petitions for Adjudication 1524 § 2530. If Not in nor in Relation to His Own Bankruptcy Proceedings, No Bar 1524 § 2531. Whether False Oath in Own Previous Bankruptcy Proceedings, Bar 1525 § 2532. False Oath in Bankruptcy Proceedings under Law of 1867 Not Suf- ficient 1526 § 2533. Must Have Been Material 1526 § 2534. Material Though Subject of Little Value or Not Recoverable 1526 § 2535. False Oath Must Be "Knowingly and Fraudulently" Made 1526 § 2536. "Advice of Counsel" Tends to Negative Fraudulent Intent 1527 § 2537. Fraudulent Intent Not Necessarily Negatived by Fact That Property Recoverable 1527 TABLE OF CONTENTS. . XXI § 2538. Nor That Its Value Unascertained 1527 § 2539. Nor That it Might Have Been Claimed Exempt 1528 § 2540. False Testimony on "General Examination," "False Oath." 1528 § 2541. Swearing to Schedules Containing Misstatements or Omissions, "False Oath." 1528 § 2542. Omitting Creditors from Schedules, When "False Oath." 1531 § 2543. Amendment after Discovery of Omission 1532 § 2544. Destruction, Failure to Keep and Concealment of Books of Account as Bar to Discharge 1532 § 2545. Intent to Conceal Financial Condition Essential 1532 § 2546. Intent Inferable from Circumstances 1534 § 2547. Property Exempt, or Not Recoverable, etc. — Not Necessarily Nega- tive Intent to Conceal 1534 § 2548. Keeping Books in Same Defective Manner for Long Period Tends to Negative Intent 1534 § 2549. No Special Manner of Keeping Books Requisite 1535 § 2550. Concealment or Destruction of Books, etc.. Which Might Have Aided in Ascertainment of Financial Condition 1536 § 2551. Presentation of False Claim or Demand as Bar to Discharge 1538 § 2552. Grounds of Opposition to Discharge Added by Amendment of 1903. 1538 § 2553. Transfer, Removal or Concealment within Four Months, as Bar to Discharge 1539 § 2554. Must Be within Four Months Preceding Bankruptcy 1539 §2555. But Property Need Not Be Still Recoverable 1539 •§ 2556. Obtaining Property on Credit on False Statement in Writing, as Bar to Discharge 1539 § 2557. New Ground Only Available in Bankruptcies Instituted Since Amendment 1540 § 2558. Statement before Amendment Sufficient if Proceedings Instituted after Amendment 154rt § 2559. Whether Other than Particular Creditor Defrauded May Oppose on This Ground 1541 § 2560. First Element: Materially False Statement in Writing 1542 § 2561. Written Statement Need Not Be Delivered if Contents Communi- cated . : 1542 § 2562. Second Element: Must Be by Bankrupt 1542 § 2563. But if Made by Agent with Bankrupt's Authority, Sufficient 1542 § 2564. Third Element: Must Be Made to Person from Whom Property Obtained 1543 § 2565. Whether, if Made to Mercantile Agencies, or in Answer to General Inquiries, a Bar 1543 § 2566. Forth Element: Property Must Be Obtained on Credit Thereby.. 1543 § 2567. Fifth Element: Bankrupt Must Intend to Obtain Property Thereby. 1544 § 2568. Whether Intent Must Be to Obtain Particular Property Actually Obtained 1544 § 2569. Sixth Element: False Statement Must Be Relied on 1544 § 2570. "Continuing Representations." 1544 § 2571. Previous Discharge within Six Years, as Bar to Discharge 1544 § 2572. Whether Present Application Be Involuntary or Voluntary Bank- ruptcy, Immaterial 1546 § 2573. Previous Discharge in Involuntary Proceedings, No Bar 1546 § 2574. In Voluntary Proceedings, It Is Bar 1547 § 2575. Previous Refusal of Discharge within Six Years Not within Bar, Though Res Judicata as to Old Debts 1547 XXII . TABLK OF CONTEXTS. § 2576. This Bar Applicable Where Proceedings Instituted after Amend- ment of 1903, Though Facts Occurred Beforehand 1547 § 2577. "Within Six Years" Measures Time between First and Second Dis- charge, Not between First Discharge and Filing of Second Peti- tion in Bankruptcy 1548 § 2578. Nor between Two Adjudications of Bankruptcy 1548 § 2579. Jurisdiction to Administer Estate Unimpaired Though Discharge Barred because of Previous Discharge within Six Years 1548 § 2580. Refusal to Obey Court's* Order or to Answer Question, as Bar to Discharge 1548 § 2581. Refusal to Answer Incriminating Questions 1548 § 2582. Withholding Discharge until Court Rules Complied with 1549 § 2583. Specifications of Objections to Discharge, Pleadings 1549 § 2584. Specifications to Be Verified 1549 § 2585. But Lack of Verification May Be Waived 1551 § 2586. Or Be Supplied by Amendment 1551 § 2587. Where Several Objecting Creditors, All May Sign and Verify Same Specifications 1551 § 2588. Whether if Several Join in Same, Each Must Sign and Verify 1551 § 2589. Whether Verification by Some One with Knowledge Requisite.... 1551 § 2590. Verification by Attorneys Permitted 1551 § 2591. Forms of Verification 1551 § 2592. Whether Verification Must Be Positive or Maj^ Be on Information and Belief 1552 § 2593. Specifications to Be Signed 1553 § 2594. Specifications to Show Capacity of Objecting Creditor 1552 § 2595. All Essential Facts and Elements of Bar to Discharge to Be Alleged. 1552 § 2596. "Knowinglj^ and Fraudulentlj'" to Be Alleged Where Act Charged an "Offense." 1553 § 2597. If Act Charged an "Oflfense," !Must Appear to Have Been Com- mitted after Bankruptcy, etc 1554 § 2598. Acts Charged, to Be Brought within Time Limit 1554 § 2599. Distinct Grounds May Be Joined in One Specification 1554 § 2600. But Each Ground to Be Separately Stated 1554 § 2601. All Grounds Need Not Be Sustained 1555 § 2602. Specifications Not to Be Used as "Dragnet" or "Fishing Expedi- tion." 1555 § 2603. Must Not Be Indefinite nor General nor Argumentative, but Certain and Positive 1555 § 2604. No Greater Definiteness Necessary than Nature of Facts Requires.' 1557 § 2605. Whether to Be Pleaded "with Certainty of Indictment" Where "Of- fense" Charged 1558 § 2606. Evidence Not to Be Pleaded 1558 § 2607. Legal Conclusions Not to Be Pleaded 1558 § 2608. Thus, Allegations in Mere Words of Statute Sufficient Only Where Failure to Keep Books, Ground Charged— Elsewhere Insufficient. 1558 § 2609. Alternative Allegations Improper 1561 § 2610. Defective Specifications; Rights and Remedies 1561 § 2611. Whether Specification of One Ground and Proof of Another a Fatal Variance 1.562 § 2612. Defective Specifications Waived by Going to Trial without Objec- tion 1562 S 261 3. Defective Specifications May Be Amended 1563 § 2614. Must Be Something in Record Whereby to Amend 1563 TABI^E OF CONTENTS. XXIII § 2615. Amendment Permissible after Time Limit for Filing Specifications. 1563 § 2616. Even New Ground of Opposition May Be Added 1564 § 2617. Amendment to Conform Pleadings to Proof but Not to Set up En- tirely New Ground after Trial 156-1 § 2618. Amendment May be Ordered 1564 § 2619. Striking Off Specifications after Amendment for Failing Still to Show Sufficient Grounds 1564 § ^20. Amendment May Be Conditioned on Payment of Costs 1564 § 2621. Amendment May Be Refused 1564 § 2622. Refusal to Permit Amendment Reviewable for Abuse of Discretion. 1565 § 2623. Answer to Specifications Not Necessary 1565 § 2624. But May Be Filed 1565 § 2625. Final Hearing on Discharge to Be before Judge 1566 § 2626. But Judge May Refer Issues to Special Master 1566 § 2627. Motions and Demurrers to Be to Judge, Not to Special Master.... 1567 § 2628. Hearings before Special Master 1567 § 2629. Whether Special Master to Exclude Improper Evidence 1567 § 2630. Findings of Fact as Well as Evidence to Be Reported 1569 § 2631. Also Conclusion of Law 1569 § 2632. Exceptions to Special Master's Report and Findings 1569 § 2633. Court Presumes to Have Investigated Case on Merits, on Master's Report 1569 § 2634. Findings of Fact Not Reversed Except for Clear Error 1569 § 2635. Burden of Proof on Opposing Creditor 1570 § 2636. But Presumptions of Fact May Shift against Bankrupt, and Compel Rebuttal 1571 § 2637. Burden of Proof Is on Objecting Creditor as to Each Element of Ground Charged 1571 § 2638. Evidence Need Not Be beyond Reasonable Doubt 1571 § 2639. But Where "Offense" Is Ground Charged, Evidence to Be "Clear," "Satisfying" or "Convincing." 1572 § 2640. Whether Same Degree of Proof Requisite Where Ground Charged Is Not a Punishable Offense 1572 § 2641. "General Examination" of Bankrupt Admissible 1573 § 2642. Competent Though Crime Charged 1573 § 2643. But of Other Witnesses, Not Admissible 1574 § 2644. Unless So Stipulated 1574 § 2645. Ordinary Rules Determine Admissibility and Credibility 1574 § 2646. Failure to Produce Material Witnesses Who Are Accessible 1574 § 2647. Failure of Creditors to Take Steps to Recover Property Alleged Fraudulently Concealed 1574 § 2648. Evasive Testimony of Bankrupt: Credibility : . . . . 1575 § 2649. Contradictory Statement and Incredible Explanations 1575 § 2650. Impeachment of Witness by Inherent Improbability of Own Testi- mony 1575 § 2651. Nevertheless Merely Suspicious Circumstances Not Sufficient Where Witness Uncontradicted •• • • 1576 § 2652. Likewise Mere Evasive Testimony and Inability to Account Reason- ably for Assets Not Per Se Proof 1576 § 2653. Though Strong Evidence Tending to Discredit 1576 § 26^4. Judicial Cognizance of Court Records 1576 § 2655. Res Judicata and Estoppel 157T •XXIV TABLE OF CONTENTS. § 2656. Discharge Hearing Not Postponed to Await Outcome of Fraudu- lent Conveyance Suit 1578 § 2657. Declarations of Alleged Fraudulent Transfer 1578 § 2658. Costs on Discharge 1578 § 2659. Power to Award Costs Inherent 1578 § 2660. Referee Allowed Compensation as Special Master on Discharge.... 1578 § 2661. Awarding Costs against Creditors 1579 • CHAPTER LIV. Effect of Discharge on the, Rights of the Parties. § 2662. Right to Discharge and Effects of Discharge, Distinct Matters.... 1584 § 2663. Effect of Discharge on Particular Debt to Be Determined When Enforcement of Debt Attempted 1585 § 2664. Decree of Discharge to Be General 1586 § 2665. No Limiting of Effect, nor Excepting of Particular Debts, in Decree, 1586 § 2666. Except Where Former Discharge Refused 1587 § 2667. Urging Debt to Be Not "Provable" or to Be within Exceptions of § 17, Not "Collated Attack." 1587 § 2668. Discharge Bars Debts, Not Enforcement of Liens or Title to Prop- erty 1587 § 2669. Bankrupt Remains Liable on Debts Not Dischargeable, Collectible Out of Subsequently-Acquired Assets 1589 § 2670. Nondischargeable Debts, if "Provable," Share in Dividends 1589 § 2671. Secondary Liability Unaffected 1589 § 2672. Debt Not Extinguished, but Its Enforcement Barred 1589 § 2673. Valid Liens Not Cast Off, nor Their Enforcement Prevented 1589 § 2674. Transactions Themselves Not Invalidated because of Being Bars to Discharge 1591 ^ 2675. Contractual Relations Not Dissolved, unless Mergeable in "Prov- able" Debt at Time of Bankruptcy 1591 § 2676. Contracts for Liens on After-Acquired Property Discharged if Mergeable in Provable Debt at Time of Bankruptcy 1591 § 2677. But Where Lien Exists in Presenti before Bankruptcy, Though Property Acquired Afterwards, Discharged No Bar 1591 § 2678. Thus, Assignments of Unearned Wages 1591 § 2679. "Waiver of Exemption" Notes; No Levy on Exempt Property after Discharge 1593 § 2680. Former Refusal of Discharge Res Judicata as to all Claims Then Provable 1594 § 2681. But Not if Former Refusal Was under State Insolvency Proceed- ings 1594 § 2682. Discharge to Be Set Up as Defense, Else Waived 1594 § 2683. Facts Showing Jurisdiction to Grant Discharge to Be Pleaded.... 1595 § 2684. Certificate of Discharge under Seal of Court Proves Discharge 1595 § 2685. Interposition of Discharge Throws Burden on Plaintiff to Show Debt Excepted 1595 § 2686. No Collateral Attack on Order of Discharge 1595 § 2687. Erroneous Judgment Notwithstanding Discharge Duly Pleaded and Proved, Res Judicata, until Reversed 1596 § 2688. Suits against Bankrupt Stayed until Adjudication 'i596 § 2689. Available to Voluntary and Involuntary Bankrupt Alike 1596 table; of contents. xxv § 2690. Stay under § 11 for Bankrupt's Benefit, to Permit Interposition of Discharge 1597 § 2691. Debt Dischargeable, Else No Stay 1597 § 2692. But Proceedings on Nondischargeable Debts Stayable Where Cred- itor's Rights Involved 1598 § 2693. Error in Holding Claim Dischargeable No Warrant for Disobedi- ence _ 1598 § 2694. Proceedings Other than "Suits" Stayed 1598 § 2695. Ipso Facto Stayed Till Adjudication or Dismissal of Petition 1598 § 2696. Thereafter, Further Stayed, on Application, until Discharge Heard. 1599 § 2697. Not Only Pending Suits but Also Subsequent Suits Stayed 1599 § 2698. Further Stay Discretionary 1600 § 2699. Comity Requires Request for Stay First in Court Where Action Pending 1600 § 2700. But Bankruptcy Court May Enjoin if Necessary 1601 § 2701. Referee No Jurisdiction to Enjoin Court or Court Officer 1601 § 2702. Stay Applies to All Incidents of Proceedings in State Courts 1601 § 2703. No Further Stay than for Year, unless Application for Discharge Filed within Year Not Yet Acted Upon 1602 § 2704. If Stay Not Applied for. Judgment and Orders of State Court Valid. 1603 § 2705. Or if Discharge Refused, Court May Render Judgment in Personam and Judgment Will Be Good 1603 § 2706. Or if Not Interposed Though Granted, Judgment Valid 1603 § 2707. Statutory Cancellation of Subsequently-Rendered Judgments 1603 § 2708. No Vacating of Judgment Rendered after Discharge, for Interposi- tion of Discharge 1604 § 2709. Stay Only Protects Bankrupt from Judgment in Personam — Judg- ments in Rem as to Property Unaffected 1604 § 2710. Stay Dissolved after Discharge Granted or Refused or Dismissed.. 1604 § 2711. Qualified Stay Where Levy Sought on Exempt Property Not Ex- empt as to Levy Sought 1605 § 2712. And Where Judgment Necessary to Perfect Rights against Surety, or Property 1605 § 2713. No Deprivation of Right of Discharge by Staying Discharge Hear- ings or Refusing to Stay Creditor's Suits Where Judgment Requi- site to Perfect Creditor's Rights against Sureties, etc 1605 § 2714. Revival of Discharge Debt 1606 § 2715. No" New Consideration Necessary 1606 § 2716. Part Payment on Account Insufficient to Revive Debt 1606 § 2717. But Discharge Waivable by New Promise 1606 § 2718. New Promise Not Necessarily in Writing * 1607 § 2719. But to Be More than Mere Acknowledgment of Debt — Equivalent of Promise to Pay Necessary 1607 § 2720. And to Be Certain, Unequivocal and Clear 1607 § 2721. May Be Conditional, if Definite 1607 § 2722. Probably New Promise before Discharge Sufficient, if after Adjudi- cation 1607 § 2723. Acceptance of New Promise Requisite 1608 § 2724. Must Be Accepted in Terms Offered 1608 § 2725. Conditional Promise Accepted as .Offered, Sufficient 1608 § 2726. Action on Revived Debt to Be Brought on Original Consideration. 1608 § 2727. New Promise Not to Be Pleaded nor Proved in First Instance 1608 § 2728. Allegations, in Pleading New Promise 1608 XXVI TABLE OF COXTEXTS. § 2729. Contractual Relations Not Dissolved by Discharge, unless Mergeable in "Provable" Debt louy § 2730. Relation of Landlord and Tenent Not Severed 1610 § 2731. All "Provable" Debts Discharged, Save Those Excepted: if Not "Provable," Not Dischargeable '. 1610 § 2732. If Capable of Being "Proved," Debt Discharged Whether Actually Proved or Not 1612 § 2733. Tort Claims Discharged, if Toft Might Be Waived and Claim Be Presented Ex Contractu 1613 § 2734. Also Unliquidated Claims if Capable, on Liquidation, of Being Pre- sented Ex Contractu 1613 § 2735. Only Debts Existing at Date of Filing Petition Discharged 1613 § 2736. Contingent Claims Not Provable, Not Discharged 1613 § 2737. Costs Incurred Prior to Petition Dischargeable 1614- § 2738. Incurred after. Not Discharged 1614 § 2739. Judgment for Breach of Promise of Marriage Discharged,. 1614 § 2740. Judgments for Tort Discharged, Though Liabilitj^ on W^hich Founded Not 1615 § 2741. Claims of Sureties and Endorsers against Bankrupt Principal Dis- charged 161.S § 2742. Stockholder's Liability Dischargeable, if Fixed 1616 § 2743. Debts Excepted from Discharge 1616 § 2744. Because Excepted, Not on That Account Entitled to Priority beTore Dividends ] 6ie> § 2745. First Exception — Taxes Not Discharged 1616 § 2746. Second Exception — "Liabilities for Obtaining Property by False Pretenses or False Representations," Not Discharged 1616 § 2747. Not All Frauds Excepted, but Only "Obtaining Property by False Pretenses," etc 1616 § 2748. Judgment Not Requisite 1617 § 2749. Judgment Not Such IMerger as Prevents Inquiry into Original Liability 1618 § 2750. Not Even Though Tort Waived and Judgment on Quasi Contract. 1618 § 2751. False Representations Not Necessarily in Writing 1619 § 2752. False Representations to Mercantile Agency Sufficient 1619 § 2753. Reckless Representations Sufficient 1619 § 2754. Third Exception — Liabilities for Willful and ^lalicioui Injuries to Person or Property 1619- § 2755. Fourth Exception — Liabilities for Alimony 1620 § 2756. Simply Declaratory of Law as Already Existing 1620 § 2757. Fifth Exception— Support of Wife or Child 1621 § 2758. Simple Declaratory of Law as Already Existing 1621 § 2759. Liabilities to Third Parties Not Excepted— Only Liabilities Directly to Wife or Child 1621 § 2760. Sixth Exception — Seduction or Criminal Conversation 1621 § 2761. Seventh Exception— Debts Not "Duly Scheduled." 162^ § 2762. "Due" Scheduling Dependent on Facts of Particular Case 1623 § 2763. Thus, Initials Instead of Full Given Names 1623 § 2764. Abbreviations ^qoa £ 2765. Ditto Marks 1504 § 2766. Partnership Debts in Individual Bankruptcy of Partner 1624 § 2767. Debts Intentionally Scheduled in Name of Original Payee When Held by Third Person 1625 • TABLE OF CONTENTS. XXVII § 2768; But Original Creditor Sufficient Where No Notice of Assignment.. 1625 § 2769. Stockholders' Liability, Either* Corporate Creditors, or Receiver, May Be Scheduled 1625 § 2770. Failure to Give Street Number in City Where Ascertainable 1626 § 2771. Giving Name and Street Correctly, but City Wrong, Not "Due" Scheduling 1626 § 2772. "Idem Sonans." 1626 § 2773. Innocent Intent in Faulty Scheduling, No Excuse 1626 § 2774. Where Actual Address Unknown, a Guess at Surmised Address Not Sufficient 1626 § 2775. Reasonable Diligence in Ascertaining Correct Address Requisite.. 1626 § 2776. Where x\ll Addresses Stated to Be Unknown, Court to Withhold Discharge until Satisfied Due Diligence Exercised 1627 § 2777. Actual Knowledge by Creditor Cures Defective Scheduling 1627 § 2778. No Particular Form of Notice Requisite 1627 § 2779. Agent's Knowledge Imputable to Principal 1627 § 2780. Knowledge Not Sufficient unless in Time for Creditor to Avail Himself of Benefits of Law 1627 § 2781. Defending, That Debt Not "Duly" Scheduled, Not Collateral Attack. 1628 § 2782. After Discharge Too Late to Amend Schedules to Include Omitted Creditors 1628 § 2783. Eighth Exception — Claims for Fraud Embezzlement, etc., While Officer or in Fiduciary Capacity 1628 § 2784. Must Be Committed While Acting as "Officer" or in "Fiduciary Capacity." 1629 § 2785. "Fiduciary Capacity" Refers to Express Trusts; and Excludes Con- versions by Agents, etc., Also Fraudulent Transfers 1629 § 2786. "Fiduciary" Relation Must Exist Independently of Transactions in Which Debt Arose 1631 § 2787. Whether Includes "Officers" of Private Corporation 1631 § 2788. "Fraud" Means Moral Turpitude or Intentional Wrong 1632 § 2789. "Fraud" Must Have Existed in Original Transaction 1632 § 2790. Judgment Not Such Merger as Prevents Inquiry into Character of Fraud 1633 § 2791. Partnerships Entitled to Discharge 1633 § 2792. No Individual Discharge of Member unless Individually Adjudged Bankrupt 1633 § 2793. Act of One Bars Discharge if Done within Scope of Partner- ship Business 1633 § 2794. Discharge of Firm Debts in Individual Bankruptcy of Member.... 1634 § 2795. Individual Liability for Firm Debts, Discharged if Firm Debts "Duly" Scheduled, in Individual Bankruptcy, Irrespective of "Firm Assets," etc 1635 § 2796. Firm Debts Provable Debts of Each Member, and So Far as Efifect Individual, Are discharged by Individual's Discharge 1637 § 2797. But Partnership Debts to Be "Duly Scheduled," Else Not Affected by Individual Discharge 1640 § 2798. And Notices to Creditors Must Give Notice of Firm Debts and That Discharge Therefrom Sought 1641 § 2799. Petitions for Adjudication and Discharge Each to Mention Firm Debts and Pray for Discharge Therefrom 1642 § 2800. And Firm Property to Be Described 1642 XXVIII table; of contents. § 2801. Amendment May Be to Include Discharge from Firm Debts, Where Already Duly Scheduled 1642 § 2802. Even after Term at Which Discharge Granted 1642 § 2803. Where Individuals Adjudged Bankrupt with Partnership, Individual Debts Discharged 1642 § 2804. Where Not So Adjudged, Individual Debts Not Discharged 1642 § 2805. Individual Partner May Be Discharged, Where Firm and Other Partners Not 1643 CHAPTER LV. Revocation of Discharge. § 2806. Revocation of Discharge 1644 § 2807.^ "Parties in Interest," Alone, May Move to Revoke 1645 § 2808. Includes Creditor Who Has Failed to Prove Claim within Year 1645 § 2809. Must Have Been Creditor at Time of Bankruptcy 1645 § 2810. Purchaser of Discharged Claim, Not Party in Interest 1645 § 2811. Whether Court, Sua Sponte, May Within Year Vacate Discharge Not on Merits 1645 § 2812. Whether Bankrupt May Move to Vacate Discharge 1646 § 2813. Fraud in Procuring Discharge, Accompanied by Ground for Barring It, Sole Ground 1646 § 2814. Buying Off Opposition, Sufficient 1647 § 2815. Applicant's Knowledge of Fraud at Time Discharge Granted, or Laches, Fatal to Revocation 1647 § 2816. Ground .for Barring Discharge Itself Must Also Exist 1648 § 2817. Creditor Defeated in Opposition to Discharge May Not Move for Revocation on Same Grounds 1648 § 2818. Vacating for Irregularities Not Going to Merits 1649 § 2819. Trial on Application for Revocation 1649 ' § 2820. Before Judge, Not before Referee 1649 § 2821. But May Be Referred to Special Master 1649 § 2822. Petition to Set Forth Facts Showing Grounds for Revocation, but Need Not Allege Discharge Not Warranted 1649 § 2823. Amendment 1650 § 2824. Revocation to Be Applied for Within Year after Discharge Granted. 1650 PART XL Appeals and Error. CHAPTER LVI. Parties on Appeal and Error. § 2825. Proper Parties on Appeal and Error, in General 1653 § 2826. Must Have Substantial Interest in Controversy 1653 § 2827. Must Be in Trustee's Name, if in Behalf of Estate and after Election of Trustee 1653 § 2828. Except When Controversy About Trustee's Own Compensation or Expenses or Report on Exemptions 1655 § 2829. Or, When About Own Conduct, or Administration 1655 § 2830. Trustee Refusing May Be Ordered, or Creditor Be Authorized to Use Trustee's Name 1655 TABLE OF CONTENTS. XXIX § 2831. Court May Require Creditor to Indemnify Trustee 1655 § 2832. Laches May Bar Right to Object to Other than Trustee Appealing. 1655 § 2833. Before Election of Trustee Appeal or Error May Be by Creditor.. 1656 § 2834. Appeal by One Party Does Not Necessarily Bring Up Case as to AH 1656 § 2835. Appeal Not Dismissed for Lack of Necessary Parties Where Not Parties below Represented by Trustee 1656 § 2836. Joint Appeal 1656 § 2837. Omitted Parties Made Parties on Appeal 1657 § 2838. Creditors Assenting to Composition, Necessary Parties on Appeal from Confirmation 1657 CHAPTER LVII. Review oe the Referee's Order by the Judge. § 2839. Review of Referee's Orders — Jurisdiction 1658 § 2840. Order Must Be Made 1659 § 2841. Order Must Be Final, Not Interlocutory: Case Not to Be Reviewed Piecemeal 1G60 § 2842. Exception to Be Taken to Order 1661 § 2843. Also to Finding of Fact, Else Conclusive on Review 1661 §2844. Exceptions Must Be Specific, Not "Broadside." 1661 § 2845. But No Formal "Exceptions" Need Be "Filed." 1661 § 2846. Petition for Review Must Be Filed 1662 § 2847. Petition Must Set Forth Errors Complained of 1662 § 2848. But New Facts May Not Be Set Up, Changing Case 1663 § 2849. And Should Pray for Review of Referee's Order 1663 § 2850. Petition to Be Filed with Referee 1663 § 2851. Time Limited for Filing Petition for Review 1663 § 2852. Certificate of Question, Summary of Evidence, Findings and Order of Referee, Requisite . . . . ; 1664 § 2853. Certificate, Though Referee's, May Be Prepared by Counsel 1665 § 2854. Record on Review to Show Certificate 1665 § 2855. Not Entire Evidence but Only "Summary" to Be Certified 1666 § 2856. Remedies for Incomplete Record 1667 § 2857. Referee Also to Certify Findings of Fact 1668 § 2858. Precise Question for Review to Be Stated Clearly and Distinctly. . 1669 § 2859. Petition and Certificate Transmitted by Referee to District Clerk.. 1669 § 2860. Stay of Execution or Order •. 1669 § 2861. Referee's Order and Finding Presumed Correct, until ^Manifest Error Shown 1670 § 2862. Points Not Discussed below Nevertheless Considered if Sufficiently Appearing in Record 1672 § 2863. Remanding for Further Testimony Where Referee's Order Disal- lowing Claim at Close of Claimant's Evidence in Chief Reversed. 1673 CHAPTER LVni. APPE.A.LS AND Error Proceedings from District Courts to the Circuit Courts of Appeals. § 2864. Fundamental Distinction between Steps "in Bankruptcy Proceed- ings" Proper and Incidental "Controversies." 1678 XXX TABLE 0^ CONTENTS. § 2865. Thus, Adjudication of Bankruptcy, or Its Refusal, a Question "in Bankruptcy Proceedings Proper 1685 § 2866. Likewise, Allowance or Refusal of Exemptions 1682 § 2867. And Allowance or Rejection of Claim to Share in Dividends or in Marshaling of Firm and Individual Estates 1683 § 2868. And Allowance or Disallowance of Costs and Expenses of Admin- istration — Such as Attorneys' Fees 1683 § 2869. Even Validity and Priority of Lien May Be, if Incident to Allowance or Rejection of Creditor's Claim for Share in Dividends 1683 § 2870. But if Sole Controversy About Lien or Priority, None About Debt, Not a Question "in Bankruptcy Proceedings" Proper 1684 § 2871. And Claim Controverted Must Be Creditor's Claim, Else Not 1684 § 2872. Seizures on Warrants to Marshal, Proceedings in Bankruptcy... 1685 § 2873. But Trustee's Petitions for Summary Surrender of Property, Not Bankruptcy Proceedings Proper 1685 § 2874. Neither Are Trustee's Plenary Suits in U. S. District Court to Re- cover Property Fraudulently or Preferentially Transferred 1686 § 2875. Nor Are Intervening Petitions Claiming Property in Custody of Bankruptcy Court, or Liens Thereon •. . . 1687 § 2876. But Orders of Sale and Controversies Incident Thereto, Proceedings in Bankruptcy Proper and Not "Controversies.". 1688 § 2877. Unless Real Controversy Not about Order of Sale nor Claim, but about Lien or Title Itself 1689 § 2878. Thus, Trustee's Petition to Marshal Liens on Property in His Cus- tody and to Enjoin Interference Not "Proceedings in Bank- ruptcy" but "Controversy." 1689 § 2879. Marshaling of Firm and Individual Assets and Debts in Partnership Bankruptcies 1689 § 2880. When to Appeal, When to Petition for Revision 1689 § 2881. Distinction between Writ of Error and Appeal, Preserved 1690 § 2882. Distinctions between § 24 (b) and §§ 24 (a) and 24 (a) 1691 § 2883. Resort to Appeal or Petition for Review on Error, Optional in Proper Case : 1693 § 2884. Thus, in "Controversies." 1694 § 2885. If Facts Undisputed, Petition to Revise Only Remedy 1695 § 2886. If Facts Disputed, May Be Reviewed Only if Appeal Available 1695 § 2887. Holdings That Appeal under § 25 (a) Exclusive of Error 1695 § 2888. Holdings That Optional Even in Three Cases Where Appeal Pro- vided under § 25 (a) 1696 § 2889. Appeals in Bankruptcy Proceedings Proper 1697 § 2890. Order Appealed from Must Be Final Order 16£(7 § 2891. Right of Appeal Cannot Be Enlarged nor Restricted by Court 1698 § 2892. Such Appeals Permissible Only as to Adjudication, Discharge and Allowance of Claims 1698 § 2893. First: Appeals from Adjudications or Refusals to Adjudge Bank- rupt 1698 § 2894. But No Appeal if Jury Trial Had 1699 § 2895. Second: Appeals from Judgments Granting or Denying Discharge. 1700 § 2896. Includes Confirming or Refusing to Confirm Composition 1701 § 2897. Also Dismissals of Discharge for Want of Prosecution 1701 § 2898. Third: Appeals from Allowance or Rejection of Claims 1701 § 2899. Amount in Dispute, Not Amount of Entire Claim, Governs 1701 TABLE OF CONTENTS. XXXI § 2900. Debt Must Have Been Owed by Bankrupt, Mere Lien on Property Insufficient ■ ■■ ■, 1702 § 2901. Where Lienor Priority Incident to Disputed Debt, Its Validity, Pri- ority, etc., Appealable 1702 § 2902. But Where Debt Undisputed Mere Fact That Disputed Lien or Pri- ority Incident to Debt Insufficient 1702 § 2903. Not. to Split Case and Dismiss Portion Affecting Lien or Priority.. 1703 § 2904. "Claim" Refers Only to Money Demand 1704 § 2905. And to "Claims" Presented for Proof against Bankrupt Estate.... 1704 § 2906. And Not to "Claims" for Exempt Property 1704 § 2907. Nor, Probabh', to "Claims" for Costs and Expenses of Administra- tion 1704 § 2908. Nor to "Claims" of Strangers to Property in Trustee's Possession, nor of Trustee to Property in Strangers' Hands 1705 § 2909. -Disallowance of Claim because Preference Not Surrendered, Ap- pealable 1705 § 2910. Rejection or Allowance of Set-Off Appealable 1705 § 2911. No Appeal in Bankruptcy Proceedings Proper Except in Three Cases of § 25 (a) Mentioned 1705 § 2912. Appeals in "Controversies Arising in Bankruptcj^ Proceedings." .... 1706 § 2913. Appeal a Matter of Right, Not to Be Enlarged nor Restricted by Court 1708 § 2914. Under § 24 (a) Both Law and Fact Reviewed 1708 § 2915. Litigant Has Option, in Proper Case, Either to Appeal or Petition for Revision 1708 § 2916. May Treat "Appeals" as Petitions for Revision 1709 § 2917. But Not Where Questions All of Fact 1709 § 2918. Simultaneous Appeal and Petition for Review 1709 § 2919. Single Assignment of Errors Sufficient Where Appeal and Error Simultaneously Prosecuted 1710 § 2920. Appeals in "Controversies" Only Allowable in Cases within Act of Congress Establishing Circuit Courts of Appeal 1710 § 2921. Decree in Equity Not Reviewable by Writ of Error, nor Judgment at Law by Appeal 1711 § 2922. Must Be "Final" Order 1712 § 2923. Validity, Priority, etc., of Liens Appealable as "Controversies".... 1712 § 2924. Summary Order on Third Party to Surrender Assets, Appealable as "Controversy." 1713 § 2925. Likewise, Summary Order on Trustee or Receiver to Surrender Assets to Third Party 1713 § 2926. Plenary Suits in U. S. District Courts by Adverse Claimants in Pos- session to Enjoin Trustees, Appealable as "Controversies." 1713 § 2927. Also, Plenary Suits by Trustees in U. S. District Court to Recover Property Preferentially or Fraudulently Transferred 1714 § 2928. Error Proceedings Sole Method of Review in Bankruptcy Pro- ceedings Proper Except in Three Cases of 25 (a) 1714 § 2929. Limited to Matters of Law under § 24 (b) 1715 § 2930. Thus, Exemptions Reviewable Only by Petition to Review 1715 § 2931. Likewise, Reopening or Refusal to Reopen Closed Estates 1715 § 2932. Administrative Orders Reviewable under § 24 (b) 1715 § 2933. Attorneys' Fees and Other Expenses of Administratiion 1715 § 2934. Likewise, Exemption Matters 1715 XXXII TABLE OF CONTENTS. § 2935. Orders on Nonbankrupt Partners to File Schedules or Surrender Firm Assets 1715 § 2936. Likewise Distribution between Firm and Individual Creditors 1716 § 2937. Also, Orders of Sale and Controversies Incident Thereto, Review- able under § 24 (b) 1716 § 2938. And Summary Orders on Bankrupts and Others to Surrender Assets or Execute Instruments , 1716 § 2939. Allowances to Widow and Children on Death of Bankrupt Pending Adjudication 1717 § 2940. Error Proceedings in "Controversies" and in Independent Plenary Suits ■ 1717 § 2941. Whether § 24 Applies Only to Orders in Proceedings in Bankruptcy Themselves, Not to Orders in Independent Plenary Suits 1717 § 2942. Section 24 (b) Authorizes Review Only of Law, Not Facts 1719 § 2943. Intervening Petitions Claiming Property or Funds in Custody of Bankruptcy Court or Claiming Liens or Other Interests Therein Reviewable by Petition to Revise " 1720 § 2944. Brief Resume 1721 § 2945. Procedure on Error to Be by Writ of Error or Petition to Revise, and Notice 1721 § 2946. If by Petition to Revise, Filing of Petition and Notice, Sole Require- ments 1721 § 2947. Petition for Review to Be Filed 1722 § 2948. Petition to Set Forth Order Complained of 1722 § 2949. How Far to Set Forth Issue on Which Erroneous Order Made.... 1722 § 2950. Record to Set Forth Order Complained of 1723 § 2951. And to Present, Clearly, Issues of Law 1723 § 2952. Also, to Show Insufficiency of Grounds for Order 1723 § 2953. Whether Testimony and Other Evidence to Appear 1724 § 2954. Not by "Bill of Exceptions." 1724 § 2955. Findings of Fact or Equivalent, Requisite 1724 § 2956. Mere "Opinion" of District Court Insufficient, unless Made Part of Record 1724 § 2957. But May Be Looked to 1725 § 2958. Due Notice to Be Given 1725 § 2959. Procedure on Appeal Follows Equity Appeal Procedure 1725 § 2960. Application for Leave, Allowance, Citation and Notice 1725 § 2961. Assignment of Errors to Be Filed 1726 § 2962. Complete Record to Be Made 1726 § 2963. Need Certify Only So Much as Sufficient to Exhibit Errors 1726 § 2964. But Discretion of Parties in Making Up Record Not to Be Inter- fered with 1727 § 2965. Parties May Stipulate as to What Necessary. . . .■ 1727 § 2966. Must Be Stipulated or Certified That Complete Record of All Nec- essary 1727 § 2967. Record Imports Verify, May Not Be Contradicted, Explained or Extended by Evidence Dehors 1727 § 2968. Remedies for Incomplete Transcript on Appeal 1728 § 2969. Whether Findings of Fact Requisite on Appeal 1729 § 2970. Record to Show Assignment of Errors, Prayer for Reversal and Citation ' 1729 § 2971. Prayer for Reversal and Citation Waivable, but Assignment of Er- rors Not 1729 TABLE OF CONTKNTS. XXXIII § 2972. Also, Time of Perfection of Appellate Proceedings 1730 § 2973. Citation May Be Granted after Expiration of Appeal Time 1730 § 2974. Record Sufficient if Contains All on Which District Court Acted if Not All on Which Referee Acted 1730 § 2975. Record to Be Printed 1731 § 2976. Bond Not Requisite, on Petition for Review, Except 1731 § 2977. But Requisite on Appeal 1731 S 2978. And Approval of Security, Perfects and "Allow^s" Appeal 1732 § 2979. Perfecting Appeal Transfers Jurisdiction and No Further Steps Possible 1732 § 2980. Trustee Need Not Give Bond 1732 £ 2981. Time for Appeal in Bankruptcy Proceedings Proper 1732 g 2982. May Be Heard by Appellate Court in Term or Vacation 1733 § 2983. Record to Show^ Time of Appeal 1733 § 2984. Date of Entering Order or Judgment, Not of Actual Rendition, Fixes Date 1733 § 2985. Appeal Not "Taken" until "Allowrance" Made, and Bond and Cita- tion Filed 1733 § 2986. But Delay in Bond and Citation Not Fatal, if Appealed "Allowed" in Time .^ 1733 § 2987. Application for Extension Too Late after Expiration of Time 1734 § 2988. Time for Appeal Begins from Date of Entry of Order Overruling Motion for Rehearing 1735 § 2989. Motion for Rehearing Not Filed in Time, Insufficient 1735 § 2990. Reviving Lost Right of Appeal by Motion Pretended to Be for Re- consideration of Merits 1 1735 § 2991. Alias Order of Adjudication Inefifective to Revive Lost Right of Ap- peal 1735 § 2992. Time for Appeal in "Controversies," Limited by Act Creating Cir- cuit Court of Appeals 1736 § 2993. No Express Time for Petition for Review 1736 § 2994. But Dismissed for Laches 1736 § 2995. But Not Dismissed unless Delay Unreasonable 1737 § 2996. Delay Excusable on Good Cause Shown 1737 S 2997. By Analogy Should Be Filed within Six Months' Time 1737 § 2998. At Least in All Cases of "Controversies." 1737 § 2999. Time for Reviewing in Bankruptcy Proceedings Proper, Ten Days by Analogy 1737 § 3000. Rehearing Where Order Based on Authority Since Overruled 1738 § 3001. Objections Not Raised Below, Not Heard Above 1738 § 3002. Record to Show Same Issues Presented to Court Below 173§ § 3003. Even Jurisdictional Questions, unless Nonwaivable, Not Considered for First Time on Review 1739 § 3004. But Will Be if Not Waivable, Though Not Considered Below nor As- signed as Error 1739 § 3005. Plain Error Noticed, Though Not Raised by Parties Themselves.. 1740 § 3006. Issues Directly Raised by Pleadings Considered, Though First- Made Point of on Appeal / 1740 § 3007. Findings of Fact, or Equivalent, Essential to Show Issues Same.. 1740 § 3008. "Opinion" of Court Insufficient, Though May Be "Looked to." 1740 § 3009. Judgment on Facts Not Disturbed Except for Manifest Error .... 1741 2 Rem— c XXXIV TAF.LE OF CONTENTS. § 3010. Trivalities Not Considered — Substantial Interest to Be Shown .... 1743 § 3011. Clerical Mistakes Disregarded 1742 § 3012. Obedience to Mandate Enforced by Mandamus 1743 CHAPTER LIX. Appeals and Petitions for Review to Supreme Court. § 3013. Allowance or Rejection of Claims Only Bankruptcy Proceedings Proper Appealable to Supreme Court 1744 § 3014. But Only Permissible, Then if Amount in Controversy Exceeds $2,000, etc 1745 § 3015. Or Some Supreme Court Justice Certifies Essen-tial to Uniform Construction of Act 1745 § 3016. Appeals to Supreme Court in "Controversies" Where Would Have Jurisdiction in Other Cases 1745 § 3017. "Other Cases" Refers to Cases Covered by Act Creating Circuit Courts of Appeal 1745 § 3018. But Only in "Controversies" and Not in Bankruptcy Proceedings Proper 1746 § 3019. Jurisdictional Questions, in "Controversies," Appealable Directly from District Court to Supreme, Only Where Jurisdiction Would Exist if Not Concerning Bankruptcy 1746 § 3020. To Be on Certificate 1747 § 3021. "Question of Jurisdiction" Means Jurisdiction Over Subject Matter as Pleaded, Not Over Particular Person as Dependent on Proof.. 1747 § 3022. Appeals to Supreme Court to Be Taken within Thirty Days 1748 § 3023. Record for Transmission to Supreme Court 1748 § 3024. Review by Error or Petition in Supreme Court 1748 § 3025. Both Bankruptcy Proceedings Proper and Also "Controversies" Re- viewable in Supreme Court on Certiorari 1749 § 3026. State Supreme Court's Decision on Trustee's Action to Recover As- sets Transferred Contrary to Bankruptcy Act, Presents Federal Question, Reviewable by Supreme Court 1749 The Bankruptcy Act of 1898 1753 The Bankruptcy Act of 1867 1789 The Bankruptcy Act of 1841 1826 The Bankruptcy Act of 1800 1834 General Orders in Bankruptcy 1851 Official Forms in Bankruptcy 1867 Unofficial Forms in Bankruptcy 1921 Table of Cases 1953 Index 2043 PART VI. CONVERTIXG THE AssETS INTO MonEY. CHAPTER XXXVI 1. Appraisal,. Synopsis of Chapter. § 1924. All Property of Estate to Be Appraised. § 1925. Only Property of Estate Need Be Appraised. § 1926. Appraisers to Be Disinterested. § 1927. And to Be Appointed by and Report to Court. § 1928. Three Appraisers. § 1929. To Be Sworn. § 1930. Methods of Arriving at Appraisal Values. § 1930>^. Reappraisal. § .1924. All Property of Estate to Be Appraised. — All property of the estate must be appraised, by three disinterested appraisers, \vho are ap- pointed by and report to the court. ^ The purpose of this provision is to secure for tlie benefit and protection of all parties concerned a designation and estimation of the property which passes into the hands of the trustee, and for which, in the first instance, he is accountable. 2 § 1925. Only Property of Estate Need Be Appraised. — All the prop- erty belonging to the estate is to be appraised. This is a rec^uirement, how- ever, only as to property belonging to the estate. It is not requisite that property in the custody of the court but not belonging to the estate, such as exeinpt property, be appraised ; though frequently it is desirable to appraise exempt property, whenever the exemption right is limited by value and the articles claimed as exempt approximate the limit in value.^ § 1926. Appraisers to Be Disinterested. — The appraisers must be dis- interested.^ Thus, prospective purchasers would be disqualified. Also per- sonal friends of the bankrupt would be disqualified, for they might be in- clined to favor a low valuation for the bankrupt's sake, so that he might be able to buy in the assets. Creditors themselves would be disqualified. Whether employees of creditors are disqualified is a question of fact in each particular case, resting much upon the discretion of the court. Remote affiliations with creditors may be disregarded. "• 1. Bankr. Act, § 70 (b). 2. In re Gordan Supply & Mfg. Co., 13 A. B. R. 352, 133 Fed. 798 (D. C. Pa.). 3. See ante, § 1080. But the objection that a sale was made without appraisement cannot be raised for the first time on review. In re Gutterson, 14 A. B. R. 495, 136 Fed. 698 (D. C. Mass.). 4. Impliedly, In re Columbia Iron Works, 14 A. B. R. 526, 142 Fed. 234 (D. C. Mich.). 5. In re Columbia Iron Works, 14 A. B. R. 526, 142 Fed. 234 (D. C. Mich.). 1204 REMINGTON ON BANKRUPTCY. § 1929 § 1927. And to Be Appointed by and Report to the Court. — The ap- praisers are to be appointed by and report to the court ; and it is the better practice for the court to act upon his own unfettered judgment and not to permit creditors to nominate them f although there really would seldom be any ground for objecting to nominations by the creditors, since creditors usually are simply desirous of getting the best values out of the assets. Appraisers are not to be considered as appointees nor agents of the trustee ; nor is their compensation to be figured as part of the trustee's expenses. They are independent of the trustee and act as advisers of the creditors upon the matter of values, so that creditors and the court may know when the trustee has realized a fair price for the assets in his hands. The referee has power, after adjudication and reference, to appoint ap- praisers ;" but before adjudication, if appraisers are to be appointed, they must be appointed by the judge f except that, as in other matters, in the judge's absence or disability, on certificate to that effect, the referee may make the appointment. § 1928. Three Appraisers. — There must be three appraisers to appraise each piece of property. This does not mean that the same three must ap- praise all the property, nor that each piece must be appraised by a differ- ent set of appraisers. Sometimes property belonging to a bankrupt estate is scattered about different states, and sometimes it consists of widely differ- ing classes of property, such that men qualified to appraise in one branch would not be cjualified in another ; as, for instance, real estate, hardware, a stock of groceries, patents, boots and shoes. It Avould be difficult to pro- cure three appraisers who would be able to find even one in their midst for each class of assets. In some cases dift'erent sets of appraisers may be ap- pointed for each dift'erent locality or class of goods, but always there must be three of them passing upon each piece although all three need not neces- sarily be expert in each line. § 1929. To Be Sworn. — They are presumed to be sworn well and faith- fully to appraise the property before they go out to make the appraisal; but, since an appraisal probably is not complete until signed by the ap- 6. In re Columbia Iron Works, 14 A. B. R. 526, 142 Fed. 234 (D. C. Mich.). 7. In re Styer, 3 A. B. R. 424, 98 Fed. 290 (D. C. Pa.). Impliedly, In re Columbia Iron Works, 14 A. B. R. 525, 142 Fed. 234 (D. C. ]\Iich.). 8. In re Styer, 3 A. B. R. 424. 98 Fed. 290 (D. C. Pa.V Prescribed Form of Order of Appointment. — The order appointing them is prescribed by the Supreme Court and is as follows: "It is ordered that of , of , and of , three disinterested persons, be, and they are herebj', appointed appraisers to appraise the real and personal property belonging to the estate of said bankrupt set out in the schedules now on file in this court, and report their appraisal to the court, said appraisal to be made as soon as may be, and the appraisers to be duly sworn." However, the appraisers are not confined to the property that is "set out in the schedules." They are to appraise all the property belonging to the estate. § 1930 APPRAISAL. 1205 f raisers, it frequently happens that the appraisers go out and view the prop- erty and make their estimates first, and are sworn afterwards, the appraisal not being complete until after they have been sworn. § 1930. Methods of Arriving at Appraisal Values. — It is difficult to lay down hard and fast rules as to how the appraisers shall arrive at their estimates. A few propositions, however, may be safely relied on. Appraisers must not try to guess at what the assets will bring at bankrupt sale or forced sale; the assets may be sold for three- fourths of their valua- tion and if the appraisers could be permitted to fix the valuation thus, the circle would be unending, for while they would be trying to guess at what the purchasers would pay, the purchasers would be giving only three- fourths of the guess, and so on. The cupidity of bargain hunters is not the proper test. In re Prager, 8 A. B. R. 356 (Ref. Col.): "In appraising a stock of this character, the prevailing cost to the trade should be taken as the actual value. If the stock is shopworn or otherwise damaged or unseasonable, or otherwise out of date, these facts, and perhaps others of a like nature, may be considered and due allowances made for such deterioration or depreciation in value. But the appraisers have no business to anticipate or consider the cupidity of bidders who may be looking for bargains. The object of the appraisement is to inform the court and the creditors what the actual value of the property is. They are not expected to know or to guess what the property will bring at a sale. It may be sold in bulk. In that case it would no doubt have to be sold for less than cost. It may be sold in parcels. In that case it might bring more than the cost price. How it is to be sold and for how much less than its actual value are questions to be determined by the court and the creditors, not by the ap- praisers." The rules for appraisal naturally must vary with each class of prop- erty. The appraisers must take into account probable customers and the extent of their demand. The general rule for the appraisal of stocks of merchandise is that the fair market value should be taken, having in view the season, the quality, the kinds and styles, the brokenness of lots and the quantities. The rules for appraising the assets of a going concern must, in the nature of things, differ from those applicable to the valuation of its component parts ; and so, frequently, it is advisable to have the appraisal returned alternatively, as a going concern and as dead assets. There is no rule against this manner of appraisal and it certainly is natural and rational, and is of much assistance to creditors and purchasers alike. Likewise, in most cases of stocks of merchandise, the appraisal should be returned both at what the articles would bring if sold at retail and what the stock would bring if sold in bulk as an entirety. The values should be dififerent, for by selling in bulk the expense of sale is cut down, though the gross price realized is likely to be lower. The particularity with which an appraisement of the bankrupt's prop- erty is to be made must depend somewhat upon circumstances, but it must 1206 REMINGTON ON BANKRUPTCY. § 1930 j^ be general rather than special, only such particularity being given as will be sufficient to reasonably identify the property in character and quantity and give a fair idea of its value. ^ § 1930^. Reappraisal. — Reappraisal may be ordered. Although there are no special rules laid down in the bankruptcy decisions as to what cir- cumstances will warrant reappraisal; yet, in view of the fact that the judg- ment of the appraisers is sought precisely in order that creditors may be in- formed as to what price the trustee ought to obtain for the assets, it would seem that the mere fact that the trustee reports his inability to sell at the ap- praised value would be, alone, insufficient to warrant a setting aside of the appraisal and an ordering of a reappraisal. Showing certainly should also be made of mistake or incorrect methods in arriving at the values, to war- rant reappraisal ; and the better practice, undoubtedly, is to call in the ap- praisers themselves. Otherwise where the trustee is indolent, or ineffi- cient, appraisals are likely to be disregarded, and creditors to lose the benefit of the independent judgment of experienced men as to the value of the as- sets of the estate. 9. In re Gordon Supply & Mf^. Co., 13 A. B. R. 352, 133 Fed. 798 (D. C. Pa.). CHAPTER XXXVIII. Sale of Assets. Synopsis of Chapter. § 1931. Sale to Be on Petition and Order. § 1932. Equity Rules Followed Where Act, Forms and Orders Silent. § 1933. Special Orders as to Manner of Sale. § 1934. As to Auctioneers Conducting Sale. § 1935. Whether Sale to Be for Cash. § 1936. Bids Both in Bulk and Parcels with Acceptance of Greatest Aggregate. § 1937. Trustee's Judgment Ordinarily of Controlling Weight in Fixing Details, but Creditors, and Even Bankrupt, Heard. § 1938. Ten Days Notice by Mail Requisite. § 1939. Public Auction of Real Estate to Be, Also, on Four Weeks Advertise- ment, and at County Courthouse or on Premises. § 1940. Private Sales, Real Estate or Personal Property, Advertised and Con- ducted as Court Directs. § 1941. Who May File Petition to Sell: Trustee, Receiver, Marshal, Bankrupt. § 1942. Perishable Property May Be Sold without Notice. § 1943. Sales before Adjudication. § 1944. Meaning of "Perishability." § 1945. Referee to Order Sale after Reference. § 1946. Before Adjudication Judge Alone to Order Sale, unless Unable to Act. § 1947. To Be at Public Auction, unless Expressly Authorized at Private Sale. § 1948. For Good Cause Shown May Be at Private Sale. § 1949. Sale Subject to Approval and to Be for Seventy-Five per Cent. § 1950. Trustee's Sale, a Judicial Sale. § 1951. And Court Has Greater Discretion than in Other Sales. § 1952. "Gross Inadequacy" Sufficient to Refuse Confirmation. § 1953. But Mere Inadequacy, or Merely a Better Ofifer, Insufficient. § 1954. Stifling of Competition; Misconduct of Trustee or Unfairness to Bid- ders. § 1955. Bankrupt May Be Bidder. § 1956. May Accept Bid of Less than Seventy-Five per Cent. § 1957. Inherent Power to Refuse Confirmation or to Set xA.side, Even Where Not Expressly Ordered "Subject to Approval." § 1958. Formal Approval Not Always Essential to Confirmation. § 1959. "Caveat Emptor." § 1960. Discretion in Approving or Setting Aside Sale Not to Be Revised, except for Abitse. § 1961. Resale. § 1962. Summary Power to Compel Purchaser to Complete Sale. § 1931. Sale to Be on Petition and Order. — No sale should be made without first filing a petition and procuring an order to sell from the court.^ But confirmation may cure the failure to get a previous order. 1. Inferentially, In re Harvey, 10 A. B. R. 568, 122 Fed. 745 (D. C. Pa.). What petition to sell free from liens shoul'd contain. Compare, In re Gran- ite City B'k, 14 A. B. R. 408, 137 Fed. 818 (C. C. A. Iowa, affirming In re Wilka, 12 A. B. R. 727). 1208 REMINGTON OX BANKRUPTCY. § 1934 In re Harvey, 10 A. B. R. 568, 122 Fed. 745 (D. C. Pa.): "The sale was without previous authority from the court, but it was duly confirmed, and the confirmation was equivalent to a prior order." Various forms have been prescribed by the Supreme Court for leave to sell, and since the forms and orders virtually amount to advance interpre- tations of the statute itself, the inference is proper that sales are to be made only on petition. § 1932. Equity Rules Followed Where Act, Forms and Orders Si- lent. — The procedure, where not otherwise prescribed by the Bankruptcy Act, Forms or Orders, will follow the usual procedure in equity in the United States Courts. But where tlie Bankruptcy Act itself gives the right to sell, or the method of selling, its provisions will prevail over those of the Act of Congress of 1893, 27 U. S. Stats. 751. In re Edes, 14 A. B. R. 382, 135 Fed. 595 (D. C. Me.): "Under the gen- eral rules of construction, it must be held that, if Congress had intended to limit the sales of property under the Bankrupt Law to the provisions of the Act of 1893, it would have said so in clear terms. The only limitation im- posed by the bankruptcy statute is that such sales must be 'subject to the ap- proval of the court.' Collier on Bankruptcy, 520, and cases cited. The Bankruptcy Law is the last expression of the legislative will upon the subject. It clearly does not intend to limit the method of sales of property by the pro- visions of the Act of 1893. If it did, referees and trustees would be very much limifed and harassed in their disposition of property — particularly in the dis- position of perishable property — and the purpose of the law would be in a l?rge degree defeated. A new statute which affirmatively grants a larger ju- risdiction or power or right is held to prevail over any prior statute by which a limited power or jurisdiction or right less ample has been granted. Suther- land on Statutory Construction, § 254, and cases cited. It must be held that the Bankrupt Law, in ordering sales, is not limited by the Act of March, 1893." § 1933. Special Orders as to Manner of Sale. — The bankruptcy court may make special orders with regard to the manner of conducting sales, provided, of course, they do not contravene the provisions of the Bank- ruptcy Act itself, or the Act of 1893, or of the orders in bankruptcy. § 1934. As to Auctioneers Conducting Sale. — Thus, undoubtedly, in a proper case an experienced auctioneer may be employed. ^ And the em- ployment of special commissioners has been approved, in one case.^ But in the interest of the manifest spirit of economy of the Bankrupt Act, the employment of auctioneers and others should be discouraged except when absolutely necessary. It is usually one of the business duties of the 2. See post, "Costs of Administration," § 2037. 3. Sturgis V. Corbin, 15 A. B. R. 545, 141 Fed. 1 (C. C. A. W. Va.). ^ 1938 SALE OF ASSETS. 1209 trustee, for which he is presumably elected, to conduct the sales of the bankrupt's assets.-* § 1935. Whether Sale to Be for Cash. — The courts have not de- cided whether the sale must, in all instances, be for cash. Compare, In re Shoe & Leather Reporter, 12 A. B. R. 284, 129 Fed. 588 (C. C. A.): "The District Court provided that the minimum bid should be ■$60,000, and that the purchaser might pay five-sixths of the purchase money in bonds secured by the mortgage referred to. The other sixth, being not less than $10,000, it ordered to be paid in cash. The petitioners claim that the District Court had no power to order any portion of the purchase price to be paid in bonds, but it is plain that they cannot be prejudiced by its order in that particular, so that we need not investigate its powers in reference thereto." It would seem there would be no objection to a sale on deferred pay- ments, if the deferred payments are properly secured and the eft'ect is not lo imduly prolong the administration. § 193?). Bids Both in Bulk and Parcels with Acceptance of Great- est Aggregate. — The bids may be taken both in bulk and in parcels, and the greater aggregate be accepted. § 1937. Trustee's Judgment Ordinarily of Controlling Weight in Fixing Details, but Creditors, and Even Bankrupt, Heard. — As to wlwither the sale shall be public or private, in bulk or in parcels, and, in short, as to the details of time, manner and place of sale, etc., the trustee's judgment should ordinarily control ;^ although undoubtedly, creditors are •entitled to be heard as to the advisability of the different provisions of the proposed order of sale ; and likewise the bankrupt, where his interests are measurably affected. But, in any event, the final determination rests with the court. In re Columbia Iron Wks., 14 A. B. R. 526, 142 Fed. 234 (D. C. Mich.): "This controversy and that relative to the question whether the property should be sold in bulk or in parcels, are matters for determination by the court and not by vote of creditors." § 1938. Ten Days Notice by Mail Requisite. — Ten days notice by mail must be given to all creditors who are scheduled and to all who have filed claims whether scheduled or not, of all proposed sales, whether at pub- lic auction or private sale;^ except- that the court may omit notice where the property is of a perishable nature. 4. See post, "Costs of Administration," § 2037. 5. In re Columbia Iron Wks.. 14 A. B. R. 526, 142 Fed. 234 (D. C. Mich.). See ante, § 898. 6. Bankr. Act, § 58 (a) : "Creditors shall have at least ten days notice by mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing of (4) all proposed sales of property." Allgair v. Fisher, 16 A. B. R. 281, 143 Fed. 962 (C. C. A. N. J.). 1210 REMINGTON ON BANKRUPTCY. § 1940 As heretofore noted, one of the abuses in the administration of insolvent estates before the advent of the Bankruptcy Act was the shpping through of sales made in the interest of the debtor himself or some favored creditor. An application usually could be filed and granted immediately or without notice and the sale made forthwith; and the only remedy then left open to the creditor was a fruitless effort to have the sale set aside for fraud or collusion — always difficult matters to prove. If creditors have notice of such sales, they can protect themselves ; and the very fact that notice IS given them operates to deter parties from attempting to rob the estate by secret and summary sales. Thus it is, that this requirement of notices to creditors of all proposed sales is one of the safeguards of the purity of bankruptcy administration.''' And a sale made after the time set in the notice has expired, will be set asHe. Allgair v. Fisher, 16 A. B. R. 281, 143 Fed. 962 (C. C. A. N. J.): "The orders of the referee of December 24, 1904, and March 11, 1905, had practi- cally expired by the failure of the trustees to make sale of the property, pur- suant to the terms thereof, either at private or public sale, and their inability to make sale thereunder was disclosed, and the public sale had been adjourned without day; I think the referee's power in the matter was for the time exhausted, and that he should then have given a new notice to the creditors and lienors. I deem such notice not only proper, but essential, under the circumstances, and hence that the orders dated May 24, 1905, June 1, 1905, and June 15, 1905, were unwarranted, and should be set aside." § 1939. Public Auction of Real Estate to Be, Also, on Four Weeks Advertisement, and at County Courthouse or on Premises. — Where real estate is to be sold at public auction, the U. S. equity rules provide that there must be at least four weeks advertisement, once a week, at least, and that the sale be made either at the county courthouse or on the premises.-'^ § 1940. Private Sales, Real Estate or Personal Property, Adver- tised and Conducted as Court Directs. — Private sales, both of real 7. But see In re Hawkins, 11 A. B. R. 48 (D. C. N. Y.), where the court seems to assume that the referee has discretion as to whether notice to creditors need be given at all. This cannot be correct law. Perhaps that was a case of perish- able property after all and the statement of facts merely fails to show it. 8. See 27 U. S. Stat, at L., ch. 225, §§ 1, 2, 3, p. 751, approved Mch. 3, 1893: "Sec. 1. That all real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the court house door of the county, parish, or city in which the property,' or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct. "Sec. 2. That all personal property sold under any order or decree of any court of the United States shall be sold as provided in the first section of this act, unless, in tlie opinion of the court rendering such order or decree, it would be best to sell it in some other manner. "Sec. 3. That hereafter no sale of real estate under any order, judgment, or decree of any United States court shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least § 1941 sale; of assets. 1211 estate and personal property, may be made in such manner as the court may direct. § 1941. Who May File Petition to Sell: Trustee, Receiver, Mar- shal, Bankrupt. — It is absokUely necessary that the petition to sell be filed by the trustee, after his election, for he is the one vested with title, and all proceedings in behalf of the estate are to be taken in his name. Before the election of a trustee, it may be filed by the receiver or marshal, if the marshal be in charge, and perhaps by a creditor, or even by the bank- rupt himself.^ Instance, by receiver. In re Becker, 3 A. B. R. 412, 98 Fed. 407 (D. C. Pa.): "In the case now before the court the sale was made, not by a trustee, but by a receiver; and objection is raised to a receiver's power to sell the prop-* erty of the bankrupt. The objection is based upon the language of clause 3 of § 2, which authorizes courts of bankruptcy to appoint receivers, 'for the preservation of estates, to take charge of the property of bankrupts after the fiHng of the petition, and until it is dismissed or the trustee qualified.' It is argued that this limits the power of receivers, and forbids them to do more than hold possession of the bankrupt's property during a certain inter- val. I do not think the argument is sound. The clause restricts the power of the court to appoint, confining it to cases of absolute necessity, and then goes on to state the purpose for which the appointment may be originally made. But, after a receiver has once gone into possession, it may become necessary to sell the property for the very purpose of preserving it, or its value — which is, of course, the essential matter — either in whole or in part. In such event, I think the court has ample power to order or confirm a sale, either under the power to preserve, implied by clause 3 itself, or under clause 7 of the same section, which empowers the court to 'cause the assets of bank- rupts to be collected, reduced to money and distributed.' " As long as creditors have ten days notice by mail and the final deed or bill of sale is made by the trustee, it would seem enough. ^"^ four^ weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and state where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of the notice of sale herein provided for to be made in such other papers as may seem proper." 9. Compare, as to perishable property, Rule XVIII (3)^ 10. Inferentially, In re Fisher Co., 14 A. B. R. 3G6, 135 Fed. 223 (D. C. N. J.). Effect of Pendency of Composition Proceedings on Right to Sell. — And the pendency of composition proceedings does not divest the jurisdiction to sell although, unless composition proceedings are being delayed unduly, undoubt- edly jurisdiction to sell is suspended. In re Fisher & Co., 14 A. B. R. 366, 13-5 Fed. 223 (D. C. N. J."): "The first objection, namely, that a petition for compo- sition is now pending, is not valid.- It is true that an efifort to efifect a com- position with the creditors of the bankrupt has been made, but the money necessary to pay taxes and other debts having priority required to be deposited by § 12b of Bankruptcy Act, has not been deposited, though several months have intervened since the court declared that such deposit must be made before anj' composition could be confirmed." 1212 REMINGTON ON BANKRUPTCY. § 1944 § 1942. Perishable Property May Be Sold without Notice.— But perishable property may be sold without notice to creditors, if the court so orders. 11 Obiter, In re Edes, 14 A. B. R. 382, 135 Fed. 595 (D. C. Me.): "While this General Order has no force as legislation, and while it is not even a judicial interpretation of the statute, it is an order of the Supreme Court of the United States, based upon the bankruptcy statute. It cannot be held to be in dero- gation of such statute. Under its provisions a perishable estate may be sold, even without notice to the creditors, and the courts have been very liberal in their construction of what is 'perishable.' The Federal courts have in fact liberally interpreted the whole statute, as giving full equitable powers to the court. For instance, although § 58 provides that creditors shall have notice of all proposed sales of property, still, under the general powers and discretion 'given by the court in § 70b, it is the custom to order sales of perishable per- sonal property even without notice." § 1943. Sales before Adjudication. — As a rule, no order of sale should be made until after adjudication, unless the property be of such nature that a sale is necessary to preserve its value. i- The reason is obvious : before adjudication it cannot be certainly known that the property belongs to the creditors. Moreover, until the appoint- ment and qualification of a trustee there is no officer having title to the property in behalf of creditors. These reasons are particularly cogent in attempted sales of real estate before adjudication. Only by the bankrupt's consent, and doubtfully then, will good title pass to the purchaser. And even in such instances the ten days notice should go to all creditors unless the property is also perishable. ^^ § 1944. Meaning of "Perishability."— "Perishability," under the Act of 1898, would seem to refer to physical deterioration, more than to finan- cial depreciation through Bie goods becoming unseasonable, although the decisions are not uniform in this regard. 11. Rule XVIII (3), Gen. Orders in Bankruptcy: "Upon petition by a bank- rupt, creditor, receiver, or trustee, setting forth that a part or the whole of the bankrupt's estate is perishable, the nature and location of such perishable estate, and that there will be loss if the same is not sold immediately, the court, if satisfied of the facts stated and that the sale is required in the interest of the estate, may order the same to be sold, with or without notice to the creditors, and the proceeds to be deposited in court." Form of Petition to Sell Perishable Assets. — The Supreme Court's form No. 46 is the prescribed form fi^)r a petition to sell perishable assets. The petition should show the following facts; it should describe the property; state its na- ture and location; allege that it is perishable and that there will be loss if the same is not sold immediately. 12. In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 (D. C. Wis.). 13. But where a sale has been ordered by the referee in the absence of the judge, before adjudication, it will not be set aside where a fair sum has been realized and there is no evidence of injurious eiTect upon any interests. In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 (D. C. Wis.). § 1944 SALE OE ASSETS. 1213 In re Beutel's Sons Co., 7 A. B. R. 768 (Ref. Ohio): "The question is thus presented: I\Iay a stock of goods not physically nor intrinsically perishable, be sold without notice to creditors as perishable property under the Bank- ruptcy Act of 1898? The old law of 1867 provided in § 5065 as follows: 'When it appears to the satisfaction of the court that the estate of the debtor or a part thereof is of a perishable nature, or liable to deteriorate in value, the court may order the same to be sold in such manner as may be deemed most expedi- ent under the direction of the messenger or assignee, as the case may be, who shall hold the funds received in place of the estate disposed of.' "No provision existed under the old law requiring notices to creditors of sales except in cases of public sales, and then only by advertisement in the newspapers. "On the other hand, no provision is found in the present act permitting the sale of any assets as perishable, but the statute does specifically provide in § 58 (4) that 'Creditors shall have at least ten days' notice by mail to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing of — (4) all proposed sales of property.' "The Supreme Court, however, has in rule XVIII (3) attempted to make an exception to this requirement of notice in all cases of sales and has laid down the following order: 'Upon petition by a bankrupt, creditor, receiver or trustee, setting forth that a part of the whole of the bankrupt's estate is perishable, the nature and location of such perishable estate, and that there will be loss if the same is not sold immediately, the court, if satisfied of the facts stated and that the sale is required in the interest of the estate, may order the same to be sold, with or without notice to the creditors, and the proceeds to be deposited in court.' "Congress, in passing the present act, had constantly before it the provis- ions of the old act, and also the experience of litigants under it; and it must be assumed, as indeed the rules of statutory construction oblige us to assume, that where we find changes in the present act in regard to the same subject matter such changes are to be considered as indicating a distinct change in the minds of the law makers. Where, therefore, we find the present act providing for ten days' notice to creditors of all proposed sales without exception, we would naturally assume that Congress was unwilling to have any sales made without notice. Whatever force and effect the Supreme Court's general order No. 18 has we must be careful at any rate to extend it no further than its strict wording permits, and at any rate not to give' it such an effect as to practically 'restore the practice of the old law of 1867, which Congress has thus strongly disapproved. "Now note the working of the old law of 1867. It provides where the property 'is of a perishable nature or liable to deteriorate in value.' Evi- dently a distinction exists between property that is of a perishable nature and that which is simply liable to deteriorate in value. The first refers to that which has intrinsic, physical perishability — something that will decay or die or shrink or shrivel, change in its physical nature, whilst the latter is much broader, covering that which depreciates in value from whatever cause, unseasonable- ness, poor market, expense, etc. "The Supreme Court's order XVIII under the present law, however, speaks only of 'perishable property' and does not attempt to engraft an exception upon the clear cut words of the statute in favor of property which is liable merely to deteriorate in value. 1214 REMINGTON ON BANKRUPTCY. § 1948 "No doubt the careful framers of the present act bore in mind the scandals possible where entire estates could be disposed of without notice, to interested parties under the easy term that it is property liable to deteriora'te in value." § 1945. Referee to Order Sale after Reference. — After reference to the referee, the referee is the court for the purpose of granting the order to sell.i-i § 1946. Before Adjudication Judge Alone to Order Sale, unless Unable to Act. — Before adjudication orders to sell may only be made by the judge ;^^ except, of course, that in the absence or disability of the judge, the referee may act, upon receipt of a certificate from the district clerk of the judge's absence or disability. ^*^ § 1947. To Be at Public Auction, unless Expressly Authorized at Private Sale. — Sales must be at public auction, unless expressly au- thorized at private sale.^'^ And, as noted ante, § 1936, the bids may be taken in bulk and in parcels, and the greatest aggregate offer be accepted. § 1948. For Good Cause Shown May Be at Private Sale. — Upon application to the court, and for good cause shown, the trustee may be authorized to sell any specified portion of the bankrupt's estate at private sale.^^ In re Edes, 14 A. B. R. 382, 135 Fed. 595 (D. C. Me.): "There can be no ques- tion but that a, bankruptcy court, under the broad powers given by the Bank- ruptcy Law, may order a sale of either real or personal property at private sale." And the discretion of the referee in ordering a private sale will not be interfered with, except for plain abuse. ^^ 14. Official Forms 42, 43, 44, 45 and 46; In re Styer, 3 A. B. R. 424, 98 Fed. 290 (D. C. Pa.); In re Fisher & Co., 14 A. B. R. 368, 135 Fed. 223 (D. C. N. J.). Journal Entry of Order to Sell Perishable Assets. — His order should read somewhat as follows: "Upon this day of , 190 — , the trus- tee's (or receiver's or bankrupt's) petition for leave to sell perishable property came on for hearing without notice to creditors at which hearing no adverse interest was represented (see Gen. Order No. XXIII) (or, if the case be so, after hearing adverse interests) and it appearing to the satisfaction of the court (for the court must be 'satisfied') that the allegations of said petition are true and that the property therein described is perishable in its nature and the loss will result if it be not sold immediately and that the sale thereof is. required i:i the interest of the estate and that notice thereof should be omitted, now it is ordered that said petition be and it hereby is granted and said trustee is di- rected to sell said property at public sale forthwith for not less than three- fourths its appraised value and without notice to creditors and to deposit the proceeds thereof in the court to await the further orders of the court." 15. In re Styer, 3 A. B. R. 424, 98 Fed. 290 (D. C. Pa.). 16. In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 (D. C. Wis.). 17. See Supreme Court's General Order No. XVIII (1) and (2): "All sales shall be by public auction unless otherwise ordered by the court." 18. Gen. Order 18 (2). 19. In re Hawkins, 11 A. B. R. 49, 125 Fed. 633 (D. C. N. Y.) : The court ''n this case seems to labor under the misapprehension that notice can be dis- pensed with at tlie referee's discretion. Such discretion does not exist except in cases of perishable property. § 1950 sale; of assets. 1215 Real estate may be so sold as well as personal propertv-^*^ In cases of private sale, the trustee must keep an accurate account of each article sold, and the price received therefor and to whom sold ; which account he shall file at once with the referee.-^ § 1949. Sale Subject to Approval and to Be for Seventy-Five Per Cent. — Both the real and the personal property shall, when practicable, be sold subject to the approval of the court ; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value. -- § 1950. Trustee's Sale, a Judicial Sale. — A trustee's sale in bank- ruptcy is a judicial sale in contradistinction from an execution sale. A judicial sale is a sale of particular property in the custody of the court, specifically pointed out by the court and ordered during the pendency of proceedings concerning it; while an execution sale is a sale of whatever property belonging to the execution debtor the sherifif can seize. In judi- cial sales, such as are sales by trustees in bankruptcy, the court is the real seller and the trustee is its agent to obtain the highest bid — the sale is not consummated nor does title pass until confirmation. By the act of con- firmation, the sale becomes complete and the title passes. In execution sales, on the other hand, the court has rendered simply a judgment for money and is then done with the matter. The sherifl: is the real seller and title passes at once to the highest bidder. A result of this distinction is that, in ex- ecution sales, the purchaser immediately becomes invested with rights which can only be divested by showing that he himself, or his agent, has been guilty of fraud ; while in judicial sales, such as trustee's sales in bankruptcy, until confirmation, the socalled purchaser has no such rights, has no title at all — he is simply a preferred bidder waiting for the court to accept his ofiPer ;-^ and the court may refuse to accept his offer on much weaker grounds than would be required to set aside a sale on execution, where title has already passed. In re Harvey, 10 A. B. R. 567; 568, 122 Fed. 745 (D. C. Pa.): "In the case under consideration, the trustee sold at public sale certain real estate of the bankrupt, upon which the city held several liens for municipal taxes. The sale was without previous authority from the court, but it was duly confirmed and the confirmation was equivalent to a prior order. I do not doubt that this was a judicial sale. 17 Am. & Eng. Encycl. Law, 954, 955." Inferentially, In re Shea, 11 A. B. R. 211, 126 Fed. 153 (C. C. A. Mass.): "But on a true construction of § 70 (b) the case before us is not one of set- 20. In re Edes, 14 A. B. R. 382, 135 Fed. 595 (D. C. Me.). 21. Gen. Ord. 18 (2). 22. Bankr. Act, § 70 (h). 23. In re Groves, 2 N. B. X. & R. 31 (Ref. Ohio). Inferentially, In re Ethier, 9 A. B. R. 160, 118 Fed. 107 (D. C. Wis.); contra, Steadman v. Taylor, 1 N. B. N. 283. 1216 REMINGTON ON BANKRUPTCY. § 195S ting aside a sale, but of affirming it. * * * so that, strictly speaking, we are within the rule of Williamson v. Berry, 8 How. 495, 546, 12 L. Ed. 1170, to the effect that, when a sale is made subject to confirmation, no title vests until it is confirmed." § 1951. And Court Has Greater Discretion than in Other Sales. — And being a judicial sale, the court! may refuse to accept bids and may set aside sales on lesser grounds than in other sales. -^ Inferentially, Pewabic ^Min. Co. v. INIason, 14ft' U. S. 35^: "It may be stated generall}^ that there is a measure of discretion in a court of equity, both as to the manner and conditions of such a sale, as well as to orderincr or refusing a resale." § 1952. "Gross Inadequacy" Sufficient to Refuse Confirmation, — Therefore, mere gross inadequacy of price, in bankruptcy, without more, is sufficient to prevent confirmation of a trustee's sale.^'^ Obiter, In re Belden, 9 A. B. R. 679, 120 Fed. 524 (D. C. N. Y.) : "This court does not doubt its power to open this sale on the ground of inadequacy of consideration, but to do that, in face of the opposition of all the creditors interested in that consideration, would be unjustifiable." Inferentially, but obiter. In re Ethier, 9 A. B. R. 160, 118 Fed. 107 (D C. Wis.): "The object of the sale in question, under order of the court, was to obtain the best price for the stock of goods, through open and unrestricted bidding; and a judicial sale so made will not be set aside except for gross in- adequacy of price, or for circumstances impeaching the fairness of the sale." § 1953. But Mere Inadequacy, or Merely a Better Offer, Insuffi- cient. — But mere inadecjuacy of price, unless it amounts to gross inade- quacy, is not sufficient ground for setting aside a sale, unless there be addi- tional circumstances. Graffam v. Burgess, 117 U. S. 191: "In this country, Lord Eldon's views were adopted at an early day by the courts, and the rule has become almost universal that a sale will not be set aside for inadequacy of price, unless the inadequacy be so great as to shock the conscience or unless there be addi- tional circumstances against its fairness; being very much the rule that has always prevailed in England as to setting aside sales after the master's re- port has been confirmed." Sturgis V. Corbin, 15 A. B. R. 546 (C. C. A. W. Va.) : "A sale made under a judicial decree will not, when no misunderstanding existed among the bid- ders, and when no fraud is shown, be set aside for mere inadequacy of price, unless such inadequacy is so gross as fairly to raise a presumption of fraud. The practice of opening biddings and of setting aside sales made during the 24. Also, see cases cited ante and post, §§ 1950 and 1952. 25. In re Groves, 2 N. B. N. & R. 31 (Ref. Ohio). Evidence of true value: Price obtained by the purchaser, on resale of the purchased goods, shortly thereafter, has been held incompetent. Sebring v. Wellington. 6 A. B. R. 671 (X.* Y. Sup. Ct. App.). But see strong dissenting opinion. Compare also, In re Bloch, 6 A. B. R. 300, 109 Fed". 790 (C. C. A. N. Y.). § 1954 SAI.E 01^ ASSETS. 1217 progress of judicial proceedings should not be encouraged, as it is not con- ducive to the interests of litigants, and it tends to shake public confidence in the validity and finality of judicial sales, and to unduly prolong litigation. A purchaser at a judicial sale, who has complied with the terms thereof, or who shows his willingness and ability so to do, is not only entitled to the protection of the court, but as a party to the proceeding, made such by his purchase, is so situated as to be entitled to the court's decree of confirma- tion, in the absence of the inadequacy, fraud, or mistake before alluded to." And merely a better offer, however beneficial to creditors, will not stiffice to set aside the sale, unless misconduct existed in the sale amounting to imposition and fraud. ^^ In re Ethier, 9 A. B. R. 161, 118 Fed. 108 (D. C. Wis.): "The fact of a better ofifer subsequent to the sale, however beneficial to the creditors, will not furnish ground to disturb the transaction, after confirmation, without mis- conduct in the sale amounting to imposition and fraud." Sturgis V. Corbin, 15 A. B. R. 547 (C. C. A. W. Va.) : "The advance ofifer of $7800 [4 per cent, increase] was, of itself, under the circumstances attending the purchase by Sturgis, not sufficient to warrant the setting aside of the sale." And merely a prospective better bidder, although himself a creditor, where neither the other creditors nor the bankrupt are asking for it, but, on the contrary, are objecting, cannot have a sale set aside, even though oft'ering a better bid.^' Confirmation wilt not. be refused for inadecjuacy of price where the sale was regularly and fairly made, where the objecting party is a creditor who was present and was a bidder at the sale, even though at the time of objecting he offers to bid slightly more.-^ § 1954. Stifling of Competition; Misconduct of Trustee or Un- fairness to Bidders. — Much more is the stifling of competition or mis- conduct of the trustee sufficient ground for refusing confirmation. ^^ In re Shea, 11 A. B. R. 210, 126 Fed. 153 (C. C. A. Mass., affirming 10 A. B. R. 481): "In passing, we may add that the exercise of discretion to set aside a sale would be justly called for so long as parties intending to bid had seasonably advised the officer conducting the sale that they so intended, and were prevented from bidding without fault on their part. Under such circumstance, whether the loss of the opportunity to bid happened through inadvertence on the paft of the officer conducting the sale, or through his in- tention, or by any accident for .which the intending bidders were not respon- sible, would be immaterial." 26. Impliedly, In re Belden, 9 A. B. R. 679, 120 Fed. 524 (D. C. N. Y.). 27. In re Belden, 9 A. B. R. 679, 120 Fed. 524 (D. C. N. Y.). 28. In re Thompson, 2 A. B. R. 216 (Ref. Penna.). 29. In re Ethier, 9 A. B. R. 160, 118 Fed. 107 (D. C. Wis.), the facts in which case are peculiar: Intending purchasers had agreed among themselves to make one bid, the highest, each. Another apparent purchaser was really agent of one of them and bid it in. Had the remaining purchasers known the facts they would have continued to bid. In re Groves, 2 N. B. N. & R. 31 (Ref. Ohio). In re Hawley, 9 A. B. R. 61, 117 Fed. 364 (D. C. Iowa), in which case the trus- tee purchased at his own sale but was allowed for the money expended by him for betterments on the land as well as for the purchase price. 2 Rem B— 2 1218 REMINGTON ON BANKRUPTCY. § 1955 Thus, where a trustee sold the bankrupt's equity at private sale, without giving notice thereof to an intending bidder according to promise, the equity being worth three times the sum the trustee expected to receive, the court set aside the sale upon, the intending bidder filing an agreement to pay three times as much for the equity at the next sale.s^ Participation of the purchaser in the misconduct need not be proved.^i And unfairness towards bidders may warrant refusal of confirmation.32 Sturgis V. Corbin, 15 A. B. R. 547 (C. C. A. W. Va.) : "The advance in the bid, it thus appears, was less than 4 per cent, on the sum at which it had been sold to Sturgis. The acceptance of this belated bid, was, we think, under the circumstances attending said sale, a mistake. This offer was made by a party interested in the proceeds of the sale, one who was thoroughly familiar with all the incidents connected with it, who was well advised as to the value of the property, and who had himself been an unsuccessful bidder during one of the times at which the property had been offered for sale. There is an entire absence of fraud; in fact no intimation of its existence is made. It is not shown that any mistake or misunderstanding existed among the bid- ders concerning the' property itself, or the terms under which the sale was made. The additional offer was not of such a character as would demon- strate inadequacy of price, or justify a refusal to confirm. If a judicial sale has been fairly conducted, as was the sale we now consider, the rights of the purchaser should be protected, not only because it is his due, but also for the purpose of protecting such sales from the evil and chilling influences of insta- bility and doubt." § 1955. Bankrupt May Be Bidder. — The bankrupt may be a bidder.^^ But neither the trustee, receiver nor referee may be a purchaser.-^"^ 30. In re Shea, 11 A. B. R. 207, 126 Fed. 15.3 (C. C. A. Mass.). Where a sale of the bankrupt's equity for its appraised value is set aside upon the petitioner filing an agreement to bid three times as much, the omis- sion from the record upon a revisory petition, praying an affirmance of the sale, of any specific finding that the value of the equity exceeded the amount which it brought at the sale, is not material, it being assumed that the court acted rightly and found that the value of the equity was triple the price the trustee was to receive therefor. In re Shea, 11 A. B. R. 207, 126 Fed. 153 (C. C. A. Mass.). 31. In re Shea, 11 A. B. R. 207, 126 Fed. 153 (C. C. A. Mass.); impliedly. In re Belden, 9 A. B. R. 679, 120 Fed. 524 (D. C. N. Y.); [1867] In re O'Fallon, Fed. Cases 10,445; In re Groves, 2 N. B. N. & R. 30 (Ref. Ohio). 32. In re Shea, 11 A. B. R. 207. 126 Fed. 153 (C. C. A. Alass.). But compare facts in In re Mitchell, 15 A. B. R. 739 (Ref. Mass.), where the court confirmed a private sale to the bankrupt who waited until all bids were in and then offered a slightly higher bid; the court, however, refusing still higher offers from creditors afterwards. Such a sale was manifestly unfair to the bona fide bidders. 33. In re Mitchell, 15 A. B. R. 739 (Ref. :Mass.); Clark z: Clark, 17 How. 315; In re Kingman, 5 A. B. R. 251 (Ref. Mass.); Holbrook v. Cone)% 25 Ills. 543; [1867] Phelps v. McDonald, 2 McArthur 375; contra, Marsh v. Heaton, 1 Low 278. It has been held in one case that a bankrupt repurchasing from the purchaser at the trustee's sale his own claim against a person, cannot thereafter enforce his claim against an undisclosed principal not named as debtor. Shesler v. Patton, 17 A. B. R. 372, 114 App. Div. 846. 34. In re Hawley, 9 A. B. R. 61, 117 Fed. 364 (D. C. Iowa); In re Mitchell, 15 A. B. R. 739 (Ref. Mass.). Bankr. Act, § 39 (b) (3). § 1957 SALU OF ASSETS.' 1219 § 1956. May Accept Bid of Less than Seventy-Five Per Cent. — The court may accept a bid of less than seventy-five per cent, of the ap- praised vakie, without ordering a reappraisal.'^^ Nevertheless, the ap- praisal should not be disregarded. In some jurisdictions by local rule, the court will not approve a sale at less than two-thirds, although it will, of course, order reappraisal if good ground therefor exists. § 1957. Inherent Power to Refuse Confirmation or to Set Aside, Even Where Not Expressly Ordered "Subject to Approval." — The inherent power of the court to disapprove and set aside an improper sale made under its order, is not taken away by this provision of § 70 (b) of the act, even where not sold subject to its approval. In re Shea, 10 A. B. R. 481, 122 Fed. 742 (D. C. Mass.): "Section 70 (b) * * * provides that, when practicable, property shall be sold subject to the approval of the court. The order to sell made by the referee in the case at bar contained no such limitation, and so the authority of the court to set aside this sale must depend upon that general authority to deal with sales made under its orders which is inherent in a court of bankruptcy. This au- thority is not, I think, taken away by the provision just cited." In re Shea, 11 A. B. R. 210, 126 Fed. 153 (C. C. A. Mass., affirming 10 A. B. R. 481): "But on a true construction of § 70b the case before us is not one of setting aside a sale, but of affirming it. As we have already said, this provision has no such interpretation as that given it by the petitioner. So far from that, it clearly provides that in every case the sale shall be subject to the approval of the court when practicable, and even the limitation 'when practicable' does not apply when the sale is less than 75 per centum of the ap- praised value. In other words, under all circumstances the sale is sub- ject to approval by the court 'when practicable;' and there is no question in this case that it was practicable to obtain such approval. Therefore the question is one of confirming and not of setting aside; so that, strictly speaking, we are within the rule of Williamson v. Berry, 8 How. 495, 546, 12 L. Ed. 1170, to the effect that, when a sale is made subject to confirmation, no title vests until it is confirmed." But if a lesser bid is presented for approval, the burden of proof rests on the trustee recommending the confirmation, to show that it is proper to accept a bid of less than 75 per cent.-'^*' And a sale for less than seventy-five per cent, conveys no title, imless confirmed by the coiu't.-^''' In re Shea, 11 A. B. R. 207, 126 Fed. 153 (C. C. A.): "If a judicial tribu- nal authorized to make a judicial sale expressly reserves the right to approve or disapprove, it certainly would require a very extreme case to justify some 35. Impliedly, Bankr. Act, § 70 (b) : "It shall not be sold otherwise than subject to the approval of the court for less than 75 per cent, of its appraised value." 36. In re Groves, 2 N. B. N. & R. 31 (Ref. Ohio). 37. Bankr. Act, § 70 (b). 1220 REMINGTON ON BANKRUPTCY. § 1959 Other tribunal in injecting its own discretion. The condition seems to be the same where the right to approve or disapprove is expressly reserved by- statute." § 1958. Formal Approval Not Always Essential to Confirmation. — Formal approval is, perhaps, not always necessary to effect a confirma- tion. In re Shea, 11 A. B. R. 211, 126 Fed. 153 (C. C. A. Mass.): "We do not undertake to say that § 70 (b) requires always a formal approval." Thus, silent acquiescence in a sale for a considerable length of time may effect a confirmation f^ or a crediting of the proceeds in the trustee's re- port or account, and a subsec|uent approval of the report or account by the court, may suffice to eft'ect a confirmation.^^ § 1959. "Caveat Emptor." — The rule of "caveat emptor" prevails in bankruptcy sales, as in all judicial sales, unless special direction other- wise is made in the order of sale.^*^ The sale, in the absence of special warranty by the trustee, conveys simply whatever interest the trustee possesses ;^ ^ but by special warranty or representation, the trustee may be bound by a different rule. Whether he may, however, bind the estate thereby unless so authorized by the order of sale, is doubtful. The referee may refuse to order the sale of a speculative claim, where the sale is sought merely for the purpose of annoyance, and where the 38. Obiter, In re Shea, 11 A. B. R. 211, 126 Fed. 153 (C. C. A. Mass.). 39. In re Shea, 11 A. B. R. 211, 126 Fed. 153 (C. C. A. Mass.). 40. In re Mulhauser Co., 10 A. B. R. 236, 121 Fed. 669 (C. C. A. Ohio); im- pliedly, Owens V. Bruce, 6 A.' B. R. 322, 109 Fed. 72 (C. C. A. S. C). It is proper to refuse leave to persons who are not parties to the bankruptcy proceedings, to come in and assert rights in the property -sold where they can assert their rights equally against the purchaser. In re Mulhauser Co., 10 A. B. R. 236, 121 Fed. 669 (C. C. A. Ohio). » Trustee selling at "Invoice Price," where the actual purchase by the bank- rupt originally had been made below invoice price. Purchaser, having full op- portunity for examination refused reduction. Owens f. Bruce, 6 A. B. R. 322, 109 Fed. 72 (C. C. A. S. C). • The rule of caveat emptor will not interfere with the court in its discretion setting aside a sale or granting a rebate of the purchase price where the defect is not a defect of the title or quality but merely a failure to get the quality of articles advertised as being sold. Searchy v. McCourt, 1 Fed. Rep. 261; 1 Md. 147; 3 La. Ann. 326. This rule would seem to be restricted to cases where the trustee could be put in statu quo and where the proportionate rebate is certain and ascertainable. If the property has left the custody of the Bankruptcy Court that court will no longer protect one in his possession of it, not even though he be a purchaser from the trustee. Briggs z'. Stevens, 7 Law Rep. 281. The purchaser of the trustee's interests in property is entitled to maintain the same suits to set aside preferential or fraudulent transfers thereof or en- cumbrances thereon as the trustee himself would have been entitled to main- tain. Bryan v. Madden, 15 A. B. R. 388, affirming 11 A. B. R. 763, 78 N. Y. Supp. 220. But compare, Shcsler v. Patton. 17 A. B. R. 372, 114 App. Div. 846. 41. Instance, attempted sale of buildings separately from leasehold, where the landlord claims they are not severable, In re Gorwood, 15 A. B. R. 107 (D. C. Pa.). § 1962 SALK OF ASSETS. 1221 gain to the bankrupt estate will be merely nominal;^- but if anyone will give a substantial price for such claim, it is no duty of the trustee or court to refuse to sell."*-^ § 1960. Discretion in Approving or Setting Aside Sale Not to Be Revised, except for Abuse. — The discretion of the court in approving or in setting aside the trustee's sale wall not be revised, unless there has been an abuse of power, or the case is, in other respects, extreme.'*^ In re Shea, 11 A. B. R. 207, 126 Fed. 153 (C. C. x\. Alass.) : "However all this may be, it should be remembered that, according to the practice in the Federal courts, an appellate tribunal is prohibited from revising the exercise of discretion in matters of this kind by a court having equitable jurisdiction, unless there is an abuse of power, or the case is in other respects extreme. There is nothing which this record properly brings to us, or even suggests, which justified the probability of the existence of an exception of that char- acter." Likewise in ordering a sale. Impliedly, In re Sanborn, 3 A. B. R. 54, 96 Fed. 551 (D. C. Vt.) : "What would be a proper case is a matter of discretion." § 1961. Resale. — Of course, after a sale has been set aside, a resale is to be ordered. -^"^ § 1962. Summary Power to Compel Purchaser to Complete Sale. — The bankruptcy court has summary power to compel a purchaser to complete his contract of sale. Meson v. Wolkowich, 17 A. B. R. 714, 150 Fed. 699 (C. C. A. Mass.): "Wherever a receiver, by direction of the court appointing him, makes a sale of assets in his possession, the parties concerned in the sale are bound to recognize him as an officer of the court; and consequently the court appointing the receiver, not only has power to enforce in a summary manner the com- pletion of the contract of sale, but the parties involved are deemed to have con- sented to such a proceeding." 42. Obiter. In re Gutterson, 14 A. B. R. 495 (D. C. Mass.). 43. In re Gutterson, 14 A. B. R. 495 (D. C. Mass.). 44. In re Sanborn, 3 A. B. R. 54, 96 Fed. 551 (D. C. Vt.). Instance, where reviewing court refused to interfere, In re Throckmorton, 17 A. B. R. 856 (C. C. A. Ohio). And review of an order setting aside a sale does not lie until a resale has been ordered, made and confirmed. Sturgis v. Corbin, 15 A. B. R. 543, 141 Fed. 1 (C. C. A. Va.). 45. Instance, In re Fisher & Co., 17 A. B. R. 404, 148 Fed. 907 (D. C. N. J.): Reimbursement of first purchaser for intermediate outlays for improvements. CHAPTER XXXIX. Selling Property Subject to and Free from Liens; and Trans- ferring Rights to Proceeds. Synopsis of Chapter. § 1963. :May Be Sold Subject to Liens. § 1964. If Not Mentioned to Be Otherwise, Sale Is Subject to Liens. § 1965. May Be Sold Free from Liens and Liens Transferred to Proceeds. § 1966. Lienholder's Consent Not Necessary. § 1967. Sale Clear and Free Ordered before Validity or Priority Determined. § 1968. But Not Where Lienholder Who Desires to Bid, Objects. § 1969. Sale Subject to Some Liens Free from Others. § 1970. Order Should Provide for Transfer of Rights to Proceeds. § 1971. No Sale Free and Clear unless Reasonable Prospect of Surplus Appear or Lienholder Requests. § 1972. Parties Relegated to State Court Where Foreclosure Necessary to Bar Rights Not within Jurisdiction of Bankruptcy Court. § 1973. Thus, Where Inchoate Dower Outstanding. § 1974. But, if Wife Consents, Sale May Be Made Free from Dower. § 1975. Referee May Order Sale Free from Liens. § 1976. Even Free from Lien of Taxes. § 1977. Even before Validity and Priority of Liens Determined. § 1978. Even Where Located Outside of State, Provided Property Be Per- sonally and in Actual Custody. § 1979. And Consent of Parties Not Necessary. § 1980. Notice to Lienholders Requisite. § 1981. No Established Form for Notice. § 1982. "Order to Show Cause," Approved Form of Notice. § 1983. Record of Referee to Show Notice and to Whom Given. § 1984. Procedure in Referee's Court to Follow Equity Rules Where Bank- ruptcy Rules Silent. § 1985. How Lienholder to Set Up Lien. § 1986. Separate Accounts of Each Fund to Be Kept. § 1987. Failure to Object to Sale without Separation Waives Rights. § 1988. Taking Additional Evidence, after Sale, to Fix Proportions of Fund. § 1989. Expenses of Preservation and Sale Paid Out of Particular Fund In- volved. § 1990. Each Fund to Bear Its Own Expenses and Costs. § 1991. Proportionate Part Not to Be Charged against Each Lien. § 1992. Costs and Expenses First Deducted and Liens Paid Out of Remainder. § 1993. General Costs of Administration Not Chargeable. § 1994. Trustee's Attorney's Fees and Expenses Benefitting Entire Fund Chargeable but Not Services for Litigating Liens. § 1995. Referee Has Authority to Tax Costs and Expenses. § 1996. Costs and Expenses Taxable. § 1997. Lienholder as Purchaser, May Apply Lien on Price, except as to Superior Liens. § 1965 SALE SUBJECT TO LIENS, ETC. 1223 § 1998. Trustee's Deed or Bill of Sale. § 1999. Remedies against Purchaser. § 2000. No Jurisdiction of Suit by Third Party against Purchaser from Trustee. § 1963. May Be Sold Subject to Liens. — The property may be sold subject to liens. ^ Even subj,ect to the hen of taxes. - § 1964. If Not Mentioned to Be Otherwise, Sale Is Subject to Liens. — If the sale is not expressly ordered to be free and clear of liens, it will be a sale subject to liens.^ § 1965. May Be Sold Free from Liens and Liens Transferred to Proceeds. — The property may be sold free from liens and encumbrances, and the liens be transferred to the proceeds. No form was prescribed for this purpose by the Supreme Court, and no special authorization of sales free from liens is to be found in the statute itself;- but so far as statutory authorization is concerned, nothing is found in the statute specially authorizing sales subject to liens, nor at private sale nor of perishable property, and yet those methods of sale are deemed proper in bankruptcy. And it would be a serious defect were it not permissible to sell property in bankruptcy free from liens, because such is ordinarily the best method of selling property. To sell property free and clear from all liens and to have all controversies relative to the validity and extent of liens thereon transferred to the fund, is likely to lead to better prices. Other- wise, the purchaser would have to buy all the controversies along with the purchase of the property itself. And the right to sell property in the bank- ruptcy court clear and free from all encumbrances, and to transfer the liens to the proceeds, is now beyond dispute.^ 1. In re Gerry, 7 A. B. R. 459, 112 Fed. 9.58 (D. C. Pa.). Sup. Court's C^.'cial Form, No. 44. 2. In re Gerry, 7 A. B. R. 459. 112 Fed. 958 (D. C. Pa.). 3. In re Foundry & Machine Co., 17 A. B. R. 293 (D. C. Wis.). 4. See similar subject "Marshaling of Liens, etc.," ante, § 196."i, et seq. [1841] In re Christy, 3 How. (U. S.) 292; obiter, In re Foundry & Machine Co.. 17 A. B. R. 293 (D. C. Wis.); In re Worland, 1 A. B. R. 450, 92 Fed. 893 (D. C. la.); In re Sanborn. 3 A. B. R. 54, 96 Fed. 551 (D. C. Vt.) ; [1841] Houston v. Bank, 6 How. 486; [1867] Ray v. Norseworthy, 23 Wall. 128; In re Granite City Bk,, 14 A. B. R. 404, 137 Fed. 818 (D. C. Md.) ; instance. In re Kellogg, 10 A. B. R. 11, 121 Fed. 333 (C. C. A. N. Y., affirming 7 A. B. R. 632); inferentiallv, obiter, In re Gerdes, 4 A. B. R. 346, 102 Fed. 318 (D. C. Ohio); Southern Loan & Trust Co. V. Benbow, 3 A. B. R. 10, 96 Fed. 514 (D. C. N. Car., reversed, on other grounds, in 3 A. B. R. 710); In re Waterloo Organ Co., 9 A. B. R. 427. 118 Fed. 904 (D. C. N. Y.); impliedly, In re Shoe & Leather Reporter, 12 A. B. R. 248, 129 Fed. 588 (C. C. A. Mass.); compare, query, obiter, Chauncey v. Dyke Bros., 9 A. B. R. 444, 119 Fed. 1 (C. C. A. Ark., affirming In re Matthews, 6 A. B. R. 96). Instances, In re Kellogg, 7 A. B. R. 632, 113 Fed. 113 (D. C. N. Y., affirmed in 10 A. B. R. 7, 121 Fed. 333); McNair v. Mclntyre, 7 A. B. R. 638, 113 Fed. 120 (C. C. A. N. C); In re Keller, 6 A. B. R. 351, 109 Fed. 131 (D. C. Iowa): Taxes on merchandise sold by trustee in bulk free and clear where State Statute makes such taxes a lien. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). 1224 REMINXTOX ON BANKRUPTCY. § 1965 In re New England Piano Co., 9 A. B. R. 767, 122 Fed. 937 (C. C. A. Mass.) : "The first proposition of the petition is that the District Court had no authority or jurisdiction to order a sale of the property in question free and clear of incumbrances. The petitioner concedes the force of the decisions of the Supreme Court in In re Christy, 3 How. 292, and Ray z'. Norse- worthy, 23 Wall. 128, already referred to; but it claims that the former was under the Bankruptcy Act of 1841, and the latter under that of 1867, and that both of those statutes expressly conferred powers on the District Court sitting in bankruptcy which are not given it by the act of 1898. Even if this were so, it would not follow that a decree should be entered in favor of the petitioner. By § 2 of the act of 1898 the District Courts as courts of bank- ruptcy are given 'such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings in vacation in chambers, and during their respective terms.' As we have shown in other opinions, the District Court sitting in bankruptcy proceeds in accordance with the principles of equity, and exercises equitable powers. An order like this appealed from is clearl}^ within the ordinary jurisdiction of courts proceeding on those principles and exercising those powers. In re Christy fully rec- ognizes this principle at pages 312 and 313. The case was reaffirmed in Nugent V. Boyd, 3 How. 426, and Houston v. City Bank, 6 How. 486. In this con- nection the petitioner claims that Ray v. Norseworthy was rested on § 20 of the act of 1867, which gave special powers with reference to creditors wholly or partially secured, offering proofs of debts against bankrupt estates; but an examination of the opinion shows that the case was merely supported by the reference to that section, and that the first section of the act was re- garded as wholly sufficient. Nothing cited from the act of 1841 in In re Christy vested in the District courts sitting in bankruptcy any greater powers than are found in the provisions of § 2 of the present statute, giving them juris- diction 'at law and in equity,' as we have already said, and authorizing them to 'cause the estates of bankrupts to be collected, reduced to money, and dis- tributed,' and to 'make such orders, issue such process, and enter such judg- ments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions' of the act." In re Kest, 11 A. B. R. 117, 128 Fed. 651 (D. C. Pa.): "There can be no question as to the authority of the District Court * * * . This is essen- tial to a complete administration of the bankrupt's estate, and will be implied from the general provisions of the present act, even though not expressly given, as in the preceding Act of 1867." In re Pittelkow, 1 A. B. R. 472, 92 Fed. 901 (D. C. Wis.): "Upon the general question of jurisdiction, I am of the opinion that the District Court is vested with exclusive jurisdiction over the property of the bankrupt, and with sufficient equity powers to have all claims by mortgagees brought in and ad- ministered; that sales may be authorized, under proper circumstances, free and clear from the mortgages, or other liens, by preserving and transferring the claims to the fund thus provided; and that the commencement of fore- closure proceedings can be restrained to that end." In re Prince & Walter, 12 A. B. R. 678, 131 Fed. 546 (D. C. Pa.): "But, notwithstanding what has been said above about liens unaflfected by bank- ruptcy proceedings, it is in the power of the court to order a sale clear and free of them, regardless of how they would ordinarily ^tand." Sturgis V. Corbin, 15 A. B. R. 545, 141 Fed. 1 (C. C. A. W. Va.) : "The order of the court below directing a sale of the property clear of all liens, claims and incumbrances was, under the circumstances, a wise exercise of judicial dis- ^ 1969 SALE SUBJECT TO LIKNS, ETC. 1225 ■cretion, being such action as tlie Bankrupt Act contemplates and provides for in those instances where the nature and location of the property make it de- sirable in the interest of creditors that the same be sold as soon as practi- cable." And it may be sold free, even, from the lien of taxes ;^ though not to the prejudice of the state or municipality. § 1966. Lienholder's Consent Not Necessary. — And it does not re- quire the lienholder's consent.'' That property may be sold clear and free, and the liens transferred to the fund by agreement, is clear;" and the agreenfent may be implied.^ § 1967. Sale Clear and Free Ordered before Validity or Priority of Liens Determined. — A sale free and clear from liens may be ordered be- fore the validity and priority of the liens have been determined ; the con- troversies being transferred to the funds. ^ In re Shoe & Leather Reporter, 12 A. B. R. 248, 129 Fed. 588 (C. C. A.): ■"After a full investigation, the District Court, sitting in bankruptcy, ordered a sale of all the assets, leaving all questions as to what portions thereof are covered by the mortgage and are not covered by it to be afterwards ascer- tained and determined. Therefore, so far as the main issue is concerned, the District Court rested securely on our decision in Union Trust Company, Pe- titioner." § 1968. But Not Where Lienholder Who Desires to Bid, Objects. — But a sale free and clear, before the priority, validity and extent of liens have been determined, should not be ordered over the objection of a lien- holder who might desire to bid and use the ascertained value of his lien in part payment of the purchase price. ^*^ § 1969. Sale Subject to Some Liens, Free from Others. — The sale may be ordered subject to some liens and free from others; and failure to mention a lien makes the sale subject thereto. ^^ 5. In re Prince & Walter, 12 A. B. R. 678, 131 Fed. 546 (D. C. Pa.); In re Keller, 6 A. B. R. 351, 109 Fed. 131 (D. C. Iowa). 6. Geo. Carroll &-Bro. Co. v. Young, 9 A. B. R. 643, 119 Fed. 577 (C. C. A. Pa.). See most of the cases cited in the preceding paragraph, § 1965. 7. In re Bourlier Cornice & Roofing Co., 13 A. B. R. 585 (D. C. Ky.). 8. Chauncey v. Dyke Bros., 9 A. B. R. 444, 119 Fed. 1 (C. C. A. Ark.). 9. In re Granite City Bank, 14 A. B. R. 405, 408, 137 Fed. 818 (C. C. A. Iowa, affirming In re Wilka, 12 A. B. R. 727); In re Union Trust Co., 9 A. B. R. 767, 112 Fed. 937 (C. C. A. Mass.); instance. In re Waterloo Organ Cp., 9 A. B. R. 427, 118 Fed. 904 (D. C. N. Y.). 10. In re Saxton Furnace Co., 14 A. B. R. 483 (D. C. Pa.). , 11. Instance, ordered sold subject to first mortgage, free as to second mort- gage, taxes (circumstances as to taxes peculiar, however) and other liens, In re Prince & Walter, 12 A. B. R. 675, 131 Fed. 546 (D. C. Pa.). 12. In re Foundry & Machine Co., 17 A. B. R. 293 (D. C. Wis.). 1226 REMINGTON ON BANKRUPTCY. § 1971 § 1970. Order Should Provide for Transfer of Rights to Proceeds. — In selling free from liens the order of sale should provide for the trans- fer of the liens to the proceeds. ^-^ § 1971. No Sale Free and Clear unless Reasonable Prospect of Surplus Appear or Lienholder Requests. — The bankruptcy court gen- erally will not order a sale free from liens, or otherwise, unless there is a reasonable prospect that a surplus will be left for general creditors, or some lienholder requests it: that the interests of the general creditors will be advanced and the interests of lienholders not injuriously affected. ^-^ In re Pittelkow, 1 A. B. R. 472, 92 Fed. 901 (D. C. Wis.): "It is, however, the duty of the court to consider the interests of mortgagees and other secured creditors as well as those of the general creditors; and unless it is apparent (1) that the mortgaged premises in the given case will probably realize upon a sale an amount substantially in excess of the mortgage, and (2) that there are no complications, by dower rights, conveyances, or other conditions, which require foreclosure under the mortgage, the power to proceed summarily by sale, including the interest of the mortgagee, should not be exercised."' Obiter, In re New England Piano Co., 9 A. B. R. 770, 122 Fed. 937 (C. C. A. Mass.): '"It is true that, ordinarily, the court in bankruptcy ought not to inter- fere in this way where it is apparent that the estate has no equity of redemp- tion of value, but this cannot be held to be universally true for reason which we have no occasion to state." In re Styer, 3 A. B. R. 424, 98 Fed. 290 (D. C. Pa.): "Assuming * * * that such power exists, it is clear that the sale should not be ordered unless the court is satisfied that the interest of general creditors would be thus ad- vanced, and that the interest of the lien creditors would not be injuriously affected." In re Goldsmith, 9 A. B. R. 426, 118 Fed. 763 (D. C. Tex.): "In the admin- istration of bankruptcy estates it has been the rule to carefully consider whether there is a probable interest in incumbered property for the general creditors; if it be decided there is, then to sell same, after notice, either sub- ject to or free from incumbrance, as conditions may .indicate. If sold free from incumbrance, it ought to be provided that such incumbrances, and liens as may be found to exist should attach to the proceeds of the sale. If it be decided there is no interest for the general creditors, then the bankruptcy court should not undertake to administer the property for an absent lienor. To undertake its administration is an abuse of discretion justly condemned by the authorities." But where the validity of liens, or the extent of liens upon after-acquired property, is in dispute, so that the question of a possible surplus is in doubt, sale, free and clear, will be ordered. ^^ 13. In re Goldsmith, 9 A. B. R. 419, 118 Fed. 763 (D. C. Tex.), quoted at § 1971. 14. In re Cogley, 5 A. B. R. 731, 107 Fed. 73 (D. C. Iowa); obiter. In re Keet. 11 A. B. R. 117, 128 Fed. 651 (D. C. Pa.); In re Gibbs, 6 A. B. R. 485, 109 Fed. 627 (D. C. Vt.); In re Barber, 3 A. B. R. 306, 97 Fed. 547 (D. C. Minn.); In re Shaeffer, 5 A. B. R. 248, 105 Fed. 352 (D. C. Pa.); [1867] In re Dillard, 2 Hughes 190, Fed. Cases, No. 3,912; instance, In re Alden, 16 A. B. R. 380 (Ref. Ohio.^ 15. In re New England Piano Co., 9 A. B. R. 772, 122 Fed. 937 (C. C. A. Mass.). § 1974 sale: subject to liens, etc. - 1227 And the court may, in its discretion, order a sale free and clear of liens, although the encumbrances thereon equal the value of the property. ^^ In re Keet, 11 A. B. R. 117, 128 Fed. 651 (D. C. Pa.): "It is not therefore a matter of power, but of discretion, and while, ordinarily, the latter will not be exercised in favor of a sale where the encumbrances equal the value of the property * * * yet there are considerations in the present instance which seem to make it desirable." But the costs of such sale must be taken from the fund realized from the encumbered property, and must not be taken from general creditors.^''' § 1972. Parties Relegated to State Court Where Foreclosure Nec- essary to Bar Rights Not within Jurisdiction of Bankruptcy Court. — But where foreclosure is necessary to bar rights which cannot be brought before the bankruptcy court, the bankruptcy court will relegate the par- ties to the state courts. ^^ Obiter, In re Pittelkow, 1 A. B. R. 472, 92 Fed. 901 (D. C. Wis.): "Certainly, if foreclosure is necessary to bar rights which cannot be brought before the court of bankruptcy proceedings, the mortgagee should have leave to that end, on proper showing of cause; otherwise, he would be compelled to bid for the protection of his mortgage interest, without the benefits of complete fore- closure." The bankruptcy court has power to sell free from liens, but not to "fore- close." § 1973. Thus, Where Inchoate Dower Outstanding. — Thus, where the wife's inchoate dower is outstanding, the parties may be relegated to the state court where inchoate dower can be cut off.^^ § 1974. But, if Wife Consents, Sale May Be Made Free from Dower. — But, if the wife consents, a sale may be ordered in the bankruptcy court free from her inchoate dower rights, and she may be compensated therefor out of the proceeds. And this practice is approved. Savage v. Savage, 15 A. B. R. 599, 141 Fed. 346 (C. C. A. Va.) : "With re- gard to the objection urged against the order to sell bankrupt's remaining real estate free from the wife's contingent right of dower, it is sufficient to say that it is nearly always desirable, in making sale of a bankrupt's real estate, if the wife will consent, to sell free from her inchoate right of dower, and to compensate her by a fair allowance out of the proceeds for her release of that right. It is common practice to do so when it is possible, and we think the practice is to be approved, as it gives the purchaser an unincumbered title, and ordinarily results in advantage to creditors by obtaining a better price for a clear title than can be obtained for property the title to which is clouded by such a possible incumbrance." 16. In re Cogley, 5 A. B. R. 731, 107 Fed. 73 (D. C. Iowa). 17. In re Cogley, 5 A. B. R. 731, 107 Fed. 73 (D. C. Iowa). 18. In re Shaeffer, 5 A. B. R. 248, 104 Fed. 973 (D. C. Pa.). 19. In re Shaef¥er, 5 A. B. R. 248, 104 Fed. 973 (D. C. Pa.). 1228 REMINGTON ON BANKRUPTCY. § 1979 And where she does consent, then the vakie of her dower right is to be computed in accordance with state law.-" § 1975. Referee May Order Sale Free from Liens. — The referee may- order the sale free from liens and the transfer of the liens to the proceeds of the sale. 21 In re Waterloo Organ Co.,^ 9 A. B. R. 427 (D. C. N. Y.) : "It is in the province of the referee to direct the manner of sale free and clear from incum- brances, and he may preserve and transfer bona fide lien to the fund, arising from the same." § 1976. Even Free from Lien of Taxes. — Even free from the lien of taxes. 22 § 1977. Even before Validity and Priority of Liens Determined. — Even before the validity of liens and their priority have been deter- mined. ^^ But not where there is objection and one of the lienholders may desire to bid on the property and use the value of his lien in part payment of the purchase price.^^ § 1978. Even Where Located Outside of State, Provided Prop- erty Be Personalty and in Actual Custody. — Even where located out- side the state, provided the property be personalty, and be reduced to the actual custody of the trustee. ^^ § 1979. And Consent of Parties Not Necessary. — And consent of parties is not necessary before the referee may act. 2*^ 20. In re Forbes, 7 A. B. R. 42 (Ref. Ohio), computed on equity of redemp- tion in Ohio, whenever purchase money mortgage exists. In re Hawkins, 9 A. B. R. 598 (D. C. R. I.), computed on entire value of the land payable out of the equity of redemption. 21. Obiter, In re Foundry & Machine Co., 17 A. B. R. 293 (D. C. Wis.); obiter, Chauncey v. Dyke Bros., 9 A. B. R. 444, 119 Fed. 1 (C. C. A. Ark., affirming In re Matthews, 6 A. B. R. 96); In re Sanborn. 3 A. B. R. .54, 96 Fed. 551 (D. C. Vt.); In re Styer, 3 A. B. R. 424, 98 Fed. 290 (D. C. Pa.); In re ^Matthews, G A. B. R. 96, 109 Fed. 603 (affirmed sub nom. Chauncey v. Dyke Bros., 9 A. B. R. 444, 119 Fed. 1, C. C. A. Ark.); In re Kellogg, 7 A. B. R. 623, 113 Fed. 120-122 (D. C. N. Y.); In re Pittelkow, 1 A. B. R. 472, 92 Fed. 901 (D. C. Wis.); In re Granite City Bank, 14 A. B. R. 404. 137 Fed. 818 (C. C. A. Iowa, affirming In re Wilka, 12 A. B. R. 727); inferentially, In re Saxton Furnace Co., 14 A. B. R. 483, 136 Fed. 697 (D. C. Pa.). Instances, In re Goldsmith, 9 A. B. R. 419, 118 Fed. 763 (D. C. Tex.); In re Prince & Walter. 12 A. B. R. 675, 131 Fed. 546 (D. C. Pa.); In re New England Piano Co., 9 A. B. R. 767, 122 Fed. 937 (C. C. A. Mass.); Carriage Co. v. Solanas, 6 A. B. R. 225. 108 Fed. 532 (D. C. La.); In re Rosenberg, 8 A. B. R. 624, 110 Fed. 402 (D. C. Pa.); In re Keller. 6 A. B. R. 351. 109 Fed. 131 (D. C. Iowa); McXair v. Mclntyre, 7 A. B. R. 638, 113 Fed. 113 (C. C. A. N. Car.). 22. In re Prince & Walter, 12 A. B. R. 675, 131 Fed. 546 (D. C. Pa.); In re Keller, 6 A. B. R. 351, 109 Fed. 131 (D. C. Iowa). 23. Impliedly, In re Granite City Bk., 14 A. B. R. 405, 137 Fed. 818 (C. C. A. Iowa). 24. In re Saxton Furnace Co., 14 A. B. R. 483, 136 Fed. 697 (D. C. Pa.). 25. In re Wilka, 12 .\. B. R. 727, 131 Fed. 904 (D. C. Iowa, affirmed sub nom. In re Granite City Bk., 14 A. B. R. 404, 137 Fed. 818). 26. Impliedly, In re Granite City Bank, 14 A. B. R. 404, 137 Fed. 818 (C. C. A. Iowa, affirming In re Wilka, 12 A. B. R. 727, 131 Fed. 904). § 1982 sale; subject to liens, etc. 1229 The property may be sold, by consent, free from exemptions, and the exemptions paid out of the proceeds. ^'^ But such sale of exempt property by consent of parties will not dispense with the requirements of § 7 (a) that the bankrupt shall make formal claim in Schedule B (5) therefor. § 1980. Notice to Lienholders Requisite. — Notice must be given to the lienholders.-^ In re Noel, 14 A. B. R. 720, 137 Fed. 694 (D. C. Md.) : "That court having possession of the property, has jurisdiction, upon notice to those claiming to have liens and incumbrances upon it, to order the property to be sold by the trustees free of all incumbrances, if the court, in its discretion, should deter- mine that such a sale was for the benefit of the unsecured creditors; and after such a sale, having in its control the fund arising from the sale, it w^ould have jurisdiction to determine the conflicting claims of the parties whose lien had been displaced as to the property sold, and transferred to the fund in the court." In re Foundry & Machine Co., 17 A. B. R. 293, 147 Fed. 828 (D. C. Wis.): "Notice to the lien creditors of the application for sale must not only be given but the record must disclose affirmatively that every creditor whose lien will be discharged by the sale has received due notice of the application." And a sale cannot divest the lien of a creditor unless he has been given such notice, and unless the sale has been made free therefrom. ^^ § 1981. No Established Form for Notice. — There is no established form for such notice. It need not be in conformity with the summons or subpoena of plenary actions, unless required to be so by local rule of court.^^ Yet notice by mail undoubtedly would be insufficient, on default, to cut ofif -ights. § 1982. "Order to Show Cause," Approved Form of Notice. — An "order to show cause" why a certain act should not be done, or a certain course pursued, is the regular and approved method of giving notice of con- templated action to parties to proceedings in bankruptcy, and would prob- ably be the most appropriate form of notice in the marshaling of liens and sale of land.^^ 27. See cases cited under this head in the chapter treating of exemption*;, ante, § 1089. Also, see In re Prince & Walter, 12 A. B. R. 675, 131 Fed. 546 (D. C. Pa.). 28. In re Sanborn, 3 A. B. R. 54, 96 Fed. 551 (D. C. Vt.) ; In re Saxton Furnace Co., 14 A. B. R. 483, 136 Fed. 697 (D. C. Pa.); obiter. In re Gerdes, 4 A. B. R. 347, 102 Fed. 318 (D. C. Ala.). See cases cited ante, under "Marshalm.g of Liens," § 1963, et seq. 29. Bassett v. Thackera.'16 A. B. R. 787, 72 N. J. L. 81, 60 Atl. 39; In re Foundry & Machine Co., 17 A. B. R. 293 (D. C. Wis.). Consent of Lienholder's Attorney. — Instance, where held insufficient because record fails to show authority: In re Foundry & Machine Co., 17 A. B. R. 294 (D. C. Wis.). ^^ ^ ^ 30. Compare, evidently, In re Granite City Bk., 14 A. B. R. 404 (C. C. \. Iowa). 31. Kuntz z: Young, 12 A. B. R. 509, 131 Fed. 719 (C. C. A. Mmn.). 1230 REMINGTON ON BANKRUPTCY. . § 1986 § 1983. Record of Referee to Show Notice and to Whom Given. — And the record of the referee should show not only that due notice was given, but what kind and length of notice were given.^- And to whom the notice was given,. mentioning specially the lienholders and others claiming to hold interests in the property. In re Saxton Furnace Co., 14 A. B. R. 483, 136 Fed. 697 (D. C. Pa.): "More- over, the record should show affirmatively that every creditor whose lien will be discharged by the sale has received notice of the trustee's application to sell. The referee's general statement, that such notice 'was given to each and every general creditor and lien creditor,' is obviously insufficient. No doubt this is his opinion, and it may be true, but his record must show the facts by which other persons can verify the correctness of his statement." § 1984. Procedure in Referee's Court to Follow Equity Rules Where Bankruptcy Rules Silent. — In selling property free from liens, die method of procedure in the referee's court is to be gathered by anal- ogy from the procedure in other sales in bankruptcy, aided by the equity rules prescribed by the United States Supreme Court in accordance with the Supreme Court's General Order No. XXXVII. ^^ § 1985. How Lienholder to Set Up Lien. — It is not necessary for a secured creditor in such cases to make proof in the form prescribed by the Supreme Court for proof of secured claims : he may simply file an inter- vening petition setting up his lien, as in other cases. ^-^ But he may make proof in the form prescribed for proof of a secured claim in bankruptcy. ^^ § 1986. Separate Accounts of Each Fund* to Be Kept. — Separate accounts should be kept of the proceeds of sale where liens are involved all of which are not liens upon the entire property, so. that the lienholders may have the means of determining what their respective rights are in the pro- ceeds.^*^ Keyser v. Wessel, 12 A. B. R. 127, 128 Fed. 281 (C. C. A. Pa., affirming In re Smith, 10 A. B. R. 586): "This case is plainly distinguishable from that of Carroll & Bro. Co. z'. Young, 9 Am. B. R. 643, 119 Fed. 577, which was decided 32. Impliedly, Gen. Order XXIII. See ante, § 562. 33. Ccjmpare, In re Pittelkow, 1 A. B. R. 472 (D. C. Wis.). 34. In re Goldsmith, 9 A. B. R. 419, 118 Fed. 763 (D. C. Tex;); Carriage Co. V. Solanas, 6 A. B. R. 225 (D. C. La.). Apparently, contra, In re Rosenberg, 16 A. B. R. 465, 144 Fed. 442 (D. C. Pa.). 35. Burrows 7'. Grand Lodge, 13 A. B. R. 545, 133 Fed. 708 (C. C. A. Tex.). Secured Creditor Filing Proof of Claim Disclosing Security but Claim Al- lowed in Full without Deduction. — Where tlic secured creditor duly filed proof of debt in the prescribed form, setting up his security, and the claim was al- lowed in full without deduction of the value of the securities, it will be pre- sumed the referee had found the securities to be of no value, but it will not work a forfeiture of the lien where the property is subsequently sold. Bassetr V. Thackara, 16 A. B. R. 787, 72 N. J. L. 81, 60 Atl. 39. 36. Inferentially and suggestively, George Carroll & Bro. v. Young, 9 A. B. R. 643, 119 Fed. 577 (C. C. A. Pa..); impliedly, In re Gerry, 7 A. B. R. 461, 112 Fed. 957 (D. C. Pa.). § 1987 SALE SUBJECT TO LIEXS, ETC. 1231 by this court about a j^ear ago. In that case, the lien creditors had been prompt and persistent in asserting their rights. They had made timely objection to the property being sold divested of their liens, and had pointed out the very difficult}' which was subsequently brought forward as a bar to their rights. In that case, as in this, it was too late to question the propriety of the order of sale which had been made; but it was not impossible, as it is in the present case, to determine the proportional value of the particular part bound by the liens to the gross purchase price, and hence the order which was there made, by which the distribution was opened to permit the lien creditors to prosecute their claims as such, was both just and practicable. We adhere to our decision in Carroll & Bro. Co. v. Young, but to the very different circumstances and sit^ uation disclosed by the record now before us it has no application." In re Klapholz & Brien, 7 A. B. R. 7C3, 113 Fed. 1002 (D. C. Penn.) : "The fund was produced b}' the sale of all the bankrupt's personal property, includ- ing the clothing manufactured by the claimant, clothing manufactured by other persons, and various other articles; and there is no evidence concerning the price for which the suits in question were sold. The claimant had notice of the sale, which was made by the receiver under an order of court and was afterwards duly confirmed without objection, and he should have asked the court to direct this clothing to be sold separately, in order that the fund thus produced might be earmarked and the validity of his claim upon it be consid- ered. The court had no knowledge that he was asserting a lien for the manu- facture of these goods, and, as they had passed out of his possession into the custody of the receiver, it was his duty to make seasonable claim to priorit}' of payment. Otherwise, he must be held to have taken the risk that the goods might be sold in such a manner that the proceeds might be indistinguishably mingled with the proceeds of the other property of the bankrupt." Obiter, In re Shoe & Leather Reporter, 12 A. B. R. 248, 129 Fed. 588 (C. C A. Mass.) : "While, of course, we would ordinarily expect the District Court, before selling property in lump as to which there are conflicting claims, to es- tablish by proper inventory and appraisal the basis for a distribution of the pro- ceeds when the title to the portions of the property in dispute is settled, yet this record presents nothing definite with regard to this proposition of the pe- titioners." § 1987. Failure to Object to Sale without Separation Waives Eights. — And the Henholder waives his rights by faikire to object to a sale, where such separation of accounts is not kept.-''' Thus, where a landlord, entitled to priority under the state law for one year's rei\t out of the sale of a tenant's stock and fixtures, makes no ob- jection to a sale or confirmation of a sale of the stock, fixtures and liquor license in bulk for a lump sum, the landlord's claim for priority of rent should be disallowed, because of the impossibility of determining how much were the proceeds of the stock and fixtures on which only the landlord has his lien.ss Again, the owner of a municipality's claim for taxes upon two parcels of land, where the two were part of twelve parcels sold for a lump sum, 37. In re Klapholz & Brien, 7 A. B. R. 703, 113 Fed. 1002 (D. C. Pa.) quoted § 1986; In re Shoe & Leather Reporter, 12 A. B. R. 2-48, 250, 129 Fed. 588 (C. C. A. Mass.) quoted § 1986. 38. Keyser r. Wessell, 12 A. B. R. 126, 128 Fed. 281 (C. C. A. Penn., affirm- ing In re Smith, 10 A. B. R. 586). 1232 ri;mington on bankruptcy, § 1989 he having notice thereof and not objecting thereto, has waived whatever rights he might have had had he required separation of the funds and pay- ment from the proceeds of the parcels covered by his lien/'^^ Likewise, where there was a lien upon a clothing stock and the clothing was sold to- gether with the property, but no separate account was kept nor ordered kept, although the lienholder was notified, and nothing was known as to the separate price for which the clothing sold ; the lienholder was held to have waived all right to payment.-*^ Similarly, a conditional vendor of chattels or other owner of interests therein who has consented to a sale of the property involved waives his right to the value of his specific property by failure to have separate ac- count kept. In re Great Western Mfg. Co., 18 A. B. R. 259, 152 Fed. 123 (C. C. A. Neb.) r "One who acquiesces in a sale under an order of the court of his property and the estate of the bankrupt in one lot, and thereafter prays for a preference in payment out of the sale, is estopped from receiving a larger proportion of the proceeds than the value of his property bore to the value of the lot sold at the time of the sale." But failure to file exceptions to a return of sale that did not separately state the several amounts realized for each fund, out of the entire proceeds, does not waive objections to the original order to sell as an entirety and to the transfer of the liens to the fund, where the objections were made on the ground of the difficulty of separating the funds, the order of sale also pro- viding that the sale was to be "without prejudice to the right of lien credit- ors to claim from the fund derived from said sale the amount of their re- spective liens. "^1 § 1988. Taking Additional Evidence, after Sale, to Fix Proportions of Fund. — It would be proper for the referee, sua sponte, to take additional evidence as to the proportion of the fimds respectively assignable to each lienholder, after the sale, if the sale were made as an entirety without ar- rangement for separation of the proceeds. Obiter, Geo. Carroll & Bro. v. Young, 9 A. B. R. 647, 119 Fed. 577 (C. C. A. Pa.): "But, if the evidence on that point was incomplete, we think that the referee sua sponte should have taken additional proof to show the portion of the purchase price representing the building and its ground, apart from the machinery and other equipment." § 1080. Expenses of Preservation and Sale Paid Out of Particular Fund Involved. — The costs and expenses of the preservation of the prop- 39. Tn re Gerry, 7 A. B. R. 461, 112 Fed. 957 (D. C. Pa.). 40. In re Klapholz & Brien, 7 A. B. R. 703, 113 Fed. 1002 (D. C. Penn.). 41. George Carroll & Bro. v. Young, 9 A. B. R. 643, 119 Fed. 577 (C. C. A. Pa.). § 1993 SAI.E SUBJECT TO LIENS, ETC. 1233 crty involved and of its sale are to be paid out of the particular fund derived from the sale of such property.'*^ . In re Utt, 5 A. B. R. 383, 105 Fed. 758 (C. C. A. Ills.): "The mortgaged property having been sold by the trustee in bankruptcy under the order of the District Court, it is equitable and right that the expenses of the sale, including advertisement, appraisement, if appraisement was required by law, revenue stamps, and compensation to the trustee not exceeding that of the master in chancery if the sale had been made by him under the decree of the state court, should be paid out of the proceeds of the sale; but, in so far as it was directed that attorneys, the clerk and the marshal should be paid for services in the bankruptcy proceedings not directly connected with the sale, or in the suit for an injunction, the order made was without justification in law or equity. This includes the $100 directed to be paid to the attorney for the trustee, for whose assistance, in connection with the sale, there could have been no necessity." § 1990. Each Fund to Bear Its Own Expenses and Costs. — And each fund is to bear its own expenses and costs. In re Cogley, 5 A. B. R. 731, 107 Fed. 73 (D. C. Iowa) : "It sometimes happens that lienholders desire to obtain a title from the trustee, either through a public sale made by him, or by a direct conveyance; and in such cases the trustee can generally obtain some small sum for conveying the title, which will enure to the benefit of the general creditors. * * * jj^ j-j-ig case at bar * * * the trustee carried through a sale for the benefit of the mortgagees saving them the costs of a foreclosure suit, and then paid the costs of this sale out of the money in his hands realized from the sale of assets on which the mortgagees had no lien whatever. If the creditors had excepted * * * the action * * * would be set aside as a clear error." § 1991. Proportionate Part Not to Be Charged against Each Lien. — A proportionate part of the expenses, etc., cannot be charged against each lien in accordance with its share of the proceeds.-*^ § 1992. Costs and Expenses First Deducted and Liens Paid Out of Remainder. — The costs and expenses are first in the order of priority in such sales; and are to be first deducted, and the liens are to be paid out of the remainder, in the order of their priority.-*^ Thus, costs, expenses and taxes have precedence over dower."* ^ § 1993. General Costs of Administration Not Chargeable. — Only 42. In re Cogley, 5 A. B. R. 731, 107 Fed. 73 (D. C. Iowa); In re Prince & Walter, 12«A. B. R. 681, 131 Fed. 546 (D. C. Pa.). Compare, In re Tebo, 4 A. B. R. 235, 101 Fed. 419 (D. C. Va.), where the rule is stated even more broadly, and erroneously so. 43. McNair v. Mclntyre, 7 A. B. R. 638, 113 Fed. 113 (C. C. A. N. C, reversing In re Sanderlin, G A. B. R. 384, 109 Fed. 857, D. C. N. C). 44. McNair v. Mclntyre, 7 A. B. R. 638, 113 Fed. 113 (C. C. A. N. C.) ; In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.). 45. In re Forbes, 7 A. B. R. 42 (Ref. Ohio). 2 Rem B— 3 1234 re;mington on bankruptcy. § 1996 the costs and expenses of the sale of the particular property may be taxed against the fund : general costs of administration may not be so charged.^*^ In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.): "A sale of the property free of liens may undoubtedly be ordered, but, if this is done, the proceeds must be applied to their satisfaction, undiminished by anything except the costs of sale, or the expenses, if any, which have been undertaken for, and result to, their benefit. They are not concerned with the bankruptcy proceedings outside of this, and cannot, therefore, be charged with the cost of instituting them or carrying them on." But even the expenses of a receiver in the state court may be charged against the fund of the secured creditor, if such fund benefited thereby.'^''' § 1994. Trustee's Attorney's Fees and Expenses Benefiting En- tire Fund Chargeable but Not for Services in Litigating Liens. — The trustee's attorney's fees and other expenses incurred in behalf of the entire fund are chargeable against the fund, even to the loss of the lienholder, but the fees for contesting liens in behalf of general creditors are not chargeable against the fund but against the general creditors, to be paid for out of the general estate.^ ^ § 1995. Referee Has Authority to Tax Costs and Expenses. — The referee has authority to tax the costs and expenses.-*'' § 1996. Costs and Expenses Taxable. — The costs and expenses gen- erally taxable, are as follows : the expense of publishing or advertising the sale ;^^ of abstract and insurance, if necessary ;^i expense of referee in sending the notices of sale required by law to be sent; appraiser's fees for appraisal of the property sold; trustee's^^ expenses in caring for the prop- erty involved.^3 46. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.); In re Frick, 1 A. B. R. 719 (Ref. Ohio); Stewart v. Piatt, 101 U. S. 731; In re Goldville Mfg. Co., 10 A. B. R. 552, 118 Fed. 892 (D. C. S. C). But compare, In re Allison Lumber Co., 14 A. B. R. 78, 137 Fed. 643 (D. C. Ga.). Contra, In re Tebo, 4 A. B. R. 250, 101 Fed. 419 (D. C. W. Va.). Contra, as to petitioning creditor's attorney fees, In re Erie Lumber Co., 17 A. B. R. 700, 150 Fed. 817 (D. C. Ga.). But this case on the facts is reconcilable with the rule, since the petitioning creditor's attorney helped preserve the fund. 47. In re Allison Lumber Co., 14 A. B. R. 78, 137 Fed. 643 (D. C. Ga.). 48. In re Waterloo Organ Co., 17 A. B. R. 312, 147 Fed. 814 (D. C. N. Y.). 49. In re Scott, 7 A. B. R. 710 (Ref. Mass.). Inferentially, In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). Where a secured creditor is given the regular ten days' notice by mail of the proposed sale of the property covered by his security free from liens and neg- lects to protest at the time set for the hearing of the application and after- wards seek to take advantage of the fact that the sale reduced his security, all the costs will be taxed against him. In re Goldsmith, 9 A. B. R. 419, 118 Fed. 763 (D. C. Tex.). 50. In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.); In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). 51. In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.)., 52. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). 53. In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.), in which case the expense of running a hotel pending sale was allowed. § 1996 SALE SUBJECT TO LIEXS, ETC. 1235 But the expenses of continuing the business for the benefit of general creditors may not be charged against the fund to the detriment of a good and vahd hen thereon, \yhere the Henor did not participate nor consent.^'* Expense of the trustee for attorneys' fees in fihng the petition for leave to sell, for examining the abstract, getting the parties into court, and for other services redounding to the general benefit of the fund are chargeable, as a first lien, on the fund ;^^ but not attorneys' fees for other services.^® And there can be no allowance therefrom for the bankrupt's nor the pe- titioning creditors' attorneys' fees not connected with the direct preserva- tion of the property sold.^" Liddon & Bro. t-. Smith, 14 A. B. R. 204, 135 Fed. 43 (C. C. A. Fla.) : "It seems manifest to us that the services rendered by the attorney J. M. Calhoun, nominally for the bankrupt, had no legitimate connection with the preservation of the estate, and that under the conditions existing it would be most inequi- table to allow his account for fees therefor, to take rank of the mortgagee's claim as a charge against the proceeds of the sale of the mortgaged property." Nor for services performed by the trustee's attorney in behalf of general creditors in endeavoring to defeat liens, etc.^^ Nor for a mortgagee's attorney, even in states where it is legal to stip- ulate for attorney's fees on foreclosure, if the mortgage only provides there- for in the event of "foreclosure."^^ In re Roche, 4 A. B. R. 369, 101 Fed. 956 (C. C. A. Tex.): "The fees, to be- come a charge against the debtor or his property, must mature according to the confract of the parties. It follows that if the attorney's fees in this case be- came payable only upon the foreclosure of the trust deed by suit in the usual form, as by bill in equity, or, according to the practice in Texas, by petition pray- ing for a foreclosure, with all parties claiming adversely before the court, they would not be collectible in a proceeding where the trustee in bankruptcy had sold the property and distributed the proceeds, although the same end might have been attained in securing the payment of the debt of the mortgagee. In other words, although the one proceeding might have been the equivalent of 54. In re Bourlier Cornice & Roofing Co , 13 A. B. R. 585, 133 Fed. 958 (D. C Ky.). 55. Inferentially, In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). 56. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.); In re Waterloo Organ Co., 9 A. B. R. 427, 118 Fed. 904 (D. C. N. Y.). 57. In re Goldville Mfg. Co., 10 A. B. R. 552, 118 Fed. 892 (D. C. S. C.) ; In re Frick, 1 A. B. R. 719 (Ref. Ohio). To similar efifect, In re Prince & Walter, 12 A. B. R. 681, 131 Fed. 546 (D. C. Pa.); contra. In re Meis. 18 A. B. R. 704 (Ref. Ky.). Apparently, contra, In re Erie Lumber Co., 17 A. B. R. 770, 150 Fed. 817 (D. C. Ga.) : But this case may be reconciled with the rule on its facts for there the petitioning creditors' attorneys had aided in the preservation of the fund. Apparently, contra. In re Duncan, 2 A. B. R. 321 (D. C. Tex.): But this case states no reasons and is not to be considered of much weight. 58. See ante, § 1994. 59. But compare, In re Waterloo Organ Co..* 17 A. B. R. 300, 147 Fed. 814 (D. C. N. Y.), where a trustee for mortgage bondholders was allowed compen- sation and attorney's fees. 1236 REMINGTON ON BANKRUPTCY. ' § 1999 the other, and accomplished the same purpose, still the attorney's fees could only be recoverable upon the happening of the very contingency as to which the parties had contracted." But the statutory lien of the plaintiff's attorney for fees on foreclosure of a mechanics' lien is to be recognized in bankruptcy, and the trustee may not make a settlement in disregard thereof.'^*^ Commissions of the referee, one per cent, on the amount realized over and above the expenses, are properly chargeable ; likewise, commissions of the trustee, which may be allowed in such sums as the court may deem right, but not to exceed the statutory rate of six per cent, on the first rive hun- dred dollars, four per cent, on the next thousand, two per cent, on all over fifteen hundred dollars and less than ten thousand dollars and one per cent, on all above ten thousand dollars. And the trustee's commissions, accord- ing to the better practice, should not be allowed in excess of the compen- sation that would have been allowed a master in chancery had the sal,e been made by him under decree of the state court.^^ But the six per cent., &c, must not twice be computed, once on the first $500 of the special fund and again on the first $500 of the general fund. § 1997. Lienholder as Purchaser, May Apply Lien on Price, except as to Superior Liens. — Where the purchaser is one of the lienholders, he may apply the value of his lien upon the purchase price, except, of course, as to liens superior to his own ; and his receipt should be accepted as part payment.^ 2 § 1998. Trustee's Deed or Bill of Sale. — No form for a deed or bill of sale by the trustee has been prescribed. In general the deed should follow the analogy of- assignee's, receiver's or administrator's deeds as prescribed by local statute or custom.*^^ § 1999. Remedies against Purchaser. — Where the purchaser defaults in payment there are several different rem\edies available, dependent on the facts of the case. Among other remedies, the trustee may resell and charge the purchaser with the difference.^-* 60. In re Adamo, 18 A. B. R. 180, 151 Fed. 716 (D. C. N. Y.). 61. Impliedly, In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). 62. In re Waterloo Organ Co., 9 A. B. R. 427, 118 Fed. 904 (D. C. N. Y.); In re Saxton Furnace Co., 14 A. B. R. 483, 136 Fed. 697 (D. C. Pa.). But lienholders purchasing in the mortgaged property at foreclosure sale cannot require that the rents collected therefrom by the trustee in the mean- time be used in reimbursing him for taxes paid by him that are a lien at the time of purchase; In re Hollenfeltz, 2 A. B. R. 499, 94 Fed. 629 (D. C. Iowa). 63. See form of trustees' deed, post, Appendix. 64. Instance, Snyder v. Bougher, 16 A. B. 'R. 792 (Penn. Sup. Ct.), which was the case of a sale of a saloon stock and fixtures conditioned on the transfer of the license to the purchaser, where the purchaser made no effort to get the license transferred but abandoned the purchase. § 2000 SALE SUBJECT TO LIENS, ETC. 1237 § 2000. No Jurisdiction of Suit by Third Party against Purchaser from Trustee. — No jurisdiction exists in the bankruptcy court to enter- tain a suit brought by a third party against the purchaser for specific per- formance of a contract relative to the property sold by the trustee, even though injunction against the trustee's delivery of the deed to the purchaser is part of the remedy sought, and neither litigant objects to the juris- diction.^^ 65. Henrie v. Henderson, 16 A. B. R. 617, 145 Fed. 316 (C. C. A. W. Va., re- versing In re Henderson, 15 A. B. R. 760). PART VII. Costs o^ Administration, Distribution and Closing of Estatiss.^ 1. For costs other than those of administration, see various subjects. In the orderly arrangement of the treatise, the subjects of the collection and sale of the assets belonging to general creditors and their separation from the property of third persons and from that of the bankrupt, having been discussed, naturally is reached, next in order, the subject of costs and expenses of ad- ministration and the distribution of the remainder in dividends to creditors. CHAPTER XL. Costs and Expenses of Administration. Synopsis of Chapter. § 2001. Jurisdiction to Tax Costs. § 2002. May Be Taxed by Referee. § 2003. May Be Taxed against Successful Party, "for Cause." , § 2004. No Showing of "Cause" Requisite Where Taxed against Unsuccessful Party. § 2005. Stenographer's Fees Taxable as Costs. § 2006. Employment of Stenographer at Expense of Estate. § 2007. Compensation Not to Exceed Ten Cents per Folio for Taking and Tran- scribing. § 2008. Costs in Contesting Claims before Election of Trustee Not Taxable against Estate. § 2009. No Costs in Personam against Parties in Summary Proceedings, Not Personally Appearing. § 2010. No Part of General Costs of Administration to Be Taken Out of Prop- erty Not Forming Part of Assets for Administration. § 2011. Policy of Act, Strictest Economy. § 2012. Preliminary Deposits for Referee, Clerk and Trustee. DIVISION 1. § 2013. First "Priority" — "Actual and Necessary Cost of Preserving Estate Subsequent to Filing Petition." § 2014. What Included in Term. DIVISION 2. § 2015. Second "Priority" — Reimbursement of Petitioning Creditors, and of Creditors Recovering Concealed Assets. § 2016. Reimbursement of Creditors Recovering Concealed Assets, etc. § 2017. Trustee to Be Given First Opportunity. § 2018. Disallowance of Unjust Claims before Election of Trustee. DIVISION 3. § 2019. Third Priority — "Costs of Administration." § 2020. Equity Rules to Govern Order of Precedence in Class Three. § 2021. Indemnifying Court Officers and Advancing Moneys for Expenses. § 2022. Reimbursement of Expenses Advanced. § 2023. No Reimbursement of Original Deposit except to Petitioning Creditors. § 2024. Nor of Attorney's Fees Paid by Bankrupt in Advance. § 2025. No Reimbursement of Bankrupt for Care of Exempt Property. § 2026. Reimbursement to Follow Order of Priority of Expenses Themselves. § 2027. Probable Order of Priority. suddivision "a". § 2028. Referee's Expenses. § 2029. "Expenses" Not Covered by Statutory "Compensation" of Referee and Trustee. 1242 REMINGTON ON BANKRUPTCY. § 2030. What Are Proper Expenses of Referee. § 2031. No Reimbursement Where Expenses Not Required by Act or Rules. § 2032. Method of Apportioning- Expenses. SUBDIVISION "b". § 2033. Expenses of Receivers and Trustees. § 2034. Rent for Use and Occupation. § 2035. Computed at Lease Rate. § 2036. Expense of Conducting Business. § 2037. Auctioneer. § 2038. Premium on Bond. § 2039. Not Necessary to Pay Expenses Out of Pocket iarst, Then to Be Al- lowed Reimbursement. § 2040. Cost and Expenses of Litigation. § 2041. Attorney's Fees Incurred by Trustees and Receivers. SUBDIVISION "c". § 2042. Allowable Attorneys' Fees. § 2043. Clerical Work or Ordinary Business Advice Not to Be Charged ijr at Professional Rates. § 2044. For Many Services Attorney to Seek Pay from Own Client, Not from Estate. § 2045. The Fees Allowed Must Be "Reasonable." § 2046. "Reasonableness" Left to Sound Judicial Discretion >! C lurt. § 2047. Various Elements to Be Considered, Each Having Modifying Efifect. § 2048. Sixth Element, in Bankruptcy Cases, "Economy." § 2049. Items Properly to Be Grouped According to Separate Controversies Involved and Estimate Made as to Each Group. § 2050. "Retainer Fees," No Place in Bankruptcy. § 2051. Mere Incidental Benefit from Services in Opposing Adjudication, etc.. Not Sufficient. § 2052. Showing to Be Made of Propriety and Reasonableness. § 2053. Notice to Creditors Not Requisite, unless by Local Rule. § 2054. Trustee's and Receiver's Attorney's Fees. § 2055. Not to Employ Attorney to Do Ordinary Business Duties of Trustee. § 2056. Fees Allowable for Investigating and Resisting Improper Claims. § 2057. But Creditors Not So Entitled Even for Successful Objections to Claims before Election of Trustee. § 2058. No Fees for Preparation of Papers Where Supreme Court's Forms Adequate. § 2059. Whether Trustee Allowed Attorney's Fees for Own Professional Serv- ices. § 2060. Attorneys for Creditors Co-Operating with Trustee's or Receiver's At- torney Not Entitled. § 2061. Exhausting Entire Estate in Attorney's Fees in Efforts to Discover Assets. § 2062. Fee Bills, Properly, Should Be Itemized. ' § 2063. Petitioning Creditors' Attorney's Fees. § 2064. Is Matter of Right. § 2065. Only One Fee, Irrespective of Number of Attorneys. § 2066. Apportionment Where Intervening Creditors Assist. § 2067. Apportionment in Cases of Consolidation. COSTS AND EXPENSES OE ADMINISTRATION. 1243 § 2068. For What Services Allowable to Petitioning Creditors. § 2069. Allowance Not to Be on Basis of Plaintiffs' in Creditors' Bills. § 2070. "Amount Involved," Not Entire Estate but Only Surplus over Valid Liens. § 2071. No Fees to Petitioning Creditors for Objecting to Claims at Election of Trustee. § 2072. Nor for Examination of Bankrupt after Appointment of Trustee. § 2073. But Allowable for Pursuing Property before Adjudication. § 2074. None for Services after Election of Trustee. § 2075. No Allowance in General Out of Mortgaged Property Sold. § 2076. Review of Allowance of Petitioning Creditor's Fees by Appeal. § 2077. Bankrupt's Attorney's Fees. § 2078. In Involuntary Cases, Confined to Services Rendered While Bankrupt in Performance of Duties Prescribed by Law. §. 2079. Actual Benefit to Estate Not Test, However. § 2080. Services Must Be Reasonably Necessary and Actually Rendered. § 2081. Must Be Professional Legal Services, and Not Merely Clerical or Busi- ness. § 2082. Legal Assistance in Preparing Schedules, Examining Claims at First Meeting, etc.. Proper. § 2083. "Amount Involved" Not Entire Estate, but Only Surplus over Valid Liens. § 2084. No Allowance Out of Mortgaged Property, except for Mere Preser- vation. § 2085. And None for Services in Opposing Bankruptcy Proceedings. § 2086. For Attendance at Bankrupt's Examination Allowable. § 2087. Whether Fees Allowable for Petition for Discharge, etc. § 2088. No Allowance for Bankrupt's Admission in Writing of Inability to Pay Debts, etc., nor for Services in Aid of Adjudication; nor in Contests over Exemptions. § 2089. Bankrupt's Fee Allowable More Discretionary in Voluntary than in In- voluntary Cases. § 2090. Test in Voluntary Cases, in General. § 2091. Preliminary Consultations May Be Charged for in Voluntary Cases. § 2092. Application for Receiver or Other Provisional Remedy Allowed for. § 2093. Only One Fee to Be Allowed. § 2094. Bankrupt Paying Attorney in Advance. § 2095. All Payments to Attorney in Contemplation of Bankruptcy Governed by § 60 (d). § 2096. Whether Different Principles Govern from Those W^here Allowed Out of Estate. § 2097. Under § 60 (d) Must Be for Benefit Estate or in Furtherance of Admin- istration. § 2098. Prepaid Fee to Be "Reasonable" and Subject to Re-Examination. § 2099. Summary Jurisdiction over Attorney to Require. Repayment of Excess. § 2100. Prepayment- before Filing Petition, or at Any Time before Adjudication. § 2101. Prepayment Effected by Giving Security. SUBDIVISION "d". § 2102. Referee's Compensation. § 2103. Referee's Commissions Computed on Disbursements to "Creditors." § 2104. Thus, Commissions on Disbursements to Priority and Secured Cred- itors. 1244 REMINGTON ON BANKRUPTCY. § 2003 § 2105. Property Sold Free of Liens When Lienholder Purchaser. § 2106. In Composition Cases Referee to Receive One-Half of One per Cent. § 2107. "Twenty-Five Cents for Each Claim Filed," Part of "Compensation." § 2108. Trustee's Compensation. § 2109. Commissions Computed on Disbursements for Expenses and to Cred- itors. § 2110. Except That in Composition Cases Computed Only on Disbursements to Creditors. § 2111. Whether "Disbursement" Includes Proceeds of Property and Trust Funds Surrendered to Adverse Claimants, and Exempt Property Sold by Trustee. § 2112. Entitled Even Where Outside Agreement to "Credit" Exists and Actual Money Does Not Pass. § 2113. No Absolute Right to Full Commissions: Less May Be Allowed or All Allowance Withheld. § 2114. Apportionment Where Three Trustees or Successive Trustees. § 2115. Extra Compensation for Conducting Business. § 2116. But Not to Exceed Rate for Trustee's Ordinary Services. § 2117. No Additional Compensation Allowable in "Any Form or Guise." § 2118. Receiver's Compensation. .§ 2119. Receiver's Maximum Allowance Properly Not to Exceed Trustee's. § 2120. Appeal and Review of Expenses, and Costs of Administration. SUBDIVISION 'V. § 2121. Appraisers' Fees. § 2122. Witness Fees and Mileage. § 2123. Bankrupt Not Entitled to Witness Fees. § 2124. But to Reimbursement of Actual Expenses Where Attending. § 2125. But None Where Voluntarily Removing Residence after Bankruptcy In- stituted. § 2126. Whether Officers and Directors of Bankrupt Corporation Entitled to Witness Fees. § 2127. Witness Fees for Attendance without Subpoena Equally Allowable. § 2128. Amount of Witness Fee. § 2129. Marshal's Fees. § 2130. Marshal May Demand Indemnity. § 2131. May Charge Reasonable Fee for Services on Petition to Show Cause. § 2132. Marshal and Receiver Entitled to Reasonable Compensation, Besides Expenses, on Seizures under § 2 (3). § 2001. Jurisdiction to Tax Costs. — Costs may be taxed by the bankruptcy court against parties and against estates.^ § 2002. May Be Taxed by Referee. — They may be ordered paid by the referee, as to matters before him.- i§ 2003. May Be Taxed against Successful Party, "for Cause."— They may, for cause, be taxed against the successful party .^ 1. Bankr. Act, § 2 (18): "Tax costs, whenever they are allowed by law, and render judgments therefor against the unsuccessful party, or the successful party, for cause, or in part against each of the parties, and against estates, in proceedings in bankruptcy." 2. Inferentially, In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). 3. In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). § 2007 COSTS AND EXPENSES OF ADMINISTRATION. 1245 § 2004. No Showing of "Cause" Requisite Where Taxed against Unsuccessful Party. — It is not necessary to show cause therefor where the costs are taxed against the unsuccessful party; as, for instance, where taxed against the unsuccessful claimant to property in the custody of the bankruptcy court.^ § 2005. Stenographer's Fees Taxable as Costs. — Stenographer's fees may form part of the costs taxed against parties, as well as against the estate. 5 § 2006. Employment of Stenographer at Expense of Estate. — A stenographer may be authorized by the court, on application of the trustee, and his compensation be taxed against the estate, on general examinations of bankrupts and witnesses and on other proceedings, and where not in- cluded in costs adjudged in favor of a successful party against the trustee. Where taxed against the estate on general examinations of witnesses and in cases where the estate is not the unsuccessful party, the employment of the stenographer must have been authorized by the court on applica- tion of the trustee.^ ' In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.) : "The rule established by the late I\Ir. Justice Blatchford in this court, and ever since followed in re- gard to stenographer's fees, was that when not provided for by law, they could not be taxed in any cause, except upon a written stipulation between the at- torneys. * * * "The Bankruptcy Act of 1898 contains but a single provision authorizing the employment or payment of stenographers, namely; § 38a (5), which provides that upon the application of the trustee, the referee may authorize the employ- ment of stenographers at the expense of the estate, at a compensation not to exceed ten cents per folio for reporting and transcribing the proceeding. "The authority thus given to the referee, it will be noticed, can only be ex- ercised upon the application of the trustee; the expense is in the first instance a charge against the estate, and it is not to exceed ten cents per folio. "The above express provision and the absence of any other, prevent imposing any further charge for stenographer's fees, or the taxation of any other, except in pursuance of some stipulation made by the parties to the cause. "In the present case there was no such stipulation; but as the stenographer's notes were rendered desirable and the application therefor was in consequence of the claimant's contesting demands, and the controversy has been adjudged against the latter, it is proper that this necessary expense to the estate should be taxed against the claimant, and it is therefore allowed to the extent of ten cents per folio, which is one-half of the bill rendered." § 2007. Compensation Not to Exceed Ten Cents per Folio for Taking and Transcribing. — Stenographer's fees, when taxable against 4. In re Todd, 6 'A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). 5. In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. X. Y.). 6. Bankr. Act, § 38 (a) (5) : "Upon the application of the trustee during the examination of the bankrupts, or other proceedings, authorize the employment of stenographers at the expense of the estates at a compensation not to ex- ceed ten cents per folio for reporting and transcribing the proceedings." 1246 REMINGTON ON BANKRUPTCY. § 2010 estate, are taxable at not to exceed ten cents per folio for taking and trans- scribingJ Where the stenographer is not required to transcribe his notes, doubtless he may be allowed per diem compensation for taking down the testimony. § 2008. Costs in Contesting Claims before Election of Trustee Not Taxable against Estate. — Costs in contesting claims before the election of a trustee, incurred in the effort to control the election, are not chargeable to the estate.* § 2009. No Costs in Personam against Parties in Summary Pro- ceedings, Not Personally Appearing. — While it is true that in plenary actions in the bankruptcy court under favor of the amendment of 1903, or where a party has voluntarily entered appearance, costs may be taxed by judgment in personam against the party ; yet, where such is not the case and the only jurisdiction of the court arises from its possession of the res and notice upon parties claiming interests therein — such parties not ap- pearing in response thereto — costs may not be taxed, personally, against such parties. 9 Although, of course, the proportionate compensation for care, preservation and administration may be taken out of the fund. § 2010. No Part of General Costs of Administration to Be Taken Out of Property Not Forming Part of Assets for Administration. — No part of the general costs of administration are to be taken out of property not forming part of the assets for administration, as, for in- stance, in general, none out of exempt property properly scheduled and claimed ;^^ although such costs may, if otherwise proper, be taxed against the bankrupt himself in personam, although all his property be exempt. ^^ Nor, in general, may they be taken out of property, no title to which nor right of possession of which is in the trustee, although cases may arise in which it would be equitable to tax the expenses of preservation and a pro- portionate part of the compensation of the officers of the court against the successful claimant. 12 7. Bankr. Act, § 38 (a) (5); In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). 8. In re Worth, 12 A. B. R. 566, 130 Fed. 927 (D. C. Iowa); In re Fletcher, 10 A. B. R. 398 (D. C. N. Y.). Inferentially, In re Mercantile Co., 2 A. B. R. 419, 95 Fed. 123 (D. C. Mo.). 9. Havens & Geddes Co. v. Pierek, 9 A. B. R. 569, 120 Fed. 244 (C. C. A. Ills.). 10. In re LeVay, 11 A. B. R. 114, 125 Fed. 990 (D. C. Pa.). 11. In re Herbold, 14 A. B. R. 116 (D. C. Wash.). 12. Compare, In re Gaskill, 12 A. B. R. 251, 130 Fed. 235 (D. C. Wash.), where the court permitted the deduction of a proportionate part of the ex- penses of the bankruptcy proceedings upon the surrendering of a trust fund. Compare, In re Cam'bridge, 14 A. B. R. 168, 136 Fed. 983 _(D. C. Mass.), where the court construed the word "disbursements" used with reference to the compensation of receivers as comprehending tlie value of property returned in specie to claimants. § 2011 COSTS AND EXPENSES OF ADMINISTRATION. 1247 § 2011. Policy of Act, Strictest Economy. — The policy of the act is that of strictest economy in expenses and cost of administration. ^^ The greatest foe to the permanency of national bankruptcy laws in this •country seems in the past to have been the opportunity they have appar- ently afforded for extravagance in administration. The framers of the pres- ent act repeatedly manifest in the words they have used, the utmost sohcitude to guard against extravagance. The chief cause of the downfall of the act of 1867 was its extravagance. Estates were sw^allowed up in fees ana expenses until finally the very name of bankruptcy law became a synonym for licensed plundering of creditors' estates and its administration became odious in the eyes of the people. In re Mercantile Co., 2 A. B. R. 420, 95 Fed. 123 (D. C. Mo.): "The history leading up to the adoption of the present Bankrupt Law shows that the great abuses under the preceding National Bankrupt Act, in the way of exorbitant fees, which largely consumed the assets of the bankrupt, whereby the minis- terial ofHcers grew rich upon the administration of the act, while the cred- itors starved, impelled Congress, in the adoption of the present Bankrupt Act, to reverse this practice, so that the Bankrupt Law should be so administered that the creditors should be the favorites of the courts, rather than the agents assisting the court in the preservation and distribution of bankrupt estates. The obvious policy of the present act, manifest throughout all its provisions respecting fees and commissions, is to reduce to the lowest minimum the ex- penses of administration. This is especially made manifest in the meagre fees allowed to clerks, referees, and trustees. Indeed, so inadequate is the compen- sation allowed to these officers that it is a matter of happy surprise to the courts that they have been able to secure the services of such competent persons to fill the places of referees and trustees. And, because of the meagre compensa- tion allowed by the act to these officers, courts are exposed to the constant temptation to either read into the act some provision not found in its letter, or by the most liberal construction of doubtful or ambiguous terms to augment fees and commissions. This is a tendency, however, in my judgment, which it is the bounden duty of the court to resist. It is the duty of the court, from which it cannot honestly escape,, in applying this stat- ute, to give it such construction and such application as will carry out and effectuate the legislative will. Any other action by the court is but an attempt to set up and substitute the notions and inclinations of the individual judge as to which would be a reasonable compensation for services under this law for that of the Legislature, whereas, as already suggested, the court can have no policy in conflict with that of the legislative scheme." In re Nat'l Mercantile Agency, 11 A. B. R. 451 (Ref. N. Y.) : "The domi- nant keynote of the Bankruptcy Law as enacted by Congress, is econom,ical administration, so that the creditors may realize the largest possible dividends from estates administered in bankruptcy. * * * "Complaint is being made in many directions that the expenses of prelim- inary administration of bankrupt estates are becoming unduly large and, in many cases, entirely disproportionate to the size of the estates called upon to bear such heavy burdens." 13. See ante, § 24, and post, § 2048. In re Carolina Cooperage Co., 3 A. B. R. 154, 96 Fed. 604 (D. C. N. C). 1248 REMINGTON ON BANKRUPTCY. § 2011 In re Daniels, 12 A. B. R. 450, 130 Fed. 597 (D. C. Iowa): "Aluch criticism was made of prior Bankruptcy Acts because of the large amount of fees qnd ex- penses incurred in the administration of the bankrupt estates. It was the man- ifest purpose of Congress that such criticism could not rightly be made of the present law, and it fixed the compensation of referees and other officers very low. They may be inadequate in some eases, but the court is powerless to in- crease them. By the amendment of February 5, 1903, it is expressly provided that the court shall not allow, under any form or guise whatever, any other or further compensation for services than that expressly authorized by the act." In re Woodard, 2 A. B. R. 339, 691, 95 Fed. 956 (D. C. N. Car.): "One of the purposes of the Act of 1898 in establishing a uniform system of bankruptcy was to avoid what was the principal cause of the repeal of the Bankruptcy Act of 1867 — excessive fees and great expenses." In re Oppenheimer, 17 A. B. R. 60 (D. C. Pa.): "Economy is strictly, enjoined by the well known policy of the Bankruptcy Act in the administration of bank- rupt estates." In re Goldville Mfg. Co., 10 A. B. R. 556, 123 Fed. 579 (D. C. S. C.) : "It is- a part of the history of the country that one of the causes which led to the repeal of the Bankruptcy Act of 1867 was the great abuse, under the former law, whereby the estates of bankrupts were consumed by the ministerial officers of the court in enormous costs and charges; and it was the clear intent of the present Bankrupt Law that they should be ad- ministered for the benefit of the creditors. This is manifest through all the provisions respecting fees and commissions. The compensation allowed to clerks, referees, and trustee is so meager that it is a matter of some sur- prise that the courts have been able to secure persons of any competency ta administer the law." • An example of the tendency towards extravagance of administration is afforded in the practice that has grown up in a few districts of appointing special masters at an increased expense to estates to perform various parts of the duties that the referee is presumed to perform as part of the duties for which he receives his fixed compensation. Thus, for passing upon trustee's reports and for "advising" the trustee, etc., etc. ;^"^ for auditing receivers' accounts and determining "reasonable" compensation ;^^ for hearing a petition for an order upon the bankrupt to surrender assets in his possession ;i^ for considering liens, which, if the bankruptcy court had any right to consider at all, would have been as part of the referee's duties. 1'' The referee must not receive extra allowance, even with the consent of counsel. ^'"^ He may not have extra allowance for "investigating specific liens," questions relating to which come up in the usual and ordinary 14. In re Hart & Co., IS A. B. R. 137 (D. C. Hawaii), in which "extra" com- pensation was allowed for "advising" the trustee in running the business of a going concern. In re Hoyt & Mitchell, 11 A. B. R. 784, 127 Fed. 968 (D. C. N. C). Compare, upon germane subject of attorney's fees, In re Lange, 11 A. B. R. 794 (D. C. Tex.). 15. Apparent instance. In re Martin-Borgeson Co., 18 A. B. R. 197, 151 Fed. 780 (D. C. N. Y.). 16. In re Herskovitz, 18 A. B. R. 247 (D. C. N. Y.). 17. In re Hobbs, 16 A. B. R. 544, 560 (D. C. W. Va.). 18. Dressel v. North State Lumber Co., 9 A. B. R. 541, 119 Fed. 531 (D. C. N. C). § 2012 COSTS AND EXPENSES OE ADMINISTRATION. 1249 course of the administration of the estate. ^^ No per diem may be allowed to referees for sitting in the examination of the bankrupt, nor for pre- siding at the first meeting of creditors.-*^ But the referee may be allowed "additional compensation while acting as special master in matters expressly restricted to, the judge. -^ But even before the amendment of 1903, trustees were sometimes al- lowed what was termed "extra compensation" where by consent, prop- erty covered with liens was sold free and clear.22 Likewise, similar extra 'compensation was allowed, in some instances, to the referee where an application was made outside the ordinary scope of the referee's duties. ^3 § 2012. Preliminary Deposits for S,eferee, Clerk and Trustee. — Consideration of the original $15.00 for the referee's fee, $10.00 for the clerk's fee and $5.00 for the trustee's fee, required to be deposited by lit- igants at the time of instituting the bankruptcy proceedings has been pre- viously had.^'i These preliminary deposits do not come up for "allowance" at all. They are fixed by statute and must be paid at the beginning — unless a poverty affidavit is filed, and even in that event the prospective bankrupt, as pre- viously noted, usually is obliged to pass a rigid examination as to his absolute inability to make the deposit before being permitted to file his bankruptcy petition without the deposit. We are not concerned at this time with these preliminary deposits of filing fees for the referee, clerk and trustee, nor with the expenses and commissions of the referee and trustee incurred in the marshaling of liens and selling of property free from liens, which, as previously noted, are to be taxed in each instance against the particular fund itself that has been derived from the sale of the special property involved. The making of the preliminary deposit, and the paying of the expenses of the selling of the property free from liens, are supposed already to have taken place and in the orderly development of the subject we are concerned now only with the distribution of the general estate remaining in the hands of the trustee and the costs and expenses chargeable against, it. The statute, in § 64, seeks to lay down the order of priority in the dis- tribution of bankrupt estates ; but its provisions are. not altogeher well defined nor free from ambiguity. 19. In re Mammoth Pine Lumber Co., 8 A. B. R. 651, IIG Fed. 731 (D. C. Ark.). 20. In re Parker, 7 A. B. R. 132, ni Fed. 501 (D. C. Iowa). 21. Fellows V. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.); con- tra, In re Troth, 4 A. B. R. 780, ]04 Fed. 291 (D. C. Ohio). 22. In re Mammoth Pine Lumber Co., 8 A. B. R. 651, 116 Fed. 731 (D. C. Ark.). This would not have been "extra" compensation under the ruling in In re Mulhauser, 9 A. B. R. 80 (D. C. Ohio). 23. In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). 24. See "Deposit for" Costs in Voluntary and Involuntary Cases," ante, § 285. 2 Rem B— 4 1250 remington on bankruptcy. § 2014 Division 1. Cost of Preservation of Estate Subsequent to Fieing of Petition. § 2013. First "Priority" — "Actual and Necessary Cost of Pre- serving Estate Subsequent to Filing Petition." — The first class in the statutory order of priority is the actual and necessary cost of preserving the estate after the petition is filed. -^ § 2014. What Included in Term. — Nowhere is it clearly expressed v*hat is included within this class. Probably it does not refer to tTie expenses of the receiver or trustee in administering the estate, for such expense would more properly be denominated costs of administration and so come under class three. -^ jMore likely it refers rather to cases where some person, as a clerk of the bankrupt or a creditor, has been taking care of the property before any trustee or receiver has been appointed and when the estate was totally helpless and unprotected; or to cases where the bankrupt himself has been taking care of the property meanwhile ;-*^ or to cases where some officer of a state court, as a receiver, assignee or trustee, has been permitted to retain custody of the property after the filing of the petition ;-' or where a re- ceiver, before adjudication in involuntary bankruptcy, has incurred or paid extraordinary obligations in preserving the values of the property in his i:harge, not to be termed strictly, expenses. Thus, where the receiver has paid for the renewal of a hotel license about to expire, which was the most 24. Bankr. Act, § 64, a (l). Obiter, Sellers v. Bell, 2 A. B. R. 543, 94 Fed. 801 (C. C. A. Ala.). 25. But see In re Gerson, 1 A. B. R. 251 (Ref. Penna.) : This case, however, on the other proposition involved is contra, in principle, to In re Rouse, Hazard & Co., 1 A. B. R. 231, 91 Fed. 96 (C. C. A. Ills.), and to In re Slomka, 9 A. B. R. 635, 122 Fed. 630 (C. C. A. N. Y.). although in conformity with In re Laird, 6 A. B. R. 1, 109 Fed. 550 (C. C. A. Ohio). 26. In re Barrow. 3 A. B. R. 414, 98 Fed. 582 (D. C. Va.) : "It appearing that the bankrupt did not omit these crops from his schedule with a fraudulent in- tent, he will be allowed by the trustee a reasonable compensation for the work and care bestowed on them from the date of his adjudication." In re Hutchinson Co., 14 A. B. R. 518 (Ref. Mich.). Obiter, Sellers 7'. Bell, 2 A. B. R. 543, 94 Fed. 801 (C. C. A. Ala.): "It is to be observed that in ordinary cases, whether in involuntary or in voluntary bankruptcy, the actual and necessary cost of preserving the estate subsequent to the filing of the petition and up to the qualification of the trustee will usually, and always should where he is exercising good faith, devolve upon the bank- rupt himself, not at his charge and expense, but as a charge of the first rank against the estate which he is required or has volunteered to surrender." Instance where expenses and compensation of clerk refused as being unneces- sary, In re Nat'l IVIercantile Agency, 11 A. B. R. 451 (Ref. N. Y.). In this case it was held, that the officers and employees of a bankrupt company against which a petition in bankruptcy is filed have no right to halt the proceedings in a vain attempt to save the company and then impose the expenses of such an attempt upon the estate as a necessary cost of preserving it subsequent to the filing of the petition. 27. In re Harson Co., 11 A. B. R. 514 (D. C. R. I.); In re Pettee, 16 A. B. R. 450, 143 Fed. 994 (D. C. Conn.). ^ 2014 COSTS AND EXPENSES OF ADMINISTRATION. 1251 valuable asset of the estate and which the bankrupt himself was unable to pay. 2^ Perhaps it refers to cases where a receiver or trustee has refused to take certain steps deemed necessary for the best interests of the estate r.nd some creditor has, on that refusal, himself gone ahead and taken the needful steps. ^^ Compare, In re Goldville Mfg. Co., 10 A. B. R. 557, 123 Fed. 579 (D. C S. C): "Certain creditors, of their own volition, have chosen to contest the mortgage, and their attorney, like any other who takes a desperate case with the expectation of a fee contingent upon the result, to be large if successful, must abide the result; or the service may be likened to that in salvage cases in the admiraltjs where salvors receive no remuneration if nothing is salved, however arduous their efforts and however great may be their expenditures of money and time. The common reward of those who fight for lost causes is the consciousness of duty done. The Supreme Court of the United States in Hobbs t-. McLean, 117 U. S. 582, 29 L. Ed. 940, has stated the principle which governs: 'When many persons have a common interest in a trust property or fund, and one of them for the benefit of all, and at his own cost and expense, brings a suit for its preservation or administration, the 'court of equity in which the suit is brought will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who ac- cept the benefits of his efforts. * * * But where one brings adversary pro- ceedings to take possession of trust property from those entitled to it, in order that he may distribute it to those who claim adversely, and fails in his purpose, 28. Knittel v. McGowan, 14 A. B. R. 209 (D. C. Pa.). 29. Compare, In re Little River Lumber Co., 3 A. B. R. 682, 101 Fed. 558 (D. C. Ark.): "The trustee in this case at the time this claim should have been resisted had removed from the state. Under the advise of his counsel, to the effect that he had no right to employ an attorney for the purpose of resisting fraudulent claims, he declined to employ counsel. Being away from the state, and his counsel declining to act without remuneration, the counsel in this case, using the name of one of their clients, A. DeMarce, resisted the claim of O'Dwyer & Ahern and successfully defeated it, thus increasing the assets of the estate for the benefit of all the creditors to the extent of about $1,000. The court is somewhat familiar with the services rendered in this case, and thinks the allowance made by the referee is not exorbitant. This allowance is made and goes as a part of the expenses of the administration of the estate, and is allowed under the general equity powers of the Bankrupt Court. It seems to me that, on well-recognized equitable principles an attorney who, under the circumstances of this case, intervened and successfully resisted an unjust claim, ought to be paid by the estate which was benefited by his services. The in- justice of requiring the intervening creditor to pay the attorney is manifest. His distributive share of the funds preserved to the estate would not pay one- third of the attorney's fee if he were required to pay for the services. "It is inequitable and uniust to permit the other creditors to avail themselves of his services, accompanied by the necessary risk, mvolving costs, etc., and then share in the estate without contributing to the payment of the attorney who did the work." Obiter, In re Burke, 6 A. B. R. 502 (Ref. Ohio). Also, see In re Groves, ? N. B. N. & R. 466 (Ref. Ohio), where the trustee refused to make application to have a sale set aside for stifling of competition, and certain creditors then made the application themselves, the result of which was that the sale which was for $9,000 was set aside and on resale the property brought $22,000!!! In that case the creditors who brought the additional fund into court were held en- titled to reimbursement for their expenses in so doing, as the actual and neces- sary cost of preserving the estate subsequent to the filing of the petition. Compare, In re Evans. 8 A. B. R. 730, 116 Fed. 909 (D. C. N. Car.). 1252 REIIIXCTOX ON BANKRUPTCY. § 2015 it has never been held in any case brought to our notice that such person had any right to deiniand reimbursement of his expenses out of the trust fund, or contribution from those whose property he sought to misappropriate.' " It may include the compensation and expenses (including attorney's fees) of a mortgagee of a chattel mortgage, executed t\vo days before the filing of the bankruptcy petition and made for the benefit of all creditors who would assent thereto within a stated period, where the mortgagee remains in possession.^^ The bankruptcy court is itself to determine what the reasonable and necessary expense of the preservation will amount to;-^^ and it is not to be controlled by what has been actually expended, but may re-examine the actual expenditure and allow less. The bankruptcy court should not, where a sheriff has remained in pos- session, after adjudication, under an attachment the lien of which has been dissolved by the adjudication, allow more for the necessary expense of the preservation than would have been the expense had the property been turned back to the bankrupt.^- But a different rule would probably prevail in cases where he had remained in possession after the filing of an involuntary petition and before adjudication, for in such a case it might be improper to turn the property back.^^ Even expenses of a receiver in the state court, preserving the property before bankruptcy, may be assessed against secured creditors, where the secured creditors' fund was benefited. ^^ Division 2. Reimbursing Petitioning Creditors for Their Filing Fees and Expense of Recovering Property Concealed or Fraudulently Transferred by Bankrupt. • § 2015. Second "Priority" — Reimbursement of Petitioning Cred- itors, and of Creditors Recovering Concealed Assets. — The second class in the statutory order of priority is the reimbursement of the petition- ing creditors of their deposit of filing fees :^^ and the reimbursement of creditors of their reasonable expenses in recovering, for the benefit of all creditors, property concealed or transferred by the bankrupt.-'"^ 30. In re Hutchinson Co., 14 A. B. R. 518 (Ref. Mich.). 31. In re Allen, 3 A. B. R. 38, 96 Fed. 512 (D. C. Calif.). 32. In re Allen, 3 A. B. R. 38, 96 Fed. 512 (D. C. Calif.). 33. Compare, In re Hutchinson Co., 14 A. B. R. 518 (Ref. Mich.). 34. In re Allison Lumber Co., 14 A. B. R. 78, 137 Fed. 643 (D. C. Ga.). 35. Bankr. Act, § 64 (b) (2). Gen. Ord. XXXIV: "In cases of involuntary bankruptcy, when the debtor resists an adjudication, and the court, after hearing, adjudges the debtor a bankrupt, the petitioning creditor shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the petitioner." 36. Bankr. Act, § 64 (b) (2). § 2017 COSTS AND expe;nses of administration. 1253 Obiter, Sellers v. Bell, 2 A. B. R. 543, 94 Fed. 801 (C. C. A. Ala.): "The charge of the second rank is the filing fees paid by creditors in involuntary- cases. The reason for restricting this to fees paid by creditors in involun- tary cases is obvious, because where such fees are paid in voluntary cases they may be paid by the bankrupt himself out of the estate which he has to surrender, and therefore no account need be taken of them." § 2016. Reimbursement of Creditors Recovering Concealed As- sets, etc. — Where property of the bankrupt, transferred or concealed by tlie bankrupt either before or after the filing of the petition, has been recovered for the benefit of the estate of the bankrupt, by the efforts and at the expense of, one or more creditors, such creditors are entitled to reimibursement of the reasonable expenses of such recovery.-^''' In re Felson, 1.5 A. B. R. 188, 139 Fed.' 275 (D. C. N. Y.) : "But if the trus- tee should not prosecute such an inquiry and employ necessary counsel, one or more creditors, may; and if property transferred or concealed by the bank- rupt is, under such circumstances, 'recovered for the benefit of the estate of the bankrupt by the efforts and at the expense of one or more creditors', 'the reasonable expenses of such recovery' are to be allowed and paid, and such reasonable expenses are to be regarded as a debt having priority." § 2017. Trustee to Be Given First Opportunity. — Probably this amendment would not permit the reimbursement of creditors of their expenses incurred after the adjudication and the a;ppointment of a trustee, in thus recovering property transferred or concealed by the bankrupt, unless they had first applied to the trustee to take the steps required and had been met by a refusal. Certainly, if there be a trustee in charge of the estate, he should be given the first opportunity to take the necessary steps, especially so when we bear in mind that, after the election of a trustee, all action in behalf of creditors must be taken in his name.-^^ Impliedly, In re Felson, 15 A. B. R. 189, 139 Fed. 275 (D. C. N. Y.) : "It will not do, even under the provisions of subdivision 'b' of § 64, as amended, to permit creditors generally to come with their attorneys to the aid of the trustee seeking to recover property belonging to the estate in bankruptcy of the bankrupt, and concealed by him in violation of § 29 of the Act * * * and have an allowance for their expenses or attorney's charges out of the estate. The amendment gives no such license as this, and clearly such a course was not permissible prior to the amendment. * * * "As already stated, allowances to general creditors, one or more, who employ and pay counsel and incur and pay other expenses in doing things to benefit and increase the estate, and which have that eflfect, cannot be made unless the trustee has not been appointed at the time it is done, or, having been appointed, he has neglected or refused to act in the matter. Even in such case, unless there be an emergency demanding immediate action, the order and direction of the court should be first sought." 37. In re Goldberg, 16 A. B. R. 523, 144 Fed. 566 (D. C. Me.). 38. Injunction until bankruptcy petition can be filed, before amendment of 1903: Victor v. Lewis, 1 A. B. R. 667 (N. Y. Sup. Ct. App.). 1254 .REMINGTON ON BANKEUPTCY. § 2018 , § 2018. Disallowance of Unjust Claims before Election of Trus- tee. — This amendment probably would not fairly apply to a resistance of the allowance of an unjust claim to share in dividends or to vote, even where the trustee has refused to act, unless in some way such claim be connected with a "recovery" of property "transferred" or "concealed" by the bankrupt.-^^ It is somewhat sophistical to say that the defeating of an unjust claim is a "recovery" of property because of its effect in increasing the dividends of other creditors — much less that it is a recovery of property "transferred" or "concealed" by the bankrupt. Nevertheless, a creditor opposing the allowance of an unjust claim m/ight be allowed to use the trustee's name if the trustee refuses to act, and thus, if successful, might have his attorneys' fees charged against the estate as part of the trustee's expenses.^'^ Nor would the amendment cover cases of successful opposition by a creditor to the allowance of another creditor's claim before the election of a trustee. In re Worth, 12 A. B. R. 572, 130 Fed. 927 (D. C. Iowa): "In the matter of costs, the contest was wholly between creditors of the estate, and, while it is claimed in behalf of the objecting creditors that they were waging it in the interest of the estate, it clearly appears that it was in fact waged for the pur- pose of controlling the election of the trustee. No reason appears why the estate should bear the cost of such a contest." Even before the amendment of 1903, in certain instances creditors were allowed their expenses in recovering assets for the benefit of the estate where there was no receiver, marshal nor trustee yet in charge, or wdiere such officers had refused to act, the allowance being based upon the prin- ciple that such expenses were an equitable lien on the fund.'*^ And also they have been allowed reimbursement of the expense of resisting the al- lowance of fraudulent claims.'*^ But such allowances would not be proper where there w^as a trustee or receiver in charge and there was no refusal to act. Impliedly, In re Felson, 15 A. B. R. 189, 139 Fed. 275 (D. C. N. Y.) : "In the case now under consideration, there is no evidence that the trustee failed in his duty, or failed to press the matter of intentional and fraudulent conceal- ment against Felson with promptness and vigor." Even before the amendment of 1903, and in cases where creditors had been simply acting for themselves, they have been held entitled to have their expenses declared a lien upon the fund thus seized by them.'*^ 39. To same effect, In re Felson, 15 A. B. R. 185, 139 Fed. 275 (D. C. N. Y.); compare, In re Groves, 2 N. B. N. & R. 466 (Ref. Ohio). 40. Compare, In re Little River Lumber Co., 3 A. B. R. 682, 101 Fed. 558 (D. C. Ark.). 41. In re Groves. 2 N. B. N. & R. 466 (Ref. Ohio). 42. In re Little River Lumber Co., 3 A. B. R. 682. 101 Fed. 558 (D. C. Ark.). 43. Compare, evident practice, In re Ogles. 2 A. B. R. 514 (Ref. Tenn.). But compare, contra, inferentially, In re Smith, 5 A. B. R. 559, 108 Fed. 39 (D. C. N. Car.). Also, compare, contra. In re Silverman, 3 A. B. R. 227, 97 Fed. 325 (D. C. N. Y.). § 2018 COSTS AND EXPENSES OF ADMINISTRATION. 1255 In re Lesser Bros., 3 A. B. R. 320, 180 Fed. 201 (C. C. A. N. Y.) : "In this case, the appellants have, by a litigation which lasted about three and one- fourth years and went through two appellate courts, obtained, without aid from any other creditor, a fund of $27,000 for the benefit of all the creditors from fraudulent insolvents, who, at the last moment went into bankruptcy, ap- parently to prevent the appellants from obtaining a substantial benefit from the protracted and expensive litigation. The outcome, so far as the appellants are concerned, seems inequitable. We think that the order should be so modified as to permit them to become parties in the proceedings by the trustee in bank- ruptcy in the State court, and present to that court such consideration and facts as may bear upon an application for an allowance to them from the fund, in the nature of a reasonable compensation for their costs, expenses and dis- bursements in the litigation which resulted in the defeat of the fraudulent at- tempts of the bankrupts, in wrestling the fund from the hands of receivers applied for in fraud of creditors and in its preservation for their actual benefit." This case was reversed by the Supreme Court sub nom. Metcalf v. Barker, 9 A. B. R. 36, 187 U. S. 165, but upon the ground that the lien was not obtained within the four months, so its authority upon the point in question is not afifected. Also, undoubtedly, where under ^67 (i) a lien obtained by legal pro- ceedings, dissolved by the adjudication, is preserved for the benefit of all creditors, the costs of court would also be entitled to payment in full as part of the lien upon the fund';'*^ also, perhaps, under § 64 (b) (5), where such costs have been granted priority under state law in cases of subse- quent equitable sequestrations of property.^^ The clause added by the amendment of 1903 to §64 (b) (2) undoubtedly suggests a proper course to be pursued by creditors after the filing of an involuntary petition in bankruptcy, and before adjudication, where no re- ceiver is appointed, and necessity exists for steps to be taken to recover property transferred or concealed either before or after the filing of the petition. In such cases no provisional seizure of the property could be had by the marshal or a receiver, under § 69 and § 3 (e), for such seizure is not permissible except as to property in the hands of the. bankrupt or his agent and is forbidden where the property is in the hands of an adverse claimant such as an alleged fraudulent transferee; it being further ques- tionable whether a receiver has the power to institute suits for such recovery prior to adjudication. In such a situation, if creditors are to be protected before adjudication, it is proper for them to institute proceedings in the state courts to set aside the alleged fraudulent conveyance and to recover the property, whereupon, if subsequently the debtor be adjudged bankrupt, their costs and expenses would be entitled to priority, for it would be through their "efforts" that the property would finally have been recovered for the benefit of all. But it has been held proper, probably under this section, to reimburse 44. Receivers v. Staake, 13 A. B. R. 281, 133 Fed. 717 (C. C. A. Va.) ; In re Lesser Bros., 5 A. B. R. 320, 108 Fed. 201 (C. C. A. N. Y.). 45. Post, § 2197. 1256 RliMlNGTON ON BANKRUPTCY. § 2020 attaching creditors for their attorney's fees and other expenses incurred in levying an attachment on the debtor's property within four months of bank- ruptcy for their own benefit, the lien of the attachment being void as to the creditors in bankruptcy, but being preserved for the benefit of the estate, since thereby an unfiled or unrecorded instrument was rendered void.'*® But there would seem to be no more reason for reimbursing such levying creditors than for reimbursing any other creditors who had sought to gain an advantage by levying but had failed. Division 3. "Costs of Administration :" ReferEei's, Trustee's and Receiver's Ex- penses AND Compensation ; Attorneys' Fees ; Appraisers' and Witness' Fees, etc. § 2019. Third Priority, "Costs of Administration." — The classifica- tion of priorities given in § 64 of the act is somewhat misleading, since that section perhaps would imply that the costs of the preservation of the es- tate subsequent to the filing of the petition and the filing fees of the pe- titioning creditors already provided for in classes one and two are not also part of the "costs of administration.'"*" In this third class undoubtedly come the receiver's and trustee's expenses, including attorneys' fees ; also, of course, the allowance of compensation to appraisers ; the attorney's fees for the bankrupt and for the petitioning creditors ; and the fees and mileage of witnesses and of the bankrupt. Also in this class undoubtedly comes the referee's reimbursement of his expenses in sending and publishing notices and for office rent, clerk hire, etc. In fact this class three comprehends almost all the costs and expenses, and there is nothing prior to it except the actual and necessary cost of preserving the estate, and the filing fees of petitioning creditors, and also the reimbursement of creditors who have brought funds into the estate, v.hose reimbursement of course always is more than counterbalanced by the fund recovered, so the nominal precedence is never likely to occasion conflict, the rights of such creditors being in the nature of a lien upon the fund brought into the court, rather than a claim for priority of payment. § 2020. Equity Rules to Govern Order of Precedence in Class Three. — As to the priority of the different items of costs and expenses of this class three among themselves, no rule is laid down by the statute it- self, so the ordinary equity rules are to be appealed to for guidance.-*^ 46. Receivers v. Staake, 13 A. B. R. 281, 133 Fed. 717 fC. C. A. Va., affirmed sub nom. First Xat'l Bk. z: Staake, 15 A. B. R. 639, 202 U. S. 141). 47. Ambiguity of Term "Costs of Administration."— The term: "costs of ad- ministration" is ambiguous. Compare, In re Kross, 3 A. B. R. 189, 96 Fed. 819 (D. C. N. Y.). 48. In re Burke, 6 A. B. R. 502 (Ref. Ohio). § 2023 COSTS AND EXPENSES OF ADMIXISTRATIOX. 1257 § 2021. Indemnifying Court Officers and Advancing Moneys for Expenses. — The referee, clerk and mar:^hal are authorized to require in- demnity for expenses from the person in whose behalf the duty is to be performed."*^ § 2022. Reimbursement of Expenses Advanced. — The person so in- demnifying is entitled to reimbursement of the amounts so advanced, as part of the cost of administration.^"^ Even as to discharge expenses, the bankrupt is entitled to reimbursement for amounts advanced by him to pay the expenses of issuing, mailing and publishing notices to creditors of his application for discharge. ^^ § 2023. No Reimbursement of Original Deposit Except to Peti- tioning Creditors. — Such right to reimbursement, however, does not apply to the thirty dollars preliminary deposit of fees for the referee, clerk and trustee, except to those deposited by petitioning creditors ; but applies only to moneys advanced to pay expenses. Such preliminary deposits, where they are made by the bankrupt himself, would belong to the estate as part of the bankrupt's property. In re Matthews, 3 A. B. R. 265, 97 Fed. 772 (D. C. Iowa): "The provisions of General Order No. 10 do not apply to the deposit of $25, which the clerk. Tinder § 51 of the Bankrupt Act, [before the Amendment of 1903 increased it to $30.] is required to collect from the bankrupt when he files his petition. The monej' thus collected by the clerk is intended to cover the statutory fees to "be paid to the clerk, referee, and trustee as compensation for their services; and being paid to the clerk when the petition is filed, the amount of the estate passing to the trustee is lessened by that sum, and, if this amount should be how returned to the bankrupt, he would be receiving part of his estate as it "belonged to him before he filed his petition, which estate by the adjudication "became in fact the property of the creditors. The provisions of General Order No. 10 are intended to cover money which the bankrupt or some third party may be called upon to furnish after the initiation of the proceedings in order to meet expenses incurred by the officer for the purposes specially re- cited in the order, which purposes do not include the money deposited with the clerk to m^et the fees (not expenses) of the clerk, referee and trustee. Money thus advanced, if the bankrupt has met the requirements of the law with respect to turning over his estate to his creditors, is deemed to have been obtained from sources other than the estate belonging to the creditors, and therefore provision is made for its repayment out of the estate. The pur- pose of the order is to protect the officers from personal loss in the performance of their duties under the Bankrupt Act, but it is not the intent of the order that the bankrupt shall be repaid the monej'- which presumably he took out of his estate to pay the fees of officers before he filed his petition in bankruptcy." 49. Gen. Order No. X. 50. Gen. Order No. X. In re Hatcher, 16 A. B. R. 722, 145 Fed. 658 (D. C. Tex.). 51. In re Hatcher, 16 A. B. R. 722, 145 Fed. 658 (D. C. Tex.). 1258 REMINGTON ON BANKRUPTCY. § 2027 § 2024. Nor of Attorney's Fees Paid by Bankrupt in Advance. — A bankrupt is not entitled to reimlxn-sement of attorney's fees paid by him in advance of filing the petition. In re Matthews, 3 A. B. R. 265, 97 Fed. 772 (D. C. Iowa) : "These services have been paid for, however, and the payment was made out of the estate of the bankrupt; so that, in effect, the creditors have, already made good the amount. If the bankrupt had not paid this sum to his attorney, it would have formed part of his estate, which he would have been in duty bound to transfer to his trustee." § 2025. No Reimbursement of Bankrupt for Care of Exempt Property. — A bankrupt is not entitled to reimbursement of his expenses •in taking care of exempt property pending its being set off to him.^^ Qn the contrary the rent and storage charges for the care of exempt property, pending its being set apart to the bankrupt, are properly chargeable against the bankrupt.^3 § 2026. Reimbursemet to Follow Order of Priority of Expenses Themselves. — In reimbursing the bankrupt or a creditor, -under rule ten of the Supreme Court's General Orders, for money advanced to defray the expenses of the referee, marshal or clerk, such reimbursement has the same priority that the expenses themselves would have had, the one making the advancement being subrogated to the rights of the officer whose expenses are advanced.^^ § 2027. Probable Order of Priority. — Undoubtedly, the expenses of die referee, receiver and trustee would in eqviity have precedence over all other costs of administration; and probably the order of priority in this class three — Costs of Administration — would be somewhat as follows : 1st. Referee's expenses for mailing and publishing notices and for office rent and clerk hire, and for traveling, etc. 2nd. Receiver's and trustee's expenses, including attorneys' fees and rent, insurance, watchman, stenographers' fees,-""-"^ and other expenses, as various as the different cases themselves are variant. 3rd. Bankrupt's attorney's fees and the attorney's fees and other ex- penses of the petitioning creditors. 4th. Appraiser's fees. 5th. Witness' fees and mileage. 6th. Commissions and compensation, other than the deposit of filing fees already considered, for the referee, receiver and trustee. 52. In re Groves, 6 A. B. R. 728 (Ref. Ohio, affirmed D. C). 53. In re Grimes, 2 A. B. R. 730, 96 Fed. 529 (D. C. N. Car.). 54. In re Burke, 6 A. B. R. .502 (Ref. Ohio). 55. In re Todd, 6 A. B. R. 88, 109 Fed. 265 (D. C. N. Y.). Compare (not al- lowed for the benefit of g^eneral creditors at the sacrifice of priority creditors), In re Rozinsky, 3 A. B. R. 830, 101 Fed. 229 (D. C. N. Y.). § 2030 COSTS AND EXPENSES OF ADMINISTRATION. 1259 Referee's Expenses. § 2028. Referee's Expenses. — The referee is entitled to reimburse- ment of his expenses, and may require indemnity therefor.^'' He -is entitled to require indemnity for his expenses, by the Supreme Court's General Order No. X. Were he not entitled to indemnity, it would yet doubtless be the law, from the necessities of the case, that his expenses would come first, even though not mentioned first in the statutory order of priority ; for his expenses are the expenses of the maintenance of the court itself, and the expenses of the government in thus protecting the rights of parties in a particular fund or property is to be considered a first lien upon the fund or property, ahead of all liens thereon created by the parties them- selves, as well as ahead of the lien of the government thereon, for taxes for general purposes. § 2029. "Expenses" Not Covered by Statutory "Compensation" of Referee and Trustee. — The limitation of the referee's and trustee's compensation, so carefully guarded in § 72 of the act in the following words : "Xeither the referee nor the trustee shall, in any form or guise, receive, nor shall the court allow them, any other or further compensation for their serv- ices, than that expressly authorized and prescribe by this act." does not prevent the referee nor the trustee from being reimbursed for expenses.-''" § 2030. What Are Proper Expenses of Referee. — The referee's expenses proper for reimbursement as part of the costs of administration 56. Bankr. Act, § 62 (a). Gen. Order XXXV; Gen. Order X. 57. Bankr. x\ct, § 62 (a) : "The actual and necessary expenses incurred' by ofificers in the administration of estates shall, except where other provisions are made for their payment, be reported in detail under oath, and examined and approved or disapproved by the court. If approved they shall be paid or al- lowed out of the estates in which they were incurred." Rule XXXV of the Supreme Court's General Orders: "2. The compensation of referees, prescribed by the act, shall be in full compensation for all services performed by them under the act, or under these general orders; but shall not include expenses necessarily incurred by them in publishing or mailing notices, in traveling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act and allowed by special order of the judge. "3. The compensation allowed to trustee under this Act, etc., etc." Rule X of the Supreme Court's General Orders: "Before incurring any ex- pense in publishing or mailing notices, or in traveling, or in procuring attend- ance of witnesses, or in perpetuating testimony, the clerk, marshal or referee may require, from the bankrupt or other person in whose behalf the duty is to be performed, indemnity for such expense. Money advanced for this purpose by the bankrupt or other person shall be repaid him out of the estate as part of the cost of administering the same." Impliedly, In re Daniels, 12 A. B. R. 446, 130 Fed. 597 (D. C. Iowa). 1260 REMINGTON ON BANKRUPTCY. § 2031 are, in general, those for mailing notices to creditors and publishing no- tices in the newspaper of the bankrupt's adjudication and of his applica- tion for discharge ; for necessary stationery, printing, office rent and sup- plies and clerk hire ; and traveling expenses and other similar expenses that are necessary. Thus, the referee's expense for the publication of notice of the appli- cation for discharge, and for stationery, are properly chargeable against the bankrupt. ^^ And the referee may be allowed, by special order of the judge, his traveling and hotel expenses and amounts paid stenog- raphers, when a detailed account thereof, verified by his oath that they w^ere necessarily and actually incurred, is returned to the bankruptcy court vnth the proper vouchers, \vhen procurable, as provided by the general orders in bankruptcy.^ ^ Thus, also, referees may be allowed clerk hire, where reasonably neces- sary in the discharge of his duties.''^ In re Tebo, 4 A. B. R. 235, 101 Fed. 419 (D. C. W. Va.) : "In regard to the allowance of clerk hire, the court is of the opinion that no referee can, without the aid of the clerk or such other officer as he may require, discharge his public duties. This is a matter largely within the discretion of the referee, which discretion, if abused, woul-d justify the court in removing him. While Bankrupt Act, § 64b, par. 3, does not mention clerk hire as being embraced in the costs of administration, yet the paragraph does not forbid it, and this court is of the opinion that it is a necessary incident to the referee in the due administration of his office, as he is, in fact, the judge of the bankrupt court." § 2031. No Reimbursement Where Expenses Not Required by Act or Rules. — The referee is not entitled to reimbursement from the estate of his expenses incurred in mailing notices to creditors that are not re- quired by law to be mailed. Thus, he is not entitled to reimbursement for mailing notices to all creditors of the re-examination*of a creditor's claim, although properly entitled to reimbursement for the sending of the notice lo the creditor himself. Nor is he entitled to reimbursement for notices of protests against the confirmation of a sale i*^^ nor for making copies of the petition for discharge f^ nor for stenographer's fees, unless by stipulation of parties, or where employed upon application of the trustee.*'^ 58. In re Dixon, 8 A. B. R. 145, 114 Fed. 675 (D. C. Calif.). 59. In re Daniels, 12 A. B. R. 446, 130 Fed. 597 (D. C. Iowa). 60. Contra, In re Carolina Cooperage Co., 3 A. B. R. 154, 96 Fed. 604 (D. C. N. Car.): This case lays down too broad a rule. Instead of limiting the re- imbursement for clerical assistance to cases where it is necessary, the court broadly prohibits it altogether. Evidently the court had not in mind the cases of estates where hundreds of notices are to be sent and where hundreds of claims come pouring in at the first meeting, etc. In such cases to compel the referee to do all the work himself would be an absurdit3^ The opinion does not lay down safe law. 61. In re Mammoth Pine Lumber Co., 8 A. B. R. 651, 109 Fed. 308 (D. C. Ark.). 62. In re Dixon, 8 A. B. R. 145, 114 Fed. 675 (D. C. Calif.). 63. In re Mammoth Pine Lumber Co., 8 A. B. R. 651, 109 Fed. 308 (D. C. Ark.); In re Todd, 6 A. B. R. 88 (D. C. N. Y.). But see In re Daniels, 12 A. B. R. 446, 130 Fed. 597 (D. C. Iowa). § 2034 COSTS AND EXPENSES OF ADMINISTRATION. 1261 § 2032. Method of Apportioning Expenses. — In order to meet the difficulty of estimating for each case the proportion of expenses for such case, the district courts have laid down certain rules which roughly ap- portion these expenses. Thus, in several districts, ten cents for each notice sent to creditors is the rule, this charge being estimated to about cover the actual expenses of the referee for office rent, clerk hire, pub- lishing notices in the newspapers, etc., etc. This ten cents per notice is not chargeable as a fee, but as a means of covering estimated expenses.®^ SUBDIVISION "b." Receiver's and Trustee's Expenses. § 2033. Expenses of Receiver and Trustees. — Of course the ex- penses of receivers and trustees are bound to be various. They are as varied as are the natures of the different businesses that happen to get into bankruptcy. Thus there is likely to be rent; expenses of conducting the business ; insurance ; watchman's hire ; clerk hire ; expense of litiga- tion ; attorneys' fees, etc., etc. § 2034. Rent for Use and Occupation. — Receivers and trustees in bankruptcy are entitled to occupy the premises occupied by the bankrupt at the time of bankruptcy for a reasonable time, sufficient not only for the safe and proper removal of the assets therefrom, but also for the pre- vention of loss of value or deterioration where sale on the premises is desirable.*"^^ And this is so even though the lease be broken and for- feited, and right of re-entry has become fixed at law, provided adequate compensation for use and occupation can be made. In re Chambers Calder & Co., 3 A. B. R. 537, 98 Fed. 865 (D. C. R. I.): "Execution in ejectment would, in the present case, interfere with the posses- sion of this court, and on that ground alone might be enjoined. It is further- more apparent that it would most seriously embarrass this court, in the adminis- tration of the bankrupt's estate, and result in unnecessary loss to the creditors. There is trustworthy and undisputed evidence that the stock of goods on the leased premises is such that their proper packing and safe removal from the premises \iannot be accomplished in much, if any, less than four weeks. A tenant, even though the conditions of his lease is broken by nonpayment, has such legal right of ingress and egress as is necessary for the removal of per- sonal property. There could be little practical value to the landlord in the possession of the premises during this time, and there is no suggestion of any facts indicating that pecuniary compensation will not be entirely adequate for a reasonable delay in the surrender of the premises." 64 \naloo-ously. In re Hardware & Furn. Co., 14 A. B. R. 186, 134 Fed. 907 (D. C. N. CO. T^ , . J t. ^ • 65 Bray v Cobb, 3 A. B. R. 788, 100 Fed. 270 (reversed, on other grounds, m Cobb V. Overman, 6 A. B. R. 324, 109 Fed. 65 (C. C. A. N. Car.). 1262 REMINGTON ON BANKRUPTCY. f^ 2036 § 2035. Computed at Lease Rate. — Receivers and tru.stees occupying premises held by the bankrupt under lease are, in general, bound to pay for the use and occupation at the rate prescribed by the lease for rent i^^ until adjudication in bankruptcy, at any rate;^' although it is not by virtue of being bound by the terms of the lease, but rather because its terms must be taken to be the best measure of the value of the use and occupation. Nevertheless, the lease is not, in all cases, to be considered as fixing the actual value.*^'^ § 2036. Expense of Conducting Business. — When the receiver or trustee has been authorized to conduct the business, the expense of con- ducting it is a proper charge against the estate.*^^ 66. In re Gerson, 2 A. B. R. 170 (D. C. Penna.). Also, see, In re Kelly Dry Goods Co., 4 A. B. R. 530, 102 Fed. 747 (D. C. Wis.). Instance, Wilson v. Penna. Trust Co., 8 A. B. R. 169, 114 Fed. 742 (C. C. A. Penna.); instance, In re Winfield Mfg. Co., 15 A. B. R. 257 (D. C. Pa.). But see, impliedly, contra, and to the effect that reasonable compensation for use and occupation is the sole measure, In re Chambers, Calder & Co., 3 A. B. R. 537, 98 Fed. 865 (D. C. R. I.). In re Cronson, 1 N. B. N. 474 (Ref. Pa.): In this case the stijiulated rent was held also to be the reasonable rent. In re Gerson, 1 N. B. N. 315 (Ref. Pa.). 67. In re Hinckel Brew. Co., 10 A. B. R. 484, 123 Fed. 942 (D. C. N. Y.). 68. Trustee is not liable for use and occupation where he occupied another's land on supposition it was bankrupt's land, but landlord sued real tenant for rent, for part of the time occupied by trustee. In re Wiessner, 8 A. B. R. 415 (D. C. N. Y.). 69. But it has been held, that the expenses of conducting the business may not be charged upon property to the loss of a prior valid lien thereon without the lienor's consent. In re Cornice & Roofing Co., 13 A. B. R. 585 (D. C. Ky.) : "It should not be forgotten that any effort by the general creditors or by the trustee in their behalf to make profits by continuing to execute the outstanding contracts of the bankrupt was exerted solely in the interest of the general creditors. The secured creditors, to whom this was immaterial, relying upon their liens, had no interest in the venture of the trustee undertaken for the benefit of the gen- eral creditors, and without their express consent the lienors should be regarded as having put to hazard their interests in the bankrupt's assets — a hazard for incurring which they receive no consideration. True, § 2, cl. 5, Bankruptcy Act, as it was in force in June, 1902, gave the court power to authorize a trustee to conduct, for a limited period, the business of the bankrupt; but I am much inclined to think that a referee should never permit a procedure for the carrying into effect of the unexecuted contracts of a bankrupt, to be comanenced upon the initiative of the trustee. Much abuse of the power might be avoided and temptation for the trustee removed by putting that burden on the creditors. Such authorization should generally be made upon the application of some or all of the general creditors. It should never be made, if carrying it into full effect would be at the expense of secured creditors who have no interest ip the question and who make no request for such authority. Indeed, the claiins of secured creditors should, if possible, be fully paid or provided for before the trustee or the general creditors are permitted, except in a very small way, to embark in any venture of that sort. Of course, after the secured creditors are paid, the general creditors are in practical control of the estate, and if willing to take risks, may be indulged by the referee in proper instances, for they alone are concerned. But whether these general views are sound or not as to the proper course to be pursued by the referee in such cases, another course was in fact pursued here, though with unfortunate results. I think it was the duty of the trustee, under the circumstances disclosed in this case, to have clearly § 2039 COSTS AND EXPEN-SES OF ADMINISTRATION. 1263 § 2037. Auctioneer. — Where special necessity exists for the ernploy- inent of an auctioneer, his compensation may be allowed.''" But the employment of an "official" auctioneer to act in all cases would seem to be improper. The selling of the property is one of the ordinary duties of the trustee; and to compel all sales to be made through one channel is clearly contrary to the spirit of the Bankruptcy Act. The trustee's individual skill is set at naught, and the creditors' selection to that extent defeated.'^ But the practice in some districts tends to have official receivers and "official" auctioneers as the general rule. The Bankruptcy Act seems in its spirit opposed to such "official" personages." ^ § 2038. Premium on Bond. — The premium charged by a surety com- pany for becoming surety on the receiver's and trustee's bonds, is a doubt- ful item of expense to tax as part of the costs, unless permitted by rule of court. Obiter, In re Hoyt. 9 A. B. R. 574, 119 Fed. 987 (D. C. N. Car.): "Prior to the act of congress giving the privilege of giving bonds in surety companies (a modern convenience), such a thing as a fee for bondsmen was unheard of as costs. There is no act making it taxable as costs, and, while courts may have allowed such costs to prevailing parties litigant, it is a new departure, and has not j^et become the rule of court." § 2039. Not Necessary to Pay Expenses Out of Pocket First, Then to Be Allowed Reimbursement. — Xeither the receiver nor trustee in bankruptcy is required first to pay his expenses out of his own pocket, and then be allowed reimbursement therefor out of the estate. brought before the referee the fact that his expenditures were trenching upon- the fund upon which others claimed liens, and to have sought specific instruc- tions in that contingency, even to the extent of bringing the question before the judge if necessary. I think his not doing this, but going on at a loss after expending everything on hand, was, to say the least, improvident and greatly to his disadvantage in the present contingency. ***!(- joes not at all seem to me that expenditures made at the instance either of the general creditors or of the trustee in their behalf to do what was done for their sole benefit in this instance are such 'costs of administration' as were in the contemplation of Con- gress when it used that phrase in the Ac-t. Such expenditures occur in a special and abnormal case, which could hardly have been within such contemplation. The phrase has a much more restricted signification. See §§ 40, 48, 51, 52. I go further, and doubt whether the expenses of continuing the business of the bankrupt for a limited period, under § 2, cl. 5, would take priority over valid liens already existing and fixed, such as were Ronald's and Root's. Sec- tion 67, cl. 3. In my judgment valid liens, properl}^ acquired and fixed could not be displaced by the trustee or the general creditors in any such subsequent pro- ceeding for the sole benefit of the latter." 70. See ante, § 1934. 71. But compare. In re ]\Ieyer Benjamin, 13 A. B. R. 18 (D. C. X. Y., af- firmed, on review, in 14 A. B. R. 481): The abuses mentioned in Judge Holt's opinion, as the same appears in the opinion of the C. C. A., on review of the case In re Benjamin, 14 A. B. R. 481, ought to be met by a better remedy. 72. Inferentially, Gen. Order No. XIV (1): "Xo official trustee shall be ap- pointed by the court, nor any general trustee to act in classes of cases." 1264 REMIXGTOX ON BANKRUPTCY. § 2041 In re McKenna, 15 A. B. R. 9, 137 Fed. 611 (D. C. N. Y.) : "This court is aware of the rule which has been adopted in some of the State courts that no allowance will be made for legal services until the executor or administrator or other trustee has first paid therefor; that then he may present the bill in his account, and ask reimbursement. This rule always leaves the trustee, ex- ecutor or administrator open to have the propriety of his allowance and pay- ment questioned by those interested in the fund. If the court decides that he has paid too much, he must stand the loss, for he has undertaken to decide that matter for himself, and, having conceded the justice of the claim of the attorney — their claim being a personal one against him — he is without remedy. Without quesiioning the wisdom or propriety or justice of such a rule in the cases where it has been applied by the State courts, this court is decidedly of the opinion that it ought not to prevail in the bankruptcy court. Here there are meetings of the creditors, where all parties in interest miay come before the court. The attorneys who have rendered services for the trustee or for the receiver in bankruptcy may come before the court or referee, as the case may be, and present their claim. If no objection is made by any party, and the court or referee in bankruptcy deems the bill reasonable for the services rendered, it may be allowed, and payment directed from the estate. It is entirely immaterial to those in interest whether the compensation going to at- torneys for the trustee be first paid by the trustee personally, from his own funds, or by the trustee, under an order of the court, direct to the parties entitled thereto, from the estate, provided it is allowed by the court after a fair hearing. The practice adopted in this case relieved the trustee from the imputation of having undertaken to decide as to the compensation his attorneys ought to receive from the estate. The course pursued left it entirely to the court or referee in bankruptcy to determine the necessity and the value of the services rendered. This practice has been many times approved in the bank- ruptcy court, and is approved by this court. In the opinion of this court, neither a trustee nor a receiver in bankruptcy ought to be permitted to pay money of the estate to his attorney's or counsel without the order or authority of the court, and certainly such officers ought not to be required to pay for such services from their own funds. It is always, however, within the power of a receiver or trustee to pay the attorney from his own funds, and then ask reimbursement from the estate bj^ order of the court." § 2040. Costs and Expenses of Litigation. — Costs and expenses of litigation in recovering and defending the possession of property and in contesting claims are proper charges, when necessary.'^ § 2041. Attorney's Fees Incurred by Trustees and Receivers. — Legitimate expenses of the receiver and trustee may include attorney's fees.'^ 73. Trustee refused reimbursement for expenses in carrying up review of judge's adverse ruling, because of laches, etc. In re Josephson, 9 A. B. R. 608, 121 Fed. 142 (D. C. Ga.). 74. Page v. Rogers, 17 A. B. R. 854, 149 Fed. 194 (C. C. A. Tenn.) ; In re Oppenheimer, 17 A. B. R. 59 (D. C. Pa.); In re Hitchcock, 17 A. B. R. 664 (D. C. Hawaii); Davidson v. Friedman, 15 A. B. R. 489, 140 Fed. 85.3 (C. C. A. Mich.). For discussion of this expense, see the general discussion of attorney's fees in the ne.xt division — Division 4. § 2044 COSTS AND EXPENSES OF .^dministLvtion. 1265 SUBDIVISION "q!' Attorneys' Fees in Bankruptcy Proceedings. § 2042. Allowable Attorneys' Fees. — Reasonable attorneys' fees may be allowed out of the estate, to the petitioning creditors and the bank- rupt by express statutory provision, and to the trustee and receiver as part of their expenses. One of the most vexatious problems in the practical administration of bankrupt estates is the determination of the propriety and amount of at- torneys' fees allowable out of the estate. § 2043. Clerical Work and Ordinary Business Advice Not to Be Charged for at Professional Rates. — The fees charged for at profes- sional rates must be for professional services ; not for clerical work nor for ordinary business advice or work.'^^ In re Connell & Sons, 9 A. B. R. 475, 120 Fed. 846 (D. C. Pa.): "But it is not so much what was done by the attorney, as what was really required. The bankrupts are responsible individually to the extent that they employed him, regardless of the character of what he was called upon to do, but not so the estate. This is a preferred claim, and is to be kept down to what it was in- tended by the act to represent, and that is simply the necessary professional assistance required by the bankrupts to meet the demands of the act upon them. In the present instance, the time spent seems to have been mainly taken up in going over the books of the firm and s.traightening them out by posting and otherwise. A part of this may be regarded as necessary, but a part certainly was not. It was the work of a bookkeeper or an accountant rather than a lawyer to post the books and reduce them to the condition where the informa- tion they contained would be available and for this no claim can be made. Neither can there for the writing up of the extra copies of the schedules after the first one had been made out. This was mere clerical work, which any one could do who wrote a fair hand, and is not to be charged against the estate at professional rates." A considerable portion of the work commonly charged for at pro- fessional rates is really clerical work. Thus, a goodly part of the prepara- tion of the bankrupt's schedules is purely clerical work that should not be estimated at professional rates; although, to be sure, genuine professional advice in the preparation may also be requisite, in the classification of assets, liabilities, etc., and in pointing out the proper forms."^ § 2044. For Many Services Attorney to Seek Pay from Own Client, Not from Estate. — For many of the services ordinarily per- 75. In re Mayer, 4 A. B. R. 241, 101 Fed! 695 (D. C. Wis.). 76. In re Terrill, 4 A. B. R. 625, 103 Fed. 781 (D. C. Vt.). 2 Rem B— 5 1266 REMINGTON ON BANKRUPTCY. § 2045 formed, the attorney must seek his pay from his own cHent, rather than from the estateJ'^ In re Rozinsky, 3 A. B. R. 831, 101 Fed. 229 (D. C. N. Y.) : "In the present case it is manifest that the examination was conducted in the interest of the general creditors. The trustee was elected by the attorney of those creditors, and the latter was in turn immediately employed by the trustee in an uncertain search after assets. The funds in hand necessary to pay preferred claims should not be thus depleted, but such services should be regarded as virtually in behalf of the creditors who are the clients of the attorney, and upon the credit of what they may succeed in realizing.'' § 2045. Fees Must Be "Reasonable." — The fees allowed must be reasonable. What is and what is not a reasonable fee in bankruptcy has been touched upon by the decisions in numerous instances."^ 77. In re Connell & Sons, 9 A. B. R. 475, 120 Fed. 846 (D. C. Pa.). Instance, In re Castleberry, 16 A. B. R. 430, 143 Fed. 1021 (D. C. Ga.) : Thus the bank- rupt in having his exemptions allowed. In re Hart & Co., 16 A. B. R. 726 (D. C. Hawaii) : Petitioning creditors for prelim'inary consultations before decision to file bankruptcy petition. Instance, In re Oppenheimer, 17 A. B. R. 60 (D. C. Pa.). 78. In re Covington, 13 A. B. R. 150, 132 Fed. 884 (D. C. N. Car.): Allowance of $200 to petitioning creditors' attorney and $50 to bankrupt's attorney, in an estate of $2000. In re Silverman & Schoor, 3 A. B. R. 237 (D. C. N. Y.) : Petitioning creditors allowed $75.00 on an uncontested petition and for obtaining stay of pending litigation. In re Goldville Mfg. Co., 10 A. B. R. 552, 123 Fed. 579 (D. C. S. C.) : Peti- tioning creditors' attorney in estate of $2,800 allowed $250. In re Smith, 5 A. B. R. 559, 108 Fed. 89 (D. C. N. Car.): Voluntary bank- rupt's attorney allowed $50. In re Carr, 8 A. B. R. 635, 117 Fed. 572 (D. C. N. Car.), where court refused to follow the recommendation of the referee, regarding it exorbitant. In re Connell & Son, 9 A. B. R. 474, 120 Fed. 846 (D. C. Pa.): In voluntary case bankrupt's attorney allowed $100. Smith V. Cooper, 9 A. B. R. 755, 120 Fed. 230 (C. C. A. Ga.), wherein the cir- cuit court of appeals restored the master's recommendation of $1,000 which the district court had cut down. In re Rozinsky,- 3 A. B. R. 831, 101 Fed. 229 (D. C. N. Y.) : Attorney for trustee refused allowance for uncertain chase after alleged concealed assets where done at expense of labor claimants. In re Lang, 11 A. B. R. 794, 127 Fed. 755 (D. C. Tex.) : Cutting down allow- ance to bankrupt's attorney in a voluntary case to $75, the estate being $7,500. In re O'Connell, 3 A. B. R. 422, 98 Fed. 8a (D. C. N. Y.) : Allowance to bank- rupt refused for attorney's fees out of fraudulently conveyed property recovered by trustee. In re Felson, 15 A. B. R. 185,- 139 Fed. 275 (D. C. N. Y.) : Allowance of $50 to bankrupt's attorney in an estate of $4,656 for schedules and examination. In re Mayer, 4 A. B. R. 239, 101 Fed. 695 (D. C. Wis.): $25 to $50 for prepa- ration of schedules. In re Martin-Borgeson Co., 18 A. B. R. 179, 151 Fed. 780 (D. C. N. Y.):- $150 for receiver's attorney in estate of $4,600. In re Byerly, 12 A. B. R. 188, 128 Fed. 637 (D. C. Penn.) : Disallowing any attorney fee at all for trustee on account of the size of the estate and lack of necessity for employment. In re Curtis, 4 A. B. R. 17, 100 Fed. 784 (C. C. A. Ills.): In estate of $102,000 allowance of $12,500 to petitioning creditors excessive; $2,000 proper allowance. In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N..Y.): Allowance to bank- § 2046 COSTS AND EXPENSES OE .\DMINISTRATI0N. 1267 § 2046. "Reasonableness" Left to Sound Judicial Discretion of Court. — What is a reasonable amount for an attorney's fee in bankruptcy is left to the sound judicial discretion of the court, but not its unrestrained discretion.'^ In re Curtis, A A. B. R. 17, 100 Fed. 784 (C. C. A. Ills.): "So, also, the amount to be allowed does not rest in mere discretion. The amount must in all cases rupt's attorney of $30 for petition, schedules, etc., and $20 for discharge. In re Terrill, 4 A. B. R. 625, 103 Fed. 781 (D. C. Vt.) : Bankrupt tilling out his own petition and schedules. In re Morris, 11 A. B. R. 145, 125 Fed. 841 (D. C. N. Car.): "This court has, bj^ rule, fixed the maximum fee in voluntary proceedings, where there is no unforeseen litigation or extraordinary services, at $50." In re Lewin, 4 A. B. R. 632, 103 Fed. 850 (D. C. Vt.) : Re-examination of prepayment of $82.50 to bankrupt's attorney. In re Oppenheimer, 17 A. B. R. 60 (D. C. Pa.): Receiver's attorney fee $100 in an estate of $4,200. In re Anderson, 4 A. B. R. 640. 103 Fed. 854 (D. C. S. C.) : Allowance of $90 to involuntary bankrupt's attorney. In re Mercantile Co.. 2 A. B. R. 419, 95 Fed. 123 (D. C. Mo.): Nor to exceed $50 to petitioning creditors' attorneys in default cases, for all work including schedules, where ordered; and $25 additional for pro forma injunction against transfer of assets by trustee or assignee. In re Little River Lumber Co., 3 A. B. R. 685, 101 Fed. 558 (D. C. Ark.); In re Tebo, 4 A. B. R. 235. 101 Fed. 419 (D. C. W. Va.) ; In re Smith, 1 A. B. R. 37 (Ref. N. Y.); In re Mitchell, 1 A. B. R. 665, 93 Fed. 803 (Ref. Wis.); In re Mitchell, 1 A. B. R. 687 (Ref. Pa., disapproved in In re Felson, 15 A. B. R. 193, 139 Fed. 275); In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C. Iowa); In re Frick, 1 A. B. R. 719 (Ref. Ohio); In re Smith, 2 A. B. R. 648 (Ref. X. Y.): Percentages adopted. In re Woodard, 2 A. B. R. 692, 95 Fed. 955 (D. C. Va.) : $75 allowed to peti- tioning creditors. In re Burrus, 3 A. B. R. 296. 97 Fed. 926 (D. C. Va.) : Voluntary bankrupt's attorney allowed $200: injunctions being obtained, etc. In re Fletcher, 10 A. B. R. 400 (Ref. N. Y.): Allowance refused to creditors' attorney for contesting claims before election of trustee. In re Evans, 8 A. B. R. 730, 116 Fed. 909 (D. C. X. Car.): Allowance refused to trustee who was attorney. In re Stratemeyer, 14 A. B. R. 121 (D. C Hawaii): $50 allowed bankrupt's attorney for schedules, examination and discharge. In re Brundin. 7 A. B. R. 298, 112 Fed. 306 (D. C. Minn.): Bankrupt's attor- ney allowed $271.00. In re Rosenthal & Lehman, 9 A. B. R. 626, 120 Fed. 848 (D. C. Mo.) : Allow- ance refused because no showing of necessity made. Liddon & Bro. z'. Smith, 14 A. B. R. 204, 135 Fed. 43 (C. C. A. Fla.) : Allow- ance refused. In re Abram, 4 A. B. R. 575, 103 Fed. 272 (D. C. Calif.). In re X^iman, 14 A. B. R. 515 (Ref. Mich.): Estate apparently only worth $1,400: vigorous action of attorney discovered and recovered $16,000: court al- lowed $2,500 for attorney's fees. In re Talton, 14 A. B. R. 617, 137 Fed. 178 (D. C. X. Car.): Bankrupt's and petitioning creditors' attornej's' fees in cases of composition: $20.00 allowed to bankrupt's attorney and $50 to petitioning creditors. In re McKenna,'l5 A. B. R. 4, 137 Fed. 611 (D. C. X. Y.) : $800 to attorneys for trustee where controversy involved netted $20,000 to estate, and time con- sumed was 50 days; and amount realized paid all debts. In re Carolina Cooperage Co., 3 A. B. R. 154, 96 Fed. 950 (D. C. X. Car.): Bankrupt's attorney fee reduced from $75 to $25. In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 (D. C. Wis.). Page V. Rogers, 17 A. B. R. 854, 149 Fed. 194 (C. C. A. Tex.): $15,000 al- lowed in an estate of $71,000, where total indebtedness was about $78,000. 79. Smith v. Cooper. 9 A. B. R. 755. 120 Fed. 230 (C. C. A. Ga.) ; In re Young, 16 A. B. R. 108, 142 Fed. 891 (D. C. X. Car.). 1268 REMINGTON ON BANKRUPTCY. § 2047 be reasonable, to be determined upon evidence of the service performed and of its value, and, in the absence of evidence of its value, by the court from know^l- edge of its worth." And the order of alloAvance of attorneys' fees is subject to review. ^^^ Their fees must be reasonable fees, but there is great diversity of mind among lawyers as to the method of arriving at the reasonableness of at- torney's fees. It is sometimes said that the customary, and hence reason- able, attorney's fee- is a certain fixed amount per day ; but certainly such cannot be a correct rule, else it is continually disregarded in practice. Neither attorneys nor litigants take a fixed amount per day as the criterion of the reasonableness of any certain charge for attorney's fees ; and what common consent acquiesces in is likely to be reasonable. Thus, it would hardly be right to charge $25 per day for instance, for services in a suit involving only a few dollars, else poor people never could get their rights ; nor, on the other hand, would it be reasonable for lawyers in a great case to be restricted to $25 per day. Other elements are to be taken into account besides merely the time involved. § 2047. Various Elements to Be Considered, Each Having Mod- ifjdng Effect. — The time alone' used by the attorney is not the only standard whereby to measure the reasonableness of the fees. There are at least five elements in all : The time properly to be spent on the par- ticular controversy involved ; the intricacy of the questions involved therein; the amount involved in that controversy; the strenuousness of the opposition encountered; and the results achieved therein. ^^ In re McKenna, 15 A. B. R. 10, 137 Fed. 611 (D. C. X. Y.) : "In fixing the value of legal services, courts have many things to consider — the nature and importance of the business transacted; the ability of the parties to pay; the amount of the estate involved; the magnitude of the interests in question; the standing and ability of the attorneys employed; the location of the parties and of the attorne3's. These and many other things are proper subjects of consideration." In re Goldville Mfg. Co., 10 A. B. R. 559, 123 Fed. 579 (D. C. S. C): "The amount of the estate must to a large extent govern its discretion in determining what is 'reasonable.' " Ward V. Kohn ( C. C. A.), 58 Fed. 462: "In the absence of a contract price, attorneys are entitled to receive what they deserve for their services. The amount of their compensation must vary with the place in which their services are rendered, for the same services are of more value in a large and prosperous commercial city than in a small country town; with the character and standing of the lawyer who renders them, for the services of an attorney of ripe experience, great learning, emi- 80. Smith V. Cooper, 9 A. B. R. 755, 120 Fed. 230 (C. C. A. Ga.). Instance, Page V. Rogers, 17 A. B. R. 855, 149 Fed. 194 (C. C. A. Tenn.). 81. In re Knight, 3 N. B. N. & R. 446 (Ref. Ohio). See note. In re Smith. 5 A. B. R. 559, to be found on page 560. Also, to similar effect. Smith v. Cooper, 9 A. B. R. 758, 120 Fed. 230 (C. C. A. Ga.). § 2047 COSTS AND EXPENSES OF ADMINISTRATION. 1269 nent ability, and high reputation deserve and command better compensa- tion than those of the tyro in the profession; with the importance of the mat- ters involved in the litigation, for the same service deserve more compensation where life, liberty, character, or large amounts of property are at stake than where but a few dollars are in dispute; and with the results attained, for suc- cess earns a better reward than failure. "The wealth of a defendant cannot be considered in any case to enhance the fee for professional services above a reasonable compensation for the service actually rendered. It cannot be considered to make a fee extortionate or a compensation unreasonably large. But every judge and every gentle- man of the bar knows that much severe professional labor is rendered by prac- ticing attorneys without any compensation, and much more for compensation so small as to be entirely inadequate. It is as difficult to defend the poor as the rich from a groundless charge of murder. It requires as much learning, labor, and professional skill to recover or save from attack property of little value, that may be the entire estate of the poor man, as it does to recover thousands of dollars for the wealthy. The duty of the lawyer to defend the former and maintain his rights is as great as it is to the latter, and to the honor of the profession it may be said that it is performed with equal zeal and fidelity. But it is the general practice of the gentlemen of the bar to fix the fees for such services far below a fair compensation or to charge no fee at all — to measure their fees more by the inability of such a client to pay a fair compensa- tion, or to pay at all, than by the value of the services they render. When, on the other hand, a client, who has the means to pay what professional serv- ices are fairly worth, employs an attorney, it is right and just that he should pay a fair and reasonable compensation for the service he obtains. In other words, the fees the attorney deserves from such a client should not be measured by the inadequate compensation and small fees the gentlemen of the bar usually rceive from those who are unable to pay at all or to pay a fair compen- sation, but they should be measured by the fees usually obtained by attorneys for like services from those who are able to pay just compensation for the service rendered." Compare, to similar efifect. In re Lang, 11 A. B. R. 794, 127 Fed. 755 (D. C. Tex.) : "It may not always be an easy matter to determine the exact value of the services of an attorney. Such value varies, as the value of the surgeon's work varies with the importance of the operation and the skill and delicacy required in performing it. Where the operation is simple, and relatively unim- portant, the fee exacted would be small in comparison with that demanded for more serious work. So it is with the services of the attorney, and no fixed, absolute fee can be provided for all cases. The amount of compensation should be based, in ordinary cases, upon the nature of the case, the extent and char- acter of the work actually performed, and the amount involved in the contro- versy." Compare, to similar efifect. In re Curtis, 4 A. B. R. 19, 100 Fed. 784 (C. C. A. Ills.) : "The elements which enter into and should control judgment upon the value of professional services we think to be these: The nature of the service, the time necessarily employed therein, the amount involved, the re- sponsibility assumed, and the result obtained." In re Burns, 3 A. B. R. 296 (D. C. Va.) : "* * * the character of the estate, its condition at the time of the adjudication, the injunctions or restrain- ing orders necessary to be secured for its protection, and the corresponding amount of time and care required of the petitioner's attorney, are all matters to be considered by the court in arriving at the amount "reasonable" under the 1270 REMINGTON ON BANKRUPTCY. § 2047 circumstances. Necessaril3% therefore, there can be no fixed and determinate fee for all cases, nor will the amount allowed in this case establish a rule for subsequent cases in this court, but from a careful consideration of the evidence certified by the referee herein the court deems $200, in addition to the $45.45 alread}^ allowed and paid for expenses incurred, a reasonable fees, and the order of the referee will be modified Accordingly." There is sometimes another element added, namely, the "dignity" and "standing" of the attorney himself.^s This element, however, seems at least undignified : justice and fairness, it would seem, would resolve the value of the "dignity" and "standing" of the attorney in any particular case into one or the other of these five elements above laid down. "Dig- nity" should not be paid for, but the work accomplished in view of all the circumstances and questions involved rather should control. But it is undoubtedly proper to consider, as an element, the vigor of the opposition ; for a controversy in itself involving propositions of small merit may be rendered vexatious by the strenuousness of one's adversaries. The results achieved through the efforts of the attorney also have an important bearing upon the reasonableness of the allowance.^-^ Again, the intricacy of the legal questions involved should be taken into account. Inferentially, In re Curtis, 4 A. B. R. 20, 100 Fed. 784 (C. C. A. Ills.): "This was the nature of the service that was rendered, and involved the investiga- tion and discussion of the questions whether a voluntary assignment, after the passage of the bankrupt law was void, or voidable merely, of the doctrine of estoppel in pais, and of the election of remedies. These questions were im- portant, requiring careful study and legal ability for their proper presentation to the court." Inferentially, In re Oppenheimer, 17 A. B. R. 60 (D. C. Pa.): "* * * so there was no great responsibility involved in its management, nor any intricacy in advising with regard to it, both of which bear on the value of the services rendered and the amount to be allowed." Each of these elements has a modifying eft'ect upon all the others, to increase or decrease the fees to be allowed, as the case may be. Thus, where the issues raised are uncontested or are practically incontestible, there would be a corresponding tendency toward reduction of the fees. Again, petitioning creditors would not be entitled to as great an allowance for attorneys' fees where an assignment for the benefit of creditors, or a written admission of inability, etc., is the act of bankruptcy alleged, as they would where an act of bankruptcy more difficult of proof and more likely to be contested and to require preparation for trial, is set up.^^ 82. In re McKenna, 15 A. B. R. 10, 137 Fed. 611 (D. C. N. Y.). 83. Instance, In re Niman, 14 A. B. R. 515 (Ref. Mich.): In this case the court allowed $2,500 where, in an estate of apparently only $1,400 the vigorous action of the attorney resulted in the recovery of $16,000. 84. In re Silverman & Schoor, 3 A. B. R. 227 (D. C. N. Y.). Instance, In re Carolina Cooperage Co., 3 A. B. R. 157, 96 Fed. 604 (D. C. N. Car.). § 2048 COSTS AND EXPENSES OF ADMINISTRATION. 1271 It is also perhaps proper to take into account the locality; since, after all, compensation is to a certain degree regulated by the comparative standard or cost of living. Thus,- the same services in the same litigation might merit different compensation* to the attorney in a city where the cost of living is high from what the same attorney should expect were he a resident of a place where the cost of living is comparatively low. § 2048. Sixth Element, in Bankruptcy Cases, "Economy." — And in bankruptcy the policy of the act towards strict economy should be kept in view.^^ In re Goldville Mfg. Co., 10 A. B. R. 556, 123 Fed. 579 (D. C. S. C.) : "It is a part of the history of the countrj' that one of the causes which led to the repeal of the Bankrupt Act of 1867 * * * -^yas the great abuse, under the former law, whereby the estates of bankrupts were consumed b}^ the minis- terial officers of the court in enormous costs and charges; and it was the clear intent of the present Bankrupt Law that they should be administered for the benefit of the creditors. This is manifest through all the provisions respecting fees and commissions. The compensation allowed to clerks, referees, and trustees is so meagre that it is a matter of some surprise that the courts have been able to secure persons of any competency to administer the law. Under the former act legal services rendered to the bankrupt were not allowed as a claim entitled to priority, but under the present law such claims are al- lowed priority in the discretion of the court; but that discretion should be ex- ercised to carry out and efifectuate the legislative will, and the courts cannot honestly disregard the manifest policy of the law, which looks to great econ- omy of administration. If they enforce strict compliance with the statute on the part of ministerial officers with respect to such fees and allowances as are prescribed by law, they cannot refuse to be bound by its limitations in matters that are left to their discretion. That discretion must be in accordance with, and not in conflict with, the policy of the law.'' In re Resenthal & Lehman, 9 A. B. R. 629, 120 Fed. 848 (D. C. Mo.) : "And when an allowance is made it should be remembered that the policy of the law, as disclosed in the compensation fixed for referees, clerks and trustees, is in the direction of great economy." In re Woodard, 2 A. B. R. 339, 691, 95 Fed. 956: "One of the purposes of the Act of 1898 in establishing a uniform system of bankruptcy was to avoid what was the principal cause of the repeal of the Bankruptcy Act of 1867 — excessive * fees and great expense." In re Lang, 11 A. B. R. 794, 127 Fed. 755 (D. C. Tex.): "In bankruptcy cases, while these elements should properly be considered in fixing the com- pensation of the attorney, the policy of the act should be steadily kept in view, that is, that it should be administered with severe economy (In re Goldville 85. In re Curtis, 4 A. B. R. 17, 100 Fed. 784 (C. C. A. Ills.); In re Mayer. 4 A. B. R. 239, 101 Fed. 695 (D. C. Wis.); In re Smith, 5 A. B. R. 559, 108 Fed. 39-(D. C. N. C); In re Mercantile Co., 2 A. B. R. 419, 95 Fed. 123 (D. C. Mo.), quoted ante, § 2011; In re Connell & Sons, 9 A. B. R. 474, 120 Fed. 846 (D. C. Pa.), quoted ante, § 2043; Page t'. Rogers, 17 A. B. R. 855, 149 Fed. 194 (C. C. A. Tenn.); In re Young, 16 A. B. R. 108, 142 Fed. 891 (D. C. N. Car.); In re Carolina Cooperage Co., 3 A. B. R. 154, 96 Fed. 950 (D. C. N. Car.).. See ante, § 2011, "Policy of Act, That of Strictest Economy in the Exptvse§ and Costs of Administration." 1272 REMINGTOX ON BANKRUPTCY. § 2049 Manufacturing Co., supra), so as to reduce to the lowest minimum the cost of administration." In re Byerly, 12 A. B. R. 186, 128 Fed. 637 (D. C. Penn.) : "It is the policy of the Bankrupt Act to administer the estates, which .are brought into court, as economically as possible, and no large fees are to be expected. Those directly allowed by the act are purposely kept down to the lowest possible limits and the courts have no right in fixing the compensation of counsel to be differently influenced. The attorney in the present instance has received $125 in fees and an additional $21.76 for serving notices and mileage, the oc- casion for which is not altogether manifest. I agree with the referee that this is all under the circumstances that he can ask." In re Little River Lumber Co., 3 A. B. R. 685, 101 Fed. 560 (D. C. Ark.): ■"In view of the whole spirit of the Bankrupt Law, counsel who are required to represent the trustee must expect only such remuneration as will actually compensate them for services rendered." Inferentially, In re Daniels, 12 A. B. R. 450, 130 Fed. 597 (D. C. Iowa) : "Much criticism was made of prior Bankruptcj^ Acts because of the large amount of fees and expenses incurred in the administration of the bankrupt estates. It was the manifest purpose of Congress that such criticism could not rightly be made of the present law, and it fixed the compensation of referees and other ofificers very low. They may be inadequate in some cases, but the court is powerless to increase them. By the amendment of February 5, 1903, it is expressly provided that the court shall not allow, under any form or guise whatever, any other or further compensation for services than that expressly authorized by the act." In re Covington, 13 A. B. R. 150, 132 Fed. 1884 (D. C. N. Car.): "Attorneys shall be allowed reasonable compensation for services rendered which were beneficial to the estate. Beyond that point this court has never gone, and will «ot go in the exercise of a sound judicial discretion." In re Oppenheimer, 17 A. B. R. 60 (D. C. Pa.): "Economy is strictly en- joined by the well known policy of the Bankruptcy Act, in the administra- tion of bankrupt estates, and there is no exception with regard to the com- pensation of counsel." § 2049. Items Properly to Be Grouped According to Separate Controversies Involved and Estimate Made as to Each Group. — In determining the reasonableness of an attorney's fee bill covering services . in several distinct controversies, it is convenient to group the items relat- ing to each controversy separately and to consider the five or six elements above mentioned with relation to. each group separately, rather than with relation to the entire estate. Thus, as to the element of the "amount in- volved :" in a bankruptcy case where the entire estate is, for example, '$10,000, there might exist a little controversy over a claim of merely $100. The element of "amount involved" would be comparatively small, merely $100, and the fees be correspondingly diminished, notwithstanding the "amount involved" in the estate as an entirety, is $10,000. If the bankrupt estate is free from difficult litigation or litigation involv- ing large amounts, the creditors should receive the benefit ; and the fees for services in small controversies arising in large estates shotild not be •increased "because of the size of the estate. ^ 2049 COSTS AND EXPENSES OF ADMINISTRATION. 1273 Again, in making allowances to petitioning creditors' and bankrupts' at- tcrneys out of the estate, the "amount involved" is not the entire esta^-e, where there are good and valid liens existing; but only the surplus. The adjudication is not undertaken for the benefit of the valid lienholders and does not affect them. It is for the benefit of general creditors; and the measure of the estate realized for unsecured creditors is, therefore, the measure of the "amount involved" for the purpose of determining the rea- sonableness of the fees for petitioning creditors' and bankrupts' attor- neys.^*^ Compare, inferentially, In re Goldville Mfg. Co., 10 A. B. R. 554, 123 Fed. 579 (D. C. S. Car.) : "I am of the opinion that the attorney for the petitioning cred- itors and the attorney for the bankrupt corporation cannot, in the circumstances, demand or receive an allowance out of the fund derived from the sale of the mort- gaged property. Nothing that has been done by the petitioning creditors in the proceedings in bankruptcy was intended for or has inured to the benefit of the lien creditors. They were foreclosing their mortgage in the state court, where they had a right to be and to remain. In discontinuing their proceedings in the state court, and in filing their petition for foreclosure in this court, they have been represented by their own attorneys, and the bankruptcy proceedings have been of no benefit to them. They make no claim upon the fund in the hands of the trustee for distribution among the unsecured creditors, and it seems to the court that the unsecured creditors and their attorneys have no claim upon their fund. Section 67d of the Bankrupt Act * * * declares that: ■■Liens given and accepted in good faith, etc., shall not be afifected by this act.' "Of course, all the costs of the court, and all expenses incurred in the care, preservation, and sale of the mortgaged property, are proper claims against the sum realized from the sale of it; but the fees here asked for cannot be con- sidered as in the nature of costs of court and expenses necessarily incident to the preservation of their fund. * * * "The claim of the attorney for the petitioning creditors rests upon what the court deems an erroneous view, that the service rendered is like that of filing a creditors' bill in chancery to marshal the assets of an insolvent estate, where assets which would otherwise have been lost are recovered, and the estate is administered for the benefit of all creditors who come in and share in the re- sults accomplished. In such cases courts of chancery properly considered the exacting nature of the work done, responsibility assumed and results accom- plished, and may deal out compensation with a liberal hand; but in this case the mere fact of the adjudication in bankruptcy has not enabled the secured creditors to reach a fund which might otherwise have been lost. It has not added to the value of the security that they had under their mortgage, or pro- vided them with any additional remedy. The most that can be said is that it has opened the door of this forum, where, by proceedings in rem, instituted by their own attorneys, they have secured a foreclosure of the lien which the Bankrupt Act declares 'shall not be afifected by it.' They were already pro- ceeding to foreclose their lien in another forum, where it is presumed they would have obtained equal results; and it would not seem consonant with any 86. Impliedly, In re Frick, 1 A. B. R. 719 (Ref. Ohio) : impliedly, Liddon v. Smith, 14 A. B. R. 204, 135 Fed. 43 (C. C. A. Fla.). Compare, inferentially, Frank v. Dickey, 15 A. B. R. 158, 139 Fed. 744 (C. C. A. Mo.). 1274 REMINGTON ON BANKRUPTCY. § 2051 principle of justice, after opening the door to them, and inviting them to come in, so that the whole estate might be administered, to tax them for the pay- ment of services not rendered at their request or for their benefit, and to de- plete the fund to which they are entitled under their lien, for the compensation of an attorney who has pertinaciously, but unsucessfully, endeavored to deprive them of it. The only fund brought into the court for administration by the bankruptcy proceedings, which otherwise would not be here, is the fund of about $2,800 for distribution among the unsecured creditors, and this fund must be administered in accordance with the spirit of the Bankrupt Law. "It is a part of the history of the country that one of the causes which led to the repeat of the Bankrupt Act of 1867 * * * was the great abuse, under the former law, whereby the estates of bankrupts were consumed by the minis- terial officers of the court in enormous costs and charges; and it was the clear intent of the present Bankrupt Law that they should be administered for the benefit of the creditors. This is manifest through all the provisions respecting fees and commissions. The compensation allowed to clerks, referees, and trus- tees is so meager that it is a matter of some surprise that the courts have been able to secure persons of any competency to administer the law. Under the former act legal services rendered to the bankrupt were not allowed as a claim entitled to priority, but under the present law such claims are allowed prior- ity in the discretion of the court; but that discretion should be exercised to carry out and effectuate the legislative will, and the courts can not honestly disregard the manifest policy of law, which looks to great economy of adminis- tration. If they enforce strict compliance with the statute on the part of ministerial officers with respect to such fees and allowances as are prescribed by law, they cannot refuse to be bound by its limitations in matters that are left to their discretion. That discretion must be in accordance with, and not in conflict with, the policy of the law." § 2050. "Retainer Fees," No Place in Bankruptcy. — "Retainer fees" have no place in the allowance of attorneys' fees out of bankrupt es- tates.^' "Contingent fees" are reprehensible.^^ § 2051. Mere Incidental Benefit from Services in Opposing Adju- dication, etc.. Not Sufficient.- — ]\Iere incidental benefit, such, for in- stance, as the causing of an amendment to the petition in a vital point by demurring thereto, is not to be a subject of coinpensation oitt of the es- tate, of attorneys resisting the petition. Frank v. Dickey, 15 A. B. R. 155, 158, 139 Fed. 744 (C. C. A. Mo.): "In liti- gation, counsel often receive valuable suggestions from opposing counsel, which, as in this case, were not intended, when given, to be helpful; and they do not because of such suggestions, feel bound to share their fees with such opposing counsel." 87. As to involuntary bankrupts, see In re ]\Iayer, 4 A. B. R. 241, 101 Fed. 694 (D. C. Wis.). But compare facts, In re Byerly, 12 A. B. R. 187, 128 Fed. 637 (D. C. Pa.). And compare, In re Smith, 5 A. B. R. 564, 108 Fed. 39 (D. C. N. Car.). 88, In re Young, 16 A. B. R. 108, 142 Fed. 891 (D. C. N. Car.). § 2053 COSTS AND EXPENSES OE ADMINISTRATION. 1275 Such, also, for instance, where, in a contest over the election of a trustee, claims are successfully disputed by a creditor. In re Worth, 13 A. B. R. 572, 130 Fed. 927 (D. C. Iowa): "In the matter of costs, tlie contest was wholly between creditors of the estate, and, while it is claimed in behalf of the objecting creditors that they were waging it in the in- terest of the estate, it clearly appears that it was in fact waged for the purpose of controlling the election of the trustee. No reason appears why the estate should bear the cost of such a contest." § 2052. Showing to Be Made of Propriety and Reasonableness. — Showing should be made affirmatively of the propriety and reasonable- ness of the allowance asked for.*^" And it is the duty of the court to scru- tinize the fee bills carefully, whether any party is appearing to object thereto or not. § 2053. Notice to Creditors Not Requisite, unless by Local Rule. — No notice is required to be given creditors of applications for allowance of attorney's fees out of bankrupt estates, unless by special rule of court. In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C. Iowa): "The question re- mains whether notice to the creditors was a prerequisite to this allowance by the referee. The section of the statutes (§ 64, par. b) as to the debts hav- ing priority of payinent does not expressly require notice to the creditors before costs of administration can be determined and allowed. In the section (§ 58, par. a) which states in what matters notice to creditors must be given, no requirement appears for such notice when costs of adminis- tration are to be settled and allowed; and my attention has not been directed to any other provision of the statute, nor of the general rules, making such notices obligatory to the settling of such costs. Is there any good reason other- wise requiring such notice? It is assumed that creditors whose claims are filed with the referee will inform themselves of the general proceedings in the estate sufficiently, at least, to advise them of its general status, and file their objections, and, if necessary, take the proper steps for review of whatever orders and proceedings they may wish reviewed. They are thus given abund- ant opportunity for guarding against improper allowances. If the referee shall deem it proper, whether because of the peculiarity of the claim for costs or expenses, or for any other reason by him deemed sufficient, I see no objection to his fixing a time for the hearing and notifying the creditors that at that time he will pass on the claim. But there occurs to me no good reason why the costs and expenses of administration must be passed upon by a. creditors' meeting, before he shall pass on the same. If at any time before the closing of the estate this court shall find that excessive attorney's fees have been allowed and paid, this court doubtless has the power to take whatever steps are found necessary to correct this improper allowance and payment. These attorneys are on the roll of this court and subject to any proper order this court may make. "I am of the opinion that notice to creditors is not required before the referee can settle proper attorney's fees." 87. Inferentially, In re Lewin, 4 A. B. R. 632, 103 Fed. 850 (D. C. Vt.) ; im- pliedly, In re Rosenthal & Lehman, 9 A. B. R. 626, 120 Fed. 848 (D. C. Mo.");' perhaps, In re Woodard, 2 A. B. R. 694, 95 Fed. 956 (D. C. N. Car.). 1276 REMINGTON ON BANKRUPTCY. § 2054 However, it is a wise check upon extravagant applications and allow- ances to require such notices to be given, and such is the local rule of court in some districts. ^^ § 2054. Trustee's and Receiver's Attorney's Fees. — Although not expressly provided for by the statute, as are attorney's fees for petitioning creditors and bankrupts, yet attorney's fees are allowable in proper cases as part of the trustee's expenses. ^^ In re Byerly, 12 A. B. R. 186, 128 Fed. 637 (D. C. Penn.) : "There is no direct provision in the Bankrupt Act for the payment of the fees of attorneys em- ployed by the trustee, but they come in as part of the administration of the estate like other necessary expenses." Page V. Rogers, 17 A. B. R. 854, 149 Fed. 194 (C. C. A. Tenn.) : "The reasonable fees of counsel employed by the trustee to recover a voidable or fiaudulent preference made by the bankrupt constitutes a part of the trustee's expenses, and as such a part of the costs and expenses of administration en- titled to preferential payment. * * * These counsel fees were therefore a part of the trustee's expenses and allowable under our mandate." Indeed, part of the usual and ordinary expenses of the receiver and trustee are attorney's fees. There are almost always legal questions aris- ing in the course of the administration that require the advice and action of an attorney; and attorney's fees are frequently quite as necessary a part of the expenses as are the w^ages of the watchmen, guarding the property from robbery and fire.^*^ In re McKenna, 15 A. B. R. 6, 137 Fed. 611 (D. C. N. Y.) : "It was his duty to look out for and protect the interests of the creditors, and in view of the fact that the bankrupt, with upwards of $20,000, which came to and vested in him the same day he filed his petition in bankruptcy, and before he was adjudi- cated a bankrupt, took the position that the creditors were entitled to no part of it, and that under the Bankrupt Act he was entitled to a discharge from all his debts, while retaining the whole legacy, the trustee would have been culpably remiss in the discharge of his duty, had he not employed counsel, and good counsel, in the matter, and it was his duty to have such counsel pres- ent at all the hearings before the surrogate and in both proceedings. In re Erie Lumber Co., 17 A. B. R. 702, 150 Fed. 817 (D. C. Ga.) : "This reasoning was adopted in In re Burke, 6 A. B. R. 502, where it is declared that 88. Instance, In re Young, 16 A. B. R. 109, 142 Fed. 891 (D. C. N. C). 89. In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C. Iowa); In re Rozinsky, 3 A. B. R. 830, 101 Fed. 229 (D. C. N. Y.) ; In re Hitchcock, 17 A. B. R. 664 (D. C. Hawaii); In re Mitchell, 1 A. B. R. 688 (Ref. Pa.); Davidson v. Friedman, 15 A. B. R. 490, 140 Fed. 853 (C. C. A. Tenn.); In re Burke, 6 A. B. R. 502 (Ref. Ohio); (1867) In re Noyses. 6 B. Reg. 277 Fed. Cas. 10,371. But, for a case holding that attorney's and stenographer's fees for conducting a general examination of the bankrupt and witnesses for the benefit of general creditors should not be permitted to absorb the fund at the expense of work- men and other priority claimants, see In re Rozinsky, 3 A. B. R. 830, 101 Fed. 229 (D. C. N. Y.). 90. In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C. Iowa): This decision is not to be accepted as authority on the question of bankrupt's attorney's fees. § 2054 COSTS AND EXPENSES OE ADMINISTRATION. 1277 'legal services are often quite as actual and necessary as are doors and locks and roofs.' " In re Abram, 4 A. B. R. 575, 103 Fed. 272 (D. C. Calif.): "The trustee of an estate in bankruptcy is entitled to the advice and assistance of coun- sel when necessary for the proper discharge of his duties as such trus- tee, and the reasonable expense incurred by him for such a purpose may be allowed as a charge against the estate; but the court will not, ordinarily, in the first instance, undertake to give any direction to the trustee in the matter of the employment of an attorney. The trustee must exercise a reasonable judgment in that matter; that is, he must exercise a reasonable judgment as to the necessity for securing the assistance of counsel — such judgment as a man of ordinary prudence would use in the transaction of his own business. When professional services have been rendered by an attorney to the trustee in his official capacity, the court will, in a proper proceeding, determine whether the employment of such an attorney was necessary, and, if found necessary, the reasonable value of his services." Likewise the receiver is entitled to employ counsel. ^^ In re Oppenheimer, 17 A. B. R. 59 (D. C. Pa.): "A receiver in bankruptcy is undoubtedly entitled to the assistance of counsel, the same as an executor or administrator, and upon the same grounds; and a reasonable allowance therefor will be made him in the settlement of his accounts. They come in, however as part, of the expenses of administering the estate and not other- wise; and there is no place for anything outside of this." The attorney for the trustee, but not an attorney for an assignee seeking allowance, it has been held in one case, is entitled to be heard in behalf of his fees. ^2 But the better rule undoubtedly is that he has no independent standing and must work out his rights through the trustee, like the other persons employed by the trustee. Undoubtedly, in cases where the trustee is in- solvent and not responsible in damages, any employee who has been ren- dering assistance to the trustee may be heard in his own behalf, but this is because of the trustee's individual lack of responsibility.^^ g^t in any event the attorney could hardly be permitted to prosecute appeal or error proceedings in his own name.^^ The receiver is responsible for his attor- ney's acts.^^ No necessity exists for the trustee to pay his attorney first and then to seek reimbursement. He should get an order first, however, before paying his attorney from the estate's funds.^*' 91. In re Erie Lumber Co., 17 A. B. R. 702, 150 Fed. 817 (D. C. Ga.). 92. In re Byerly, 12 A. B. R. 186, 128 Fed. 637 (D. C. Penn.). 93. To same effect. In re Young, 16 A. B. R. 108, 142 Fed. 891 (D. C. N. Car.). 94. But see Gray v. Mercantile Co., 14 A. B. R. 780, 138 Fed. 344 (C. C. A. N. Dak.), where, when the trustee did appeal from an order cutting down his expenses and commissions the circuit court held he was, because he was the representative of creditors, opposed to his own claims — an absurdity, to be sure. 95. Mason v. Wolkowich, 17 A. B. R. 712, 721, 150 Fed. 699 (C. C. A. Mass.). 96. In re McKenna, 15 A. B. R. 6, 137 Fed. 611 (D. C. N. Y.). 1278 REMINGTON ON BANKRUPTCY. § 2055 The receiver should engage only counsel that stand independent of the parties of the litigation. ^^ The trustee must exercise reasonable judgment in employing counsel. It has been held, that the court will not undertake to give any direction, but will pass upon the propriety of the employment and the reasonableness of the fee therefor, after the services have been rendered f^ but, this cannot be laid down as a hard and fast rule. Though the trustee should not, as a rule employ the bankrupt's attorney as his own attorney, yet after services have been rendered by the bankrupt's attorney for him, the attorney should not be refused compensation on that ground. ^^ § 2055. Not to Employ Attorney to Do Ordinary Business Duties of Trustee. — Trustees should not be allowed reimbursement .of attorney's fees for doing those things which an ordinary business man is supposed to know how to do. Sometimes, indeed, attorney's bills are presented that provoke the query : What is it that the trustee himself did in this case — was he a mere figurehead? Thus, no allowance of attorney's fees should usually be made for selling property — that is one of the very duties of a business man which the trus- tee, presumably, is elected by creditors to perform. In re Mercantile Co., 2 A. B. R. 419, 95 Fed. 123 (D. C. Mo.): "It is further claimed by these attorneys, as a basis of their compensation, that they induced several bidders to attend the sale of the property of the bankrupt, 'and the property yielded in cash the sum of $4,207.' Presumptively and naturally enough, interested creditors in the estate would either attend in person, or be represented at such sale, to see that the property be not sacrificed, as they are the especial beneficiaries in the product of the sale. No provision of the Bankrupt Act even squints at an allowance against the estate for such service. ^ ^ ^ "While the court personally would be pleased to exercise a spirit of large liberality both towards the attorneys and its officers assisting in the adminis- tration of bankrupt estates, it must be understood that the court is impressed with a sense of the obligation imposed upon it by the Bankrupt Act to so ad- minister it as to preserve both the letter and the spirit of the statute, and produce the best results in behalf of creditors. Any other course taken by the courts in administering this statute will inevitabl)^ as it has done in the past, invit-e additional legislation by Congress still further reducing the fees both of attorneys and of the officers of the court." Mason v. Wolkowich, 17 A. B. R. 712, 150 Fed. 699 (D. C. Mass.): "No necessity whatever appears for the employment of counsel. Upon the facts . shown the court would not have sanctioned any such employment, at least so far as the management of the sale was concerned. Employment of counsel to perform that part of the receiver's duties would certainly not have been ap- proved by the court, and to perform them was no part of the proper duties of counsel, however employed. A sale made as this was, by persons never authorized to make it, could not have been upheld if its validity had been disputed at the time." 97. In re Kelly Drv Goods Co., 4 A. B. R. 530, 102 Fed. 747 (D. C. Wis.). 98. In re Abram, 4 A. B. R. 575. 103 Fed. 272 (D. C. Calif.). 99. In re Dimm & Co., 17 A. B. R. 119 (D. C. Pa.). § 2057 COSTS AND EXPENSES OF .\DMINISTRATI0N. 1279 Frequently attorney's fees for procuring insurance are asked for. Of course, sometimes legal advice and legal opinions to the insurance com- panies may be necessary, but usually this is merely a business man's duty. 100 Compare, In re Byerl3% 12 A. B. R. 186, 128 Fed. 6.37 (D. C. Penn.) : "The estate was not a large one, the whole amount passing through the hands of the accountant in both his capacities not exceeding $550, exclusive of the bank- rupt's exemption; neither does it seem to have been seriously involved. It presented simply the ordinary case of a small commercial failure in which the services of counsel were only needed to a limited extent." It is not proper in this relation to apply the same rule applicable to ex- ecutors and administrators, nor even that applicable to assignees for the benefit of creditors. In the case of executors and administrators, and even cf assignees, there is no presumption of any special fitness on the part of the incumbent nor of his experience in business afifairs ; the will of the de- cedent or assignor, or the statutes of the state, throw the administration in many cases into the hands of inexperienced persons, frequently women totally unacc[uainted with business affairs, who must of necessity employ some one more experienced to perform even the ordinary business duties of the office. Therefore, it may not be improper to allow attorneys' fees for such services in the state courts. It is not so, however, in bankruptcy. The trustee is the choice of creditors and is presumed to have been elected because of his peculiar fitness to perform the duties of his office, and he certainly should be qualified to perform the ordinary business duties of the office. § 2056. Fees Allowable for Investigating and Resisting Improper Claims. — The trustee is entitled to reimbursement for attorneys' fees and expenses in investigating claims of creditors and resisting those he deems improper. I'^i § 2057. But Creditors Not So Entitled, even for Successful Objec- tions to Claims, before Election of Trustee. — But creditors are not en- titled to attorney's fees nor to reimbursement for stenographer's fees paid by them in successfully objecting to claims of other creditor^ previously to the election of a trustee.i"^ Inferentiall}^ In re ^Mercantile Co., 2 A. B. R. 419, 95 Fed. 123 (D. C. Mo.): "The court finds no warrant in any provision of the Act for compensating attorneys of petitioning crWitors for their service in attending meetings of the creditors, and resisting the allowance thereat of other claims against the estate. Thej^ are supposed in such .action to be subserving the interests of their client, whose dividend in the estate would be augmented in the proportion 100. Compare, In re ^Mercantile Co., 2 A. B. R. 419, 95 Fed. 123 (D. C. :Mo.^. 101. In re Lewensohn, 9 A. B. R. 368, 121 Fed. 1 (C. C. A. X. Y.). Obiter, In re Fletcher, 10 A. B. R. 398 (Ref. X. Y.). 102. In re Fletcher, 10 A. B. R. 398 (Ref. X. Y.). See post, § 2071. 1280 REMINGTON ON BANKRUPTCY. § 2059 of the disallowance of other claims. Each creditor of the estate is interested in seeing meritless claims defeated and preferential claims rejected. And one of the objects of creditors' meetings is to afford each creditor an opportunity to object before the referee to the allowance of questionable claims, and each creditor has the right to object and make contest. Is the court to allow a fee to the attorney of each objecting and contesting creditor, when the statute expressly provides that 'one reasonable attorney's fee for professional services actually rendered, irrespective of the number of attorneys employed,' may be allowed by the court." § 2058. No Fees for Preparation of Papers Where Supreme Court's Forms Adequate. — Trustees should not be allowed for attorneys' fees in doing these things for which the Supreme Court has already pro- vided forms, unless the circumstances are exceptional and the forms inad- equate. Thus, a trustee sometimes asks allowance for attorneys' fees for legal services in applying for the appointment of appraisers and drawing the journal entry for the same. All the trustee ought to do is to call upon the referee and mention his dej>ires and get the blank that is supplied on demand. So with trustee's reports, although, of course, sometimes trustee's reports require legal assistance in their preparation. Perhaps it is per- missible to allow for legal advice as to whether such forms exist and are - applicable. § 2059. Whether Trustee Allowed Attorney's Fees for Own Pro- fessional Services. — It has been held, that a trustee who is also an at- torney at law may not be allowed attorney's fees for his own legal services to the estate, even where such services are necessary. ^'^^ In re Halbert, 13 A. B. R. 399, 134 Fed. 236 (C. C. A. N. Y.) : "In support of the order sought to be reviewed, reference is made to two decisions: In re Mitchell, 1 Am. B. R. 687, and In re Welge (D. C), 1 Fed. 216. Both of these were under the Bankruptcy Act of 1867, which provides that: 'In addition to all expenses necessarily incurred by him in the execution of his trust in any case, the assignee shall be entitled to an allowance for his services in such case on all moneys received and paid out by him thus: [Giving various percent- ages].' It must be assumed that Congress was advised of the fact that, under the language above cited, there had been occasions when trustees in bankruptcy who happened to be lawyers were allowed compensation for legal services in addition to they commissions, contrary to the almost universal practice, which refuses such allowances in the case of executors or of trustees generally. Pre- sumably, it was to provide against such allowances being made under the Bank- rupt Act of July 1, 1898, that Congress, in section 48 of such Act, provided as follows: 'Trustees shall receive in full compensation for their services, payable after they are rendered [the various percentages therein stated].' This language is so precise, so unambiguous, and so explicit as to preclude the al- lowance of additional compensation upon any theory of a dual personality. "The order of the District Court is reversed, and the claim for extra services is disallowed." 103. In re Felson, 15 A. B. R. 185, 139 Fed. 281 (D. C. N. Y.) ; In re Mc- Kenna, 15 A. B. R. 4, 137 Fed. 611 (D. C. N. Y.); compare, In re Evans, 8 A. B. R. 730, 116 Fed. 909 (D. C. N. Car.); contra, In re Mitchell, 1 A. B. R. 687 (Ref. Pa., disapproved in In re Felson, 15 A. B. R. 185, 139 Fed. 281, D. C. N. Y.). § 2060 COSTS AND EXPENSES OE ADMINISTRATION. 1281 But this rule seems unnecessarily strict. There would seem no good rea- son for prohibiting such allowance altogether. Certainly, the trustee's in- timate acquaintance with the affairs of the estate would especially fit him to approach the legal questions involved with better appreciation than a stranger. Undoubtedly the services he has charged for should be scru- tinized with particular care to the end that he may not be obtaining extra compensation for the performance of the trustee's duties, under the guise of allowances for professional services, contrary to the prohibition of § 72 of the act. Yet careful scrutiny should not be converted into an absolute prohibition altogether under any and all circumstances. ^^^ § 2060. Attorneys for Creditors Co- Operating with Trustee's or Receiver's Attorney Not Entitled. — AVhere the trustee or receiver has an attorney, no compensation is allowable out of the estate to attorneys for creditors assisting him or co-operating with him, even though the serv- ices be valuable. In re Kelson, 15 A. B. R. 185, 139 Fed. 275 (D. C. N. Y.) : "Let the div- idends go to the creditors, and let the creditors pay their attorneys. It is not for the court or referee to undertake, by 'allowances', to see that the attorneys for creditors are taken care of. It is the duty of the court to take care of the creditors, and the duty of the creditors to take care of their attorneys, except in cases where allowances are directly authorized and permitted. The Bank- ruptcy Act of 1898 was framed and must be administered in the interest of creditors. This is a case where the transactions and conduct of the bankrupt justly aroused the indignation of the whole jewelry trade. The association took up the matter, and have pressed it honestly and sincerely in aid of the 104. No charge (it is held in one case) should be made against the estate for services rendered to the receiver by an attorney who represents any of the parties to the litigation, so long as he continues to occupy that relation: the receiver's attorney should stand independent. In re Kelly Dry Goods Co., 4 A. B. R. 530, 102 Fed. 747 (D. C. Wis.): "It is the well-recognized rule in equity that the receiver shall engage counsel who stands independent of the parties to the litigation (Beach, Rec, § 262), and the estate is not chargeable for services which may be given to the receiver by the attorney for either party during the continuance of such relation. So, in the case at bar, unless the service for which the charge was allowed was both necessary and independent in the sense of the rule referred to, it is not allow- able as an expense of the receivership. The purpose of the appointment of a receiver in bankruptcy is one of mere temporary custody, and the duties are generally of the utmost simplicity. If complications arise in which the parties before the court have opposing interests, he should not take counsel of either; and, if under any circumstances the attorney of either party is engaged by him, there must at least be complete severance of all service and duty to the litigant party. Otherwise, any service rendered must be deemed either gratuitous or in the interest of the original client. Here the attorneys for whom the charge is made appear both of record and in fact for the petitioning creditors before and after the receivership, are on the petition for adjudication of bankruptcy, on the application for a receiver, and subsequently appear for the creditors at the meetings held during the continuance and after the close of the receivership. Under such conditions, any service rendered must be referable to their engage- ment for their clients, and, if chargeable to the estate for any amount, are in that relation only and upon special order of the court. The objection to the allowance must therefore be sustained. So ordered." 2 Rem B-6 1282 REMINGTON ON BANKRUPTCY. § 2065 trustee; but this court cannot find, and indeed there has been no suggestion, that the trustee failed in his duty, so as to warrant allowances from the estate to 'creditors and associations who generously came to his aid because of the general desire and determination to vindicate the law." § 2061. Exhausting Entire Estate in Attorney's Fees in Efforts to Discover Assets. — The expense of general administration, including rea- sonable attorney's and stenographer's fees for conducting an examination, are chargeable against the estate even if they absorb funds that would have been sufficient at any rate, to pay priority claimants. The priority claimants are not like secured creditors, the owners of specific property holding de- feasible title, but are simply entitled to be paid first after the expenses nec- essary to a due administration of the estate have been taken care of, in- cluding such expenses as are proper in the discovery of assets. ^"^^ § 2062. Fee Bills, Properly, Should Be Itemized. — The attorney's fee bill must be itemized — each item of work done should be set forth in detail, with the date. § 2063. Petitioning Creditors' Attorney's Fees. — Petitioning* cred- itors in involuntary cases are entitled to an allowance out of the estate, of one reasonable attorney's fee for professional services actually ren- dered.ioe § 2064. Is Matter of Right. — Petitioning creditors are entitled to their reasonable attorney's fee as of right. ^^" In re Curtis, 4 A. B. R. 17, 100 Fed. 784 (C. C. A. Ills.): "The attorney for the petitioning creditors is entitled to this reasonable fee as of right. Its al- lowance or disallowance is not a matter of discretion." And the right is that of the petitioning creditors themselves and the attorneys have no independent standing but must seek their compensation through the petitioning creditors. ^^^ § 2065. Only One Fee, Irrespective of Number of Attorneys.— Only one fee may be allowed, irrespective of the number of attorneys em- ployed.i to aid needy defendants in criminal prosecutions has never been adopted by Congress, and it would seem anomalous to impose the burden of such defense of a bankrupt on the creditors. The opinion recently handed down in the Circuit Court of Appeals for this circuit (In re Curtis [4 Am. B. R. 17], 100 Fed. 784), is well in point, both for a general rule of construction to be applied to the act in reference to expenses and for its interpretation of the analogous allowance in the same connection of an attorney's fee to the petitioning creditors in involuntary cases. It is held to be limited strictly 'to the service rendered in procuring the adjudication.' On the construction indi- cated, the services rendered in preparing the schedules, and in attendance on the examination of the bankrupt before the referee pursuant to the order, are entitled to an allowance. All other claims are rejected, including that for 'retainer.' " But compare, contra, although the case is not closely reasoned upon this par- ticular point. In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.) : "I am not prepared to say, however, that services as counsel in aid of the bankrupt in litigations over his discharge are to be wholly excluded, when such aid has become necessary without the fault or misconduct of the bankrupt himself. Considering that all attorneys in this country are counselors also, and that the latter term is used in § 60, I should not be inclined to construe the words 'attorney's fee' in § 64 in the narrowest and strictest sense, so as to exclude necessarily such services by counsel as were reallj^ required. But, for obvious reasons, claims on this ground should be admitted only most sparingly and with great caution and they should be confined to services during the bank- ruptcy proceedings itself, excluding previous consultations or advice, as well as all unnecessary attendance as 'counsel' in the course of the proceedings." This case must have been a case of voluntary bankruptcy, bankrupt's attorney's fees in which are allowable "as the court may direct;" for certainly in involun- tary bankruptcies the words of the statute are plain enough that the allowance must be refined to services necessary to assist the bankrupt to perform his statutory duties — it being no part of his statutory duties to file his petition for discharge. It would seem to be undoubtedly improper to allow attorney's fees for filing or defending the petition for discharge in involuntary cases; for it is not one of the bankrupt's duties to file such petition nor to de- 8 2089 COSTS AND EXPENSES OF ADMINISTRATION. 1293 fend it. The law simply grants him the privilege of a discharge — it is not a "duty."i38 But, perhaps the bankrupt should be allowed for necessary attorney's fees while in attendance at the hearing upon his application for discharge, such attendance being one of his statutory duties. ^-^^ What services would be embraced within those rendered necessary by such required attendance does not seem to have been determined. It w^ould be strange, indeed, if creditors should have to pay for the bankrupt's attorney's services in de- fending the petition for discharge. • § 2088. No Allowance for Bankrupt's Admission in Writing of In- ability to Pay Debts, etc., nor for Services in Aid of Adjudication; nor in Contests over Exemptions. — No attorney's fees should be al- lowed for services pertaining to the bankrupt's admission in writing of his inability to pay debts ;^^*^ nor for services pertaining to the adjudication ;^^^ nor for services pertaining to the trustee's suits to set side conveyances made by the bankrupt, nor pertaining to negotiations for compromises thereof;^"*- nor for services pertaining to an order of sale of real estate; nor to questions of the bankrupt's ownership of personal property ;^'*3 nor for services rendered the bankrupt in a contest over his exemptions. In re Castleberry, 16 A. B. R. 430, 143 Fed. 1021 (D. C. Ga.) : "Legal services to a bankrupt in having his exemptions allowed is a matter between the bank- rupt and his attorneys." But services in the preparation of his schedule of exempted property are to be allowed for, for such preparation is one of the bankrupt's duties. ^^^ § 2089. Bankrupt's Fee Allowable More Discretionary in Volun-' tary than in Involuntary Cases. — The fee allowable to the bankrupt's attorney is more discretionary in voluntary cases tRan in involuntary cases. ^^^ In purely voluntary cases it may be allowed as the court may see fit.^^^ In re Burrus, 3 A. B. R. 296, 97 Fed. 926 (D. C. Va.) : "The only provision of the Bankruptcy Act regulating the amount to be allowed and paid out of the es- tate as an attorney's fee in cases of voluntary bankruptcy is found in § 64b, which 138. Contra, and that may be allowed for discharge petition. In re Strate- meyer, 14 A. B. R. 121 (D. C. Hawaii). But compare. In re Kross, 3 A. B. R. 187, 96 Fed. 819 (D. C. N. Y.). However, it is evident this was a vohmtary bankruptcy, not an involuntary one. 139. In re Mayer, 4 A. B. R. 238. 101 Fed. 695 (D. C. Wis.); In re Strate- meyer, 14 A. B. R. 121 (D. C. Hawaii). 140. In re Stratemeyer, 14 A. B. R. 120 (D. C. Hawaii). 141. In re Stratemeyer, 14 A. B. R. 120 (D. C. Hawaii). 142. In re Stratemeyer, 14 A. B. R. 120 (D. C. Hawaii). , 143. In re Stratemeyer, 14 A. B. R. 120 (D. C. Hawaii). 144. See ante, §§ 461, 477. 145. Contra, In re Beck, 1 A. B. R. 535, 92 Fed. 889 (D. C. Iowa); contra. In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C Iowa). 146. Bankr. Act, § 64 (b) (3); In re Smith, 5 A. B. R. 562, 108 Fed. 39 (D. C. N. Car.). 1294 ri;mington on bankruptcy. § 2090 provides for one 'reasonable fee,' irrespective of the number of attorneys employed. This section evidently intended to and does vest solely in the sound discretion of the court the amount to be allowed under the circumstances of each case." In re Morris, 11 A. B. R. 145, 125 Fed. 841 (D. C N. Car.): "This court has, by rule, fixed the maximum fee in voluntary proceedings, where there is no unforseen litigation or extraordinary services, at $50." § 2090. Test in Voluntary Cases, in General. — The test, in voluntary cases, in general is that the services be rendered in assisting the bankrupt to perform his statutory duties and, in addition, such other services may be allowed for as are beneficial to creditors, rendered before any receiver, trustee or marshal is in charge. Thus, in voluntary cases, the bankrupt should be allowed for legal services rendered to him while he is in the performance of his statutory duties, as in involuntary cases. In re Terrill, 4 A. B. R. 625, 103 Fed. 781 (D. C. Vt.) : "This is a voluntary case, and the law refers to what services are actually rendered by an attorney for the bankrupt, in assisting him about what the law requires him to do, such as preparing the petition and schedules." Attorney's fees are allowable for preparing the voluntary petition for adjudication and schedules and for attendance in procuring adjudication. i'*" And in addition thereto, he should be allowed for such other services as are beneficial to the estate, rendered before any receiver or trustee or other officer is placed in charge of the estate. In re Kross, 3 A. B. R. 190, 96 Fed. 819 (D. C. N. Y.) : "I have already stated the general nature of the services which I think are designed to be covered by the allowance. In voluntary cases they are such as are indispensable to enable the bank- rupt properly to bring his case into bankruptcy, surrender his estate and perform his duties for the benefit of creditors on the one hand, and to receive his discharge, if entitled to it, on the other. Section 64 speaks only of an attorney's fee; while § 60, subd. d, uses the word 'counselor' also. The services contemplated by both are doubtless for the most part those of an attorney only, as dis- tinguished from the services of 'counsel.' They include the preparation of the necessary legal papers, procuring the adjudication and reference, bringing the debtor before the referee for such subsequent proceedings as may be required, making in due time the application for discharge, attendance before the judge and referee, as may be needful, and throughout the proceedings keeping himself informed of their progress and giving such attention to the essential steps in the bankrupt's behalf as will secure to him a regular and valid discharge. These are the ordinary attorney's duties." Probably, though the cases are not in harmony on the point, the bank- rupt estate ought not to pay the expense, in a voluntary case, of the bank- rupt's getting his discharge, inasmuch as the estate is in no wise benefited thereby and as the bankrupt, at the time of applying for discharge, has presumably gathered enough of a new estate to enable him to defray the expense of procuring his discharge. ^^^ 147. In re Hitchcock, 17 A. B. R. 664 (D. C. Hawaii). Contra, In re Beck, 1 A. B. R. 535, 92 Fed. 889 (D. C. Iowa). 148. In re Averill, 1 N. B. N. 544 (Ref. Ohio, affirmed by D. C.) ; In re Brundin, 7 A. B. R. 296, 112 Fed. 306 (D. C. Minn.). But compare, contra. In re Kross, 3 A. B. R. 187, 96 Fed. 819 (D. C. X. Y.). § 2093 COSTS AND EXPENSES OF ADMINISTRATION. 1295 And services really rendered in the interests of a preferred creditor, especially those rendered after the bankrupt's death, should not be charged against the estate as part of the bankrupt's allowance for attorney's fees.1^9 § 2091. Preliminary Consultations May Be Charged for, in Vol- untary Cases. — Consultations in reference to the filing of the bankruptcy petition and the preparation of the schedules may be charged for, in vol- untary cases. 1^^ In re Kross, 3 A. B. R. 187, 96 Fed. 819 (D. C. N. Y.) : "In voluntary cases, the same schedules are required to accompany the petition, and ordinarily bankrupts are unable to prepare such papers properly, or to comply with the rules and orders pertaining thereto, except by the aid of a professional attorney. This clause of paragraph 3, therefore, indicates the general nature of the serv- ices for which a fee is designated to be allowed, viz., those professional services which presumably are necessary and indispensable to the bankrupt to enable him to perform the duties required of him by the act for the benefit of creditors on the one hand, or to secure his own correlative right to discharge on the other." § 2092. Application for Receiver or Other Provisional Remedy Allowed for. — Applications for the appointment of a receiver, or injiui- tion, and other legal steps necessary to be taken before a trustee is elected by creditors, in caring for the estate, may be allowed for.^^^ However, one case holds that the attorney's fees should not as a rule be allowed for mere consultations — that they are to be allowed for services as attorney rather than as counsel, although in some instances counsel fees might be allowed. ^^^ And another case holds it discretionary with the court in vohmtary cases to refuse to allow bankrupt's attorney's fees to be paid out of fraudulently conveyed property that has been recovered by the trustee. ^-^-^ § 2093. Only One Fee to Be Allowed. — Only one reasonable attor- ney's fee shall be allowed ;^-^^ even though it be in a partnership case and each partner have his own attorney. ^^-^ 149. In re Terrill, 4 A. B. R. 625, 103 Fed. 781 (D. C. Vt.). But compare, In re Beck, 1 A. B. R. 535, 92 Fed. 889 (D. C. Iowa), in which the court held the bankrupt, in voluntary, cases, to be entitled to attorney's fees only for pre- serving the estate before the appointment of trustee. 150. In re Averill, 1 N. B. News 544 (Ref. Ohio, affirmed by D. C.) ; contra, In re Beck, 1 A. B. R. 535, 92 Fed. 889 (D. C. Iowa); contra, In re Stotts, 1 A. B. R. 641, 93 Fed. 438 (D. C. Iowa). 151. In re Burrus, 3 A. B. R. 297, 97 Fed. 926 (D. C Va.). 152. In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.), quoted ante, § 2087. 153. In re O'Connell, 3 A. B. R. 422, 98 Fed. Rep. 83 (D. C. N. Y.). 154. Bankr. Act, § 64 (b). In re Eschwege & Cohn, 8 A. B. R. 282 (Ref. N. Y.). 155. Tn re Eschwege & Cohn, 8 A. B. R. 282 (Ref. N. Y.). 1296 REMIXGTOX OX BANKRUPTCY. § 2097 § 2094. Bankrupt Paying Attorney in Advance. — ^The bankrupt, both in voluntary and involuntary bankruptcies, may pay his attorney in advance of the filing of the bankruptcy petition, for services rendered or to be rendered in the proposed bankruptcy. ^^*^ § 2095. All Payments tor Attorney in Contemplation of Bank- ruptcy Governed by § 60 (d). — All payments made before bankruptcy to the attorney in contemplation of the ii>stitution of bankruptcy pro- ceedings are to be governed by the provisions of § 60 (d).^^^ § 2096. Whether Different Principles Govern from Those Where Allowed Out of Estate. — Whether the prepayment, or security, of at- torney's fees previous to bankruptcy is to be regulated by different prin- ciples from those governing the allowance of the bankrupt's attorney's fees out of the estate is not clear. Some cases seem to hold that they are not on the same basis and that such prepayments are governed by § 60 (d) and are not limited by § 64 (b) ;^^^ while others hold that both are virtually on the same basis. ^^^ • • In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.) : "The charges to be 'approved' are, I cannot doubt, for the same services which the 'fee' is de- signed to be allowed for under § 64 (b) par. 3." § 2097. Under § 60 (d) Must Be for Benefit of Estate or in Furtherance of Administration. — The kind of legal services to be per- formed for which an insolvent debtor contemplating bankruptcy proceed- ings may contract and make payment in money or by a transfer of prop- erty under the provisions of § 60. (d) are such services as are rendered in aid of the purpose sought to be accomplished by the act to conserve and benefit the estate of the bankrupt, and thus enure to the benefit of cred- itors, or are such legal services as are contemplated by the act in bringing the bankrupt estate before the court, its subsequent administration and distribution to creditors, and the like.^^^ 156. Impliedly, Bankr. Act, § 60 (d). Impliedly, Schedule B (4). 157. Impliedly, In re Habegger, 15 A. B. R. 198, 139 Fed. 623 (C. C. A. Minn.). , 158. Furth V. Stahl, 10 A. B. R. 442, 205 Pa. 439, rejected in In re Habegger, 15 A. B. R. 208, 139 Fed. 623 (C. C. A. Minn.); Pratt v. Bothe, 12 A. B. R. 529. 130 Fed. 670 (C. C. A. Mich.). 159. Obiter, In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.); In re Lewin, 4 A. B. R. 634, 103 Fed. 852 (D. C. Vt.). 160. In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.); In re Lewin, 4 A. B. R. 634, 103 Fed. 852 (D. C. Vt.). To same effect, compare, In re Smith, 5 A. B. R. 559, 108 Fed. 39 (D. C. N. Car.). To same effect, compare. In re Rosenthal & Lehman, 9 A. B. R. 626, 120 Fed. 848 (D. C. Mo.). To same effect, Pratt V. Bothe, 12 A. B. R. 535, 130 Fed. 670 (C. C. A. Mich.). Compare, In re Corbett, 5 A. B. R. 224, 104 Fed. 872 (D. C. Wis.), where it is inferable that payment after the filing of the petition but before adjudication, or rather before the court has obtained actual custody of the property used in the payment, might have been held v^lid if actually made. § 2097 COSTS AND EXPENSES OE ADMINISTRATION. 1297 In re Habeggfar, 15 A. B. R. 199, 139 Fed. 623 (C. C. A. Minn.) : "Such pay- ments or transfers to an attorney by one contemplating bankruptcy as tend to conserve the estate and bring it before the bankruptcy court for settlement, or other services required by the bankruptcy act to be performed by the bankrupt, are made valid as a preference under that section, to the extent they are found upon'examination to be reasonable and equitable; such claims being in principle entitled to equitable priority, as are claims for services performed or property furnished in the preservation and betterment of an estate controlled and ad- ministered bj^ a court of equity. * * * jf J^,-^ insolvent contemplating bank- ruptcy transfers his property, in payment of future legal services to be performed, not beneficial to his estate and which do not inure to the benefit of his creditors, why is such a transfer not a voidable preference or a fraudulent transfer under other provisions of the Act, to the same extent as are other transfers of his property without present consideration?" Thus, services rendered the bankrupt in opposition to the creditors' petition are not within § 60 (d). Whether the fee thus permitted to be prepaid to the bankrupt's attorney must relate only to services to be ren- dered while the debtor is in contemplation of bankruptcy or may also relate to services to be rendered after bankruptcy proceedings are com- menced, is not clear. Pratt T'. Bothe, 12 A. B. R. 535, 130 Fed. G70 (C. C. A. Mich., criticised In re Habegger, supra) : "We are of the opinion that § 60 (d) : relates to services to be renderd while the debtor is 'in contemplation of bank- ruptcy,' and not to services to be rendered after bankruptcy proceed- ings are commenced. * * * fhe language of the paragraph * * * includes services rendered not only by an attorney, but also those rendered by a 'solicitor in equity or a proctor in admiralty.' This generalization seems to indicate that the services contemplated were such as might be required in general litigation or in the course of the debtor's business, and one cannot help greatly doubting whether Congress had in mind the purpose to include those special services which an attorney would render to the bank- rupt while in the discharge of his duties, payment for which was provided by another section of the act. It would rather seem that Congress, engaged, as many signs indicate, in guarding the assets of those in ccrntemplation of bank- ruptcy, to the end that they might be brought without unnecessary expendi- ture to the hands of the trustee for distribution to creditors, while it would not deny to the debtor the right to employ and pay for legal assistance in his affairs during that critical period, yet proposed a restraint upon that privilege by requiring that such payment should be reasonable in amount — in short, proposed to apply to the incipient stage of bankruptcy the provident economy which it sought to apply to the administration of the bankrupt estate. It may have been thought that there was the same reason for such restraint at that stage of afifairs as subsequently. And it is to be observed that the transaction would not become the subject of revision unless bankruptcy ensued. It put attorneys, solicitors and proctors in no worse position than it did some classes of those having business with the debtor." Obiter, In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.) : "The charges to be 'approved' are, I cannot doubt, for the same services which the 'fee' is designed to be allowed for under § 64, subd. b, par. 3. Both paragraphs are to be construed together, so that it becomes immaterial in the result whether the attorney obtains his compensation in the first instance from the bankrupt 2 Rem B- 7 1298 REMINGTON ON BANKRUPTCY. § 2101 under § 64, subd. b, par 3. Both paragraphs are to be construed together, so that it becomes immaterial in the result whether the attorney obtains his com- pensation in the first instance from the bankrupt under § 60, refunding what, if anything, is disallowed by the court, or whether he waits for an allowance by the court under § 64. The latter is evidently the more convenient and de- sirable practice; and considering that prior payment for an attorney's services to the bankrupt is expressly allowed by § 60, I cannot agree to any such con- struction of the act as would deprive the attorney of a proper compensation for a necessary service, merely because he did not take it out of the estate at his own estimate in advance." Approved in In re Habegger, supra; disap- proved in Pratt v. Bothe, supra. § 2098. Prepaid Fee, to Be "Reasonable" and Subject to Re- Examination. — The fee thus prepaid to the bankrupt's attorney must be reasonable in amount, and the prepayment is subject to re-examination and disapproval by the court.^^^ '§ 2099. Summary Jurisdiction over Attorney to Require Repay- ment of Excess. — The court has jurisdiction over the attorney to require repayment by him. Such jurisdiction may be exercised in the bank- ruptcy proceedings themselves ; and its exercise is not violative of the rules regarding the forum for suits against adverse claimants ; more- over, it is provided for by a special clause of the Bankrupt Act itself.^^^ Such re-examination should be had, however, only on due notice to the attorney concerned. ^^^ § 2100. Prepayment before Filing Petition, or at Any Time be- fore Adjudication.^ — The bankrupt may make such payment before the filing of the petition; or, at any time before adjudication, unless the bank- rupt's property be sequestrated by a receiver or marshal, or he be pro- hibited by an injunction from interfering with it.^^^ § 2101. Prepayment Effected by Giving Security. — The bankrupt may give security uJDon his property for his attorney's fees instead of mak- ing actual prepayment in cash.i*'^ 161. In re Lewin, 4 A. B. R. 634, 103 Fed. 852 (D. C. Vt.); In re Morris, 11 A. B. R. 145, 125 Fed. 841 (D. C. N. Car.); obiter. In re Kross, 3 A. B. R. 187, 96 Fed. 816 (D. C. N. Y.) ; Pratt v. Bothe, 12 A. B. R. 535, 130 Fed. 670 (C. C. A. Mich.). Where the bankrupt and his attorney have scheduled the unpaid fee of the attorney as an unsecured claim and have failed to schedule it amongst priority claims, it will be denied priority. In re Morris, 11 A. B. R. 145, 125 Fed. 841 (D. C. N. Car.). But this decision is not to be regarded as sound. Either the fee was proper or it was not: the mistake of the parties ought not to be ir- remediable. 162. In re Lewin, 4 A. B. R. 634, 103 Fed. 852 (D. C. Vt.). 163. Impliedly, In re Lewin, 4 A. B. R. 624, 103 Fed. 852 (D. C. Vt.). 164. Inferentially, In re Corbett, 5 A. B. R. 224, 104 Fed. 872 (D. C. Wis.): In tliis case the transfer was held not to have passed the title to the attorney because there was no change of possession. The property was not taken into possession by the attorney until after adjudication. The court summarily or- dered return. 165. Inferentially, In re Corbett, 5 A. B. R. 224, 104 Fed. 872 (D. C. Wis.). § 2103 COSTS AND EXPENSES OE ADMINISTRATION. 1299 SUBDIVISION "d." Compensation of Referee, Trustee and Receiver. § 2102. Referee's Compensation. — The referee receives out of the estate, 1st, twenty-five cents for each claim filed for allowance, and, 2nd, one per cent, commission on all disbursements made by the trustee to creditors,* if the estate is administered before the referee, or one half of .one per cent, on the amount to be paid to creditors, if a composition is effected. i^^*^ § 2103. Referee's Commissions Computed on Disbursements to "Creditors." — The commissions of the referee are to be computed only on moneys disbursed to creditors. i*^~ In re Iowa Falls Mfg. Co., 15 A. B. R. 384, 140 Fed. 527 (D. C. Iowa): "The proceeds of the mortgaged property arising from the sale thereof by the sheriff should be excluded from the amount upon which the referee may compute his commissions, and the amount actually disbursed by the trustee to creditors will form the basis of such computation." In re Abbey Press, 13 A. B. R. 15, 134 Fed. 51 (C. C. A. N. Y.) : "The referee's commission is upon the amount paid creditors, not necessarily upon the amount collected, which might be largel}^ disbursed in making the collection." According to the strict words of the statute, commissions of the referee are not to be computed on the gross amount received by the trustee, nor on all the money paid out by him, but only upon the amounts disbursed by him to creditors, although there seems no reason for making a different rule for the referee from that governing the trustee, whose commissions are computed on the gross disbursements, whether made to creditors or others. There is some force in the contention, moreover, that the word 166. Bankr. Act, § 40 (a) : "Referees shall receive as full compensation for their services, payable after they are rendered, a fee of fifteen dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and twenty-five cents for every proof of claim filed for allowance, to be paid from the estate, if any, as a part of the cost of administration, and from estates which have been, administered before them one per centum commissions on all moneys disbursed to creditors by the trustee, or one-half of one per centum on the amount to be paid to cred- itors upon the confirmation of a composition." 167. Commissions Only on "Dividends" before Amendment of 1903. — Before the Amendment of 1903, his commissions were computed onlj^ on "dividends" paid to creditors. In re Utt, 5 A. B. R. 383. 105 Fed. 754 (C. C. A. Ills.); In re Hinckel Brewing Co., 10 A. B. R. 692, 124 Fed. 702 (D. C. N. Y.); In re Gold- ville Mfg. Co., 10 A. B. R. 552, 123 Fed. 579 (D. C. S. C.) ; In re Mammoth Pine Lumber Co., 8 A. B. R. 651, 116 Fed. 731 (D. C. Ark.); In re Ft. Wayne Elec- tric Corp., 1 A. B. R. 707, 94 Fed. 109 (D. C. Ind.); In re Fielding, 3 A. B. R. 135, 96 Fed. 800 (D. C. Mo.); In re Barber, 3 A. B. R. 306, 97 Fed. 547 (D. C. Minn.); In re Mulhauser Co., 9 A. B. R. 80 (Ref. Ohio); In re Sabine, 1 A. B. R. 322 (Ref. N. Y.); In re Coffin, 2 A. B. R. 344 (Ref. Tex.); In re Gerson, 2 A. B. R. 352 (Ref. Pa.). Compare, In re Gardner, 4 A. B. R. 420 (Ref. Va.); compare, In re Anders Push Button Tel. Co., 13 A. B. R. 643, 136 Fed. 995 (D. C. N. Y.). 1300 REMINGTON ON BANKRUPTCY. § 2106 •'creditors," as used in § 40, is the correlative of "debts," as used in § 64 (b), referring to costs of administration as "debts" of the estate. ^^^ Since the amendment of 1903 to §§ 40 and 48, a referee is entitled to commissions on all sums, which, but for outside agreement, would be paid through the trustee. ^'^^ * § 2104. Thus, Commissions on Disbursements to Priority and Secured Creditors. — Thus, commissions are to be computed on taxes, en the priority wages of workmen, clerks and servants, and in short upon all amounts paid to all kinds of creditors, ^■^'^* including secured creditors. ^'''^ ♦ § 2105. Property Sold Free of Liens When Lienholder Pur- chaser. — The referee is entitled to commissions upon the full amount of the purchase price disbursed to creditors, even when a lienholding creditor is the purchaser and applies his lien on the purchase price, such method being considered a "disbursement" to a "creditor" notwithstanding the actual money does not pass through the trustee's hands. ^'^^ § 2106. In Composition Cases Referee to Receive One-Half of One per Cent.-^In cases of composition, where the estate is taken away from the trustee and given back to the bankrupt on his paying an agreed 168. Compare, Gray v. Mercantile Co., 14 A. B. R. 784, 138 Fed. 344 (C. C. A. N. Dak.): "Counsel have proceeded on the assumption that a claim which represents expenses or costs of adhiinistration is a 'debt or claim' within the meaning of the provision before quoted granting and restricting the right of appeal. The assumption appears to be sustained by the Bankruptcy Act, nota- bly by § 64b; but, if it were not, that would be another reason why there would be no right of appeal from the allowance or rejection of any of the claims other than that of Carroll, which is not of that character." Compare, inferentially. In re Curtis, 4 A. B. R. 17, 100 Fed. 784 (C. C. A. Ills.). 169. In re Sanford Furn. Mfg. Co., 11 A. B. R. 414, 126 Fed. 888 (D. C. N. Car.). But see Anders Push Button Tel. Co., 13 A. B. R. 643, 136 Fed. 995 (D. C. N. Y.). And see. In re Iowa Falls M'f'g Co., 15 A. B. R. 384, 140 Fed. 527 (D. C. Iowa). "Disbursements." — As to meaning of word "disbursements," see In re Cam- bridge, 14 A. B. R. 168, 136 Fed. 983 (D. C. Mass.). 170. In re Cramond, 17 A. B. R. 30 (D. C. N. Y.); In re Coffin, 2 A. B. R. 344 (Ref. Tex.); In re Gerson, 2 A. B. R. 352 (Ref. N. Y.); In re Force, 4 A. B. R. 114, 118 (Ref. Mass.); obiter, In re Allison Lumber Co., 14 A. B. R. 78, 137 Fed. 643 (D. C. Ga.); contra, In re Anders Push Button Telephone Co., 13 A. B. R. 643, 136 Fed. 995 (D. C. N. Y.). 171. In re Cramond, 17 A. B. R. 22 (D. C. N. Y.) : Mechanics and material- men holding liens. Obiter, In re Erie Lumber Co., 17 A. B. R. 701, 150 Fed. 817 (D. C. Ga.). However, it must not be forgotten, in cases of sales of property free from encumbrances that each fund is to bear its own burden of the costs, its own burden of the commissions and expenses; and that the commissions on the amounts paid to secured -creditors, as such, are to come out of the particular fund on which the security is held. 172. In re Sanford Furn. Mfg. Co., 11 A. B. R. 414, 126 Fed. 888 (D. C. N. C). But see In re Anders Push Button Telephone Co., 13 A. B. R. 643, 136 Fed. 995 (D. C. N. Y.); and see, In re Iowa Falls Mfg. Co., 15 A. B. R. 384, 140 Fed. 527 (D. C. Iowa). § 2109 COSTS AND EXPENSES OE ADMINISTRATION. 1301 compensation therefor, the referee and the trustee alike each receive merely one-half of one per cent, commission. ^"^ § 2107. "Twenty- Five Cents for Each Claim Filed," Part of "Compensation." — The 25 cents for each claim filed is part of the ref- eree's compensation and is not to be considered as having been added by the amendment of 1903 by way of reimbursement of expenses. Referees are entitled further to reimbursement of their expenses. The 25 cents for each claim filed is to be paid out of the estate, if there be any estate, as part of the cost of administration. Owing to the ambiguity of the amend- ment to the statute in this regard, it is not certain whether there can be any charge of 25 cents for each claim filed where there is no estate. It would seem that where there is no estate, there could be no such compen- sation any more than there could be commissions. § 2108. Trustee's Compensation. — The trustee receives out of the estate a commission not to exceed six per cent, on the first five hundred dollars disbursed by him ; of four per cent, on the next thousand dollars ; two per cent, on the amounts thereafter up to ten thousand dollars, and one per cent, on the balance above ten thousand dollars ; but if a compo- sition be made and confirmed, he receives merely one-half of one per cent, on amounts paid to creditors. The trustee also receives a fee of 50 cents out of the estate for the filing of a certificate with the county recorder v/here the bankrupt owns real estate not exempt. ^"^ § 2109. Commissions Computed on Disbursements for Expenses and to Creditors. — These commissions are figured upon all amounts 173. Bankr. Act, § 40 (a). 174. Bankr. Act, § 48 (a) : "Trustees shall receive for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a vokintary bankrupt, and from estates which they have administered such com- missions on all moneys disbursed by them as may be allowed by the courts, not to exceed six per centum the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than fifteen hundred dol- lars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars. And in case of the confirmation of a composition after the trustee has qualified the court may allow him, as compensation, not to exceed one-half of one per centum of the amount to be paid the creditors on such composition." (b) "In the event of an estate. beings administered by three trustees instead of one trustee or by successive trustees, the court shall apportion the fees and commissions between them according to the services actually rendered, so that there shall not be paid to trustees for the administering of any estate a greater amount than one trustee would be entitled to." Bankr. Act, § 47 (c) : "The trustee shall, within thirty days after the adjudica- tion, file a certified copy of the decree of adjudication in the office where con- veyances of real estate are recorded in every county where the bankrupt owns real estate not exempt from execution, and pay the fee for such filing, and he shall receive a compensation of fifty cents for each copy so filed, which, together with the filing fee, shall be paid out of the estate of the bankrupt as a part of the cost and disbursements of the proceedings." 1302 REMINGTON ON BANKRUPTCY. f^ 2112 disbursed by the trustee, whether to unsecured, priority or secured cred- itors, or in payment of expenses. ^'^^ In re Cramond, 17 A. B. R. 29 (D. C. N. Y.) : "The language covers, and evidently was intended to include, all monej-^s lawfully disbursed by the trustee, and held by him as such, whether to creditors, secured or unsecured or having priority, or to other persons. If to creditors it is immaterial whether the amounts lawfully paid them from the funds in court are paid as dividends or in satisfaction of a lien or liens on the fund. By section 1 of the Act 'cred- itor shall include anyone who owns a demand or claim provable in bankruptcy.' Secured claims are provable in bankruptcy, although allowable only to a certain amount." § 2110. Except That in Composition Cases Computed Only on Disbursements to Creditors. — But in composition cases, the trustee is entitled to commissions only on disbursements to creditors, and then only at the rate of one-half of one per cent, and only in case he shall have quahfied as trustee before confirmation of the composition. ^"^ § 2111. Whether "Disbursement" Includes Proceeds of Property and Trust Funds Surrendered to Adverse Claimants, and Exempt Property Sold by Trustee. — Perhaps "disbursement" may include the proceeds of the sale of property surrendered to adverse claimants in lieu of the specific property itself and triist funds traced into the trustee's hands and surrendered.^"''' And perhaps the trustee is entitled to commissions on the amount set off to the bankrupt in lieu of exemptions, where the exempt property has been sold by consent, ^'^^ although it is very doubtful. § 2112. Entitled Even' Where Outside Agreement to "Credit" Exists and Actual Money Does Not Pass. — And the trustee, sim- ilarly to the referee [ante, § 2105], is entitled to commissions upon all amounts that would be disbursed by him but for outside agreement between the parties, as, for instance, where a lienholder buys in the prop- erty and applies his debt on the purchase price, etc.^'^ 175. Obiter, In re Erie Lumber Co., 17 A. B. R. 701, 150 Fed. 817 (D. C. Ga.). 176. Bankr. Act. § 48 (a). 177. Inferentially, In re Cambridge, 14 A. B. R. 168, 136 Fed. 983 (D. C. Mass.). 178. Inferentially. In re Castleberry, 16 A. B. R. 431, 133 Fed. 821 (D. C. Ga.). 179. In re Sanford Furn. Mfg. Co., 11 A. B. R. 414, 126 Fed. 888 (D. C. N. C). Compare, contra, before .Amendment of 1903, In re Kaiser, 8 A. B. R. 108 (D. C. Mont.), where the rule is laid down that he is not entitled to commissions unless it actually does pass through his hands. This case, however, was de- cided before the amendment of 1903. In this instance a great hardship was suffered by the trustee. He had at the instance of creditors instituted su^t against third parties for the recovery of certain assets. The creditors then sold out their claims to a third party and the case was dismissed. The purchase price was probably the result of the trustee's suit and it seems highly unfair that the trustee should be deprived of his commissions through this outside settle- ment. Apparently contra, and that he is not entitled to require a secured creditor § 2115 COSTS AND EXPENSES OF ADMINISTRATION. 1303 § 2113. No Absolute Right to Full Commissions: Less May Be Allowed or All Allowance Withheld. — The trustee has not the absohite right to the full commission : the court may allow him less. Tlie only limi- tation prescribed by the statute is a maximum limit : the court shall not allow him more then six per cent, on the first five hundred dollars, nor more than four per cent, on the next thousand, etc. The court may, in its discretion, witbhold all compensation from any trustee who has been removed for cause. ^^"^ By this provision of clause (c) it should not be inferred that the court may not withhold all compensation to the trustee for other causes than bis removal. It is not a place for the application of the rule "Inclusio unius, exclusio alterius." Circumstances may be such as to warrant re- fusal of compensation altogether, even though the trustee be not removed. The discretion not to grant the maximum compensation is the discretion to refuse compensation altogether, for cause. § 2114. Apportionment, Where Three Trustees or Successive Trustees. — In the event of any estate being administered by three trustees instead of one trustee, or by successive trustees, the court will apportion the fees and commissions between them according to the services actually rendered, so that there shall not be paid to trustees for the administering of any estate a greater amount than one trustee would be entitled to.^^^, § 2115. Extra Compensation for Conducting Business. ^ — Trustees and receivers are entitled to extra compensation for continuing the business of the bankrupt. ^^- Before the amendment of 1903 a great injustice was done to trustees who were required to continue the business. It was repeatedly held, and entirely in accordance with the law, that no extra compensation could be allowed for such additional services. ^'^•''' The framers of the Amendatory Act of 1903, although in a somewhat ineffective way, endeavored to remedy this defect. They provided by amendment to clause 5 of § 2 that courts of bankruptcy should have power whose lien was created more than four months prior to bankruptcy and has been satisfied in full, to pay such commissions on the amount received by him, In re Anders Push Button Telephone Co., 13 A. B. R. 643, 136 Fed. 995 (D. C. N. Y.). With regard to this case of In re Anders, two things are to be ob- served, first, that the secured creditor had already been paid his claim in full and this was an effort to make him pay commissions afterwards. While this fact would not alter the principles involved yet it would nevertheless tend to confuse the issue, and, second, that it appears there was enough in the fund thus covered by the lien to pay the costs, without touching the lien. Manifestly, the costs should first be paid, then the liens in full, in the order of priority. 180. Bankr. Act, § 48 (c). 181. Bankr. Act, § 48 (b). 182. Bankr. Act, § 2 (5). 183. In re Epstein, 6 A. B. R. 191, 109 Fed. 878 (D. C. Ark.). Contra, In re Plummer, 3 A. B. R. 320 (Ref. N. Y.), criticised and disapproved in In re Ep- stein, 6 A. B. R. 191, 109 Fed. 878 (D. C. Ark.). 1304 REMINGTON ON BANKRUPTCY. § 2116 to "authorize the business of bankrupts to be conducted for limited periods by receivers, the marshal or trustees, if necessary in the best interests of the estate, arid allow such officers additional compensation for such services, but not at a greater rate than in this Act is allowed trustees for similar services. "^^"* § 2116. But Not to Exceed Rate for Trustee's Ordinary Services. — The statutory words "for similar services" is ambiguous and indefinite. There are no "similar services" for which compensation is prescribed by the act. The additional compensation allowed for continuing the bankrupt's busi- ness doubtless must not exceed the same rate allowed trustees as com- missions for performing their other usual duties. This would seem to be a rational construction of the words of this well-meant amendment, al- though the broad construction is also possible that the whole matter of compensation for continuing the business, both in cases of receivers and also of trustees, is entirely without limitation as» to amount and is in the discretion of the court. ^^^ It has been held though the construction seems unnecessarily narrow, that the provision for additional compensation does not authorize double commissions, nor any additional commissions to those prescribed in § 48 (a) : that the "additional compensation" for conducting the business as a going concern is realized by the allowance of commissions on disburse- ments and expenses in the conducting of the business as well as on other disbursements. ^^^ Obiter, In re Kirkpatrick, Rec'r., 17 A. B. R. 597, 148 Fed. 811 (C. C. A. Mich.) : "It is urged by counsel for the creditors that unless the amendment to clause 5 of § 2 is construed to limit the compensation which can be allowed to receivers and marshals, it has no effect whatsoever. We do not say that it does not limit the compensation to those officers for services mentioned in clause 5 of § 2, because that was done by the new section (72) added by the Act of February 5, 1903. The Bankrupt Act while providing that compensation for the other services, provided, not that the trustee should have therefor the rate of percentage mentioned, but only' not to exceed that. If, therefore, in a given case, the court should allow for the trustee's other services a less rate than the maximum prescribed for them, it could under this amendment allow a further sum for these special services so as to make the entire compensation for all services come up to the maximum. The purpose to keep down the com- pensation of the trustee to the maximum prescribed is emphasized by the language of subsec. 72, which is: 'That neither the referee nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or 184. In re Dimm & Co., 17 A. B. R. 119 (D. C. Pa.): Daily auction sales held to be within the amendment. Obiter, In re Kirkpatrick, 17 A. B. R. 594, 148 Fed. 811 (C. C. A. Mich.). • 185. Compare, In re Cambridge, 14 A. B. R. 198, 136 Fed. 983 (D. C. Mass.); ■compare, as to receiver's compensation, In re Richards, 11 A. B. R. 581, 127 Fed. 772 (D. C. Mass.). Also, In re Sully, 13 A. B. R. 22, 133 Fed. 997 (D. C. N. Y.). 186. In re Hart & Co., 17 A. B. R. 480 (D. .C. Hawaii). § 2117 COSTS AND EXPENSES OE ADMINISTRATION. 1305 further compensation for their services than that expressly authorized and prescribed in this Act.' As is seen, this relates to referees and trustee. It is not improbable that Congress intended that the provisions made for continu- ing the business of the bankrupt should not be allowed to enlarge the maximum prescribed as the compensation of the trustee, and have considered that the trustee should find in the enhancement of the assets a larger basis on which to compute his compensation, and have further considered that it was desir- able not to encourage the continuance of the business unless the prospect was such as to make it probable that there would be an increase of assets which would sufficiently reward the trustee for his trouble." § 2117. No Additional Compensation Allowable "in Any Form or Guise." — The statute provides that neither the referee nor the trustee shall, in any form or guise, receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized s.nd prescribed in the act.^^' In re Halbert, 13 A. B. R. 399, 134 Fed. 236 (C. C. A. N. Y.) : "This language is so precise, so unambiguous and so explicit as to preclude the allowance of additional compensation upon any theory of a dual personality." And a contract to give extra compensation is void on the ground of public policy. DeVries v. Orem, 17 A. B. R. 879, 65 Atl. 430 (Md. Ct. App.) : "So it appears from a review of the acts of Congress on this subject, and from the authorities construing them, that it would manifestly be in violation of the spirit and intent, as well as the plain language of the acts, to allow extra compensation 187. See ante. § 2011; "Policy of Act That of Strictest Economy in Expenses and Costs of Administration." Bankr. Act, § 72: "That neither the referee nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further comperi- sation for their services than that expressly authorized and prescribed in this act." DeVries v. Orem, 17 A. B. R. 876, 65 Atl. 430 (Md. Ct. App.); In re Screws, 17 A. B. R. 269, 147 Fed. 989 (D. C. Ga.) ; In re Epstein, 6 A. B. R.. 191, 10^ Fed. 878 (D. C. Ark.). In re Pierce, 6 A. B. R. 747, 111 Fed. 516 (D. C. Colo.): Referee allowed him- self per diems for taking testimony, also fees for subpoenas, orders, etc.: Court disapproved. In re Carolina Cooperage Co., 3 A. B. R. 154, 96 Fed. 950 (D. C. N. C.) ; In re Troth, 4 A. B. R. 780 (D. C. Ohio); In re Kaiser, 8 A. B. R. 108, 112 Fed. 955 § 2181. But Perhaps for More if Priority Claimed Not under '§ 64 (b) (4) but under § 64 (b) (5). — But perhaps more may be allowed, if the state statute so provides, where the claim is made under § 64 (b) (5) ;^'^ at any rate, where the claimant is not strictly a "work- man," "clerk," nor "servant" within the classification of the Bankrupt Act. § 2182. Reducing Claim to Judgment, Not Such Merger as to Lose Priority. — The claims of a workman, clerk, or servant reduced to judgment is not so far merged in the judgment as to lose the priority originally attached thereto.^^ § 2183. Nor Is Priority Lost by Assignment of Claim. — Work- men's, clerks' and servants" claims, assigned to a third party after the filing of the bankruptcy petition, do not lose their priority, and the as- signee has the same priority the workmen, clerks and servants them- selves would have had.^^ ^ 80. In re Lawler, 6 A. B. R. 184, 110 Fed. 135 (D. C. Vt.). 81. In re Anson, 4 A. B. R. 231, 101 Fed. 698 (D. C. Calif.); compare, In re McBryde, 3 A. B. R. 729, 99 Fed. 686 (D. C. X. Car.); compare. In re Johnson, footnote to 4 A. B. R. 231 (D. C. Calif.). 82. A fortiori (even where assigned before the filing), Shropshire, Woodlifif & Co. V. Bush, 17 A. B. R. 79, 204 U. S. 186; In re Campbell, 4 A. B. R. 535, 102 Fed. 686 (D. C. Wis.); [1867] In re Brown, 4 Ben. 142, Fed. Cases No. 1,974; obiter. In re North Carolina Car Co., 11 A. B. R. 488, 127 Fed. 178 (D. C. • N. Car.). § 2183 DISTRIBUTION TO CREDITORS. 1343 A fortiori (even where assigned before the filing), In re Harman, 11 A. B. R. 64, 128 Fed. 170 (D. C. W. Va.) : "I am of opinion that the Bankruptcy Act was intended by Congress to prefer claims for labor performed within three months prior to the filing of the petition regardless of the fact that they may have been assigned. And I think this is indicated by the use of the word 'claimant' instead of 'workman' in § 64." Nor is priority lost even if the wages claims be assigned before the filing of the petition.^-" Shropshire, Woodliff & Co. v. Bush, 17 A. B. R. 79, 204 U. S. 186: "The pre- cise inquiry is whether the right of prior payment thus conferred is attached to the person or to the claim of the wage earner; if to the person, it is avail- able only to him^ if to the claim it passes with the transfer to the assignee. In support of the proposition that the right is personal to the wage earner, and enforceable only by him, it is argued that it is not wages earned within the prescribed time which are given priority, but wages 'du^ to workmen, clerks or servants;' that where the claim is assigned to another it is no longer 'due to workmen, clerks or servants,' but to the assignee, and therefore when pre- sented by him lacks one of the characteristics which the law makes essential to priority. In this argument it is assumed that the wages must be 'due' to the earner at the time of the presentment of the claim for proof, or at least at the time of the commencement of the proceedings in bankruptcy. Without that assumption the argument fails to support the conclusion. But the statute lends no countenance to this assumption. It nowhere expressly or by fair implication says that the wages must be due to the earner at the time of the presentment of the claim, or of the beginning of the proceedings, and we find no warrant for supplying such a restriction. Regarding, then, the plain words of the statute, and no more, they seem to be- merely descriptive of the nature of the debt to which priority is given. When one has incurred a debt for wages due to workmen, clerks or servants that debt, within the limits of time and amount prescribed by the Act, is entitled to priority of payment. The priority is attached to the debt and not to the person of the creditor; to the claim and not to the claimant. The Act does not enumerate classes of creditors and confer upon them the privilege of priority in payment, but, on the other hand, enumerates classes of debts as 'the debts to have priority.' " Contra, In re Westlund, 3 A. B. R. 646, 99 Fed. 399 (D. C. Minn.): "Th^s language requires that a debt for wages, to have priority, must be due to the wage earner. If the claimant entitled to priority might be an assignee, there would be no reason why such claimant should be restricted to $300, as he might be the owner of many small claims, each less than that amount, but aggregating more. The clause referred to is intended to favor the class whose reliance for the. maintenance of themselves and families is generally upon their wages, as earned. There is nothing in the nature of security or lien for the payment of the wages v/hich could pass to an assignee. No right to priority arises or exists until the proceeding in bankruptcy is instituted, and then the wages as- signed are not 'due to workmen, clerks or servants,' but to their assignees, and are outside the language of this clause. If debts for wages so assigned can be allowed priority, they may come in conflict, or at least in competition, with other claims for wages due and owing to the same workmen, clerks and serv- ants, earned within the same three months, and lessen the payments, if the 83. In re Harmon, 11 A. B. R. 64, 128 Fed. IJO (D. C. W. Va.). Contra, In re Ice Mfg. & Storage Co., 17 A. B. R. 194 (D. C. Mo.). Also, contra, obiter, In re North Carolina Car Co., 11 A. B. R. 488, 127 Fed. 178 (D. C. N. Car.). 1344 REMINGTON ON BANKRUPTCY. § 2186 assets will not pay in full all debts having priority. It must be held, therefore, that debts of a bankrupt for labor and services which at the commencement of the proceedings in bankruptcy are not due to the workmen, clerks or servants, but to assignees, have no priority.'' § 2184. Subrogation of Persons Advancing Money to Meet Pay Rolls. — Persons advancing money to bankrupts to meet pay rolls, under an agreement that such pay rolls should be assigned, probably may be subrogated to the rights of the workmen thus paid. This would be nothing * but the application of the rule of equitable subrogation.^^ Likewise, probably, if such advancement be made to preserve the busi- ness by one interested therein. Yet there is considerable doubt as to the applicability of the doctrine of subrogation — whether it be subrogated by agreement or by force of ecjuity — to wages claims before the bankruptcy. And at any rate such assigned claims should not compete for priority with the claims still owned by workmen, clerks or servants. ^^ § 2185. Due "Proof" to Be Made of Priority Claim.— Due proof of claim must be filed. It is none the less a "provable debt'' requiring due "proof" before payment, because of being a priority debt.^*^ § 2186. Wages Claims "of Workmen, Clerks and Servants" No Precedence over Valid Prior Liens. — Priority claims for wages of workmen, clerks or servants under the bankruptcy classification do not have precedence over valid liens in the distribution of assets covered partly or wholly by liens. ■^■'' But, of course where by state law certain wages claims have such precedence, they will preserve their precedence in bank- ruptcy ;'^^ although such precedence will result not from § 64 (b) (4) but rather from § 64 (b) (5). 84. But contra, if the pay rolls were not in fact assigned. In re North Caro- lina Car Co., 11 A. B. R. 488, 127 Fed. 178 (D. C. N. Car.); but this is not correct, for the advancement under the agreement creates the equity whether carried out or not unless the assignment was actually waived. See post, "Sub- rogation to Rights of Various Parties in Distribution of Assets," division 5. 85. See post, "Whether Subrogation to Workmen's Priority Claims to Com- pete with Workmen's Own Later Claims," § 2279. 86. See ante, this chapter, § 2138. 87. In re IMuhlhauser, 10 A.B. R. 231, 121 Fed. 669 (C. C. A. Ohio)! In re Frick. 1 A. B. R. 719 (Ref. Ohio). Compare same rule under state priority. In re Falls City Shirt Mfg. Co., 3 A. B. R. 437, 98 Fed. 592 (D. C. Ky.) ; contra, In re Erie Lumber Co., 17 A. B. R. 699 (D. C. Ga.). It has been held, that where, after a fraudulent . conveyance by way of note and mortgage has been set aside, the payee of the note sets up that the note was for wages and claims priority, this "claim for priority being still based on the fraudulent note, will be rejected. In re Hemstreet, 14 A. B. R. 823, 139 Fed. 958 (D. C. Iowa): "It is possible that there is due some amount, as wages, from the bankrupt; but as the claimant has rested his claim upon the notes and mortgage he must abide the conclusion thereon, and they being invalid, he is not entitled to other relief against the creditors." 88. In re Byrne, 3 A. B. R. 268.97 Fed. 762 (D. C. Iowa); In re Erie Lumber Co., 17 A. B. R. 699 (D. C. Ga.). § 2188 distribution to creditors. 1345 Division 3. Prioritie;s under Federal and State Law. § 2187. Priorities Granted by State and Federal Laws. — The last class of claims entitled to payment before g-eneral creditors are debts owing to any person who, by the laws of the States, or of the United States, is en- titled to priority. ^9 § 2188. "Priority" to Be Distinguished from "Liens." — Priority here does not refer to liens existing on the bankrupt's property nor to the order of payment of such liens, but to the order of payment out of the general assets of an insolvent's estate on distribution. ^° In re Cramond, 17 A. B. R. 38 (D. C. N. Y.) : "It may be well to remark that in my opinion subdivision 5 of § 64 of the Bankruptcy Act has no reference to liens actually existing at the time of the adjudication. Liens on the property of the bankrupt, not void or voidable under some provisions of the law, whether obtained and created by express contract or by virtue of compliance with the lien law of a State, since the amendment to the Act, are first to be paid, excepting taxes subject to abatement for commissions expressly allowed to referees and trustees on all sums disbursed to creditors in the one case and to any one in the other. While all liens are, in a sense, priorities, and certain priorities may be liens, in a sense, still all priorities are not liens, and, in my opinion, clause 5 of subdivision b of § 64 does not refer, and was not intended to refer to liens on the estate of the bankrupt. It was assumed that valid liens would be paid, and that the debts and expenses, etc., designated to have priority would have priority of payment out of the estate after liens were satisfied, or out of the proceeds of the property if sold subject to liens. Since the" striking out of the words 'sums to be paid as dividends and commissions,' in § 48, and the substi- tution of the words 'on all moneys disbursed by them,' and similar change in § 40 by the amendment of 1902, these commissions when necessary to be paid from funds subject to the liens, and which payment causes an abatement of the lien to that extent, gain the priority over liens by virtue of the reading of §§ 40 and 48 as amended, which sections now limit or modify subdivision b of § 64, and not by virtue' of the reading of § 64. No corresponding amendment was made in § 64 of the Act as it was not regarded necessary. The directions of §§ 40 and 48 are plain and explicit, and must be read in connection with § 64. Only in exceptional cases does the necessity for applying the modification arise. I think it also clear that, should a case arise where a laborer has acquired a lien by virtue of the State lien law for wages earned within the three months before the commencement of proceedings, even should such lien largely exceed $300, he would hold his lien and be entitled to full payment thereof notwith- standing clause 4 of subdivision b of § 64." § 2189. Federal and State Government and Municipality, as Priority Claimants. — The federal and state governments, municipal 89. Bankr. Act, § 64 (5). 90. Compare, post, § 2205. 2 Rem B— 10 1346 REMINGTON ON BANKRUPTCY. ^2194 corporations, counties and quasi public corporations, in general, may be entitled to priority under § 64 (b) (5). Thus, the federal government may be a priority claimant under § 64 (b) (5); for instance, for damages for breach of contract by contractors ;'^i likewise, a county may be a priority claimant. ^^ § 2190. Priority Given to "Any Person" by United States Law Preserved. — Priorities given to any person, by any of the laws of the United States, are preserved in bankruptcy. Taxes do not come within § 64 (b) (5), but it is not because the gov- ernment and state are not to be considered as being "any person" within the meaning of clause "5," nor because taxes are not also to be consid- ered to be "provable debts," as seems to be implied from the holding in Chattanooga v. Hill, 15 A. B. R. 197, 139 Fed. 600 (C. C. A. Tenn.), but it is rather because paragraph "(a)" of the same section of the stat- ute specially provides the priority for taxes and therefore takes prece- dence over the general provisions of clause "5" of paragraph "(b)." § 2191. Government Contracts. — Damages suffered by the United States government are given, by federal statute, priority of payment out of the funds in the hands of assignees, trustees in bankruptcy, executors, administrators, etc., in charge of insolvent estates. Thus, where a con- tractor for supplying the government with paper becomes bankrupt, the damages suft'ered by the government have priority of payment in bank- ruptcy.^^ § 2192. No Proof of Claims Requisite by Government to Secure Priority. — Claims of the United States entitled to priority must be paid even without the filing of a proof of claim. It has even been held that the trustee takes his own risk in paying out the funds without taking care of such claims. ^^ § 2193. Year's Limitation for Proving Claims Not Applicable to Government. — The limitation of one year for the proving of claims in bankruptcy does not apply to claims of the United States government. ^^ ,§ 2194. State Law Priorities Adopted Where Claimants Not in Classes Already Covered by Express Bankruptcy Priorities. — Pri- orities given by state laws are adopted by § 64 (b) (5) of the Act; at any 91. In re Stoever, 11 A. B. R. 345, 127 Fed. 394 (D. C. Pa.) 92. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.). Com- pare, to same effect, under the law of 1867, In re Mellor, 10 Ben. 58, Fed. Cases No. 9,401; In re Southwestern Car Co., 9 Biss. 76, Fed. Cases No. 13,192; In re Dodge, 4 Dill. 532, Fed. Cases No. 3,949. 93. In re Stoever, 11 A. B. R. 345, 127 Fed. 394 (D. C. Penn.). 94. In re Stoever, 11 A. B. R. 345, 127 Fed. 394 (D. C. Penn.). Compare, ante, § 2161. 95. In re Stoever, 11 A. B. R. 345, 127 Fed. 394 (D. C. Pa.). Compare, ante, § 2162. § 2196 DISTRIBUTION TO CREDITORS. 1347 rate, where the claimants are not in any of the classes already covered by express bankruptcy priorities. Thus, the claim of a county for the labor of its convicts is entitled to priority. ^"^ § 2195. State Priorities to Laborers, Where Different from Bankruptcy Priorities. — In some states other claimants than simply "workmen," "clerks" and "servants," as the latter terms are used in bankruptcy, are entitled to priority of payment out of the funds of an insolvent in the hands of a court ; and the amount allowed and time of service for which priority is given also differ. ^^ Compare, stronger statement of rule. In re Rose, 1 A. B. R. 68 (Ref. Ohio): ■"The provisions of (5) make it the duty of the court to consider, not only § 64 of the Bankruptcy Act, but the sections of the statutes of the State, and it would be the duty of the court to grant the demands of the claimants if it should find that their respective claims fall within the protection of any of the laws of either." § 2196. Whether State Priorities in Cases of Assignments, Re- ceiverships, etc., Preserved When Custody Superseded by Bank- ruptcy. — Priorities given by the state statutes seem to have been recog- nized in the bankruptcy court, even though such priorities arise by virtue of assignments for the benefit of creditors, receiverships, or other se- questrations by legal proceedings eventually nullified or supplanted by bankruptcy proceedings. The state court is superseded, to be sure, but c>.pparently it is held, by these decisions, that the general priorities recog- nized by its policy in the distribution of insolvent estates are to be recog- Tiized as additional priorities in bankruptcy under § 64 (b) (5).*^^ In re Jones, 18 A. B. R. 212 (D. C. Mich.): "The principle controlling these ■decisions seems to be that a creditor shall be allowed the same priority under the Bankrupt Act which he would have had, had not the latter Act superseded 96. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.); In re Wright, 2 A. B. R. 596, 95 Fed. 807 (D. C. Mass., affirmed sub nom. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.). 97. Instance, for furnishing materials and supplies to manufacturing concern. In re Falls City Shirt Mfg. Co., 3 A. B. R. 437, 98 Fed. 592 (D. C. Ky.). In re Lawler, 6 A. B. R. 184, 110 Fed. 135 (D. C. Wash.): In this case the court held that a person who was engaged as a traveling salesman for a lumber company was a "person performing labor" for such company, and entitled to priority under the statute of Washington, giving a prior lien to persons perform- ing labor for any person, company or corporation in the operation of any saw- mill, lumber or timber company. Compare, In re Byrne, 3 A.» B. R. 268, 97 Fed. 762 (D. C. Iowa). 98. Inferentially, In re Lewis, 4 A. B. R. 51, 99 Fed. 935 (D. C. Mass.); obiter. In re Burton Bros. Mfg. Co., 14 A. B. R. 218, 134 Fed. 157 (D. C. Iowa); in- stance, but not placed on this ground. In re Laird, 6 A. B. R. 1 (C. C. A. Ohio): This case, however, violates the rule that the Bankruptcy Act controls as to priorities as to the same classes covered by the state law. Contra, In re Slomka, 9 A. B.R. 636, 122 Fed. 630 (C. C. A. N. Y.), where the rule is laid down that the priority being given only because of the assign- ments, and the assignment itself being nullified by the bankruptcy, the priorities fall along with the assignment — a logical argument at any rate. 1348 REMINGTON ON BANKRUPTCY. § 2196 the State laws governing the distribution of the estates of insolvent debtors. Tested by this rule the question is: Would the petitioners have been given the priority claim here, had the debtor's estate been distributed under the laws of Michigan governing the distribution of the estates of insolvents instead of under the Bankrupt Act." Probably tbe question would turn in each case upon the point whether the statute in the particular instance is attempting to create general rights of priority in cases where insolvent estates are being administered, or simply to create certain rights of priority in case certain methods of dis- tribution of insolvent estates are being pursued. In re Jones, 18 A. B. R. 214 (D. C. Mich.): "Previous to the passage of the present Bankrupt Act, estates of insolvent debtors were usually, if not univer- sally, administered in Michigan under either common-law assignments (later regulated by the general assignment statute of 1879), mortgage foreclosure, or receivership in some form. They have seldom, if ever, been administered under chapter 262, which relates to the 'Relief of Insolvent Debtors,' although the provisions of chapter 263, relating to the 'ReHef of Insolvent Debtors from Imprisonment,' have been occasionally invoked, although rarely, as under the Michigan Constitution imprisonment, for debt generally is forbidden. Const. Mich. art. 6, § 53. The reports of the Supreme Court of Michigan fail to show that any case arising under chapter 262, or any case in- volving the application of § 9675 in question, have ever, been brought before that court. As indicating what is meant by a general insolvency statute, it is significant that the labor preference statute referred to has been applied to the distribution of the estates of insolvents, not only under mortgage fore- closure by way of intervention * * *^ under statutory asignments for the benefit of creditors, in which preferences are forbidden * * *, but also under original bill filed against mortgage and attaching creditors in possession of the debtors' assets. * * * This labor preference statute would probably be similarly extended to receiverships, as was done in Massachusetts; the Mich- igan statute making express provision for granting receiverships for the pro- tection of labor claimants. 3 Comp. Laws 1897, § 9552. It would also, no doubt, apply to bankrupt estates, but for the fact that the Bankrupt Act con- tains express provisions on the subject of preference for labor debts which override the provision of the statute law. * * * "On the other hand, and in sharp contrast to the general application of the labor insolvency statute, to none of these methods of administration and dis- tribution of the estates of insolvent debtors undei; the State law has any at- tempt ever been made to apply the provisions of § 9675, here invoked, and doubtless for the reason that that section is by its terms limited to proceedings under the chapters included within the title in the 1846 revision, 'Of the Punish- ment of Fraudulent debtors and the Relief of Insolvent debtors.' In the absence of a bankruptcy statute, had the estate of this bankrupt been administered as an insolvent estate^ under Michigan laws, under either assignment for ben- efit of creditors, mortgage foreclosure, or receivership, or by any method except that provided by chapter 262 and 263 of the Michigan Compilation, the priority invoked would not have been recognized. The possibility of such estate being, administered under chapters 262 or 263 would be very slight. As before stated, such administration could occur only by way of relief from actual imprison- ment or, otherwise, only with concurrence of the debtor and creditors repre- senting at least two-thirds of all debts owing to creditors within the United § 2197 DISTRIBUTION TO CREDITORS. 1349 State. To my mind, § 9675 is, therefore, not 'of that general character which can be supposed to be within the purview of the provision of the Bankrupt Act which is concerned here,' and not such a 'law of the State' as to give pri- ority under § 64b (5) of the Bankrupt Act. It follows that the referee rightly refused priority to petitioners' claims." § 2197. Whether State Priorities Dependent on Resort to Par- ticular Remedies, Such as Insolvency or State Bankruptcy Pro- ceedings, to Be Recognized. — Whether or not priorities will be recog- nized in the distribution of an estate in bankruptcy that are given by a state statute, in the event that assets are sequestrated by state insolvency or state bankruptcy proceedings or by assignments,' receiverships or other state proceedings involving the administration of an insolvent's assets, as an additional priority under § 64 (b) (5), when such state proceed- ings have not actually been instituted, is also to be determined by the as- certainment of the true intent of the state statute. If the state statute means to confer the priorities as substantive rights of priority in cases of the distribution of insolvent estates, in general, then of course the priority is to be recognized in bankruptcy distribution ; but if, on the contrary, the right is wholly special and dependent upon resort to a partic- ular remedy, then, obviously, if that remedy is inaccessible, the priorities must likewise fail of recognition in bankruptcy. ^^ Even the priorities of suspended insolvency statutes are adopted where not covering the same cases covered by the express provisions of the Bankrupt Act, and where the priorities are intended to be given as substantive rights, not depend- ent on resort to a particular remedy. Some of the decisions have carried the adoption of State pri- orities to an unwarranted extreme ; in effect, nullifying thereby the pro- visions of the Bankruptcy Act dissolving legal liens, and leaving to cred- itors no advantage in dissolving liens, their priorities being neverthe- less perpetuated ! ! Thus, it has been held, that where attachment costs would have had priority had state insolvency proceedings actually been instituted, they will have priority in bankruptcy under § 64 (b) (5), even though such pro- ceedings have not been instituted. ^^° In re Goldberg, 16 A. B. R. 523, 144 Fed. 566 (D. C. Me.): "* * * the clear intention of the Maine statute is that such costs shall be paid out of the estate, if it appears to the court that the suit was commenced in good faith for the benefit of all the creditors. The intention of the Maine legislature was to pay such costs in full out of the estate, providing the estate had received an actual benefit by incurring such costs, just as it is the intention of Con- gress to pay the actual and necessary cost of preserving the estate subsequent to filing a petition in bankruptcy. Courts in other circuits have disallowed such claims; but these disallowances have been based generally; so far as I 99. In re Jones, 18 A. B. R. 214 (D. C. Mich.). 100. In re Lewis, 4 A. B. R. 51, 99 Fed. 935 (D. C. Mass.). 1350 REMINGTON ON BANKRUPTCY. § 2197 can find, upon the fact that the statutes of the States where the questions arose did not provide for their allowance in terms so specific as the statutes of Massachusetts provided." But there would be difficulty in determining which order of priority should thus be adopted by analogy, where the state law prescribes differ- ent priorities for different seqtiestrations. Compare, In re Rouse, Hazard & Co., 1 A. B. R. 239, 91 Fed. 96 (C. C. A. Ills.) : "Coming: then to the merits, it may be remarked by the way of pref- ace that the several provisions of the law of the State of Illinois with respect to the priority of payment to be allowed labor claims, are not altogether con- sistent. In the case of voluntary assignments, the claim of the laborer which is preferred must have accrued within three months next preceding the makinjf of the assignment. In the case of a suspension of business by action of cred- itors there is neither limit as to time nor as to amount. The reason of the dis- tinction is not easy to understand." The claim of the state or county for the hire of its convicts, has been given priority in bankruptcy, though such priority would not exist under the state statute except in cases of state insolvency or state bankruptcy proceedings, which had not in fact been instititted and which indeed W'ere not maintainable because of the existence of the Federal Bank- rupt Act. 101 In re Wright, 2 A. B. R. 594, 95 Fed. 807 (D. C. Mass., afiirmed sub nom. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808, C. C. A. Mass.): "Even if by the passage of the Bankrupt Act the insolvent law of Massachusetts were so avoided that ft has ceased to be a law of Massachusetts, yet nothing would prevent the legislature of Massachusetts, during the existence of the Bankrupt Law, from passing a statute establishing priorities. Such a statu+e would have almost its sole effect in establishing priorities under the Bankrupt Law of the United States. It would be simply a re-enactment of the rule regarding the dis- tribution of insolvent estates which had prevailed by statute up to the passage of the Bankrupt Law. To sut)pose that Congress meant to require such leg- islation by the States is unreasonable." Thus, even costs of a suit might be entitled to priority in bankruptcy, if entitled to priority under the state insolvency laws.^^^ Obiter, In re Daniels, 6 A. B. R. 700, 110 Fed. 745 (D. C. R. I.): "It must, therefore, be accepted as the law of this circuit that, in determining what laws of a State are in force for the purpose of fixing priorities, we may look to the insolvency laws * * * ^iig insolvency law of a State still remains a law ior the purpose of fixing priorities. * * * "The decision of the referee, then, cannot be supported upon the broad ground that in no case can the costs which are preferred under the insolvency law of Rhode Island be entitled to priority, under § 64b (5) of the Bankruptcy Act." Although, of course, any licii therefor, if acquired within the four months, would be avoided by § 67 "f'.ios 101. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.). 102. In re Goldberg, 16 A. B. R. 523, 144 Fed. 566 (D. C. Me.), quoted supra. 103. In re The Copper King, Limited,. 16 A. B. R. 148, 143 Fed. 649 (D. C. Calif.). § 2198 DISTRIBUTION TO CREDITORS. 1351 And by the better opinion if the attachment lien were dissolved by § 67 "f," the effect of § 67 "f" could not be evaded as to the costs by claiming they are entitled to priority under § 64 (b) (5).^"^ § 2198. Rule Adopting State Priorities, Not to-Override § 67 "f" Annulling "Legal" Liens. — But the rule adopting state priorities is not rneant to override the provisions of § 67 "f" annulling liens by legal pro- ceedings obtained within four months of the debtor's bankruptcy. Section 64 (b) (5) is not concerned with liens acquired by legal proceedings, but with priorities on distribution of an insolvent's assets. In re Burton Bros. Mfg. Co., 14 A. B. R. 218, 134 Fed. 137 (D. C. Iowa): "These sections, as construed by the Supreme Court of Iowa, when complied with, give priority of payment to the wage-earning employee, to the amount stated, from the property of the employer which has been so seized upon exe- cution, or placed in the hands of a receiver, trustee, or assignee over all other liens upon such property (except certain mechanics' liens) and other cred- itors of the employer. * * * Neither of the petitioners ever presented to the officer making such seizure, or to the court from which the execution is- sued, the sworn statement required by section 4020 of the Code, nor in any other manner complied with the provisions of the above named sections. They apparently relied solely upon the levy of their executions upon the property to secure payment of their judgments, and nothing further seems to have been done after such levy and prior to August 20, 1904, when the petition in bank- ruptcy was filed against the judgment debtors. The adjudication of bank- ruptcy upon that petition dissolved the liens of the petitioners acquired by the levy of their executions upon the property of the bankrupt. * * * "To have secured and preserved the right or liens given them by the State statute the petitioners should have complied with the provisions of that statute, and had they done so such right or lien might have been recognized and en- forced by the court of bankruptcy. Section 64b (5), Bankruptcy Act. Not having done so, the only lien thej^ had was that acquired by the seizure of the property under their executions. .When such liens were dissolved by the ad- judication of bankruptcy, they were left upon a level with the other unse- cured creditors of the bankrupt." The priority is not given because of the legal proceedings being super- seded, but because it is usually in connection with those legal proceedings which are nullified by bankruptcy that the state statute mentions its priori- ties. And, in cases where the priority is held only to exist in case a particular method of administering the insolvent's estate is adopted, then the priority may not be adopted in bankruptcy, where the requisite administration can- i:ot be had because of § 67 "f." Compare, In re Slomka, 9 A. B. R. 636, 122 Fed. 630 (C. C. A. N. Y.): "The State statute does not purport to give employees a lien upon the property of the employer for wages, nor to give them priority over other creditors of the debtor except when the debtor's estate i^ distributed by an assignee under a 104. The Copper King Ltd., 16 A. B. R. 148, 143 Fed. 649 (D. C. Calif.). 1352 REMINGTON ON BANKRUPTCY. ^ 2199 general assignment. In that event it impresses the funds in the hands of the assignee with a trust. Richardson v. Thurber, 104 N. Y. 606. If the estate is not distributed under the assignment, as for instance if the assignment should be set aside for fraud or for invalidity otherwise, the provision is nugatory. There was no priority here, because the conditions essential to its recognition did not exist. The assets were not in course of administration under a general assignment. * * * The assignment being void, it is as though it had never been made, and the property of the debtor passed to the trustee in bankruptcy free from all liens or trusts created by or resulting from it." And the better rule would seem to be that, wherever the lien of the costs would be dissolved by § 67 "f," then the priority itself would not exist. In re The Copper King, 16 A. B. R. 148, 143 Fed. 649 (D. C. Calif.): "In some of the States certain classes of debts arising upon contract are entitled to priority of payment in the distribution of estates. * * * j^ ^^g ^j^g purpose of subdivision 5, § 64, of the Bankruptcy Act, to preserve the rights of creditors under such contracts; and it may extend to an indebtedness upon an implied contract which is given priority by a law of the State. But, in view of the fact that attachment liens obtained within four months prior to the filing of the petition, including the lien for costs in the attachment proceed- ings, are dissolved by subdivision 'c' and 'f of § 67, of the Bankruptcy Act, it is not reasonable to conclude that Congress intended by subdivision 5, of § 64, to make the claim for costs, the lien of which is thus destroyed, a preferred debt." And perhaps the true principle is that the bankruptcy courts also have nothing to do with superseded or suspended state insolvency acts in de- termining priorities in the distribution of bankrupt estates. Smith V. Mottley, 17 A. B. R. 865 (C. C. A. Ohio): "* * * he referred to its insolvency laws, which specify what liabilities shall be preferred in in- solvency proceedings. * * * But we think there was error in holding that the Kentucky Insolvency Statute was relevant to the inquiry. That statute was superseded by the Bankruptcy Act, which itself prescribes what debts and obligations shall be given preference." § 2199. But Claimant Must Comply with All Regulations and Pre- requisities of State Priority. — But the claimant must comply with all the statutory prerequisities and conditions required by the state law where he is making his claim in the bankruptcy court. Thus, where an employee forfeits his priority if he fails to comply with the provisions of the state law requiring a sworn statement of the employee's claim to be presented to the officer making the seizure or to the court from which the execution is- sued, he forfeits it in the bankruptcy court under the same circumstances. ^"^^ And where a priority given by a state statute is to be perfected in a particular manner (not rendered impossible by the bankruptcy), such man- ner must be pursued. ^oe 105. In re Burton Bros. Mfg. Co., 14 A. B. R. 218, 134 Fed. 157 (D. C. Iowa). 106. In re Burton Bros. Mfg. Co., 14 A. B. R. 218. 134 Fed. 157 (D. C. Iowa). § 2202 DISTRIBUTION TO CREDITORS. 1353 § 2200. Whether, Where Bankruptcy Prevents, Compliance Dis- pensed with, or Levy Permitted and Discharge Stayed to Enable Perfecting of Priority. — Where a priority or lien given by a statq statute is declared to be lost unless followed by legal proceedings within a specified time, either such conditions subsequent is avoided by the bank- ruptcy since the property involved is already in the custody of a court and further legal proceedings are impossible ;^"" or perhaps the bankruptcy court would permit the legal proceedings to be taken, at least to the extent necessary to perfect or maintain the lien.^"^ § 2201. Trustee Cannot Perfect Priority Claims. — The trustee can- not perfect the claims of the priority creditors where the State statutes re- quire further proceedings. He does not represent secured or priority cred- itors except as mere custodian. ^*^^ § 2202. Relative Precedence among State Priorities Preserved. — The relative priorities among the different classes of claimants entitled to priorities under the state law will be preserved; and §64(b) (5) of the Bankruptcy Act does not level them to equality among themselves. Thus, the relative priorities of the landlord over persons who have fur- nished material or supplies for a manufacturing concern, under the Ken- tucky statute, are preserved in bankruptcy. In re Falls City Shirt Mfg. Co., 3 A. B. R. 437, 98 Fed. 592 (D. C. Ky.^: ""The effect of the contention of the material men here would be that though all the creditors had liens created under the laws of the State, and though by those laws some of these liens had priority over others, still a proper interpre- tation of the Bankrupt Act would require a general leveling of these liens to a common plane, elevating some and depressing others, so as to destroy all advantage and all distinction given by the State laws It cannot be admitted that such contention is sound. It seems to the court that it was obviously the intention of Congress to recognize all liens created under the laws of the State, and to leave them precisely as it found them." And, in Arkansas, Georgia and Iowa, and in several other States la- bor claims take precedence over valid prior contract liens or landlord's statutory liens, and are entitled to like precedence in bankruptcy. ^^^^ Instance, In re Byrne, 3 A. B. R. 270, 97 Fed. 762 (D. C. Iowa) : "It thus appears that, under the laws of this State, when an insolvent estate is being closed up through the medium of a receiver, trustee, or assignee, the wages due employees, 107. In re Falls City Shirt Mfg. Co., 3 A. B._ R. 437, 98 Fed. 592 (D. C. Ky.). 108. Compare, analogously, as to the necessity of judgment against corpora- tion to fix stockholder's secondary liability, in some states, In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass.). Also, see ante, "Rights of Creditors against Sureties and Others Secondarily Liable," § 1524. 109. Analogously, Goldman v. Smith, 2 A. B. R. 104 (Ref. Ky.). 110. Instance, Chauncey v. Dyke Bros., 9 A. B. R. 444, 119 Fed. 1 (C. C. A. Ark.); In re Erie Lumber Co., 17 A. B. R. 698 (D. C. Ga.); In re Oconee Mill Co., 6 A. B. R. 475, 109 Fed. 866 (C. C. A. Ga.). 1354 REMINGTON ON BANKRUPTCY. ,^ 2203 up to the amount of $100 to each person, for wOrk done within ninety days next preceding the seizure by judicial process, or the transfer to the receiver, trus- tee or assignee of the property of the insolvent, will be given preference in order of payment over contract liens existing thereon; and the same preference must be given to wages due employees over liens created by statute, such as the landlord's claim on behalf of Runyan." 2203. Where Both State Law and Bankrupt Act Give Priority to Same Class, Bankrupt Act Excludes State Law. — Where both a State law and the Bankruptcy Act give priority to the same class of debts, the Bankrupt Act not only controls the State law in the case of absolute conflict between the two, but by its express regulation of these priorities, excludes the state law altogether. Thus, where the priority claimants under the state statute would also fall within the class of "Workmen,, clerks or servants" as the terms are used in the Bankruptcy Act, the provisions of the Bankruptcy Act will prevail over those of the State statute, the specific words of the Bankruptcy Act taking out of its general words the subjects specified and confining them within the limits mentioned.^ ^^ In re Rouse, Hazard & Co., 1 A. B. R. 234, 91 Fed. 96 (C. C. A. Ills.): "In the first subdivision Congress addresses itself to the subject of labor claims, and particularly provides that all wages that have been earned within three months before the date of the commencement of proceedings in bankruptcy, not to exceed $300 to each claimant, shall be awarded priority of payment. It recognized, it must be assumed, the various provisions of law in the several States with respect to the subject. It found them not to be in harmony, and in some States, as notably Illinois, the laws upon that subject not to be con- sistent with each other. It found limitation as to time different in the dif- ferent States. It found that in some of the States priority of payment was un- limited as to amount, and in some of the States limited to so small a sum as $50. With this divergence within its knowledge, the Congress spoke to the subject specially and particularly, and limited the amount to $300, and, as to time, to wages earned within three months before the commencement of pro- ceedings. Can, then, the subsequent provision of the law following immediately thereafter allowing priority of payment for all debts owing to any person who, by the laws of the State or the United States, is entitled to priority, be held to enlarge the prior provisions so that the statute should be read that in any event the laborer should be entitled to prioritj^ of payment in respect of wages earned within three months prior to proceedings and in amount not exceeding $300, and that wherever the laws of the State of the residence of the bankrupt grant the laborer priority of payment without limit as to time or amount, or imposes a limit in excess of that imposed by the Bankrupt Act, he shall be en- titled to a further priority in payment according to the law of the particular State. We think not. It is not to be supposed — unless the language of the act 111. But compare, In re Gerson, 1 A. B. R. 251 (Ref. Penn.). Compare, to same general effect. Smith v. Motley, 17 A. B. R. 865 (C. C. A. Ohio); analo- gously. In re Daniels, 6 A. B. R. 699, 110 Fed. 745 (D. C. R. I.); contra. In re Laird (In re Coe-Powers & Co.), 6 A. B. R. 1, 109 Fed. 550 (C. C. A. Ohio, dis- approved in In re Slonika, 9 A. B. R. 635, 122 Fed. 630 (C. C. A. N. Y.), and apparently receded from in Smith v. Motley, 17 A. B. R. 865 (C. C. A. Ohio). § 2203 DISTRIBUTION TO CREDITORS. 1355 clearly so speaks — that Congress intended that in the administration of the act there should be a marked contrariety in the priority of payment of labor claims dependent upon locality. It is an elementary principle of construction that where there are in one act, or in several acts contemporaneously passed, specific provisions relating to a particular subject, they will govern in respect to that subject as against general provisions contained in the same act. Suther- land on Statutory Construction, sec. 158." In re Slomka, 9 A. B. R. 635, 122 Fed. 630 (C. C. A. N. Y.) : "If by the State law the debts were within the general description of clause 5, we are of opinion that the clause would not apply and that the terms of clause 4 supply the exclusive rule for determining what debts for wages are entitled to priority. No principle of statutory construction is better settled than that which displaces the application of general provisions to a particular subject when there are specific provisions applicable to it in the same act. The sub- ject of claims for wages is specifically regulated by clause 4, and its pro- visions express the particular intent of Congress regarding priority of such claims. As these confine the priority to wages earned within the three months before the commencement of the bankruptcy proceedings, debts like the pres- ent are not included. We agree upon this question with the decision of the Circuit Court of Appeals for the Seventh Circuit, In re Rouse, Hazard & Co., 1 Am. B. R. 234, 91 Fed. Rep. 96, and for the reasons which are so satisfactorily stated in the opinion in that case. We have given due consideration to the de- cision by the Circuit Court of Appeals for the Sixth Circuit, In re Laird, 6 Am. B. R. 1, 109 Fed. 550, but we are unable to regard it as correct." In re Shaw, 6 A. B. R. 501, 109 Fed. 782 (D. C. Penn.) : "I agree with the correctness of this ruling (In re Rouse, Hazard & Co.) which, indeed, seems to me to be scarcely susceptible of doubt. Paragraph 4 deils specifically v^'ith the allowance of claims for wages; and, while it is true that wages might be iii- cluded under the general word 'debts,' used in paragraph 5, thus to include them would violate a well known rule of statutory construction. Having been specifically dealt with in the paragraph immediately preceeding, it is almost in- credible that Congress should straightway proceed to deal with them again in a different fashion. To declare that they are included under the words 'debts' would be either to strike paragraph 4 out of the act entirely, or to furnish two conflicting rules for deciding how much should be allowed to a claim for wages in priority. The result, of course, would be that a claimant could select whichever paragraph gave him the larger sum. I need scarcely say that such a result does not furnish a rule of decision, and could only be accepted in case the language used by Congress forbade any other construction. The ordinary and natural construction is, I think, that paragraph 4 has to do with wages, and paragraph 5 has to do with other debts entitled to priority." Impliedly, In re Wright, 2 A. B. R. 592, 600, 95 Fed. 807 (D. C. Mass., af- firmed sub nom. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808): "In re Rouse, Hazard & Co., 33 C. C. A. 356, 91 Fed. 96 (1 Am. B. R. 234). it was held that a claim for labor performed more than three months before the bank- ruptcy proceedings, and entitled to priority under the insolvent laws of the State, was not entitled to priority under the Bankrupt Law; but the decision was rested solely upon the ground that the specific provisions of the Bankrupt Act concerning labor claims were intended to override the provisions relating to wages made by the State statute. That the exemption accorded by the State statute would have been valid in the absence of the express provisions of the Bankrupt Act concerning wages was conceded. The Bankrupt Act makes no such specific provision for debts due to States, Counties, and munic- 1356 REMINGTON ON BANKRUPTCY. § 2204 ipalities, and hence, by reference, adopts the statute of Massachusetts as part of its own provisions." In re Lewis, 4 A. B. R. 51, 99 Fed. 935 (D. C. Mass.): "It has been held that State Laws, giving priority to wages, though included in the terms of § 64b, cl. 5, are yet ineffectual, because the whole matter of wages is dealt with and regulated by § 64b, cl. 4. * * * In other words, although the laws of a State giving priority to certain debts are by § 64b, cl. 5, introduced into the scheme of the present Bankrupt Act, yet such State laws are so introduced only so far as the debts to which they give priority are not expressly dealt with as to priority in the Bankrupt Act itself. Where both a State law and the Bajpkrupt Act give priority to the same class of debts, the Bankrupt Act not only controls the State law in the case of absolute conflict between the two, but, by its express regulation of these priorities, excludes the State law al- together." Obiter, In re Jones, 18 A. B. R. 214 (D. C. Mich.): "It would also no doubt apply to bankrupt estates, but for the fact that the Bankrupt Act contains ex- press provisions on the subject of preferences for labor debts which override the provision of the statute law." § 2204. Landlord's Priorities. — In the event of the impounding of an insolvent debtor's assets, in several states the landlord is entitled to priority of payment therefrom, to a certain extent, varying in the different states. ,The question arises, however, whether, in most instances, it is not a specific lien on the tenant's goods that the landlord possesses, rather than a mere claim for priority. ^^^ Thus, landlords in Delaware are entitled to priority of payment out of the proceeds of property seized from the tenant's premises by legal pro- ceedings and are entitled to priority under § 64 (b) (5) ;^i-^ likewise, in Pennsylvania ;^i'* in Louisiana ;^^^ and in Kentucky,^^^ but in Kentucky not 112. See discussion, 'ante, § 2188. 113. In re Mitchell, 8 A. B. R. 335, 116 Fed. 87 (D. C Del.). 114. Wilson V. Penna. Trust Co., 8 A. B. R. 169, 114 Fed. 742 (C. C. A. Penn.) ; In re Duble, 9 A. B. R. 121, 117 Fed. 795 (D. C. Penna.); In re Hayward, 12 A. B R. 264, 130 Fed. 720 (D. C. Penn.); In re Gerson, 2 A. B.. R. 170 (D. C. Penn.); In re Goldstein, 2 A. B. R. 603 (Ref. Pa.), even for rent in advance. In re Hoover, 7 A. B. R. 330, 113 Fed. 136 (D. C. Pa.); In re Belknap, 12 A. B. R. 326, 129 Fed. 646 (D. C. Penna.); In re Lines, 13 A. B. R. 318, 133 Fed. 803 (D. C. Pa.); compare, In re Ruppel, 3 A. B. R. 233, 97 Fed. 778 (D. C. Pa.). But compare. In re Whealton Restaurant Co., 16 A. B. R. 294, 143 Fed. 921 (D. C. Pa.). No lien for rent nor priority to landlord in Pennsylvania out of proceeds of sale of liquor license, such property not being subject to distraint nor execution. In re Myers, 4 A. B. R. 536, 102 Fed. 869 (D. C. Pa.). Exempt property: Landlord's lien: Without levy the landlord is entitled to his lien in Pennsylvania, at the hands of the bankruptcy court even though the property is otherwise exempt — exemptions being waived iu the lease. In re Sloan, 14 A. B. R. 438, 135 Fed. 873 (D. C. Pa.). 115. Carriage Co. v. Solanas, 6 A. B. R. 221, 108 Fed. 532 (D. C La.). But the lien does not, in Louisiana, at any rate, coVer rent accruing after legal levy since the chattels are held no longer to be on the premises by the owner's consent. Carriage Co. v. Solanas, 6 A. B. R. 221, 108 Fed. 532 (D. C. Ga.). 116. In re Falls City Shirt Mfg. Co., 3 A. B. R. 437, 98 Fed. 592 (D. C. Ky.). § 2205 DISTRIBUTION TO CREDITORS. 1357 for future rent after bankruptcy. i^" And. he has priority in lowa/^^ although in Iowa it is waived by the taking of a mortgage and the com- minghng of rent with other payments. ^^^ Likewise, the landlord has priority in West Virginia ;^-^ and his priority takes precedence of all liens created after the beginning of the tenant's term, and whether distress war-" rant be issued or not.^^i § 2205. Priorities for Furnishing Supplies and Materials for Man- ufacturing Establishments: Fiduciary Debts as Guardian: Com- munity Property of Husband and Wife, etc. — There are various other claimants entitled to priority on the distribution of an insolvent's estate under state law, whose rights have been passed upon in bankruptcy. Thus has been considered the priority of those furnishing materials or sup- plies for manufacturing establishments in various states. ^-^ A fiduciary debt due from the bankrupt as , guardian in Kentucky is entitled by statute to priority of payment on distribution regardless of in- ability to trace the trust funds, and it has the same priority in bank- ruptcy ;^23 ]3^-,|- j-|ot so in Michigan, because it is not conferred as a general right of priority there. ^^^ Again, the bankruptcy law preserves the priority of community cred- itors upon community property of husband and wife, where that species of property right exists. ^^s It has been held that because the peculiar laws of Louisiana permit an insolvent husband to pay back the "dation en paiement" to his wife, such payment not being considered fraudulent, therefore such payment is good in bankruptcy though made within the four months, as being a "priority" under § 64 (b) (5).i26 g^^^ such use of the term "priority" is unwarranted. "Priority" doubtless means simply a right to payment before others out of an insolvent's estate upon its seizure and distribution. This case seems to have been a clear case of "preference" under § 60 although not a "fraudulent" transfer. 117. In re Jefferson, 2 A. B. R. 208, 93 Fed. 948 (D. C. Ky.), 118. In re Byrne, 3 A. B. R. 268, 97 Fed. 762 (D. C. Ky.). 119. In re Wolf, 3 A. B. R. 558, 98 Fed. 74 (D. C. Iowa). 120. In re Mclntyre, 16 A. B. R. 80, 142 Fed. 593 (D. C. W. Va.). . 121. In re Mclntyre, 16 A. B. R. 80, 142 Fed. 593 (D. C. W. Va.). 122. In re West Norfolk Lumber Co., 7 A. B. R. 648, 112 Fed. 767 (D. C. Va.); Mott v. Wissler Mfg. Co., 14 A. B. R. 321, 135 Fed. 697 (C. C. A. Va.); In re Falls City Shirt Mfg. Co., 3 A. B. R. 437, 98 Fed. 592 (D. C. Ky.). 123. In re Crow, 7 A. B. R. 545, 116 Fed. 110 (D. C. Ky.). 124. In re Jones, 18 A. B. R. 206 (D. C. Mich.). 125. In re Chavez, 17 A. B. R. 641, 149 Fed. 73 (C. C. A. N. Mex.) : Here, however, the question again arises as to whether this is a right of priority merely or a lien. 126. Gomila v. Wilcombe, 18 A. B. R. 147, 151 Fed. 470 (C. C. A. La.). Compare, ante, § 2188. 1358 remington on bankruptcy. § 2208 Division 4. Dividends to General Creditors. . § 2206. Dividends to General Creditors. — Whatever is left after costs, expenses and priority claims have been paid in full, is to be paid in divi- dends of equal percentum to general creditors. ^-'^ § 2207. To Be Paid in Two Dividends.— The fund thus left for general creditors is to be divided into not less than two dividends : The first dividend must not exceed half of what would be left for gen- eral creditors, after payment of costs and priority claims and after making allowance for costs, expenses and priority claims that probably will there- after be allowed. The final dividend is not to be declared until three months after the first dividend shall have been declared. ^^^ § 2208. Purpose of Tw^o Dividends Protection of Dilatory Cred- itors. — This provision and the preceding provision were introduced by the amendment of 1903. It had been found that the efforts of Congress to have bankruptcy proceedings expeditious had resulted in some instances in the estate being paid out too rapidly, so that frequently creditors who happened for some cause or other to be delayed in filing their claims, were left out. For this reason Congress prescribed that where there w-as a fund for distribution to general creditors there should always be at least two dividends made of it and that thQ.re should be at least three months between the first and last one. However, owing to the peculiar wording of the amended act, there is no hindrance to the- declaration of a second dividend, provided it be not a "final" dividend, within a few days after the first dividend ; nor is there anything to prevent such second dividend ab- sorbing almost all the remaining fund. All that is requisite is that the final dividend be not declared until three months after the first dividend. Not only claims already allowed but those to be allow^ed are to be taken 127. Bankr. Act, § 65 (a) : "Dividends of an equal per centum shall be de- clared and paid on all allowed claims, except such as have priority or are secured." Meaning of Dividends as Construed before Amendment of 1903. — As to meaning of word -dividends" as a basis for figuring the commissions of the referee and trustee under the law before its amendment in 1903, see: In re Hinckel Brewing Co., 10 A. B. R. 692, 124 Fed. 702 (D. C. N. Y.) ; In re Muhl- hauser, 9 A. B. R. 80 (Ref. Ohio); In re Coffin. 2 A. B. R. 344 (Ref. Tex.); In re Gerson. 2 A. B. R. 352 (Ref. N. Y.) ; In re Barber, 3 A. B. R. 306, 97 Fed. 547 (D. C. Minn.). Compare, In re Goldsmith. 9 A. B. R. 419, 118 Fed. 763 (D. C. Tex.). 128. Bankr. Act, § 65 (b) added by amendment of 1903: "Provided, That the first dividend shall not include more than fifty per centum of the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as probably will be allowed: And provided further. That the final dividend shall not be declared within three months after the first dividend shall be declared." § 2213 DISTRIBUTION TO CREDITORS. 1359 into account in arriving at the proper dividend to be declared for the first dividend. § 2209. First Dividend. — The first dividend must be declared within thirty days after the adjudication if there is money in the estate and if the money is enough to pay five per cent, on claims already allowed after deducting costs and other priority claims. ^^^ § 2210. Dividend within Thirty Days after Adjudication Required Only Where Money in Estate. — Of course, if the assets have not been converted into money, the rule that the first dividend must be paid within thirty days after the adjudication does not apply. It only applies where the assets have been converted into money, in whole or in part, in time for such dividend to be declared within thirty days after the adjudication; as, for instance, where the estate already has been converted into money by an assignee or receiver in the state court who has been obliged to turn over the proceeds to the bankruptcy trustee ; also, where the assets have been sold by the bankruptcy receiver or trustee, as perishable property. § 2211. Subsequent Dividends. — Dividends subsecjuent to the first are to be declared upon like terms as the first and as often as the amount equals ten per cent, or more and upon closing the estate. Dividends may be declared oftener and in smaller proportions if the judge shall so order. It has been held that a meeting of creditors to declare a final dividend may be combined with a final meeting. ^-^'^ § 2212. Dividends Need Not Be Returned because of Filing of Subsequent Claims. — Dividends once paid out need not be returned be- cause of the filing of subsequent claims that would have prevented the declaring of so large a dividend had they been allowed beforehand. ^-^^ § 2213. Claims Subsequently Filed, to Receive Prior Dividends before New Dividend Declared. — Creditors filing claims, or having 129. Bankr. Act, § 65 (b) : "The first dividend shall be declared within thirty- days after the adjudication, if the money of the estate in excess of the amount necessary to pay the debts which have priority and such claims as have not been, but probably will be, allowed equals five per centum or more of such allowed claims. Dividends subsequent to the first shall be declared upon like terms as the first and as often as the amount shall equal ten per centum or more and upon closing the estate. Dividends may be declared oftener and in smaller proportion if the judge shall so order." 130. In re Smith, 2 A. B. R. 648 (Ref. N. Y.). 131. Bankr. Act, § 65 (c) : "The rights of creditors who have received divi- dends, or in whose favor final dividends have been declared, shall not be af- fected by the proof and allowance of claims subsequent to the date of such payment or declarations of dividends." 1360 REMINGTON ON BANKRUPTCY. § 2217 claims allowed, after the declaration of one dividend are entitled to that dividend first before another dividend is declared to all creditors. ^^2 § 2214. Need Not Retain Funds until Expiration of Year's Limita- tion for Proving Claims. — Because creditors are not prohibited from proving claims until the expiration of a year after the adjudication, does not require the trustee to hold the funds until the expiration of the year, nor does it prevent the closing of the estate beforehand. ^^^ In re Bell Piano Co., 18 A. B. R. 185 (D. C. N. Y.): "To say that a final dividend shall not be declared within three months after the first dividend is de- clared, does in my judgment, say by implication that a, final dividend may be de- clarad on the expiration of three months from the time of the first divi- dend. All creditors inust have notice of the first meeting, and if the creditors v/ho have not yet proved their claims do not then prove them they may then lawfully, as well as justly, be debarred from participation in the funds in hand when the final meeting is held." § 2215. "Ten Days Notice" of "Dividends."— Ten days notice by mail must be given to all creditors of the declaration and of the time of payment of the dividend, unless the notice is waived in writing. ^^^ § 2216. "Dividend Sheets." — Dividend sheets, in the form prescribed by the Supreme Court as No. 40, are to be made out by the referee, stating the names of creditors and the dividend payable to each, and delivered by the referee to the trustee for the latter to use as a guide in paying out divi- dends. § 2217. Unclaimed Dividends. — Dividends which remain unclaimed for six months after the final dividend has been declared are to be paid by the trustee into court. ^^o Dividends remaining unclaimed for one year are, under thQ direction of the court, distributed to the creditors whose claims have been allowed but not paid in full, and after such claims have been paid in full, the balance Vv'ill be paid to the bankrupt : Provided, that in case unclaimed dividends belong to minors, such minors have one year after arriving at majority to claim such dividends. ^>^'^ 132. Bankr. Act, § 65 (c) : "But the creditors proving and securing the al- lowance of such claims shall be paid dividends equal in amount to those already received by the other creditors if the estate equals so much before such other creditors are paid any further dividends." Compare practice, before the amendment of 1903 required two dividends, where not enough was left over to pay the subsequent creditors the first divi- dend because of the filing of attorney's fee bills meanwhile, In re Scott, 3 A. B. R. 324, 93 Fed. 418 (D. C. Tex.). 133. In re Stein, 1 A. B. R. 662, 94 Fed. 124 (D. C. Ind.). 134. Bankr. Act, § 58 (5). 135. Bankr. Act, § 66 (a). 136. Bankr. Act, § 66 (b). § 2220 DISTRIBUTION TO CREDITORS. 1361 § 2218. Contracting to Postpone One's Dividend to That of Other Creditors. — Creditors undoubtedly may, by contract, postpone their own dividends to those of others ; as, for instance, where, on reorganization of a corporation, the 'Old creditors agree that, in case of failure of the new or- ganization, they will postpone their dividends to those of subsequent credi- tors. SUBDIVISION "a." Adjusting Equities in Dividends among Creditors. § 2219. Adjusting Equities in Dividends among Creditors. — The various equities existing among general creditors, and between creditors and others in the dividends, may be determined and adjusted, in the order of distribution. i'^^ § 2220. Postponing Dividends of Some Creditors to Others, Be- cause of Equities. — Under the power of the court to adjust the equities existing among general creditors, it has been held that the claims of cred- itors who have not been guilty of preferences voidable under the peculiar provisions of the Bankruptcy Act, but have been guilty of conduct which, under the ordinary rules of equity, would make it inequitable for them to share in the dividends on an equality with other creditors, may be post- poned to the claims of other creditors in the distribution of dividends. ^^8 In re Rude, 4 A. B. R. 319, 101 Fed. 805 (D. C. Ky.) : "In order to settle and distribute a bankrupt's estate, all questions necessary to the ascertainment of the amount to be paid to each party to the proceedings must be adjudicated and determined by the court." Compare, as to limitations of rule, In re Girard Glazed Kid Co., 14 A. B. R. 485, 136 Fed. 511 (D. C. Pa.): "This is a dispute that has nothing to do with the bankruptcy proceedings, nor with the ascertainment of the true amount of the claim. It is a controversy growing out of a transaction that took place between these two persons, before the petition was filed, and concerns a sum of money that came into Barbara Swartz's possession at that time, and ha^ remained in her possession ever since. It is an independent controversy about the ownership of money that is not a part of the fund for distribution, and this court cannot take jurisdiction of the dispute and decide it in the roundabout manner that lia= been suggested. If Barbara Swartz has money in her possession that belongs to Clara Illingsvvorth ex aequo et bono, the proper tribunal is open for an appropriate suit. To take other money from the former and ilecree it to the 137. Bankr. .\ct. § 2 (7). 138. In re Siegel-Hillman Dry Goods Co., 7 A. B. R. 351 (D. C. Mo., reversed in Swarts v. Siegel, 8 A. B. R. 689, 117 Fed. 13). In re Royce Dry Goods Co., 13 A. B. R. 267, 133 Fed. 100 (D. C. Mo.): In this case it was suggested that the dividend on the claim of the president of the bankrupt corporation should be subjected to the priority of the claim of a creditor who had been misled by the false statements of the president as to the assets and had suffered loss in consequence. Compare, In re Rochford, 10 A. B. R. 608, 124 Fed. 182 (C. C. A. S. Dak.). 2 Rem B— 11 1362 REMINGTON ON BANKRUPTCY. § 2221 latter in this proceeding, would be to confuse two distinct and separate suits, having nothing to do with each other. Of the action in bankruptcy, the District Court has jurisdiction; but it has no jurisdiction of a suit to recover from Bar- bara Swartz any excess of payments that she may have received under the agreement of January 20, 1903." Thus, again, where certain of the private creditors of a husband who had become such before his failure and the selhng out of his business, under a composition arrangement to his wife, are subsequently paid in full by him, but without her knowledge, while acting as her manager, it was held that such creditors might not share on an equality with other creditors in the dividends. ^^^ Thus, also, where a chattel mortgage was withheld from rec- ord by agreement, but no claim was made thereunder, the debt itself was held to be provable but subordinate to the claim of one from whom a loan was secured on representations made at the mortgagee's instance that the property was clear and free, the money being used to pay the mortgagee. ^^"^ Again, where the holder of the bankrupt's note had received a preferen- tial payment on account from the bankrupt, and the endorser had paid after the bankruptcy the balance due thereon, it was held that the bankruptcy court would adjust the equities by requiring the endorser to surrender the preference in the first instance rather than have the creditor surrender and then come upon the endorser to make up the deficiency. ^^^ And the court, it has been held, may postpone the dividends of a creditor who has entered into a combination to hinder, delay and defraud the other creditors. In re Headley, 3 A. B. R. 272, 97 Fed. 765 (D. C. Mo.) : "Urder all the authorities, this was a fraudulent combination and scheme, which should postpone the claim of said bank for the amount of said judgment against the bankrupt estate. The Bankrupt Law is administered upon lines of equity jurisprudence, and, as be- tween contending creditors, the bankrupt court, in the interest of fair deal- ing and good conscience, has -the unquestioned power to postpone the claim of such a creditor in favor of the other creditors." Undoubtedly, also, certain creditors could by contract or estoppel cause their claims to be subordinated to other creditors, even to other unsecured creditors. ^^- § 2221. Thus, Dividing Fund, on Setting Aside Void Transfer, Solely among "Subsequent" Creditors. — Likewise, it has been held that the court may divide the fund among subsequent creditors to the exclu- sion of antecedent creditors, where an unrecorded chattel mortgage by the state law is void only as to subsecjuent creditors. ^^-'^ 139. Tn re Knox, 3 A. B. R. 371, 98 Fed. 585 (D. C. N. Y.). 140. Tn re Ewald & Brainard, 14 A. B. R. 267, 135 Fed. 168 (D. C. Iowa). 141. In re Seigel-Hillman Dry Goods Co.. 7 A. B. R. 351 (D. C. Mo., re- versed in Swarts v. Siegcl, 8 A. B. R. 689, 117 Fed. 13). 142. See ante, § 2218. 143. In re Cannon, 10 A. B. R. 64, ]21 Fed. 583 (D. C. S. C). § 2227 • DISTRIBUTION TO CREDITORS. 1363 § 2222. Rquiring Surrender of Illegal Advantage before Allowing to Share in Dividends. — The court, it has been held, may require the surrender of an illegal advantage obtained by one creditor over others be- fore allowing his claim to share in the dividends.^'*-* And in the same case it was held that this is so, although the debt sought to be allowed is a diflferent one from that upon which the illegal advantage accrued. § 2223. Requirement of Surrender of Preferences before Allowing to Share in Dividends. — The court also has power expressly conferred by § S7 of the act not to allow a creditor who has received a preference \oidabIe under § 60 to share in dividends until the preference is surren- dered. This subject however, has been treated in extenso in previous parts of this treatise. ^"^^ subdivision '"b." Subjection of Dividends by Garnishment and Equitable Action. § 2224. Dividends Not to Be Subjected by Garnishment. — The trus- tee may not be garnisheed for dividends 'in his hands. The dividend does not belong to the creditor until it is paid to him.^^'^ § 2225. But Probably May Be by Equitable Action.— But probably dividends may be subjected by equitable action wherein a receiver is ap- pointed to apply to the bankruptcy court for the dividends. § 2226. But Bankruptcy Court No Jurisdiction to Entertain Such Action. — But the bankruptcy court will not entertain such an action. ^^" § 2227. If Bankrupt Garnishee, Trustee to Respond. — Where the bankrupt was garnishee in a proceedings pending at the time of bankruptcy, the trustee may be required to respond, but only to the extent of dividends 144. In re Chaplin, S A. B. R. 121, 115 Fed. 162 (D. C. Mass.): In this case a debtor, entering into a composition before bankruptcy with his creditors, secretly paid one of them more than the amount stated in the composition; the court held the preference so given to be fraudulent and voidable for two rea- sons; (1) because the transaction was an oppression of the debtor by the cred- itor; (2) because it was a fraud committed by both the debtor and the preferred creditor upon the other creditors ignorant of the preference; and the court further held that, on subsequent bankruptcy, such preference should not be treated as a set-off either to reduce the preferred creditor's claim or against the dividend to be received thereon, but must be surrendered before the cred- itor could prove an independent debt. 145. See ante, § 768. 146. [1867] In re Cunningham, 19 N. B. Reg. 276; [1867] In re Chisholm, 4 Fed. 526; [1867] Gilbert VeQuimby, 1 Fed. Ill; [1867] In re Kohlsaat, 18 N. B. Reg. 570. 147. Compare, analogously. In re Girard Glazed Kid Co., 14 A. B. R. -185, 136 Fed. 511 (D. C. Pa.). 1364 REMINGTON ON BANKRUPTCY. § 2230 clue the party i^"^^ and the garnishment proceeding may be stayed until the dividend can be ascertained. ^^^ The bankruptcy court retains jurisdiction however, and the state court can enforce its order only through application to the bankruptcy court. ^^^ Attorney's Lien on Client's Dividend. § 2228. Bankruptcy Court Has Jurisdiction over Attorneys' Lien Claims. — Liens claimed by attorneys for services rendered in the ba,nk- ruptcy proceedings, upon dividends coming to clients, may be adjudicated in the bankruptcy court. ^^^ § 2229. Attorney's Right to Lien. — Probably an attorney in bank- ruptcy proceedings may assert a lien on his client's dividends, for services performed in relation thereto. ^^^ Presumably the right to such lien would not be determined by local law, as would be the case had the lien originated before bankruptcy, but would be regulated wholly by general bankruptcy practice. The case In re Rude, 4 A. B. R. 319, 101 Fed. 805 (D. C. Ky.), seems to be the only case on the point under the present law. Division 5. Administration and Distribution oe Partnership and Individuai, Assets and Debts in Partnership and in Individuai. Bank- ruptcies Respectively. SUBDIVISION "a." Administration and Distribution in Partnership Bankruptcies in General. § 2230. In General. — In cases where partnerships are in bankruptcy the administration of the estate and the distribution of the assets follow rules of their own. Owing to the dual capacity of a member of a partner- ship, an anomalous condition exists. A partnership, is an association of 148. In re St. Albans Fdy. Co., 4 A. B. R. 594 (Ref. Vt.). 149. In re St. Albans Fdy. Co., 4 A. B. R. 594 (Ref. Vt). 150. In re St. Albans Fdy. Co., 4 A. B. R. 594 (Ref. Vt.). 151. In re Rude, 4 A. B. R. 319, 101 Fed. 805 (D. C. Ky.). 152. In re Rude, 4 A. B. R. 319, 101 Fed. 805 (D. C. Ky.). Compare, Cowley V. R. R. Co., 159 U. S. 575; compare, R. R. Co. z'. Pettus, 113 U. S. 127. Attorney's Fee as Part of Mortgage or Mechanic's Lien. — As to attorney's fee claimed as part of mortgagee's lien, see In re Roche, 4 A. B. R. 369, 101 Fed. 956 (C. C. A. Tex.). Also, see ante, § 671. As to attorney's fee claimed as part of lien on foreclosure of mechanics' lien in state court, see In re Adamo, 18 A. B. R. 180 (D. C. N. Y.). § 2231 DISTRIBUTION TO CREDITORS. 1365 individuals, and yet in many of its relations is to be considered an entity. The members are in the bankruptcy court in two capacities, as partners and also as individuals. There are several distinct yet connected estates thrown together in one administration, and the creditors of each have their sep- arate rights and at the same time have their rights to share in the surplus of the other's estate. It will be well, even at the risk of repetition, to lay down, separately, some of the rules relative to the administration of part- nership bankruptcies. § 2231. Where Partnership Bankrupt, Individual Estates Brought in Though Individuals Not Adjudged Bankrupt. — Whether or not the partners are adjudicated bankrupt individually as well as partne^rs, the individual estate of each member is nevertheless brought into the bank- ruptcy court for administration. ^^^ Dickas v. Barnes Tr., 15 A. B. R. 567, 140 Fed. 849 (C. C. A. Ohio): "For the appellants it is contended that the court, having refused to declare them bankrupts, had no authority to treat them and their property as if they were bankrupts. Although there are several assignments of error on each appeal, they all rest on this contention. The argument is that not being bankrupts they are not subject to the jurisdiction of the bankruptcy court; that the refusal to declare them bankrupts put an end to the authority of the court to retain control of their property for the purpose of the bankruptcy proceeding; and it is complained that the court by its order in effect denied to them the immunity to which they were entitled by reason of the provisions of the Bankruptcy Act. By § 4b wage earners and tillers of the soil are excepted from those who may be adjudged involuntary bankrupts. And for our present purpose we think the other appellants, who committed no act of bankruptcy, might be regarded as standing on the same footing as those who by reason of their occupation were exempt from an adjudication of bankruptcy. It may be conceded that but for the relation of these parties to the partnership, the contention they make, would be supported by perfectly adequate reasons. But on account of that re- lation other conditions exist. One who combines with others in a partnership enterprise becomes bound for the payment of the partnership debts. As part- ner he shares the fortunes of the partnership. In certain circumstances it may become subject to the exercise of the powers of a court of bankruptcy where its resources will be gathered in to satisfy the claims of creditors. One of those resources is the liability of the partner, for which his individual property stands charged. It is true that by virtue of the rule in equity, as well as in bankruptcy, for the marshaling and distribution of assets, his individual prop- erty is first applicable to the payment of his private debts, if there be any; the surplus then becomes assets for the payment of the partnership creditors. These consequences of partnership are not derived from the Bankrupt Act, but from the general law; and a partner is not relieved from them by his exemp- tion from an adjudication of bankruptcy. If bankruptcy does not supervene, they would be worked out by a court of general jurisdiction, and the partner would be a party, a necessary party, to the record so that its liability for the firm debts could be enforced. In the bankruptcy court the partner may be brought before the court for the same purposes. In order to reach his property 153. Bankr. Act, § 6 (c). 1366 REMIXGTOX ON BAXKRUPTCY. § 2233 for the payment of the firm debts, it must be ascertained what surplus there will be after paying his private debts. It is said, however, that this must be done in a State court. But however this might be if he were a stranger, the partner is not to be regarded as a stranger, but as a party to the bankruptcy proceedings; and the court had authorit}- to take such proceedings as were necessary to ascertain what assets were available and to subject them to the requirements of the case before it." In re Wing Yick Co., 13 A. B. R. 757 (D. C. Hawaii): "i\lthough a partner- ship may be adjudged bankrupt without adjudging the partners bankrupt, yet in such case both the partnership assets and the individual assets of the part- ners are administered by the trustee and marshaled to prevent preferences and secure the equitable distribution of the property of the several estates." Obiter, In re Meyer, 3 A. B. R. 559, 98 Fed. 976 (C. C. A. N. Y.) : "We are of the opinion that it is the scheme of these provisions to treat the partnership as an entity which may be adjudged a bankrupt by voluntary or involuntary proceeding, irrespective of any adjudication of the individual partners as bank- rupt, and upon an adjudication to draw to the administration the individual estates of the partners as well as the partnership estate, and marshal and dis- tribute them according to equity. The assets of the individual estates and the debts provable against them can be ascertained without adjudicating the indi- vidual partners bankrupt. The language does not require such an adjudication." § 2232. And "Consent" Not Necessary. — It has been held, to be sure, that where an individual member is not also adjudged bankrupt or does not "consent." the adjudication of the partnership will not draw into the administration the individual estate ;^^^ nor even permit administration of the firm assets ;^^^ but these rulings arise from a misconception of the scope of § 5 (h) : "Consent" is requisite only when it is sought to adminis- ter firm assets in an individual bankruptcy ; certainly not w-hen it comes to the administration of a bankrupt partnership itself. Clearly § 5 (h) so reads. Without the statutory provision the rtile would necessarily be the same ; for the firm would not be insolvent unless each and every mem- ber were also insolvent. No "consent" of the individtial member is req- uisite -in cases of partnership bankruptcies for administration either of firm assets or of individual assets. ^■^'^ § 2233. Partnership Trustee, Trustee Also of Individual Estates. — ■ As previously noted. ^•'" the creditors of the partnership elect the trustee in partnership bankruptcies. The trustee elected by the partnership creditors becomes, by virtue of his ofifice, trustee of each of the individual estates of the sieveral part- 154. Strauss v. Hooper, 5 A. B. R. 228, 105 Fed. 590 (D. C. X. Car.). Com- pare, ante, § 65. 155. In re Blair, 3 A. B. R. 580 (D. C. N. Y.). 156. Compare post, § 2251. 157. See ante, § 866. Bankr. Act, § 5 (Id) : "The creditors of the partnership shall appoint the trustee." Obiter, In re Eagles & Crisp, 3 A. B. R. 733, 99 Fed. 696 (D. C. N. Car.). § 2236 DISTRIBUTION TO CREDITORS. 1367 ners.i-'^'' i^^^d {[^is. is so, even where the incHvidual member is not him- self, individually, a bankrupt. Thus, even where an individual member is not himself a bankrupt, it has been held, that his assignee may be ordered summarily to turn over the individual assets for administration in the partnership bankruptcy, ^^'^ although this decision carries the rule too far, the nullification of the assign- nient being dependent upon the assignor's adjudication as bankrupt, and where he is not adjudged bankrupt, the state court retaining jurisdiction. ^^"^ § 2234. Separate Accounts to Be Kept and Joint Expenses Ap- portioned. — The administrations of the partnership estate, and of the several individual estates of the diiTerent partners, are to be kept distinct. Separate accounts are to be kept and joint expenses are to be "appor- tioned."^''^ § 223?. Property Originally Individual, Becoming Partnership, to Be Administered as Such. — Property originally owned by one or more of the partners, and used in the partnership business, may be joint or separate estate, as may be agreed upon between the partners either in writing or by parol agreement. ^*5 2 § 2236. Agreement Not Necessarily Express. — The parol agreement need not be express but may be proved by a course of conduct, as by entries upon the partnership books, or by circumstantial evidence. ^''•^ Thus, real estate standing in one partner's name may be shown to be partnership property. ^^-^ 158. Bankr. Act, § 5 (c) : "The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the admin- istration of the partnership and individual property." 159. In re Stokes, 6 A. B. R. 262, 106 Fed. 312 (D. C. Penna.). 160. But a lien suffered by a member of a bankrupt partnership to be taken on his individual property, by legal proceedings, within four months of the part- nership, has been held not avoided by the partnership bankruptcy. In re Lehigh Lumber Co., 4 A. B. R. 221, 101 Fed. 216 (D. C. Pa.). 161. Bankr. Act, § 5 (d) : "The trustee shall keep separate accounts of the partnership property and of the property belonging to the individual partners." Bankr. Act, § 5 (e) : "The expenses shall be paid from the partnership prop- erty and the individual property in such proportions as the court shall deter- mine." 162. Instance of cr)ntribution to partnership enterprise evidenced in writing: Seat in stock exchange standing in one partner's name. In re Hurlbutt, 13 A. B. R. 50, 135 Fed. 504 (C. C. A. N. Y.)'. Instance of facts insufficient to prove contribution: Seat in stock exchange; Burleigh v. Foreman, 12 A. B. R. 88, 130 Fed. 13 (C. C. A. Mass.). 163. In re Swift, 9 A. B. R. 237, 118 Fed. 348 (D. C. Mass., reversed for in- sufficiency of facts, Burleigh z: Foreman, 12 A. B. R. 88, C. C. A.). Compare, analogously, In re Jones, 8 A. B. R. 626 (D. C. N. Car., reversed sub nom. Davis i: Turner, 9 A. B. R. 704, 120 Fed. 605, C. C. A.). 164. In re Mosier, 7 A. B. R. 268, 112 Fed. 138 (D. C. Vt.) ; In re Groetzinger, 11 A. B. R. 723, 127 Fed. 814 (C. C. A. Penn., affirming 6 A. B. R. 399). 1368 REMINGTOX ON BANKRUPTCY. ^ 2238 § 2237. Partnership Debts "Provable" against Individual Both in Partnership and in Individual Bankruptcy, Likewise Individual Debts against Partnership. — Partnership debts are "provable" against the individual estates of the several members, either in partnership cases or in individual cases; and likewise individual debts are "provable" against the partnership share of the individual members either in partnership or individual cases : the priority of right to share in the particular fund does not affect the provability. In re Hee, 13 A. B. R. 8 (D. C. Hawaii): "It is not necessary for the court to decide this point because it makes no difference as to their right of petition- ing for the adjudication of L. Hee as a bankrupt, whether they were creditors of a partnership of which he was a member or whether they were creditors of L. Hee in his individual capacity, a partner of the partnership being liable for all the partnership debts." Thus, partnership debts are provable in the individual bankruptcy of a member.i*^^ In re Bates, 4 A. B. R. 56, 100 Fed. 263 (D. C. Vt.) : "* * * the individual assets may have been applied to individual debts to the exclusion of partner- ship debts till after the individual debts are all paid, and there may never be anything whatever to go to the partnership creditor; but his debt is none the less provable. Whether a debt is provable depends upon the nature of the lia- bility, and not upon whether there are assets, or there is any prospect of assets, applicable to it. This partnership debt is a simple contract debt of the part- nership, and a simple contract liability of the bankrupt, and the individual debt is a similar liability, and both are of the provable class." In re Mercur, 2 A. B. R. 627, 95 Fed. 634 (D. C. Pa.): "The creditors of a partnership are also creditors of each individual member, and have a right to petition against him, as well as against the firm. This has been several times decided, and is supported by principle no less than by authority. How far the partnership creditors may be entitled to share in the distribution of the sepa- rate property of each member is a distinct question, which can only be de- termined hereafter when the assets come to be marshaled." § 2238. Partnership Creditors to Exhaust Partnership Assets, In- dividual Creditors to Exhaust Individual Assets; Each to Share in Other Only in Surplus. — Partnership creditors have the right to be first paid in full out of the partnership assets before any other creditors ; and individual creditors have the right to be first paid in full out of the re- t^pective individual estates before any other creditors ; but the creditors of the partnership estate may, after exhausting the assets of the partnership €state share in any surplus of the individual estates left after paying the creditors of the individual: and vice versa. ^^^ 165. Jarecki Mfg. Co. v. McElwaine, 5 A. B. R. 751, 107 Fed. 249 (C. C. Ind.); Loomis v. Wallblom, 13 A. B. R. 687, 94 Minn. 392; In re Kaufman, 14 A. B. R. 393, 136 Fed. 262 (D. C. N. Y.) ; impliedly. In re Hartman, 3 A. B. R. 65, 96 Fed. 593 (D. C. Iowa); impliedly. In re McFaun, 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa); Deaf & Dumb Institute v. Crockett, 17 A. B. R. 237 (N. Y. Sup. Ct. App. Div.). 166. Bankr. Act, § 5 (f) : "The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds § 2238 DISTRIBUTION TO CREDITORS. 1369 In re Stein & Co., 11 A. B. R. 536, 127 Fed. 547 (C. C. A. Ills.): "The pres- ent Bankruptcy Act recognized the equitable rule that partnership property is primarily a fund for the payment of copartnership debts, and that the interest of a copartner is subject to that special equity, and attaches only to the surplus remaining after the payment of the copartnership debts." Vaccaro v. Security Bk., 4 A. B. R. 482, 103 Fed. 436 (C. C. A. Tenn.) : "It is true that in equity the individual debts of a partner are entitled to be first paid out of the individual property and firm debts out of partnership property, but in each case the surplus, after providing for the preferred debt, is apvpHcable to the payment of debts of the other class. "This too is the order of payment prescribed by § 5 of the Bankrupt Act of 1898." Obiter, Buckingham v. First Nat. Bk., 12 A. B. R. 469, 131 Fed. 849 (C. C. A. Tenn.) : "This is a statutory statement of a general rule early adopted in England (Ex parte Crowder, 2 Vernon 706), upon which, subsequently, an ex- ception was engrafted to the efiFect that firm creditors may share in the indi- vidual assets in competition with individual creditors, if there be no firm assets and no solvent partner." Jacobs V. Van Sickel, 10 A. B. R. 519, 123 Fed. 340 (D. C X. J.): "Then, too, Kline may be assumed to know that in any bankruptcy proceedings, even if of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any partner after paying his in- dividual debts, such surplus shall be added to the partnership assets and be ■ applied to the payment of the partnership debts. Should any surplus of the partnership prtiperty remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respective interests in the partnership." Bankr. Act, § 5 (g) : "The court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may mar- shal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates." In re Wilcox, 2 A. B. R. 117, 94 Fed. 84 (D. C. Mass.); In re Janes. 13 A. B. R. 341, 133 Fed. 912 (C. C. A. N. Y., reversing 11 A. B. R. 792); Jarecki Mfg. Co. I'. McElwaine, 5 A. B. R. 751, 107 Fed. 249 (D. C. Ind.); In re Denning, 8 A. B. R. 133, 144 Fed. 219 (D. C. :Mass.) ; inferentially. In re Groetzinger. 11 A. B. R. 723, 127 Fed. 814 (C. C. A. Pa., affirming 6 A. B. R. 399); inferentially. In re Corcoran, 12 A. B. R. 283 (Ref. Ohio, affirmed by D. C.) ; In re Hobbs & Co., 16 A. B. R. 548, 145 Fed. 211 (D. C. W. Va.). This rule is said to apply only in cases where both the partnership and the individual estates are before the court for distribution. Conrader v. Cohen, 9 A. B. R. 619, 121 Fed. 801 (C. C. A. Penn.), affirming In re Conrader, 9 A. B. R.. 85, 118 Fed. 676. Contra, In re Wilcox, 2 A. B. R. 117, 94 Fed. 84 (D. C. Mass.). After the expiration of the year within which claims maj^ be filed, a creditor Avho holds a firm note with individual meinbers' endorsements thereon, and who has proved the same solely against the partnership estate, will not be permitted to amend so as to prove them against the individual estates as well. In re McCallum, 11 A. B. R. 447, 127 Fed. 768 (D. C. Penn.). This rule is said to be simpl}^ declaratory of the common rule of equity so far as concerns the right of partnership creditors to priority of payment out of firm assets, but to state a new rule as to individual creditors; for in equity part- nership creditors have a lien on partnership assets for the payment of firm debts, but individual creditors have no such lien on individual assets. In re Mosier, 7 A. B. R. 268, 112 Fed. 138 (D. C. Vt.) : "Partnership creditors have a lien, in equity, upon partnership property for the payment of partnership debts. * * * gy^ individual creditors have no lien at common law or in equity, upon individual property against partnership creditors for individual debts. That right is provided for by, and rests 'wholly upon, the Bankrupt Law." Inferentially, In re Janes, 13 A. B. R. 341, 133 Fed. 912 (C. C. A. X. Y.). 1370 REMINGTON ON BANKRUPTCY. § 2241 Van Sickel were a partner in Grant Bros., in the administration of the estates of the partnership and of the partners in bankruptcy the individual estate of each partner was primarily liable for the payment in full of his individual debts." In re Alosier, 7 A. B. R. 269, 112 Fed. 138 (D. C. Vt.) : "Partnership creditors have a lien in equity, upon partnership property for the payment of the partner- ship debts. Washburn v. Bank, 19 Vt. 278. This right is expressly provided for in the Bankrupt Law. Section 5f. But individual creditors have no lien, at common law or in equity, upon individual property, against partnership credit- ors for^individual debts. * * * That right is provided by, and rests wholly upon, the Bankrupt Law." No "exceptions" are to be allowed to the rule; even where a partnership and all its members are adjudicated bankrupt in the same proceedings and there are no partnership assets but only individual assets — the individual creditors must nevertheless be first satisfied out of the individual estates and partnership creditors may only shape in any surplus. i**' § 2239. Section 5 Refers Only to Actual Partnerships, Not Those by "Holding Out."— The provisions of § 5 of the Bankruptcy Act refer only to cases of actual partnerships between the parties, not to partnerships that are merely such as to creditors by "holding out" or otherwise. ^^^^ § 2240. Obligations Signed by Firm Name, Prima Facie Allowable as Firm Debts. — Obligations signed by the firm in the firm name are prima facie allowable against the partnership estate. ^^'^ Thus, an accommodation indorsement in the firm name made by one part- ner will bind the partnership in the hands of a bona fide holder.^'" § 2241. Individual Debt Assumed by Firm Provable against Part- nership if Sufficient Consideration. — The individual debt of a part- ner may be assumed by the firm, if sufficient consideration exists ; and the debt will become a provable debt against the firm estate in bankruptcy. Thus, notes of a new firm are given on sufficient consideration when given to pay the debts of individual partners equal to the value of the re- spective shares contributed by each.^'i Likewise, where a firm assumes all of one partner's assets and liabilities, the partner's individual liabilities be- come firm liabilities and are supported by sufficient consideration, and the transaction is not within the statute of frauds. i'^- Again, a firm note given 167. In re Janes, 13 A. B. R. 341, 133 Fed. 912 (C. C. A. X. Y.); In re Wilcox, > 2 A. B. R. 117, 94 Fed. 84 (D. C. Mass.). 168. In re Kenney, 3 A. B. R. 353, 97 Fed. 554 (D. C. N. Y., affirmed in 5 A B. R. 355, 105 Fed. 897, itself affirmed in Clarke v. Larrimore. 188 U. S. 486). 169. Merchants' Bank v. Thomas, 10 A. B. R. 299, 121 Fed. 306 (C. C. A. Miss.). 170. Union Nat"l Bank v. Neill, 17 A. B. R. 841 (C. C. A. Tex.). But a sealed note in South Carolina does not bind the firm unless the act of both partners. Pollock v. Jones, 10 A. B. R. 616, 124 Fed. 163 (C. C. A. S. Car.;. 171. ^Merchants' Bk. v. Thomas, 10 A. B. R. 299, 121 Fed. 306 (C. C. A. Miss.). 172. In re Dresser, 13 A. 5. R. 747, 135 Fed. 495 (C. C A. X. Y.). § 2244 DISTRIBUTION TO CREDITORS. 1371 by both partners is a valid partnership debt where it is given for an existing business debt of the original partner, who had sold a half interest in his business on condition that the incoming partner assume half of such debt.^^^ Notes given by the firm to settle up a partner's, embezzlement of gov- ernment money, are valid against the firm, wdiere the embezzled money went to pay firm debts. ^"^ On the other hand, notes signed in the firm name by one partner and given by him to a bank in renewal of an individual indebtedness, the bank having knowledge, are not provable against the partnership estate in bankruptcy, where there is not sufficient evidence that the partnership had assumed the indebtedness.^"^ § 2242. But Assumption Must Be Acquiesced in by Creditor. — But the assumption by the firm must be with the knowledge and consent or acquiescence of the creditor, else the obligation remains individual. Thus, the entry of an individual partner's debt on the firm books, un- known to the creditor, and payments thereon from time to time with firm checks, do not change the character of the debt to that of a firm obliga- tion. ^'^^ § 2243. Loan to Enable Partner to Furnish Contributory Share Not Firm Debt. — A loan made by a third party to enable one to furnish his contributory share io a partnership enterprise is not a firm debt. Thus, loans by two fathers to set up their sons as partners in the same business, evidenced by notes signed by both sons in their respective individ- ual names, were held not to be firm obligations, although the money went into the firm business. ^'^ And claims for advancements to further the firm enterprise of a partner in an illegal or ultra vires partnership, com- posed of a corporation and another partnership, may not be proved against the other partnership ; and the corporation which was a de facto partner may not prove its advancements to the partnership enterprise, as a debt against the partnership, on the theory that it was not a partner because of the ultra vires. ^'^ But its advances made prior to its entry into the ultra vires partnership to the others partners (the, present bankrupts) may be proved against the other partners. ^"^ § 2244. Mere Joint Obligations, Not Amounting to Partnership Debts, Not Allowable, on Par with Firm Debts. — Mere joint obliga- 173. Dacovich v. Schley, 13 A. B. R. 752. 134 Fed. 72 (C. C. A. Ala.). 174. In re Speer Bros.. 16 A. B. R. 524 (D. C. Ore.). 175. First Nat'l Bk. of Miles City v. State Nat'l Bk., 12 A. B. R. 429, 131 Fed. 422 (C. C. A. Mont., affirming In re Mclntire, 12 A. B. R. 429). 176. Hibberd v. McGill, 12 A. B. R. 101, 129 Fed. 590 (C. C. A. Pa., affirming In re Wiseman, 10 A. B. R. 550, 123 Fed. 185). 177. Strause v. Hooper, 5 A. B. R. 225 (D. C. N. Car.). 178. Wallerstein v. Ervin, 7 A. B. R. 256, 112 Fed. 124 fC. C. A. Penn., affirm- ing In re Ervin, 6 A. B. R. 356, 109 Fed. 135). 179. In re Ervin, 7 A. B. R. 480, 114 Fed. 596 (D. C. Penn.). 1372 RKMINGTON ON BANKRUPTCY. § 2247 tions, not amounting to partnership obligations, are not allowable against firm assets on a par with firm debts. In re Weisenberg & Co., 12 A. B. R. 418 (D. C. Ky.) : "It is certain that if, for either reason the notes in question must be treated as joint debts, they can- not be allowed as valid claims against the firm assets, on a par with firm creditors." § 2245. Parol Evidence Admissible to Show Obligations Appar- ently Individual, to Be Firm Debts.— Parol evidence is admissible to show that obligations apparently individual are in reality firm debts. ^^^ Thus, parol evidence is admissible to show^ written obligations signed in the individual names of the several partners nevertheless to be firm ob- ligations ; such being held as to notes and a chattel mortgage in the individ- ual names of the partners upon all the firm goods, even where the notes were under seal. § 2246. Partnership Released by Creditor's Acceptance of Individ- ual Obligation. — The partnership, on the other hand, may be released from its obligation on a firm debt by the creditor's acceptance of the individ- ual obligation of one of the partners therefor. ^^^ § 2247. Secret Partner's Claim, Not Debt against Partnership. — A secret partner's claim is not to be allowed as a debt against the partner- ship. ^^^ 180. In re Weisenberg & Co., 12 A. B. R. 418 (D. C. Ky.) ; Davis v. Turner, 9 A. B. R. 704, 120 Fed. 605 (C. C. A. N. Car., reversing In re Jones, 8 A. B. R. 626, 116 Fed. 341). In re Shattuck & Bugh, 6 A. B. R. 56 (Ref. N. Y.) : In this case the court held that claims based on notes signed in individual names of the copartners, who were the sons of the persons who loaned the money on them and became endorsers on other notes, where the payees gave the credit to the firm and not to the individuals, and the proceeds of the notes were used in the business of and for the benefit of the firm, were claims against the partnership. In re Weisenberg & Co., 12 A. B. R. 418 (D. C. Ky.) : In this case the court held that a claim upon the joint note of two partners could not be allowed against the partnership estate in bankruptcy or on a par with firm creditors: but that parol evidence was admissible to show the liability of the makers of the note to be in fact the liability of the firm. The presumption that a partner has knowledge of entries in the firm books is rebutted by his uncontradicted testimony that, though he could have had access to the books, he never examined them. First Nat. Bk. zj. State Bk., 12 A. B. R. 429, 131 Fed. 422 (C. C. A. Mont., affirming In re Mclntire, 12 A. B. R. 787, 132 Fed. 265 (D. C. Mont.). But the creditor's testimony, that he intended to give credit to the firm, has been held inadmissible. In re Weisenberg & Co., 12 A. B. R. 418 (D. C. Ky.). 181. In re Lehigh Lumber Co., 4 A. B. R. 221, 101 Fed. 216 (D. C. Pa.). 182. Instance, Rush v. Lake, 10 A. B. R. 455, 122 Fed. 561 (C. C. A. Wash., re- versing In re Clark, 7 A. B. R. 96, 111 Fed. 893). 2251 DISTRIBUTION TO cre;ditors. 1373 Partnership Debts and Assets in Individual Bankruptcies in General. § 2248. Trustee in Individual Bankruptcy of Partner Not to Inter- fere with Firm Assets, without Consent. — A trustee in bankruptcy of an individual partner has no right to interfere with the firm assets [with- out the consent of the partner not bankrupt]. ^^^ Moses V. Pond, 4 A. B. R. 655 (N. Y. Sup. Ct.) : "There is no view of the scope of the Bankrupt Act which requires the trustee to assume possession of the property of others, or of a partnership, because merely the individual he represents has the ultimate remainder in whatever is left after paying the debts of the partnership, and, possibly, the superior interest of the deceased part- ner." In re Pierce, 4 A. B. R. 489, 102 Fed. 977 (D. C. Wash.): "If the adminis- trator (of the deceased partners estate) will voluntarily surrender possession of the estate, the trustee may take it; but the trustee cannot take possession of any property of which the administrator has custody without his consent." § 2249. Member Bankrupt, but Partnership Not, Remaining Part- ners to Account for Bankrupt's Share. — Where partnership property in which an individual bankrupt has an interest as one of the partners, is not in the custody of the bankrupt's 'trustee, the bankrupt's interest therein is, in general, to be treated like any other joint interest a bankrupt might have. The only right of the creditor's trustee is to require the persons who hold the remaining interests and have possession of the partnership property, to account for the bankrupt's interest. ^^^ § 2250. In What Court Trustee to Seek Accounting. — The trustee must seek such accounting in the court which would have had jurisdiction had there been no bankruptcy. And a state court already in possession need not turn over the assets \^^^ saved that in case questions of preference or transfers voidable as to creditors are involved, the bankruptcy court, of course, might have jurisdiction in conformity with the usual rules. § 2251. Partnership Affairs Not to Be Administered in Individual Bankruptcy, Except by Consent. — And the partnership aifairs are not 183. Ludowici Tile Roofing Co. v. Penn. Inst., 8 A. B. R. 739 (D. C. Pa.); com- pare, In re Mercur, 10 A. B. R. 505, 122 Fed. 384 (C. C. A. Pa.). It has been held, that a trustee in bankruptcy of a partnership may by sum- mary order in the bankruptcy proceedings obtain surrender of assets in the hands of an assignee or administrator of one of the individual members of the partnership although such member is not himself a bankrupt. In re Stokes, 6 A. B. R. 262, 106 Fed. 312 (D. C. Penna.). This decision does not seem to be correct. 184. Deaf & Dumb Institute v. Crockett, 17 A. B. R. 240 (N. Y. Sup. Ct. App. Div.). 185. Inferentially, obiter, jMoses v. Pond, 4 A. B. R. 655 (N. Y. Sup. Ct.). 1374 REMIXXTOX ox BANKRLPTCY. § 2254 f to be administered by the trustee of the individual bankrupt without the consent of the remaining members. ^^^ § 2252. But May Be So Administered if Nonbankrupt Partner Consents. — But partnership assets may be administered in the individ- ual bankruptcy proceedings of one of the partners, if the other partner or partners consent. ^^" § 22-53. "Consent," a Question of Fact. — \\'hen it is that the remain- ing partners shall be deemed to have given "consent" to the administration of their partnership affairs in the individual bankruptcy proceedings of a bankrupt partner, is a question of fact to be arrived at from a consideration of all the circumstances. For the remaining partner to stand idly by without protest, when the trus- tee of his bankrupt partner has assumed administration of the partnership assets, has been held to be such an acquiescence as will amount to a consent to have the partnership affairs administered in the individual bank- ruptcy. ^^^ § 2254. Partnership Property Comes into Individual Bankruptcy Burdened with Lien in Favor of Firm Creditors. — Where partner- ship property comes into the custody of the trustee of the individual estate of one of the partners who is bankrupt, it comes into the custody with a lien. upon it in favor of partnership creditors, and the trustee must satisfy them therefrom before individual creditors. ^^^ 186. Bankr. Act, § 5 (h) : "In the event of one or more but not all of the members of a partnership being adiudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners adjudged bankrupt; but such partner or partners not adjudged bank- rupt shall settle the partnership business as expeditiously as its nature will per- mit, and account for the' interest of the partner or partners adjudged bankrupt." . In re Pierce, 4 A. B. R. 489, 102 Fed. 977 (D. C. Wash.); Moses v. Pond, 4 A. B. R. 655 (Sup. Ct. N. Y.). This provision does not apply to cases where the nonconsenting partner it an infant. In re Dunnigan Bros., 2 A. B. R. 628, 95 Fed. 428 (D. C. Mass.). See In re Blair, 3 A. 13. R. 588, 99 Fed. 76 (D. C. N. Y.), for a curious misun- derstanding of this section, the court therein evidently considering that even in partnership cases firm assets may not be administered in bankruptcy except by consent of the partner not adjudged bankrupt. See In Strause v. Hooper, 5 A. B. R. 228, 105 Fed. 590 (D. C. N. Car.), for another evident misunderstanding of this section, the court therein considering that it means that in partnership cases the individual estates are not necessarily drawn into the administration of the firm assets. This provision does not apply where the nonconsenting partner has sold out to the remaining partner. In re Denning, 8 A. B. R. 133, 114 Fed. 219 (D. C. Mass.). 187. In re Harris, 4 A. B. R. 132, 108 Fed. 517 (Ref. Ohio, affirmed by D. C) ; In re Pierce, 4 A. B. R. 489, 102 Fed. 977. (D. C. Wash.). 188. In re Harris, 4 A. B. R. 132, 102 Fed. 517 (Ref. Ohio, affirmed by D. C); compare, analogouslj^ Chem. Xat. Bk. v. Meyer, 1 A. B. R. 565, 98 Fed. 976 (D. C, N. Y., affirmed In re Meyer, 3 A. B. R. 559, 97 Fed. 757). 189. In re Mosier, 7 A. B. R. 268, 112 Fed. 138 (D. C. Vt.) ; inferentially. In re Head & Smith, 7 A. B. R. 556, 114 Fed. 489 (D. C. Ark.); In re Denning, 8 A. B. R. 136 (D. C. Mass.). § 2255 • DISTRIBUTION TO CREDITORS. 1375 § 2255. Individual Creditors Exhaust Individual Property, Firm Creditors, Firm Property — Each Sharing only in Any Surplus of Other. — Individual debts should first be paid out of the individual bank- rupt's individual estate ; partnership debts out of the partnership property, precisely as in cases where a partnership itself is in bankruptcy. ^^^ Euclid Nat'l Bk. v. Union Trust Co., 17 A. B. R. 834 (C. C. A. W. Va., af- firming In re Henderson, 16 A. B. R. 91, 142 Fed. 588): '"The language of sub- section 'f would seem to be too clear to admit of serious doubt as to its mean- ing, namely, that the estate of the individual bankrupt should be first applied to individual debts, and those of the firm to the firm debts, and that only the surplus of the estate over and above what was necessary to pay the individual debts on the one hand, or the social creditors on the other, could be used and applied alike to the payment and adjustment of the individual and partnership debts, as the case may be. Indeed, the Act plainly limits this latter applica- tion of the assets to the surplus thereof, as distinguished from the estate gen- erally." In re Mills, 2 A. B. R. 667, 95 Fed. 269 (D. C. Ind.) : "The general rule in this kind of cases is thus stated by Chancellor Kent: 'The joint creditors have the primary claim upon the joint fund, in the distribution of the assets of bank- rupt or insolvent partners, and the partnership debts are to be settled before any division of the funds takes place. So far as the partnership property has been acquired by means of partnership debts, those debts have, in equity, a priority of claim to be discharged; and the separate creditors are only entitled, in equity, to seek payment from the surplus of the joint fund after satisfaction of the joint debts. The equity of the rule, on the other hand, equally requires that the joint creditors should only look to the surplus of the separate estates of the partners after pa3'ment of the- separate debts.' 3 Kent. Comm. (lOth Ed.) p. 78." To the same effect, Vaccaro v. Security Bk., 4 A. B. R. 482, 103 Fed. 436 (C. C. A. Tenn.) : "It is true that in equity the individual debts of a partner are entitled to be first paid out of individual property and firm debts out of partner- ship property, but in each case the surplus, after providing for the preferred debts, is applicable to the payment of debts of the other class." 190. In re Wilcox, 2 A. B. R. 117, 94 Fed. 84 (D. C. Mass., cited with approval in In re Daniels, 6 A. .B. R. 700, 110 Fed. 745 [D. C. N. Y.), and not with dis- favor in Buckingham z: Bank, 12 A. B. R. 469, 131 Fed. 192 (C. C. A. Tenn.); In re Henderson, 16 A. B. R. 91, 128 Fed. 527 (D. C. W. Va.); obiter, Jacobs f. Van Sickel, 10 A. B. R. 519, 123 Fed. 340 (D. C. N. J.); In re Bates, 4 A. B. R. 263 (D. C. Vt.), quoted ante, § 2237. In re Corcoran, 12 A. B. R. 283 (Ref. Ohio, affirmed by D. C); Jarecki Mfg. Co. v. McElwaine, 5 A. B. R. 751, 107 Fed. 249 (C. C. Ind.); In re Wiseman, 10 A. B. R. 550, 123 Fed. 185 (D. C. affirmed sub nom. Hibberd z: McGill, 12 A. B. R. 101). Hibberd v. McGill, 12 A. B. R. 101, 129 Fed. 590 (C. C. A.): In an individual bankrtiptcy, a creditor is not bound by the entry of the partnership books of his claim and payments thereon as a partnership obligation. Inferentially, In re Janes, 13 A. B. R. 341, 133 Fed. 912 (C. C. A. N. Y., reversing In re Janes, 11 A. B. R. 792); obiter. In re Mason & Son, 2 A. B. R. 64 (Ref. R. I.); obiter, In re Daniels, 6 A. B. R. 700, 110 Fed. 745 (D. C. R. I.); Deaf & Dumb Institute v. Crockett. 17 A. B. R. 233 (N. Y. Sup. Ct. App. Div.); obiter. In re Diamond, 17 A. B. R. 564 (C. C. A. N. Y.). 1376 REMINGTON ON BANKRUPTCY. . § 2257 § 2256. Even Where No Partnership Assets. — And it makes no dif- ference that there are no partnership assets. ^^^ Euclid Nat. Bk. v. Union Trust Co., 17 A. B. R. 834 (C. C. A. W. Va., affirming In re Henderson, 16 A. B. R. 91) : "The contention, however, is earnestly made that notwithstanding the clear and unambiguous provisions of the Act, and the apparent justice thereof, a different rule should be adopted, and an exception made in cases where there is no partnership estate, and that in such a contin- gency the social creditors have a right to share along pari passu with the individual creditors, in the distribution of the latter estate. The question thus raised is not a new one, either under this or the former Bankruptcy Acts, and has given rise to much discussion in this countrj^ and England, resulting in many conflicting decisions, and an apparently hopeless confusion of the subject. We are disinclined to enter into a general discussion of the various and irre- concilable opinions found in the reported cases. The decision of Judge Lowell in In re Wilcox (D. C), 2 Am. B. R. 177, 94 Fed. 84, contains an extended review of the entire subject, and especially a history of the law, to which we take the liberty of referring. The Circuit Court of Appeals of two of the cir- cuits have taken antagonistic veiws of the present Bankruptcy Act. In Con- rader v. Cohen, 9 A. B. R. 619, 121 Fed. 801, a decision of the Circuit Court of Appeals for the Third Circuit, the petitioners" right to share as partnership creditors in the individual assets of the bankrupt is fully recognized; and In re Janes, 13 A. B. R. 341, 133 Fed. 912, a decision of the Circuit Court of Appeals for the Second Circuit, the contrary view is taken. A careful consideration of the entire subject and review of the authorities convinces this court that, what- ever may have been the correct rule under former Bankruptcy Acts, the latter case, a decision of Judge Lacombe, of the Second Circuit, concurred in by Judges Wallace and Townsend, presents the correct construction of the law under the present Act; and, however much force there may have been in the contention made by petitioners under the former bankruptcy acts, or what maj^ be the correct general doctrine applicable to the settlement and distribu- tion of partnership estates, that it was clearly within the power of Congress to adopt a method for marshaling such assets, to be applied to the respective classes of creditors, which it has done, and in terms too clear and comprehen- sive to admit of the necessity for interpretation further than to adopt and follow its plain mandates." iNor does it make any difference that the partnership funds have been previously exhausted and applied on the same debt outside of bank- ruptcy. ^^2 § 2257. Even Where No Partnership Assets and All Partners In- solvent. — AMiere there are no partnership assets and all the partners are dead or insolvent, yet firm creditors are not entitled to share pari passu with 191. In re Wilcox, 2 A. B. R. 117, 94 Fed. 84 (D. C. :\Iass.); In re Corcoran, 12 A. B. R. 283 (Ref. Ohio, affirmed by D. C); inferentially. In re Janes, 13 A. B. R. 341, 133 Fed. 912 (C. C. A. N. Y.) ; obiter, In re Daniels, 6 A. B. R. 700, 110 Fed. 745 (D. C. R. I.); contra, Conrader v. Cohen, 9 A. B. R. 619, 121 Fed. 801 (C. C. A. Pa.); contra. In re Green, 8 A. B. R. 553, 116 Fed. 118 (D. C. Iowa). 192. In re Mills, 2 A. B. R. 667, 95 Fed. 269 (D. C. Ind.). § 2257 DISTRIBUTION TO CREDITORS. 1377 the individual creditors of the bankrupt in the distribution of his individ- ual estate, but are relegated to the surplus. ^^^ The leading case upon this point under the present act, containing the his- tory and development of the entire subject is In re Wilcox, 2 A. B. R. 117, 94 Fed. 84 (D. C. Mass., cited with approval in In re Daniels, 6 A. B. R. 700, 110 Fed. 745, D. C. N. Y., and in Buckingham v. First Nat'l Bk., 12 A. B. R. 469, 131 Fed. 192, C. C. A. Tenn., and in note to In re Mills, 2 A. B. R. 668, 95 Fed. 269, but criticised in In re Green, 8 A. B. R. 555, 116 Fed. 118, D. C. Iowa): "To this history of the rule of distribution there should be added some short consideration of the principles upon which the rule is supposed to rest, and these can neither be found nor applied without difficulty. In several cases, and in the writings of many persons learned in the law, elaborate arguments have been made to show that the rule which gives the separate creditor a prior claim on the separate estate is unsound in principle, and works unfairly in not a few instances. Eden, Bankr. Law (2d ed.), 1^9; 2 Christ. Bankr. (2d ed.), 35; Evans' Letter to Sir S. Romilly (1810), p. 81; Story, Partn., § 370. Indeed, some of the arguments used in support of the rule rather make against it. Thus it has been said that the rule is based upon the theory that the joint creditor gives credit to the joint estate, and the separate creditor to the sepa- rate estate. The facts are often quite otherwise. A man lending money to a firm lends it upon the credit of the individual estates of the separate partners as well as upon that part of their property which is engaged in the firm busi- ness; and, on the other hand, the separate creditor of a partner — his butcher or tailor, for example — gives him credit quite as much upon the successful firm business in which he is supposed to be engaged as upon any property in his separate ownership. It has been said that, inasmuch as the law has laid down the rule of distribution as above stated, creditors knoW the rule, and give credit accordingly; but this argument, if made in support of the reasonableness of the rule, is vicious by proceeding in a circle. It makes the creditor give credit to a fund because such is the law, and makes the fact that he has given credit to the fund a reason for the law. The rule has been defended upon the ground that it is, in substance, a marshaling of assets; but it goes much further than the marshaling of assets in equity, and the confusion into which this treatment of the rule — as merely a marshaling of assets — brings a court is shown by the opinions in Lodge v. Pritchard and other cases. The rule does not carry out the mercantile theory of the partnership relation. Cory, Accts. (2d ed.) 124. "The historical origin of the rules lies not improbably in an ancient practice of distributing the joint estate under a joint commission and the separate estate under a separate commission, each commission dealing 193. In re Mills, 2 A. B. R. 667, 95 Fed. 269 (D. C. Ind.); In re Janes, 13 A. B. R. 341, 133 Fed. 912 (C. C. A. N. Y., reversing 11 A. B. R. 792); Euclid Nat'l Bk. V. Union Trust Co., 17 A. B. R. 837 (C. C. A. W. Va., affirming In re Henderson, 16 A. B. R. 91, 142 Fed. 568, quoted in preceding section); In re Corcoran, 12 A. B. R. 283 (Ref. Ohio, affirmed by D. C); compare, obiter, Buckingham v. First Nat'l Bk., 12 A. B. R. 465 (C. C. A. Tenn.); contra, obiter, In^ re Gerson, 5 A. B. R. 480 (Ref. Pa.); contra [1867] In re Downing, Fed. Cas. 4,044; contra, [1867] In re Jewett, Fed. Cas. 7,304; contra, [1867] In re Knight, Fed. Cas. 7,880; contra, [1867] In re McEwen, Fed. Cas. 8,783; contra, [1867] In re Pease, Fed. Cas. 10,881; contra, [1867] In re Slocum, Fed. Cas. 12,950; contra, [1867] In re Litchfield, 5 Fed. 47; contra, [1867] In re Blumer, 12 Fed. 489; contra, [1867] In re Lloyd, 22 Fed. 88; contra, [1867] In re West, 39 Fed. 203. As to discharge of firm debts in individual bankruptcies, see post, § 2794. 2 Rem B— 12 1378 REMixGToisr ox baxkruptcy. § 2257 with its corresponding creditors. The best theoretic defence of the rule is probably this: The operation of the law of partnership which gives to any separate partner or his assignee onlj'^ his net share of the partnership assets — a rule manifestly founded in justice and convenience — usually insures to the joint creditors a priority in the application of the joint estate, and therefore this half of the rule has seldom been questioned. The priority given to the separate creditor in the application of the separate estate is a rough, but prac- tical, offset to the inequality caused by the rule governing the application of the joint estate. See the dissenting opinion of Judge Gibson in Bell v. Newman, 5 Serg. & R. 78. Entirely apart from statute, however, two things are quite clear: First, that the general rule, with some variations, is established in the courts of this country and of England; and, second, that these variations and particularly the exception in the absence of joint estate, have tended to dis- credit the rule, and to confuse its operations, rather than to obviate its difficul- ties. * * * The Bankrupt Act of 1800 (2 Stat. 19) contained no reference to the distribution of the assets of a partnership and its component partners, and, except Tucker v. Oxley, no decision made under that act has been found which bears upon the question. * * * "Act 1867, § 36 (Rev. St., § 5121), is, in all essentials, the same as § 14 of the Act of 1841." In re Henderson, 16 A. B. R. 91, 128 Fed. 527 (D. C. W. Va., affirmed sub noni. Euclid Xat'l Bk. v. Union Trust Co., 17 A. B. R. 837 ( C. C. A. W. Va.) : '■* * * after long and careful consideration, that judgment is that the ex- ception is not warranted. I reach this conclusion for these, among other, reasons. First. It is admitted to be an exception to a general rule, which rule is plain, clear, apt, and in unambiguous language is written in the law itself, while the exception is not; on the contrary, it must depend solely upon ju- dicial construction, which' because it in effect provides a different method of distribution from that provided by the law itself, cannot be considered short of mere judicial legislation. It is to be recalled how easily the Congress, had it designed such exception to be made, could have incorporated it as such in the law itself. It cannot for a moment be presumed that the matter was overlooked. On the contrary, it is to be remembered that this Bankruptcy Act was as care- fully considered a piece of legislation as any given us for years by that'body. The Senate first passed what was known as the 'Nelson' bill on the subject. The House of Representatives, after long discussion, passed, as a substitute, the 'Henderson' bill carrying out substantially the provisions of the Torrey measure, which had been for several years prior discussed in legal associations and journals. The matter was finally referred to a conference committee com- posed of Senators Hoar, Lindsay, and Nelson on behalf of the Senate, and Rep- resentatives Henderson, Ray (now judge of the Northern district of New York) and Terry on behalf of the House, lawyers as able as the country could afford, who, after several months' deliberation, reported a compromise which wa.« passed without amendment and became the existing Act. The fact that the courts had established such exception in the construction of the Act of 1867, but with conflict of opinion, is one of the strongest reasons in convincing me that Congress never intended to recognize such exception, for knowing of the former conflict of opinion, and of the action of the courts under the former act in es- tablishing it, instead of recognizing it, which could have been done in a few lines, it does not do so, but, in plainer, more simple, positive, and direct lan- guage, reiterates the rule, without exception or qualification, that partnership assets shall pay partnership debts, individual assets individual debts, and only surpluses shall be applied, the one to the other. The argument made that such § 2257 DISTRIBUTION TO CREDITORS. 1379 exception is in accord, generally, with the law and practice in the States, only strengthens my view as to the purpose and intention of the Congress. Its mem- bers, coming from all the States and having full knowledge of such practice and law, would seem to have deliberately purposed that this uniform bankrupt act, which was to be the supreme law of the land, should not recognize such exception but, in effect, exclude it. "Second. Nor can I read paragraph 'g' as giving any excuse for the es- tablishment of such exception by judicial construction. Clause 'f states the precepts of the law; clause 'g' relates to the procedure under it. The law irt T demands that 'the net proceeds shall be appropriated' as directed by it, while 'g' provides simply that in carrying out these precepts, and as an aid in doing so, the court may do certain things, to wit, permit proof of claims of partnership estates against individual estates, and vice versa, and marshal the assets of such estates so as to prevent preferences and secure equitable dis- tribution of such estates. Note the use in this paragraph of the word 'estate' instead of the word 'debt' as used elsewhere. It is properly used and was de- signed to meet such cases as, for example, where the partnership estate might have a just claim against one of its individual members who had not paid into the partnership his full share of any part of the capital which he was legally bound to do, while the other members of the partnership perhaps had done so; or, vice versa, where the individual member, a bankrupt, had paid into the part- nership fund all of his pledged capital, while the other members had not. To meet such and other similar cases that might arise, I am convinced; was the sole cause and scope of this permissive clause in procedure, only mandatory in cases where the circumstances, in equity and good conscience, required its application. The necessity for this permissive provision in procedure is the more apparent when we read in clause 'h' that where all members of a partner- ship are not adjudged bankrupt, the partnership property is not to be adminis- tered in bankruptcy without consent of the solvent partners, a provision not in our former bankrupt laws. In such case, without this clause 'g,' would the bankrupt court have jurisdiction to determine any such questions as referred to above between two estates that might arise in the adjustment of their re- spective rights; the one being administered by the court, the other by the solv- ent partners? "Finally, I do not believe any just criticism can be made of the legislative body for establishing this rule and refusing to incorporate the exception con- tended for to it, into the law. Judge Lowell In re Wilcox, supra, has shown how much difficulty, perplexity, and conflict have arisen during more than three centuries, in the settlement of these joint and separate estates. Under such cir- cumstances. Congress could well say that it was time, in this law which was to be supreme and uniform throughout the States, to settle the vexed controversy by a direct and positive, if arbitrary, rule. It is true in regard to all such rules that, under exceptional circumstances, they work hardships, but the ultimate good they accomplish largely counterbalances the evil. \\'ho doubts longer the benefits of statutes of limitation? "The rule established here has the merit of simplicity and directness. It gives full and complete repose, and I submit it is as nearly equitable as any such rules can be. Under modern business conditions, a man can become partner in an unlimited number of partnerships of which, and of his connection therewith, his neighbor, who is trusting him upon faith of his individual merit and financial worth, can know nothing, and these partnerships with or without his knowledge may be, by bad or extravagant management, accumulating debt against him many times over the total value of his estate. These partner- 1380 REMINGTON ON BANKRUPTCY. ' § 2257 ships may be located in dififerent localities far separate. For instance, he may- be a partner in a 'Eureka Gold Mining Company,' in Alaska, an 'Excelsior Con- struction Company' in New York, a 'Superlative Fruit Company' in Florida — ■ no one of which in name may disclose his connection therewith. Why is it not reasonable to protect, under such conditions, his neighbors at home who have trusted him, as against the creditors of these distant partnerships, who have in most cases credited such partnerships upon faith of the business they were doing and without knowledge of him or of his connection therewith, until their bankruptcy occurs? Is there not a plain dividing line based on reason and sound equity? His neighbors trusted him with his personal property before them; the others trusted the partnership with its property in view. Why should not each class resort to the property that was the basis of their respective extensions of credit, without the one having any advantage over the other, and what matters it if the creditors of the partnership have been so foolish as to ex- tend credit to it when it has no property, any more than where a man's neighbor has been just as foolish in extending credit to him personally when he had none? Has it ever been contended, in a case where a man has taken his personal property and invested it in a partnership so that he has nothing, that an ex- ception should be judiciously created which would permit his individual cred- itors, in a bankruptcy proceedings against the partnership, to come in and share pari passu with the partnership creditors, as against his interest therein? Why is not one proposition as fair as the other in good conscience, and why does not the simple rule established by Congress settle the question as fairly as it can be settled? Whether it does or not, of the one thing I am entirely satisfied; and that is, that the rule itself cannot justly be more severely criticised than can be the 'exception' contended for. This exception certainly is none the less arbi- trary, and leads to no less absurd results. This was recognized by the courts creating it in construing the law of 1867. For example, In re Blumer (D. C), 12 Fed. 489, from the Eastern District of Pennsylvania, it was held: " 'If, after deducting the portion of costs chargeable to the partnership estate, there is any balance of partnership assets, however small, the partnership cred- itor will not be entitled to share pari passu with the separate creditors in the distribution of the separate estates.' "In other words, the application of this exception might well turn on the partnership possession of, say, 30 cents. Again, In re Marwick, Fed. Cas. No. 9,181, it is held: " 'If there be any joint fund, however small, such proof cannot be allowed, although such fund may have been created by the separate creditors purchas- ing some of the partnership assets, actually worthless, for the purpose only of creating it; for if there be a joint fund, the court cannot, under the statute, look behind the fact, to inquire how it has been produced.' "In other words, under the operation of this exception, a contribution of a few cents, no matter by whom, to the partnership assets, would wholly pre- vent its application." Obiter, In re Daniels, 6 A. B. R. 700, 110 Fed. 745 (D. C. R. I.): "Where a member of a copartnership is adjudged a bankrupt in his individual capacity, creditors of the firm are not entitled to receive dividends out of his individual estate until his individual creditors have been paid in full; and this rule pre- vails notwithstanding the fact that there are no firm assets." Contra, Conrader v. Cohen, 9 A. B. R. 619, 121 Fed. 801 (C. C. A. Penna., affirming In re Conrader, 9 A. B. R. 85, 118 Fed. 676): "It will be perceived that a single fund only — derived from the separate estate af the bankrupt, Con- rader — was before the court for distribution; that all the property of the firm §2257 DISTRIBUTION TO CREDITORS. 1381 of Jenkins & Conrader had been sold upon execution in the year 1895 and passed to the sheriff's vendee; that the partnership is not in bankruptcy; that there are no firm assets and that there is no solvent partner. The insolvency of Jenkins in 1895, having been shown, that condition will be presumed to have continued in the absence of any evidence to the contrary. If his financial condi- tion changed it was for the contesting individual to show it. Upon the facts here appearing why should not the firm creditors participate in the fund be- fore the court? It is the only fund available to any of the creditors. Now it is well settled that each partner is a debtor to the creditors of the firm. In equity, as at law, partnership debts are treated as several as well as joint. Upon principle, we think the District Court was right in admitting the part- nership creditors to participate pro rata with the individual creditors in this fund. "We find abundant authority to sustain the decision of the court below. In United States v. Lewis, 13 Nat. Bank Reg. 33, Fed. Cas. No. 8429, held by Mr. Justice Strong and Circuit Judge McKennan, that the rule that the joint estate must be applied to pay joint debts and the separate estate to pay the separate debts, is only applicable where the joint estate, as well as the separate estate to pay the separate debts, is before the court for distri- bution; and in the same case upon appeal, 92 U. S. 618, 623, the Supreme Court, speaking by Mr. Justice Swayne, said: 'A court of equity will not en- tertain the question of marshaling assets unless both funds are within the juris- diction and control of the court.' In the case in hand two funds do not exist. The established English doctrine is thus stated in Lind. Partners. (3d Amer. Ed.), p. 731; (6th Ed.), § 749: 'If in the case of a bankrupt firm there is no joint estate, the joint creditors are entitled to rank as separate creditors against the separate estates of the individual partners. So, if one partner only is bank- rupt, the creditors of the firm are entitled to rank as separate creditors against the separate estate of the bankrupt, if there is no joint estate and if there is no solvent ostensible partner, at' all events none in this country.' The like doctrine is set forth in Story on Partnership, § 380, that where there is no partnership assets and no solvent partner, the firm creditors share in the sep- arable estate of the bankrupt partner pari passu with the individual creditors was the recognized rule under the Bankrupt Act of 1867." Also, contra. In re Green, 8 A. B. R. 553, 116 Fed. 118 (D. C. Iowa): "In sup- port of the ruling made, the referee cites the case of In re Wilcox, 2 Am. B. R. 117, 94 Fed. 84, wherein will be found a learned discussion of the general proposition by Judge Lowell, who reaches the conclusion that the partner- ship creditors cannot be allowed to share with the individual creditors in the assets of one member of the firm, even though there are no firm assets and no proceedings against the firm. If I correctly understand the ruling in this case, it is, in effect, that § 5 of the Bankrupt Act is not to be limited to cas^s wherein the proceedings are against the firm as well as the individual members, but that it is to be construed to establish the broad principle that the individual creditors of the bankrupt are to be paid in full out of his assets before the claims owing by him as a member of the firm can be allowed to share in his assets, even though the firm had long since been dissolved, and there are no firm assets to be applied to the payment of the firm debts. This question was involved in the case of In re Keller (D. C), 6 Am. B. R.. 337, 109 Fed. 118, wherein this court held that as there had been a valid transfer of the partner- ship property to one of the partners, Almon D. Keller, who subsequently went into bankruptcy as an individual, and transferred to his trustee all of his prop- erty, including that which had formerly belonged to the partnership, the firm 1382 REMINGTON ON BANKRUPTCY. § 2257 creditors would be permitted to share equally with the individual creditors in the assets of the estate. This conclusion was based largely upon the fact that the Supreme Court in Fitzpatrick z'. Flannagan, 106 U. S. 648, 1 Sup. Ct. 369, 27 L. Ed. 211, Ifad declared the equitable rule to be as follows: " 'The legal right of a partnership creditor to subject the partnership prop- erty to the payment of his debts consists simply in the right to reduce his claim to judgment and to sell the goods of his debtor on execution. His right to appropriate the partnership property specifically to the payment of his debt in equity, in preference to creditors of an individual partner, is derived through the other partner, whose original right it is to have the partnership assets applied to the payment of partnership obligations. And this equity of the creditor subsists so long as that of the partner, through which it is derived, remains; that is, so long as the partner himself "retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration." Such was the language of this court in Case V. Beauregard, 99 U. S. 119, 25 L. Ed. 370, in which Mr. Justice Strong, deliver- ing the opinion, continued as follows: "It is indispensable, however, in such relief, when the creditors are, as in the present case, simply contract creditors, that the partnership property should be within the control of the court, and in the course of administration, brought there by the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This is be- cause neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced, until the property has passed in custodia legis." Hence it follows that "if, before the interposition of the court is asked, the property has ceased to belong to the partnership, if by a bona fide trans- fer it has become the several property of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end." ' "In view of this authoritative declaration that the equities of the partnership creditors are derived from the equity of the partners, and that it is within the power of the partners to put an end to the equities of the firm creditors, by a bona fide transfer of the firm assets to one partner or to a third party, wherein the equity in the ruling that, in cases wherein the equity of the firm creditors has been terminated, not through their act nor with their consent, but by the act of the partners in selling tlie firm assets to one of their number or to a third party, and subsequently members of the firm are put into bankruptcy as individuals, the individual creditors are entitled to exclude the firm creditors from sharing in the assets until the individual debts are paid in full? In such cases there is no other fund to which the firm creditors can resort for payment, and the practical result of the rule laid down in the Wilcox case is that, in all cases wherein the equity of the firm creditors have been destroyed by the action of the partners, in converting the firm property into individual assets by a sale thereof to one of the parties, the individual creditors are entitled to be preferred, and are entitled to exclude the firm creditors from sharing in these assets, even though they were originally the property of the firm. A very large proportion of the cases brought in bankruptcy under the provisions of the present act are cases wherein the bankrupts have been members of one or more partnerships which have been dissolved long since, and in which the only assets are those belonging to the individual bankrupt; and, if it be the rule that the individual creditor is always entitled to be first paid from the in- dividual assets, it follows that in all these cases the debts due the firm creditors § 2258 DISTRIBUTION TO CREDITORS. 1383 are discharged, yet these creditors are barred from ajiy share in the assets of the bankrupt. "The variant views set forth in the numerous decisions cited in the Wilcox case serve to show that it is practically impossible to formulate S single general rule that will meet the equities of every case, but the adoption of the rule that in every instance wherein there are firm and individual creditors, but the assets are in- dividual only, the latter class of creditors are to be paid in full to the exclusion of the firm creditors, will certainly work injustice in so many cases that I should hesitate long before accepting it in the absence of a controlling decision by an appellate court. The Supreme dourt having decided that the firm assets may be converted into individual assets by the action of the partners, I can- not see the equity in the view that holds, in effect, that it is within the power of the partners to terminate the equity of the firm creditors in the firm assets, and that the same act which terminates the equity of the firm creditors creates a preference in favor of the individual creditors, enabling them to secure pay- ment in full of their claims out of funds which in many cases are wholly or largely the proceeds of the property which was originally firm assets." § 2258. Joint and Several Obligations for Partnership Debt, Share in Individual Estate. — Creditors holding joint and several obliga- tions of the partners for a partnership debt may share in the individual estates of the several partners on an equality with exclnsively individual creditors. i^'* Buckingham Trustee v. First Nat'l Bk., 12 A. B. R. 465, 131 Fed. 192 (C. C. A. Tenn.): "The next question is whether the claimants * * * as individual creditors of Estes, should be paid out of his individual estate, in preference to the claims of the firm creditors. Doubtless the notes executed by the firm and endorsed by Estes, were firm debts, as well as individual debts of Estes. But the holders had a right, if they preferred, to present them as claims against Estes individually. * * * Gartenlaub was advised of the fact that Estes individually owned a large amount of real estate and for that reason required his individual endorsement." Inferentially, analogously, In re McCallum & McCallum, 11 A. B. R. 448, 127 Fed. 768 (D. C. Pa.): "The facts are these: The bankrupt firm made a promissory note payable to the order of William H. McCallum, one of the partners, by whom it was duly indorsed. The claim against the firm, based upon their contract as makers, was proved by the creditor, but the claim against William's individual estate, based upon the separate and distinct con- tract of indorsement, has not been proved. The year has gone by, and to permit the proof of claim that is now upon file with the referee to be so amended as to include the second contract would not, in my opinion, be the allowance of an amendment at all, but the allowance of a wholly new claim, in the face of the statutory prohibition. The contract entered into by the maker of a promissory note, and the contract entered into by the indorser are entirely distinct and separate undertakings. It does not affect this conclusion that the contract of indorsement is made by a member of the firm that has previously 194. In re McCoy, 17 A. B. R. 760, 150 Fed. 106 (C. C. A. Ind.) ; [1867] Emery v. Canal Nat'l Bk., Fed. Cas. 4,446; [1867] In re Bradley, Fed. Cas. 1,772; [1867] In re Farnum, Fed. Cas. 4,674; [1867] Mead v. Nat'l Bk., 6 Blatchf. 180, Fed. Cas. 9,366; [1867] In re Bigelow, 3 Ben. 146 Fed. Cas. 1,397. 1384 re;mington on bankruptcy. § 2258 made the other contract. The same man has made two contracts in different characters, one as a partner and the other as an individual." [1867] In re Thomas, 8 Biss. 139, Fed. Cas. No. 13,886: "There is a class of cases in which it has been held that where a creditor holds notes signed by a firm, and signed or indorsed also by an individual member of the firm, he may prove against both estates, and receive dividends from both. In re Farnum, Fed. Cas. No. 4,674; Mead v. National Bank of Fayetteville, Fed. Cas. No. 9,366; Emery v. Canal National Bank, Fed. Cas. No. 4,446. These cases establish a rule opposed to the old rule on the subject in England, and the principle thus settled seems to reach out»to the question involved in the case at bar. The scope of these decisions is, that when an individual member of a firm, as such, becomes surety upon or indorses an obligation of the firm, he thereby gives what is in the nature of security upon his separate estate to the firm creditors, and, by reason of the individual liability superadded to the joint obligation, he places the firm creditor in a position where he can go against the individual as well as the joint estate. Thus it results, that without the in- dorsement or individual signature of one of the firm, the firm creditor would have no right to claim against the individual assets until individual creditors had been first satisfied. But holding the individual indorsement or signature, the firm creditor may, in the first instance, prove against the separate as well as the joint estate. Now, such separate liability would seem to be, at least, in the nature of security though differing radically, it is true, in character and form from that of a mortgage, and yet double proof, by the firm creditor in such case, may be made without any abatement of advantage which his diligence has secured." Contra, In re Mosier, 7 A. B. R. 268 (D. C. Vt.) : "The joint and several notes given by the partners for partnership liabilities are none the less partner- ship debts because the partners are also individually liable. By the terms of the same section of the Bankrupt Act, no part of the separate property is to go for partnership debts till the separate debts are fully paid. Therefore there can be no individual assets of Mosier in which these partnership creditors can be entitled to participate. "Participation of joint and several partnership creditors in individual assets, before individual creditors are paid in full, denied." Apparently contra, Bank v. Stevens Estate, 6 A. B. R. 164, 107 Fed. 245 (D. C. Vt.) : "As to the first note the claim is sought to be made individual through the separate indorsement of C. P. Stevens. But it was primarily a partnership note, and, so far as is in any wise made to appear, a partnership debt; and, if Stevens' liability as indorser had been fixed, it would still be apparently a part- nership debt. There is no suggestion in the claim that his liability in this respect in any way became fixed, and a fortiori the debt remained a partnership debt without becoming an individual debt." A contrary doctrine to that enunciated at the beginning of this section would destroy the advantage to which the creditor is entitled by virtue of the individual signatures. But a modification of the doctrine has been made in one case where it has been held that such individual proof should be only for the balance left after deduction of the dividends received from the partnership as- sets.^^^ But such modification seems unwarranted. The least that can be said of the individual obligations is that they are those of sureties. If 195. In re McCoy, 17 A. B. R. 760, 150 Fed. 106 (C. C. A. Ind.). § 2262 DISTRIBUTION TO CREDITORS. 1385 tliey are those of sureties then, assuredly, the creditor may prove for the full amount against both the principal and surety's respective estates, so long as the aggregate dividends do not exceed the amount of the claim, applying the dividends first from the principal's estate. Exhausting the principal's dividends first, however, is different from making proof only for the balance after such application. ^^^ § 2259. Partner's Right of Contribution for Paying Firm Debts, Provable in Other Partner's Bankruptcy. — The right of one partner to contribution from the other partner for paying firm debts is a provable claim against the individual partner in individual bankruptcy. ^^'^ § 2260. On Marshaling Partnership and Individual Estates, Sol- vent Partner's Excess Contribution Provable against Individual Estate. — Thus, also, in the marshaling of partnership and individual estates in bankruptcy, a solvent partner's excess of contribution to pay firm debts constitutes a provable debt against the individual estates of the other partners, and may share pari passu with individual debts. ^^^ § 2261. Likewise, Partner's Right of Indemnity (Where Surety) for Paying Copartner's Individual Debt Provable against Copart- ner's Individual Estate, Entitling to Subrogation to Creditor's Claim. — Thus, where one partner has paid the individual debt of another partner for whom he was surety, his claim for indemnity from his princi- pal is a provable claim against the copartner's individual estate, and en- titles his trustee in bankruptcy to be subrogated to the original creditor's claim, and to prove it against the other partner's individual estate. ^^^ [1867] In re May, Fed. Cas. 9,327; "Partners and their estates come under the rule, for the reason that, in bankruptcy, estates are settled separately; the joint creditors are to have the joint estates, and vice versa, and although there is no contribution between joint and separate estates, unless there should be a surplus of one over the other, yet when the property of one is pledged for the debt of the other, a court of equity will apply the right of subrogation pre- cisely as it would if the contracting parties were not partners, and thus do justice to the different creditors." § 2262. But Claim of Retiring Partner for Unpaid Purchase Price of Partnership Share, Not to Share with Partnership Creditors in Surplus of Remaining Partner's Individual Estate. — But the claim 196. See ante, § 758: "No deduction for oroperty of principal held by cred- itor, where surety bankrupt." 197. In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa); In re Ste- vens, 5 A. B. R. 9, 104 Fed. 323 (D. C. Vt). Compare, In re Dillon, 4 A. B. R. 63, 100 Fed. 627 (D. C. Mass.). 198. In re Stevens, 5 A. B. R. 9, 105 Fed. 323 (D. C. Vt.). 199. In re Mason & Son, 2 A. B. R. 60 (Ref. R. I.); [1867] In re Foote, Fed. Cas. 4,906. 1386 REMINGTON ON BANKRUPTCY. § 2267 of the retiring partner for the purchase price of the latter's share is not to participate pari passu with partnership creditors in the individual estate of the remaining partner. 200 This is so, for the reason that the sale itself, being simply a sale of an undivided interest in the surplus, contemplates satisfaction, first, of all firm obligations in the ascertainment of such sur- plus. § 2263. Obligation Signed in Individual Name,. Prima Facie Indi- vidual Debt. — An obligation signed in an individual name is prima facie an individual obligation;-"^ but may be shown, by parol evidence, to be a firm debt.-"- § 2264. Firm Debt Assumed by Partner Provable against Part- ner's Individual Estate.— A firm debt may be assumed by one of the partners and become a provable debt against the individual estate of the partner.203 subdivision "c." "Pre;fere;ncss" and "Legae Liens" on Individual Property in Part- nership Bankruptcies and upon Partnership Property in In- dividual Bankruptcies. . § 2265. "Preferences" and "Legal Liens" on Individual Property Not Nullified by Firm Bankruptcy; and Vice Versa. — Liens upon and transfers of the individual property of a member of a partnership, the partnership but not the individual member being in bankruptcy ; and, like- wise, liens upon and transfers of partnership property in individual bank- ruptcies, are not affected by the provisions of the bankruptcy act relative to preferences and legal liens obtained within four months of bankruptcy. The firm and its individual members preserve their separate identities. 2266. Thus, "Legal Liens" within Four Months, on Individual Property, Not Affected by Partnership Bankruptcy.— Thus, liens for individual debts on the individual property of a partner are not voidable as preferences, nor nullified as "legal liens," by the bankruptcy of the partnership. 2"^ § 2267. Nor Are Similar Liens on Partnership Property Affected by Individual Bankruptcy. — Nor are partnership liens on partnership 200. In re Denning, 8 A. B. R. 133, 114 Fed. 219 (D. C. Mass.); In re Gerson, 5 A. B. R. 480 (Ref. Pa.). 201. In re Weisenberg & Co., 12 A. B. R. 417 (D. C. Ky.). 202. See ante, § 2240. 203. In re Lehigh Lumber Co., 4 A. B. R. 221, 101 Fed. 216 (D. C. Pa.). 204. Impliedly, In re Lehigh Lumber Co., 4 A. B. R. 221, 101 Fed. 216 (D. C. Pa.). § 2269 DISTRIBUTION TO CREDITORS. 1387 property voidable as preferences nor nullified as legal liens by the individ- ual bankruptcy of one partner. ^os § 2268. Nor Are "Transfers" by Partnership Voidable as "Prefer- ences," by Bankruptcy of Partner. — And bankruptcy proceedings ^1 gainst one partner do not affect the validity of a transfer made by the partnership. -'^•'^ Thus, preferences given by a partnership on partnership property that is being administered in the individual bankruptcy proceed- ings of one of the partners, are not affected. ^*^" SUBDIVISION "d." Transfer of Partnership Interest to Copartner or Third Person. § 2269. First, Where One Partner in Insolvent Firm Sells Out to Other Who Thereafter Becomes Bankrupt. — It has been held that the partnership creditor's lien upon, or rights in, partnership assets follow the assets into the hands of a remaining partner who has bought out his copartners, and that such creditors are entitled to priority of payment therefrom over individual creditors of the remaining partner, upon his bankruptcy. -'^^ This is presumably on the doctrine that the transfer by one partner of his partnership interest to another is not the transfer of title to any spe- cific assets but a transfer of an undivided interest in any surplus left after satisfaction of firm obligations ; and that thus, although the rights of cred- itors must be worked out through the partners and rise no higher than those of the partners, yet, in effect, precisely by virtue of the sale itself a lien exists in favor of firm creditors. When partnership property is thus converted into individual property by the sale to one partner of all the other partners' interest, it is not a sale of specific articles but a sale of a share in the surplus after all firm debts are paid. In effect, a lien in favor of firm creditors is thereby created or maintained, and is so created precisely through the acts of the partners themselves. In re Hosier, 7 A. B. R. 268, 112 Fed. 138 (D. C. Vt.) : "Partners in an in- solvent partnership have no interests of their own in the partnership prop- erty, but the whole is subject to the lien of the partnership creditors." In re Gillette, 5 A. B. R. 123, 104 Fed. 769 (D. C. N. Y.) : "The transfer of the partnership interest by Prentice to Gillette does not deprive creditors of the right to hold partnership assets for payment of their claims; and creditors 205. McNair 7-. Mclntyre, 7 A. B. R. 638, 113 Fed. 113 (C. C. A. N. Car.). 206. McNair v. Mclntyre, 7 A. B. R. 638, 113 Fed. 113 (C. C. A. N. C)- 207. As to whether a preference by a firm is voidable in the individual bank- ruptcy of one partner to whom the others have subsequently sold out, see post, § 2265, et seq. 208. But compare, contra, obiter, In re Keller, 6 A. B. R. 337, 109 Fed. 118 (D. C. Iowa). And also, compare, contra Harriskamp v. Wagon Co., 121 U. S. 310. 1388 REMINGTON ON BANKRUPTCY. § 2270 having claims against an insolvent debtor who is a member of a copartnership cannot, where the debtor has been adjudicated bankrupt, receive dividends from partnership assets until the copartnership creditors have been paid in full." Compare, analogously, obiter, Deaf and Dumb Institute v. Crockett, 17 A. B. R. 241 (X. Y. Sup. Ct. App. Div.) : "It is well settled that the interest of an individual member of a firm may be assigned by him, but the assignee only acquires the proportionate share of the member in the surplus remaining after the payment of the copartnership debts and the adjustment of the equities between the members of the firm, and does not acquire any title to the corpus of the firm assets, which remain a primary fund for the payment of firm debts with the right in the assignor as well as in the creditors to compel their appro- priation thereto." And compare, contra, Fitzpatrick v. Flannagan, 106 U. S. 648: "The legal right of a partnership creditor to subject the partnership property to the pay- ment of his debt consists simply in the right to reduce his claim to judgment, and to sell the goods of his debtors on execution. His right to appropriate the partnership property specificallj'- to the payment of his debt, in equity, in pref- erence to creditors of an individual partner, is derived through the other partner, whose original right it is to have the partnership assets applied to the payment of partnership obligations. And this equity of the creditor sub- sists so long as that of the partner through which it is derived remains; that is, so long as the partner himself 'retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail them- selves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.' Such was the language of this court in Case v. Beauregard, 99 U. S. 119, 25 L. Ed. 370, in which Mr. Justice Strong, delivering the opinion, continued as follows: 'It is indispensable, however, to such relief, when the creditors are, as in the present case, simple contract creditors, that the partnership property should be within the control of the court, and in the course of administration, brought there by the bankruptcy of the firm, or by an assignment, or by the creation of a trust in some mode. This is because neither the partners nor the joint creditors have any specific lien, nor is there any trust that can be enforced until the property has passed in custodiam legis.' Hence it follows that 'if, before the interposition of the court is asked, the property has ceased to belong to the partnership, if by a bona fide transfer it has become the several property of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.' " § 2270. But if Partnership Creditors Assent to Assumption They Become Individual Creditors. — But, of course, if the partnership cred- itors assent to the assumption of the partnership debts by the remaining partner, they become thereby his individual creditors and lose their lien.^o^ In re Denning, 8 A. B. R. 133, 114 Fed. 219 (D. C. Mass.): "It seems that a former joint creditor, who has elected to become a separate creditor of the bankrupt, assents to the conversion of the joint into separate assets, and is permitted to come upon the converted estate as a separate creditor." 209. [1687] In re Johnson, Fed. Cas. 7,369. § 2271 DISTRIBUTION TO CREDITORS. 1389 And the assent is sufficient if not made until bankruptcy has inter- vened. 210 In re Keller, 6 A. B. R. 336, 109 Fed. 118 (D. C. Iowa): "Counsel for the claimant take the position that the payment of the $171.70 on October 2, 1900, was made by the firm of Keller & Stake; that the partnership has not been adjudged a bankrupt; and that, as the court in bankruptcy has before it only the individual estate of Almon D. Keller, it cannot deal with payments made by the pre-existing firm of Keller & Stake, nor can it undertake to marshal the firm and individual assets in this proceeding. The fact, however, that the partnership has not been adjudged a bankrupt, prevents the question of the marshaling of assets from arising in this case. The claimant, as shown by the proof of debt filed by it, assumes the position of a creditor of Almon D. Keller. There is no case before the court in which it can undertake to separate the debts and property of a firm from th,at of the individual partners, as is pro- vided for in § 5 of the Bankrupt Act. When J. P. Stake sold his interest in the partnership to Keller, the property became the individual property of the latter, and it passed, as such, to his trustee in the bankruptcy proceedings. Neither Stake nor the firm creditors have initiated any proceedings for the enforcement of any supposed equities or rights in the property formerly be- longing to the firm, and therefore the referee rightly ruled that the claims filed by the company could only be viewed as a claim against Keller. * * * In the case now under consideration there was a valid transfer of the part- nership property to Almon D. Keller. This transfer has not -been questioned by any one. When Keller went into Bankruptcy, he did so as an individual, and he transferred to the trustee all his property, including that which had for- merly belonged to the firm of Keller & Stake. Under these circumstances, the court in bankruptcy cannot deal with the estate in any other light than as the individual estate of Almon D. Keller. The claims of the creditors of the late firm of Keller & Stake can be proved only as claims against the bank- rupt, and this is what was done by the claimants in this case; for, as already stated, in the proof of claim filed before the referee the averment is that 'Almon D. Keller, the person by whom a petition for adjudication in bankruptcy has been filed, was at and before the filing of said petition, and still is, justly indebted to said corporation in the sum of $563.94;' and it is thus made clear that the claimant bases its right to share in the estate on the ground that it occupies the position of a creditor of the individual, Almon D. Keller, and its rights are just what they would be if the business had always been carried on by Keller as an individual." § 2271. Where Sale Made to Enable Remaining Partner to Claim Exemptions. — Where the sale is made to enable the remaining partner to claim the exemptions from the property, the sale has been held by some courts to be void and the fund formerly belonging to the partnership to be subject to the pursuit of the partnership creditors. ^^^ 210. [1867] In re Johnson, Fed. Cas. 7,369. 211: In re Head & Smith, 7 A. B. R. 556, 114 Fed. 489 (D. C. Ark.): In this case the court said the transfer amounted to a "preference" to individual cred- itors. This is clearly wrong. A preference to be such must be to a creditor of the bankrupt, but such a transfer does not operate to give any creditor of the bankrupt partnership a preference; its effect is to take away all property from 1390 REMINGTON ON BANKRUPTCY. § 2272 The better rule would seem to be that the transfer is not voidable, but that the former partnership property should be applied to the payment of partnership debts and be treated precisely as if still partnership property, so far as partnership creditors who have not assented to the assumption of the old firm debts by the continuing partner are concerned (precisely as in cases of the assignment of a partner's interest to a stranger), but as to all others it should be treated as the bankrupt's individual p(rop- gi-ty;2i2 and that such remaining partner of course would not be entitled to exemptions out of the partnership property as against the partnership creditors. 213 § 2272. Retiring- Partner, Surety for Remaining Partner, Entitled to Subrogation to Debts He Pays. — Such retiring partner becomes surety for the remaining partner and is entitled to subrogation to such debts as he is compelled to pay. In re Dillon, 4 A. B. R. 63, 100 Fed. 627 (D. C. Mass.): "In equity, the re- lation of McGuire to Dillon concerning the debts of the old firm was that of all partnership creditors until the individual creditors of the remaining partner are satisfied. In re Rosenbaum, 1 N. B. N. 541 (Ohio); In re Bergman, 2 N. B. N. & R. 806; In re Rudnick, 2 N. B. N. & R. 769; In re Rudnick, 4 A. B. R. 531 (D. C. Wash., reversing 2 N. B. N. & R. 769). Compare, In re Worth, 12 A. B. R. 566, 130 Fed. 927 (D. C. Iowa). It has been held, in one case, that any scheme or device resorted to by per- sons in contemplation of bankruptcy for the purpose of charging partnership assets with the individual liabilities of the partners, is violative of the provisions of the bankruptcy act, § 5 (g). In re Jones & Cook, 4 A. B. R. 141, 100 Fed. 781 (D. C. Mo.); compare. In re Denning, 8 A. B. R. 133, 114 Fed. 219 (D. C. Mass.). Compare, In re Worth, 12 A. B. R. 566, 130 Fed. 927 (D. C. la.): In this case shortly before the adjudication of a partnership and its individual mem- bers, the firm was dissolved by mutual consent, one partner retaining its assets and assuming its liabilities. The court held that the assets were first liable in bankruptcy under § 5f, for his individual debts, and while this would be inequitable as to nonassenting firm creditors, they could not, at the same time, affirm the dissolution agreement in so far as it made the remaining partner an individual debtor of a firm creditor at dissolution, and disaffirm or, repudiate it so far as it was a transfer of the firm assets, in consideration of the assump- tion of firm debts; that the nonassenting creditor must either affirm or dis- affirm the transaction as a whole; the court further holding that in such case, where the receiver of the creditor bank surrendered all preferences he had under a chattel mortgage upon the stock of merchandise formerly belonging to the firm, and an assignment of account due it, given by the purchasing part- ner within the four months period, the proceeds of the assets of the firm and its individual members should be distributed as though no dissolution had taken place. The court finally says: "It will be more equitable to hold that the relation of the creditors of the copartnership and of the individual members thereof to the partnership assets are not changed by this transaction of Oct. 16 and that the proceeds of the assets of the firm and is individual members should be distributed as though such transaction had not taken place." Compare, In re Gillette, 5 A. B. R. 123, 104 Fed. 769 (D. C. N. Y.). 212. Compare, suggestively, obiter. Deaf & Dumb Institute v. Crockett, 17 A. B. R. 233 (N. Y. Sup. Ct. App. Div.). 213. Compare, In re Hosier, 7 A. B. R. 268, 112 Fed. 138 (D. C. Vt.) ; com- pare, inferentially. In re Head & Smith, 7 A. B. R. 556, 114 Fed. 489 (D. C. Ark.). § 2275 ' DISTRIBUTION TO CREDITORS. 1391 surety. By this contract with McGuire, Dillon made himself primarily re- sponsible for the payment of the firm debts. As regards Clafiin, McGuire remained primarily liable, together with Dillon; but, as regards Dillon, Mc- Guire was onljr a surety. That the relation between the two former partners is that of principal and surety is recognized in bankruptcy. * * * As to the bankrupt's estate, therefore, McGuire stands as a surety who has paid the debt of his bankrupt principal subsequently to the adjudication." Compare, to same effect. In re Carmichael. 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa): "By the purchases made by him of the judgments entered against the firm of which he was a member, he discharged the liability of the firm to the judgment creditors, but became a creditor of his copartners for their re- spective shares of the money by him advanced in the purchase and discharge of these judgments, and the mere fact that he procured assignments in writ- ing to himself of the judgments in question does not change his position with respect to his copartners." § 2273. But Retiring Partner's Claim for Purchase Price of Share, Not to Compete with Firm Creditors in Individual Estate of Re- maining Partner.— But the retiring partner's claim for the purchase price of his partnership interest should not share in the old firm assets, nor in the individual assets of the remaining partner, tuitil after the firm creditors have been satisfied ; for he should not be permitted to compete with his own creditors. ^^^ § 2274. Whether "Preferential" Transfer by Partnership Void- able Where Remaining Partner Alone in Bankruptcy. — Where the bankrupt partner has assumed the liabilities and taken the assets of the partnership, it is a question whether a transfer that would have been a preference were the firm in bankruptcy will be a preference in the individ- ual bankruptcy of the partner. It has been held that the effect of a preference by a firm cannot thus be avoided by the conversion of the firm assets into individual assets and the bankruptcy of the remaining partner. 215 But the better rule would seem to be that creditors of the firm, in order to preserve their rights against a firm preference, should file a petition in bankruptcy against the firm, and assert the lien of partnership debts on the old firm assets. § 2275. Second, Where One Partner of Insolvent Partnership Sells Out to Other and Himself Becomes Bankrupt. — Where one partner of an insolvent partnership sells out to the other and later himself becomes bankrupt, such sale is valid, and the former partnership assets cannot be administered in bankruptcy, without the other partner's con- sent.216 214. In re Denning, 8 A. B. R. 133, 114 Fed. 219 (D. C. Mass.); In re Ger- son, 5 A. B. R. 480 (Ref. Pa. affirmed by D. C.). 215. See In re Keller, 6 A. B. R. 334, 109 Fed. 118 (D. C. Iowa). 216. See ante, § 2251, et seq. In re Kindt, 4 A. B. R. 148, 101 Fed. 107 (D. C. Iowa). 1392 REMINGTON ON BANKRUrTCY. § 2278 And the sale is valid, even though the sum realized is used ni paying off some of the bankrupt's own creditors ; and the remaining partner is en- titled to the partnership assets, although the bankrupt was sCill in their actual custody as manager for the purchaser. ^'^'^ § 2276. Third, Where Partnership Interest Transferred to Third Person, Partner Becoming Bankrupt. — Third, where partnership in- terests are transferred to third persons, and either or both partners be- come bankrupt, the transfer is to be treated as a transfer by an individual of his individual assets. The rights of firm creditors are not impaired. The transfer is of a share in merely the surplus after payment of firm debts ;^^^ and follows the rules laid down in the preceding paragraphs. Division 6. Subrogation to Rights of Various Parties in the Distribution OF Assets. subdivision "a." Subrogation by Assignment of Claims after Bankrutcy. § 2277. Subrogation by Assignment of Claims after Bankruptcy. — The subject of the assignment of claims in accordance with the pro- visions of the Bankruptcy Act and the General Orders in Bankruptcy, has been previously discussed. ^^^ subdivision "b." Equitable Subrogation under Ordinary Rules. § 2278. Subrogation by Agreement with Bankrupt or Creditor. ■ — Where one pays a debt of the bankrupt with an understanding, made either with the bankrupt or the creditor, that he shall be subrogated to the creditor's claim, he will be so subrogated in bankruptcy. Thus, one furnishing the bankrupt money to pay a secured note, at the bankrupt's request, and under promise to turn over the notes paid thereby, is entitled to subrogation. 220 Also, an arrangement with a corporation 217. In re Kindt, 4 A. B. R. 148, 101 Fed. 107 (D. C. Iowa). 218. Obiter, Deaf & Dumb Institute z>. Crockett, 17 A. B. R. 240 (N. Y. Sup. Ct. App. Div.). Compare, In re Borelli & Callhan, 16 A. B. R. 115, 142 Fed. 296 (D. C. Conn.). Compare, In re Enorlish, 10 A. B. R. 133 (D. C. N. Y., reversed on other, grounds, in 11 A. B. R. 674, 127 Fed. 750). This was a case, however, of the transfer by both partners of an undivided one-half interest in the firm assets (apparently not an interest in the partnership but only in its assets) to a cred- itor, the wife of one of the partners, to pay a debt, more than four months before bankruptcy of the partnership, and was held valid. 219. See ante, "Assigned Claims," § 608, et seq. 220. In re McGuire, 13 A. B. R. 704, 137 Fed. 967 (D. C. Ohio). § 2279 DISTRIBUTION TO CREDITORS. 1393 taking over the bankrupt's assets and business, which is anxious to retain a certain agent's favor, to forward to the agent the remainder of certain goods contracted for with the bankrupt, with the understanding that the agent's claim should be presented against the bankrupt and the dividend be turned over to the purchasing company, amounts to a purchase or agreement for subrogation and not to a payment, aUhough the words used in the forwarding were "in Hquidation" of the agent's claim. --^ But the furnishing of money to a bankrupt corporation to pay its pay roll, under an agreement with the corporation that the pay roll should be assigned, but where the pay roll was not actually assigned, has been held, but improp- erly, not to entitle the person so advancing to an equitable subrogation to the pay roll.--- It would seem that the advancement under the agree- ment created the equity of subrogation, whether the assignment was ac- tually carried out or not, so long as there was no waiver. And the taking of workmen's pay checks in part payment of provisions furnished to them, no agreement for assignment existing but a mere supposition being in- dulged in between the storekeeper and the bankrupt that as matter of law the storekeeper would stand in the shoes of the workmen, was held to be no assignment and not to entitle the storekeeper to subrogation. ^-^ § 2279. Whether Subrogation to Workmen's Priority Claims to Compete with Workmen's Own Later Claims. — But it has been held that subrogation to workmen's priority claims will not be permitted to take precedence over workmen's own later priority claims, where the under- standing was not with the workmen but solely with the bankrupt. Browder & Co. v. Hill, 14 A. B. R. 619, 136 Fed. 821 (C. C. A. Tenn.) : "Ap- pellants do not claim in their petition or assignment of error or briefs that there has been any assignment of the labor claims protanto by consent or knowledge of the laborers themselves. "In the absence of evidence that the owners of such lien claims intended to sell and agreed that the lien should be kept alive for the benefit of the pur- chaser, payment and not an assignment will be presumed. Fenner v. F. L. & T. Co., 90 Fed. 349. "There is therefore no foundation for any claim that appellants are as- signees of the claims or lien in behalf of labor claims under any agreement, express or implied, with the creditors themselves. "What they do claim is, that there existed an express agreement with the debtor, the Furnace Company, that such claims when paid ofif by them 'should stand against the Furnace Company in the same attitude as if held by the original wage earners.' "The mere fact that one pays off a debt at the instance of the debtor or lends money to pay off such debt does not entitle him to subrogation to the 221. Haas-Barnick Co. v. Poruondo, 15 A. B. R. 130, 138 Fed. 949 (D. C. Pa.). 222. In re Carolina Car Co., 11 A. B. R. 488, 127 Fed. 178 (D. C. N. Car.). 223. Browder & Co. v. Hill, 14 A. B. R. 619, 136 Fed. 821 (C. C A. Tenn.). 2 Rem B— 13 1394 REMINGTON ON BANKRUPTCY. § 2279 liens of the creditors so paid off. McDonald, Shea & Co. v. Railroad, 93 Tenn. 281; Wood V. Guarantee Trust Co., 128 U. S. 416; Morgan, etc., v. Texas Cent. R. Co., 137 U. S. 172; Rhuling's Appeal, 107 Pa. 161; Sheldon on Subro- gation, § 243; Unger v. Leiter, 32 Ohio St. 210; Griffin v. Proctor, 14 Bush (Ky.), 571; Fenner v. F. L. & T. Co., cited above. "Conventional subrogation may result from a direct agreement between a debtor and a third person who pays the debt that he shall be subrogated to all the rights and securities existing in behalf of the creditor whose debt is paid off. But nothing short of an express agreement to that effect will move a court of equity in behalf of such a creditor. "A mere understanding upon the part of such a third person, under no obli- gations to pay the debt, that he, by such payment, will be subrogated to the liens of the creditor is not enough. Sheldon on Subrogation, §§ 243, 248, 250; 27 Amer. & Eng. Ency. of Law, 257; Receivers of N. J. Ry. Co. v. Wortendyke, 27 N. J. Eq. 658, overruling Coe v. N. J. Ry. Co., 27 N. J. Eq. Ill; Unger v. Leiter, 32 Ohio Stat. 210; Brice v. Watkins, 30 La. Ann. 21; Hutchinson v. Rice, 105 La. Ann. 471; Cumberland B. & *L. Ass'n v. Sparks, 11 Fed. 648. "Subrogation by agreement with the debtor alone to the equities and liens of a creditor whose debt is paid off by one under no obligation, is an equitable doctrine which comes from the civil law and is enforced only when the agree- ment creates equitable rights against the debtor which will not impair or over- throw equitable rights of the creditor or of innocent third persons. "When therefore subrogation depends wholly upon an agreement with the debtor the rights of the creditor to the remainder of his debt must not be prejudiced. Sheldon on Subrogation, § 248 and §§ 70 and 127; 27 Am. & Ency. (2nd ed.), 257; Bissett v. Gathone, 67 Mo. App. 23, 26; Stuckman v. Roose, 147 Ind. 402; Smith v. Morrison, 29 S. W. 1116; Fievel v. Zuber, 67 Tex. 279. "The evidence of a direct agreement between Browder & Co. and the Fur- nace Company that the lien in behalf of -laborers should be kept alive, and appellant substituted thereto is not so clear and satisfactory as to justify a reversal of the finding against such an agreement by the referee and district judge. "That both parties supposed that Browder & Co. would stand precisel}^ in the shoes of the laborers who received orders on them for goods simply be- cause the orders were given as credits upon current wages is not enough. It may have been of some convenience to the workmen to receive such orders in advance of one of the regular pay daj's, but it was a convenience for which they doubtless more than paid, for it appears that if they insisted upon money instead of goods a discount of from 15 to 25 per cent, was exacted. Neither was the scheme without profit to the debtor for the arrangement was that the Furnace Company should give credit for these orders on Browder & Co. only to the extent of 95 per cent, of their face value. "So, too, if it did not suit the convenience of the Furnace Company to pay these orders when the wages of the men became due an ordinary promis- sory note was given in settlement or a mere credit was given upon the books for the aggregate of the orders presented. All of these circumstances tend to indicate that the ordinary relation of debtor and creditor existed and that the parties acted upon the erroneous idea that because the orders given were in paftial payment of wages that the debt thus created would stand in the shoes of the debt paid off. "Neither would be justified in reversing the order denying subrogation when it is evident that subrogation will prejudice the rights of the very labor- § 2281 DISTRIBUTION TO CREDITORS. 1395 ers whose claims were only partially paid off by the goods supplied them upon the employer's order. "The distinct stipulation is that the assets of the bankrupt, after paying- expenses, will not pay labor claims proper in full if this substitution is allowed. "Being a pure equity, subrogatioh by agreement with the debtor alone will not be accorded if it impair the security of the creditor for the remainder of his debt or prejudice innocent third parties having equities of equal rank." § 2280. Subrogation of Sureties for Bankrupt to Creditors' Rights and of Creditors to Indemnity Given Sureties. — Likewise, sureties for the bankrupt are entitled to subrogation pro tanto, to the creditors' rights and indemnities ; and creditors, on their part, are en- titled to subrogation to indemnity given sureties for the debt. Thus, a retiring partner is subrogated to the claim of a creditor which he has been compelled to pay;--^ and the trustee of one bankrupt part- ner may prove against the individual estate of the other partner the claim of an individual creditor of the other partner for which he W^as ssrety and which he has paid.--^ Creditors have right of subrogation to the indem- nity given by the debtor to the surety. ^^^ Thus, also, a surety, upon payment, after bankruptcy, of the bankrupt's debt, may be subrogated to a valid attachment lien held by the creditor. Moody V. Huntley, 17 A. B. R. 904, 149 Fed. 797 (D. C. Vt.) : "In this country, the whole current of authorities is that payment of a debt by a surety or endorser is considered to operate as an assignment of it, and the equity of subrogation has received a liberal and broad construction, dependent, however, upon the preliminary question of fact whether the payment was intended as a purchase or an extinguishment of the debt. If the former, the surety signer, as the purchaser, may be subrogated to all the rights of the original creditor." And a wife, who has mortgaged her separate property for her husband's debt, will be subrogated to the creditor's claim on payment thereof.^^^ Likewise, sureties paying their principals' debts in w'hole or in part are subrogated pro tanto to the creditors' claims and rights in the dividends.^^s t§ 228L Subrogation of Interested Party, Paying to Preserve Assets. — Where one, not a volunteer but interested in the bankrupt's business or in the property involved, pays a claim in order to preserve or protect the business or property, the claim is not necessarily extinguished, but he may be subrogated to the rights of the claimant. Thus, a remainderman furnishing money to pay taxes to a bankrupt life tenant, who has been collecting rents after the bankruptcy, the trustees 224. In re Dillon, 4 A. B. R. 63, 100 Fed. 627 (D. C. Mass.). 225. In re Mason & Son, 2 A. B. R. 60 (Ref. R. I.). 226. In re Printing Co. v. Brew. Co., 4 A. B. R. 183, 101 Fed. 699 (C. C. A. Ky.). 227. In re Carter, 15 A. B. R. 126, 138 Fed. 846 (D. C. Ark.). 228. See ante, subject of surety's claims, § 613. 1396 REMINGTON ON BANKRUPTCY, § 2284 in bankruptcy having successively resigned, is entitled to reimbursement out of the bankrupt estate.--^ § 2282. Mere Volunteers Not Entitled to Subrogation. — But a mere volunteer, not interested in the property involved nor acting in pursuance of an agreement for subrogation, is not entitled to subrogation. Thus, as to the purchaser of a tax title, where a city, after filing a claim for unpaid taxes upon the real estate of a bankrupt, sold under mortgage foreclosure in the state court free of all taxes (the state court refusing to order the taxes paid from the proceeds because the bankrupt act was thought to require priority of payment thereof from the personal estate of the bankrupt) sells the property for the unpaid taxes as provided by stat- ute, the purchaser at the tax sale was held not to be entitled to subrogation to the city's right of priority of payment from the bankrupt estate. In re Brinker, 12 A. B. R. 125, 128 Fed. 634 (D. C. X. Y.) : "Xor does the principle bf the right of equitable subrogation have application here. * * * The purchasers of the tax certificates were not obliged to bid in the property at the tax sale in order to protect themselves. They were not mortgagees or judgment creditors, or even creditors, of the bankrupt. They are third parties to the transaction, pure and simple, and accordingly cannot invoke the aid of the doctrine of subrogation." Thus, also, the paying of a bankrupt corporation's pay roll, but with no understanding for subrogation, either with the corporation or the work- men, and without present pecuniary interest, does not entitle to subro- gation. ^^o § 2283. No Subrogation of Trustee to Liens on Exempt Property Paid Off on Eve of Bankruptcy. — Xo right of subrogation to liens on exempt property paid off by the bankrupt on the eve of bankruptcy exists in favor of the trustee. -^^ Division 7. Procedure on Distribution. § 2284. Distribution to Be Based on Order of Court. — The trustee should make no distribution without first obtaining an order of the court. Where there are partnership and individual assets and liabihties for ad- ministration, the marshaling of the estates is to be based upon an order of the court. Likewise, priority claims are not to be paid tmtil allowed and ordered paid by the court. Dividends are not to be paid until declared and ordered paid by the court. There seems to be no set form of procedure for bringing about these 229. In re Force, 4 A. B. R. 114 (Ref. Mass.). As to reimbursement for taxes paid and subrogation to tax liens paid off, see ante. § 2149. 230. In re Taft, 13 A. B. R. 417, 133 Fed. 511 (C. C. A. Ohio). 231. Obiter, In re Wilson, 10 A. B. R. 524, 123 Fed. 20 fC. C. A. Calif.); contra, In re Boston, 3 A. B. R. 388, 98 Fed. 587 (D. C. Neb.). § 2286 DISTRIBUTION TO CREDITORS. 1397 orders of distribution. Undoubtedly, a formal motion would be proper, although in practice it is not customary. Usually the order marshaling the estates, where partnership and individual estates are being admin- istered in one bankruptcy, and the order declaring a dividend, are made upon oral motion, generally at the coming on of the hearing upon the trustee's report. SUBDIVISION "a." Trustee's Reports and Meetings of Creditors to Consider Them. § 2285. Trustees' Reports. — The first step in practice towards the distribution of the assets js the filing by the trustee of one of the reports required by the statute and Supreme Court's General Orders to be filed by him from time to time as part of his duties. It is one of the statutory duties of the trustee to report to the court, in writing, the condition of the estate and the amount of money on hand, and such other details as may be required by the court, within the first month after his appointment and every two months thereafter, unless otherwise ordered by the court. ^^^ § 2286. Form of Trustee's Reports. — The form of trustee's report prescribed by the Supreme Court, known as Official Form No. 49, should be followed with such alterations as may be necessary to suit the partic- ular case.233 This form, like the other prescribed forms, is merely directory and need not be followed where the facts of the case require variation from them.^^* And here it might properly be remarked that these official forms, while indicative of the supreme court's interpretations of the statutory provisions and thus valuable in aiding in the interpreting of the statute, are not to be absolutely followed, in all events, but may be altered to suit the cir- cumstances of each case. Indeed, the last order of the Supreme Court's General Orders in Bankruptcy, Order No. 38 itself, expressly states that : "The several forms annexed to the General Orders shall be observed and used, with such alterations as may be necessary to suit the circumstances of any particular case." In practice the trustee does not attempt to follow the prescribed form. No.- 49, in making his reports and particularly in making the report that is preliminary to a distribution of the assets. ^35 232. Bankr. Act, § 47 (10). See ante, § 917. 233. Official Form No. 49. 234. See ante, § 26. 235. But see In re Carr, 8 A. B. R. 636, 116 Fed. 556 (D. C. N. Car.), where the court says: "They (meaning the referees, trustees and depositories) must regard the rules as prescribed by the Supreme Court in the general orders and by this court in the district rules. * * * These rules are made for a purpose which they serve only when observed." Also, see ante, § 26. 1398 REMINGTON ON BANKRUPTCY. § 2291 fThe report made at this stage of the proceedings usually states the amount of money on hand ; the amount still likely to come in ; the expenses incurred thus far in the administration of the estate and those that are likely to be incurred therein in the future ; the costs of the court's officers, their fees, expenses and commissions; the disbursements already ordered by the court; the sjeveral amounts claimed by creditors who claim to have priority of payment out of the fund, and the several amounts claimed by general creditors who are without priority; the report usually ending or being accompanied with a request that the court allow the trustee his expenses, tax the fees and costs and commissions, determine the validity and priority of claims and order them paid in the order of their priority, and finally declare a dividend to creditors. § 2287. Review of Order Approving Trustee's Report and Al- lowing Expenses and Commissions. — The order approving the trus- tee's report, allowing expenses and commissions and declaring a dividend may be reviewed. -^^ § 2288. If Meeting Called to Consider Report, Ten Days Notice Requisite. — If a meeting of creditors is called to consider the report, ten days notice by mail must be given to all creditors, unless they have waived the notice in writing.-^''' § 2289. Also, If Dividend to Be Declared.— If a dividend is to be declared, ten days notice thereof likewise must be given. ^^s § 2290. Contents of Notice. — The notice need not state the iterris of expenses or the particular amounts of the various applications for allow- ance of attorneys' fees, etc., to be considered, but it is good practice to state in the notice as much of this kind of information as is feasible, for in this way creditors are kept informed of the progress of the estate, and oftentimes a wholesome corrective influence is exercised against exorbi- tant charges and extravagent allowances for attorneys' fees and other expenses. § 2291. Auditing of Accounts. — It is the duty of the referee in charge to audit the accounts of the trustee ;239 also that of the receiver. -^^ And 236. In re Scherr, 14 A. B. R. 794 (D. C. Pa.). See post § 2839, et seq., "Ap- peal and Review." 237. Bankr. Act, § 58 (a) : "Creditors shall have at least ten days notice by- mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing of * * * all meetings of creditors." Also, see ante, § 565. 238. Bankr. Act, § 58 (a) (5). See ante, § 565. 239. Gen. Order No. XVII: "All accounts of trustees shall be referred as of course to the referee for audit, unless otherwise specially ordered by the court." Bankr. Act, § 62. Also, see ante, § 517. 240. Impliedly, In re Reliance Storage & Warehouse Co., 4 A. B. R. 49, 100 Fed. 619 (D. C. Pa.). See ante, § 518. § 2294 DISTRIBUTION TO CREDITORS. 1399 it is the referee's duty to closely scrutinize the accounts, whether excep- tions are filed or not.^^i § 2292. At Time and Place Set, Report to Be Passed on, Ex- penses Allowed, Dividends Declared and Distribution Ordered. — At the time and place set in the notice, it is usual to approve or disap- prove the report, in whole or in part, allow the expenses of the officers of the court and their fees, allow claims of creditors, including those entitled to priority of payment, declare a dividend and order distribution. § 2293. Exceptions to Reports and Orders of Distribution. — Of course, exceptions may be taken by parties in interest, to the approval of the reports, and the allowance of expenses and fees and to the order of distribution. t§ 2294. Exceptions to Accounts to Be Filed Promptly. — Excep- tions to the receiver's or trustee's account should be filed promptly .~ They do not come under General Order 21, paragraph 6, relative to the re- examination of claims.-'*- 241. In re Baginsky, 2 A. B. R. 243 (Ref. La.). See ante, § 517. 242. In re Reliance Storage & Warehouse Co., 4 A. B. R. 49, 100 Fed. 61& (D. C. Pa.). Exceptions to distribution — Practice as to time of filing. In re Heebner, 13 A. B. R. 256, 132 Fed. 1003 (D. C. Pa.). CHAPTER XLII. Ciitions.^- 12. In re Eisenberg, 16 A. B. R. 777 (D. C. N. Y.). Compare similar rules relative to discharge, post, § 2662, et seq. CHAPTER XLVI. Procedure; on Composition. Synopsis of Chapter. DIVISION 1. § 2355. Ofifer of Composition. "§ 2356. Statute Strictly Construed and All Requirements to Be Fulfilled. § 2357. Irregular Compositions and Settlements in Other than Statutory Man- ner. § 2358. Special Meeting: for Presentation of Ofifer. § 2359. Examination of Bankrupt and Filing of Schedules Requisite before Ofifer. § 2360. Ofifer to Be Accepted in Writing. § 2361. Ofifer to Be Accepted by Majority in Number and Amount of Allowed Claims. § 2362. Creditors Once Accepting May Not Withdraw, Except for Fraud or IMisrepresentation. DIVISION 2. § 2363. Petition for Confirmation of Composition, When May Be Filed. § 2364. Designation of Amount and Place of Deposit. § 2365. Deposit to Be Sufficient to Pay All Costs and Priority Claipis as Well as Consideration to Creditors. § 2366. Must Cover All Claims Filed and All Schedules. § 2367. Whether Must Cover Deficiency of Secured Claims Not Yet Filed. § 2368. What Costs Provided for in Composition. § 2369. Whether Consideration Always to Be in Money. § 2370. Form of Application for Confirmation of Composition. § 2371. Ten Days Notice by Mail to Be Given. DIVISION 3. § 2372. Hearing on Petition for Confirmation of Composition. § 2373. Only Judge to Pass on Application. § 2374. But May Refer Issues to Referee as Special Master. Division 1. The Offer oe Composition. § 2355. Ofifer of Composition. — The first step in the procedure is for •the bankrupt to offer terms of composition to his creditors. The statute provides that a bankrupt may ofifer terms of composition to his creditors after, but not before, he has been examined in open court or at a meet- ing of his creditors, and has filed in court the schedule of his property and list of his creditors, required to be filed by bankrupts.^ 1. Bankr. Act, § 12 (a). 1430 REMINGTON ON BANKRUPTCY. § 2357 § 2356. Statute Strictly Construed and All Requirements to Be Fulfilled. — This entire § 12 should be strictly construed and all its re- quirements be carefully complied with.^ In re Frear, 10 A. B. R. 199, 120 Fed. 978 (D. C. N. Y.) : "It will be observed that there has been no compliance with the law. The parties and referee have adopted a mode of composition and procedure utterly at variance with the law, and now ask the court to approve and confirm it. The proceedings adopted and followed is not sanctioned by the law, and neither the court nor the judge has. power to confirm it. "Promises to pay money or merchandise at a future day have been substituted for money; the money, etc., were not deposited in a place desig- nated by the judge, or subject to his order; the ofifer and its acceptance were procured in violation of the provisions of the law; and, finally, if the judge or court should confirm the composition, so called, it would be impossible to com- ply with subdivision 'e' of § 12, which says, 'Upon the confirmation of a com- position the consideration shall be distributed as the judge shall direct.' The consideration has never been subject to the order of the judge, and has been already distributed, so far as paid in, pursuant to the order of a referee who had no power or jurisdiction in the premises whatever, and whose acts were those of an individual, merely. This court has no power to ratify or confirm such a proceeding, and cannot put its seal of approval thereon. The statute was made to be observed and -complied with, and only when there has been a substantial compliance therewith will the judge or court approve and confirm the proceedings. These matters of noncompliance are not technical, but go to the very pith and marrow of the law and objects to be attained. If this pro- ceeding is confirmed or approved, the court or judge will necessarily be com- pelled in the future to approve any manner or mode of composition to which creditors may not object. No significance can be attached to the fact that no creditor opposes this application. It is not probable that they have employed an attorney or know of their rights in the matter. But silence or acquiescence on the part of the creditors and their attorneys gives no excuse for the judge or court to violate the statute, or substitute an unauthorized and illegal pro- ceeding for the one provided by law. Such silence confers no jurisdiction. Jurisdiction to confirm this so-called composition could not be conferred by the express consent of all the creditors. The bankrupt is not aided by subdivision 9 of § 2 of the Act." And where the parties and the referee have adopted a mode and pro- cedure utterly at variance with the law, the composition is not to be con- firmed.^ . § 2357. Irregular Compositions and Settlements in Other than Statutory Manner. — Sometimes bankrupts attempt to settle with credit- ors and get back their assets without pursuing the statutory method pro-» vided for compositions. There seems no objection to such settlements, so far as the law is concerned ; but they are full of risk to the parties. In 2, In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.), quoted ante, §§ 2350, 2351. Compare, analogously, Bank v. DooHttle. 5 A. B. R. 741, 107 Fed. 236 (C. C. A. Tex.). Compare [1867] In re Shields, Fed. Cas. 12,784. 3. In re Frear, 10 A. B. R. 199, 120 Fed. 978 (D. C. N. Y.). § 2358 PROCEDURE O? COMPOSITION. 1431 the first place, care must be taken that notice goes to all creditors of the proposed dismissal, else creditors not notified may be entitled, perhaps, to reinstatement of the case. In the second place, care must be taken to get the consent of all creditors ; for such a settlement is dependent upon con- sent and not upon the statute, and those not consenting will not likely be bound. Thus, unscheduled creditors without notice may have their claims liqui- dated and passed upon despite a settlement and dismissal of the bank- ruptcy proceedings.^ § 2358. Special Meeting for Presentation of Offer. — It is not, per- haps, necessary that a special meeting of creditors be called in order to have the presentation of the oft'er to creditors legal f' but it is the better practice to present the offer at a special meeting called for that express purpose.^ The statute, to be sure, does not require such special meeting, but the reason of the matter would show it to be manifestly unfair to creditors not to give thera special notice of so important a move as the offer of a composition. As the court says in In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.) : "A construction which permits the bankrupt to select a time when but few creditors have proved and then to present his terms only to such creditors as he believes to be friendly to his interest, keeping the general creditors in the dark until he has obtained a majority of the few who have proved, is contrary to the intent and spirit of the law. It would enable a few active and friendly creditors on the spot so to manipulate the proceedings that the necessary majority could be secured while distant creditors were wholly ignorant of the proposed settlement. * * * "Section 12 is easily capable of a construction compatible with the intent and purpose which has always ruled proceedings of this kind. After the bankrupt has been examined and filed a list of his creditors he 'may offer terms of composition to his creditors.' This plainly implies that the offer should be made to all creditors, whether they have proved their debts or not. It is not essential that proofs shall be made before, or at, the first meeting. They may be made at any time within a year after the adjudication, and it is not neces- sary that they shall be filed, in the first instance, with the referee. Section 57, c. n. "After the terms are thus 'made known to all the creditors they have a reason- able time to decide whether they will accept the offer or not." The fact that the offer is made at the meeting of creditors, and that the notice states that the meeting has been called for the election of a trustee and -'for other matters," will not circumvent the salutary rule that special notice ought to be given of the proposed settlement to all creditors. Cred- 4. In re Howard Lockwood & Co., 4 A. B. R. 731, 104 Fed. 794 (D. C. N. Y.). 5. In re Hilborn, 4 A. B. R. 741, 104 Fed. 866 (D. C. N. Y.). 6. Impliedly, In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). 1432 REMINGTON ON BANKRUPTCY. § 2361 iters might not care to be present at the election of a, trustee to conduct the administration of the estate in the regular way, though they might be greatly interested in the offer and acceptance of a proposed composition. In re Frear, 10 A. B. R. 199, 120 Fed. 978 (D. C. N. Y.) : "Notice by mail and by publication of motion to confirm was given. But this is not a presentation of the offer of compromise. The general creditors who do not appear at the first meeting have the right to assume that the estate will be administered in the regular way." And such creditors might have much to say that would influence the other creditors to reject the same. ]\Ioreover. turning to the forms and orders prescribed by the Supreme Court, a light is thrown upon the subject by the interpretation manifestly put upon the statute by the Supreme Court; for the Supreme Court has prescribed a form, known as Form No. 60, for calling precisely such a meeting — a meeting to consider a proposed ofifer." Thus, even by the Supreme Court's form it appears the bankrupt is to make his ofifer at a meeting of creditors called for the special purpose. § 2359. Examination of Bankrupt and Filing of Schedules Req- uisite before Offer. — Before presenting the offer he must have been examined in open court or at some meeting of his creditors. He also must have filed his schedules — his schedules of assets and his list of creditors.. Not until then is it competent for him to present the ofifer.^ •§ 2360. Offer to Be Accepted in Writing. — The offer must be ac- cepted* in writing.^ § 2361. Offer to Be Accepted by Majority in Number and Amount of Allowed Claims. — The offer must be accepted by at least a majority in number and amount of creditors whose claims have been, by that time, allowed; but no more are requisite.^*' It does not require acceptance by a majority in number and amount of 7. Compare, Form No. 60: "The above named bankrupt respectfully repre- sents that a composition of per cent, upon all unsecured debts, not entitled to priority in satisfaction of debts has been proposed by to creditors, as porvided by the acts of Congress relating to bankruptcy, and verily believe that the said composition will be accepted bj' a majority in number and in value of creditors whose claims are allowed. "Wherefore, he prays that a meeting of creditors may be duly called to act upon said proposal for a composition, according to the provisions of said acts and the rules of court." In xe Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). 8. Bankr. Act, § 13 (a): "A bankrupt may offer terms of composition to his creditors after, but not before, he has been examined in open court or at a meeting of his creditors, and filed in court the schedule of his property and list of creditors, required to be filed by bankrupts." Obiter, In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). 9. Bankr. Act, § 12 (b) ; In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.V 10. Bankr. Act, § 12 (b); In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). § 2362 PROCEDURE OF COMPOSITION, 1433 all claims against the bankrupt, nor even of al! claims against him that are already allowed and that may be allowed within a certain time after- wards. It is only requisite that the acceptance be by a majority whose claims have already been allowed. Hence, the reason of the rule, that the offer should be made only at a meeting specially called for that purpose, becomes even more evident. Compare, In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. X. Y.) : "The pres- ent law should be construed in the light of similar prior enactments, and any doubt should be resolved against those who seek to deprive creditors of the right to have the debtor's property applied to the payment of his debts. Noth- ing short of an absolutely plain and unambiguous provision will convince the court that Congress intended for the first time, it is thought, in the history of bankruptcy legislation, to vest such unusual and dictatorial powers with a minority of the creditors. It may be assumed that the language of § 12 is not as perspicuous as could be desired, but, read as a whole, the intention of Con- gress seems plain to permit a compromise only when sanctioned by a majority in number and amount of the creditors whose claims have been allowed, after due notice to them of the bankrupt's proposition. If the construction contended for by the bankrupt be accepted it will lead to most inequitable results. Take, for illustration, a case where there are thirty creditors and only three have proved their debts, for equal amounts, at the time the composition is offered. If the bankrupt obtains the consent of two of them the composition must be confirmed, although the remaining twenty-eight creditors may be in open op- position." On the other hand, it does not mean that the creditor need be present either in person or by proxy, as is requisite to participation in other credit- ors' meetings. Creditors may act through their duly appointed attorneys in fact.^^ But the power of attorney should especially provide for the acceptance of a composition. § 2362. Creditors Once Accepting May Not Withdraw, Except for Fraud or Misrepresentation. — Creditors once accepting will not be al- lowed to withdraw acceptance, in the absence of fraud or misrepresenta- tion. In re Levy, 6 A. B. R. 299, 110 Fed. 744 (D. C. Penn.) : "These creditors voluntarily came into court, accepted the proposed composition and asked the court to act in the matter and confirm the composition. They procured the court to act, and they are now estopped from interfering with the further con- duct of the case in the matter of this composition. Had they alleged fraud or misrepresentation in the procuring of their signatures to the acceptance the case would be different." 11. Bankr. Act, § 1 (g); [1867] In re Weber Furn. Co., 13 B. Reg. 529, 559, Fed. Cases 17,330. 1434 remington on bankruptcy. § 2367 Division 2. Filing of the; Application for the Confirmation of the Composition. § 2363. Petition for Confirmation of Composition, When May Be Filed. — /\fter the acceptance of the oiTer by the requisite creditors, the next step is the fiHng of the petition for confirmation of the composition. An application for the confirmation of a composition may be filed in the court of bankruptcy after, but not before, it has been ac- cepted in writing by a majority in number of all creditors whose claims have been allowed, which number must represent a majority in amount of such claims, and the consideration to be paid by the bankrupt to his creditors, and the money necessary to pay all debts which have priority, and the cost of the proceedings, have been deposited in such place as shall be designated by and subject to the order of the judge. ^- § 2364. Designation of Amount and Place of Deposit. — From a strict reading of the statute it would appear that the bankrupt should first procure an order from the judge, designating the amount and place of de- posit of the consideration proposed by the ofifer to be given to the creditors and to cover the costs. ^^ In practice a special order is not generally made before the filing of the application, but the referee in charge certifies to the requisite amount and the bankrupt thereupon deposits the money in the regularly designated depository. § 2365. Deposit to Be Sufficient to Pay All Costs and Priority Claims, as Well as Consideration to Creditors. — The deposit must be sufficient to pay all costs and all priority claims, as well as the consider- ation that will go to general creditors.^-* Thus, it must be sufficient to cover taxes. ^^ § 2366. Must Cover All Claims Filed and All Scheduled.— The de- posit must also be sufficient to pay the percentage not only on all claims filed before the confirmation, but also on all other claims listed by the bankrupt in his schedules.^*' § 2367. Whether Must Cover Deficiency of Secured Claims Not Yet Filed. — It has been held that the deposit need not cover the per- 12. Bankr. Act, § 12 (a). 13. In re Frear, 10 A. B. R. 199, 120 Fed. 978 (D. C. N. Y.). 14. Bankr. Act, § 12 (b). In re Harris, 9 A. B. R. 20, 117 Fed. 575 (D. C Tenn.); In re Fox, 6 A. B. R. 525 (Ref. Ohio, affirmed by D. C); In re Harvey, 16 A. B. R. 345, 144 Fed. 901 (D. C. Pa.). 15. In re Flynn, 13 A. B. R. 720, 134 Fed. 145 (D. C. Mass.). 16. In re Fox, 6 A. B. R. 525 (Ref. Ohio, affirmed by D. C); In re Harvey, 16 A. B. R. 345, 144 Fed. 901 (D. C. Pa.). § 2369 PROCEDURE OF COMPOSITIOX. 1435 centage on the deficiency of secured claims where such claims have not been filed. ^^ But this is doubtful law. The bankrupt can estimate the value of the securities if the creditor neglects to do so and the creditor will be estopped by his laches. § 2368. What Costs Provided for in Composition. — The costs and priority claims will be regulated by the same rule in compositions as in the regular administration of the bankrupt estate, except that the referee and trustee will each receive only one-half of one per cent, for their commis- sions. Frequently it happens also that no trustee is elected, the election being deferred pending the composition proceedings. So these items are likely to vary in these particulars from the usual costs of the regular bankruptcy proceedings ; otherwise they are the same.^^ The court will not order the costs paid, against the objections of the bankrupt. It will simply refuse to confirm the composition until they are provided; for the composition must be voluntary on the bankrupt's part.^^ The election of a trustee may be dispensed with or postponed, where the bankrupt announces his intention of offering terms of composition. ^o § 2369. Whether Consideration Always to Be in Money. — \\ hether the consideration must always be money is not clear. The wording of the section is very significant — the use of the word "consideration" instead of the word "money" in the part that relates to what shall be deposited for the creditors, and the use of the word "money" in the part that provides what shall be deposited to pay costs and priority claims ; also the neces- sities of the situation itself — the bankrupt usually having little opportunity of getting money — are likewise significant, and point to an intention on the part of Congress to leave it possible for the bankrupt to obtain a composi- tion on the strength of depositing for creditors something else than money, as, for instance, his promissory notes secured by endorsement or by mort- gage upon the property thus redeemed by him from bankruptcy.^i Or perhaps shares of stock. 22 The law of 1867 provided for payment or satisfaction in money in con- tradistinction from other property, but nevertheless even under that law a composition was held proper that was effected by the giving of notes. ^^ 17. In re Harvey, 16 A. B. R. 345, 144 Fed. 901 (D. C. Pa.). 18. Instance of costs on composition: Attornej^s' fees to petitioning cred- itors and bankrupt. In re Talton, 14 A. B. R. 617, 137 Fed. 178 (D. C. N. Car.). Instance of costs refused: No allowance to referee as special master. In re Talton, 14 A. B. R. 617, 137 Fed. 178 (D. C. N. Car.). 19. In re Harris, 9 A. B. R. 20, 117 Fed. 575 (D. C. Tenn.). 20. In re Rung Bros., 2 A. B. R. 620 (Ref. N. Y.). 21. But see In re Frear, 10 A. B. R. 199, 120 Fed. 978 (D. C. N. Y.). 22. In re Woodend, 12 A. B. R. 768, 133 Fed. 593 (D. C. N. Y.), quoted posr, § 2386: In this case confirmation was refused, but not upon the ground that the ofifer was not in money. 23. In re Reiman, 11 B. Reg. 21, 13 Reg. 128, 12 Blatchf. 562; In re Lang- don, 13 B. Reg. 60; In re Lewis, 14 B. Reg. 144; In re Hurst, 13 B. Reg. 455. 1436 REMINGTON ON BANKRUPTCY. § 2373 § 2370. Form of Application for Confirmation of Composition. — The form of the appHcation for the confirmation of a composition is prescribed by the Supreme Court, and is known as Form No. 61. ^^ It sets forth the performance of the requisite acts hereinbefore mentioned. § 2371. Ten Days Notice by Mail to Be Given. — Ten days notice by mail must be given to ah creditors, unless waived by them in writing, of the hearing upon the apphcation for the confirmation of the composi- tion. ^^ This notice is usually given by the referee. Division 3. Hearing on Petition eor Confirmation of Composition. § 2372. Hearing on Petition for Confirmation of Composition.— The statute in § 12 (c) provides that "A date and place, with reference to the convenience of the parties in interest, shall be fixed for the hearing upon each application for the con- firmation of a composition; and such objections as may be made to its confirmation." And further provides that "the judge shall confirm a composition if satis- fied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge; and (3) the offer and its acceptance are in good faith and have not been made or procured except as herein provided, or by any means, promises, or acts herein forbidden." !§ 2373. Only Judge to Pass on Application. — Only the judge may pass upon the application for the confirmation of a composition. Section 38 in clause 4, in prescribing the jurisdiction of referees, pro- vides that they shall. "Perform such part of the duties, except as to questions arising out of the applications of bankrupts for compositions or discharges, as are by this act conferred on Courts of bankruptcy" etc. Therefore, composition matters must all go directly before the judge. 24. Official Form 61: "At , in said District, on the day of -, A. D. 19 , now comes , the above named bankrupt, and respectfully represents to the court that, after he had been examined in open court (or at a meeting of his creditors) and had filed in court a schedule of his property and a list of his creditors, as required by law, he offered terms of composition to his creditors, which terms have been accepted in writing by a. majority in number of all creditors whose claims have been allowed, which number represented a majority of such claims; that the consideration to be paid by the bankrupt to his creditors, the money necessary to pay all debts which have priority, and the costs of the proceedings, amounting in all to the sum of dollars, has been deposited, subject to the order of the judge, in the National Bank, of , a designated depository of money in bankruptcy .cases. "Wherefore the said respectfully asks that the said com- position may be confirmed by the court." 25. Bankr. Act § 58 (a) (2). § 2374 procedure; of composition. 1437 § 2374. But May Refer Issues to Referee as Special Master. — But the judge may refer the questions mvolved to the referee as a special master, who will then report his findings to the judge for final disposition. 2*5 Adler v. Jones, 6 A. B. R. 247, 109 Fed. 967 (C. C. A. Tenn.) : "Questions arising out of applications for confirmation of compositions are, therefore, addressed to- the judge. He may doubtless require the referee to report the facts." 26. See General Order No. XLI of the Supreme Court's General Orders in Bankruptcy: "3. Applications for a discharge, or for the approval of a composi- tion * * * shall be heard and decided by the Judge. But he may refer such an application, or any specified issue arising thereon, to the referee to ascertain and report the facts." CHAPTER XU'II. Opposition to Confirmation of a Composition. Synopsis of Chapter. DIVISION 1. § 2375. Only Creditors May Oppose Confirmation: Trustee May Not. § 2376. Court May Refuse Confirmation without Appearance of Any "Party in Interest" Where Procedure Irregular. DIVISION 2. § 2377. Procedure on Opposition to Composition Similar to That on Discharge. § 2378. Entrj^ of Appearance Requisite. § 2379. Ten Days Time after Appearance, for Filing Specifications. § 2380. Form and Allegations of Specifications, Similar to Discharge. DIVISION 3. § 2381. Three Grounds of Opposition. § 2382. Statutory Grounds Requisite to Bar Confirmation on Merits. § 2383. Burden of Proof on Opposing Creditor. subdivision "a." § 2384. First Ground— "Not for Best Interests of Creditors." § 2385. Test of "Best Interest"— Whether More Could Be Realized by Or- dinary Administration. § 2386. Creditors' Acceptance of Ofifer Not to Be Lightly Interfered with. SUBDIVISION "b." § 2387. Second Ground — Commission of Act Barring Discharge, Bars Compo- sition. SUBDIVISION "C." § 2388. Third Ground — Offer or Acceptance Not in Good Faith or Procured Improperly. Division 1. Who May Oppose thf Confirmation of a Composition. § 2375. Only Creditors May Oppose Confirmation: Trustee May Not. — The statute does not in express terms declare who may oppose the confirmation of a composition, but does so impHedly, by providing, in gen- eral terms, in § 12 (c) for the fixing of a time and place convenient to "parties in interest. "^ iBut by construction of the statute and orders it is deduced that only creditors may be parties to oppose it, and that the trttstee may not do so. 1. In re Levey, 13 A. B. R. 312, 133 Fed. 572 (D. C. N. Y.}. § 2377 OPPOSITION TO CONFIRMATION OF A COMPOSITION. 1439 Ross V. Sanders, 5 A. B. R. 350, 105 Fed. 915 (C. C. A. Mass.): "There is no law authorizing any person to become a party to this proceeding except the bankrupt and his creditors. The statute directs notice to the latter, and to no other person; and General Order 32 (32 C. C. A. xxxi, 89 Fed. xiii.) pro- vides for their appearance, and for no other. There is nothing in the statute or in the General Orders which authorized the trustee, as trustee, to interfere in this proceeding, beyond furnishing such information concerning the estate under his charge, and the admjinistration thereof, as might be requested, which duty is expressly imposed on him by law. JSTeither is there anything which justifies the trustee in defending this appeal at the expense of the estate, or in his capacity as trustee. The English statutes in bankruptcy 'pro- vide expressly that a trustee may appeal from an order of confirmation. Under those statutes the official receiver becomes the ad interim trustee, and stands quasi trustee until the trustee proper is appointed. Therefore he has the same relation to a question of composition which the trustee has, but he is not expressly authorized by the statutes to appeal. Consequently, in Ex parte Reed, 17 Q. B. Div. 244, 258, an official receiver was somewhat sharply told that he ought not to appear on the hearing of an appeal of this character unless the court required him to do so. In that particular case it was held that he ought not to have appeared, and his costs were refused, although the composi- tion was set aside. This is in accordance with the ordinary rule that a stake- holder stands equal between the parties concerned, and should not interfere in litigation unless . equired to do so by the court which has jurisdiction over him." Thus, it was held that a creditor, who by an assignment induced by the alleged false representations of the trustee and bankrupt, had parted with all title to his claim against the estate could not assail a composition nor move to vacate its confirmation. ^ § 2376. Court May Refuse Confirmation without Appearance of Any "Party in Interest," Where Procedure Irregular. — It may be the duty of the Judge, without the appearance of any party in interest in opposition, to refuse to confirm a composition.-^ But such refusal should only occur where the proceedings are irregular. The statute hardly permits the court, of its own motion, to refuse con- firmation on the merits, any more than to refuse discharge. Division 2. Procedure upon Opposition to Confirmation of Composition. § 2377. Procedure on Opposition to Composition Similar to That on Discharge. — In general, the procedure on opposition to confirmation of a composition is similar to that on opposition to discharge.'* 2. Obiter, In re Wrisley Co., 13 A. B. R. 193, 133 Fed. 388 (C. C. A. Ills.). 3. Ross V. Saunders, 5 A. B. R. 350,- 105 Fed. 915 (C. C. A. Mass.), wherein the court quotes In re Burr, 2 Q. B. Div. 467, 472: "In bankruptcy cases, the court has very often to protect creditors against themselves." 4. Bank v. Doolittle, 5 A. B. R. 736, 107 Fed. 236 (C. C. A. Tex.). 1440 REMINGTON OX BANKRUPTCY, ^ 2381 § 2378. Entry of Appearance Requisite. — Any creditor desiring to oppose the confirmation of a composition, must enter his appearance — that is to say, appear before the judge or the district clerk and have the entry made that he appears — for the purpose of opposing the confirmation at or before the time set in the notices, precisely the same as in cases of oppo- sition to a discharge.''' § 2379. Ten Days Time after Appearance, for Filing Specifica- tions. — Thereafter, within ten days time, unless longer time is given by the judge, the creditor must file written specifications of the grounds of his opposition to the confirmation of the composition, precisely as in case of discharge. "^ § 2380. Form and Allegations of Specifications, Similar to Dis- charge. — The form and allegations of the creditor's specifications of his grounds of opposition to the confirmation of the composition follow, in general, those in opposition to discharge.'^ Division 4- Grounds for Opposition to thi; Conpirmation op a Composition. § 2381. Three Grounds of Opposition. — The statute provides three grounds for refusing confirmation of a composition. The judge must confirm a composition, if satisfied that it is for the best interests of the creditors and if the bankrupt has not been guilty of any of the acts or failed to perform any of the duties w-hich would be a bar to his discharge, and the ofifer and its acceptance are in good faith and have not been made or procured except as provided in the act, or by any means, promises or acts forbidden by the Act.^ 5. Gen. Ord. XXXII: "A creditor opposing the application of a bankrupt for his discharge, or for the confirmation of a composition, shall enter his appear- ance in opposition thereto on the day when the creditors are required to show cause, and shall file a specification in writing of the grounds of his opposition within ten days thereafter, unless the time shall be enlarged bj- special order of the judge." Adler v. Jones, 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.). 6. Gen. Ord. Xo. XXXII. Delay in order to permit liquidation of claim refused. In re Heinsfurter, 3 A. B. R. 109, 97 Fed. 198 (D. C. Iowa). In this case the court refused to de- lay confirmation to give time for a creditor to effect a liquidation of an unliqui- dated claim, because of laches, or prior disallowance by the Bankruptcj' Court itself and because of a preference. 7. Adler v. Jones, 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.); Bk. v. Doo- little, 5 A. B. R. 736, 107 Fed. 236 (C. C. A. Tex.). 8. Bankr. Act, § 12 (b). See also, Bank v. Doolittle, 5 A. B. R. 736, 107 Fed. 236 (C. C. A. Tex.). Compare, interesting discussion of the functions of the judge in relation to compositions in Ross v. Saunders, 5 A. B. R. 350 (C. C. A. Mass.). § 2385 OPPOSITION TO CONFIRMATION OF A COMPOSITION. 1441 § 2382. Statutory Grounds Requisite to Bar Confirmation on Merits. — Only such grounds as are prescribed by statute will suffice to prevent confirmation of a composition.^ But, after confirmation, it is possible that the court retains the power to set aside its order of confirmation and reinstate the case precisely as in other cases. ^"^ And the court may, for good cause, delay confirmation without re- fusing it.^^ But for irregularity of procedure and failure to comply with the stat- utory requirements, the court may refuse confirmation of a composition; and may do so even on its own motion. § 2383. Burden of Proof on Opposing Creditor. — The burden of proof is on the creditor opposing the confirmation.^- SUBDIVISION "a." First Ground of Opposition to Confirmation of a Composition. § 2384. First Ground: "Not for Best Interests of Creditors."— Where the composition is not for the best interests of the creditors it may be refused. ^^ , § 2385. Test of "Best Interest"— Whether More Could Be Real- ized by Ordinary Administration. — The test is not whether the bank- rupt could give more, but is whether or not more could be realized by creditors if the assets are administered in due course. ^^ Adler t-. Jones, 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.) : "It comes, then, to this: if the court is satisfied upon the hearing that the composition offered would pay creditors very considerably less than they might reasonably be expected to realize in the administration of the assets in due course, then the composition is not for 'the best interest of creditors. In determining this 9. Bank v. Doolittle, 5 A. B. R. 741, 107 Fed. 236 (C. C. A. Tex.); In re Rud- wick, 2 A. B. R. 114, 9.3 Fed. 787 (D. C. Mass.). 10. Bank v. Doolittle, 5 A. B. R. 742, 107 Fed. 2.36 (C. C. A. Tex.). 11. Inferentially, In re Heinsfurter, 3 A. B. R. 109, 97 Fed. 198 (D. C. Iowa): In this case, however, delay was refused because of lack of a sufficient reason therefor. 12. Obiter, Bk. v. Doolittle, 5 A. B. R. 741, 107 Fed. 236 (C. C. A. Tex.).'* 13. Bankr. Act, § 12 (b). In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.); In re Woodend, 12 A. B. R. 768, 133 Fed. .593 (D. C. N. Y.); Adler v. Jones, 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.). Obiter, U. S. ex rel Adler v. Hammond. 4 A. B. R. 736, 104 Fed. 62 (C. C. A. Tenn.). Obiter, confirmation being granted, In re Arrington Co., 8 A. B. R. 66, 113 Fed. 498 (D. C. Va.). Obiter, confirmation being granted. In re Criterion Watch Case Co., 8 A. B. R. 206 (Ref. N. Y.). 14. Inferentially, in re Criterion Watch Case Co., 8 A. B. R. 206 (Ref. N. Y.) ; In re Arrington Co., 8 A. B. R. 66, 113 Fed. 498 (D. C. Va.) ; instance. In re :\Iartin, 18 A. B. R. 250 (D. C. N. Y.); [1867] In re Whipple, Fed. Cases No. 17,513; [1867] In re Weber Furniture Co., Fed. Cases No. 17,330. 2 Rem B— 16 1442 REMINGTON ON BANKRUPTCY. § 2386 question the courts will doubtless be influenced by the consideration that man can ordinarily do better with his own property, and realize more there- from, than can be obtained in course of judicial proceedings with compulsory sales and expense of administration." [1867] In re Morris, Fed. Cases No. 7,303, 11 N. B. Reg. 443: "In the absence of fraud and concealment the question for the court seems to be not whether the debtor might have offered more, but whether the estate would pay more in bankruptcy." Obiter U. S. ex rel Adler v. Hammond, 4 A. B. R. 736, 104 Fed. 62 (C. C. A. Tenn.) : "Obviously this amount is contemplated as a sum which will be the equivalent of the assets which would be obtained bj^ the other and more tedious course." Thus, if the composition offered would pay creditors considerably less than they might reasonably expect to realize in the administration of the assets in due course, then the composition is manifestly not for the best interests of the creditors ;^^ even though the amount expected to be real- ized be dependent on the successful outcome of a pending suit to set aside a fraudulent transfer. ^"^ § 2386. Creditors' Acceptance of Offer Not to Be Lightly Inter- fered with. — The decision of the majority of the creditors usually is conclusive as to "best interest" in the amount of the composition, when such judgment is exercised by them in good faith and there is nothing to indicate fraud, accident or mistake.^" [1867] In re Weber Furniture Co., Fed. Cases No. 17,330 (on review No. 17,331) : "But where a composition deed has been signed by a large majority of the creditors upon a full consideration of the condition of the debtor, I should be very reluctant to overrule their judgment simply because I thought the estate would yield a larger dividend in bankruptcy. Much would depend upon the character of the property and the state of the market. In the case above cited Judge Lowell intimated 'that a difiference of five per cent, upon the amount of the debts and the probable amount of the assets would not be sufificient to induce me to reject the resolution.' I would go even further than that, and say that where the property consisted of real estate or of goods, the value of which depended upon the caprices of fashion, or other like contingencies, I would not overrule the discretion of the cred- itors, fairly exercised, if the difference were ten or even fifteen per cent." But it is not always conclusive. Ixt re Woodend, 12 A. B. R. 768, 133 Fed. 593 (D. C. N. Y.) : "The actual composition proposed, therefore, as I understand it, consists of an offer to pay debts with worthless stock, the acceptance of which will impose a heavy personal liability. For instance, a creditor for $1000 is to be forced to accept in full settlement eleven shares, worth $2.75, the acceptance of which would 15. Adler v. Jones. 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.); [1867] In re Reiman, 11 B. Reg. 21, 13 B. Reg. 128. 16. Adler v. Jones, 6 A. B. R. 248, 109 Fed. 967 (C. C. A. Tenn.). 17. In re Arrington Co., 8 A. B. R. 66, 113 Fed. 498 (D. C. Va.). § 2387 OPPOSITION TO CONFIRMATION OF A COMPOSITION. 1443 involve him in a personal liability to the extent of $1,100. I think that no such composition should be confirmed. It is urged that a large majority of the creditors have assented to it. Any creditors who choose to make such a settlement are free to do so, but in my opinion this court should not compel any dissenting creditor to accept such an offer." SUBDIVISION "b." Second Ground for Opposing Confirmation of Composition. § 2387. Second Ground — Commission of Act Barring Discharge, Bars Composition. — If the bankrupt has committed any of the acts that would be a bar to his discharge, confirmation of his composition will be refused, no matter how beneficial the composition would be to his cred- itors, nor how few creditors are opposing the confirmation.^^ In re Godwin, 10 A. B. R. 252, 122 Fed. Ill (D. C. Penn.) : "It is very likely that the creditors may lose by the defeat of the proposed composition; but this consideration cannot be allowed to influence the court in deciding whether the bankrupt has been 'guilty of any of the acts, or failed to perform any of the duties, which would be a bar to his discharge.' Bankruptcy Act, § 12, cl. 'd.' I agree with the learned referee that the testimony establishes the fact satisfactorily that the bankrupt has committed one of the offenses specified in § 14, clause 'b.' He has, 'with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy, destroyed, concealed or failed to keep books of account or records from which his true condition might be ascertained.' This being so, I think the act requires me to refuse approval of the composition, without regard to the question whether the creditors would be benefited thereby; and the fact that only one creditor is actively objecting, while a large majority is in favor of taking what the bankrupt offers, is of no importance in the present inquiry. "The report of the referee is approved and the confirmation of the com- position is refused." In re Olman, 13 A. B. R. 398 (D. C. Ohio): "T]\e absurdity of the ex- planation offered compels the belief that the bankrupts failed to keep books from which their true condition might be ascertained, and withheld such books as they did keep for the purpose of concealing their true financial condition, and to enable them to conceal property from their creditors, and that it was done with a view to force a profitable compromise with the creditors, or ultimately to secure a discharge from their debts through proceedings in bankruptcy. "The application to confirm the composition therefore will be refused." In this connection it is well to call attention to the offense of presenting J. false claim for proof, or of using any such claim in composition, per- sonally or by agent, proxy or attorney, or as agent, proxy or attorney. Al- though there appear to be no cases decided under the present law upon the point, such use of false claims is deemed to be more or less frequent in composition cases, and would be a bar to confirmation. 18. Instance where "False Oath" urged, but not proved. In re Cohen, 18 A. B. R. 85, 149 Fed. 908 (D. C. N. Y.). 1444 remixgtox ox baxkruptcy. § 2388 subdivisiox' "c" Third Grouxd of Oppositiox to Coxfirmatiox of a Compositiox. § 2388. Third Ground — Offer or Acceptance Not in Good Faith or Procured Improperly. — If the offer or its acceptance is not in good faith or has been made or procured improperly, confirmation may be re fused. ^^ Thus, where a trustee was interested in a scheme of composition with creditors, and by conceahiient or false representations, in aid of the bank- rupt, induced creditors to act contrary to their interests, a composition thus entered into was annulled.-'^ 19. Bankr. Act, § 12 (b). As to the effect of a secret advantage given under a composition, see Batchel- der V. Whitmore, 10 A. B. R. 641 (C. C. A. Mass.). Compare same subject where composition, in which the secret advantage was given, occurred before bankruptcy. In re ChampHn, 8 A. B. R. 121 (D. C. Mass.). 20. In re Wrisjey Co., 13 A. B. R. 193, 133 Fed. 888 (C. C. A. Ills.). The bankrupt's attorney is not necessarily disqualified from collecting claims for the trustee in composition cases and the attorney may recover for such services. Keyes v. McKirrow, 9 A. B. R. 322, 180 Mass. 261. CHAPTER XLVIII. DlSTRIBUTlOX AND PROCEEDINGS AFTER CONFIRMATION IN COMPOSI- TION Cases. Synopsis of Chapter. § 2389. Distribution, upon Confirmation of Composition. § 2390. Judge Directs Manner of Distribution. § 2391. Referee Divested of Jurisdiction by Confirmation of Composition Ex- cept as Otherwise Ordered by Judge. § 2392. Distributing Agent Usually Appointed. § 2393. All Creditors to Share, Whether Proofs Filed or Allowed or Not, unless Limited by Order of Distribution. § 2394. Whether Bound by Year's Limitation for Filing Claims. § 2395. Secured Creditors to Participate to Amount of Deficit. § 2396. But Judge May Limit Time and Require Filing of Proofs of Claims. § 2397. Closing of Case after Distribution Completed. § 2398. Jurisdiction to Determine Ownership of Property in Custody of Court Not Divested. § 2389. Distribution, upon Confirmation of Composition. — Upon the confirmation of a composition, the con.sideration is to be distributed as the judge directs, and the case dismissed. AA'henever a composition is not confirmed, the estate is to be administered in bankruptcy as provided in the Act.^ § 2390. Judge Directs Manner of Distribution. — The judge directs the manner of distribution. - § 239L Referee Divested of Jurisdiction by Confirmation of Composition, Except as Otherwise Ordered by Judge. — The referee is (hvested of jurisdiction by the confirmation of a composition.-^ In re Fox, 6 A. B. R. 526 (Ref. Ohio, affirmed by D. C.) : "Section 12e of the Bankruptcy Act provides that 'upon the confirmation of a composition the consideration shall be distributed as the judge shall direct and the case dismissed. Whenever a composition is not confirmed the estate shall be admin- istered in bankruptcy as herein provided.' "This section, taken in conjunction with the well defined reservation to the 1. Bankr. Act, § 12 (e). In re Lane. 11 A. B. R. 137, 125 Fed. 772 (D. C. Mass.). 2. Bankr. Act, § 12. (e). In re Lane. 11 A. B. R. 137, 125 Fed. 772 (D. C. Mass.). 3. But compare, apparently contra, In re Sonnabend, 18 A. B. R. 117 (Ref. Mass.). 1446 REMINGTON ON BANKRUPTCY. f^ 2394 judge contained in § 38 (4) of all 'questions arising out of the applications of bankrupts for compositions,' sufficiently indicates that the confirmation of the composition in this case divested the referee of further jurisdiction and placed the composition fund and all questions relating to its distribution — including necessarily the allowance of contested claims — directly 'under the supervision of the judge himself, as well as all questions arising more spe- cifically out of the consideration of the advisability of approving the compo- sition." But, undoubtedly, the judge may, in his order, direct the referee to determine the vahdity of claims and. to perform other functions relative to the distribution; but this would be by virtue of the order and not be- cause he is the referee.^ § 2392. Distributing- Agent Usually Appointed. — Usually the judge appoints a distributing agent to take charge of the composition fund and to disburse it in accordance with the order of confirmation. The clerk of the court or referee, or trustee or any other person may be such dis- tributing agent. The distributing agent may be allowed compensation for lis services, under the broad authority that the distribution shall be ac- complished "as the judge shall direct." § 2393. All Creditors to Share, Whether Proofs Filed or Allowed or Not, unless Limited by Order of Distribution. — All creditors are entitled to share, even those who did not file their claims before the con- firmation.^ It is also a question, whether, unless the judge has ordered otherwise, it is not the duty of the distributing agent appointed by the judge, to pay the percentage to the creditors whose claims have not yet been filed, ac- cording to the schedules, without demand or proof of claim, subject simply to correction on application to the judge.*^ § 2394. Whether Bound by Year's Limitation for Filing Claims. — It is also a question whether, unless the judge in his order has pre- scribed a limit, creditors are limited by the statutory period of one year from the date of the adjudication in making demand for their respective shares. The limitation of one year was made in the interests of all the creditors as a body ; but, in compositions, it is a matter of indifference to other creditors when any one particular creditor is paid his share.''' In re Fox, 6 A. B. R. 527 (Ref. Ohio, affirmed by D. C.) : "In the fir^t place the fascinating analogy between the complete distribution of an estate 4. Obiter, In re Fox, 6 A. B. R. 526 (Ref. Ohio). £. In re Fox, 6 A. B. R. 525 (Ref. Ohio, affirmed by D. C). Compare, infer- entially, to same effect, In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). 6. In re Fox, 6 A. B. R. 525 (Ref. Ohio, affirmed by D. Cf.). 7. Contra, In re Lane, 11 A. B. R. 136 (D. C. Mass.). § 2394 PROCEEDINGS AFTER CONFIRMATION. 1447 in dividends before the expiration of the allotted year and the distribution of composition money to those only who have promptly filed their claims does not stand under close inspection. In compositions the amount each creditor is to receive is fixed and his delay in calling for it hurts no one but himself, whilst in the payment of dividends no one can get any pay at all until the rate is determined; and, if the rate could not be determined until the last straggler had filed his claim, then no one could get his pay until the end of the year. For this reason the law says the laggard claimant of a dividend must suffer rather than all the others. But such considerations do not apply to- compositions; for who is hurt if the creditor does take the whole year or more to demand his monej^? No one but himself. "In the next place, the creditors and the amounts of their claims to be- covered by the composition arrangement may not, as is mistakenly contended,, be different from those set forth in the list already filed as part of the bank- rupt's original schedules; nor would it be necessary for them to be different in order to avoid the contingency of a total frustration of a desirable com- position through some unscrupulous creditor making an excessive claim. This is so for the reason that the 'list of creditors' required by § 7 of the act to be- filed by bankrupts with their petitions need not show the amounts claimed by the respective creditors, though it may do so, but need show merely the respective amounts 'due,' that is to say, rightfully owing, to each of them. So it is evident no unjust claims need be taken into account in fixing the deposit, even if it is the schedules that are required to be taken for the basis; for as to the claims alread}^ filed, the order of allowance itself determines their justness; and as to those not filed, the bankrupt's own estimate of their- justness is controlling, and he has no one to blame but himself if he has to make a deposit to cover some scheduled claims that are unjust. "Again, there is no half-way stop between the position that all just claims must be allowed to participate in the composition fund, and the position that only those filed before the filing of the petition for confirmation may partic- ipate. Thus it would be inconsistent with either position to hold that those proved after the petition was filed and before the judge had acted on it should' be included in the distribution. There would exist necessity, in such an event, for adding to the deposit and for amending the petition to correspond there- with, each time a new claim was added, up to the very day of the confirmation hearing, and the bankrupts would still be laboring under the burden of the uncertainties complained of, in making their offer of composition." Contra, In re Brown, 10 A. B. R. 589, 123 Fed. 336 (D. C. Colo.): "The question presented by thes^ petitions is whether, in a case where composition is effected, a creditor must, under § 57 of the Bankrupt Act, prove his claim within one year from the date of adjudication. That he must do so in ordinary cases where composition is not made, has been the uniform rule since the act was passed. In re Meyer Stein (C. C), 1 Am. B. R. 662, 94 Fed. 124. The rule must be the same in a case where composition is made. Under section 12, the bankrupt may offer terms of composition 'after but not before he has been examined in open court, or at a meeting of his creditors.' The creditors here referred to are such as have proved their claims, for no others can participate • in a meeting of creditors. Clause 'b' of this section provides for confirmation of the composition 'after but not before it has been accepted in writing by a majority in number of all creditors whose claiins have been allowed-.' Under clause 'e,' if the composition shall fail, 'the estate shall be administered in bankruptcy as herein provided.' As to the proof of claims, the course of pro- 1448 REMIXXTOX ox BANKRUPTCY. § 2395 ceeding is precisely the same whether there be composition, or proceedings are carried through in ordinary course. Only those creditors who prove their claims within one year from the date of adjudication can have divi- dends from the estate, or assert a right to share in the funds paid in composi- tion. The officers of the court cannot know what amount should be paid to a creditor, or, indeed, who are creditors, except upon proof of their claims in the time and manner provided bj^ law. The bankrupt is entitled to the money remaining in court unclaimed after the expiration of the year in which proof of claims could be made, and the creditor cannot be heard to say that it was not in fault, in respect to the failure to present its claim. The language of the statute permits no exceptions to its terms. 'Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication.' Xo language could be more explicit, and no court can doubt as to its meaning." § 2395. Secured Creditors to Participate to Amount of Deficit. — Secured creditors are entitled to their respective shares to the extent of any deficit left after appHcation of their security on the debt. [1867] Paret v. Ticknor, 16 X. B. Reg. 315: "I am of opinion myself that the compromise provisions of bankruptcy design that every creditor shall receive the same proportion of his debt; and I am of opinion as regards the parties who shall receive, that the secured creditor is a creditor for that purpose for all that is not satisfied by his security; and I am of the opinion that whenever this fact is ascertained, even after the compromise, that remainder constitutes a debt against the bankrupt, of which he shall pay the same proportion to that creditor that he has paid to the unsecured creditors." [1867] Cavanna v. Bassett, 3 Fed. Rep. 21.5: "Composition proceedings do not operate to deprive a secured creditor of the right, after exhausting his own securit}', and ascertaining the amount unpaid, to assert against the bankrupt a claim for the deficienc}^ and such claims may be enforced through the instrumentality of an execution issued against the property of the debtor on the deficient judgment; complainant had a right to hold on to her security, and as a secured creditor she could not properly participate in the composition proceedings; she could not be coinpelled to surrender her securitj^ and then come in and prove her claim, nor was it encumbent on her to have her security valued and then to make proof of any balance; the bankrupts knew or should have known that there was a liability that the security would not paj^ the in- debtedness; they were chargeable with notice that such a contingency might arise, and if ^hey desired to put complainant in position where the complain- ant's proceedings would operate upon hers, they might have applied to the court for proceedings compulsory in their nature, to have the security valued; not having done so, there remained a liability that in case the security should prove inadequate, complainant would have the right as to any deficiency, to compel the payment of the same to the extent of the percentage paid to unse- cured creditors under the composition." In re Kahn, 9 A. B. R. 113 (Ref. X. Y., approved by D. C.) : "It thus would appear that the bankrupt must be willing, in view of the situation, to assume the risk and liability of being compelled to make good hereafter to such mort- gage creditors, the same percentage of such deficiency, if any could arise, as he is now offering to paj^ to his body of creditors; and the mortgage cred- itors are not injuriously affected by the composition, because as is pointed out § 2398 PROCEEDINGS AFTER confirmatiox. 1449 in the last case cited, tliey could by proper proceedings in the court, have their security valued and present a provable claim for the difference between the amount of their security and the amount of their respective debts." Secured creditors either may receive their dividends with the others iipon complying with the statutory provisions regarding the determination of the vakie of securities, § 57; or, perhaps, if they do not do so, doubtless the bankrupt would be still liable thereafter to them for their dividend, when the deficit should be ascertained.^ § 2396. But Judge May Limit Time and Require Filing of Proofs of Claims. — But the judge may, by order, undoubtedly fix a limit for creditors to make demand, and may prescribe that creditors shall make due proof of claims ; and may direct, in other ways, the manner of dis- tribution. '^ § 2397. Closing of Case after Distribution Completed. — After^ a composition has been confirmed and the consideration distributed, the case is closed. The statute says the case is to be "dismissed." The dis- missal either refers merely to a dismissal or closing of the original bank- ruptcy proceedings before the referee, or is a misnomer; for composi- tion is precisely as much a way of administering an estate and discharging a bankrupt as any other way.^" In re Fox, 6 A. B. R. 529 (Ref. Ohio, affirmed by D. C.) : "Nor is it proper to consider that there is no longer a case in court. There still must remain a case pending somewhere so long as the deposit fund is not paid out; there m'ust be some case in which the distributing agent may file his report; it is not conceivable that he could be existing stark alone and unconnected with ■any case in court. The reporter in his note to the case. In re Rider, 3 Am. B. R. 178, is in this regard wholly in error. Section 12e, in declaring the pro- ■cedure, does not mean that the case is to be dismissed immediately upon the entry of the order of confirmation. It means that thereafter, upon completion •of the distribution, the case is to be dismissed — not beforehand. Such is cer- tainly the reasonable intendment. And the question still remains: How long shall the case be kept pending thereafter? The answer is, until the distribution has been completed, until all the just creditors have been pai4 their per- centages." And it would seem necessary that the distributing agent should make a report of his doings and have it approved ; otherwise would occur tlie anomaly of a court proceeding in the distribution of funds without a * case" in which the papers should be filed! § 2398. Jurisdiction to Determine Ownership of Property in Cus- tody of Court Not Divested. — Composition does not afifect the juris- 8. In re Kahn, 9 A. B. R. 113 (Ref. approved by D. C). 9. Bankr. Act, § 12 (e). Obiter, In re Fox, 6 A. B. R. 525 (Ref. Ohio, affirmed hy D. C). 10. But compare. Bank v. Doolittle, 5 A. B. R. 741, 107 Fed. 236 (C. C. A. Tex.). Also, compare. In re Rider, 3 A. B. R. 178, 96 Fed. 808 (D. C. N. Y.). 1450 REMINGTON ON BANKRUPTCY. § 2398 diction of the bankruptcy court to determine the ownership of property in its custody and claimed adversely.^ ^ Adverse claimants to property in the custody of the bankruptcy court must have their rights determined by the bankruptcy court, notwithstanding a composition is effected, and even though no adjudication of bankruptcy is ever entered. 11. In re J. S. Winship Co., 9 A. B. R. 638, 120 Fed. 93 (C. C. A. Ills.): In this case the court held that where a composition with the creditors of an al- leged bankrupt is carried out and no adjudication in bankruptcy is made in the cause, property claimed to have been leased to the alleged bankrupt, and taken possession of by the receiver in bankruptcy, must be returned to the claimant. The property being in custodia legis, taken for the benefit of creditors and no longer necessary to be held for them, the court may summarily determine the disposition thereof, and no technicality will be permitted to intervene to pre- vent a just determination of that question. CHAPTER XLIX. Setting Aside of Composition. Synopsis of Chapter. DIVISION 1. § 2399. Court's Power to Set Aside Confirmation for Irregularity. § 2400. Setting Aside Confirmation on Application of Parties. § 2401. Must Be Applied for within Six Months. § 2402. What Not Estoppel of Creditor. § 2403. Burden of Proof on Creditor. § 2404. Only "Parties in Interest" Competent to Petition for Setting Aside. § 2405. Principles and Practice on Revocation of Discharge, Whether Ap- plicable. DIVISION 2. § 2406. Petition to Set Aside Composition. § 2407. Leave to File Petition Granted unless Lack of Merit Appears on Face. § 2408. Consideration Need Not Be Tendered Back. § 2409. Ignorance of Fraud Sufficiently Alleged in General Terms. Division L Principles Involved and Parties Competent to Petition. § 2399. Court's Power to Set Aside Confirmation for Irregular- ity. — The judge retains the same power to set aside for irregularity orders of confirmation of compositions and to reinstate cases that he has in re- lation to other matters.^ § 2400. Setting Aside Confirmation on Application of Parties. — The judge may, upon the application of parties in interest, filed at any time within six months after a composition has been cpnfirmed, set the same aside and reinstate the case, if it shall be made to appear upon a trial that fraud was practiced in the procuring of such composition, and that the knowledge thereof has come to the petitioners since the confirma- tion of the composition.- Thus, it has been held sufficient ground for setting aside the confirma- tion that the trustee was interested in a scheme of composition, and by concealment or false representations in aid of the bankrupt, had induced creditors to act contrary to their interest.'^ But it was held to be in- sufficient grounds for setting it aside that the complaining creditor was not notified and had no information of the bankruptcy, even where the deposit does not cover his claim.-* 1. Bank v. Doolittle, 5 A. B. R. 742, 107 Fed. 236 (C. C. A. Tex.). 2. Bankr. Act. § 13. In ve Rudwick, 2 A. B. R. 114, 93 Fed. 787 (D. C. Mass.). 3. In re Wrisley Co., 13 A. B. R. 193, 133 Fed. 388 (C. C. A. IllsO- 4. In re Rudwick, 2 A. B. R. 114, 93 Fed. 787 (D. C. Mass.). 1452 REMINGTON ON BANKRUPTCY. § 2405 § 2401. Must Be Applied for within Six Months.— The application to set aside a composition must be filed within six months after the con- firmation.^ § 2402. What Not Estoppel of Creditor. — A creditor who is moving to set aside a composition on the ground of fraud, is not estopped by hav- ing commenced an action at law on his debt. The petition to set aside the composition should not be dismissed on that account, nor should the cred- itor be required to elect as to his remedies.^ Nor does the fact, that the order confirming the composition recites that it appears that the bank- rupt has not been guilty of any acts, or failed to perform any duties which would bar his discharge, and that the offer and its acceptance are in good faith, and have not been made or procured by means, promises or acts- contrary to the acts, preclude the setting aside of the composition for fraud in procuring it, discovered since confirmation." § 2403. Burden of Proof on Creditor. — The burden of proof is on the party seeking to have the order of confirmation set aside. ^ § 2404. Only "Parties in Interest" Competent to Petition for Setting" Aside. — Only parties in interest may ask for the setting aside of 'the confirmation.*^ Thus, it has been held that a creditor, who, by an assignment induced by the alleged false representations of the trustee and bankrupt, has parted with all title to his claim against the estate, cannot assail a composition nor move to vacate its confirmation.^'^ § 2405. Principles and Practice on Revocation of Discharge, Whether Applicable. — ]\Iany of the principles laid down upon the sub- ject of the revocation of discharges are applicable and reference is made thereto. ^^ But there are some distinctions of importance to be noted. Thus, it is not necessary to prove the existence of original bars to dis- charge in order to procure the revocation of the confirmation. But it is necessary in order to obtain the setting aside of a composition, as likewise the revocation of a discharge, that the original confirmation of the com- position shall be proved to have been procured by fraud. 5. In re Eisenberg, 16 A. B. R. 776, 148 Fed. 325 (D. C. N. Y.). 6. In re Roukous, 12 A. B. R. 169, 128 Fed. 645 (D. C. R. I.). 7. In re Roukous, 12 A. B. R. 128, 128 Fed. 645 (D. C. R. I.). 8. Bank v. Doolittle, 5 A. B. R. 743, 107 Fed. 236 (C. C. A. Tex.). 9. Bankr. Act, § 13. In re Wrisley Co., 13 A. B. R. 193, 133 Fed. 388 (C. C. A. Ills.). 10. In re Wrisley Co., 13 A. B. R. 193, 133 Fed. 388 (C. C. A. Ills.). 11. Compare, analogously. Bank v. Doolittle, 5 A. B. R. 731, 107 Fed. 236 (C. C. A. Tex.). See post, § 2806, et seq. § 2409 SETTING ASIDE OE COMPOSITION. 1453 Division 2. PeEading in Setting Aside Compositions. § 2406. Petition to Set Aside Composition. — The setting aside of the confirmation of a composition is to be effected on petition. The petition should be verified. It may be verified in the usual form for a bill in equity.^- But verification by an agent who had not personal knowledge of the facts is insufficient.^-^ And it has been held that a demurrer would lie.^-* § 2407. Leave to File Petition Granted unless Lack of Merit Ap- pears on Face. — Leave to file a petition to vacate an order confirming a composition should be given unless, upon the facts alleged, the petition could not, under any circumstances, be granted. ^^ § 2408. Consideration Need Not Be Tendered Back. — It is not nec- essary to aver restoration or offer of restoration of consideration received by the creditor, nor to tender the same into court. The consideration need not be restored. ^^ § 2409. Ignorance of Fraud Sufficiently Alleged in General Terms. — It is sufiicient to allege the petitioner did not know of the facts constituting the fraud charged in the procuring of the confirmation, prior to the confirmation. When or how the facts were learned need not be allesred.^^ 12. In re Roukous, 12 A. B. R. 138, 128 Fed. 645 (D. C. R. I.). 13. In re Roukous, 12 A. B. R. 128, 128 Fed. 645 (D. C. R. I.). 14. In re Roukous, 12 A. B. R. 128, 128 Fed. 645 (D. C. R. I.). 15. In re Wrisley Co., 13 A. B. R. 193, 133 Fed. 388 (C. C. A. Ills.). 16. In re Roukous, 12 A. B. R. 128, 128 Fed. 645 (D. C. R. I.). 17. In re Roukous, 12 A. B. R. 128, 128 Fed. 645 (D. C. R. I.). CHAPTER L. Appeals of Composition Matters. Synopsis of Chapter. § 2410. Appeals of Composition Matters. § 2411. Whether Appeal, Only Method of Review. § 2412. Who May Appeal. § 2413. Refusal to Confirm Not to Be Reversed, Except for Abuse of Dis- cretion. § 2410. Appeals of Composition Matters. — Appeals may be had from an order confirming or refusing to confirm a composition;^ but ap- parently not where creditors were not parties of record in the opposition, and the judge, sua sponte, upon mere suggestion of the trustee, had re- fused the confirmation. 2 § 2411. Whether Appeal, Only Method of Review. — Indeed, it has been held that appeal in composition cases, as in discharge cases, is the only method of review.^ It is one of the steps in bankruptcy proceedings proper, and is to be considered as being, in efifect, a granting or refusal of a discharge, and hence reviewable only by appeal.-* Refusal to con- firm a composition is reviewable.^ § 2412. Who May Appeal. — Creditors receiving their shares under the composition before the appeal is taken, are necessary parties to the appeal, and the appeal will be dismissed if they are not made parties.^ But if such creditors are too numerous, all need not be joined ; but a sufficient number must be joined to insure representation.' It has been held that the bankrupt may not appeal from a refusal to confirm a composition, where there were no objecting creditors and the judge had simply acted, sua sponte, on the trustee's suggestion, for want of proper parties.^ But this could be the law only where refusal was for 1. See post, § 2864, et seq., general subject of "Appeals and Errors.'' U. S. ex rel. Adler v. Hammond, 4 A. B. R. 736, 104 Fed. 62 (C. C. A. Tenn., re- versing In re Adler, 4 A. B. R. 583); In re Friend, 13 A. B. R. 595, 134 Fed. 778 (C. C. A. Ills.). 2. Ross V. Saunders, 5 A. B. R. 350, 105 Fed. 915 (C. C. A. Mass.). 3. In re Friend, 13 A. B. R. 595, 134 Fed. 778 (C. C. A. Ills.). 4. See post, § 2864, et seq., general subject of "Appeals and Errors. 5. U. S. ex re'l Adler v. Hammond, 4 A. B. R. 736, 104 Fed. 62 (C. C. A. Tenn.). Compare, Ross v. Saunders, 5 A. B. R. 350, 105 Fed. 915 (C. C. A. Mass.). 6. Marshal Field & Co. v. Wolf & Bro. Dry Goods Co., 9 A. B. R. 693, 120 Fed. 815 (C. C. A. Ark.). 7. Obiter, In re Marshal Field & Co. v. Wolf & Bro. Dry Goods Co., 9 A. B. R. 693, 120 Fed. 815 (C. C. A. Ark.). 8. Ross V. Saunders, 5 A. B. R. 350, 105 Fed. 915 (C. C. A. Mass.). § 2413 APPEALS OF COMPOSITION MATTERS. 1455 want of proper parties or lack of proper deposit, or for other irregularity, and not on the merits ; for the court hardly has the right, sua sponte, to refuse confirmation on the merits. § 2413. Refusal to Confirm Not to Be Reversed, Except for Abuse of Discretion. — But the refusal of the district judge to confirm a com- position will not be disturbed unless there be an abuse of discretion.^ 9. Adler v. Jones, 6 A. B. R. 245, 109 Fed. 967 (C. C. A. Tenn.). PART X. Discharge). 2 Rem B— 17 CHAPTER LI. Nature and History of Discharge;. Synopsis of Chapter. § 2414. Discharge. § 2415. Discharge a Distinct Incident, Not an Essential, of Bankruptcy. § 2416. May "Go into" or Be "Thrown into" Bankruptcy Repeatedly, Irre- spective of Refusal or Granting of Discharge. § 2414. Discharge. — Discharge is the release of a bankrupt from the obHgation to pay his debts which are provable in bankruptcy, except such as are excepted by the act.^ § 2415. Discharge a Distinct Incident, Not an Essential of Bank- ruptcy. — In the orderly development of the treatise the interesting and im- portant subject is now reached of the bankrupt's discharge from future en- forcement of liability for his debts incurred before bankruptcy. The proper place for this subject in a systematic treatise is at the end, as here, yet it is so not because the discharge is the end or. winding up of a bankruptcy case, but rather because discharge is not involved in the orderly progress of the ad- ministration of a bankrupt estate at all and is, rather, merely an incident — although a most important one — to a bankruptcy case, thus making con- sideration of it in its chronological order somewhat of an interruption of the systematic treatment of a bankruptcy, proceedings. In re Clisdell, 4 A. B. R. 95, 101 Fed. 246 (D. C. N. Y.) : "Here then, is a bankrupt duly adjudicated. His petition for a discharge is a separate and distinct proceeding." Inferentially, In re Glass, 9 A. B. R. 397, 119 Fed. 509 (D. C. Tenn.) : "While the petition for discharge is founded on the original petition in bankruptcy, voluntary or involuntary, and the record built upon that foundation, it is, after all, quite an independent proceeding, as are the specifications in answer to it." Thus, the petition for discharge may be filed at any time within the siatutory period regardless of the stage of progress reached in the admin- istration of the estate. - It has been already noted that bankruptcy law was originally a cred- itors' law — a swift, sharp remedy placed in the hands of creditors for seizing upon the property and person of absconding or hiding debtors, of ferreting out concealed assets, of reducing them into money and for dis- tributing them equitably amongst creditors. There was originally no 1. Bankr. Act, § 1 (13). U. S. ex rel. Adler v. Hammond. 4 A. B. R. 739, 104 Fed. 862 (C. C. A. Tenn.). 2. Paxton v. Scott, 10 A. B. R. 80, 92 N. W. (Xeb.) 611. 1460 REMIXGTOX OX BAXKRUPTCY. § 2415 thought of affording any reHef therein to the debtor himself by freeing him from further molestation for his old debts.^ In re Xeel}% 12 A. B. R. 410 (Ref. N. Y.) : "It was not originally a feature of bankruptcy legislation either in this country or in England. The funda- mental element in every system of bankruptcj- has been to provide for and regulate the distribution of the bankrupt's propertj- equally among his cred- itors. Originally this was its only purpose, and it was confined to traders as a purely commercial regulation. Latterly a second element was added in the provisions for discharge upon such terms and conditions as the act may pro- vide." And.it is not an essential idea, or part, of bankruptcy law, but merely an incident to it.'* In re Salmon, 16 A. B. R. 134, 143 Fed. 393 CD. C. Mo.): "Again, to render a State insolvency law inoperative because in contravention of the Federal Bankrupt Act, it is not essential that the State act shall contain a pro- vision for the discharge of the debtor. It is rather thought such provision for discharge is an incident to, but not an essential part of, such law."' Indeed, bankruptcy was a felony, being expressly declared such by the statute of King James I, and the bankrupt could be thankful if his adjudi- cation as bankrupt did not result in his being imprisoned as a felon. But as a clearer appreciation arose of the vast change that was taking place in the commercial world ; that men w^ere beginning to do business for the general market, no longer waiting for specific orders, and that, as a consequence business was coming more to be done on credit, and that it was becoming more necessary for producers and merchants alike to take chances in disposing of their gpods upon the general market, a modified feeling arose with regard to those who failed in business. It began to be understood that a merchant, obtaining goods on credit and taking risk in disposing of them upon the general market, might miscalculate, might be improvident and might fail, leaving a great body of creditors unpaid, and yet might not be a criminal nor be of fraudulent mind. It was precisely this change in the manner of doing business that, as we have seen,^ made inadequate the old common-law remedies of attachment and execution and brought about the enactment of the first Bankruptcy Act. But at first, as the provisions of the statutes would seem to indicate, the real import and extent of the change do not seem to have been apprehended. Finally, however, a more just and sensible understanding of the actual situation came about; and the idea developed that if a debtor who had thus taken chances and failed, nevertheless did all he could, thereupon, to aid his creditors in discovering assets and in realizing the most out of them, he should be granted a discharge from the unpaid and unsatisfied remainder; the idea being three-fold: That it was just and humane to the debtor 3. See ante, Introd. 4. See ante, Introd. 5. See ante, Introd, § (f). § 2416 NATURE AXD HISTORY OF DISCHARGE, 1461 himself, that it aided creditors in discovering and recovering assets, and that it was' in the interest of a sound public policy not to keep the debtor forever in bondage to his debts, but to restore his energies to the business community. This idea of. a discharge first became implanted in bankruptcy juris- prudence in the reign of Queen Anne, about one hundred and sixty years after the first bankruptcy law was enacted. The first provision for dis- charge will be found quoted in the Introduction at § (i). Thus, in the beginning the privilege of discharge was granted very spar- ingly and left much to the discretion of the court. The first United States Bankruptcy Act that provided unqualifiedly for the discharge of the debtor was that of 1841.^ From the foregoing observations it is apparent that the provisions as to discharge have steadly grown in liberality. The law of 1898, before its amendment at any rate, went furthest of any law in the direction of lib- erality. Only proof, and strict proof, of the violation of some one of the three cardinal virtues of an insolvent debtor was sufficient to bar his dis- charge, that is to say, the debtor must not, whilst a bankrupt, have made a false oath in the proceedings, nor, whilst a bankrupt, have concealed assets, nor have destroyed, concealed or failed to keep books of account. Yet, if he violated none of these three primary duties, his discharge was assured. Moreover, as if desirous of further qualifying even these merely necessary bars to discharge, the law compelled proof — at least, as to two of them, the false oath and the concealment of assets — to be made almost beyond a reasonable doubt : more than a mere preponderance of the evi- dence being required — the evidence having to be "convincing" and "sat- iffying," since the proof, although in a civil proceedings, must neverthe- less be the proof of a crime in each case. By the amendment of 1903 fur- ther grounds of discharge were added, so that the extreme liberality of the original enactment of 1898 was considerably restricted. Neverthe- less, the friendly attitude of bankruptcy law of today towards discharge is aptly pointed in the significant provision which has persisted in the stat- ute, that the discharge, unless it is proved to be barred, "shall" be granted. • § 2416. May "Go Into" or Be "Thrown Into" Bankruptcy Repeat- edly, Irrespective of Refusal or Granting of Discharge. — The cred- itors, and likewise the debtor, as well, are entitled to invoke the bankruptcy law and to file petitions for adjudication of bankruptcy as often as they deem proper, irrespective of any granting or refusing of discharge to the debtor. The petition for adjudication is nowise dependent upon the pe- tition for discharge. The discharge is a privilege which the debtor may or may not apply for and may or may not obtain, but the adjudication of 6. In re Schawninger, 16 A. B. R. 429, 144 Fed. 555 (D. C. Wis.). 1462 REMINGTON ON BANKRUPTCY. § 2416 bankruptcy and the consequences flowing therefrom in the way of avoid- ance of preferences and legal liens, and the use of the special machinery of the bankruptcy courts, is an entirely diiTerent and independent righfJ But of course the right of creditors to bring successive petitions for adjudication undoubtedly is subject to the equity rules granting relief against the vexatious repetition of lawsuits. 7. Compare, In re Bartoris Estate, 16 A. B. R. 576, 144 Fed. 540 (D. C. Ark.j. Compare, post, §§ 2437, 2441. CHAPTER LII. Petition for Discharge:. Synopsis of Chapter. § 2417. Petition for Discharge. DIVISION 1. § 2418. Any Person Adjudged Bankrupt, Competent to Apply for Discharge. § 2419. Corporations Entitled to Discharge. § 2420. Intervening Insanity Does Not Affect Right to Discharge. § 2421. Neither Does Intervening Death. § 2422. No Discharge of Individual in Partnership Bankruptcy unless Indi- vidual Adjudication. DIVISION 2. § 2423. Discharge Petition to Be Filed after One Month and before End of Year from Adjudication. § 2424. Extension of Time Granted. '§ 2425. But to Be Applied for before Expiration of Time. § 2426. And Only Because "Unavoidably Prevented:" and "Nunc Pro Tunc" Orders to Cover Laches Improper. § 2427. No Jurisdiction to Discharge, on Petition Filed after Eighteen Months. § 2428. Referee Need Not Notify Bankrupt to File Petition for Discharge. § 2429. Form of Petition for Discharge. • , § 2430. Whether Petition to Be Verified. § 2431. Ten Days Notice by Mail, Sent. § 2432. Notice Also by Publication. DIVISION 3. § 2433. Dismissal of Petition for Want of Prosecution or by Bankrupt. § 2434. No Dismissal for Failure to Bring on Hearing in Opposition. § 2435. No Dismissal by Bankrupt after Hearing of Specifications in Oppo- sition. § 2436. Dismissal of or Failure to File Petition for Discharge, in Effect a Judgment Denying a Discharge. § 2437. Second Petition Not Maintainable after Refusal of First, Where Debts Identical. § 2438. Quaere, Where Debts in Subsequent Bankruptcy Partly Same, Partly New, and Discharge in First Bankruptcy Refused. § 2439. Refusal of Discharge under Former Bankruptcy Act Not Res Judi- cata under Present Act. § 2440. Refusal of Discharge under State Bankruptcy or State Insolvency Law Not Res Adjudicata as to Same Debt in Federal Bankruptcy. § 2441. Refusal of Discharge No Bar to Subsequent Bankruptcy Petitions nor Adjudications. § 2442. Discharge Not Impeachable Collaterally. § 2443. But Avoiding Effect of Discharge by Showing Debt Excepted from Its Operation, Not "Collateral Attack." 1464 RivMINGTON ON BANKRUPTCY. § 2420 ;§ 2444. Nor "Attack" at All. § 2445. Bankrupt Cannot Voluntarily Surrender Discharge. § 2446. Staying Discharge to Permit Creditor to Perfect Rights against Surety or Exempt Property. § 2417. Petition for Discharge. — The first step in invoking the action cf the court toward the discharge of debts is the fiHng by the bankrupt of his petition for discharge. ^ Division 1. Who May Apply for Discharge:? § 2418. Any Person Adjudged Bankrupt, Competent to Apply for Discharge. — Any person adjudged bankrupt is entitled to apply for discharge. - § 2419. Corporations Entitled to Discharge. — Thus, corporations are entitled to apply for discharge.^ § 2420. Intervening Insanity Does Not Affect Right to Discharge. — Thus, the intervening insanity of the bankrupt does not afifect the right to discharge. In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.): "By § 29 of the Act of 1867, the bankrupt was obliged to take a specified oath before he could be discharged, and for this reason his death or insanity before doing what he was thus bound to do personally prevented the discharge. * * * Nq oath is required upon the part of the bankrupt, and the discharge is of right, unless certain ojajections thereto are made to appear. These are specified in clause (b) of § 14, as. amended by the Act of 1903, and none of them is involved in the present inquiry. Section 8, however, seems to be precisely in point: 'The death or insanity of a bankrupt shall not abate the proceedings, but the same shall be continued and concluded in the same manner, so far as possible, as though he had not died or become insane.' To my mind, this is so plain as not to require construction. 'So far as possible,' the proceedings are to go on and be concluded as if the bankrupt had not died or become insane; and this can only mean, that the statute is not unmindful of the fact that his death or insanity must of necessity interfere to some extent with the ordinary method of procedure. In either event he cannot be examined by the cred- itors, he cannot himself prepare the proper schedules, he cannot himself claim his exemptions, or take the necessary steps toward his final discharge; but, in spite of these obvious difificulties — and there are others equally obvious — the proceedings are to go on 'so far as possible' as if he were alive or sane. His right to be discharged is therefore not afTected, for it is only possible to oppose 1. Papers should be filed with the district clerk, not with the judge directly. In re Sykes, 6 A. B. R. 264, 106 Fed. 669 (D. C. Tenn.). Various local rules considered. In re Sykes, 6 A. B. R. 264, 106 Fed. 669 (D. C. Tenn.). 2. Bankr. Act, § 14 (a). 3. In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass.). § 2426 PETITION FOR DISCHARGE. 1465 such discharge successful!}^ by proving one of the acts described in section 14, and such proof may be made whether the bankrupt be sane or insane, living or dead. In this conclusion the text-writers and the decisions agree, so far as I have been able to discover." But a guardian ad litem should be appointed.'^ § 2421. Neither Does Intervening Death. — Neither does the mter- vening death of the bankrupt prevent discharge being granted.^ § 2422. No Discharge of Individual in Partnership Bankruptcy unless Individual Adjudication. — There can be no discharge of an in- dividual member in a partnership bankruptcy unless the individual mem- ber has been adjudicated bankrupt individually.*^ Division 2. Time for Filing Petition for Discharge, Form and Notice. § 2423. Discharge Petition to Be Filed after One Month and be- fore End of Year from Adjudication. — The bankrupt may file his pe- tition for a discharge at any time after the expiration of a month and be- fore the expiration of a year from the adjudication of bankruptcy.'^ § 2424. Extension of Time Granted. — Longer time, not exceeding six months, may be granted by the judge if the bankrupt was unavoidably prevented from filing it within that time.^ § 2425. But to Be Applied for before Expiration of Time. — Such extension should be applied for before the expiration of the additional six months. 9 § 2426. And Only Because "Unavoidably Prevented;" and "Nunc Pro Tunc" Orders to Cover Laches Improper. — The bankrupt must have been "unavoidably prevented" from filing the petition in time ; and a nunc pro tunc order will not be granted to cover laches of the bankrupt, •and will only be granted where an order actually was nxade and there was delay in the entry of the order through the fault of the court. ^^ 4. In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.); In re Burka, 5 A. B. R. 843, 107 Fed. 674 (D. C. Tenn.). 5. Obiter, In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.); analogously, In re Hicks, 6 A. B. R. 183, 107 Fed. 910 (D. C. Vt.) ; impliedly. In re Parker, 1 A. B. R. 615 (Ref. Kans.). 6. In re Pincus, 17 A. B. R. 331, 147 Fed. 621 (D. C. N. Y.); In re Hale, 6 A. B. R. 35, 107 Fed. 432 (D. C. N. Car.). 7. Bankr. Act, § 14 (a). 8. Bankr. Act, § 14. In re Fahy, 8 A. B. R. 355, 116 Fed. 239 (D. C. Iowa). 9. In re Wolf¥, 4 A. B. R. 74, 100 Fed. 430 (D. C. Calif.). Compare, analo- gously, as to filing specifications on opposition, post, § 2454. 10. In re Wolfif, 4 A. B. R. 74, 100 Fed. 430 (D. C. Calif.); In re Anderson, 14 A. B. R. 221,-134 Fed. 319 (D. C. Mont.). "Nunc Pro Tunc Entries:" Order must actually have been made though 1466 REMINGTON ON BANKRUPTCY. § 2427 In re Lewin, 14 A. B. R. 358, 133 Fed. 252 (D. C. Tex.): "No reason is assigned by the bankrupt for failing to seasonably file a petition for discharge, except that 'he deferred doing so until the latter part of the year,' when sick- ness in his family prevented him, from filing the same. To authorize a peti- tion for discharge to be filed after the expiration of a year from the date of the order of adjudication of bankruptcy, it must be made to appear that the bank- rupt was unavoidably prevented from filing it within the one year period. It is discretionary with the judge to grant the application, but the discretion to be exercised in determining the question is a judicial one, and not a discre- tion of an arbitrary nature. If it appear, using the language of the Act of Congress, that the bankrupt was 'unavoidably f)revented' from filing his appli- cation in due time, he should be permitted to file it within the additional six months allowed by law. But where it is apparent that he could have timely filed it, but failed to do so for reasons wholly inadequate, the application should be denied. In the present case it is evident that the bankrupt could have filed a petition for discharge prior to the time that sickness appeared in his family, and no reason is alleged, nor is one perceived, why it could not have been filed while the family were ill. It does appear from his application that the bankrupt resided in the city of Hillsboro. That being true, his at- torneys were easily accessible, and there is naught in the record to show that sickness or other cause prevented them from preparing a petition for his sig- nature and verification during the twelve-months' period." In re Harris & Algor, 15 A. B. R. 705 (D. C. Pa.): "Leave to file an ap- plication after the period of twelve months from the date of the adjudication will not be granted unless it be shown that the petitioner was unavoidably prevented during the whole of the period during which the application for discharge should have been made under the provisions of the Act." § 2427. No Jurisdiction to Discharge, on Petition Filed after Eighteen Months. — The bankruptcy court has no jurisdiction to grant a discharge on a petition filed after the expiration of eighteen months from the date of adjudication. A discharge granted on a petition for discharge filed thereafter is null and void.^^ In re Fahy, 8 A. B. R. 354, 116 Fed. 239 (D. C. Iowa): "As I construe the statute, this is a limitation on the jurisdiction of the judge over the matter of discharge. The power and right to grant a discharge efifectual to bar the en- forcement of debts is conferred by the statute, and is governed by the limita- not entered. Compare, In re Wolff, 4 A. B. R. 74, 100 Fed. 430 (D. C. Calif.): ''It is not doubted that, where an order has been actually made, and through inadvertence of the clerk not entered at the proper time, the court may, in furtherance of justice, direct that the entry be made as of the date when it should have been entered; but the court is not vested with authority to make an order nunc pro tunc, except when the delay in making such order has re- sulted from some act of its own." Citing Mitchell z: Overman, 103 U. S. 64, and Gray v. Brignardello, 1 Wall. 627: "Where the delay in rendering a judg- ment or a decree arises from the act of the court— that is, where the delay has been caused either for its convenience, or by the multiplicity or press of busi- ness, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties — the judgment or the decree may be entered retrospectively as of a time when it should or might have been en- tered up." • 11. In re Knauer, 13 A. B. R. 503, 133 Fed. 805 (D. C. Iowa); In re Wagner, 15 A. B. R. 101, 139 Fed. 87 (D. C. Nev.). § 2429 PETITION FOR DISCHARGE. 1467 tions found in the statute; and therefore, unless it is petitioned for within the time limit fixed by § 14 of the act, the court of bankruptcy is without the power and jurisdiction to grant a discharge. If the court, yielding to the equitable considerations pressed upon it, should grant a discharge in form to the bankrupt, it would be a mistaken kindness, for the validity of the dis- charge could be impeached before any court wherein it might be pleaded as a bar to a claim, on the ground of want of jurisdiction in this court to entertain the petition for discharge, the record showing on its face that the petition was not filed within 18 months of the date of the adjudication." Its validity may be attacked in any court, even collaterally. ^^ But if it does not appear to have been filed after the eighteen months but only after the year, it may not be collaterally impeached, the presump- tion obtaining that the court had granted leave and granted it on sufficient showing.^3 Thus, it may not be attacked on discharge hearing. § 2428. Referee Need Not Notify Bankrupt to File Petition for Discharge. — It is no part of the referee's duty to inform the bankrupt of the time the year will expire. And notice actually, though incorrectly, given by the referee will not toll the statute, nor extend the time.^^ § 2429. Form of "Petition for Discharge, — The petition for discharge miust state concisely, in accordance with the provisions of the act and the orders of the court, the proceedings in the case and the acts of the bank- rupt. ^^ 12. Obiter, In re Fahy, 8 A. B. R. 354, 116 Fed. 239 (D. C. Iowa). 13. In re Haynes & Sons, 10 A. B. R. 13, 122 Fed. 560 (D. C. Pa.). 14. In re Knauer, 13 A. B. R. 503, 133 Fed. 805 (D. C. Iowa). 15. Gen. Ord. XXXI. The prescribed form of the petition for discharge is as follows: In the matter of ~] |- In Bankruptcy Bankrupt J To The Honorable Judge of the District Court of the United States, for the District of : , of , in the county of and State of , in said district, respectfully represents that on the day of , last past, he was duly adjudged bankrupt under the acts of Congress relating to bankruptc}^; that he has duly surrendered all his property and rights of prop- erty, and has fullv complied with all the requirements of said acts and of the orders of the court touching his bankruptcy. Wherefore he prays that he may be decreed by the court to have a full dis- charge from all debts provable against his estate under said bankrupt acts, ex- cept such debts as are excepted by law from such discharge. Dated this day of , A. D., 19 Bankrupt. There is also a prescribed form for order of notice thereon, which is as follows: ORDER OF NOTICE THEREON.' District of , ss. : On this day of ..., A. D., 19 , on reading the fore- going petition, it is — Ordered by the court, that a hearing be had upon the same on the • • day of , A. D., 19 , before said court, at .., in said district, at o'clock in the noon; and that notice thereof 1468 REMINGTON ON BANKRUPTCY. . § 2430 § 2430. Whether Petition to Be Verified.— It is doubtful whether the petition for discharge need be verified. The form does not seem to lequire verification.^^ Nevertheless, compare explanation of omission of verification from forms under law of 1898, In re Glass, 9 A. B. R. 394, 119 Fed. 509 (D. C. Tenn.) : "He pointed to the fact, however, that Forms Nos. 57 and 58 and General Orders 31 and 32 do not prescribe any form of verification, while other forms do append it wherever it is required. But this is only a fortuitous circum- stance, I think, and quite indeterminate. These forms naturally are fashioned on those under the act of 1867, which required verification only in those matters where it was specifically provided by that act, or where the Supreme Court, exercising its statutory power to make the rules of practice and forms, chose to demand it. I have gone over those forms, and compared them with the forms under the existing act. Generally, each verification appended to the old forms was required in terms by the statute of 1867, though sometimes this was not so, as in Form No. 40, for the removal of an assignee, which prescribes verification without any direction of the statute; while Form No. 52 of the act of 1898 exacts none for the removal of a trustee. The precept for veri- fication does not appear to have been uniformly guided by the statute in either set of these forms. However this may be, the command of the statute of 1898 is imperative that 'all pleadings setting up matters of fact shall be veri- fied by oath.' Section 18c. The omission of the Supreme Court, therefore, to prescribe a verification for a petition for discharge on Form No. 57 of 1898, or for the specifications in opposition thereto on Form No. 58, cannot override this plain command of the statute, if either of them be a 'pleading,' and 'sets up matters of fact.' Under the act of 1867, there being no such re- quirement, a verification might be, and often was, pretermitted Sn contracting be published in , a newspaper printed in said district, and that all known creditors and other persons in interest may appear at' the said time and place and show cause, if any they have, why the prayer of the said petitioner should not be granted. And it is further ordered by the court, that the clerk shall send by mail to all known creditors copies of said petition and this order, addressed to them at their places of residence as stated. Witness the Honorable , Judge of the said- court, and the seal thereof, at , in said district, on the day of , A. D., 19 (Seal of the court) ' Clerk. _ hereby depose, on oath, that the foregoing order was published in the on the following days, viz. : On the day of and on the day of , in the year 19 District of , 19 Personally appeared , and made oath that the foregoing statement by him subscribed is true. (Official Character) I hereby certify that I have on this day of , A. D., 19 , sent by mail copies of the above order, as therein directed. Clerk. 16. Obiter,-In re Jemison Mercantile Co., 7 A. B. R. 588, 112 Fed. 966 (C. C. A. Ala.). f^ 2431 PETITION FOR DISCHARGE. 1469 the forms of 1867. And it is apparent that the draftsman of the new forms of 1898 factitiously followed the forms of 1867 in the omission of a verification without noticing this distinction between the two statutes. Thus he made Forms No. 57 and No. 58 of 1898 conform, in respect of this absence of verifi- cation, to Forms No. 51 and No. 53 of 1867. But in the one case the statute permitted the omission, and in the other it does not. Therefore it does not appear that in prescribing these forms the Supreme Court in 1898 has delib- erately ruled that the specifications in opposition to a discharge are not 'a pleading,' and do not require a verification, under § 18c." Moreover the petition for discharge is more in the nature of a mere mo- tion than it is of a petition ; nothing is to be proved ; simply the machinery of the court is to be set in motion to grant the discharge. The discharge "shall" be granted when applied for, unless objecting parties prove the existence of facts sufficient to bar it, the only "petition," if there be any at all, thus being the specifications of the creditors of their grounds of opposition to the discharge. Contra, obiter, In re Glass, 9 A. B. R. 396, 119 Fed. 509 (D. C. Tenn.) : "A petition for discharge avers, inter alia, that the petitioner 'has duly sur- rendered all his property.' That is a fact outside the record, known possibly only to himself as to its truth; and so it would seem that both by the statute and according to the analogies it should be verified by his oath, although this form does not call for it." § 2431. Ten Days Notice by Mail, Sent. — Upon its filing, either the referee in charge of the estate, or the clerk himself, sends out ten days notice by mail to all creditors of the time and place fixed by the judge for hearing the petition.^"^ If the referee sends them out, .as is usually the case, he does so upon receipt of a certificate of the clerk that the petition has been filed. 17. Bankr. Act, § 58 (a) (2). See ante, § 365. • Form of Discharge Notice. — The form of such notice to creditors is as follows: In the District Court of the United States, For the District of Division In the matter of "I >- In Bank Bankrupt J Notice of Hearing of Bankrupt's Petition for Discharge to all Creditors of said Bankrupt: Take notice that a petition has been filed in said court by of the county of , in said district, who has been duly adjudged a bankrupt under the Act of Congress of July 1, 1898, for a discharge from all his debts, and other claims provable under said Act, and that the day of , 19 , at o'clock M. is assigned for the hearing of the same before the Hon , Judge of said Court, at the United States District Court of said district, when and where you may attend and show cause, if any you have, why the prayer of said petition should not be granted. ruptcy Referee in Bankruptcy. Where Schedules Give No Addresses. — Where the schedules recite that the addresses of none of the creditors are known and, as a consequence, no notices are sent by mail, there should be a showing made to the court that due diligence has been exercised to ascertain the addresses, else the court should not hear the discharge petition. In re Dvorak, 6 A. B. R. 66, 107 Fed. 76 (D. C. Iowa). The court in this case said no jurisdiction was obtained. 1470 REMINGTON ON BANKRUPTCY. § 2436 A "certificate of conformity," as required under the law of 1867, is not necessary. IS § 2432. Notice Also by Publication. — The statute does not expressly provide that notice by publication of the discharge is to be given ; but the fact that the Supreme Court's Form No. 57 provides for an order direct- ing publication of notice, might indicate that such publication ought always to be given. Inferentially and obiter, Nat'l Bk. v. Moyses, 8 A. B. R. 10, 186 U. S. 181: "Form No. 57 gives the form of petition for discharge and the order for hearing to be entered thereon, requiring notice to be published in a designated news- paper in the district, and 'that the clerk shall send by mail to all known cred- itors copies of said petition and this order, addressed' to them at their places of residence as stated.' " And such notice by publication would seem to be absolutely requisite to effect the discharge of those debts where the names or addresses of the creditors are unknown. Division 3. DisMissAi, OF Petition for Discharge; Second Petition for Dis- charge: AND Res Adjudicata. § 2433. Dismissal of Petition for Want of Prosecution or by Bankrupt. — A petition for discharge may be dismissed for want of pros- ecution;^^ or by the bankrupt. § 2434. No Dismissal for Failure to Bring on Hearing in Opposi- tion. — Dismissal of the bankrupt's petition for discharge for want of pros- ecution for mere dilatoriness in bringing it on for hearing upon specifica- tions of objections thereto, is improper, where the bankrupt's petition itself was filed in due time.^'^ § 2435. No Dismissal by Bankrupt after Hearing of Specifica- tions in Opposition. — A bankrupt has no absolute right to "dismiss his petition for discharge after hearing has been had upon specifications in opposition thereto and the opposing creditors have established their right to an order denying discharge.-^ § 2436. Dismissal of or Failure to File Petition for Discharge, in Eff"ect a Judgment Denying a Discharge. — The dismissal of the peti- tion for discharge for want of 'prosecution, and also the failure to file a 18. See contra practice, Mahoney v. Ward, 3 A. B. R. 770, 100 Fed. 278 (D. C. N. Car.). 19. In re Lederer, 10 A. B. R. 493, 125 Fed. 96 (D. C. N. Y.). 20. In re Wolff, 13 A. B. R. 95, 132 Fed. 396 (t). C. Calif.). 21. In re Henschcl, 12 A. B. R. 31 (Special Master, N. Y.). § 2437 PETITION For discharge. 1471 petition for discharge, are in substance and effect judgments denying discharge. -2 Kuntz V. Young, 12 A. B. R. 505, 131 Fed. 719 (C. C. A. Minn.): "The failure of the bankrupt to apply for a discharge from his debts in the involun- tary proceeding within twelve months after the adjudication foreclosed his rig'ht to such a discharge. It is only within that time that he may, under the bankruptcy law, make a lawful application 'to be relieved from his debts. The record of his failure to make the application in that proceeding was, in ef- fect, a judgment by default in favor of his creditors to. the effect that he was not entitled to a discharge from their claims. A judg- ment by default renders the issue as conclusively res adjudicata as a judgment upon a trial. The result is that the question whether or not the bankrupt was entitled to be discharged from the claims of the creditors scheduled and provable in the involuntary proceeding was conclusively determined in an action between them and the bankrupt by the record of his failure to apply for a discharge in that iWoceeding. But the parties to the voluntary were the same as to the involuntary proceeding, for Kuntz scheduled the same claims and creditors, and the trustee, who objected to his discharge, was the legal representative of the latter. The bankrupt's application for a discharge in the voluntary proceeding presented the same issue which had been conclusively determined against him in the involuntary proceeding, and there was no error in the refusal of the court below tp reverse the former judgment and grant the application. "The denial of an application for a discharge from debts provable in pro- ceedings under one petition in bankruptcy under the Act of 1898 renders the issue of a right to a discharge from those debts in a proceeding under a sub- sequent petition res adjudicata. A failure to apply for a discharge within twelve months after adjudication in the earlier proceeding has the same effect. Gilbert v. Hebard, 8 Mete. 129; In re Drisko, Fed. Cas. No. 4,090; In re Herrman (D. C), 4 Am. B. R. 139, 102 Fed. 753, 754, 106 Fed. 987, 988." § 2437. Second Petition Not Maintainable after Refusal of First, Where Debts Identical. — A second petition for discharge may not be maintained in the same proceedings, nor in new proceedings, where the debts are identical, after the first petition has been denied, or not filed at all. The first denial is res adjudicata and binding on both parties, and a second petition is vexatious and useless repetition. ^^ In re Weintraub, 13 A. B. R. 711, 133 Fed. 1000 (D. C. N. J.): "On June 20, 1899, Louis Weintraub, Benjamin Lewis and Samual Golden, partners trading as Weintraub, Golden & Lewis, were adjudged bankrupts in an involuntary proceeding instituted in the United States District Court for the Southern District of New York. They did not apply for an order of discharge within the time limited by the Bankruptcy Act. On December 30, 1903, they 22. In re Weintraub, 13 A. B. R. 711, 133 Fed. 1000 (D. C. Mass.); In re Wolff, 13 A. B. R. 95, 132 Fed. 396 (D. C. Calif.); In re Semons, 15 A. B. R. 822 (C. C. A. N. Y.); In re Kuffler, 11 A. B. R. 469, 127 Fed. 125 (C. C. A. N. Y.). 23. A fortiori, Kuntz v. Young, 12 A. B. R. 505, 131 Fed. 719 (C. C. A. Minn.). Contra, if in entirely new proceedings. In re Claff, 7 A. B. R. 128, 111 Fed. 506 (D. C. Mass.). 1472 REMINGTON ON BANKRUrTCY. § 2437 filed their voluntary petition in bankruptcy in this court, setting forth, as their affidavits admit in the schedules annexed to their -petition, the same debts that appear in the New York proceeding. The object of the suit in this court is to secure a discharge from the same debts from which the bankrupts failed to secure a discharge in the New York court. The proceeding in the New York court, furthermore, has not been terminated. On March 14, 1904, the above facts having been presented to the late Judge Kirkpatrick, of this court, he made an order staying and enjoining the bankrupts from taking any further proceedings upon their voluntary petition in this court pending the determination of the proceedings in the New York court. The counsel for the bankrupts now applies for an order vacating the above mentioned order of March 14, 1904. "The application must be denied. It is a settled rule of law that, where a bankrupt has failed to apply for his order of discharge within the time limited by the statute, his right to such order is res judicata, and he cannot by any subsequent proceedings secure a discharge from the debts provable in the former proceedings. See Kuntz v. Young, 12 Am. B. R. 505 (C. C. A.), 131 Fed. 719. "An order will be signed denying the motion of the bankrupts." In re Royal, 7 A. B. R. 636, 113 Fed. 146 (D. C. N. Y.) : "* * * after his first petition is denied, after investigation of its merits." A fortiori, In re Feigenbaum, 9 A. B. R. 595, 121 Fed. 69 (C. C. A. N. Y., reversing 7 A. B. R. 339): "The simple »iuestion presented by this review is whether a bankrupt, who has been refused a discharge, after full hearing, on the ground that he has fraudulently concealed assets from the trustee, will be permitted, within a few months thereafter, to file a second petition alleging the same facts and prosecute a new application for a discharge? "It is admitted that the debts and assets in the two petitions are identical except that there is a difference of $8 in the amount of property claimed as ex- empt. There is no attempt to disguise the fact that the purpose of the present proceeding is to obtain the discharge which the court refused to grant. The judgment of the court refusing the discharge in the first proceeding remains in full force, no appeal having been taken. "We do not deem it necessary to decide whether the bankruptcy proceedings should be dismissed in such circumstances, but we are clearly of the opinion that the bankrupt should be restrained from filing and prosecuting a second application for a discharge. Not only should the court of bankruptcy pro- tect the creditors from an attempt to retry an issue already tried and deter- mined between the same parties, but the court, for its own protection, should arrest, in limine, so flagrant an attempt to circumvent its decrees. "Assuming that this proceeding is allowed to go on, what will be the result? The bankrupt will present a petition for discharge; the creditors will file specifications alleging the same grounds of opposition, the issue thus joined will be referred in due course and the referee and the judge will thereafter be called upon to decide the same questions which have already been determined, upon the same proof and between the same parties. It is true that in such circumstances it is probable that the same conclusion will be reached, but why should the creditors be harassed by further proceedings. Why should they be compelled to employ counsel and expend their money in trying again and again a question upon which the bankrupt has had his day in court? If his contention be correct there is nothing -to prevent him from filing a third peti- tion if his discharge be again refused and so on ad infinitum. § 2437 PETITION FOR DISCHARGE. 1473 "A proceeding in bankruptcy is in the nature of a bill in equity in which the bankrupt; is complainant and the creditors are defendants. "Where a discharge is refused on the merits the judgment inures to the benefit of all the creditors. Both parties are bound by it and neither party should be permitted to try the same question again; it is res judicata. "We have proceeded upon the assumption that in the present proceeding the creditors can avail themselves of the same objections interposed in the former proceedings and sustained there. If for technical reasons or otherwise they are prevented from doing this the iniquity of this attempt to procure a dis- charge is still more apparent. It is the contention of the bankrupt's counsel that this is an entirely new and distinct proceeding and in this view he is un- doubtedly correct. "Can the misconduct of the bankrupt in the former proceeding be imported into this proceeding? Suppose the creditors should again interpose the ob- jection that the bankrupt has 'Knowingly and fraudulently concealed while a bankrupt * * * from his trustee property belonging to his estate,' can they prove the allegation by showing that he has been guilty of this misconduct in some former bankruptcy? Does not the statute refer to the pending pro- ceeding and the trustee then in esse? If so, it will be at once apparent that the creditors may, in many instances, be remediless and the second petition may be used to consummate the most glaring frauds. "The same observations are true regarding the failure to keep books, etc. This must be done with intent to conceal the bankrupt's true financial condition and in contemplation of bankruptcy. What bankruptcy? The present or some previous bankruptcy? "Other considerations of a similar nature might be suggested as showing the questions which may arise if this unjustifiable proceeding be permitted to con- tinue. They are advanced tentatively and without intending to express any opinion as to whether they are tenable or not, our sole purpose being to demon- strate the proposition that the creditors having succeeded upon the question of the discharge ought not to be called upon to face a situation where they may be defeated on technicalities by a clever manoeuver of the bankrupt. "All the facts constituting the estoppel are before the court; they cannot ' be changed by any subsequent proceedings. The bankrupt is not entitled to prosecute proceedings for a discharge, the debts and assets being the same as in the former case, and, therefore, he should not be permitted to begin such proceedings. "We are of the opinion that fhe stay, in so far as it restrained the bankrupt from filing a petition for a discharge should have been continued, and to this extent the order of the District Court is reversed, with instructions to pro- ceed in accordance with this opinion. "All concur." It has been held that the entire subsequent bankruptcy proceedings may be thus dismissed, and the dismissal need not be merely of the peti- tion for discharge. 2^ But this could not be the true rule where there are assets to be administered, for the right of dismissal in these cases is based on res judicata, which depends, in its turn, of course, upon identity of not only the parties and cjuestions but also of the subject involved. Identity of 24. Kuntz V. Young, 12 A. B. R. 505, 131 Fed. 719 (C. C. A. Minn.). 2 Rem B— 18 1474 REMINGTON ON BANKRUPTCY. § 2438 debts is sufficient to warrant the dismissal of a second petition for dis- charge after refusal of the first, but if there are assets, there are cer- tainly subjects for administration in bankruptcy and consecjuently reason for not dismissing the entire proceedings.-^ § 2438. Quaere, Where Debts in Subsequent Bankruptcy Partly- Same, Partly New, and Discharge in First Bankruptcy Refused.— Where the debts in the subsequent bankruptcy are in part the same as in the first bankruptcy, and in part are different, a difficult question arises as to the operation of the refusal of the discharge in the first proceedings. The bankrupt undoubtedly has a right to apply for discharge from the new debts, and the new creditors may have no ground for barring him therefrom ; but should* the exercise of that right entail upon the old cred- itors a relitigation of the entire subject of discharge? The former re- fusal of discharge is not available as a statutory bar to the new dis- charge, for it is only the "granting" of a discharge (and in voluntary pro- ceedings within six years) that is a "bar." Moreover, the acts which barred the first discharge were committed in another bankruptcy than the present and probably are not urgeable in the present bankruptcy. At the same time, the debts of the old creditors are still "provable" in the second bankruptcy, and hence are dischargeable thereby. What, then, is the course to be pursued ? There are two possible courses open. Either the old creditor may urge "res judicata" in reply to the bankrupt's defense of discharge when the old creditor resorts to legal proceedings to enforce his claim against the bankrupt; in which event, however, it might rightly be contended that the debt was "provable" in the second bankruptcy and was not one of those excepted from the operation of discharge, and hence was discharged by the second bankruptcy, even if not by the first bank- ruptcy. In re Clai¥, 7 A. B. R. 128, 111 Fed. 506 (D. C. Mass.): "Claff was adjudicated bankrupt in 1899, upon a voluntary petition. His discharge was refused for fraudulent concealment of assets. In 1900 he filed a second petition, and seeks a discharge thereunder. That his discharge under the second petition, if ob- tained, will be no bar to a suit upon a debt scheduled under the first commis- sion, and not proved under the second, seems clear. Gilbert z'. Hebard, 8 Mete. 129; In re Drisko, 2 Low. 430, Fed. Cas. No. 4,090. See Dean v. Jus- tices, 173 Mass. 453, 53 N. E. 893. But this fact does not prevent the bank- rupt from filing a second petition, or from getting a discharge thereunder, for whatever the discharge may be worth. In re Drisko, above cited. The dis- charge is granted, and no exception will be made therein of debts scheduled under the earlier commission. It is more convenient to make the discharge a general one, and to leave its effect to be determined by subsequent proceed- ings. In re Marshall Paper Co., 4 Am. B. R. 468, 43 C. C. A. 38, 102 Fed. 872 and cases cited; In re Black (D. C), 4 Am. B. R. 471, note, 97 Fed. 493." 25. Compare, In re Feigenbaum, 9 A. B. R. 595, 121 Fed. 69 (C. C. A. N. Y.). Compare, In re Kuffler, 18 A. B. R. 17, 151 Fed. 12 (C. C A. N. Y., reversing 16 A. B. R. 305). Compare, ante, § 2416, and post, § 2680. § 2438 PETITION FOR DISCHARGE. 1475 Cr, on the other hand, the court in its order of discharge in the second bankruptcy, might expressly except all debts provable in the first bank- ruptcy wherein discharge had been refused, although, to be sure, power to make exceptions in orders of discharge is doubtful. The latter seems to be the proper course; for the defense is the defense of res judicata as to the right to a discharge itself and not as to the dischargeability of the particular debt. Were the debt not "provable," or were it one of those excepted from the operation of discharge by § 17 of the act, it would be proper to wait until it was sought to enforce the debt, then to urge that it was not within those debts enumerated as dis- chargeable ; but, on the contrary, it is, in fact, "provable" and was not "ex- cepted" and therefore is discharged unless the decree of discharge itself is limited. 2*^ In re Kuffler, 18 A. B. R. 17, 151 Fed. 12 (C. C. A. N. Y., reversing 16 A. B. R. 305) : ''If the application in the court below had been directed to obtain- ing a stay of any application for a discharge from the debts scheduled in the former proceeding, and the court below had limited its order accordinglj', we should have no difficulty in affirming the order. Obviously it was the prin- cipal purpose of the present proceeding to enable the bankrupt to renew his unsuccessful application to be discharged from his debts in the former pro- ceeding, and to that extent to resuscitate the former proceedings. If this were permitted, the creditors who successfully opposed his dicharge in the former proceeding would be compelled to litigate over again the issue which* had been finally adjudicated in their favor. They should not be subjected to this hard- ship. If any of these creditors should seek to enforce by an action his debt against the after-acquired property of the bankrupt, not having procured a stay in the second bankruptcy proceeding, he might be inet with a discharge in that proceeding as a bar to his action. Under the Act of 1898, the denial of an application for a discharge from debts provable in one proceeding in bank- ruptcy renders the issue of the right to a discharge res adjudicata as to such debts in a subsequent proceeding; and a faiktre of the bankrupt to apply for a discharge ,within twelve months after the adjudication in the earlier proceeding has the same effect. Kuntz v. Young, 12 Am. B. R. 505, 131 Fed. 719. Where the same debts and the same assets' are scheduled in the two proceedings, one be- ing commenced subsequent to the termination of the other, it is manifest that the last proceeding is merely an attempt to evade the former one. To permit it would be to sanction a fraud upon the court. As this court said in In re Fiegenbaum, 9 Am. B. R. 595, 121 Fed. 69. '■' 'Not only should the court of bankruptcy protect the creditors from an at- tempt to retry an issue already tried and determined between the same parties, but the court, for its own protection, should arrest, in limine, so flagrairt an attempt to circumvent its decrees.' "The present case differs, however, from the Fiegenbaum Case, because in that case the second proceeding was commenced within a very short time after the denial of the bankrupt's discharge in the former proceeding, while here two years have elapsed; and^it differs in the further and more important fact that some debts are scheduled in the second proceeding which were not provable in the first. "It is the right of an insolvent debtor who may have acquired property and 26. Compare, post, § 2680. 1476 REMINGTON ON BANKRUPTCY. § 2439 incurred debts subsequent to an adjudication of Uankruptcy to prosecute a second proceeding to obtain his discharge. The effect of an order like the one under review would be to deprive hiin of that right." § 2439. Refusal of Discharge under .Former Bankruptcy Act Not Res Judicata under Present Act. — But the refusal of a discharge under a former bankruptc}- act is not res ad judicata upon the question of dis- charge under the present act. In re Herrman. 4 A. B. R. 139, 102 Fed. 753, 106 Fed. 987 (D. C. N. Y.) : "Proceedings in bankruptcy are* doubtless in the nature of a suit * * * and no doubt the refusal of a discharge under the Act of 1867 would be res judicata upon any subsequent application for a discharge under that act as respects the same debt; and similarly, while a former proceeding is pending, no subsequent application for a discharge from the same debts would be enter- tained under the same act. But these rules, in my judgment, have no appli- cation to proceedings for a discharge under wholly independent and widely separated statutes of bankruptcy, like those of 1867 and of 1898. The pro- visions regulating discharges are quite different in the two statutes; so that, though a discharge were refused under the Act of 1867, the bankrupt upon the same facts might be entitled to a discharge under the Act of 1898. "The facts stated in the moving affidavits and the records of this court, furnish a strong presumption that the proceedings for a discharge under the former act were virtually abandoned in 1879, as the bankrupt was not likely to succeed in obtaining it. There were then numerous specifications in oppo- sition to his discharge, two of which were the same as are raised in the pres- ent proceeding, and which would bar a discharge under the present act if proved. The former proceeding, which has never been determined by the entry of any order refusing a discharge, can have no greater force as a bar to the present proceeding, however, than if an order of refusal had been in fact entered. But, even if such an order had been entered, and even if the refusal was solely upon grounds which would bar a discharge under the pres- ent act, the debtor would, in my judgment, still be at liberty to proceed for a discharge under the Act of 1898 without reference to the Act of 1867, or any proceeding under it; and his right to a discharge now must be determined by the provisions of the present act alone. "The only effect of a refusal of a discharge under the old Act, was to ex- clude the debtor from all relief under that act, and to leave his debts existing as before. The Act of 1898, passed twenty years after the repeal of the Act of 1867, marks a new beginning. It is wholly independent of the former act. It was designed to give to debtors a fresh start in life, freed from the weight "of all former debts, except such as are expressly excluded from the operation of the f)resent act. Old 'debts existing under the former act and kept alive until now by subsequent judgments, are not excepted from the new act, though a discharge from them under the former act was denied. They are, therefore, presumably within the intent of the present statute. The long disability of the debtor under the pressure of his old debts is in effect made by the present act a sufficient punishment for the offences which previously barred his dis- charge. The new act, as respects discharges, supersedes the old; and its de- sign to give freedom to all debtors upon an honest compliance with its pro- visions, subject only to its own restrictions, would be clearly thwarted pro tanto, if relief under it were refused merely because similar relief had been refused under the Act of 1867." § 2445 PETITION FOR DISCHARGE. 1477 § 2440. Refusal of Discharge under State Bankruptcy or State Insolvency Law Not Res Adjudicata as to Same Debt in Federal Bankruptcy. — Nor is the refusal of a discharge under a state insolvency low res adjudicata, the record not showing the ground of the refusal. ^^^ § 2441. Refusal of Discharge No Bar to Subsequent Bankruptcy Petitions nor Adjudications. — Refusal of discharge will not prevent the debtor from filing a subsequent voluntary petition in bankruptcy nor creditors from filing a subsequent petition against him, except as the same may be enjoinable for futile and vexatious repetition.-^ § 2442. Discharge Not Impeachable Collaterally.— The order of discharge may not be questioned nor attacked collaterally.-^ Custard z'. Wiggenson, 17 A. B. R. 340 (Wis.) : "The order of discharge, therefore, having been put in evidence, was proof of the appellant's discharge in bankruptcy and cannot be impeached collaterally. This provision of the Bankrupt Act, making the order of discharge evidence of the jurisdiction of the court and the regularity of the proceedings, was obviously intended to dispense with proof of antecedent steps in the proceedings." Unless for absolute want of jurisdiction apparent upon the face of the record, as in cases where the petition for the discharge was filed after eigh- teen months from the date of adjudication.-"" § 2443. But Avoiding Effect of Discharge by Showing Debt Ex- cepted from Its Operation, Not "Collateral Attack." — But the avoid- ing of the effect of a discharge by showing that one's debt was not "duly scheduled," or otherwise was excepted from the operation of the act, is not a collateral attack on the discharge.'^^ § 2444. Nor "Attack" at All. — Indeed, it is not an attack on the dis- charge decree at all, but rather a carrying out of its terms ; for by the law itself, the discharge is not to operate upon the debts excepted imder § 17 nor upon debts that are not "provable." § 2445. Bankrupt Cannot Voluntarily Surrender Discharge. — Nor may the bankrupt himself surrender his discharge or vacate it. It can be revoked only in the statutory manner.^^ But, of course, the bankrupt may revive the discharged debts by new promises. 27. In re Bybee, 10 A. B. R. 761, 124 Fed. 1011 (D. C. Calif.); Dean v. Justices of the Municipal Court, 2 A. B. R. 16.3 (Sup. Ct. Mass.). 28. See ante, § 2416. 29. In re Shafifer, 4 A. B. R. 728, 104 Fed. 982 (D. C. N. Car.). 30. Obiter, In re Fahy, 8 A. B. R. 354, 116 Fed. 239 (D. C. Iowa), quoted supra, § 2427. 31. Sutherland v. Lasher, 11 A. B. R. 780, 41 N. Y. Misc. 251 (affirmed in 87 App. Div. 633); Schiller v. Weinstein, 15 A. B. R. 184 (N. Y. Court App.). 32. In re Shaffer, 4 A. B. R. 728, 104 Fed. 982 (D. C. N. Car.). Compare, In re Hawk, 8 A. B. R. 71, 114 Fed. 916 (C. C. A.). 1478 REMIXGTON ON BANKRUPTCY. § 2446 § 2446. Staying Discharge to Permit Creditor to Perfect Rights against Surety or Exempt Property. — Proceedings upon a petition for discharge may be stayed until a creditor may perfect his rights against a surety or other third person or against the bankrupt's own exempt prop- erty, or otherwise secure special remedies, where judgment must be ob- tained, or other steps be taken, to perfect such creditors' rights.^s Suggestion in In re Lewensohn, 3 A. B. R. 59, § 99 Fed. 73 (D. C. N. Y.) : "If a judgment is necessary to prevent the discharge from barring the debt, a prosecution of the suit to judgment should be allowed." CoJitra, Bryant v. Kinyon, 6 A. B. R. 241 (Mich.) : "It is contended, however, that as the defendant was arrested upon a capias, and gave bail, that the surety is not discharged, and that a judgment is necessary, and should be permitted, to fix his liability. We think this position is not tenable. The re- sponsibility of the surety is limited by a strict construction of his bond. There can be no liability unless a judgment is procured in the action against the principal, and that can never be, for the reason that he is released by his discharge." 33. See ante, §§ 1102, 1104, 1105. In re Marshall Paper Co., 2 A. B. R. 653, 102 Fed. 872 (D. C. Mass., reversed, on other grounds, in 4 A. B. R. 468); Lock- wood V. Exchange Bk., 190 U. S. 294, 10 A. B. R. 107; suggestion in Ingram u. Wilson, 11 A. B. R. 192, 125 Fed. 913 (C. C. A. Iowa); Bell r. Dawson Grocery Co., 12 A. B. R. 159 (Sup. Ct. Ga.) ; In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Penn.); In re Tiffany, 17 A. B. R. 296 (D. C. N. Y.). CHAPTER LIII. Opposition to Discharge;. Synopsis of Chapter. § 2447. Opposition to Discharge. DIVISION 1. § 2448. Entry of Appearance and Filing of Specifications. § 2449. Entry of Appearance on Time Essential. § 2450. Appearance May Be by Attorney. § 2451. Entry of Appearance Gives Ten Days Time to File Specifications. § 2452. Specifications to Be Filed in Writing. § 2453. Not Filed within Ten Days, Dismissed. § 2454.. Time Extended but Only for -Good Cause. § 2455. Bankrupt to Attend Hearing; No Order Necessary; No Reimbursement. .of Expenses. § 2456. Death Not to Abate Opposition Proceedings DIVISION 2. § 2457. Who May Oppose Discharge— Court Itself, Not. i§ 2458. Trustee, Not. § 2459^. Any "Party in Interest," and Only Such, May Oppose. § 2460. Must Have Pecuniary Interest. § 2461. Need Not Have Proved, nor Have "Provable," Claim. § 2462. Whether Other than One from \Miom Propetry Obtained by False- "Representations May Oppose on That Ground. § 2463. Whether Objecting Creditor's Loss of Capacity Pending Hearing, Compels Dismissal of Specifications. DIVISION 3. § 2464. Opposition to Discharge Not Criminal Prosecution, and Criminal Law Rules Not Applicable. § 2465. Refusal of Discharge Not Imposition of Penalty nor Forfeiture. § 2466. No Constitutional Right to Discharge. § 2467. Act Liberal towards Bankrupt as to Discharge — Strict Construction in His Favor. § 2458. Right to Discharge and Effect of Discharge. Distinct Propositions. § 2469. Unless Bankrupt Commits One of Acts Prohibited, His Discharge "Shall" Be Granted. § 2470. Though Bankrupt Owes Nondischargeable Debts; or Only Debt Scheduled Be Nondischargeable. § 2471. Or Though Opposing Creditor's Debt Nondischargable or One against Which No .Exemption Exists. § 2472. Or Though Only One Debt Exists. § 2473. That Only Partnership Debts Exist No Bar to Discharge in Individual Bankruptcy. § 2474. Intervening Insanity or Death No Bar. § 2475. Undetermined Petition for Discharge in Pending Bankruptcy under Old Law of 1867, Not Bar. 1480 EEMI^■GTOX ox BAXKRUPTCY. § 2476. Whether Misconduct in Former Bankruptcy, Bar. § 2477. Lack of Sufficient "Residence, Domicile or Principal Place of Busi- ness" in District, No Bar. § 2478^ Collateral Attack on Jurisdiction for Lack of Residence, etc. § 2479. Filing of Petition for Discharge after Expiration of Year. § 2480. Withholding Discharge or Dismissing Discharge Petition, for Other Causes — Noncompliance with Rules, Want of Prosecution, etc. § 2481. Buying Off Opposition to Discharge. § 2482. Discharge Not Refused for Acts Committed before Enactment of Law. § 2483. Right to Discharge Governed by Law as It Stood at Time of Filing Bankruptcy Petition. § 2484. Fraudulent Acts of Agents and Partners Not Imputable unless xA.ctual Knowledge Exists, Where Commission of "Offense" Is Ground Urged. § 2485. How, Where Ground Charged Is Not Commission of "Offense." § 2486. Whether Act Must Be Committed in Same Capacity in Which Dis- charge Sought, to Bar. SUBDIVISION "a." § 2487. "Concealment of Assets," as Bar to Discharge. § 2488. "Knowingly and Fraudulently." § 2489. Intent to Conceal, Most Important Element. § 2490. Honest Mistake, Even ^Mistake of Law, Excuses. § 2491. Advice of Counsel May Negative Intent. § 2492. But Insufficient Where Legal Questions are ^Matters of Common Knowl- edge; or Facts Not Fully Laid before Counsel, or Unwarranted Inferences Drawn from Advice. § 2493. Because Property Claimable as Exempt, Fraudulent Intent Not Nec- essarily Negatived. § 2494. But Such Fact of Weight as Evidence. § 2493. \\'illful Undervaluing of Scheduled Assets May Be Concealment. § 2496. Preference Not Amounting to Fraudulent Concealment No Bar. § 2497. Concealment ]\Iust Be "While a Bankrupt" or After Discharge. § 2498. Continuing Concealments. § 2499. Concealment Must Be Concealment from Trustee. § 2500. Concealment before Appointment of Trustee, Insufficient. § 2501. Mere Inability to Account Reasonably for Assets Not Per Se Proof, Though Strong Evidence. § 2502. Concealment by Purposely Omitting Assets from Schedules. § 2503. And Amendment after Discovery Will Not Cure. § 2504. But Omission to Schedule, Not Per Se Concealment. § 2505. Concealment of Fraudulently Transferred Property. § 2506. But Property' Must Be Recoverable, Else Not Concealment of Prop- erty "Belonging to Estate." § 2507. Concealment, Even Where Fraudulent Transfer Occurred More than Four Months before Bankruptcy, if Property .Still Recoverable. § 2508. Or Where It Occurred before Passage of Act, if Still Recoverable. § 2509. Even Where No Debts Existed and Transfer Fraudulent Only Be- cause in Contemplation of Future Creditors. § 2510. Concealment of Property Held on "Secret" or Resulting Trust, Title Never Having Been in Bankrupt. •§ 2511. "Secret Trust" in Bankrupt's Favor Generally Requisite to Show Con- tinuing and Intentional Concealment of Fraudulent Transfers. OPPOSITION TO DISCHARGE. 1481 § 2512. "Secret Trust" Not Requisite Where "Fraudulent Conveyance within Four ]\lonths," Ground Charged. § 2513. But "Concealment" and "Fraudulent and Knowing Intent" Provable Otherwise than by Continuing Secret Trust. § 2514. "Concealment" Must Be of Property "Belonging to Estate." § 2515. Mere Working for Another, Even without Pay, While Insolvent, No Concealment. § 2516. Thus, Beginning New Business as Agent for Another. § 2517. Exact Value* of Assets Concealed Need Not Be Capable of Ascertain- ment, if of Value. § 2518. Even if of Small Value, Intentional Concealment Will Bar. §. 2519. Failure of Creditors to Institute Legal Proceedings to Recover Con- cealed Property Tends to Rebut. § 2520, Amendment of Schedules after Discovery of Concealed Assets of No Avail. ■§ 2521. Instances Held Sufficient to Bar Discharge for Concealment of Assets. § 2522. Instances Held Insufficient to Prove Fraudulent Concealment. SUBDIVISION "b." § 2523. "False Oath" as Bar to Discharge. § 2524. Must Be False Oath or False Account. § 2525. Oath Must Be Authorized by Statute and Administered by One Author- ized. § 2526. Sufficient if Administered Either before Testifying or Afterwards. § 2527. Must Be in or in Relation to Bankruptcy Proceedings. § 2528. "False Oaths" in Poverty Affidavits. § 2529. "False Oaths" in Hearing upon Petition for Adjudication. ■§ 2530. If Not in, nor in Relation to His Own Bankruptcy Proceedings, No Bar. § 2531. Whether False Oath in Own Previous Bankruptcy Proceedings, Bar. § 2532. False Oath in Bankruptcy Proceedings under Law of 1867 Not Suf- ficient. § 2533. Must Have Been Material § 2534. Material Though Subject of Little Value or Exempt or Not Recoverable. § 2535. False Oath Must Be "Knowingly and Fraudulently" Made. 1 2536. "Advice of Counsel" Tends to Negative Fraudulent Intent. § 2537. Fraudulent Intent Not Necessarily Negatived by Fact That Property Not Recoverable. ■§ 2538. Nor That Its Value Unascertained. § 2539. Nor That It Might Have* Been Claimed Exempt. § 2540. False Testimony on "General Examination," "False Oath." § 2541. Swearing to Schedules Containing Misstatements or Omissions, "False Oath." § 2542. Omitting Creditors from Schedules, When "False Oath." ■§ 2543. Amendment after Discovery of Omission. SURDIVTSION "C." ■§ 2544. Destruction, Failure to Keep and Concealment of Books of Account as Bar to Discharge. § 2545. Intent to Conceal Financial Condition Essential. ? 2546. Intent Inferable from Circumstances. § 2547. Property Exempt, or Not Recoverable, etc. — Not Necessarily Negative Intent to Conceal. 1482 RKMINGTON ON BANKRUPTCY. § 2548. Keeping Books in Same Defective Manner for Long Period Tends to Negative Intent. § 2549. No Special Manner of Keeping Books Requisite. § 2550. Concealment or Destruction of Books, etc., Whicli Might Have Aided in Ascertainment of Financial Condition. SUBDIVISION "d." § 2551. Presentation of False Claim or Demand as Bar to Discharge. SUBDIVISION "i;." § 2552. Grounds of Opposition to Discharge Added by Amendment of 1903. § 2553. Transfer, Removal or Concealment within Four Months, as Bar to Discharge. § 2554. Must Be within Four Months Preceding Bankruptcy. § 2555. But Property Need Not Be Still Recoverable. SUBDIVISION "F." § 2556. Obtaining Property on Credit on False Statement in Writing, as Bar to Discharge. § 2557. New Ground Only Available in Bankruptcies Instituted Since Amend- ment. § 2558. Statement before Amendment Sufficient if Proceedings Instituted after Amendment. § 2559. Whether Other than Particular Creditor Defrauded ^Nlay Oppose on This Ground. § 2560. First Element: Materially False Statement in Writing. § 2561. Written Statement Need Not Be Delivered if Contents Communi- cated. § 2562. Second Element: Must Be by Bankrupt. § 2563. But if Made by Agent with Bankrupt's Authority, Sufficient. § 2564. Third Element: Must Be Made to Person from Whom Property Ob- tained. § 2565. Whether, if Made to Mercantile Agencies, or in Answer to General Inquiries, a Bar. § 2566. Fourth Element: Property Must Be Obtained on Credit Thereby. § 2567. Fifth Element: Bankrupt Must Intend to Obtain Property Thereby. § 2568. Whether Intent Must Be to Obtain Particular Property Actually Ob- tained. § 2569. Sixth Element: False Statement Must Be Relied on. § 2570. "Continuing Representations." SUBDIVISION "G." § 2571. Previous Discharge within Six Years, as Bar to Discharge. § 3572. Whether Present Application Be Involuntary or Voluntary Bankruptcy, Immaterial. § 2573. Previous Discharge in Involuntary Proceedings, No Bar. § 2574. In Voluntary Proceedings, It Is Bar. § 2575. Previous Refusal of Discharge within Six Years Not within Bar, Though Res Judicata as to Old Debts. § 2576. This Bar Applicable Where Proceedings Instituted after Amendment of 1903, Though Facts Occurred Beforehand. OPPOSITION TO discharge;. 1483 § 2577. "Within Six Years" Measures Time between First and Second Dis- charge, Not between First Discharge and Filing of Second Petition in Bankruptcy. § 2578. Nor between Two Adjudications of Bankruptcy. § 2579. Jurisdiction to Administer Estate Unimpaired Though Discharge Barred because of Previous Discharge within Six Years. SUBDIVISION "h." § 2580. Refusal to Obey Court's Order or to Answer Question, as Bar to Dis- charge. § 2581. Refusal to Answer Incrimin^ing Questions. § 2582. Withholding Discharge until Court Rules Complied with. DIVISION 4. § 2583. Specifications of Objections to Discharge, Pleadings. SUBDIVISION "a." § 2584. Specifications to Be Verified. § 2585. But Lack of Verification May Be Waived. § 2586. Or Be Supplied by Amendment. § 2587. W^here Several Objecting Creditors, All ]\Iay Sign and Verify Same Specifications. § 2588. Whether if Several Join in Same, Each Alust Sign and Verify. § 2589. Whether Verification by Some One with Knowledge Requisite. § 2590. Verification by Attorneys Permitted. § 2591. Forms of Verification. § 2592. Whether Verification ^lust Be Positive or May Be on Information and Belief. § 2o93. Specifications to Be Signed. SUBDIVISION "b." § 2594. Specifications to Show Capacity of Objecting Creditor. § 2595. All Essential Facts and Elements of Bar to Discharge to Be Alleged. § 2596. "Knowingly and Fraudulently'' to Be Alleged Where Act Charged an "Ofifense." § 2597. If Act Charged an "Ofifense," Must Appear to Have Been Committed after Bankruptcy, etc. § 2598. Acts Charged, to Be Brought within Time Limit. § 2599. Distinct Grounds May Be Joined in One Specification. § 2600. But Each Ground to Be Separately Stated. § 2601.. All Grounds Need Not Be Sustained. § 2602. Specifications Not to Be Used as "Dragnet" or "Fishing Expedition." § 2603. Must Not Be Indefinite nor General nor Argumentative, but Certain and Positive. § 2604. No Greater Definiteness Necessary than Nature of Facts Requires. § 2605. Whether to Be Pleaded "with Certainty of Indictment" Where "Of- fense" Charged. § 2606. Evidence Not to Be Pleaded. § 2607. Legal Conclusions Not to Be Pleaded. § 2608. Thus, Allegations in Mere Words of Statute Sufificient Only Where Failure to Keep Books, Ground Charged — Elsewhere Insufficient. § 2609. Alternative Allegations Improper. 1484 REMINGTON ON BANKRUPTCY. SUBDIVISION "Q." § 2610. Defective Specifications; Rights and Remedies. § 2611. Whether Specification of One Ground and Proof of Another a Fatal Variance. § 2612. Defective Specifications Waived by Going to Trial w^ithout Objection. § 2613. Defective Specifications May Be Amended. § 2614. Must Be Something in Record Whereby to Amend. § 2615. Amendment Permissible after Time Limited for Filing Specifications. § 2616. Even New Ground of Opposition May Be Added. § 2617. Amendment to Conform Pleadings to Proof but Not to Set up Entirely New Ground after Trial. ** § 2618. Amendment May Be Ordered. § 2619. Striking Ofif Specifications after Amendment for Failiiig Still to Show Sufficient Grounds. § 2620. Amendment May Be Conditioned on Payment of Costs. § 2621. Amendment May Be Refused. § 2622. Refusal to Permit Amendment Reviewable for Abuse of Discretion. SUBDIVISION "Xt!' § 2623. Answer to Specifications Not Necessary. § 2624. But May Be Filed. DIVISION 5. § 2625. Final Hearing on Discharge to Be before Judge. § 2626. But Judge May Refer Issues to Special ^Master. § 2627. Motions and Demurrers to Be to Judge, Not to Special Master. SUBDIVISION '%." § 2628. Hearings before Special Master. § 2'629. Whether Special Mastei#to Exclude Improper Evidence. § 2630. Findings of Fact as Well as Evidence to Be Reported. § 2631. Also Conclusion of Law. § 2632. Exceptions to Special Master's Report and Findings. § 2633. Court Presumed to Have Investigated Case on Merits, on Master's Report. § 2634. Findings of Fact Not Reversed Except for Clear Error. SUBDIVISION "q!' § 2G35. Burden of Proof on Opposing Creditor. § 2636. But Presumptions of Fact May Shift against Bankrupt, and Compel Rebuttal. § 2637. Burden of Proof Is on Objecting Creditor as to Each Element of Ground Charged. § 2638. Evidence Need Not Be beyond Reasonable Doubt. § 2639. But Where "Ofifense" Is Ground Charged, Evidence to Be "Clear," "Satisfying" or "Convincing." § 2640. Whether Same Degree of Proof Requisite Where Ground Charged Is Not a Punishable Offense. § 2641. "General Examination" of Bankrupt Admissible. § 2642. Competent Though Crime Charged. § 2448 OPPOSITION TO discharge;. 1485 § 2643. But of Other Witnesses, Not Admissible. § 2644. Unless So Stipulated. § 2645. Ordinary Rules Determine Admissibility and Credibility. § 2646. Failure to Produce Material Witnesses Who Are Accessible. § 2647. Failure of Creditors to Take Steps to Recover Property Alleged Fraud- ulently Concealed. § 2648. Evasive Testimony of Bankrupt: Credibility. § 2649. Contradictory Statements and Incredible Explanations. § 2650. Impeachment of Witness by Inherent Improbability of Own Testi- mony. § 2651. Nevertheless Merelj- Suspicious Circumstances Not Sufficient Where Witness Uncontradicted. § 2652. Likewise Mere Evasive Testimony and Inability to Account Reasonably for Assets Not Per Se Proof. § 2653. Though Strong Evidence Tending to Discredit. § 2654. Judicial Cognizance of Court Records. § 2655. Res Judicata and Estoppel. § 2656. Discharge Hearing Not Postponed to Await Outcome of Fraudulent Conveyance Suit. § 2657. Declarations of Alleged Fraudulent Transferrer. SUBDIVISION "d." § 2658. Costs on Discharge. § 2659. Power to Award Costs Inherent. § 2660. Referee Allowed Compensation as Special Master on Discharge. § 2661. Awarding Costs against Creditors. § 2447. Opposition to Discharge. — The judge hears the appHcation for discharge, and such proofs and pleas as may be made in opposition tliereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard ; and he investigates the merits of the application, and discharges the applicant unless he has done some one or more of the acts mentioned by the statute as barring his discharge.^ Division 1. Entry of Appearance; and Fiung of Specifications. § 2448. Entry of Appearance and Filing of Specifications. — After the filing of the petition and at or before the time announced in the notice to creditors for its hearing, any interested party desiring to oppose the granting of the discharge, may enter his appearance with the clerk or be- fore the judge, in opposition thereto, and is then allowed ten days time thereafter within which to file specifications in writing of the grounds of his opposition thereto ; but such time may be extended by order of the judge.2 1. Bankr. Act, § 14 (b). Gen. Ord. XXXII. 2, Gen. Ord. XXXII. In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). 1486 REMINGTON ON BANKRUPTCY. § 2454 Compare, In re Clothier, 6 A. B. R. 203, 108 Fed. 199 (D. C. Pa.): "General Order 32 should be strictly complied with, and failure so to do will only be excused when excellent reasons therefor are shown to the court." If specifications of objections to the discharge are not filed, the dis- charge will be granted.^ § 2449. Entry of Appearance on Time Essential. — Entry of appear- ance within such time is absolutely essential to the right to file specifica- tions in opposition to discharge.^ If no objection is made, the court will presume that no reason exists for not granting a discharge.^ § 2450. Appearance May Be by Attorney. — Duly admitted attor- neys at law may enter appearance in behalf of their clients, without written power of attorney.^ § 2451. Entry of Appearance Gives Ten Days' Time to File Spec- ifications. — The operation of such entry of appearance is to give the op- posing creditor ten days time within which to file written specifications of his grounds of opposition. § 2452. Specifications to Be Filed in Writing. — Specifications of the grounds of opposition to the discharge must be filed in writing.''' And the filing of specification, in opposition is a prerequisite to the intro- duction of any evidence against the discharge.'^ § 2453. Not Filed within Ten Days, Dismissed. — Specifications not filed within the time limited will be dismissed. '^ § 2454. Time Extended but Only for "Good Cause."— Such time may be extended by the judge, for good cause. ^''' But such extension should be applied for before the expiration of the original time;^^ and good cause must be shown. i- 3. In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.). 4. In re Gainsburg, 12 A. B. R. 459, 130 Fed. 627 (D. C. Penn.) ; In re Grant, 14 A. B. R. 398, 135 Fed. 889 (D. C. Pa.); In re Albrecht, 5 A. B. R. 223, 104 Fed 974 (D. C. Pa.). Analogously, as to filing specifications, In re Clothier, 6 A. B. R. 203, 108 Fed. 199 (D. C. Pa.). 5. In re Royal, 7 A. B. R. 636, 113 Fed. 140 (D. C. N. C). 6. In re Gasser, 5 A. B. R. 32, 104 Fed. 537 (C. C. A. Minn.). 7. Gen. Ord. XXXII. In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). 8. In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.). 9. In re Albrecht, 5 A. B. R. 223, 104 Fed. 974 (D. C. Pa.); In re Clothier, G A. B. R. 203, 108 Fed. 199 (D. C. Pa.). 10. Gen. Ord. XXXII. 11. Apparently contra, for a case in which a judge made a "nunc pro tunc" order where no extension had been requested, apparentlj^, until after the ex- piration of the ten days time, see In re F'rice, 2 A. B. R. 674; 96 Fed. 611 (D. C. Iowa). This would hardly seem to be the function of a nunc pro tunc order. Compare, analogous practice as to filing the petition for discharge ante § 2425. 12. In re Clothier, 6 A. B. R. 203, 108 Fed. 199 (D. C. Penn.). § 2457 OPPOSITION TO DISCHARGE. 1487 § 2455. Bankrupt to Attend Hearing-: No Order Necessary: No Reimbursement of Expenses.- — The bankrupt must present himself at the hearing upon his application for discharge, and is not permitted by absence to defeat the creditors from proving their grounds of opposi- tion. ^^ He must attend without being ordered to do so;^"* and he is not entitled to reimbursement of expenses in so doing. ^^ § 2456. Death Not to Abate Opposition Proceedings. — The death of the bankrupt will not abate the proceedings in opposition to his dis- charge. ^^ Division 2. Who ]\Iay Oppose; Discharge;. § 2457. Who May Oppose Discharge— Court Itself, Not.— The court will not itself seek for grounds to refuse a discharge: grounds must be properly presented by parties.^" In re Thomas, 1 A. B. R. 515, 92 Fed. 912 (D. C. Iowa): "Section 14, paragraph b, makes it the duty of the judge to grant the discharge, provided the requisites as to notice, etc., have been observed, unless one of the two grounds in said paragraph stated is proven. The duty of proving that such ground exists is on the opposing creditors." But the court will not grant a discharge until the law as to procedure snd the rule^ of court have been complied with.^^ No "certificate of conformity," however, is required under the present act, as was required under the former act. It has been held that specifications of objections to discharge, which not only fail to show the objector is a party in interest, but affirmatively show he will not be afi^ected by a discharge, as that his claim is not a dijchargeable one, are fatally defective, and present no issue that should be considered or determined ; and that the court may take judicial notice thereof though the specifications are not objected to on that ground. ^^ 13. Bankr. Act, § 7 (1). In re Shanker, 15 A. B. R. 109, 138 Fed. 862 (D. C Pa.). Compare, as to general examination after entry of opposition to discharge, In re Price, 1 A. B. R. 419, 91 Fed. 635 (D. C. N. Y.). 14. In re Shanker, 15 A. B. R. 109, 138 Fed. 862 (D. C. Pa.). 15. Obiter, In re Shanker, 15 A. B. R. 109, 138 Fed. 862 (D. C. Pa.). 16. In re Parker, 1 A. B. R. 615 (Ref. Kans.). Compare, "Intervening Death Does Not Affect Right to Discharge," ante, § 2421. 17. In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa); In re Royal, 7 A. B. R. 636, 113 Fed. 140 (D. C. N. Car.); Strause v. Hooper, 5 A. B. R. 224, 230, 105 Fed. 590 (D. C. N. C.) ; In re Holman, 1 A. B. R. 603, 92 Fed. 512 (D. C. Iowa); [1867] In re Schuyler, 3 Ben. 200, Fed. Cases 12,494; [1867] In re Rosen- feld, 2 N. B. Reg. 117, Fed. Cases 12,057. 18. Strause v. Hooper, 5 A. B. R. 224, 230, 105 Fed. 590 (D. C. N. C). Obiter, and inferentially, In re Thomas, 1 A. B. R. 515, 92 Fed. 912 (D. C. Iowa). In- stance, analogously, discharge vacated for failure to lile separate findings of fact and law. In re Rauchenplat, 9 A. B. R. 765 (D. C. Porto Rico). Compare, "Duty of Court Sometimes to Withhold Confirmation of Composition on Own Motion," ante, § 2376. 19. In re Servis, 15 A. B. R. 271 (D. C. Iowa). 1488 REMINGTON ON BANKRUPTCY. § 2461 § 2458. Trustee, Not. — The trustee is not, as such, a proper party to oppose clisclfarge. His duty under the act is to administer the estate and to attend simply to matters pertinent thereto.-'^ § 2459. Any "Party in Interest," and Only Such, May Oppose. — Any party in interest, and only such, may oppose the bankrupts' dis- charge, ^i In re Levey, 13 A. B. R. 314, 133 Fed. 572 (D. C N. Y.) : "By implication parties in interest only may oppose the discharge of the bankrupt. There is no express provision declaring who may oppose." § 2460. Must Have Pecuniary Interest. — To be a "party in interest" within the purview of this provision he must have a pecuniary interest. 22 In re Levey, 13 A. B. R. 314, 133 Fed. 572 (D. C. N. Y.) : "This court is of the opinion that it was the purpose of Congress to enable any person having a personal pecuniary interest, or a representative pecuniary interest in prevent- ing a discharge, to oppose the discharge of the bankrupt." And the fact that the bankrupt has scheduled the person as a creditor will imply that he is a "party in interest. "^3 An ecjuitable claim is sufifi- cient to make the holder such a party in interest.-^ An unliquidated claim is sufficient;-^ so also is a contested claim. ^"^ But a nondischargeable claim is not sufficient. ^'i' § 246L Need Not Have Proved, nor Have "Provable," Claim. — liut the party in interest need not have actually proved his claim. ^^ And he need not even have a "provable" claim, or his claim may be no longer "provable." Thus, the holder of a contingent claim is a "party in in- terest ;"29 likewise, is a creditor who has not proved his claim Avithin the year and consequently cannot share in the dividends, or who has not j)roved his claim at all.^*^ 20. Contra, and that he may be competent if estate still unsettled. In re Levey, 13 A. B. R. 312, 133 Fed. 572 (D. C. N. Y.). 21. Impliedly, Bankr. Act, § 14 (a): "* * * hear * * * g^ch proofs and pleas as may be made in_ opposition thereto by parties in interest, at such times as will give parties in interest. * * *" In re Servis, 15 A. B. R. 271, 140 Fed. 222 (D. C. Iowa). 22. In re Frice, 2 A. B. R. 674, 96 Fed. 611 (D. C. Iowa). 23. In re Frice, 2 A. B. R. 674, 96 Fed. 611 (D. C. Iowa). Inferentially, In re Wolke, 3 A. B. R. 35, 96 Fed. 550 (D. C. N. Dak.). 24. [1867] In re Tebbctts, Fed. Cases No. 13,817. Obiter, In re Conroy 14 A. B. R. 249, 134 Fed. 764 (D. C. Pa.). 25. [1867] Ex parte Traphagen, Fed. Cases No. 14,140. 26. In re Conroy, 14 A. B. R. 249, 134 Fed. 764 (D. C. Pa.). [1867] In re Bclden, Fed. Cases No. 1,238. 27. In re Servis, 15 A. B. R. 27t, 140 Fed. 222 (D. C. Iowa). 28. In re Frice, 2 A. B. R. 674, 96 Fed. 611 (D. C. Iowa). 29. In re Conroy, 14 A. B. R. 251, 134 Fed. 764 (D. C. Pa.). 30. Analogously (vacating of discharge). In re Beinberg, 9 A. B R 601 121 Fed. 942 (D. C. N. Y.): In re Frice, 2 A. B. R. 674, 96 Fed. 611 (D. C. Iowa). Compare, to similar effect, obiter, In re Walker, 3 A. B. R. 35 (D. C. N. Dak.). § 2465 OPPOSITION TO discharge;. 1489 § 2462. Whether Other than One from Whom Property Obtained by False Representations May Oppose on That Ground. — It is ques- tioned whether any other person than the one from whom property was obtained by "materially false representations in writing" may oppose the bankrupt's discharge on that ground.'^ ^ But the better reason is that any creditor, or other party in interest, may so oppose the discharge, whether or not he be the party extending the credit or to whom the representations v/ere made or from whom the goods were obtained.^- § 2463. Whether Objecting Creditor's Loss of Capacity Pending Hearing Compels Dismissal of Specifications. — Where all creditors opposing discharge dropped out, one by one, except apparently a partner- ship, the dissolution of the partnership has been held to work a discon- tinuance of the prosecution. Recommendations of the special master to lefuse the discharge have been, on that account, disapproved.^^ Division 3. Ge;ne;rai, Nature and Grounds op Opposition. § 2464. Opposition to Discharge Not Criminal Prosecution, and Criminal Law Rules Not Applicable. — Opposition to a discharge is not a criminal prosecution, and the rules of evidence and practice in criminal cases do not prevail.^^ In re Dresser, 16 A. B. R. 562, 146 Fed. 383 (C. C. A. N. Y.) : "The pro- visions of the section are not to receive the strict construction given to crim- inal statutes, but should receive a reasonable one to efifectuate the intention of Congress, so far as that can be ascertained by the language employed." Thus, the use of the bankrupt's former testimony is not forbidden.-^^ § 2465. Refusal of Discharge Not Imposition of Penalty nor For- feiture. — Nor is the refusal to grant a discharge the imposition of a penalty or forfeiture.^^ 31. In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y., affirmed by D. C). 32. In re Harr, 16 A. B. R. 216, 143 Fed. 421 (D. C. Mo.). 33. In re Hendrick, 16 A. B. R. 218, 143 Fed. 647 (D. C. Conn.). 34. In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y.). Compare, In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.). Obiter, In re Levey, 13 A. B. R. 317, 133 Fed. 572 (D. C. N. Y.). In re Dow, 5 A. B. R. 400 (D. C. Iowa); In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y., affirmed by D. C); In re Rochford, 10 A. B. R. 608, 124 Fed. 182 (C. C. A. S. Dak.); Kuntz v. Young, 12 A. B. R. 505, ]31 Fed. 722 (C. C. A. Minn.). 35. In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y.) ; In re Dow, 5 A. B. R. 400 (D. C. Iowa). Obiter, In re Levey, 13 A. B. R. 317, 133 Fed. 572 (D. C. N. Y.). Compare, In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.). 36. In re Leslie, 9 A. B. R. 561, 119 Fed. 409 (D. C. N. Y.); In re Dresser, 13 A. B. R. 636, 144 Fe4. 318 (Ref. N. Y., affirmed by D. C). 2 Rem B— 19 1490 REMINGTON ON BANKRUPTCY. § 2467 § 2466. No Constitutional Right to Discharge. — There is no consti- tutional right to discharge ; and regulations concerning discharge do not make the law unconstitutional.-"^ § 2467. Act Liberal Towards Bankrupt as to Discharge — Strict Construction in His Favor. — The act is very liberal towards the bank- rupt as to his discharge, and strict construction of the terms under which opposition will be sustained are had in favor of the bankrupt's discharge.^ ^ Compare, obiter, In re Glass, 9 A. B. R. 393, 119 Fed. 509 (D. C. Tenii.) : "The bankruptcy statute being very liberal to the debtor in the matter of his dis- charge, confining the grounds of opposition to conduct on his part of k crimi- nal nature or a quasi criminal carelessness and negligence, he should not be allowed to receive the acquittance of the statute because of any embarrassment or obstructions encountered by his creditors in presenting their opposition to his application for it. Only negligence of a culpable character on their part should debar them from the benefit of Revised Statutes, § 954, as to amend- ment of their specifications; and these, it seems to me, are the considerations that should control the court in the exercise of its discretion in the premises." Section 14 (b) provides the judge "shall" grant the discharge unless certain acts are proved, and the leading act consists of offenses prohibited as crimes. Moreover, the definitions are so surrounded with qualifications in favor of the bankrupt as to indicate clearly the intention of Congress that a strict construction of the act in favor of the bankrupt, so far as it relates to opposition to discharge, must prevail. But compare. In re Scott, 11 A. B. R. 328, 126 Fed. 981 (D. C. Del.): "Stat- utory provisions regulating the conditions on which bankrupts may be discharged are remedial in their nature with respect to the bankrupts or to their cred- itors, or to both, and the strict rules of construction or interpretation appro- priate to retroactive or retrospective laws are inapplicable to them." And compare also, In re Breitling, 13 A. B. R. 126, 133 Fed. 146 (C. C. A. Ills.): "The Act requires the fullest disclosure, the utmost good faith, the sur- render of all his estate not exempt by the Act. It is well observed by Judge Brown that 'a discharge in bankruptcy upon any other condition than the complete appropriation of every known asset legally available to creditors would not be only a glaring wrong to creditors, but contrary to every con- ception of a just system of bankruptcy.' " Compare, to similar effect. In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.— subsequently district judge): "I have hesitated to find that the bankrupt's verification of schedules which omitted assets of such trifling value constit'uted knowingly and fraudulently making a false oath; but if a man wants to obtain tlirough the Bankruptcy Act a discharge from his debts, he must in good faith turn over all his assets to his creditors." And compare, also, In re Barton Bros. Produce Co., 14 A. B. R. 505, 136 Fed. 355 (C. C. A. Ark.): "The* spirit of the Bankrupt Act is commendable. Its purpose is to release the honest debtor from the burden of debts which he 37. Obiter, In re Xeely, 12 A. B. R. 407 (Ref. N. Y.). Compare ante, § 12. 38. And compare also, In re Baudouine, 3 A. B. R. 55, 96 Fed 539 CD C N. Y.). ■ ■■ * § 2468 OPPOSITION TO DISCHARGE. 1491 is unable to longer carry; to give freer play to his energies and enterprises, that he may thereafter be better able to support himself and those dependent upon his earnings, and thereby be in position to render a better service to the State and to society. This beneficent policy is conditional always upon the bankrupt's full and complete surrender of all his unexempt property for the benefit of his creditors. He must be honest in this respect. He must neither conceal nor withhold knowingly anything from his creditors which they are entitled, under the law, to know or receive. Whenever the court is im- pressed with the belief, after due inquiry and examination, that in the main the bankrupt has intended and tried to comply with the law, he should be dealt with liberally on his petition for manumission from his debts. On the other hand, in order to obstruct gross abuses of the spirit of the Bankrupt Act, that it may not aid the dishonest debtor in being acquitted of his honest debts, while withholding aught that he should surrender for the benefit of his creditors, it is the duty of the court to look into the heart of his trans- actions." § 2468. Right to Discharge and Effect of Discharge, Distinct Propositions. — The right to a discharge and the effect of a discharge are entirely distinct propositions.^^ In re McCarty, 7 A. B. R. 40, 111 Fed. 151 (D. C. Ills.): "When a bank- rupt files his application for discharge, the only facts pleadable in opposition thereto are the causes mentioned in § 14 of the act. Unless the bankrupt has committed some one of the ofifenses described therein, the court must discharge him. Section 17 of the Bankrupt Law reaches further, but it does not con- trol this case. The right to a discharge and the effect of a discharge are entirely distinct propositions. Section 14 fixes the right to a discharge. Section 17 goes to the effect of a discharge. The question before the court is as to the right of the bankrupt to his discharge. The other questions — the effect of such discharge if, in the future, it shall be pleaded in bar of the collection of the judgment in question — will arise in the proper tribunal where such collection is sought to be enforced." In re Rhutassel, 2 A. B. R. 697, 96 Fed. 579 (D. C. Iowa): "Under the provisions of the Bankrupt Act, there are certain matters inhering in the conduct of a bankrupt which will defeat the granting of a discharge; and there are other matters inhering in or connected with the character of certain claims which except them from the effect of a discharge, if granted. To defeat the right to a discharge, it must be shown that the bankrupt has committed an of- fense punishable by imprisonment under the provisions of the act, or, with fraudulent intent to conceal his true financial condition, and in contemplation of bankruptcy, destroyed, concealed, or failed to keep books of account or records from which this true condition might be ascertained. Section 14 of Bankrupt Act. The effect of a discharge, when granted, is declared in § 17. * * * As a matter of pleading, the petition presents only the ques- tion whether the bankrupt is entitled to a discharge, and does not tender any issue . touching the effect of the discharge, if granted, upon particular debts 39. See post, §§ 2662, 2663. In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa); In re Lieber, 3 A. B. R. 217 (Special Master Pa.); impliedly, In re Tinker, 3 A. B. R. 580, 99 Fed. 79 (D. C. X. Y.) ; In re Mussey, 3 A. B. R. 592, 99 Fed. 71 (D. C. Mass.), quoted post, § 2662; In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass.): In re Thomas, 1 A. B. R. 515, 92 Fed. 912 (D. C. Iowa), quoted post, § 2662: Schiller v. Weinstein, 15 A. B. R. 183 (N. Y. Sup. Ct. App.), quoted post, § 2662. 1492 REMINGTON ON BANKRUPTCY. § 2469 or claims. In opposition to the petition, creditors are entitled to aver and prove any matter which the act declares shall bar the granting of a discharge, but it would certainly be no ground for refusing a discharge if it appeared that there were claims in existence which a discharge would not bar or release. The right to a discharge is one thing, and the effect of it, when granted, is another, and wholly distinct, proposition. The only issue tendered by the petition is the right to a discharge, and the only facts properly pleadable in opposition thereto are those which show that under the provisions of § 14 the bankrupt is not entitled to a discharge. The issue upon the effect of a dis- charge will arise when a creditor seeks to enforce a judgment or claim, and the debtor pleads his discharge in bar thereof.'' § 2469. Unless Bankrupt Commits One of Acts Prohibited His Discharge "Shall" Be Granted. — Unless the bankrupt has committed some one or more of the acts prohibited by the Bankrupt Act, his discharge "shah" be granted.^*' And § 14 (b) prescribes what acts will bar discharge. Fellows v. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.): "The Bankruptcy Act is imperative in granting to the bankrupt the right to a dis- charge 'unless he has (l) committed an offense punishable by imprisonment as herein provided: or (2) with fraudulent intent to conceal his true financial con- dition. * * *' " In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass.); "The court is * * * to deny the application for discharge upon a ground not set forth in this section. * * * a refusal to grant a discharge cannot be said to rest in the discretion of the judge. The words, 'investigate the merits of the application,' must be taken in connection with the context. To construe these words as if they stood alone and disconnected from what follows would be to leave the whole question of discharge to the discretion of the court. Looking at the entire section, we do not think these words will bear such a construction, however desirable it may seem to the court in a particular case to so interpret them. It seems to us that Congress in this section clearly specifies the only causes for which a discharge can be denied, and leaves to the court the sole duty of deciding, after due hearing, whether such cause exists. '"When the bankrupt files his petition for a discharge, the only facts plead- 40. See Bankr. Act, § 14 (b). In re McCarty. 7 A. B. R. 40, 111 Fed. 151 (D. C. Ills.), quoted post, § 2663. In re Frank, 6 A. B. R. 156 (D. C. Penn.). But it is improper to say he is entitled to his discharge unless he has com- mitted an offense punishable by the Bankrupt Act, for his discharge is barred by his destruction of books, etc., which is not an "offense." Strause t: Hooper, 5 A. B. R. 230, 105 Fed. 590 (D. C. N. Car.); In re How- den, 7 A. B. R. 193, 111 Fed. 723 (D. C. N. Y.) ; In re Wetmore, 6 A. B. R. 703 (Ref. N. Y.); In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.); In re Blalock. 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C); In re Thomas, 1 A. B. R. 515, 92 Fed. 912 (D. C. Iowa); In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa); inferentially. In re Mussey, 3 A. B. R. 592, 99 Fed. 710 (D. C. Mass.); In re Peacock, 4 A. B. R. 136, 101 Fed. 560 (D. C. N. Car.); In re McGurn, 4 A. B. R. 459, 102 Fed. 743 (D. C. Xev.) ; In re Black, 4 A. B. R. 471 (note), 97 Fed. 493 (D. C. Calif.). Contra, In re Fleishman, 9 A. B. R. 557, 120 Fed. 960 (D. C. Ills.): In this case discharge was refused because the bankrupt refused to surrender property that had been scheduled. Perhaps this decision could be brought under the rule that one in contempt of court may not be heard. Inferentially, apparently contra. In re Walther, 2 A. B. R. 702, 95 Fed. 941 (D. C. N. Y.); apparently contra. In re Steindler & Hahn, 5 A. B. R. 63 (Ref. N. Y.). I 2470 OPPOSITION TO DISCHARGE. 1493 able in opposition thereto are those which show that, under the provisions of § 14, he is not entitled to a discharge. In other words, it must be shown that he has committed some one of the offenses described; otherwise, the judge 'shall' discharge the applicant. "The right to discharge, and the effect of a discharge, are wholly distinct propositions. The proper time and place for the determination of the effect of a discharge is when the same is pleaded or relied upon by the debtor as a de- fense to the enforcement of a particular claim. The issue upon the effect of a discharge cannot properly arise or be considered in determining the right to a discharge." This case reverses In re Marshall Paper Co., 2 A. B. R. 653, 102 Fed. 872, wherein the lower court had held: "The judge * * * is required to 'investi- gate the merits of the application' and hence is ncA confined to the consideration of those objections to the discharge which are properly set forth by the cred- itors." In re Crist, 9 A. B. R. 1, 116 Fed. 1007 (D. C. Ala.) : "The court investigates the merits of the application, and will discharge the applicant, unless he has committed an offense punishable by imprisonment, as provided by the Bankrupt Act, or has concealed or failed to keep books, etc." In re Fades, 16 A. B. R. 31 (C. C. A. Ills.): "Under § 14 * * * the bank- rupt is entitled to a discharge, on due application, unless guilty of one of the offenses there .specified, and the objector has the burden of proof upon such issue. The question whether the grounds for denying a discharge are wisely so limited cannot enter into consideration when an issue is raised, and the terms of the act are plain that the application is deniable only upon due proof of com- mission of one of these enumerated ofifenses." In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.) : "It has been very earnestly and forcibly argued that § 7 of the Act of 1898 makes it the duty cf the bankrupt to prepare, make oath to, and file in court a schedule of his property, the location thereof, and testimony of the value in detail, and that a failure to discharge this duty is of itself a sufficient ground for the court to deny the discharge. As already intimated, the statute does not present the grounds of opposition to a discharge in that way. It is specific and definite in prescribing that conduct of a bankrupt which shall defeat him of his discharge, and the courts can incorporate into the statute hq other grounds of ©pposition. Indeed, the general scheme of this act seems very narrowly to limit the grounds for withholding a discharge, and, on the other hand, to declare that is shall have no effect as against creditors who have certain rights and equities against the bank- rupt as prescribed in the statute, some of which were, under former acts, pre- scribed as grounds for denying the discharge." Thus, a merely preferential transfer by the bankrupt is insufficient to bar discharge."* 1 § 2470. Though Bankrupt Owes Nondischargeable Debts; or Only Debt Scheduled Be Nondischargeable. — And such discharge is to be granted though the bankrupt owes debts that are not dischargeable.^^ 41. In re Maher, 16 A. B. R. 340, 144 Fed. 505 (D. C. Mass., affirming 15 A. B. R. 786); impliedly. In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y., affirming 5 A. B. R. 410). See post, § 2496. 42. In re Rhutassel, 2 A. B. R. 697, 96 Fed. 597 (D. C. Iowa); In re McCarty, 7 A. B. R. 40, 111 Fed. 151 (D.'C. 111.); obiter, In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Pa.); In re Liever, 3 A. B. R. 217 (Master, Penn.j; In re Tinker, 3 A. B. R. 580, 99 Fed. 79 (D. C. N. Y.) ; in this case, however, the undischargeability was questioned. In re Peacock, 4 A. B. R. 136, 101 Fed. 560 (D. C. N. Car.). 1494 REMINGTON ON BANKRUPTCY. § 2475 Obiter, In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa): "* * * if he had a judgment against the bankrupt for willful and malicious injury to his property, that fact would not defeat the granting the discharge, but would only except the judgment from the effect of the discharge under the provision of § 17 of the act." Or though the only claim scheduled, or proved, is an undischargeable claim.^2 § 2471. Or Though Opposing Creditor's Debt Nondischargeable or One against Which No Exemption Exists. — And the discharge is to be granted although the creditor opposing the discharge has an undis- chargeable claim f^ or one 5gainst which there are no exemptions.'*^ § 2472. Or Though Only One Debt Exists.— And that there is only one debt scheduled, is no bar to discharge.^*^ § 2473. That Only Partnership Debts Exist, No Bar to Dis- charge in Individual Bankruptcy. — And that the only debts of the bankrupt, in an individual bankruptcy, are partnership debts, is no bar to his discharge. The right to a discharge, and the effect of it on the particu- lar debt, are different propositions.^'^ The partnership debts, moreover, are "provable" against the individual estate, though not entitled to divi- dends therefrom until individual creditors are paid. § 2474. Intervening Insanity or Death, No Bar. — Intervening in- sanity is not ground for refusing the discharge;*^ nor is intervening death, apparently .4^ § 2475. Undetermined Petition for Discharge in Pending Bank- ruptcy under Old Law of 1867, Not a Bar. — An undetermined ap- 43. In re McCarty, 7 A. B. R. 40, 111 Fed. 151 (D. C. Ills.) : A judgment for seduction. Contra, In re Maples, 5 A. B. R. 426, 105 Fed. 919 (D. C. Mont.). 44. Obiter, In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Pa.); obiter,. In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa). 45. In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Pa.). 46. In re Tinker, 3 A. B. R. 580, 99 Fed. 79 (D. C. N. Y.) ; In re Frank, 6 A. B. R. 156 (D. C. Pa.). 47. Contra, In re Meyers, 2 A. B. R. 707, 96 Fed. 408 (D. C. N. Y.). Also contra. In re Meyers, 3 A. B. R. 260, 97 Fed. 757 (D. C. N. Y.) : These two cases are wrong in principle. Even if it were correct to hold (and the holding is doubtful) that a discharge in an individual proceedings does not discharge partnership obligations, yet it would be improper to refuse discharge on that ground although the only debts scheduled are firm debts. The bankrupt, unle-s he has done one of the things mentioned in the statute as barring discharge is entitled to his discharge for what it is worth and its effect is not to be deter- mined in advance. 48. In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.). See ante, § 98. But a guardian ad litem should be appointed: In re Miller, 13 A. B. R. 345, 133 Fed. 1017; In re Burka, 5 A. B. R. 843, 167 Fed. 674 (D. C. Tenn.). See ante, § 98. 49. Obiter, In re Miller, 13 A. B. R. 345, 133 Fed. 1017 (D. C. Pa.). See ante, § 98. § 2478 OPPOSITION TO DISCHARGE. 1495 plication for discharge in a still pending bankruptcy, under the old law of 1867, is no bar to a discharge under the present act.-^o § 2476. Whether Misconduct in Former Bankruptcy, Bar. — It is a question whether misconduct of a bankrupt in a former bankruptcy is a bar.51 § 2477. Lack of Sufficient "Residence, Domicile or Principal Place of Business" in District, No Bar. — The objection that the bank- rupt is a nonresident of the district, or does not have his principal place of business nor domicile there, will not be considered as a bar upon an application for discharge.52 In re Clisdell, 4 A. B. R. 95, 101 Fed. 246 (D. C. N. Y., reversing 2 A. B. R. 424): "Whether or not the court was right in adjudicating Clisdell a bankrupt, is not now in issue. He has been adjudicated a bankrupt. The petition was insuffi- cient on its face, and nothing appeared in that proceeding challenging the juris- diction of the court. The opposing creditor appeared and filed his proof of claim and examined the bankrupt before the referee. Here then is a bankrupt duly ad- judicated. His petition for a discharge is a separate and distinct proceeding. The court is familiar with no rule of law by which, in such circumstances as are here shown, objections disputing jurisdiction in the original proceeding can be thus de- termined collaterally. It is too late. Certainly there is no provision of the bank- ruptcy law which authorizes such a course. The petition for a discharge rests upon the fundamental proposition that the petitioner has been adjudicated a bankrupt, and the objections which may be interposed and litigated are those pointed out in §§ 14 and 29 of the act. It would involve the administration of the law in endless confusion if the issue of domicile can be raised in every matter growing out of, or ancillary to, the original bankruptcy proceedings." § 2478. Collateral Attack on Jurisdiction, for Lack of "Resi- dence," etc. — If lack of residence, domicile, etc., appears affirmatively on the face of the record itself and not by mere omission, probably this defect is available on discharge as well as elsewhere, collaterally. Lack of sufficient residence, etc., being a cjuestion going to the very jurisdiction of the court over the subject, it would perhaps seem proper to raise it at any time and any branch of the proceedings. Being an' attack on the adjudication, however, it should be direct and not collateral, unless the adjudication is void on its face. And it would not be void on its face, •probably, by mere omission of any allegation, whatsoever, on the subject, but only by affirmative facts appearing on the record practically denying residence, etc.^^ 50. In re Herrman, 4 A. B. R. 139, 102 Fed. 733 (D. C. N. Y.). 51. Obiter. In re Feigenbaum, 9 A. B. R. 597, 121 Fed. 69 (C. C. A. N. Y.j. See "False Oath," §§ 2531, 2532. Compare ante, § 2439. 52. In re Goodale, 6 A. B. R. 493, 109 Fed. 783 (D. C. N. Y.). See ante, § 450. 53. See ante, § 450. And it has been held that this objection cannot be raised where the creditor has been guilty of laches. In re Mason, 3 A. B. R. 599, 99 Fed. 256 (D. C. N. Car.); In re Clisdell, 4 A. B. R. 95, 101 Fed. 246 (D. C. N. Y.). But laches could bar the right only where the defect does not affirmatively appear on the face of the record. 1496 re;mington on bankruptcy. § 2480 § 2479. Filing of Petition for Discharge after Expiration of Year. — That the petition for discharge was not filed until after the ex- piration of the year will not be considered on the hearing in opposition to a discharge, for it will be presumed to have been filed on leave granted and sufficient showing.^^ However, if the record affirmatively shows it was not filed until after eighteen months, it may be attacked collaterally, as no showing can be presumed possible to validate such a belated petition.^^ § 2480. Withholding Discharge or Dismissing Discharge Peti- tion, for Other Causes — Noncompliance with Rules, Want of Pros- ecution, etc. — But the court may temporarily withhold the discharge and even dismiss the petition for discharge altogether for causes other than those mentioned in the statute as bars to discharge. Thus, it may with- hold the discharge temporarily for noncompliance with the rules of court relative to the discharge ; or may dismiss it altogether for want of prose- cution or lack of jurisdiction. The rule that the court "shall" grant the discharge unless one or more of the grounds expressly stated in the statute as bars of discharge exist, must be taken with necessary qualification. It assuredly does not mean that the bankrupt's application for discharge "shall" be granted, even where no statutory bar exists, if the petition itself is framed improperly or filed after the expiration of eighteen months, or if the rules of court have not been complied with, or if lack of jurisdiction exists. Notwithstanding none of the statutory grounds for barring a discharge be proved, nevertheless the court may (even upon its own motion) dismiss a petition for want of prosecution, or for lack of jurisdiction, or may temporarily withhold dis- charge until the orders of the court relating to the discharge have been complied with. Thus, it has been previously noted in chapter 1 of this part that the petition for discharge may be dismissed for want of prosecution; and it has also previously been noted, in considering the subject of the adjudi- cation, that for lack of jurisdiction the court may vacate the adjudication and dismiss the entire proceedings, which would, of course, include the dismissal of the petition for discharge. Failure to comply with the rules and orders of the court relative to the form of the petition for discharge and the requirements of the filing of it, without question would warrant* the temporary withholding of the discharge until compliance had been had therewith ; and this was undoubtedly a proper exercise of power even before the amendment of 1903 added, as a bar to discharge, the refusal of the bankrupt to obey any lawful order of the court. ^"^ Strause v. Hooper, 5 A. B. R. 230, 105 Fed. 590 (D. C. N. Car.): "The ob- jections to the discharge of the partnership of J. A. Hooper & Co. are not 54. In re Hayncs & Son, 10 A. B. R. 13, 122 Fed. 560 (D. C Pa) 55. In re Fahy, 8 A. B. R. 354, 116 Fed. 239 (D. C. Iowa) 56. See post, § 2582. § 2481 OPPOSITION TO DISCHARGE. 1497 such as are contemplated in the act as grounds upon which a discharge may be refused. * * * "The court will not seek for grounds upon which to refuse or even delay a discharge, but hear and consider them when properly presented. The court must, however, in every case look to see that the law and rules have been com- plied with. In the case at bar there is no evidence or certificate of conformity as required by District Rule 8; no proof of publication. The order for dis- charge is therefore posponed until the court is satisfied the law and rules have Deen complied with, and the bankrupts entitled to the discharge." But much more, however, may not legally be done by the court; for no right otherwise exists for refusing a discharge, except upon the grounds mentioned in the statute.^' § 2481. Buying Off Opposition to Discharge. — If the prosecution of opposition is bought off after specifications in opposition have been filed, the specifications will not be dismissed. Either the court will, if hearing has been had, proceed to final decree ; or it will give opportunity to other creditors upon due notice, to take up the opposition.-^^ I 57. Temporarily Holding Discharge in Abeyance, for "More Thorough In- vestigation." — It has been held that the judge may temporarily hold the entire discharge matter in abeyance pending a more thorough investigation, although hearing has been had, if probable cause appears. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.): This deci- sion lays down a rule that is liable to abuse. The better rule is that the op- posing creditors should present their evidence in accordance with usual procedure and if they cannot then substantiate their allegations, with the requisite degree of certainty, the discharge must be granted and must not be delayed in order to furnish opportunity for them to make up for their dilatoriness or inability. However, see further, along the same line as In re Stead, the case. In re Walther, 2 A. B. R. 702, 95 Fed. 941 (D. C. N. Y.) : "It is the duty of the bankrupt to present an intelligent and true statement of her affairs, to show clearly what ^ goods her husband left, what she added and comirbingled with the same, and the disposition made of each class of property, and thereupon to account for the property that should inure to the benefit of her creditors. The court will not permit her to plea.d ignorance, and assert that she acted through agents, and that all detailed knowledge rests with such agents, and that the court must look to such source for information. She, at a recent time, had prop- erty. What has she done with it? If she cannot, through herself or others, make the explanation, her discharge should be withheld."' In re .Finkelstein, 3 A. B. R. 800, 101 Fed. 418 (D. C. N. Y.). Withholding Discharge unjtdl "Proper Accounting" Given by Bankrupt. — And it has also been held that the judge may temporarily withhold discharge until the bankrupt gives proper accounting, although he pleads ignorance of details. In re Walther, 2 A. B. R. 702, 95 Fed. 941 (D. C. N. Y.); In re Hyman, 3 A. B. R. 169, 97 Fed. 195 (D. C. N. Y.) ; In re Finkelstein, 3 A. B. R. 800, 101 Fed. 418 (D. C. N. Y.). Withholding Discharge for Correction of Mistakes as to Exemptions. — And that he may temporarih' withhold discharge until mistakes in setting apart exemptions have been corrected. In re McBryde, 3 A. B. R. 731, 99 Fed. 686 (D. C. N. Car.). 58. Compare, "Crimes against the Bankruptcy Act," ante, part IX. Compare, In re Sanborn, 12 A. B. R. 428, 131 Fed. 397 (D. C. N. Y.) : In th-'s case the court in substance held that, where presumptively a discontinuance of the opposition to a bankrupt's discharge was secured because of some act, either by him or on his behalf and the referee refused the certificate of con- 1498 REMINGTON ON BANKRUPTCY. § 2481 This much can and ought to be done, otherwise cohusive oppositions will be encouraged and the interests of the community in the just determination of the status of the debtor be prejudiced. Aluch more, however, cannot properly be done by the court. Compare, In re Dietz, 3 A. B. R. 316, 97 Fed. 563 (D. C. N. Y.) : "There is no doubt that if the opposition of the creditor is bought off through the procure- ment or privity of the bankrupt, it is such fraud upon the act as would warrant vacating the discharge, the fact itself being prima facie evidence that the bank- rupt was not entitled to it. Tuxbury v. Miller, 18 Johns. 311; In re Douglass (D. C.) 11 Fed. 403, 406; In re Palmer, 14 N. B. R. 437, Fed. Cas. No. 10,678; Balsdel v. Fowle, 120 Mass. 447; Bell v. Leggett, 7 N. Y. 176. The general subject was very fully considered in the case last cited, and it was declared to be 'of no consequence that the arrangement was made between the creditors of the bankrupt and a third person without the intervention or knowledge of the bankrupt.' "All such arrangements are to be condemned, as at variance with the policy of the Bankruptcy Acts, whether expressly prohibited by. statute or not (Smith V. Bromley, 2 Doug. 696), and as injurious to all creditors, because calculated " 'To suppress inquiry and to protect fraud and concealment from successful disclosure and development, * * * and to give the bankrupt a benefit de- signed for the honest insolvent, and which the fraudulent debtor by sound justice and express provisions of the statute was prohibited from receiving.' "In the case of Ex parte Briggs, 2 Low. 389, Fed. Cas. No. 1,868, where a surety of the bankrupt upon an attachment bond paid the debt to a creditor who was opposing the bankrupt's discharge on his own account and wholly without the bankrupt's knowledge or privity, it was held that the discharge was not vitiated. Judge Lowell, however, expressly avers that that was an excep- tional case; and he adds: " 'I do not intend to say that payment by a friend actually made in behalf of the debtor with his knowledge is not prohibited, nor that very slight evi- dence would not aflfect him with participation.' "It is not necessary' for me to make any ruling in this case on the effect of a withdrawal of opposition procured without any actual or constructive knowl- edge or participation by the bankrupt. I am not satisfied that such was the present case. Though the verbal protestations are very strong to this effect, the circumstances all point to a contrary conclusion. Not indeed that the bank- rupt personally was an active participant, for no doubt he was not; but his prior personal relations to Blumberg, as well as through his wife, the improba- bility that this sum of $500 w^ould have been advanced by him in the manner stated without the bankrupt's indirect privity, the fact that the money was lodged formity required by Rule 10, the matter would be referred back for investiga- tion, pending which the discharge would be withheld. Compare, In re Steindler & Hahn, 5 A. B. R. 63 (Special Master). Compare, under law of 1867, In re Douglass, 11 Fed. 403, 406. Also compare under law of 1867, In re Palmer, 14 N. B. Reg. 437, Fed. Cases No. 10,678. But compare qualification of rule under law of 1867, In re Briggs, 2 Low 389 Fed Cases No. 1,868. Creditors Whose Own Specifications Insufficient, Using Specifications of Cred- itors Who Fail to Appear. — Creditors whose own specifications have been in- sufficient may in the discretion of the court, be permitted to avail themselves of specifications filed by other creditors who have failed to appear to prove them. Obiter, In re Wetmore, 6 A. B. R. 703 (Special Master N. Y.). § 2482 OPPOSITION TO discharge;. 1499 with a depository, to be turned over only after the discharge was granted, and the course of practice necessary to procure such a withdrawal and a dis- charge of the bankrupt through the bankrupt's attorney upon such a with- drawal, show that the transfer of these claims to Blumberg had nothing of the character of a mere purchase of them for what they might be worth, but was a very carefully planned and systematic means for procuring the withdrawal of the opposition and thereupon the bankrupt's discharge; and such a proced- ure could not well take place without the privity, concurrence and knowledge of the bankrupt's attorney, as to which nothing appears in the opposing affi- davits." But this was a case of revocation, not refusal, of discharge, and revo- cation may be had for fraud alone. And one court has held, obiter, that the discharge may be refused on the ground that opposition thereto was bought off. In re Luftig, 15 A. B. R. 778 (D. C. Mass.): "I am unable to believe that the Act requires the court to grant a discharge, knowing at the time that facts exist which would thus render it revocable for fraud had they first come to light after it was granted, although no cause for refusing it under § 14b is shown. The facts proved in regard to the settlement of the Roseberg claim would therefore, in my opinion, justify me in refusing the discharge did the case present no other reasons for doing so, but other sufficient reasons appear, wholly independent of the settlement in question." But the court fails to note that fraud alone is insufficient to obtain revocation of a discharge. It musf also appear, in order to revoke, that "The actual facts did not warrant the discharge." See § 15. § 2482. Discharge Not Refused for Acts Committed before En- actment of Law. — The Bankruptcy Law is not retrospective nor retro- active, and acts of the bankrupt committed prior to the passage of the bankruptcy law, will not bar discharge.^ ^ Obiter, In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.) : "If the fraudulent transfers complained of, occurring as they did long prior to the Act of 1898, had culminated at the time they were made, so that the bankrupt's interest in the property passed forever beyond his control and became vested legally and beneficially in the transferees, there can be no doubt that he would be entitled to his discharge, no matter how preferential and fraudulent the transfers may have been as to creditors at the time. In other words, a fraud committed prior to the law making it a crime cannot bar a discharge." [1867] In re Moore, Fed. Cases 9,751: "The Bankrupt Law cannot be made to have a retroactive efifect, and punish a party, by refusing him a discharge for acts committed by him prior to the passage of the law. A fraudulent pref- 59. In re Neely, 12 A. B. R. 409, 1.34 Fed. 667 (Ref. N. Y., affirmed by D. C); In re Lieber, 3 A. B. R. 217 (Ref.) : "This, however, was before the Amendment of 1903 removed the requirement that concealment, etc., of account books must be in contemplation of bankruptcy." Compare, In re Scott, 11 A. B. R. 327, 126 Fed. 981 (D. C. Del.); In re Webb, 3 A. B. R. 386, 98 Fed. 414 (D. C. N. Y., affirming 3 A. B. R. 204); In re Shorer, 2 A. B. R. 165, .96 Fed. 90 (D. C. Conn.): This, however, was before the Amend- ment of 1903 removed the requirement of "contemplation of bankruptcy" as to concealment of books of account, etc. [1867] In re Rosenfeld, Fed. Cases 12,058; [1867] In re Hollenshade, Fed. Cases 6,610; [1867] In re- Delevan, Fed. Cases 3,758; [1867] but compare. In re Creiew, Fed. Cases No. 3,390. 1500 REMINGTON ON BANKRUPTCY. § 2482 erence or transfer of a debtor's property, by the act, is made an offense, for which the punishment prescribed by the act is, a failure to obtain his discharge. To thus punish a party, the offense for which the punishment is inflicted must have been committed since the passage of, and in violation of, a law then in force." [1867] In re Hussman, Fed. Cases 6951: "The withholding of a discharge from a bankrupt is in its nature a penalty for some improper conduct, and to refuse a discharge because of the improper conduct of the bankrupt, prior to the passage of the Bankrupt Act, would be to make the act retroactive." [1867] In re Keefer, Fed. Cases 7636: "In re Rosenfield, Cas. No. 12,058, Judge Field, of the District of New Jersey, held that in such case, the act, in order to constitute a bar to a discharge, must have been committed since the pas- sage of the Bankrupt Act. I fully concur in the reasoning and conclusion in that case." [1867] And compare, In re Goodfellow, Fed. Cas. 5536: "It has been argued in behalf of the bankrupt, that, granting the preferences to have been made, and to be within the period contemplated by the statute, still they were made while he was a resident of the province, not subject to our law and not con- templating bankruptcy under it, and that in such a case the law cannot affect him; and as it is not shown that the acts were illegal when and where they were done, they must be presumed to have been legal, and if so, they are good wherever they may be sought to be impeached. There is much force in this argument, and, indeed, it would be irresistible if the question were of the title to the goods or money conveyed in preference, or o^ any criminal responsi- bility; but the question here is, whether a person who applies to be discharged from his debts must not show that he has complied with the conditions imposed by law, even although he was not aware of them and was not subject to the law when he did the acts. Congress has an undoubted right to annex such con- ditions as it chooses to the grant of a discharge. It might enact, for instance, that certain things done before the passage of the act should be ground for refus- ing it. And this seems to me an analogous case. The statute says: 'You shall not be released if you have given certain preferences.' Now, preferences are not necessarily illegal; they are the payment of just debts. It depends alto- gether upon the fact of subsequent bankruptcy within a certain time whether they turn out to be legal or not. The fact that the transaction is legitimate between the parties and even against all the world is not important, if the intent existed in the mind of the debtor. The act requires an equal distribution of the estate, and if this fails through the act of the debtor, as, for instance, if he has lost a part of it in gaming, the discharge is not granted. It is not a punishment; it is not retroactive. It is simply a condition precedent. * * * jf ^^g estate of the debtor has been disposed of in accordance with the Statute, a discharge shall be granted; otherwise not." [1867] And compare. In re Seeley, Fed. Cas. 12,628: "x\gain, counsel for the bankrupt argued that the jury ought to pass upon the question of intent in every case, as the acts mentioned in § 5110 are in the nature of offenses or forfeitures of a right the bankrupt has to his discharge, and the proceeding is therefore quasi criminal. Support for this position is found in an incidental remark of Judge Field in the case of In re Rosenfield (supra). It is clear, how- ever, that a man has no moral or legal right to be released of his debts, except by virtue of some statute, and that, in the enactment of such statute, Congress has the power to impose such conditions as it pleases to the granting of a dis- charge. It has, indeed, refused it altogether in voluntary cases, except by con- sent of a certain proportion of creditors. I am better pleased with those opin- § 2483 OPPOSITION TO DISCHARGE. 1501 ions which treat the discharge as a favor, and the commission of one of the acts specified, as the violation of a condition precedent. Such was the position of Judge Hall In re Cretiew, Fed. Cas. No. 3,390, and of Judge Lowell In re Goodfellow, Fed. Cas. No. 5,536." But this means that the ultimate act forbidden must not have been com- mitted before the passage of the law, and does not mean that all the evidentiary facts to be proved in order to show the bankrupt guilty of doing the forbidden act in question must have occurred since the passage of the bankruptcy law. Thus, if the bankrupt has perpetrated a fraudu- lent conveyance before the passage of the Bankruptcy Act, such convey- ance is still voidable at the suit of creditors; and therefore, if, knowingly and fraudulently, he fails to reveal the recoverable title to his trustee, when called upon in his examination or schedules to do so, he is guilty of the act of concealing assets subsequent to the passage of the bankruptcy law, although the facts making the conveyance fraudulent occurred before the passage of the bankruptcy law.^*' U. S. V. Cohn, 15 A. B. R. 357, 142 Fed. 983 (D. C. N. Y.) : "This provision of the Bankrupt Act does not make any act of the bankrupt before the bank- ruptcy criminal. But if a bankrupt, before the bankruptcy, has concealed his property, and, after his trustee is appointed, continues to conceal it from the trustee, he is criminally liable under this section, and, if indicted for such crime, evidence of his acts of concealment before the bankruptcy, as well as those subsequent thereto, would undoubtedly be admssible as a part of the res gestae. A conspiracy to commit a crime always, in the nature of the case, precedes the commission of the crime; and, in my opinion, it does not follow, because, at the time that a conspiracy is entered into to conceal property from a trustee, no trustee has been appointed and no proceedings in bankruptcy begun, that, therefore, the crime of conspiracy under § 5440 cannot have occurred." In re Scott, 11 A. B. R. 331, 126 Fed. 981 (D. C. Del.): "A statute is not necessarily retroactive or retrospective because its operation in a given case may be dependent upon an occurrence anterior to its passage, or, in the language of Endlich, 'because a part of the requisites' for its action is drawn from a time antecedent to its passing.' " Likewise, continuing concealment of books of accounts may be per- petrated by failure, after bankruptcy, to reveal their known whereabouts, although the original concealment was done before the passage of the Bankruptcy Act.'^i Likewise, continuing failure to keep books of ac- counts with intent to conceal financial condition may be perpetrated by intentionally continuing a defective and wholly insufficient method of keeping books, begun before the passage of the Bankrupt Act.^^ § 2483. Right to Discharge Governed by Law as It Stood at Time of Filing Bankruptcy Petition. — The right to a discharge is governed by the law as it stood at the time of the filing of the bankruptcy petition; 60. In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.). 61. In re Kamsler, 2 N. B. N. & R. 97 (Ref. N. Y.). 62. In re Feldstein, 8 A. B. R. 160, 115 Fed. 259 (C. C. A. N. Y.). 1502 REMINGTON ON BANKRUPTCY. § 2485 for the regulation of conditions on which discharges are granted is a purely remedial matter.^^ § 2484. Fraudulent Acts of Agents and Partners Not Imputable unless Actual Knowledge Exists, Where Commission of "Offense" Is Ground Urged. — Where the ground charged is the commission of one of the offenses punishable by imprisonment, the fraudulent conduct or concealment perpetrated by an agent or manager of business for the bankrupt or partner, will not be imputed to the individual bankrupt, with- out showing his knowledge thereof and participation therein.^^ Obiter, In re ]\Ieyers, 5 A. B. R. 4, 105 Fed. 353 (D. C. N. Y.) : "* * * if the question were before me de novo, I should be inclined to consider, as no 'offense' or penal element exists in the requirements of this subdivision, that the principal is responsible, as respects a discharge in bankruptcy, for the fraud- ulent conduct of the agent to whom the whole business has been committed, as in civil cases generally, where the fraud has been committed for the prin- cipal's benefit. But as that point seems to have been involved in the case last cited and a contrary decision was then made by Judge Thomas, sitting in this district, it will be followed until otherwise ruled upon appeal." In re Hyman, 3 A. B. R. 169, 97 Fed. 195 (D. C. N. Y.) : "Fraudulent intent is a personal quality, and, although it existed in the mind of the husband, it may not, for that reason be imputed to the wife." In re Schultz, 6 A. B. R. 92, 109 Fed. 264 (D. C. N. Y.): "If in any case fraud can be similarly imputed to an innocent partner on account of the fraud of his copartner or other agent as respects the false or improper keeping of books of account (see In re Meyers, 5 Am. B. R. 4, 105 Fed. 353, 354), it can only be in cases where the fraudulent entries or omissions have reference to partnership transactions so as to fall within the general scope of the partner's or agent's authority. "The frauds in the bookkeeping in this case related to transactions of a wholly different character, in which the partner was defrauding his copartner, as well as his creditors, in reference to transactions wholly outside the partnership authority." Contra, obiter, In re Berry, 15 A. B. R. 360 (D. C._ N. Y.) : "The ground upon which the referee has granted the discharge, that the stock was pledged by emiployes of the bankrupts, and not by the bankrupts themselves, and that therefore the bankrupts had no intent in the matter, and therefore are not barred from a discharge by such act, seems to me untenable. The employees who pledged this stock were given complete control of the business of borrow- ing money for the firm on securities. If such employees, having such general authority, had in fact transferred the bankrupts' property, with intent to de- fraud the bankrupts' creditors, I think that the bankrupts' discharge would have been barred." • . § 2485. How, Where Ground Charged Is Not Commission of "Offense." — But perhaps the same rule would not apply where the 63. In re Peterson, 10 A. B. R. 355, 122 Fed. 101 (D. C. Minn.). 64. Compare, apparently contra, although distinguishable. In re Hardie & Co., 16 A. B. R. 313, 143 Fed. 421 (D. C. Tex.). § 2488 ' OPPOSITION TO DISCHARGE. 1503 ground charged is not the commission of a punishable offense ; and in such cases the act of the partner or other agent may be imputed.*^^ Obiter, In re Meyers, oA. B. R. 4, 105 Fed. 354 (D. C. N. Y.) : "As respects the destruction or concealment of books of account, 'with fraudulent intent to conceal the true financial condition and in contemplation of bankruptcy' * * * if the question were before me de novo, I should be inclined to con- sider, as no 'offense' or penal element exists in the requirements of this sub- division, that the principal is responsible, as respects a discharge in bankruptcy, for the fraudulent conduct of the agent to whom the whole business has been entrusted, as in civil cases generally, where the fraud has been committed for the principal's benefit." Apparently contra, In re Hyman, 3 A. B. R. 169, 97 Fed. 195 (D. C. N. Y.) : "She cannot be deemed * * * to have been guilty of fraud in keeping her books for the single and only reason that her husband and agent was guilty in such direction. Negligence — at least negligence of the degree here involved — is not the equivalent of fraud, within the meaning of the statute." § 2486. Whether Act Must Be Committed in Same Capacity in Which Discharge Sought, to Bar, — It is a question whether the act urged as ground for refusing discharge must have been done by the person seeking discharge in the same capacity in which he is seeking discharge. On principle it would seem that it must have been done in the same ca- pacity.^s SUBDIVISION "k!' Conceai.me;nt of Assets as Bar to Discharge. § 2487. "Concealment of Assets," as Bar to Discharge. — Taking up the original grounds of opposition to discharge, the first ground reached is "Concealment of Assets." If a bankrupt knowingly and fraudulently, whilst a bankrupt or after his discharge, conceals from his trustee any of the property belonging to his estate in bankruptcy, his discharge will be refused.^''' § 2488. "Knowingly and Fraudulently." — The concealment must have been done "knowingly and fraudulently."*^^ That is to say, the concealment must have been known to the bankrupt and have been of such nature as would be calculated to affect creditor's rights disadvantageously, in some way. 65. In re Hardie & Co., 16 A. B. R. 313, 143 Fed. 421 (D. C. Tex.). Also, apparently contra instance, holding to rule of preceding paragraph, In re Garri- son, 17 A. B. R. 833, 149 Fed. 178 (C. C. A. N. Y.). 66. But compare, inferentially. In re Hamilton, 13 A. B. R. 333, 133 Fed. 833 (D. C. N. Y.), where a partner's individual discharge was being opposed for acts done as partner. 67. Bankr. Act, §§ 14 (b) and 29 (b) (l). In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.). See instructive charge to jury in U. S. v. Levinson & Kornblut, 13 A. B. R. 33 (D. C. S. C). 68. Bankr. Act, § 29 (b) (l). In re Cohn, 1 A. B. R. 655 (Ref. Mo.); In re Mudd, 5 A. B. R. 344, 105 Fed. 348 (D. C. Mo.); In re Crenshaw, 3 A. B. R. 623, 95 Fed. 632 (D. C. Ala.); In re Freund, 3 A. -B. R. 418, 98 Fed. 81 (D. C. N. Y.); In re Froeder, 17 A. B. R. 73, 150 Fed. 710 (C. C. A. Mass.). 1504 REMINGTON ON BANKRUPTCY. * § 2491 § 2489. Intent to Conceal, Most Important Element. — Intent to conceal is the most important element in the charge of concealment of assets f^ although it is not the sole element.'''^ § 2490. Honest Mistake, Even Mistake of Law, Excuses.— An honest mistake, even perhaps a mistake of law, will excuse."^ In re Morrow, 3 A. B. R.- 264, 97 Fed. 574 (D. C. Calif.): "If this was her honest belief, even though it should be conceded that at the time of filing her petition in bankruptcy she had an interest in other property, the court would not be warranted in finding that she omitted to include such property in her sched- ule of assets for the purpose of concealing the same from the trustee in bank- ruptcy, or with the intention of defrauding her creditors; and the omission to include property in the schedule of assets filed by a bankrupt, when such omis- sion was due to a mistake either of law or fact, is not an offense under sub- division 'b' of § 29 of the Bankruptcy Act, and is not ground for withholding a discharge." And if the proof shows that the omission of property from the schedules can be satisfactorily explained by circumstances consistent with honest be- lief by the bankrupt that the omitted property did not belong to him, or that it was absolutely valueless, or that it had been practically abandoned by him, then the omission of this property from the schedules is no ground for refusing discharge.'^^ § 2491. Advice of Counsel May Negative Intent. — Advice of coun- sel, if asked for and acted on bona tide, is valid evidence to negative fraudulent intent and knowledge on the bankrupt's part in omitting assets from the schedules or otherwise not revealing them."-"^ In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) : "Advice of counsel is admissible in evidence as tending to rebut an inference of fraudulent intent, but only when some substantial question of law is involveff; and its efifect may itself be neutralized by facts tending to show the existence of a fraud- ulent intent notwithstanding." 69. In re Schreck, 1 A. B. R. 366 (Ref. N. Y.) ; In re Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.); impliedly, In re Freund, 3 A. B. R. 418, 98 Fed. 81 (D. C. N. Y.); impliedly, In re Schofield, 17 A. B. R. 918, 15 A. B. R. 824 (D. C. Pa.). 70. Vehon v. Ullman, 17 A. B. R. 437 (C. C. A. Ills.). 71. Obiter and inferentially, In re Wood, 3 A. B. R. 572, 98 Fed. 972 (D. C. N. Y.); instance. In re Schofield, 17 A. B. R. 918, 15 A. B. R. 824 (D. C. Pa.); [1867] In re Parker, Fed. Cases No. 10,720. 72. In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.). 73. Compare similar proposition relative to "False Oath as Bar to Dis- charge," subdivision "B," § 2523, and cases there cited. Compare, also, advice of counsel as palliation of contempt, ante, § 2333. In re Schreck, 1 A. B. R. 366 (Ref. N. Y.); obiter, McNiel v. U. S., 18 A. B. R. 21, 150 Fed. 82 (C. C. A. Tex.); In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (Ref. Tenn.); inferentially, Woods V. Little, 13 A. B. R. 742, 134 Fed. 229 (C. C. A. Pa.); instance. In re Hansen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.); instance, In re Schofield, 17 A. B. R. 918, 15 A. B. R. 824 (D. C. Pa.). Requisites, in General, of Advice of Counsel as Defense. — Compare as to requisites for validity of defense of advice of counsel, in general, In re Watts, 10 A. B. R. 128, 190 U. S. 1. Compare, U. S. v. Goldstein, 12 A. B R 755, 132 Fed. 789 (D. C. Va.). § 2496 OPPOSITION TO discharge;. 1505 § 2492. But Insufficient, Where Legal Questions Are Matters of Common Knowledge : or Facts Not Fully Laid before Counsel, or Unwarranted Inferences Drawn from Advice. — But advice of coun- sel will not excuse an omission of assets from the schedules where there were no substantial legal questions involved, and the actual legal relation of the property to the bankrupt's estate was matter of common knowledge and plain to everybody.'^^ Nor will it excuse where the facts were not fully laid before counsel Y-" nor where the advice given did not warrant the acts complained of.'^^ § 2493. Because Property Claimable as Exempt, Fraudulent In- tent Not Necessarily Negatived. — Fraudulent intent is not necessa- rily negatived by the fact that the property involved might have been claimed as exempt anyway.'^ § 2494. But Such Fact of Weight as Evidence.— But such fact is entitled to weight in determining intent."^'* § 2495. Willful Undervaluing of Scheduled Assets Whether Con- cealment. — ]\Iere undervaluing of scheduled assets is not, per se, a con- cealment, but it is evidence to be taken into account in arriving at the ititent. Analogously, (false oath) In re Semmel, 9 A. B. R. 351, 118 Fed. 487 (D. C. Pa.) : "A willful undervaluation covered up in the way this is, I cannot but regard as a false representation by the bankrupt with regard to his property, and being sworn to bj- him in verifying his schedules, it amounts to a false oath which bars a discharge." § 2496. Preference Not Amounting to Fraudulent Concealment, No Bar. — A preferenc^ not amounting to a fraudulent concealment is not ground for refusing: oischarge."^' j 74. In re Berner, 4 A. B. R. 383 (R8fc Ohio, afifirmed by D. C.) ; inferentially, In re Schreck, 1 A. B. R. 366 (Ref. N. Y.). Instance of refusal, notwithstanding advice. In re Stoddard, 7 A. B. R. 762, 114 Fed. 486 (D. C. Wash.). Instance of refusal, notwithstanding advice, In re Breitling, 13 A. B. R. 126. 133 Fed. 146 (C. C. A. Ills.). 75. In re Berner, 4 A. B. R, 383 (Ref. Ohio, afiBrmed by D. C); In re Breit- ling, 13 A. B. R. 126, 133 Fed. \46 (C. C. A. Ills.). 76. McNiel v. U. S., 18 A. B. R. 21, 150 Fed. 82 (C. C. A. Tex.). 77. Inferentially, In re Breit^ng, 13 A. B. R. 126, 133 Fed. 146 (C. C. A. Ills.); In re Royal, 7 A. B. R. 106, ll2 Fed. 135 (D. C. N. Car.). Compare, to same effect. In re Conroy, 14 A. B. R. 250, 134 Fed. 764 (D. C. Penn.). Compare, to same eflFect, post, § 2539. under subject of "False Oath." Also, see § 2547. 78. In re Todd, 7 A. B. R. 770, 112 Fed. 315 (D. C. Vt.). Compare analogous proposition under "False Oath," post, § 2539. 79. In re Maher, 16 A. B. R. 340, 144 Fed. 505 (D. C. Mass., affirming 15 A. B. R. 787); In re Pierce, 4 A. B. R. 554, 103 Fed. 64 (D. C. N. Y.). Ante, § 2469. 2 Rem B— 20 1506 REMINGTON ON BANKRUPTCY. § 2500 § 2497. Concealment Must Be "While a Bankrupt" or after Dis- charge. — The concealment, in order to effect a bar of the discharge, must have been perpetrated while the debtor was a bankrupt, or after his dis- charge.^* § 2498. Continuing Concealments. — But there may be a continuing concealment, after one has become a bankrupt, by false statements, and even, in some cases, by silence or omission to reveal when the duty exists to reveal, although the initial fraud or secreting occurred before bank- ruptcy.^ ^ U. S. V. Cohn, 15 A. B. R. 359, 142 Fed. 983 (D. C. N. Y.): "This provision (§ 29 (b) ) of the Bankrupt Act does not make any act of the bankrupt before the bankruptcy criminal. But if a bankrupt, before the bankruptcy, has con- cealed his property, and, after his trustee is appointed, continues to conceal it from the trustee, he is criminally liable under this section, and, if indicted for such crime, evidence of his acts of concealment before the bankruptcy, as well as those subsequent thereto, would undoubtedly be admissible as part of the res gestae." In re Jacobs & Verstandig, 17 A. B. R. 470 (D. C. Ore.): "The word 'con- cealed' employed in this connection is sufficiently elastic in its signification to comprise 'continuing concealments.' Thus, if a bankrupt has disposed of property belonging to him, prior to the adjudication, and has the proceeds thereof in his possession or within his authority to use and appropriate subse- quently, there is a continuing concealment, for which he is amenable to the law, although the fact of concealment by intent and purpose took place while he was not a bankrupt." § 2499. Concealment Must Be Concealment from Trustee. — The concealment must have been concealment from the trustee.^^ § 2500. Concealment before Appointment of Trustee, Insufficient. — Concealment before the appointment of a trustee is ineffectual to bar discharge.^2 80. Bankr. Act, § 29 (b) (1). In re Webb, 3 A. B. R. 386, 96 Fed. 404 (D. C. N. Y., affirming 3 A. B. R. 204) ; In re Quakenbush, 4 A. B. R. 295, 102 Fed. 282 (D. C. N. Y.). Impliedly, In re Blalock, 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C.) : In this case a false oath made in a bankruptcy proceeding brought against another person was sought to be used as a bar to discharge. In re Mudd, 5 A. B. R. 244, 105 Fed. 348 (D. C. Mo.). . When Ceases to Be a "Bankrupt."— As to when the bankrupt ceases to be "a bankrupt," see §§ 453, 473. 81. See post, § 2511. Compare, ante, as to acts of bankruptcy, § 183. 82. Bankr. Act, § 29 (b) (1). In re Quackenbush, 4 A. B. R 295, 102 Fed 282 (D. C. N. Y.); In re Mudd, 5 A. B. R. 244, 105 Fed. 348 (D. C. Mo.). 83. Inferentially, contra, if after adjudication, U. S. v Goldstein 12 A B R 755, 132 Fed. 789 (D. C. Va.). Compare, U. S. v. Levinson & Ko'rnblut,' 13 a! B. R. 32 (D. C. S. C); compare, U. S. v. Cohn, 15 A. B. R. 337, 142 Fed 983* (D. C. N. Y.). ^ 2503 OPPOSITION TO DISCHARGE. 1507 And, if no trustee be appointed at all, this ground of opposition will not lie.^^ In re Toothaker Bros., 12 A. B. R. 100, 128 Fed. 187 (D. C. Conn.): "There •appearing to be no assets a trustee was not appointed. * * * By omitting to place it in the schedules, he was enabled to escape a trustee from whom to conceal it." § 2501. Mere Inability to Account Reasonably for Assets Not Per Se Proof, Though Strong Evidence. — ]\Iere inability to account reason- ably for assets in the bankrupt's possession shortly before bankruptcy is not per se proof of concealment. '^'^ But it is strong evidence to prove con- cealment;^*^ and throws the burden of proof on the bankrupt.^" § 2502. Concealment by Purposely Omitting Assets from Sched- ules. — Concealment may be perpetrated, amongst other ways, by pur- posely omitting assets from the schedules in bankruptcy.^^ In re Skinner, 3 A. B. R. 163, 97 Fed. 190 (D. C. Iowa): "It having, there- fore been conclusively determined in a suit between the bankrupt and his cred- itors, represented by the trustee, that the bankrupt had conveyed to his wife, without consideration, and with intent to defraud his creditors, property to a large amount, and it appearing from the record in this case that when the bank- rupt filed his petition and schedules he stated that he had no property of any kind, except a possible equity of redemption in 1,440 head of sheep mortgaged to a named creditor, the court is justified in finding that the bankrupt has know- ingly and fraudulently concealed from his trustee property to a large amount, which in fact forms part of his estate, and therefore under the provisions of §§ 14 and 29 of the Bankrupt Act the petitioner is not entitled to his dis- charge." § 2503. And Amendment after Discovery Will Not Cure. — xA.nd the amendment of the schedules after the creditors' discovery of the conceal- ment will not cure the act.^^ 84. But compare, as to title to concealed assets under such circumstances. Rand V. Iowa Central Ry. Co., 12 A. B. R. 164 (Sup. Ct. N. Y. App. Div.). And compare as to title of concealed assets after estate closed, Fowler v. Jenks, 11 A. B. R. 255 (Sup. Ct. :\Iinn.). 85. In re Idzall, 2 A. B. R. 741, 96 Fed. 314 (D. C. Iowa); In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.). 86. See cases on the proposition of summary orders on bankrupts, ante, § 1842, et seq. 87. In re Finkelstein, 3 A. B. R. 800, 101 Fed. 418 (D. C. N. Y.); In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.). 88. In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.) ; In re Berner, 4 A. B. R. 983 (Ref. Ohio, affirmed by D. C); obiter. In re Toothaker Bros., 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.); instance, Osborne v. Perkins, 7 A. B. R. 250, 112 Fed. 127 (C. C. A. Mass.); instance, In re Breitling, 13 A. B. R. 126, 133 Fed. 146 (C. C. A. Ills.); instance, Vehon v. Ulman, 17 A. B. R. 435 (C. C. A. Ills.). 89. In re Breiner, 11 A. B. R. 684, 129 Fed. 155 (D. C. Iowa). 1508 kl;mixgtox ox bankruptcy. § 2507 § 2504. But Omission to Schedule, Not Per Se Concealment. — But the mere omission from the schedules is not per se a conceahiient — the omission must be intentional. Thus, the mere omission of even fraud- ulently transferred property is not per se concealment of it.^*^ § 2505. Concealment of Fraudulenty Transferred Property. — Con- cealment may be perpetrated by purposely failing to schedule, or other- wise failing to disclose when called upon, fraudulently transferred prop- erty that would have been recoverable by the trustee. ^^ [1867] In re Antisdell, 18 N. B. Reg. 289 (D. C. N. Y.) : "The second subdi- vision of § 5110 (Act of 1867) required the court to refuse a discharge, 'if the bankrupt has concealed any part of his estate or effects.' This specification is satisfied by proof that the bankrupt has concealed his title to real estate, by leaving out of his schedules property that has been conveyed by him in fraud of his creditors." § 2506. But Property Must Be Recoverable, Else Not Conceal- ment of Property "Belonging to Estate." — But it is only where the property is recoverable by the trustee that a fraudulent transfer made before the bankruptcy could form the basis of such concealment as would bar dis- charge ; for the concealment must be concealment of property belonging to the estate, and it could hardly be held to belong to the estate if not re- coverable at the time of the bankruptcy. And since the concealment, to be a bar, must be concealment from the trustee, the recoverability, like- v/ise, must be by him. On the other hand, demonstration of recoverability, by actual suit, is not to be required. Of course, a fraudulent transfer within the four months is made in and of itself a separate bar to discharge by the amendment of 1903, and con- tinued recoverability is not requisite in such cases. § 2507. Concealment, Even Where Fraudulent Transfer Occurred More than Four Months before Bankruptcy, if Property Still Re- coverable. — Concealment may be so perpetrated, though the fraudulent transfer occurred more than four months before the bankruptcy, provided the property or its proceeds be still recoverable. ^^ Obiter, In re Toothaker Bros., 12 A. B. R. 100, 128 Fed. 187 (D. C. Conn.): "The counsel for ^Murray is forced by the logic of the situation to contend that a bankrupt may transfer property to his wife without consideration, and in 90. See post, § 2511. Compare instance in footnote to § 2522. 91. In re Welch, 3 A. B. R. 93, 100 Fed. 65 (D. C. Ohio); In re Skinner, 3. A. B. R. 163, 97 Fed. 190 (D. C Iowa), quoted ante, § 2502; obiter. In re Toothaker, 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.); [1867] In re Hussman, 2 B. Reg. 437, Fed. Cases 6,951; [1867] In re Rathbone, 1 B. Reg. 536, 2 B Reg. 260; [1867] In re Hill, 1 B. Reg. 431; [1867] In re Goodridge, 2 B. Reg. 324; contra. In re Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.); impliedly In re Hirsch, 2 A. B. R. 715 (D. C. Tenn.). 92. Property concealed from former assignee to whom title to all property of the bankrupt liad previously been conveyed, the assignment itself not being § 2508 . OPPOSITION TO DISCHARGE. ■ 1509 fraud of his creditors, and with the latter purpose in view, at any date which shall be more than four months prior to his petition in bankruptcy, and with like fraudulent purpose may fail to mention such property in his schedules, and yet demand a full bill of financial health in spite of the protestations of his creditors." § 2508. Or Where It Occurred Before Passage of Act, if Still Re- coverable. — Concealment may be so perperated, though the fraudulent conveyance occurred before the passage of the Bankruptcy Act, provided the property could still have been recovered by the trustee. ^^ In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.) : "In 1891 the bankrupt could have transferred his entire property to a single creditor to the exclusion of all the rest, and the transaction, had it ended there, would not have affected his right to a discharge in the remotest degree. If, however, the cred- itor holds the property in trust for the bankrupt, a very different proposition is presented. "The difficulty with the bankrupt's contention is that the transaction did not end in 1891. By virtue of transfers made prior to July 1, 1898, the bankrupt is still enjoying property which equitably belongs to his creditors. "The referee, after seeing and hearing the witnesses, has found that the trans- fer of the personal estate, which vested absolutely in the bankrupt upon the death of his first wife, was merely a juggle by which the legal title was tem- porarily vested in another to prevent the property from being reached by cred- itors. In short, this property was the property of the bankrupt." But is not within the meaning of the statute where the property could nullified by the bankruptcy, does not constitute concealment from the subse- quent trustee in bankruptcy. In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C); obiter. In re Lesser, 8 A. B. R. 15, 114 Fed. 83 (C. C. A. N. Y., dis- approving 5 A. B. R. 330). But this would hardly be the case had creditors in bankruptcy had the right to pursue such assets. The only right of the creditors in bankruptcy was to insist on the assets being turned over to the former as- signee, unless facts showed an abandonment by him. 93. Obiter, In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y., affirming 5 A. B. R. 410, and distinguished in In re Conroy, 14 A. B. R. 250, 134 Fed. 764 (D. C. Pa.); In re Berner, 4 A. B. R- 383 (Ref. Ohio, affirmed by D. C). Contra, compare case cited in opinion in Paxton v. Scott, 10 A. B. R. 80, 92 N. W. 611 (Neb.). Obiter, In re Dauchy, 11 A. B. R. 511, 130 Fed. 532 (C. C. A. N. Y., affirming 10 A. B. R. 527, 122 Fed. 688). But_ in this case, it was distinctly held that no secret trust was shown to be still existing. Impliedly, U. S. v. Cohn, 15 A. B. R. 357. 142 Fed. 983 (D. C. N. Y.). [1867] Compare, under law of 1867, In re Murdock, Fed. Cases 1,010; [1867] In re Hussman, 2 N. B. Reg. 437; [1867] In re Keefer, 4 N. B. Reg. 126, Fed. Cas. 7,636; [l'867] In re Hollenshade, Fed. Cases 6,610; [1867] In re Rosenfeld, Fed. Cases 12,058; [1867] In re Jones, Fed. Cases 932; [1867] In re Moore, Fed. Cases 663, No. 9,751; [1867] In re Lord, Fed. Cas. 872; [1867] but contra, In re Cretiew, Fed. Cas. 810; impliedly, Hudson v. Mercantile Nat'l Bank, 9 A. B. R. 432, 119 Fed. 346 (C. C. A. Colo.); compare, analogously. In re Herman, 13 A. B. R. 778, 134 Fed. 566 (C. C. A. N. Y.). The case In re Webb, 3 A. B. R. 386, is not contra for two reasons, namely, first, that the conveyance therein complained of was merely preferential under the bankruptcy act and not preferential under the State law and therefore was not illegal when made; and second, that fhe property involved could not have been recovered by the trustee. 1510 REMINGTON ON BANKRUPTCY. § 2510 not be considered as "his" property, as would be the case where no secret trust were shown to exist in favor of the bankrupt.^^ In re Countryman, 9 A. B. R. 572, 119 Fed. 637 (D. C. Iowa): "Under these circumstances, in order to defeat the discharge, it must be clearly shown that when the petition in bankruptcy was filed, the bankrupt really owned the land or an interest therein, and this the evidence fails to show. The conveyance to the husband, even if it was not based upon a money or other valuable consid- eration, would be good between the parties, and would bar a claim thereto by the wife [the bankrupt in the case], unless it was shown that when the trans- fer was made she retained an actual interest therein." Or where the conveyance was made twenty-five or thirty years before, no fraud being shown. ^^ But where, for many years, a debtor after a faihire did business osten- sibly as manager for a firm composed of his wife and brother, but re- ceived no fixed salary and drew whatever money he needed, his wife knowing little about the business, although it is alleged she had contrib- uted $10,000 thereto at the beginning, he and his family living in expen- sive style, it was held a failure to schedule an interest in the business was a concealment of assets. ^^ § 2509. Even Where No Debts Existed and Transfer Fraudulent Only because in Contemplation of Future Creditor. — Concealment may be perpetrated even though no present debts were then in existence, if the voluntary transfer were made in contemplation of contracting sub- sequent indebtedness or of engaging in a hazardous undertaking;'^' but not, if it were not made in contemplation of subsequent indebtedness.^^ § 2510. Concealment of Property Held on "Secret" or Resulting Trust, Title Never Having Been in Bankrupt. — Concealment may be perpetrated even by purposely failing to schedule property held on secret cr resulting trust for the debtor's benefit, where the legal title to it has never been in the bankrupt. ^^ Hudson V. Mercantile Xat'l Bk., 9 A. B. R. 4.36, 119 Fed. 346 (C. C. A. Colo.): "We are of the opinion, therefore, in view of what has been said, that it was the bankrupt's duty, when he filed his schedules in bankruptcy, to have included the two quarter sections of land standing in the name of his son Walter Hudson 94. In re House, 4 R. B. R. 603, 103 Fed. 616 (D. C. N. Y.); In re Berner, -4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) ; In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.) ; In re Fitchard, 4 A. B. R. 609, 103 Fed. 742 (D. C. N. Y.); In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.). 95. In re Goodale, 6 A. B. R. 493, 109 Fed. 783 (D. C. N. Y.). • 96. In re Herman, 13 A. B. R. 778, 134 Fed. 566 (C. C. A. N. Y.). 97. In re McNamara, 2 A. B. R. 579 (Special Master N. Y., citing Case v. Phelps, 5 N. B. Reg. 452). 98. Impliedly, Fields v. Karter, 8 A. B. R. 351, 115 Fed. 950 (C. C. A. Ala.). ' 99. In re Lowenstein, 2 A. B. R. 193 (Ref. N. Y., since appointed district judge); In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.): In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C). § 2511 OPPOSITION To DISCHARGE. 1511 as a part of his property; and the fact that he did not do so, taken in connection with the fact that the record title stood in the name of his son, amounts, we think, to a willful and fraudulent concealment of property from his trustee within the purview of § 29 of the Bankrupt Act; and the act in question being an offense under the latter section, it constitutes sufficient ground for refusing a discharge, under subdivision b of § 14 of the Bankrupt Act. It has been held on several occasions by courts of bankruptcy that where a person, prior to filing a petition in bankruptcy, conveys the whole or a part of his property to a third party to be held in secret trust for himself, and fails to schedule it as a part of his assets, such an act amounts to a fraudulent concealment of assets which will defeat his right to a" discharge. In re Welch (D. C), 3 Am. B. R. 93, 100 Fed. 65; In re Bemis (D. C), 5 Am. B. R. 438; In re Becker (D. C), 106 Fed. 54. In the case at bar, as already shown, the bankrupt either has a resulting trust in the two tracts of land in question, which arose without fraud, or Walter Hudson holds the land in secret trust for the benefit of the bankrupt^ the trust having been created to defraud creditors; and in either event, as it seems, the land ought to have been scheduled by the bankrupt as a part of his. estate, and his failure to do so amounts to a concealment of assets." § 2511. "Secret Trust" in Bankrupt's Favor Generally Requisite to Show Continuing- and Intentional Concealment of Fraudulent Transfers. — Generally, in order to prove that the concealment still con- tinues and is being knowingly and fraudulently perpetrated, and some- times also in order to prove that the property is recoverable for the ben- efit of the estate and therefore "belongs" to the estate, it is necessary to show that a secret trust exists in the bankrupt's favor. The omission of fraudulently transferred property must have been done purposely to constitute concealment ; for, as previously noted in § 2504, the mere omission to schedule property is not per se or ipso facto the con- cealment of it.^°*^ In re Cornell, 3 A. B. R. 172, 97 Fed. 29 (D. C. N. Y.) : "To have this effect there must be evidence of concealment of property from the trustee. This can, only be made out by evidence of some remaining property in trust for the bank- rupt's use existing at the time of the petition in bankruptcy." And declaring "No assets" but listing, in the schedule of exempted prop- erty, Schedule B (5), certain property claimed as exempt does not con- 100. See ante, § 2504. Hudson Mercantile National Bank, 9 A. B. R. 436, 118 Fed. 346 (C. C. A. Colo.); In re Freund, 3 A. B. R. 418 (D. C. N. Y.) ; In re Hirsch, 2 A. B. R. 715 (D. C. Tenn.) ; inferentially. In re Steindler & Hahn, 5 A. B. R. 63 (D. C. N. Y.); In re Jacobs & Verstanding, 17 A. B. R. 475 (D. C. Ore.): In re Morrow, 3 A. B. R. 263 (D. C. Calif.); In re Semmel, 9 A. B. R. 352 (D. C. Pa.); U. S. v. Levinson & Kornblut, 13 A. B. R. 32 (D. C. S. C.) ; In re Schreck, 1 A. B. R. 366 (Special Master N. Y.) ; In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) ; In re Lowenstein, 2 A. B. R. 193 (Ref. X. Y.); In re Crenshaw, 2 A. B. R. 623 (D. C. Ala.); In re Pierce, 4 A. B. R. 554 (D. C. N. Y.); In re Fitchard, 4 A. B. R. 609 (D. C. N. Y.) ; Fellows v. Freuden- thal, 4 A. B. R. 490 (C. C. A. Ills.); In re House, 4 A. B. R. 603 (D. C. N. Y.^; In re Quackenbush, 4 A. B. R. 274 (D. C. N. Y.). Compare, In re Gammon, 6 A. B. R. 482 (D. C. Iowa), where a husband had turned over all his property to his wife and pretended to be working for her for nothing and failed to schedule the assets as his own. Compare interesting historical review of the legislation. In re Maher, 15 A. B. R. 788 (Ref. Mass.). Impliedly, In re McGurn, 4 A. B. R. 459 (D. C. Nev.). 1512 REMINGTON ON BANKRUPTCY. i^ 2511 stitute a concealment, the property being actually listed although properly it should be listed also as assets in somie other part of Schedule "B." In re Countryman, 9. A. B. R. 572 (D. C. Iowa) : "The bankrupt's failure to schedule land she conveyed to her husband in 1895 is no reason for refusing her discharge, unless it is clearly shown that she was the real owner of the land or of an interest therein at the time she filed her petition in bankruptcy." And continuing concealment, such as will suffice to bring within the bar of discharge as a concealment a transaction originating before bank- ruptcy must consist of something more than the merely incidental conceal- ment usually accompanying fraudulent trans fers.^*^'^ But such omission, when the property is still held on secret trust, afifords strong if not conclusive proof of intentional concealment. i''- In re Cornell, .3 A. B. R. 172, 97 Fed. 29 (D. C. X. Y.): "To have this effect there must be evidence of concealment of property from the trustee. (Section 29.) This can only be made out by evidence of some remaining property in trust for the bankrupt's use existing at the time of the petition in Bankruptcy." In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) : "A fraudulent conveyance by the bankrupt is not in itself a bar to the bankrupt's discharge. "But the intentional and fraudulent omission to schedule property previously conveyed by the bankrupt in fraud of creditors, whether it was conveyed prior or subsequently to the passage of the Bankruptcy Act, will be a bar to his dis- charge, where the property is being held upon secret trust for his benefit; and this is so for three reasons: (a) Concealment of the assets is a continuous act, and is perpetrated whenever the duty to reveal them exists and is knowingly disregarded, fb) Concealment of assets may be effected as well by the conceal- ment of the title to the property as by the actual hiding of the property itself, (c) It is not necessary that the bankrupt be able himself to recover his prop- erty by suit; it is sufficient if his creditors, or rather, his trustee in bankruptcy, have standing in court for this purpose. "But it is necessary in order that omission to schedule the property shall bar the discharge, that a secret trust in it be shown to be existing in favor of the bank- 101. Bank r. DePauw Co., 5 A. B. R. 845 (C. C. A. Ind.); inferentially, In re House, 4 A. B. R. 603 (D. C. N. Y.); In re Quackenbush, 4 A. B. R. 274 (D. C. 102. Also, U. S. Levinson & Kornblut. 13 A. B. R 32 (D C S C)- In re Bemis. 5 A. B. R. 36. 104 Fed. 672 (D. C. N. Y.) ; In re Schreck, 1 A B 'r 36G ("Special Master N. Y.); Steindler & Hahn, 5 A. B. R. 63 (Special Master)- In re Quackenbush, 4 A. B. R. 273, 102 Fed. 282 (D. C. N. Y., distinguished in In re Fitchard. 4 A. B. R. 609); In re Hoflfman. 4 A. B. R 331 102 Fed 979 (D C N. Y.); In re Pierce, 4 A. B. R. 554 (D. C. N. Y.) ; In re' Fitchard', 4 A b' r' 609, 103 Fed. 743 (D. C. N. Y.) ; Fellows v. Freudenthal, 4 A. B. R. 490, 102 Fed' 731 (C. C. A. Ills.); mferentially. In re Kolster, 17 A. B R 54 (D C Nev) In re Warne, 10 Fed. 377, Id., 12 Fed. 431, in which it was held that the verification of schedules from which certain claims have been omitted ap- parently inadvertently and from oversight and without motive, is not the taking of a false oath. In contemplation of law an oath if not falsely taken unless will- fully made. In re Jacobs, 16 A. B. R. 484, 144 Fed. 868 (D. C. N J.)- In re Welch 3 \ B ?n.^^f.^°n ^r>^'^•^^^^l°• ^^ ^^'"'^ = impliedly. In re Smith, 3' A. B. R. 95, 100 Ved.' <95 (U. L. (ja.). Compare, In re Gammon, 6 A. B. R 48' 109 Fed 312 (D C Iowa), where bankrupt turned over all his property to his' wife and claimed to be working for her for nothing. ^ 2512 OPPOSITION TO DISCHARGE. 1513 Tupt, no place being provided on the schedules for listing fraudulently conveyed property, except such as is held in trust for him; and there being ambiguity in the statute directing what he shall list, and also in the prescribed oath." In re Crist, 9 A. B. R. 1, 116 Fed. 1007 (D. C. Ala.): "He further found that it did not appear that the property was held in secret trust for the benefit of the bankrupt. * * * The conveyance, though in law fraudulent and void, is not a concealment of the property conveyed, in contemplation of § 29 (b), Bank- rupt Act." In re House, 4 A. B. R. 603, 103 Fed. 616 (D. C. N. Y.) : "What assets should the bankrupt have placed in his schedules? A claim against his wife? He could not have recovered the money, whether his gift was made in fraud of his creditors or otherwise. The cause of action for such recovery was in the creditor, and the gift could be avoided only at the instance of the creditor. As to all other persons, including the donor, the gift was valid." In re Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.): "In the absence of proof of intentional wrong in making the oath, the bankrupt failing to sched- Tile and deliver up the property for the benefit of his creditors will not bar his discharge even though the transfer to his wife may have amounted to con- structive fraud and have been void as against creditors." In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.) : "In such case the transfer would be not only in fraud of creditors, but for the purpose of con- cealing the property from her trustee in bankruptcy when appointed and her failure to schedule the property and disclose the facts might properly be held a concealment from her trustee while a bankrupt, within the true meaning of the law." In re Dauchy, 11 A. B. R. 511, 130 Fed. 532 (C. C. A. N. Y., aflirming 10 A. B. R. 527, 122 Fed. 688): "In order to establish a fraudulent concealment it must appear that the property concealed belongs to the bankrupt's estate. It must be shown that the transfer was merely a temporary expedient to place the property beyond the reach of the trustee, the title to be resumed by the bank- rupt as soon as prudence will permit. In other words, it must be proved that a secret trust exists in her favor, and that her son is under agreement, expressed or implied, to reconvey the property to her when the danger of attack by the creditors has passed." In re Countrymen, 9 A. B. R. 572, 119 Fed. 637 (D. C. lawa): !'Under these circumstances, in order to defeat the discharge, it must be clearly shown that, when the petition in bankruptcy was filed the bankrupt really owned the land or an interest therein, and this the evidence fails to show." But the precise terms of any such secret understanding need not be proved. ^*^2 Conceahnent imphes present possession or control. ^"^^ And the exercise of dominion over property is the highest indicium of actual ownership. 1^^ § 2512. And "Secret Trust" Not Requisite Where "Fraudulent Conveyance w^ithin Four Months," Ground Charged. — A secret trust 103. U. S. V. Levinson & Kornblut, 13 A. B. R. 32 (D. C. S. C). 104. In re Idzall, 2 A. B. R. 741, 96 Fed. 314 (D. C. Iowa); In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) ; inferentially. In re Dauchy, 10 A. B. R. 527 (D. C. N. Y., and 11 A. B. R. 512, 122 Fed. 691, C. C. A. N. Y.). 105. In re Semmel 9 A. B. R. 356, 118 Fed. 487 (D. C. Pa.); [1867] In re Hussman, Fed. Cas. No. 6,951. 1514 REMINGTON ON BANKRUPTCY. § 2515 need not be shown where the ground charged is a fraudulent conveyance Vv'ithin the four months preceding bankruptcy, under the amendment of 1903 ; for the fraudulent conveyance is itself, as a conveyance, a bar and not because of its "concealment."^'^^ Compare, obiter, In re Brumbaugh. 12 A. B. R. "204, 128 Fed. 97 (D. C. Penn.) : "Moreover, if there was really any fraud in the transaction it took place more than four months prior to the proceedings in bankruptcy, and it is only where there has been a fraudulent transfer of property within the period that a dis- charge is barred." This obiter in In re Brumbaugh evidently was based on the same principles enunciated in the old law of 1867 in the case In re Pierson, Fed. Case 11,153 and In re Locke, Fed. Cases 8,439. § 2513. But "Concealment" and "Fraudulent and Knowing In- lent" Provable Otherwise than by Continuing Secret Trust. — But it would hardly seem necessary to prove the existence of a continuing trust in the bankrupt's favor; if, in some other way, it is shown that the prop- erty is still recoverable, and that the bankrupt knew the property belonged to his creditors when he made oath to his schedules and omitted the same. § 2514. "Concealment" Must Be of Property "Belonging to Es- tate." — "Concealment," in order to be a bar to discharge, must be con- cealment of property "belonging to the estate. "^^^ Vernon t'. Ullman, 17 A. B. R. 438 (C. C. A. Ills.): "'The whole question' said the referee, 'turns on the question of intent.' * * * While intent is a pertinent inquiry, intent is not the sole inquiry. The substance of the oflfense is the withholding of assets; so that the true inquiry is whether, with fraudulent intent, he withheld from his schedule property belonging to his creditors. Apart from the withholding of assets, the intent constitutes no cause for de- nying a discharge; and the lists omitted, constituting no part of the prop- erty coming to the creditors, as already stated, there was no withholding of assets, and no cause- made out for a refusal of the discharge.'' § 2515. Merely Working for Another, Even without Pay, While Insolvent, No Concealment. — There can be no "concealment," suffi- cient to bar discharge, by the debtor's merely working for another, with or without pay, while insolvent, unless the proceeds of the labor are con- •cealed. Labor is not tangible property capable of being concealed ; and an insolvent debtor is under no obligation to labor for his creditors but may even give away his labor. Of course, if an actual interest in the busi- ness exists, or the debtor is actually concealing salary or wages earned, the case is different. This subject is taken up in another form in the next par- agraph. ^"^^ 106. Inferentially. In re Dauchy, 10 A. B. R. 527 (D. C. N. Y., affirmed by C. C. A., 11 A. B. R. 511). 107. Bankr. Act, § 29 (b) (l). In re Quackenbush, 4 A. B. R. 295, 102 Fed. 282 (D. C. N. Y.). See ante, § 2511, "Secret Trust, etc." 108. See labor not transferable as preference, ante, § 1280. § 2516 OPPOSITION TO DISCHARGE. 1515 § 2516. Thus, Beginning New Business as Agent for Another. — The debtor's mere starting up of a new business after his own faikire, for and in the name of his wife or some other third person, if it be not on capital belonging to himself, even though the debtor does so because cred- itors could otherwise reach the avails of his labor, is no ground for barring discharge, unless he actually is interested in the business or unless specific property, once his, or its proceeds, can be pointed out as being concealed in the new business. A man may work for his wife or for another, after his own failure, for nothing, if such other is the source of the capital invested and he himself contributes nothing but his own 4abor : there can be no fraudulent transfer of one's labor, and a man may give away his labor, though insolvent ; for creditors have no power to make him work for them. In re Fitchard, 4 A. B. R. 609, 103 Fed. 742 (D. C. N. Y.) : "Briefly stated, the case presented is that of a man who, having failed with judgments against him, transacts business thereafter in the name of his wife for the purpose of preventing his creditors from reaching the avails of his labor. There is noth- ing unusual in this situation. Thousands of insolvents, since the repeal of the Bankruptcy Act of 1867, have resorted to similar devices. One of the main objects of the present law is to emancipate this vast army of unfortunates by permitting them to emerge from a questionable and undignified seclusion and face the vicissitudes of the business world openly and honestly. The court has no difficulty in finding that the business of the bankrupt was conducted in the name of his wife for the purpose of preventing his creditors from reaching the products of his industry and skill. The title to the real estate was placed in her name for a like reason; but there is nothing in the present act which makes such conduct a ground for withholding a discharge. To prevent the discharge property belonging to the bankrupt must be fraudulently concealed from his trustee. The record does not show a case of this kind. When the bankrupt failed in 1884 his entire estate, apparently, was swept away. He was insolvent in the sum of nearly $4,000. Since then, unless the testimony is to be' rejected arbitrarily and suspicion and conjecture substituted, the bankrupt has trans- acted business for his wife, the capital being money which she borrowed and placed in his hands. He gave up everything when he failed; there is not a dollar's worth of the property which he then owned now in existence; there is nothing that the trustee can put his hand on and assert that it was once the property of the bankrupt. The property which is the subject of controversy was never owned by the bankrupt. With the exception of a few months when the title to the Seeley property stood in his name, he never held the equitable or legal title to any of it. What property did he conceal? Where is it sit- uated? In what language can the court describe it? If he owns no property it is manifest that he can conceal no property. The general facts resemble those disclosed in the case of In re McGurn, supra, and in the case of Freund (D. C), 3 Am. B. R. 418, 98 Fed. 81, where the business was transacted by the " bankrupt as the agent of his wife. A married woman may carry on business with her husband as agent, and the fact that he receives no compensation other than his support does not impair her title to the property or subject it to the claims of his creditors. Such an arrangement, considered ethically, may be a fair subject of discussion, but that it can be upheld from a legal point of view, is beyond doubt. In Abbey v. Deyo, 44 N. Y. 343, Judge Hunt, who delivered the opinion of the Court of Appeals, says, at page 346: " 'The appellant's counsel insists that the services, the time and talents of the 1516 REMINGTON ON BANKRUPTCY. § 2516 husband are valuable, and he has no more right to give them to his wife, as against his creditors, than to give to her his property to their prejudice. The one, he says, is as much their property as the other. This argument is entirely unsound. The property of a debtor, by the laws of all commercial countries, belongs to his creditors. He must be just before he is generous. He must pay before he gives. Not so with his talents and his industry. Whether he has much, or little, or nothing, his first duty is the support of his family. The instinctive impulse of every just man holds this to be the first purpose of his industry. The application of the debtor's property is rigidly directed to the payment of his debts. He cannot transport it to another country, transfer it to his friends, or conceal it from his creditors. Any or all of these things he may do with his industry. He is at liberty to transfer his person to a foreign land. He may bury his talent in the earth, or he may give it to his wife or friend. No law, ancient or modern, of which I am aware, has ever held to the contrary. No country, unless both barbarous and heathen, has ever authorized the sale of the person of a debtor for the satisfaction of his debts.' Sec also, Buckley v. Wells, 33 N. Y. 518; Knapp v. Smith, 27 N. Y. 278." "Even were it proved that the property in dispute was once owned by the bankrupt, and that years prior to the passage of the act he transferred it to his wife, such a conveyance, in the absence of proof that the property is held for the bankrupt by a secret trust, cannot bar a discharge under any of the pro- visions of the present act. Where property owned by the bankrupt is actually in existence, and is in fact concealed from the trustee, 'or where the title is concealed by a colorable conveyance, the discharge should be refused.' Where neither of these conditions exists, it should be granted. In re Murdock, 1 Low. 362, 17 Fed. Cas. 1010 (No. 9,939); In re Boyntown (D. C), 10 Fed. 277. "Counsel for the creditors relies upon the Quackenbush Case (D. C), 4 Am. B. R. 274, 102 Fed. 282; but the case at bar lacks the essential element which there induced the court to refuse the discharge. In the Qtiackenbush Case the referee found that the bankrupt had in his possession and under his control property, in specie, which had been transferred by him to his wife without con- sideration, by a mere legal fiction, to prevent his creditors from reaching it. But for this fraudulent title the trustee could lay his hands upon and divide among the creditors the identical property once owned by the bankrupt. In other words, it was the property of the bankrupt which he had attempted to hide by a veil so transparent that the failure was visible to the most unobserv- ing. All these ingredients are lacking in the case at bar. There is no property which can be said to belong to the bankrupt, there is no concealment and no fraud. "The report of the referee is confirmed, the exceptions are overruled and the discharge is granted." In re Adams, 4 A. B. R. 698, 104 Fed. 72 (D. C. N. Y.) : "Starting with the proposition, which cannot be cotroverted, that the assignment was and is a valid instrument vesting the title in Eldred to all the property, there is little difficulty in discovering the fallacy of the arguments in opposition to the dis- charge. They all rest upon the unsupported assumption that the assignment was a fraudulent device intended to create a secret resulting trust in favor of the bankrupt. Since the assignment the bankrupt has been endeavoring to support himself and family and has transacted business as agent for his dauo-hters a makeshift not infrequently resorted to by insolvent debtors who seek to ex- empt their future earnings from the grasp of creditors. His action in this re- gard may be the subject of criticism, but that it was not illegal has been as- serted by the highest judicial authority. Abbey v. Deyo, 44 N. Y. 343 and § 2519 OPPOSITION TO DISCHARGE. I5l7 cases cited. Surely it did not amount to a fraudulent concealment of his prop- erty. "The assignee leased to one of the bankrupt's daughters a hop yard, which was part of the assigned property, and she realized about $800 from its culti- vation. That was in 1892. About the same time a small lumber business was organized under the name of the Adams Lumber Company. The bankrupt's daughters were the partners in this enterprise. They furnished the capital, but took no active part in the business, which was managed by the bankrupt, who contributed his experience, labor and skill. The business was at no time re- munerative, and there is nothing to show that anyone connected with it was able to save any of the profits received therefrom. Certainly there is no proof that the bankrupt has property, derived from the hop yard or the lumber company, which he has hidden from his trustee." § 2517. Exact Value of Assets Concealed Need Not Be Capable of Ascertainment, if of Value. — The exact value of the assets concealed need not be capable of ascertainment, and, indeed, may be contingent, yet if the assets have value, it is sufficient. ^*^^ § 2518. Even if of Small Value, Intentional Concealment Will Bar. — But if the fraudulent intent to conceal is proved, the discharge should be refused, even though the value of the assets may be small. ^^" Of course, the fact that the assets concealed were of trifling value is competent evidence tending to disprove fraudulent intent. ^^^ § 2519. Failure of Creditors to Institute Legal Proceedings to Recover Concealed Property Tends to Rebut. — In doubtful cases the failure of the creditors to resort to legal proceedings to recover the prop- erty alleged to be concealed is of weight in determining concealment. In re Hirsch, 2 A. B. R. 723, 96 Fed. 468 (D. C. Tenn.) : "It is undoubtedly true that the right of the creditors to specify an alleged fraudulent transaction in opposition to a discharge does not depend upon their having taken any legal proceedings, through a trustee or otherwise, to recover the property itself, and, if it appears by the proof that there has been a fraudulent transaction denounced by the statute as a sufficient ground for withholding the discharge, that fact should have no influence whatever; but when the case is doubtful or incon- clusive, the fact that the creditors have not proceeded for the substantial benefit of recovering the property is quite suggestive to the court trying the issue of the discharge that the creditors themselves do not deem the proof of fraud very strong. "The machinery of the bankruptcy statute is designed to furnish creditors 109. In re Becker, 5 -A. B. R. 438, 106 Fed. 54 (D. C. X. Y.), which was the case of a tontine policy payable to the bankrupt only in the event of his sur- viving the tontine period. In re Schlesinger, 3 A. B. R. 342, 102 Fed. 117 (D. C. X. Y., affirmed by C. C. A., 4 A. B. R. 361). 110. In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. X. Y.). 111. In re Hirsch. 2 A. B. R. 715. 96 Fed. 468 (D. C. Tenn.). 1518 REMINGTON ON BANKRUPTCY. § 2521 with every opportunity to recover the fraudulently concealed property of a bankrupt, and, where they do not resort to that method of redress, they do nut stand in the same attitude in opposition to the discharge that they otherwise would. In an evenly balanced condition of the proof, it is a fact which should turn the scales in favor of the bankrupt's discharge, upon the ground that the creditors themselves had been either not very diligent about the proof, or else re- garded it as not very formidable, as, indeed, it appears here not to be." In re Adams, 4 A. B. R. 698, 104 Fed. 72 (D. C. N. Y.) : "He can be called to answer for his stewardship in the courts of the State. The fact that he has not been asked to account furnishes a strong presumption that the creditors have no valid ground of complaint." § 2520. Amendment of Schedules after Discovery of Concealed Assets, of No Avail.— Amendment of the schedules after discovery of assets omitted therefrom for the purpose of conceahiient from creditors, will not avail the bankrupt.^i- Analogously ("false oath" charged), In re^ Eaton, 6 A. B. 531, 110 Fed. 731 (D. C. N. Y.): "The filing of the amended schedule, giving a full statement of the property in question, and offering to deliver the certificates of stock to the trustee, is evidence tending to show the absence of an unlawful intent, but it is by no means a conclusive answer to the objections. A ruling that a bankrupt may verify false schedules and, upon discovery, avoid the consequences of his act by an amendment, is contrary to the spirit of the law, which aims to relieve honest debtors only. If the law were so construed, a bankrupt runs no risk in making a fraudulent return of his property supported by a false oath, for, if undiscovered, he secures the fruits of his wrongdoing, and, if detected, he can still obtain his discharge by amending his schedules so as to contain the infor- mation which the creditors have unearthed in spite of his efforts at concealment. "On the other hand, omissions frequently occur inadvertantly, and a prompt acknowledgment of the mistake, accompanied by a return of the property, are circumstances tending to show good faith." In re Gross, 5 A. B. R. 271 (Ref. N. Y.) : "The courts are extremely liberal in permitting amendments in cases of mistake or accident; but here we have deliberation and premeditation, and forbearance or clemency should not be ex- tended or the law strained to aid and favor such a bankrupt, whose bus'ness career is tainted, and whose conduct towards his creditors has not been formu- lated on t\\e lines of honest fair dealing. In re McNamara, 2 Am. B. R. 566; In re Welch, 3 Am. B. R. 93; In re Lewin, 4 Am. B. R. 636." § 2521. Instances Held Sufficient to Bar Discharge for Conceal- ment of Assets. — In the footnotes are given instances that have been held sufficient, under the present Bankruptcy Act, to bar discharge on the ground of concealment of assets. ^^^ 112. In re Breiner, 11 A. B. R. 684, 129 Fed. 155 (D. C. Iowa). 113. 1. Disbursements to relatives on the eve of insolvencv upon alleged debts, when previous statements of financial condition, made with view to ob- taining credit, show, no debts to them during period when the debts are now alleged to have been in existence, there being no memorandum thereof in the usual course of trade made by the bankrupt, held to be a concealment of assets § 2522 OPPOSITION TO DISCHARGE. 1519 § 2^22. Instances Held Insufficient to Prove Fraudulent Conceal- ment. — In the footnotes are given instances that have been held, under and a bar to discharge, In re Greenberg, 8 A. B. R. 94, 114 Fed. 773 (D. C. Conn.). 2. Alleged debts to relatives not mentioned in previous financial statements: In re Grossman, 6 A. B. R. 510, 111 Fed. 507 (D. C. Mich.). 3. Failure to schedule property that might have been claimed as exempt, In re Royal, 7 A. B. R. 106, 112 Fed. 135 (D. C. N. Car.). 4. Failure to schedule interest in father's estate -vested in bankrupt before adjudication. In re Roosa, 9 A. B. R. 531, 119 Fed. 542 (D. C. Iowa). 5. Turning bulk of proceeds of cargo of goods (sold at wholesale immediately on receipt) over to one who is not a business creditor, on an alleged debt, where no. entry of the original debt appears on the bankrupt's books, nor entry of the check on his stub book, and the alleged creditor is not called in cor- roboration, sufficiently proves concealment of assets, In re Holstein, 8 A. B. R. 147, 114 Fed. 794 (D. C. Conn.). 6. Omitting property of value from schedules although advised not to omit property of value; and at the same time including property of no value, is, unless explained, conclusive upon the issue of fraud against the bankrupt, Osborne v. Perkins, 7 A. B. R. 250, 112 Fed. 127 (C. C. A. Mass.). 7. Bankrupt's evident unwillingness to explain the disposition of property shown to be in his possession a short time before the filing of his bankruptcy petition, where such explanation must have been within the memory of an intelligent man, warrants the inference of concealment of assets and justifies the refusal of discharge, In re Cabus, 6 A. B. R. 156 (D. C. N. Y.). 8. Illiterate bankrupt swearing to schedules that he has no assets except those exempt, when it is clearly deducible from a comparison of his purchases and sales, from his statements to mercantile agencies, etc., that he still possesses other assets. 9. Ostensible corporation but in reality bankrupt's own device for defrauding his creditors by crafty manipulation of stock, etc.. In re Wertheimer, 6 A. B. R. 756 (D. C. N. Y.). 10. Transfer of business and all other property to wife, on litigation being threatened, and ostensible employment by her thereafter on an annual salary of $2500, but the business to all appearance continued in the same manner and in the bankrupt's name, the bankrupt keeping an individual checking account and paying taxes, etc., therefrom; but keeping no books; held to be a continuing concealment, In re Bemis. 5 A. B. R. 36, 104 Fed. 672 (D. C. N. Y.). 11. Property put into wife's name with retention of beneficial interest, In re Steindler & Hahn, 5 A. B. R. 63 (D. C. N. Y.). 12. Managing as wife's agent business formerly owned by bankrupt himself and transferred to her while threatened with enforcement of large judgment, In re Welch, 3 A. B. R. 93, 100 Fed. 65 (D. C. Ohio, distinguished in In re Locks, 5 A. B. R. 136, 104 Fed. 783, D. C. N. Y.) ; analogously (false oath). In re Gammon, 6 A. B. R. 482, 109 Fed. 312 (D. C. Iowa). 13. Mortgaging stock to a relative who immediately forecloses; stock bought in by a stranger, who immediately transfers his bid to the bankrupt's friend, who in turn sells to wife, the purchaser handing the money directly to the wife who in turn pays the officer making the sale. In re Smith, 3 A. B. R. 95, 100 Fed. 795 (D. C. Ga., distinguished In re Locks, 5 A. B. R. 136, D. C. X. Y.). 14. Doing business in wife's name, books, etc., missing, In re Gross, 5 A. B. R. 271 (D. C. N. Y.)._ 15. Doing fine business for many years after a previous failure but claiming to be doing so as manager of firm composed of wife and brother, wife knowing little about the business, debtor drawing no salary but drawing whatever he wanted from time to time; failure to schedule an interest in the business is concealment of assets. In re Herrman, 13 A. B. R. 778 (C. C. A. N. Y.). 16. Failing to schedule tontine policy pavable to bankrupt if he outlive ton- tine period. In re Becker, 5 A. B. R. 438, 106 Fed. 54 (D. C. N. Y.). 17. Fraudulently, and in contemplation of bankruptcy, so intermingling his funds with his wife's funds as to render them indistinguishable, doing so to keep his creditors from "jumping on them," Bragassa v. St. Louis Cycle Co., 5 1520 REMINGTON ON BANKRUPTCY. § 2522 the present law, insufficient to prove fraudulent concealment of assets.^i* A. B. R. 700, 107 Fed. 77 (C. C. A. Tex., affirming In re Bragassa, 4 A. B. R. 519 103 Fed 936). 18. Pretending to do business as wife's manager or agent and faihng to schedule the business, In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y., since appointed district judge). 19. Failure to account reasonablj- for disappearance of assets, In re O ^''^> 3 A B. R. 349, 97 Fed. 952 (D. C. Ore.); In re Cashman, 4 A. B. R. 326, 103 Fed. 67 (D. C. N. Y.). 1 ■ , • r 20 Failure to schedule vested remainder and denial of ownership, being ot- fered, In re Wood, 3 A. B. R. 572. 98 Fed. 972 (D. C. N. Y.). 21. Conveying property to wife in fraud of creditors and omitting same from schedules, In re Skinner, 3 A. B. R. 163, 97 Fed. 190 (D. C. Iowa). 22. Selling goods worth $11,000 for $3,800 and a store worth $6,000 for $1,000, etc, indicate dishonest intentions: mutilated accounts: conveyances to relatives, etc.. In re ^lendelson, 4 A. B. R. 103, 102 Fed. 119 (D. C. N. Y.). 23. Chattel mortgage to sister on bankrupt's effects for a fictitious loan. In re Heyman, 4 A. B. R. 735, 104 Fed. 677 (D. C. X. Y.). 24. Alleged robbery, as means of accounting for discrepancy of assets. In re Hershkowitz, 14 A. B. R. 86, 136 Fed. 950 (D. C. N. Y.). 25. Collusion between trustee and bankrupt as to receipt of money by bank- rupt after adjudication, and its being turned over to the trustee, In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.). 26. In re Schenck. 8 A. B. R. 727, 116 Fed. 554 (D. C. Wash.). 27. In re Otto, 8 A. B. R. 305, 115 Fed. 860 (D. C. X. J., affirming 8 A. B. R. 753). 28. Failure to schedule fraudulently conveyed property. In re Toothaker Bros., 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.). 114. 1. "Where the record is barren of competent evidence that $100,000.00 alleged to have been concealed, ever existed, discharge will not be refused." In this case the proof was conclusive that the bankrupt had reported assets of $153,000 to Dun's Agency but court held conclusive proof of this fact was not proof that he had the assets. In re Lesser, 8 A. B. R. 15, 114 Fed. 83 (C. C. A. X. Y., reversing In re Lesser, 5 A. B. R. 330). 2. Claiming as exempt in Schedule "B" (5) property wholly omitted (and with notation of "none") from its appropriate schedule, not per se concealment, In re Semmel, 9 A. B. R. 351, 118 Fed. 487 (D. C. Pa.). 3. Failure to schedule interest as beneficiary in life insurance policy pledged to the amount of its paid up value, attorney advising it to be worthless as asset. In re Blalock, 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C). 4. Unexplained shrinkage in the bankrupt's assets of about $12,000 within a 3'ear of his bankruptcy is insufficient proof that he had that amount of money at the time of filing his petition and concealed it from his creditors. In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. X. Y.). 5. Sale of real estate for $5,000: claimed to be worth now $9,000: but pur- chaser put improvements upon it: also conflicting testimony as to present value: one witness testifying it is only worth now $6,000 with all improvements, In re Harris, 11 A. B. R. 649 (Ref. X. Y.). 6. Fraudulent intent and knowledge not shown. Smith t'. Keegan, 7 A. B. R. 4, 111 Fed. 157 (C. C. A. Mass.); In re Schofield, 17 A. B. R. 910, 15 A. B. R. 824 (D. C. Pa.). 7. Transfers complained of all occurring more than a year before bankruptcy, at a time when no present debts existed; all being on record and freely testi- fied to by bankrupt. Fields v. Karter, 8 A. B. R. 351, 115 Fed. 950 (C. C. A. Ala.). 8. Xo claim inserted in schedules for wages of bankrupt for services per- formed for his father on the farm, the bankrupt being sole heir and no agree- ment for wages existing; In re Howden, 7 A. B. R. 191, 111 Fed. 723 (D. C. N. Y.). This case, however, was decided as to the charge of a "false oath." 9. Conveying property to wife for full consideration, more than four months before bankruptcy, to raise money for the expenses of an impending law suit for breach of promise to marry, is no ground for denying discharge, In re Brum- baugh, 12 A. B. R. 204 (D. C. Penn.). 10. Fact that bankrupt, an only child and his wife resided upon his father's g 2523 OPPOSITION TO DISCHARGE. 1521 SUBDIVISION "b." "False; Oath" as Bar to Discharge;. § 2523. "False Oath" as Bar to Discharge. — If a bankrupt, know- real estate is not sufiBcient to bar his discharge, it not appearing that the bank- rupt made a clear misstatement with regard to the ownership of the real estate amounting to a concealment of assets or false oath, In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Penn.). 11. Shortage in value of stock largely due to loose and careless business methods and to a fire, necessitating fire loss sale below cost, held insufficient to sustain charge of concealment, the bankrupt denying concealment, In re Allen- dorf, 12 A. B. R. .320, 129 Fed. 981 (D. C. Iowa). 12. Equity in pledged stock not scheduled; nine shares of stock retained by lender of money, on organization of new company, as security for the money loaned; bankrupt reports merely the remaining one share as owned by him, In re Conn, 6 A. B. R. 217, 108 Fed. 525 (D. C. Oregon). 13. The payment of a bona fide debt is not a concealment of assets. In re Covington, 6 A. B. R. 373, 110 Fed. 143 (D. C. N. Car.). 14. Discovery of microscopic germs of dishonesty to some creditors in mak- ing payment of debts is not sufficient ground to bar discharge. In re Covington, 6 A. B. R. 373, 110 Fed. 143 (D. C. N. Car.). 15. Failure to schedule property fraudulently conveyed many years before, no ground for barring discharge. In re Goodale, 6 A. B. R. 493, 100 Fed. 65 (D. C. N. Y.), the property being conveyed to wife in 1863 and 1875; In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.), in which case a desk was given away while the debtor was insolvent but before the passage of the Bankrupt Act. 16. Failure to schedule products of wife's separate property in Vermont, where the law of that state is that such products belong to the husband by vir- tue of his marital rights, he openly declaring all the time that the products are his wife's own, In re Marsh, 6 A. B. R. 537 (D. C. Vt.). 17. Undervaluing of property claimed as exempt is not per se concealment of it. In re Semmel, 9 A. B. R. 352, 118 Fed. 487 (D. C. Pa.). 18. Transfer to wife within four months, she being a creditor. In re Brown, 15 A. B. R. 350, 140 Fed. 383 (D. C. Vt.). 19. Concealment of assets by the agent or manager in charge of the bank- rupt's business is not imputable to the bankrupt unless personally cognizant thereof. In re Meyers, 5 A. B. R. 4, 105 Fed. 353 (D. C. N. Y.). 20. Failure to schedule chose in action for wrongful death where bankrupt is beneficiary and settlement has been made for $200 and where wife has lien thereon for funeral expenses advanced, In re Burnstine, 12 A. B. R. 59G, 131 Fed. 828 (D. C. Mich.). 21. Alleged purchase in wife's name with bankrupt's money, not sustained, In re Tillyer, 17 A. B. R. 125 (D. C. Pa.). 22. Discrepancy between statement of financial condition prior to bankruptcy and in schedules, and as realized b}^ trustee: evidence insufficient to show con- cealment, In re Boyden, 13 A. B. R. 269, 132 Fed. 991 (D. C. Pa.). 23. Failure, under advice of counsel, to schedule watch and chain worn openly on person. In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.). 24. Failure to schedule 'business owned by wife, and given her by another than her husband but "managed" by bankrupt. In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.); In re Freund, 3 A. B. R. 418, 98 Fed. 81 (D. C. N. Y.). 25. Failure to schedule articles of small value given away long before the passage of the Bankrupt Act although probably recoverable by trustee because given when debtor insolvent, In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.). 26. Business of bankrupt levied on and sold under execution and also under mortgage bought in by judgment creditor and mortgagee for fair price, who employ bankrupt to manage it as agent and subsequently sell it for a fair price to bankrupt's wife* is not sufficient proof of continued ownership in bankrupt, 2 Rem B— 21 1522 REMINGTON ON BANKRUPTCY. § 2523 ingly and fraudulently, makes a false oath or account in, or in reta- in absence of showing wife paid for it with husband's funds, In re Locks, 5 A. B. R. 136, 104 Fed. 783 (D. C. N. Y.). 27. Failure to schedule part of month's salary as public officer earned but not due is not a bar, such salary not passing to creditors in Connecticut, In re Doherty, 13 A. B. R. 5.51, 135 Fed. 433 (D. C. Conn.). 28. Failure to schedule certain lands of which bankrupt had been dispos- sessed by order of the Government Land Office, the order being reversed after his discharge, is not concealment, especially in view of his having notified his counsel and the trustee as well of his rights. In re Hansen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.). 29. Failure to schedule conditional and personal right of purchase is not concealment: such right is not an asset of the estate, In re Hansen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.). 30. Failure to schedule interest under a will where counsel advised it wa.s contingent and not vested and question is a close one, will not bar discharge, actual fraudulent intent being absent. Woods zk Little, 13 A. B. R. 742, 134 Fed. 229 (C. C. A. Penn.). 31. Withholding from trustee monev earned since adjudication is not a bar, In re Polakoff, 1 A. B. R. 358 (Master's Report, affirmed by D. C. N. Y.). 32. Failure to schedule property transferred to mother on eve of bankruptcy under advice of counsel, the mother already holding a mortgage thereon and the equitjr of redemption "being of uncertain value, In re Schreck, 1 A. B. R. 366 (Master's Report N. Y.). 33. Failure to disclose property bought with proceeds of surrender of life insurance policy where the life insurance policy was payable to wife is not a concealment, for the property was the wife's and not the bankrupt's. In re Dews, 2 A. B. R. 483, 96 Fed. 181 (D. C. R. I.). 34. Failure to schedule property fraudulently conveyed to wife where no secret trust is shown to have continued in bankrupt. In re Berner, 4 A. B. R. 383 (Ref. Ohio); In re Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.). See ante, § 2511. 35. Failure to schedule property — equity of redemption — alleged fraudulently transferred to sons but no secret trust appearing, In re Jacobs, 16 A. B. R. 483, 144 Fed. 868 (D. C. N. J.). 36. Failure to schedule property under honest belief that it does not belong to the bankrupt, is insufficient to bar discharge, In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.). 37. Failure to schedule property under honest belief that it was practically valueless. In re Hirsch, 2 A. B. R'. 715, 96 Fed. 468 (D. C. Tenn.); In re Blalock, 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C), in which the property involved was an interest as beneficiary in a life insurance policy. 38. Failure to schedule property under honest mistake of law and fact. In re Morrow, 3 A. B. R. 263, 97 Fed. 574 (D. C. Calif.). 39. Denial of interest in business alleged to belong to wife in which bankrupts claim to be mere employees, no actual interest being traceable to bankrupts, In re Hirsch, 3 A. B. R. 344, 97 Fed. 571 (D. C. N. Y.). 40. Failure to schedule lease of house wherein bankrupt resides where the lease is for one year and is not shown to be worth more than its rent, is not sufficient to bar discharge. In re Hirsch, 3 A. B. R. 344, 97 Fed. 571 (D. C. N. Y.). 41. Failure of attorney at law to schedule written contracts for contingent fees where some of the cases are on the court calendar and some are not, so,me are tried and some are on appeal, is not a bar. In re IMcAdam, 3 A. B. R. 417, 9S Fed. 409 (D. C. N. Y.). But it would hardly seem that all of the cases would come under the rule that uncompleted contracts for personal services are not assets passing to the trustee. Certainly the fees on cases that were already tried and not appealed from would not come under the rule, In re Freund, 3 A. E. R. 418, 98 Fed. 81 (D. C. N. Y.). 42. Acting under power of attorney as manager for wife of a business formerly owned by the bankrupt himself but on his previous failure conveyed by formal bill of sale to his wife in satisfaction of a debt owed by the bankrupt to his brother, the testimony uncontradicted, In re Freund, 3 A. B. R 418 98 Fed 81 (D. C. N. Y.). 43. Omission from schedules of furniture bought for wife many years ago and § 2526 OPPOSITION TO DISCHARGE. 1523 tion to, any proceeding in bankruptcy his discharge will be refused. ^^^ In re Troeder, 17 A. B. R. 731, 150 Fed. 710 (C. C. A. Mass.): "* * * and according to the practical construction of the Statute it is settled that the al- leged false oath must contain all the elements involved in perjury at common law, namely an intentional untruth in a matter material to an issue which is itself material." § 2524. Must Be False Oath or False Account. — There must have been a false oath or a false accoinit made by the bankrupt. i^''' § 2525. Oath Must Be Authorized by Statute and Administered by One Authorized. — And the oath must have been authorized by stat- ute, and have been administered by one authorized to administer oaths. i^''' § 2526. Sufficient if Administered Either before Testifying or Afterwards. — It is sufficient if the bankrupt were sworn either before he began his testimony or afterwards when about to sign it.^^^ presumably intended as a gift to her. In re Freund, 3 A. B. R. 418, 98 Fed. 81 (D. C. N. Y.). 44. Alleged transfer of stock to wife in payment of a debt shortly before bankruptcy the good faith of the debt not being questioned, In re DeLeeuw, 3 A. B. R. 418, 98 Fed. 408 (D. C. N. Y.). 45. Wastefulness before failure, three years before bankruptcy, In re Phillips, 3 A. B. R. 542, 98 Fed. 844 (D. C. N. Y.). 46. Failure to schedule interest in father's estate where such interest by the will was left dependent upon the exercise of a power of appointment in the mothQr, In re Wetmore, 3 A. B. R. 700, 99 Fed. 703 (D. C. Pa.). 47. Managing business and property transferred to wife eleven years before the passage of the Bankruptcy Act, as wife's agent, the same opposing creditor having formerly bee'n defeated in an attempt to have the conveyance declared fraudulent, In re McGurn, 4 A. B. R. 459, 102 Fed. 743 (D. C. Nev.). 48. Doing business as agent or manager for wife or other relative, the debtor contributing his services — without salary or other compensation than his living, having previously failed and lost everything, no part of the capital of the present business being his assets, labor alone having been contributed to the business, In re Fitchard, 4 A. B. R. 609, 103 Fed. 742 (D. C. N. Y.) ; In re Adams, 4 A. B. R. 696, 104 Fed. 72 (D. C. N. Y.). 49. Omission to schedule insurance policies pledged for more than their value, In re Adams, 4 A. B. R. 696, 104 Fed. 72 (D. C. N. Y.). 50. Failure to schedule or to surrender homestead awarded as alimony to bank- rupt wife after adjudication, is not a concealment of assets. In re LeClaire, 10 A. B. R. 733, 124 Fed. 654 (D. C. Iowa). 51. Failure to account for profits under contracts taken after adjudication. In re Parish, 10 A. B. R. 548, 122 Fed. 553 (D. C. Iowa). 52. Property concealed from former assignee or receiver to whom title to all property of the bankrupt had previously been conveyed does not constitute con- cealment from the subsequent trustee in bankruptcy, In re H. D. Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) ; obiter. In re Lesser, 8 A. B. R. 15, 114 Fed. 83 (C. C. A. N. Y., disapproving 5 A. B. R. 330). 115. Bankr. Act, §§ 14 (b) and 29 (b) (2). 116. U. S. V. Wechsler, 16 A. B. R. 4 (D. C. N. Y., reversed, on other grounds, sub nom. Wechsler v. U. S., 19 A. B. R. 1, C. C. A.). 117. U. S. V. Wechsler, 16 A. B. R. 4 (D. C. N. Y., reversed, on other grounds, sub nom. Wechsler v. U. S., 19 A. B. R. 1, C. C. A.). 118. U. S. V. Wechsler, 16 A. B. R. 4 (D. C. N. Y, reversed, on other grounds, sub nom. Wechsler v. U. S., 19 A. B. R. 1, C. C. A.). 1524 REMINGTON ON BANKRUPTCY. § 2530 § 2527. Must Be in or in Relation to Bankruptcy Proceedings.— The false oath or account must have been in or in relation to his bank- ruptcy proceedings; but it is sufficient to bar discharge if it were made in or in relation to any bankruptcy proceedings. Thus, a false oath upon the hearing upon the petition for adjudication in involuntary bankruptcy, is sufficient to bar.^i'' But verification of an untrue answer to the petition has been held not to constitue such a false oath where the answer was not filed in time nor considered. ^^o False testimony given on the discharge hearing would be a bar ;i2i the only difficulty being that where the false oath was not given until after the specifications were filed, it would have to be brought into the specifications by supplemental pleading, which course might be open to objection. How- ever, it is to be considered that the bankrupt, after entry of appearance in opposition to discharge and pending the ten days for the filing of specifica- tions thereon, might be examined, for he is required to attend the hearing upon his petition for discharge for precisely such purpose. A false oath then committed doubtless could be incorporated in the specifications sub- sequently filed. § 2528. "False Oaths" in Poverty Affidavits.— Probably the false oath meant by the act would only cover cases in their nature such as 'to affect creditors' rights ; therefore, mere false poverty affidavits to avoid prepayment of filing fees would probably not be a bar to discharge. One of the cases on the subject, however, avoided the point by holding the pov- erty affidavit was not false even though the bankrupt might have paid the filing fees out of his exempt property or have borrowed them from lriends.^22 In another case, however, the bankrupt actually had $37.50 in cash, nevertheless he not only made a poverty affidavit but also alleged in his schedules he had "no cash," for which false oath discharge was refused. ^^s § 2529. "False Oath" in Hearing upon Petition for Adjudication. — A "false oath" may be committed by false swearing upon the hearing on the petition for adjudication of bankruptcy. ^-^ But the verification of an vmtrue answer was held not to constitute a false oath where the answer was not filed in time nor considered. ^--^ § 2530. If Not in, nor in Relation to His Own Bankruptcy Pro- ceedings, No Bar. — The commission of a false oath or account in an- 119. Tn re Luftig, 15 A. B. R. 773 (D. C. :\Iass.). 120. In re Young. 15 A. B. R. 477, 140 Fed. 728 (D. C. N. Car.). 121. Edelstein r. U. S., 17 A. B. R. 656 (C. C. A. Minn.). 122. Sellers v. Bell, 2 A. B. R. 529, 94 Fed. 801 (C. C. A. Ala.). 123. In re Roy, 3 A. B. R. 37, 96 Fed. 400 (D. C. Vt.). 124. Instance, In re Luftig, 15 A. B. R. 778 (D. C. Mass.). 125. In re Young, 15 A. B. R. 477, 140 Fed. 728 (D. C. N. C). § 2531 " OPPOSITIOX TO DISCHARGE. 1525 other court, or in relation to another's bankruptcy, is not sufficient to bar discharge. Thus, where, upon objections to discharge, the stenographer's notes of the bankrupt's former testimony at a creditors' meeting in the common pleas court in 1889 under the Pennsylvania Insolvency Act were intro- duced by stipulation between counsel, "to have the same force and effect as if the said testimony was originally taken before the referee in this proceeding," the court held, that statements contained in such notes could not be used to base a charge of false oath under § 29, because the bank- lupt took no oath before the referee that his former testimony was true, and he cannot be bound by his counsel's stipulation so far as to base a prosecution for perjury against him.^^s Likewise, a false oath made by the bankrupt in another bankruptcy proceedings than his own, is not ground for refusing discharge.^-' § 2531. Whether False Oath in Own Previous Bankruptcy Pro- ceeding's, Bar. — It is a question whether the bankrupt's false oath in a former bankruptcy proceedings of his own, is sufficient. One case sug- gests that perhaps it must have been committed in the very bankruptcy proceedings then pending, and that a false oath in a former proceedings vrill not bar. Compare, quaere, obiter, In re Feigenbaum, 9 A. B. R. 597, 121 Fed. 69 ^^ But that the property involved could not be recovered for creditors, or might have been claimed as exempt (if such rights were known to the bankrupt), or was of little value, is entitled to weight in determining whether the false oath was with fraudulent intent. ^-"-^ § 2540. False Testimony on "General Examination," "False Oath." — False testimony of the bankrupt taken on his general examina- tion constitutes a "false oath" and may be proved against him in bar of his discharge ;^3o although the examination itself may not be introduced against him in any criminal prosecution. ^^^ But false testimony of the bankrupt before a state court, introduced in bankruptcy proceedings under stipulation of counsel that it should be considered to be his testimony, but not sworn to by the bankrupt in the bankruptcy proceedings, is not a false oath barring discharge. ^^^ § 2541. Swearing to Schedules Containing Misstatements or Omissions, "False Oath." — A "false oath" may be perpetrated by mak- ing oath to schedufes from which material omissions or misstatements have been made, knowingly and fraudulently. ^^^ 134. In re Royal, 7 A. B. R. 106, 112 Fed. 135 (D. C. N. Car.). Compare, analogously as to concealment of assets, ante, § 2493. 135. In re Todd, 7 A. B. R. 770, 113 Fed. 315 (D. C. Vt.) ; In re Hirscli, 3 A. B. R. 344, 96 Fed. 468 (D. C. N. Y.). 136. Wechsler v. U. S., 19 A. B. R. 1 (C. C. A. N. Y., affirming, on this point, though reversing on other, U. S. v. Wechsler, 16 A. B. R. l) ; U. S. v. Wechsler, 16 A. B. R. 1 (b. C. N. Y., reversed, on other grounds, sub nom. Wechsler v. U. S., 19 A. B. R. 1, C. C. A.). Instances: (As to doing business in wife's name), In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.) ; held insufficient to prove "false oath," Bauman V. Feist, 5 A. B. R. 703, 107 Fed. 83 (C. C. A. Iowa); instance, held insufficient. In re Cohen, 18 A. B. R. 84 (D. C. N. Y.). 137. In re Dow, 5 A. B. R. 400 (D. C. Iowa); inferentially, and obiter. Ban- man z'. Feist, 5 A. B. R. 703, 107_ Fed. 83 (C. C. A. Iowa). Also see, under gen- eral subject of "Bankrupt's Testimony," ante, § 1556, et seq. 138. In re Goldsmith, 4 A. B. R. 234, 101 Fed. 570 (D. C. Pa.). 139. The following are some instances of omissions and misstatements in schedules where the proof has been held sufficient to constitute a "false oath" barring discharge: 1. Interest in land not scheduled, under the excuse that no real interest was conveyed, although the bankrupt had acted and received the benefits like a real owner and had even succeeded in borrowing money on it and had warranted title thereto in so doing. In re Gailey, 11 A. B. R. 539, 127 Fed. 538 (C. C. A. Ills.): "A voluntary bankrupt is required by § 7a (8) to prepare, make oath to, and file with his petition 'a schedule of his property, showing the amount and kind ofr property, the location thereof, its money value in detail, and a list of his creditors, showing, their residences, if known, if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any.' The plain purpose of the law is that one seeking the benefit of a discharge under the act shall turn over to his creditors all his property of every kind and nature, except such as is exempt by law. This is the condition of a discharge from debt. The bankrupt must also give a sworn list of creditors, with the nature and amount of the debt due each, and the particulars of any security held by them. The form of the schedules of property prepared by the Supreme Court, and to be annexed to the petition, covers prop- § 2541 OPPOSITIOX TO DISCHARGE. 1529 In re Eaton, 6 A. B. R. 531, 110 Fed. 731 (D. C. N. Y.) : "There can be no doubt that the verification of schedules from which valuable property has been erty in reversion, remainder or expectancy, including property held in trust for the debtor, or subject to any power or right to dispose of or to charge includ- ing a particular statement of property which had been conveyed for the benefit of creditors. The court, supplementing the provisions of the act, has been care- ful to require that every interest in land held bj^ the debtor and every security held by the creditor shall be stated, to the end that the entire property of the debtor, save such as is exempt by law, shall be subjected to the payment of debts; and that the status of each creditor with respect to his claim shall be exhibited, that there may be an equal and just disposition of the estate. These provisions are not merely formal. They are of the essence of the law, in pre- vention of fraud, and in aid of equitable division of the estate. The making of a false oath or account in, or in relation to any proceeding in, bankruptcy, is punishable b}' imprisonment, and is sufficient cause for the refusal of discharge from the indebtedness. It was well observed by Brown, district judge, In '"e Baudouine (D. C), 3 Am. B. R. 55, 90 Fed. 536, 539, 'that a discharge in bank- ruptcy upon any other condition than the complete appropriation of every known asset legally available to creditors would be not only a glaring wrong to creditors, but contrary to every conception of a just system of bankruptcy.' '"' 2. Schedules of assets as to "Cash on hand" alleging "None" the bankrupt actually having $37.50 cash, In re Roy, 3 A. B. R. 37, 96 Fed. 400 (D. C. Vt.). 3. Omitting moneys in bank from schedules, In re Otto, 8 A. B. R. 753, 115 Fed. 860 (Ref. N. J., affirmed in 8 A. B. R. 305); In re Royal, 7 A. B. R. 106, 112 Fed. 135 (D. C. N. Car.). Although claimable as exempt, In re Royal, 7 A. B. R. 106, 112 Fed. 135 (D. C. N. Car.). 4. Omitting payments to attorneys. In re Lewin, 4 A. B. R. 636, 103 Fed. 852 (D. C. Vt.). p. Omitting devise from grandfather. In re Breiner, 11 A. B. R. 684, 129 Fed. 155 (D. C. Iowa). 6. Omitting property fraudulently conveyed by way of .voluntary gift to wife more than four months before bankruptcy. In re Toothaker Bros., 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.); In re Gammon, 6 A. B. R. 482, 109 Fed. 312 (D. C. Iowa). 7. Unexplained shrinkage of assets: Debts to relatives omitted from finan- cial statements to mercantile agencies: Large purchases but nothing paid thereon. Illiterate bankrupt swearing in his schedules that he has no property except such as is exempt, whereas comparison of purchases and sales and moneys paid on purchases demonstrates presence of large assets: shrinkage un- satisfactorily explained: debts to relatives now alleged not shown in former financial statements to mercantile agency: chattel mortgage to raise money to pay creditors, but creditors not paid. In re Grossman, 6 A. B. R. 510, 111 Fed. 507 (D. C. Mich.). 8. Swearing "None" as to "Stock in Incorporated Companies" but neverthe- less claiming 5 shares as exempt, and in reality having 10 shares. In re Semmel. 9 A. B. R. 351, 118 Fed. 487 (D. C. Pa.). 9. Swearing he does not know whereabouts of books of account when had previously to passage of the Bankruptcy Act, sent the books to a creditor with declaration he would swear he did not know their whereabouts if examined i.T supplementary proceedings. In re Kamsler, 2 N. B. N. & R. 97 (Ref. N. Y.). 10. Omitting tontine policy, payable to bankrupt if he survive a certain period, although amount thereof not exactly ascertainable. In re Becker, 5 A B. R 438, 106 Fed. 54 (D. C. N. Y.). 11. Omitting own business although ostensibly wife's business. In re Lowen- stein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.). 12. Omitting large sum of money received a few days before bankruptcj^ and alleged to have been stolen from drawer in roll-top desk. Barton Bros, v Pro- duce Co., 14 A. B. R. 502, 136 Fed. 355 (C. C. A. Ark.). The following are instances where the facts have been held insufficient to prove a "false oath" by omissions from schedules: 1. Small debt of $7.76 owed to bankrupt omitted from schedules but no fraudulent intent proved, In re Miner, 8 A. B. R. 248, 114 Fed. 988 (D. C. Ore.). 2. Material omissions but not fraudulently made, In re Eaton, 6 A. B. R. 1530 REMINGTON ON BANKRUPTCY. § 2541 knowingly omitted constitutes a false oath under § 29b (2) of the act, but the omission must have been made with fraudiilent intent." In re Becker, 5 A. B. R. 441, 106 Fed. 54 (D. C. N. Y.) : "The omission knowingly of property from the schedules and the verification thereof consti- tutes a false oath within the meaning of § 29b (2) of the act." Obiter, In re Wolfensohn, 5 A. B. R. 60 (Special Master N. Y.) : "If the bankrupt willfully omitted from his schedules any property which he should have disclosed, he certainly makes a false oath." But, of course, mere failure to schedule assets is not per se a fraudulent and knowing false oath. 534, no Fed. 731 (D. C. N. Y.) ; In re Schofield, 17 A. B. R. 916, 15 A. B. R. 824 (D. C. Pa.). . • 3. Omitting from schedules corporate stock held in wife's name but clamied to be on secret trust for bankrupt, but evidence not conclusive. Fellow v. Freu- denthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.). 4 Omission of property alleged to have been fraudulently levied on two years before passage of the Bankruptcy Act, In re Webb, 3 A. B. R. 386, 98 Fed. 404 (D. C. N. Y.). 5. Omission of property alleged to have been fraudulently conveyed before passage of Bankruptcy Act, no secret trust being shown. In re Dauchy, 11 A. B. R. 511, 130 Fed. 532 (C. C. A. N. Y.). 6. Policy of life insurance on bankrupt's life but payable to another, he hav- ing no interest therein. In re Rauchenplat, 9 A. B. R. 764, 1 P. R. 471 (D. C. Porto Rico). 7 Policy of life insurance on which only one premium paid, omitted from schedule, In re Miner, 8 A. B. R. 248. 114 Fed. 988 (D. C. Ore.). 8. Failure to specifically enumerate exempt property, simply scheduling 't as "exempt wearing apparel," without giving items; a watch even being held properly exempt, Sellers v. Bell, 2 A. B. R. 529, 94 Fed. 801 (C. C. A. Ala.). 9. Understatements and overstatements of debts owing to bankrupt about counterbalancing, negative fraudulent intent, In re Miner. 8 A. B. R. 248, 114 Fed. 988 (D. C. Ore.). 10. Land contract, on which only about the interest had been paid, forfeit- able for such default at option of seller, omitted from schedule, In re Miner, 8 A. B. R. 248, 114 Fed. 988 (D. C. Ore.). 11. Swearing "None" as to "Stock in Incorporated Companies" but neverthe- less in Schedule "B (5)," claiming same as exempt, not false oath as to shares in Schedule "B (5)," although false oath as to other shares nowhere reported. In re Semmel, 9 A. B. R. 351, 118 Fed. 487 (D. C. Pa._). 12. Omission of any claim for wages for bankrupt's services on his father's farm where bankrupt was his father's sole heir and no agreement for wages existed, In re Howden, 7 A. B. R. 191, 111 Fed. 723 (.D. C. N. Y.). 13. Mere failure to schedule a debt and certain real estate of uncertain value is not of itself evidence of fraudulent intent. In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.). 14. Equitv in lumber sold not scheduled, In re Hamilton, 13 A. B. R. 333, 133 Fed. 823 (D. C. N. Y.). 15. Oath to schedules where watch and chain worn openly on person were omitted on advice of counsel, In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.). 16. Oath to schedules omitting partnership interest given by father-in-law to wife of bankrupt but managed by bankrupt, In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.). 17. Oath to schedules omitting desk given away before passage of Bankrupt Act, In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C Tenn.). 18. Oath to schedules omitting voluntary conveyance to mother of land on which she held a large mortgage, the conveyance being made on advice of counsel, In re Schreck, 1 A. B. R. 366 (Ref. N. Y.). 19. Oath to schedules omitting voluntary conveyance to wife four months and one week before bankruptcy, no secret trust being shown to continue. In Te Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.). 20. Oath to schedules omitting lease of house which bankrupt is occupying § 2542 OPPOSITION TO DISCHARGE. 1531 § 2542. Omitting Creditors from Schedules, When False Oath. — A false oath may be perpetrated by swearing to schedules in which false statements of liabilities have been purposely made.^^*^ Thus, a "fraudulently and knowingly" made "false oath" may be per- petrated by a bankrupt swearing in his schedules to fictitious debts al- leged to be owing by him to relatives or friends. ^^^ But where no advantage could possibly accrue to the bankrupt, a fraud- ulent intent in omitting creditors or misstating liabilities will be nega- tived.i-^2 Compare, In re Miner, 9. A. B. R. 102, 117 Fed. 953 (D. C. Ore.); S. C, 8 A. B. R. 248, 114 Fed. 998 (D. C. Ore.): "There could be no adequate motive in concealing- obligations which the bankrupt owed. This could not smooth his way through bankruptcy, and would, if the deception was successful, pre- vent his discharge as to the omitted creditors. Moreover, a debt, however scheduled, would necessarily be proved at the amount actually due. No pos- sible advantage could be gained by misstating the amount of the debt listed, and there is nothing in the facts stated to warrant an inference of bad faith against the bankrupt." Compare, In re Crenshaw, 2 A. B. R. 623, 95 Fed. 632 (D. C. Ala.): "The oinission from the schedule of one of the notes due Findlay, Dicks & Co. was doubtless an oversight or mistake. From the facts and circumstances, I can see no motive for omitting it and no benefit to be derived by the bankrupt from such omission." as tenant where the lease is only for a year and is not shown to have any value bej'ond its rent, could not be held to be intentional nor fraudulent false oatlf. In re Hirsch, 3 A. B. R. 344 (D. C. N. Y.). 21. Denial of interest in business alleged to belong to bankrupt's wife ni which bankrupt alleges he is simply an employee where no actual interest is traced into it. In re Hirsch, 3 A. B. R. 344, 97 Fed. 571 (D. C. N. Y.). 22. Attorney at law failing to schedule written contracts for contingent fees where some of the cases are on the court calendar and some are not, some are tried and some are on appeal the doubt as to their being- assets of the estate taking away any certainty that they were omitted "knowingly and fraud- ulently." In re McAdam, 3 A. B. R. 417, 98 Fed. 409 (D. C. N. Y.). 23. Omitting household furniture bought for wife many years ago and pre- sumably intended as a gift to her. In re Freund, 3 A. B. R. 418, 98 Fed. 81 (D. C. N. Y.). 24. Omitting list of names said to belong to mail order corporation, Veho'i V. Ullman, 17 A. B. R. 435 (C. C. A. Ills.). 140. In re Gross, 5 A. B. R. 271 (Ref. N. Y., affirmed by D. C); In re Young, 15 A. B. R. 477, 140 Fed. 728 (D. C. N. Car.). 141. But compare, contra, where omission not purposely made. In re Bla- Icck, 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C.) : "The grounds for refusal to discharge under the present Bankrupt Law are limited in number. They specify what shall be the causes for such refusal, and the omission of creditors fiom the schedules is not enumerated as one of the grounds. There is nothing- of substance in the specification." In re Kamsler, 2 N. B. N. & R 97 (Ref N. Y.). 142. The following are further instances of failure to prove fraudulent in- tent in making a "false oath" by misstatements or omissions of debts owiu;^ by the bankrupt: 1. Scheduling of an assigned judgment as being owed to the original judg- ment creditor although the bankrupt knew of the assignment is not sufficient to bar discharge. Sellers v. Bell, 2 A. B. R. 529, 94 Fed. 801 (C. C. A. Ala.). 2. Failure to schedule money borrowed of friend to pay attorney's fees and costs of bankruptcy, is not a "false oath," Sellers v. Bell. 2 A. B. R 529 94 Fed. 801 (C. C. A. Ala.). 1532 REMINGTON ON BANKRUPTCY. § 2545 § 2543. Amendment after Discovery of Omissions. — Amendment of the schedules after discovery of the omission is ineffectual to excuse the omission where the original omission was fraudulent ;i-*3 but a prompt acknowledgment of the omission as a mistake is a circumstance tending to rebut bad faith. ^^^ Destruction, Failure to Keep and Concealment of Books of Ac- count AS Bar to Discharge. § 2544. Destruction, Failure to Keep and Concealment of Books of Account as Bar to Discharge. — The bankrupt's discharge will be barred if, with intent to conceal his financial condition, he has destroyed, concealed or failed to keep books of account or records from which such condition might be ascertained. ^^^ § 2545. Intent to Conceal Financial Condition Essential. — The bankrupt's intent to conceal his financial condition thereby must be shown. 143. In re Gross, 5 A. B. R. 271 (D. C. N. Y.) ; In re Breiner, 11 A. B. R. 684, 129 Fed. 155 (D. C. Iowa); In re Eaton, 6 A. B. R. 531, 110 Fed. 731 (D. C. N. Y.). 144. In re Eaton, 6 A. B. R. 531, 110 Fed. 731 (D. C N. Y.). 145. Bahkr. Act, § 14 (b) (2). Godshalk v. Sterling, 12 A. B. R. 302, 123 Fed. 580 (C. C. A. Penn.). In re Feldstein. 6 A. B. R. 458 (D. C. N. Y.) : This was a case that occurred before the amendment of 1903, but, being a case where the discharge was re- fused when the statute was much more liberal towards the bankrupt in rela- tion to his keeping of books than it is now, it is an authority since the Amend- ment as well. Ablowich V. Stursburg. 5 A. B. R. 403, 105 Fed. 751 (C. C A. N. Y.). "In Contemplation of Bankruptcy" and "with Fraudulent" Intent, before the Amendment of 1903. — 1. Before the amendment of 1903, it must also have been done "in contemplation of bankruptcy." In re Feldstein, 8 A. B. R. 160, 115 Fed. 259 (C. C. A. N. Y.); Van Ingen v. Schophcffen, 12 A. B. R. 24, 129 Fed. 352 CC. C. A. Mo.); In re Shorer, 2 A. B. R. 165, 96 Fed. 90 (D. C. Conn.); In re H'olman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa); In re Holtz, 1 N. B. N. 204. 2. And with "fraudulent" intent to conceal his "true" financial condition. In re Spear, 4 A. B. R. 617. 103 Fed. 779 (D. C. Vt.) ; In re Boasberg, 1 A. B. R. 353 (Special Master N. Y.) ; In re Polakofif, 1 A. B. R. 358 (Master's Report, af- firmed by D. C. N. Y.); In re Feldstein, 8 A. B. R. 160, 115 Fed. 259 (C. C. A. N. Y.); In re Mackenzie, 12 A. B. R. 605, 132 Fed. 114 (D. C. Conn.); In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa); In re Cohn, 1 A. B. R. 655 (Ref. Mo.); In re McNamara, 2 A. B. R. 566 (Ref. N. Y.). 3. The weight of authority was that the proof must show a contemplation of bankruptcy proceedings being instituted: and that it was not sufficient if there was merely proof of a contemplation of such condition of finances as naturally would lead to bankruptcy. In re Boasberg, 1 A. B. R. 353 (Special Master, N. Y.); In re Polakofif, 1 A. B. R. 358 (Special Master, affirmed by D. C); In re Hohnan, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.) : And that it should be done after the passage of the Act and not simply during the pendency of the bill. In re Marx, 4 A. B. R. 521, 102 Fed. 676 (D. C. Ky.). In re Morgan, 4 A. B. R. 402, 101 Fed. 982 (D. C. .Ark.) : "An act in 'contem- plation of bankruptcy' must contemplate the commission of what is declared by the act to be an act of bankruptcy, or an application of a bankrupt to be § 2545 OPPOSITION TO DISCHARGE. 1533 Mere failure to keep books or to keep them properly will not bar the discharge unless done with intent to conceal his financial condition. ^^"^ In re Rauchenplat, 9 A. B. R. 766, 1 P. R. 471 (D. C. Porto Rico): "It is not required that a bankrupt's books shall be kept in the most scientific manner, but only in such a way that the condition of his affairs may be substantially ascertained; and even if badly kept, it is not ground for refusing discharge, unless there was a fraudulent purpose in so doing on the part of the bankrupt." In re Allendorf, 12 A. B. R. 320, 129 Fed. 981 (D. C. Iowa): "This bankrupt did not fail entirely to keep books. He kept a cash book, showing the amount received from the daily sales of the goods and other sources, and most of the payments for goods, expenses and other matters; also a bank book and the original invoices or bills of goods purchased. He kept no day book, blotter or ledger." In this case the destruction of salesmen's slips on transfer to the casn book of the items, was held not a destruction with intent to conceal financial condition. In re Brice, 4 A. B. R. 355, 102 Fed. 114 (D. C. Iowa): "The evidence shows that the books kept did not contain a list or statement of the debts due from the bankrupt and it is therefore true that from the books the true financial condition of the bankrupt could not be ascertained, but it is not shown that this was done with any fraudulent intent to conceal his financial condition * * *; and the same is true with respect to the charge that two pages of the ledger have been torn out, thus leaving this book in a mutilated condition." declared a bankrupt." In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa); In re Lieber, 3 A. B. R. 217 (Special Master, Pa.); obiter, In re Shertzer, 3 A. B. R. 699 (D. C. Pa.); In re Stark, 1 A. B. R. 180, 96 Fed. 88 (Ref. N. Y., since created district judge). Also see Van Ingen v. Schophofen, 12 A. B. R. 24. 129 Fed. 352 (C. C. A. Mo.). Further Instances of "Fraudulent Intent" and "Contemplation of Bankruptcy" before the Amendment of 1903. 1. Bankrupt selling out business, owing $6,000; then without paying the in- debtedness, going into business in another place, buying on credit $6,000 worth of goods and using only $500 in cash, his books failing to show entries thereof; then going into bankruptcy. In re Kenyon, 7 A. B. R. 257, 112 Fed. 658 (D. C. Iowa). 2. Keeping books in such a manner as to conceal true financial condition, etc. In re Feldstein, 6 A. B. R. 458, 108 Fed. 794 (D. C. N. Y.). 3. Frivolous explanation of failure to keep books. In re Berkowitz, 4 A. B. R. 37 (Special :\Iaster, X. Y.). Instances of Lack of Contemplation of Bankruptcy. 1. Failing to keep books of account while formerly in business six years before the passage of the Bankruptcy Act. In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). 2. Failure to keep books for a j^ear and half before the passage of the Bank- ruptcy Act. In re Cohn, 1 A. B. R. 655 (Ref. Mo.). 146. Under the Act of 1867, fraudulent intent was not necessary, to the bar; the obligation to keep proper books was absolute, hence the decisions under that law are inapplicable. In re Schultz, Jr., 6 A. B. R. 91, 109 Fed. 269 (D. C. N. Y.). In re Lafleche, 6 A. B. R. 483, 109 Fed. 307 (D. C. Vt.); In re Stark, 2 A. B. R. 785, 96 Fed. 88 (D. C. N. Y.) ; In re Mackenzie, 12 -A. B. R. 605, 132 Fed. 114 (D. C. Conn.); In re Hamilton, 13 A. B. R. 333, 133 Fed. 823 (D. C. N. Y.) ; In re Corn, 5 A. B. R. 478, 3 06 Fed. 143 (D. C. Ga.); In re Boasberg, ] A. B. R. 353 (Special Master N. Y.); In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.); In re Idzall, 2 A. B. R. 741, 696 Fed. 314 (D. C. Iowa.); impliedly, In re Keefer, 14 A. B. R. 290, 135 Fed. 885 (D. C. N. Y.); compare, on germane subjects of concealment of assets and false oath, Smith v. Keegaii, 7 A. B. R. 4, 111 Fed. 157 (C. C. A. Mass.). 1534 REMINGTON ON BANKRUPTCY. § 2548 § 2546. Intent Inferable from Circumstances. — The intent may be inferred from surrounding circumstances. i^' Thus, where the bankrupt is a man of business experience and abso- lutely fails in every respect to keep books of account or records from v/hich his financial condition might be ascertained, the presumption arises that by such conduct he intended to conceal such condition. § 2547. Property Exempt, or Not Recoverable, etc. — Not Neces- sarily Negatives Intent to Conceal. — Intent to conceal is not negatived, necessarily, by the fact that the property omitted from the books of ac- count could not have been recovered by the creditors or would have been exempt, anyway; but such fact is entitled to weight in determining whether the omission was with fraudulent intent. ^^^ § 2548. Keeping Books in Same Defective Manner for Long Pe- riod Tends to Negative Intent. — The keeping of books in the same de- fective manner for years tends to negative fraudulent intent; but, of course, is not conclusive rebuttal. Thus, the keeping of books in the same manner for years before the passage of the act, although that manner be inadequate to show the debtor's financial condition, tends to negative intent to conceal it by such means. ^^^ But compare, In re Feldstein, 8 A. B. R. 160, 115 Fed. 259 (C. C. A. N. Y., afifirming 6 A. B. R. 458, 108 Fed. 794) : "We find no force in the suggestion that the loans were made before the Bankruptcy Act was passed, and the failure to enter them in the books or records of the business began then. The referee held that 'while he was solvent, and could promptly meet all his obli- gations, and before the passage of the Bankruptcy Act, he was at liberty to keep his books in any manner he pleased, or to keep no books at all, but when he asks the benefits of the Bankruptcy Act he is bound to show a compliance with its provisions regarding his books as well as any other requirement; but if he kept improper or incorrect books before the passage of the Bankruptcy Act, and to such an extent as to make them improper or insufficient under the act, he should, upon the passage of the act, have altered his system of book- keeping so as to comply with its requirements, if he ever expected to seek the benefit of its provisions.' In this opinion we concur.'' 147. In re Feldstein, 6 A. B. R. 458, 108 Fed. 794 (D. C. N. Y., affirming S A. B. R. 160, 115 Fed. 239, C. C. A.). 148. Compare, on germane subjects of concealment of assets and false oath, ante, §§ 2493, 2534. In re Royal, 7 A. B. R. 106, 112 Fed. 135 (D. C. N. Car.); In re Todd, 7 A. B. R. 770, 112 Fed. 315 (D. C. N. Car.); In re Conroy, 14 A. B R. 249, 134 Fed 764 (D. C. Pa.). Imputing acts of one partner in concealment of books, etc., to the other, and of agent to principal: see ante, §§ 2484, 2486. 149. In re Idzall, 2 A. B. R. 741, 96 Fed. 314 (D. C. Iowa). Continuing concealment of books may be perpetrated by failure after bank- ruptcy to reveal their known whereabouts although original concealment was perpetrated before the passage of the Bankrupt Act, In re Kamsler, 2 N B N. & R. 97 (Ref. N. Y.). ' ' § 2549 OPPOSITION TO discharge;. 1535 § 2549. No Special Manner of Keeping Books Requisite. — No special manner of keeping books is requisite to avoid the censure of the statute, so long as an ordinary person, having a general knowledge of ac- counts, can discover the true financial condition. ^^*^ In re Rauchenplat, 9 A. B. R. 766, 1 P. R. 471 (D. C. Porto Rico): "It is not required that a bankrupt's books shall be kept in the most scientific manner, but only in such a way that the condition of his affairs may be substantially 150. In re Feldstein, 6 A. B. R. 458, 108 Fed. 794 (D. C. N. Y., affirmed in 8 A. B. R. 160, 115 Fed. 259). But compare. In re Lepold, 5 A. B. R. 283 (Ref. N. Y.). Under the Act of 1867 the obligation to keep proper books was absolute. In re Schultz, Jr., 6 A. B. R. 91, 109 Fed. 264 (D. C. N. Y.). Instances Held to Be Such Failure as to Bar Discharge, 1. Books showing no indebtedness to relatives: disbursements to them, how- ever, on the eve of insolvency, on alleged debts: previous statements to ob- tain credit showing no debts to relatives: bankrupt's testimony that he in- formed creditors that statement did not contain debts to relatives, discredited as inherently improbable; held, failure to keep books proved and discharge barred, In re Greenberg, 8 A. B. R. 94, 114 Fed. 773 (D. C. Conn.). 2. Books showing no indebtedness to relatives, but large payments made to them on alleged debts, on the eve of insolvency, In re Kamsler, 2 N. B. N. & R. 97 (Ref. N. Y.). 3. Debts to family for money loaned to the bankrupt, scheduled but never entered on the books of account of the bankrupt although bankrupt kept book- keeper and complete set of books; and only memoranda of the debts were in two small memorandum books, kept in the bankrupt's own custody, concealed from everj'body; held not the keeping of "books of account or records which the Bankrupt Act calls for." In re Feldstein, 8 A. B. R. 160, 115 Fed. 259 (C. C. A. N. Y., affirming In re Feldstein, 6 A. B. R. 458, 108 Fed. 794). 4. Bankrupt, on removing to another city leaving his account books behind although taking everything else; and thereafter keeping simply memoranda on slips of paper which he destroys each month, bein(g finally closed out through the instrumentality of a friend's levying execution, In re Baumberger, 2 N. B. N. & R. 95 (Ref. N. Y.). 5. In re Leopold, 5 A. B. R. 279 (Ref. N. Y.). 6. Frivolous excuse for failure to keep. In re Berkowitz, 4 A. B. R. 37 (Special Master, N. Y.). 7. Where a bankrupt secretly disposed of a stock of goods and concealed his books in a place where no one would be expected to inquire for them, which books, however, showed nothing of the transaction in question, but there was evidence of other false and misleading entries, it will be held that the bankrupt has "with fraudulent intent concealed his true financial condition in contempla- tion of bankruptcy" failed to keep proper books of account, In re Morgan, 4 A. B. R. 402, 101 Fed. 982 (E). C. Ark.). 8. Keeping bank account in wife's name, keeping no books of account nor record of receipts and disbursements, commingling his own funds with those of his wife in his wife's name up to the very eve of bankruptcy, with the pur- pose, as the bankrupt testifies, to keep anybody from "jumping on it;" i. e., his inoney, before he had an opportunity to use it. In re Bragassa, 4 A. B. R. 519, 103 Fed. 936 (D. C. Tex., affirmed in 5 A. B. R. 700). 150. Instances Held Not to Be Such "Failure to Keep" as Would Bar Dis- charge. 1. Omission of debt from ledger where done to prevent other creditors from ascertaining that the debtor had received financial assistance but without any contemplation of bankruptcy and rather with expectation of pulling through all right, not sufficient to bar dischage before amendment of 1903, Van Ingen V. Schophofen, 12 A. B. R. 24, 129 Fed. 352 (C. C. A. Mo.), in which case, how- ever, there was no showing as to whether the bankrupt was at the time hope- lessly insolvent. Yet, the bankrupt kept the loans to him off his ledger for fear the other creditor would "close him up." This would seem to indicate fraudu- 1536 REMINGTON ON BANKRUPTCY. § 2550 ascertained; and even if badly kept, it is not ground for refusing a discharge, unless there was a fraudulent purpose in so doing on the part of the bankrupt." § 2550. Concealment or Destruction of Books, etc., Which Might Have Aided in Ascertainment of Financial Condition.— Thus, also, if the bankrupt, fraudulently and knowingly, has concealedi"^ or de- lent intent and contemplation of financial ruin, at anj- rate. It would hardily seem that actual "bankruptcy" must be proved to have been contemplated. _ 2. Keeping no day book, blotter or ledger, but keeping cash book showin;.^ daily receipts for sales and other sources and most of the payments for goods, expenses and other matters, also keeping a bank book and original invoices. In re Allendorf, 12 A. B. R. 320, 129 Fed. 98 (D. C. Iowa). 3. Insolvent condition not known to bankrupts until shortly before bank- ruptcy but system of bookkeeping defective, In re Mackenzie, 12 A. B. R. 605, 132 Fed. 114 (D. C. Conn.). 4. Sale of lumber entered on partnership books at larger price than actu- ally received, intending thereby to conceal preference: nevertheless facts not deemed sufficient. In re Hamilton, 13 A. B. R. 333, 133 Fed. 823 (D. C. N. Y.;. 5. Nature of business not requiring keeping of ordinary books. In re Corn, 5 A. B. R. 478, 106 Fed. 143 (D. C. Ga.). 6. Out of business for nearly three years before passage of Bankruptcy Act, In re Prager, 13 A. B. R. 527, 134 Fed. 1006 (D. C. W. Va.. distinguishing In re Ablowich, 3 A. B. R. 586, 99 Fed. 81). 7. Out of business for six years before Bankruptcy Act, failure to keep books while in business, In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). 8. Failure to- keep books in small business, reason therefor being to avoid the necessary work involved in keeping books rather than to conceal true con- dition, In re Lowenstein, 2 A. B. R. 193, 106 Fed. 51 (Ref. N. Y.). 9. Failure to show property bought with proceeds of surrender of life in- surance policy made payable to wife, such proceeds belonging to wife, In re Dews, 2 A. B. R. 483, 96 Fed. 181 (D. C. N. Y.). 10. Failure to keep books where for at least three years prior to adjudication he was not engaged in any business to which the keeping of books was neces- sary or proper, Sellers v. Bell, 2 A. B. R. 529, 94 Fed. 801 (C. C. A. Ala., dis- tinguishing 4 A. B. R. 109). 11. Failure to keep books in an adequate manner to exhibit true financial condition but keeping them in the same manner as before the passage of the Bankruptcy Act, negatives fraudulent intent to conceal true financial condition therebv, there being no other proof of fraudulent intent. In re Idzall, 2 A. B. R. 741,' 96 Fed. 314 (D. C. Iowa). 12. Disappearance of books of account seven years before the passage of the Bankruptcy Act itself fails to show fraudulent intent to conceal true financial condition thereby. In re Stark, 2 A. B. R. 785, 96 Fed. 88 (D. C. N. Y.). 13. No account of bills not debts payable and two pages of ledger torn out: not being shown to have been done by bankrupt, etc.. In re Brice, 4 A. B. R. 355, 102 Fed. 114 (D. C. Iowa). 14. School teacher and also agent for farm owned by his wife and two other heirs failing as such agent to keep account of rents collected and taxes and ex- penses paid; and withdrawing of funds from bank and redepositing of same in wife's name: yet not sufficient to bar discharge. In re Keefer, 14 A. B. R. 290, 135 Fed. 885 (D. C. N. Y.). 15. Evidently no purpose to keep a false set of books or to conceal condi- tion, and the informal manner of keeping them explained and not suspicious, discharge not refused. In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico). 16. Books scheduled, -but left at place of business, bankrupt's testimony not being discredited, In re Fades, 16 A. B. R. 30, 143 Fed. 293 (C. C. A. Ills.). 17. Books claimed to be insufficient, kept in another state under control of a partner located there. In re Garrison, 17 A. B. R. 831, 149 Fed. 178 (C. C. A. N. Y.). 151. Instances held to be "concealment" of books of account sufficient to bar discharge. 1. Substitution of copy from which certain original entries were omitted in § 2550 OPPOSITION TO discharge;. 1537 stroyed^^- books of account or records which might have aided in the ascertainment of his financial condition, his discharge will be refused. Obviously, the clause "from which his financial condition might be .as- certained," § 17 (b), does not require that creditors show the books con- cealed or destroyed to have been sufficient, either in themselves or with other books, to ascertain in full the financial condition of the bankrupt. It is enough, if from them naturally might have been ascertained pertinent facts about the bankrupt's financial condition. To put more upon the cred- itors would nullify the provision. Indeed, the statute might more properly be read as if the words "books of account or records" were inserted sepa- rately after the words "destroyed" and "concealed," thus : "Has de- stroyed or concealed books of account or records or failed to keep books of account or records from which his financial condition might be ascer- tained." But compare, In re Eades, 16 A. B. R. 30, 143 Fed. 293 (C. C. A. Ills.): "* * * that they were not material for ascertaining his financial condition or for other purpose." order to save inquiry and explanation, all the transactions being between rel- atives and open to suspicion, In re Bachron, 8 A. B. R. 732 (D. C. Wis.). 2. Before bankruptcy, failing debtor sending his account books to one cred- itor with statement that, if examined in aid of execution would swear he did not know their whereabouts; thereafter several times consulting them while in the creditor's hands, subsequently swearing while in bankruptcy that he does not know their whereabouts, quaere, In re Kamsler, 2 N. B. N. & R. 97 (Ref. N. Y.). 3. Bankrupt testifying that his books were in his safe, but proof "showing safe not touched by anybody but himself, In re Lewin, 18 A. B. R. 72 (D. C. N. Y.). Instances held not to be such concealment of books as to bar discharge. 1. Concealment of books begun in 1893 could not be in "contemplation of bankruptcy," as required before the Amendment of 1903, In re Polakoflf, 1 A. B. R. 359 (Master's Report, affirmed by D. C. N. Y.). 2. Three years before bankruptcy and not certain even then, In re Phillips, 3 A. B. R. 542, 98 Fed. 844 (D. C. N. Y.). 152. Instance of destruction of books sufficient to bar discharge. 1. Destruction of books of partnership of which bankrupt a member, being material to a proper understanding of his own condition, In re Conley, 9 A. B. R. 496, 120 Fed. 42 (D. C. Ga.). Instances of destruction of books held insufficient to bar discharge. 1. Destruction of check book and pass book at a time when bankrupt's debts were few and of trifling amount is not a bar to discharge as being with intent to conceal true financial condition even though the evidence shows a living be- yond one's means and also indulgence in stock gambling and borrowing within a short time of bankruptcy. In re Studebaker, 11 A. B. R. 384, 127 Fed. 591 (C. C. A. N. Y., reversing 10 A. B. R. 205). 2. Altering and mutilating of old records of a corporation of which bankrupt was merely bookkeeper, where mutilated parts were immaterial anyway, Ba'i- man v. Feist, 5 A. B. R. 703, 107 Fed." 83 (C. C. A. Iowa). 3. Destruction of saleman's slips, the amounts at close of each day being trans- ferred to cash book, held insufficient where no proof exists that destruction was with fraudulent intent. In re Allendorf, 12 A. B. R. 320, 129 Fed. 981 (D. C. Iowa). 2 Rem B— 22 1538 REMINGTON ON BANKRUPTCY. § 2552 Presentation of False Ceaim or Demand as Bar to Discharge. § 2551. Presentation of False Claim or Demand as Bar to Dis- charge. — If the bankrupt shall have presented under oath any false claim for proof against the estate, or used any such claim in composition, person- ally or by agent, proxy or attorney, or as agent, proxy or attorney, his discharge may be barred. This was an offense, visited with seven penalties, under the first English Bankrupt Act, that of 34 Henry VIII. ^^^ It is also one of the ofifenses punishable by imprisonment under the provisions of § 29, of the United States Bankruptcy Act of 1898. It may be committed by the bankrupt, undoubtedly, as well as by a third person ; as, for instance, where the bankrupt, "as agent," presents a false claim in behalf of a wife, as some- times happens. It is also possible for the bankrupt to aid a creditor in presenting a false claim by making a false oath to the amount of the debt in his schedules. 1^^ There appear to be no decided cases directly upon the point of refusal of a discharge upon this ground. It would seem to be easy for a bankrupt to commit this ofifense in composition cases and thus to bar his composi- tion. subdivision "t." Fraudulent Transfers, Concealments or Removals within Four Months of Bankruptcy as Bar to Discharge. § 2552. Grounds of Opposition to Discharge Added by Amend- ment of 1903. — By the amendment of 1903 certain additional grounds of discharge were added ; fraudulent transfers, concealments and removals within the four months preceding the bankruptcy ; the obtaining of prop- erty on false representations, the procurement of a discharge within six years and the failure to obey an order of the court. ^^^ 153. See ante, Introd., § (g), Act of King Henry VIII. 154. Compare, for suggestion along this line, In re IMiner, 9 A. -B. R. 102. 117 Fed. 953 CD. C. Ore.). 155. Amendment of 1903 may apply to acts committed before 1903 even though the law itself may not apply to acts ccjmmitted before 1898, In re Neely, 12 A. B. R. 407, l.",4 Fed. 667 (Ref. N. Y.) : "In all such cases, the courts have very properly held that no retroactive effect can be given to the discharge features of the law. "But the reasoning does not apply with the same force to an amendment 01 eating a new ground of objection to a discharge for a bankruptcy law is already in existence, and the amendments are engrafted upon an existing statute. Re- strictions upon discharge affect the remedy only. The right to a discharge is not an absolute vested right. It was not originally a feature of bankruptcy legislation cither in this country or in England. The fundamental element in every system of bankruptcy has been to provide for and regulate the distri- bution of the bankrupt's property equally among his creditors. Originally this was its only purpose, and' it was confined to traders as a purely commercial reg- ulation. Latterly a second element was added in the provisions for discharge upon such terms and conditions as the act may provide.'" In re Carleton, 12 A. B. R. 475 (D. C. Mass.). § 2556 OPPOSITION TO DISCHARGE. 1539 § 2553. Transfer, Removal or Concealment within Four Months, as Bar to Discharge. — A bankrupt's discharge will be barred if he shall have, at any tim'e subsequent to the first day of the four months immedi- ately preceding the filing of the bankruptcy petition, transferred, removed, destroyed, concealed, or permitted to be removed, destroyed or concealed, any of his property, with intent to hinder, delay or defraud any of his creditors. ^^"^ § 2554. Must Be within Four Months Preceding Bankruptcy. — To be, in and of themselves, bars to discharge, fraudulent transfers, con- cealments or removals of property must have been made within the four months preceding bankruptcy: "Expressio unius, exclusio alterius.''^^'^ In so far as fraudulently transferred or concealed or removed property may be the subject of fraudulent and knowing "concealment" of property belonging to the estate, mentioned as the first ground for barring discharge, it is obvious that the original fraudulent transfer or removal or initial con- cealment may have occurred more than four months before the bankruptcy, so long as the property is still recoverable by the trustee and the conceal- ment of it continues after the bankruptcy, the fraudulent transfer itself not being the ground of opposition but constituting the property involved, property "belonging to the estate," the concealment of which constitutes the real bar to the discharge. In such cases, however, the property must be shown to be still recoverable, else concealment of it is not concealment '■from the trustee" of "property belonging to the estate." § 2555. But Property Need Not Be Still Recoverable. — It does not appear "necessary, under this ground of opposition to discharge, to prove that the property was still recoverable at the time the trustee was elected. It is the perpetration of the fraudulent transfer or removal,^ etc., that is the bar ; not the concealment of it from the trustee, and if perpetrated within the four months it is sufficient, even though the trustee may be unable, for some reason, to recover it now. SUBDIVISION" "f." False Statements in Writing to Obtain Property on Credit. § 2556. Obtaining Property on Credit on False Statement, in Writing, as Bar to Discharge. — A bankrupt's discharge will be barred if he shall have obtained property on credit from any person upon a nia- 156. Bankr. Act, § 14 (b). In re- Miller, 14 A. B.- R. 329, 135 Fed. 591 (D. C. Va.); In re Gift, 12 A. B. R. 244, 130 Fed. 330 (D. C. Pa.); instance, In re Young, 15 A. B. R. 477, 140 Fed. 728 (D. C. N. Car.). 157. Obiter, In re Brumbaugh, 12 A. B. R. 204, 128 Fed. 971 (D. C. Penn.). See ante, §§ 2482, 2498, 2506, et seq. 1540 REMINGTON ON BANKRUPTCY. § 2558 terially false statement in writing, made to such person for the purpose of obtaining such property.^^^ In re Scott, 11 A. B. R. 327, 126 Fed. 981 (D. C. Del.): "Where S. in Sep- tember, 1902, obtained property on credit from a firm upon a materially false statement in writing made to such firm for the purpose of obtaining such prop- erty on credit, and in March, 1903, was adjudged a bankrupt on his own peti- tion, and subsequently applied for a discharge; held, that by virtue of the Act of February 5, 1903, amendatory of the Bankruptcy Act of July 1, 1898, a specifi- cation in opposition filed by the firm, which had proved its claim, setting up such obtaining of property, presented a bar to his discharge." i§ 2557. New Ground, Only Available in Bankruptcies Instituted Since Amendment. — This was not a ground for discharge before the amendment of 1903. ^^^^ In re Scott, 11 A. B. R. 327, 126 Fed. 981 (D. C. Del.): "The bar to a dis- charge resulting from obtaining property on credit on a materially false state- ment in writing is a novel feature of the bankruptcy legislation of the United States. Nothing like it is to be found in any of the earlier Bankruptcy Acts, whatever analogies, remote or close, they may contain." Nor in any former Bankruptcy Act of the United States or England. ^'''^ And it is not an available ground in bankruptcies instituted before the amendment. ^*^i § 2558. Statement before Amendment Sufficient if Proceedings Instituted after Amendment. — Although the statement was made be- fore the amendment of 1903 made such statements ground for barring dis- charge, yet it is sufficient to bar discharge in proceedings instituted since the amendment. ^"^ 2 158. The original bill of the proposed amendment read as follows: "Section 14b * * * or (3) obtained property on credit (which has not been paid for or restored at any time the petition is filed by or against him), upon a mate- rially false statement in writing made (by him) to (any) person for the purpose of obtaining credit, or of being communicated to the trade, or to the person from whom he obtained such property on credit." Bankr. Act, § 14 (b) (e); In re Dresser, 16 A. B. R. 561, 146 Fed. 383 (C. C A. N. Y.); In re Hardie & Co., 16 A. B. R. 313, 143 Fed. 607 (D. C. Tex.); In re Harr, 16 A. B. R. 216, 143 Fed. 421 (D. C. Mo.); In re Dresser, 13 A. B. R. 639, 144 Fed. 318 (D. C. N. Y.) ; In re Peterson. 10 A. B. R. 355 (D. C. Minn.); In re Goodhile, 12 A. B. R. 380, 130 Fed. 782 (D. C. Iowa); infer- entially on the facts, discharge not refused. In re Allendorf, 12 A. B. R. 324, ]29 Fed. 981 (D. C. Iowa); instance, In re Kaplan & Skwersky, 15 A. B. R. 534, 141 Fed. 463 (D. C. Pa.); instance. In re Levey, 13 A. B. R. 312, 133 Fed. 572 (D. C. N. Y.). 159. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.); In re Harr, 16 A. B. R. 216, 143 Fed. 421 (D. C. Mo.). 160. In re Dresser & Co., 13 A. B. R. 619, 144 Fed. 318 (Special Master N. V)- In re Harr, 16 A. B. R. 216, 143 Fed. 421 (D. C. Mo.). 161. In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.}. 162. In re Petersen, 10 A. B. R. 355 (D. C. Minn.); inferentially. In re Good- hile, 12 A. B. R. 380, 130 Fed. 782 (D. C. Iowa); inferentially, In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.) ; inferentially, In re Carleton, 12 A. B. R. 475, 131 Fed. 146 (D. C. Mass.); obiter, In re Allendorf, 12 A. B. R. 324, 129 Fed. 981 (D. C. Iowa). § 2559 OPPOSITION TO discharge:. 1541 In" re Dresser, 13 A. B. R. 639, 144 Fed. 318 (D. C. N. Y.) : "I think there is nothing in the point that the statement was made before the amendment of the Bankruptcy Act, in 1903, went into effect. A discharge in bankruptcy is an act of grace, and Congress can impose such conditions upon granting a dis- charge as it sees fit. There is nothing analagous between a law preventing a discharge because of an act done before the law was passed and an ex post facto law." In re Scott, 11 A. B. R. 327, 126 Fed. 981 (D. C. Del.): "In order that a statute may have a retroactive operation, there must be some subject on which it may retroact. But the Amendatory Act does not undertake to provide for the recovery of the property so obtained on credit, or to set aside or otherwise affect the transaction. Subdivision 3, in its relation to cases commenced after its passage, where the property was obtained prior thereto, certainly is not an ex post facto law, nor does it violate or disturb any vested right of the bankrupt or his creditors. A bankrupt can have no vested right to a discharge until the conditions required by law to authorize it have been satisfied. A statute is not necessarily retroactive or retrospective because its operation in a given case may be dependent upon an occurrence anterior to its passage, or, in the lan- guage of Endlich, 'because a part of the requisites for its action is drawn from a time antecedent to its passing.' " § 2559. Whether Other than Particular Creditor Defrauded May Oppose on This Ground. — Whether any other than the person thus part- ing with the property may oppose the discharge on this ground, is a question. ^^3 This query ilhistrates the lack of scientific basis for the addition of this ground of opposition by the amendment of 1903. It is easy enough to see that the particular creditor harmed by the false representations should have his claim excepted from the operation of the discharge, but why other creditors should be entitled to take advantage of a wrongdoing of the bankrupt that did not harm them at all but rather benefited them by the pro tanto enrichment of the bankrupt's estate, it is exceedingly difBcult to understand. It would seem that, logically, the grounds for refusing a bankrupt's discharge should be limited to those acts which tend to deplete the estate and to make the discovery of its true condition difficult ; to those acts which afifect the creditors in general, and not merely particular creditors. For the particular creditor the remedy should be the excepting of his claim from the operation of the discharge. In view of the fact that opposition to discharge should be available to any creditor not estopped, as also in view of the wording of the statute, ''obtained from any person," it would seem that any party in interest might oppose the discharge on this ground, even though the representa- tions were not made to him, nor the credit nor goods given by him.^^^ In re Carton & Co., 17 A. B. R. 352, 148 Fed. 63 (D. C. N. Y.): "It should not depend upon the whim or good nature of any particular creditor to whom 163. Compare, In re Dresser & Co., 13 A. B. R. 639, 144 Fed. 318, (D. C. N. Y.); compare, impliedly. In re Allendorf, 12 A. B. R. 324, 129 Fed. 981 (D. C. Iowa). 164. In re Harr, 16 A. B. R. 213, 143 Fed. 421 (D. C. Mo.). 1542 REMINGTON ON BANKRUPTCY. § 2563 the false statement was made whether the ofifending bankrupt should be given or refused his discharge. Any 'party in interest' who chooses to bring the wrongful act to the attention of the court and proves that it was wrong within the meaning of the statute is entitled so to do." § 2560. First Element "Materially False Statement in Writing." — It is an essential element of this bar to discharge that a materially false statement in writing shotild have been made.^*^^ § 2561. Written Statement Need Not Be Delivered if Contents Communicated. — If such written statement is made, it is not necessary that it have been delivered : it is sufficient if it shall have been commu- nicated. In re Dresser, 16 A. B. R. 563, 146 Fed. 383 (C. C. A. N. Y.): "And it is none the less 'made,' although the statement itself is. not delivered when its contents are correctly communicated by the agent. The purpose of Congress in prescribing a written statement to be essential was to protect the bankrupt from the danger of having his statement perverted or distorted by parol evi- dence, and that purpose is equally well accomplished whether the statement itself is used in obtaining the property, or whether the contents are communi- cated. The language of the clause does not necessarily import that the state- ment shall have been made for the purpose of inducing any particular person to rely upon it. "The phraseology of the clause in its entirety is consistent with the inter- pretation which we have thus indicated. We are asked to read it as though in- stead of the word 'made' Congress had used the word 'delivered.' The use of that word would have required a very different construction to be placed upon the clause, and if Congress had intended such a construction, it is to be assumed that the word would have been used."' § 2562. Second Element: Must Be by Bankrupt. — It is an essential element of this bar that the statement must have been made by the bank- rupt or by his authority. § 2563. But if Made by Agent with Bankrupt's Authority, Suffi- cient. — A. statement made by an agent, with the bankrupt's authority, is sufficient.i^*5 ^^j-^j [^ \-^^^ j^g^j-, i-,gi^| ^j-,^^ ^-i^^ implied agency of a partner is sufficient. 1^" But it is not sufficient, if not made with the bankrupt's authority.i^''^ In re Dresser, 16 A. B. R. 561, 146 Fed. 383 (C. C. A. N. Y.) : "* * * within the fair meaning of the clause the statement is made to such person if it was given to an agent for the purpose of using it in obtaining property for the 165. Obiter, discharge not refused, for other grounds lacking, In re Allen- dorf, 12 A. B. R. 324, 129 Fed. 981 (D. C. Iowa). 166. In re Goodhile, 12 A. B. R. 383, 130 Fed. 782 (D. C. Iowa) 167. In re Hardie & Co., 16 A. B. R. 313, 143 Fed. 607 (D. C. Tex.). 168. Compare, In re Schultz, 6 A. B. R. 91, 109 Fed. 264 (D. C. N. Y.), as to agent's acts not imputable to bankrupt principal unless within scope of agency In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y., affirmed by D. C). § 2566 OPPOSITION TO DISCHARGE. 1543 bankrupt, and if its contents were communicated by the agent to such person. The words 'such person' refer to the previous words 'any person,' and the statement is 'made to such person' whenever it is made by the bankrupt him- self or his duly authorized agent." And it has been held that one partner will not be barred of his dis- charge by false statements made by his copartner of which he was ignorant and which were not made by his authority. ^*^"-^ § 2564. Third Element: Must Be Made to Person from Whom Property Obtained. — It is a further clement, necessary to complete this bar to discharge, that the statement shall have been made to the person from whom the property was obtained. ^''•^ § 2565. Whether, if Made to Mercantile Agencies, or in Answer to General Inquiries, a Bar. — It is contended in one case that false statements to mercantile agencies, or in answer to general inquiries, will be insufficient to bar discharge. Obiter, In re Dresser & Co., 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y., af- firmed by D. C.) : "If the Ray bill had become a law as proposed [see foot- note to main proposition of this subdivision for words of original amendment], the objection of the creditors herein would unquestionably be sustained. It would be sufficient in that event, to show that Dresser & Co. obtained prop- erty on credit from some person, and the materially false statement in writing need only to have been made by them to any person for the purpose of qbtain- ing credit, or to any person for the purpose of being communicated to the trade, or to the person from whom they obtained credit. * * * "It will be observed that false statements made to mercantile agencies, or in answer to general inquiries, or for general circulation, are eliminated from among the grounds of objections to discharge." But the better rule is that a false written statement to a commercial agency made with intent to procure credit may be sufficient to bar dis- charge.^" ^ The bankrupt need not have intended to deceive any particular person. It is sufficient if he intended to deceive any person of a group, whether the person or group were known to him or not.^"^ § 2566. Fourth Element: Property Must Be Obtained on Credit Thereby. — It is essential, furthermore, that the bankrupt shall have ob- tained property on credit thereby.^"" But if the bankrupt does not receive the identical property parted with on the faith of the false representations, but merely derives some ben- efit therefrom, it seems, nevertheless, to be sufficient. ^"^ 169. In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. X. Y., affirmed by D. C). Contra. In re Hardie & Co., 16 A. B. R. 313, 143 Fed. 607 (D. C. Tex.). 170. Obiter. In re Dresser, W A. B. R. 561, 146 Fed. 383 (C. C. A. N. Y.). 171. In re Pincus, 17 A. B. R. 331, 144 Fed. 621 (D. C. N. Y.l. 172. In re Dresser, 16 A. B. R. 561, 146 Fed. 383 (C. C. A. N. Y.) ; In re- Dresser, 13 A. .B. R. 616, 144 Fed. 318 (Ref. N. Y., affirmed by D. C). 173. Obiter, In re Dresser & Co.. 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y.). 174. Obiter, In re Dresser & Co., 13 A. B. R. 616, 144 Fed. 318 (Ref. X. Y.). 1544 REMINGTON ON BANKRUPTCY. § 2571 § 2567. Fifth Element: Bankrupt Must Intend to Obtain Prop- erty Thereby. — It is also a necessary element to complete the bar, that the bankrupt shall have intended to obtain property thereby. § 2568. Whether Intent Must Be to Obtain Particular Property Actually Obtained. — It is a question whether the intent of the bank- rupt must have been a particular intent or a general intent ; that is to say, whether it must have been to obtain the particular property in question, or to obtain general credit. ^"^ § 2569. Sixth Element: False Statement Must Be Relied on.— If the false statement was not relied on in parting with the property, the discharge will not be barred. ^■^'' § 2570. "Continuing Representations." — Unless the representations are shown to have been continuing representations, the subsequent parting with other property in reliance thereon will be insufficient. ^'^'^ In re Allendorf, 12 A. B. R. 324, 129 Fed. 981 (D. C. Iowa): "There is nothing in the statement, nor in the letter of the bankrupt inclosing it to the creditor, to show that it was to be a continuing statement or representation of the bankrupt's financial standing — in fact, the statement is expressly limited to his condition on September 9th, 1902 — and the testimony of the creditman of this creditor and the letter of the bankrupt conclusively show that it was made to secure the bill of goods prior to September 9th only. Between that date and May 15th following (more than eight months) there was no dealing between these parties, and there is no evidence from which it can be fairly inferred that the statement was made for the purpose of obtaining the goods shipped upon the orders of May 15th and May 20th. To defeat a discharge, the bankrupt must have obtained property upon a materially false statement made in writing for the purpose of obtaining such property. The statement in question was not made for the purpose of obtaining the property shipped to the bankrupt by his creditor on May 15th, and 20th, respectively, nor any other property for which he is now owing." SUBDIVISION "G." Pr]<;vious Discharge; within Six Years as Bar to Discharge. • § 2571. Previous Discharge within Six Years, as Bar to Dis- charge. — The bankrupt's discharge will be barred if he has received a previous discharge within six years in voluntary proceedings. ^'^^ 175. That it will be sufficient if made simply to obtain general credit, im- pliedly, In re Pincus, 17 A. B. R. 331, 147 Fed. 621 (D. C. N. Y.). 176. In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y.) ; impliedly, In re Kaplan & Skwersky, 15 A. B. R. 534, 141 Fed. 463 (D. C. Pa.)- 177. Compare, In re Dresser & Co., 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y.). 178. Bankr. Act, § 14 (b) 5: "Unless he has ("5) in voluntary proceedings been granted a discharge in bankruptcy within six years." In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.) ; In re Carleton, 12 A. B. R. 475, 131 Fed. 146 (D. C. Mass.); In re Haase, 17 A. B. R. 528 (D. C. N. Y.). § 2571 OPPOSITION TO DISCHARGE. 1545 In re Seaholm, 14 A. B. R. 292, 136 Fed. 144 (C. C. A. Mass.): "It must be observed that the idea of placing restrictions and limitations upon the number and frequency of discharges to be granted to the bankrupt upon its own appli- cation does not involve a new philosophy, nor is it a new feature of bankruptcy legislation. In the older bankruptcy statutes, both in this country and in Eng- land, refusal of the second discharge was not, as a rule, limited to situations in which the first discharge was in a voluntary proceeding, but a discharge on a second proceeding was denied when the first discharge was in an involuntary proceeding as well. Under the English Bankruptcy Act of 1890, if the bankrupt had on any previous occasion been adjudged a bankrupt, the discharge is re- fused altogether, or suspended for a period of not less than two years, or until a dividend of not less than 10 shillings on the f)ound has been paid; and this restriction upon the second discharge results without regard to whether the earlier bankruptcy involved a voluntary or involuntary proceeding, and without regard to lapse of tirhe between the earlier and the later proceeding. "A similar feature was present in our own Bankruptcy Law of 1867, where a second discharge was only allowed when the bankrupt's estate was sufficient to pay 70 per cent.; the rigor of this restriction being qualified only by a pro- vision which enabled three-fourths of the creditors to consent to a discharge upon payment of a less sum. "The debates in Congress in connection with the proposed amendments of 1903 to the Law of 1898, enlarging the grounds for withholding a discharge, show that the amendments were directed against alleged abuses, through the frequency of bankruptcy proceedings instituted by the same individual, and from repeated discharges in bankruptcy upon the application of the bankrupt, and that such ad libitum discharges resulted from the absence of the usual restriction upon the bankrupt, which was omitted through oversight. "The fifth clause of the amendments, as originally drawn and under debate in the. House of Representatives, where it was attacked as oppressive to the bankrupt, was sufficiently comprehensive to direct itself against a discharge if the applicant had been granted or denied a discharge within six years in ■either voluntary or involuntary proceedings. It was as follows: 'or (5) been granted or denied a discharge in bankruptcy within six years.' The debates show that those who were against the proposed amendment, on the ground that it was oppressive, urged that a debtor ought to be discharged in an invol- untary proceeding instituted by the creditors who had taken his assets, with- out regard to the number or the character of the previous proceedings or dis- charges, yet, after full debate, the amendment passed the House in its compre- hensive terms, and without modification. The Senate, by amendment, modified the rigid terms of the House proposition by striking out the words 'or denied,' and inserting the words 'in voluntary proceedings,' thus presenting to the House the present clause 5, which in two substantial respects modified the House proposition: First, by omitting the words 'or denied,' thus limiting its operation to cases in which a discharge has been actually grantejl; and, second, by in- serting the words 'in voluntary proceedings,' which withdraws its operation from cases in which the bankrupt has been discharged in a previous involuntary proceeding. "Under the Senate amendment, it was left that the applicant shall be dis- charged 'unless he has * * * ji^ voluntary proceedings been granted a dis- charge in bankruptcy within six years.' To the modified clause presented by the Senate, the House agreed, and it became a law. "In view of the sweeping terms of clause 5, as originally drawn and passed by the House, and of the Senate amendment, which was merely a modification 1546 REMINGTON ON BANKRUPTCY. § 2573 of the House policy or proposition, rather than a reversal, the conclusion is irresistable that it was not the purpose of Congress to allow a second dis- charge to a debtor upon his own application if the prior discharge was granted to him in a voluntary proceeding within the time limitation under which the clause operates — in other words, that it was the final intention of Congress to give the bankrupt a second discharge, on his own application, in a subsequent involuntary proceeding, only in cases where his first discharge was in an invol- untary proceeding." § 2572. Whether Present Application Be in Involuntary or Vol- untary Bankruptcy, Immaterial. — Whether the proceedings in which the present apphcation for discharge are vohmtary or invohmtary is imma- terial. It is the character of the proceedings wherein the former discharge ^\as granted that is material. ^"^ ■ In re Seaholm, 14 A. B. R. 292, 136 Fed. 144 (C. C. A. Mass.): "This appeal * * * raises the question whether the words 'in voluntary proceedings,' in § 14, subsec. 'b,' cl. 5, describe or have reference to the pending proceeding, in which the bankrupt himself stands upon his second application for discharge, or to a previous and past proceeding, in which he has been discharged within six years. "But for the ingenious and somewhat subtle contention of the appellant, the meaning of the statute in this respect would seem to be clear, as, by omitting from subsection 'b' all the grounds for refusing a discharge except the one ma- terial in this case, the statute would read, 'investigate the merits of the appli- cation and discharge the applicant unless he has* in voluntary proceedings been granted a discharge in bankruptcy within six years.' Such a reading neces- sarily results, as the conjunction 'or' connects the subject 'he' with the verb in each of the five succeeding clauses. Each clause introduced by 'or' natur- ally and necessarily refers itself back to the subject 'he' and the verb 'has/ the verb 'has' obviously referring to the past. The argument, however, is made that, through possible punctuation, like introducing a comma after the word 'proceedings,' then under reasonable construction the words 'in voluntary pro- ceedings'«would have reference to the proceeding in which the second discharge was granted. We do not think the statute reasonably susceptible of such a construction; and it is quite certain that, under the well-known rules govern- ing the interpretation of statutes, such a forced construction would not be warranted imless unmistakable and efficient historical considerations make it plain that it was so intended by Congress." § 2573. Previous Discharge in Involuntary Proceedings, No Bar. — If the previous discharge within six years were granted in an involuntary proceedings, it is no bar. In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.) : "Having once been granted a discharge in proceedings instituted by himself, and to serve his own purposes, he precludes hirrfself from again seeking the benefit of a discharge, in voluntary or involuntary proceedings for a period of six years." 179. In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.). § 2576 OPPOSITION TO discharge;. 1547 § 2574. In Voluntary Proceedings, It Is Bar. — If the previous dis- charge within the six years were granted in a vokmtary proceedings, it is a bar. ISO In re Carleton, 12 A. B. R. -475, 131 Fed. 146 (D. C. Mass.): "Carleton was adjudged bankrupt upon a petition which he filed as member of a firm com- posed Qf himself and one Freeman. On October 28th, 1902, he received his discharge. On December 10th, 1903, he was again adjudged bankrupt upon his individual voluntary petition and now seeks a discharge thereunder. * * * Counsel for the bankrupt has suggested that the first adjudication was not had in voluntary proceedings; but, so far as the present bankrupt is concerned, the partnership proceedings must be deemed voluntary." § 2575. Previous Refusal of Discharge within Six Years Not within Bar, Though Res Judicata as to Old Debts. — The bar of the statute covers only cases where a previous discharge has been granted and not where it has been refused. Nevertheless, a previous refusal of dis- charge, whether within the six years or before, whether in involuntary or in voluntary bankruptcy proceedings, is res judicata as to the old debts provable in the former bankruptcy even though also provable under the present bankruptcy.^^^ § 2576. This Bar Applicable Where Proceedings Instituted after Amendment of 1903, Though Facts Occurred Beforehand. — The amendment of 1903, thus barring repeated discharges, is applicable to all cases wherein the proceedings were begun after the passage of the amend- ment, even though the bar depends on facts occurring prior to its passage. It is not for that reason retroactive. ^^^ In re Carleton, 12 A. B. R. 475, 131 Fed. 146 (D. C. Mass.): "He contends chiefly that to deny the bankrupt a discharge in this case would be to give to the Ray bill a retroactive effect; but this is not true. The original Bankrupt Act * * * indeed, did not forbid successive petitions in bankruptcy and suc- cessive discharges thereunder, but it conferred upon a bankrupt no vested right to file successive petitions aiid to receive successive discharges which is im- paired by the Ray bill. That statute is not retroactive. It creates no new offense and imposes no penalty, but only fixes new conditions of discharge in case of petitions filed after its passage. Its language is plain, and, in accordance therewith, the discharge is here refused." But not where the petition in bankruptcy, wherein the discharge is being sought, was filed before the amendment. In re Seaholm, 14 A. B. R. 292, 136 Fed. 144 (C. C. A. Mass.): "The appel- lant's other point is that the amendment, under such construction, is retro- active, because, under the old law, the bankrupt would be entitled to a second discharge in either a voluntary or an involuntary proceeding. It is a sufficient 180. In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.). 181. See ch. LH, division 3, § 2437, et seq. 182. In re Neely, 12 A. B. R. 407, 134 Fed. 667 (Ref. N. Y.). 1548 REMINGTON ON BANKRUPTCY. ^ 2581 answer to this, we think, to say that the proceeding in which the point is taken was instituted subsequently to the amendement which changed the law. "There was no vested right in the bankrupt to have the law stand as it was. No one would seriously question the right of Congress to modify the law, and sta-te the conditions upon which debtors in the future could be discharged from their indebtedness, and, when the bankrupt made his application for a dis- charge in this proceeding, he invoked the law as it then was; and, under the statute of 1903, as we view it, the fact .that he had been previously discharged from his indebtedness in a voluntary proceeding within six years was a stat- utory ground for withholding a second discharge upon his own application in this subsequent involuntary proceeding." § 2577. "Within Six Years" Measures Time between First and Second Discharge, Not Between First Discharge and Filing of Second Petition in Bankruptcy. — The expression "within six years" measures the time between a first and second discharge, and not between a first discharge and the fiHng of a second petition in bankruptcy.^^^ § 2578. Nor between Two Adjudications of Bankruptcy. — Xot between the tw^o adjudications in bankruptcy, nor between the fihng of the two bankruptcy petitions. § 2579. Jurisdiction to Administer Estate Unimpaired Though Discharge Barred because of Previous Discharge within Six Years. — The bankruptcy court has jurisdiction to administer a debtor's estate, ahhough he has been granted a discharge within six years, whether a discharge is or is not apphed for, or can or cannot be granted. ^^-^ In- deed, this bar does not prevent the fihng of any number of successive pe- titions in bankruptcy within the six years. It only prohibits petitions for discharge.'^^^ SUBDIVISION "n." Refusal to Obey Court's Order or to Answer Material Question, as Bar to Discharge. § 2580. Refusal to Obey Court's Order or to Answer Question, as Bar to Discharge. — The bankrupt's discharge will be barred, if, in the course of the proceedings in bankruptcy, he has refused to obey any law- ful order of, or to answer any material question approved by, the court. ^^^ § 2581. Refusal to Answer Incriminating Questions. — Refusal of the bankrupt to answer material questions approved by the referee, upon 183. In re Little, 13 A. B. R. 640, 137 Fed. 521 (C. C. A. Ills.); In re Jordan, 15 A. B. R. 449, 142 Fed. 292 (D. C. Pa.); In re Haase, 17 A. B. R. 528 (D. C. N. Y.). 184. In re Little, 13 A. B. R. 640, 137 Fed. 521 (C. C. A. Ills.). 185. Compare, inferentially. In re Barton's Estate, 16 A. B. R. 578, 144 Fed. 540 (D. C. Ark.). 186. Bankr. Act, § 14 (b) (6). § 2584 OPPOSITION TO discharge;. 1549 the ground that his answer may tend to incriminate him, has been held to be a valid objection to the bankrupt's discharge, under § 14 (b) (6).^^" In re Dresser, 16 A. B. R. 563, 146 Fed. 383 (C. C. A. N. Y., affirming In re Dresser, 13 A. B. R. 616, 144 Fed. 318, Ref. N. Y.) : "The contention for the appellant is that to enforce clause 6 under the circumstances of this case would deprive the bankrupt of his constitutional right of immunity from self-incrim- ination. The proceeding for a discharge is not a criminal proceeding, and the constitutional protection extends to the protection of the witness in criminal proceedings only; and, of course, it may always be waived by the witness him- self. We entertain no doubt that it is within the power of Congress to grant or to refuse a discharge to a bankrupt upon such conditions as it may deem proper. Such a privilege is not a natural right, or a right of property, but is a matter of favor to be accepted upon such terms as Congress sees fit to impose." § 2582. Withholding Discharge until Court Rules Complied with. — Even before the amendment of 1903, several cases maintained the pro- priety of withholding discharge until the forms and requirements of ad- ministration had been complied with.^^'^^ And one case even denied a dis- charge altogether, for failure of the bankrupt to surrender assets, although he had not concealed them;^^^ but this case was of doubtful authority. Division 4. Form and Ali^EGations of the Specifications. § 2583. Specifications of Objections to Discharge, Pleadings. — Specifications of objections to discharge are pleadings. ^''*^ And specifications must be filed as a prerequisite to the introduction of any evidence in opposition to discharge.^^^ subdivision "\!' Verification and Signature. § 2584. Specifications to Be Verified. — Specifications should be ver- ified because they are pleadings, and by the bankruptcy act all pleadings must be verified. ^^^ 187. In re Dresser, 13 A. B. R. 616, 144 Fed. 318 (Ref. N. Y., approved by D. C. and C. C. A.). 188. Ante, § 2480. 189. In re Fleishman, 9 A. B. R. 557, 120 Fed. 960 (D. C. Ills.): But this was not correct law at that time. 190. In re Brown, 7 A. B. R. 252, 112 Fed. 49 (C. C. A. Tex.); In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Penn.); In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.); In re Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Special Master, N. Y.); In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.); In re Meuer, 15 A. B. R. 823, 144 Fed. 445 (D. C. Pa.); impliedly. In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.); contra. In re Jamison. 9 A. B. R. 681, 120 Fed. 697 (D. C. Ills.); impliedly. In re Troeder, 17 A. B. R. 729, 150 Fed. 710 (C. C. A. Mass.). 191. In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.). 192. Bankr. Act, § 18 (c). In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.); In re Brown, 7 A. B. R. 252, 112 Fed. 49 (C. C. A. Tex.). 1550 re;mington on bankruptcy. § 2584 In re Gift, 13 A. B. R. 244, 130 Fed. 230 (D. C. Pa.): "All pleadings setting up matters of fact are required by the Bankruptcy Act to be verified, § 18c; and objections to a discharge — according to the better opinion — being of that nature should be made under oath." In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.) : "So, also, the 'spec- ification of grounds of opposition to bankrupt's discharge' (Form 58) is either an 'answer' to the bankrupt's petition for discharge, and therefore a 'pleading,' in almost any sense, even the most technical, or else it is an independent peti- tion, though not such in its form, asking the court to deny to the bankrupt his discharge because of the matters of fact extraneous to the record set up therein as the grounds of the opposition; and in either case, by all the analogies of any practice, and by the very terms of the statute, it surely requires verifica- tion. I cannot conceive of any kind of 'pleading' which so certainly demands a verification as this 'specification in writing.' It is to all intents and pur- poses, under the statute, a criminal charge, or quasi criminal at least; and, while not possessing all tlif^ elements or consequences of criminal information or indictment, it is of so grave a nature that, if any 'pleading' in any suit or practice reasonably demands verification by oath, that does most of all. Crim- inal informations are verified by the oath of the prosecuting officer or other- wise (10 Enc. PI. & Prac. 451); and criminal indictments are verified by the oaths of the grand jurors. There is nothing in the bankruptcy record of so grave a nature as this, and it goes to the bifurcated root of the whole bank- ruptcy proceeding; for, on the one hand, the purpose is to distribute his vol- untarily or involuntarily surrendered assets, and, on the other, to compensate him by a discharge. The shadow of the penitentiary also falls on his side of the general suit, when such charges are made; wherefore the reason for the exaction of all verifications is on the side of requiring it to such specifications, it seems to me. It was not so much under the act of 1867, perhaps, though it must be admitted that this reasoning would have required it under that act also; and it was not demanded either by the statute or by the Supreme Court in its general orders or forms. And this may be the reason why the act of 1898 is so broad in its terms as expressed in § 18c." And this is so notwithstanding the Supreme Court's prescribed Form No. 58 has no verification.^^'" But it has also been held that they need not be verified, unless verification is required by rule of court. In re Jamieson, 9 A. B. R. 681, 120 Fed. 697 (D. C. Ills.): "In this respect the court follows the form of objections prescribed under the act of 1867. These rules have the same weight in this case as though they were included in the express language of the statute. Such a construction of the law and of the Supreme Court rules and forms is reasonable in its practical application. The matters which may be urged by way of objections are peculiarly within the knowledge of the bankrupt. They may, and often do, come to light late in the course of the proceedings. To require the objector to make positive oath thereto would practically do away with objections to discharge. It is a matter of common experience and knowledge that the successful interposition of objections to discharge under the present act is a very difficult matter. I do not deem it in the interest of justice or right to so interpret the act as to enlarge its facilities in this direction by way of implication. The objections are sufficient in brith form and substance. 193. In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.); In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D.' C. Pa.). § 2591 OPPOSITION TO DISCHARGE. 1551 § 2585. But Lack of Verification May Be Waived. — But lack of ver- ification is waived if not objected to before submission of the case or con- clusion of the evidence. 1^^ In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.): "The bankrupt took no exception to the signature, or to the lack of an affidavit, however, until after the testimony had all been taken and argument thereon before the referee had begun. This failure to except in proper time waived the defcts." And is probably waived by merely going into the taking of the evidence on the hearing. Lack of proper jurat may not be raised as an objection for the first time on petition to review. ^^^ § 2586. Or Be Supplied by Amendment. — And lack of verification may be supplied by amendment. ^''^ § 2587. Where Several Objecting Creditors, All May Sign .and Verify Same Specifications. — Several creditors may sign and verify the same specifications of objections to discharge. ^^" § 2588. Whether if Several Join in Same, Each Must Sign and Verify. — If there be several opposing creditors in the same specifications, it has been held that each must sign and verify. ^^^ § 2589. Whether Verification by Some One with Knowledge Req- uisite. — It has been held that the verification should be made by some one who has sufficient knowledge of the facts to make the affidavit. ^^^^ § 2590. Verification by Attorneys Permitted. — Aerification by attor- neys in fact or attorneys at law is permitted.-"" This is so because ''creditor" includes "attorney" under the definitions of the Bankruptcy Act.201 But the reason why the creditor himself does not verify should be given. 20 2 § 2591. Forms of Verification. — In general, it is pro'^)er fur the ver- ification to be in the form prescribed by the creditor's petition (Form No. 194 In re Robinson, 10 A. B. R. 477, 123 Fed. 8U (D. C. R. I.). 195. Godshalk v. Sterling, 12 A. B. R. 302. 129 Fed. 360 (C. C. A. Penn.). 196. In re Meuer, 15 A. B. R. 823, 144 Fed. 14.5 (D. C. Pa.); In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Penn.); In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.). 197. In re Milgraum v. Ost, 12 A. B. R. 306, 129 Fed. 827 (D- C. Pa.), re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). 198. In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.); but compare, In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). 199. In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). 200. In re Milgraum t'. Ost, 12 A. B. R. 306 (D. C. Pa.). 201. In re :\Iilgraum z: Ost, 12 A. B. R. 306 (D. C. Pa.). 202. In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.-); In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.). 1552 REMINGTON ON BANKRUPTCY. § 2595 3), to wit: "Do hereby make solemn oath that the statements contained in the foregoing specification of grounds of opposition to the bankrupt's dis- charge subscribed by him (or them)- are true."-'^'^ § 2592. Whether Verification Must Be Positive or May Be on In- formation and Belief. — It is a question whether the verification must be positively sworn to or may be on information and behef. That it must be positive, see In re Brown, 7 A. B. R. 252, 112 Fed. 49 (C. C. A. Tex.): "A verification of such opposition seems to be required to prevent frivolous objections and waste of time, and we think that such opposition is within the intent and meaning of § 18c of the Bankrupt Act of 1898. If a verification of the opposition is re- quired, it should be positive and certain, not vague and argumentative." But it has also been held that verification "to the best of affiant's knowl- edge, information and belief," is sufficient.-"-* § 2593. Specifications to Be Signed. — The specifications must be signed ;2*^^ but such signing may be waived.-''*' Essential Allegations of SrEciFiCATiONS and Manner oe Making Them-. § 2594. Specifications to Show Capacity of Objecting Creditor. — The specifications should show the capacity of the objecting party, that he is a party in interest, and the facts constituting him such.-*'''' In re Servis, 15 A. B. R. 271, 140 Fed. 222 (D. C. Iowa): "Should also al- lege facts showing that the party filing the specification will be affected by the discharge (e. g., that his debt is a dischargeable debt), and is therefore in- terested in defeating the same." § 2595. All Essential Facts and Elements of Bar to Discharge, to Be Alleged. — The specifications must allege the essential facts and all the elements constituting the bar to the discharge.-*^' ^ In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (Ref. N. Y., affirmed by D. C): "It has been uniformly held that adequate specifications of objections to 203. In re Glass, 9 A. B. R. 391, 119 Fed. 509 (D. C. Pa.). For form of verification by corporation, see In re Glass, 9 A. B. R. 391, 119 Fed. 520 (D. C. Tenn.). By partnership, see In re Glass, 9 A. B. R. 391, 119 Fed. 509 (D. C. Tenn.). By attorney, see In re Glass, 9 A. B. R. 391, 119 Fed. 509 (D. C. Tenn.); In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 204. Milgraum v. Ost, 12 A. B. R. 306, 129 Fed. 827 (D. C. Penn.). 205. In re Baerncop'f, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). 206. In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). 207. See ante, "Who May Oppose Discharge," § 2457, et seq. 208. In re Rhutassel, 2 A. B. R. 697, 96 Fed. 597 (D. C. Iowa) ; In re Blalock, 9 A. B. R. 266 (D. C. S. C.); instance. In re Wetmore, 6 A. B. R. 704, 102 Fed. 290 (Ref. N. Y.); inferentially. In re McGurn, 4 A. B. R. 461, 102 Fed. 743 (D. C. Xev.); In re Mudd; 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.); In re Adams, 4 A. B. R. 696, 104 Fed. 72 (D. C. N. Y.) ; In re Pierce, 4 A. B. R. 489, 103 Fed 64 (D. C. Wash.); In re Levey, 13 A. B. R. 312 (D. C. N. Y.). § 2596 OPPOSITION TO DISCHARGE. 1553 discharge must include every element which the statute prescribes as contrib- uting to the offense condemned, and must state issuable facts." In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.) : "There must be a distinct averment of the facts bringing the case within the specific denunci.-- tion of the statute and nothing else will do." In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.): "The scienter must be charged, and also all essential facts necessary to establish the commission of the offense." In re Peacock, 4 A. B. R. 136, 101 Fed. 560 (D. C. N. Car.): "In short, the objections seem to have been made on general principles, without any regard to, or examination of, the bankruptcy law. This is not sufficient. To defeat the purposes of the act, the objections to discharge should be in* strict com- pliance with its provisions." In re Frice, 2 A. B. R. 676, 96 Fed. 611 (D. C. Iowa): "If counsel preparing these objections had read the Bankruptcy Statute, or only consulted the sec- tion relating to discharges, he could not have failed to note that this section points out only two grounds [before Amendment of 1903] as justifying with- holding discharge, and commands the court to grant discharge unless one of these two grounds is proven. He could scarcely fail to notice, if that section be now consulted by him, that the matters attempted (as we assume) to be stated by him, are not embraced within either of these grounds." § 2596. "Knowingly and Fraudulently" to Be Alleged Where Act Charged Is an "Offense." — Where the act alleged is the commission of one of the offenses prohibited by the Bankrupt Act, it must be alleged to have been done "knowingly and fraudulently. "-"^ In re Patterson, 10 A. B. R. 371, 121 Fed. 921 (D. C. N. Y.) : "It will be noted that the act is explicit in defining the offenses mentioned in subd. 'b' of § 29. The acts constituting the offenses against the law must have been 'knowingly and fraudulently' done, and specification of objections that do not charge that the false oath in the bankruptcy proceedings was knowingly and fraudulently made, are not sufficient." Thus, as to concealment of assets the acts complained of must be alleged to have been" done "knowingly and fraudulently."2io Thus, also, as to the perpetration of false oaths. ^^ 209. In re 'Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Special Master N. Y.); In re Keefe, 4 A. B. R. 126; In re Quackenbush, 4 A. B. R. 281, 102 Fed. 283 (Special Master N. Y.); In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.); In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.) ; obiter. In re Levey, 13 A. B. R. 317, 133 Fed. 572 (D. C. N. Y.) ; In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.): In re Taplin, 14 A. B. R. 360, 135 Fed. 861 (D. C. Iowa); In re Parish, 10 A. B. R. 548, 122 Fed. 553 (D. C. Iowa); impliedly. In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.). 210. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.); In re :Mudd, 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.); In re Frice, 2 A. B. R. 674, 96 Fed. 611 (D. C. Iowa); In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.); In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.); In re Pierce, 4 A. B. R. 554, 103 Fed. 64 (D. C. N. Y.) ; In re Taplin, 14 A. B. R. 360, 135 Fed. 861 (D. C. Iowa); In re Patterson, 10 A. B. R. 371, 121 Fed. 921 (D. C. N. Y.) ; In re Knas- zak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.) ; In re Parish, 10 A. B. R. 548, 122 Fed. 553 (D. C. Iowa). 211. Ky. Nat. Bk. of Louisville v. Carley, 12 A. B. R. 119, 127 Fed. 686 (C. C. A. N. J.); In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.); In re Pat- 2 Rem B— 23 1554 re;mington on bankruptcy. § 2600 But the omission is waived by going to trial upon the merits without ob- jection ;2i2 and the defect is amendable upon seasonable application.^is But such allegation is not necessary at *all when the act alleged is a fraudulent conveyance within the four months preceding bankruptcy, under the amendment of 1903;^^^ although of course the conveyance must be alleged to have been made fraudulently. § 2597. If Act Charged Is an "Offense," Must Appear to Have Been Committed after Bankruptcy, etc. — AMiere the ground of oppo- sition is the commission of one of the offenses punishable by imprisonment by the Bankrupt Act, the allegations must show that the offense charged was committed after the proceedings in bankruptcy were commenced, and in the case of alleged fraudulent concealment of assets, that it was committed after the appointment of a trustee ; otherwise, the allegations will not bring the case within the statute.^^^ This does not mean that all the evidentiary facts to prove the commission of the offense must have occurred after the bankruptcy proceedings were instituted. The initial facts generally have occurred beforehand ; but the concealment charged and proved must be a concealment from the trustee, and the false oath charged and proved must be a false oath in a bankruptcy proceedings. § 2598. Acts Charged, to Be Brought within Time Limit. — The acts charged must be brought within the time limit, if there be a time limited therefor.216 § 2599. Distinct Grounds May Be Joined in One Specification. — Several distinct grounds of opposition may be alleged in one specification. § 2600. But Each Ground to Be Separately Stated. — But each ground of opposition must be separately stated. 2^" terson, 19 A. B. R. 371, 121 Fed. 921 (D. C. N. Y.) ; In re Taplin, 14 A. B. R. 360, 135 Fed. 861 (D. C. Iowa); In re Blalock, 9 A. B. R. 266, 118 Fed. 679 (D. C. Iowa); In re Beebe, 8 A. B. R. 597, 116 Fed. 48 (D. C. Penn.) ; In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Penn.); inferentially. In re Osborne, 8 A. B. R. 165, 115 Fed. 1 (C. C. A. Mass.); In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.). 212. In re Osborne, 8 A. B. R. 165 (C. C. A. Mass.). Obiter, contra. In re Taplin, 14 A. B. R. 361 (D. C. Iowa). 213. In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.). 214. In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Penn.). 215. In re Patterson, 10 A. B. R. 371. 121 Fed. 921 (D. C. N. Y.). Inferen- tially, obiter. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.). It is also a question whether misconduct of the bankrupt in a former bank- ruptcy is a bar. Obiter, see In re Feigenbaum, 9 A. B. R. 597, 121 Fed. 69 (C. C. A. N. Y.). See ante, § 2476. 216. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.). 217. In re Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Special Master N. Y.). § 2603 OPPOSITION TO DISCHARGE, 1555 § 2601. All Grounds Need Not Be Sustained. — And all the grounds need not be sustained. The discharge will be refused if any one is sus- tained. Hudson V. Mercantile Nat'l Bk., 9 A. B. R. 432, 119 Fed. 346 (C. C. A. Colo.): "If any one of the numerous specifications in opposition to the bankrupt's discharge is well pleaded and is sustained by the evidence, it follows, of course, that the order refusing a discharge must be affirmed, since it is not required of any one who objects to a bankrupt's discharge that he shall maintain all of his specifications in opposition thereto." § 2602. Specifications Not to Be Used as "Dragnet" or "Fishing Expedition." — Specifications should not be used as a dragnet or as a cover for a '"fishing expedition;" for abundant opportunity is afiforded for discovery by the "general examination" of the bankrupt and witnesses; and no good reason seems to exist for not producing evidence directly to the point.2is In re Hirsch, 2 A. B. R. 720, 96 Fed. 468 (D. C. Tenn.): "The law affords ample opportitnity, by examination of the bankrupt and otherwise, to enable the creditors to disclose the actual facts; and, while it will not be required that the evidence shall be put in the pleadings, it should be required, in all justice, and in accordance with the ordinary rules of penal or criminal as well as of civil procedure of that kind which charges fraud, that the facts must be stated, and not mere epithetical conclusions of fact, as is too common in pleadings of this character." In re Hixon, 1 A. B. R. 613, 93 Fed. 440 (D. C. Iowa): "Abundant op- portunity is given for the examination, under oath, of the bankrupt at the first meeting of creditors, and afterwards at the time by the referee fixed for filing written appearance of credifors (paragraph 1 of Rule XII), thus enabling the creditor to secure the opportunity of a second examination of the bank- rupt in the light of such facts as the creditor may have learned after said first meeting. No doubt, upon a proper showing, the referee would provide op- portunity for examination of the bankrupt between these two meetings. Thus the creditor ha? at his command abundant opportunity to ascertain particular and specific facts on which to base whatever opposition he desires to make to the discharge of the bankrupt. If, on such examination, the sworn testimony of the bankrupt discloses facts whose existence would prevent such discharge, the creditor is afforded ready opportunity to specify and present same. If, however, such sworn testimony is claimed to be materially false and the creditor can prove the truth, then such creditor can readily specify the particulars whereia such false oat^i is alleged so that court and bankrupt may easily comprehend same. The same general suggestions are correct as to the other grounds whose proven existence would defeat discharge. But it is incumbent on the creditor to assert and prove the existence of facts sufficient, under the statute, to de- feat discharge. On the creditor is the burden of probf." § 2603. Must Not Be Indefinite nor General nor Argumentative, but Certain and Positive. — The specifications must not be indefinite nor general, but certain, positive and specific. "^^ 218. In re Mudd, 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.); In re Peck, 9 A. B. R. 947, 120 Fed. 972 (D. C. Conn.). 219. In re Peacock, 4 A. B. R. 136, 101 Fed. 560 (D. C. N. C.) ; In re Blalock, 9 A. B. R. 266, 118 Fed. 679 (D. C. S. C.) ; In re Wolfensohn, 5 A. B. R. 60 1556 REMINGTON ON BANKRUPTCY. *? 2603 In re :\IcGurn, 4 A. B. R. 459, 102 Fed. 743 (D. C. Xev.) : "Specifications in opposition to a bankrupt's application for a discharge, and the proofs in support thereof, should be clear, positive, and direct. The opposing creditor or creditors must distinctly allege and prove one (or more) of the statutory grounds for refusing a discharge." In re Servis. 15 A. B. R. 271, 140 Fed. 222 ( D. C. Iowa): "The specification should distinctly allege the particular grounds relied upon to defeat the dis- charge, so as to advise (1) the bankrupt of the grounds relied upon, in order that he maj- prepare to meet the same, and (2) the court of the issue to be tried." In re Hirsch, 2 A. B. R. 715, 97 Fed. 571 (D. C. Tenn.): "They do not yet set out how thfc property has been concealed from the creditors or trustee, nor how the books have been concealed or destroyed, unless it may be said that the pleading goes upon the ground that the mere fact that the property was not put upon the schedules is, of itself, conclusive evidence of such concealment as is denounced by the statute, both criminally, and as a ground for withholding the discharge, and that the mere nonproduction of the books on demand is. conclusive of their destruction or concealment. It is well enough to notify attorneys that, where objection is made, the court will insist that the specifica- tions in opposition to a discharge shall notify the bankrupt of the conduct on his part which is relied upon for denying the discharge to him, and mere gen- eral charges or 'fishing' specifications will not suffice. The law afifords ample opportunity, by examination of the bankrupt and otherwise, to enable the creditors to disclose the actual facts; and, while it will not be required that the evidence shall be put in the pleadings, it should be required, in all justice, and in accordance with the ordinary rules of penal or criminal as well as of civil procedure of that kind which charges fraud, that the facts must be stated, and not mere epithetical conclusions -of fact, as is too common in pleadings of this character. A sufficient pleading by averring the facts would disclose the character of the transaction, without any use at all of the denunciatory words, and yet be completely within the impeachment of the statute. To say that a bankrupt has Knowingh' and fraudulently concealed a thing is only to accuse by calling names, and is not pleading a fact. On the face of these specifica- tions nothing appears. It is said that the bankrupt is the sole owner of a cer- tain stock of goods described in the specifications. But how has he concealed it? The specification does not inform us. We can see from the proof w^hat the creditors probably mean, but the pleading should require no such aid from the proof. The evidence should support the averments of the plea by proving them, but it cannot supplj^ the necessary averments of a pleading." In re Hixon, 1 A. B. R. 613, 93 Fed. 440 (D. C. Iowa): "Indeed these charges cannot, in any proper sense, be termed 'specification' but are plainly and grossly generalization." In re Parish, 10 A. B. R. 548, 122 Fed. 553 (D. C. Iowa): "Furthermore, the facts relied on must be stated with reasonable particularity. In this case the realty claimed to belong to the bankrupt, but by him concealed from his trustee, should be described, together with the names of the persons holding the title. (Special Master N. Y.) ; In re Mudd. 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.'>; In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. X. C); In re Holman. 1 A. B. R. 604, 92 Fed. 512 (D. C. Iowa); In re McNamara. 2 A. B. R. 578 (Special Master N. Y.) ; In re Peck, 9 A. B. R. 747. 120 Fed. 972 (D. C. Conn.); In re Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Special Master X. Y.); In re Price, 2 A. B. R. 675, 96 Fed. 611 (D. C. Iowa). To same efifect, analogously, In re White, 14 A. B. R. 241 (D. C. Penn.). § 2604 OPPOSITIOX To DISCHARGE. 1557 the time of the transfer, and any other facts necessary to identify the trans- action." In re Ginsburg, 12 A. B. R. 461, 130 Fed. 627 (D. C. Pa.): "We find that the second, third and fourth specifications or objections must be dismissed for the reason that they are fatally defective in failing to specify what property was transferred, removed, destroyed, and concealed, or wherein the said Ginsburg made a false oath as to the amount of his assets while under examina- tion before the referee." In re Troeder, 17 A. B. R. 729, 150 Fed. 710 (C. C. A. Mass.): "* * * the practice with reference thereto is settled in accordance with the fundamental principles of pleading, although not according to strict rules, and to the effect that the allegations must be specific and of such a character that their sufficiency may be met by demurrer, or by exceptions analogous to those allowed in equity." Obiter, In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico): "Specifications must be clear and definite, not vague and general." Thus, as to a charge of false oath, the referring to the stenographer's notes for the details of the false swearing is insufficient ;22o also the failure to specify wherein the amount of his assets was falsely sworn to on general examination. 221 Thus, as to a charge of obtaining property on credit on a false statement in writing, not only must the false representations be set out, but the name of the person defrauded must be given. 222 Likewise, as to a charge of fraudulent concealment of property, the property itself must be described in such manner that it may be identi- fied ;223 and the ultimate acts of concealment must be pleaded. 22^ In re Hirsch, 2 A. B. R. 71.5, 97 Fed. 571 (D. C. Tenn.): "But how has he concealed it? The specification does not inform us. We can see from the proof what the creditors probably mean, but the pleading should require no such aid from the proof. The evidence should support the averments of the plea by proving them, but it cannot supply the necessary averments of a plead- ing." Likewise, as to books of account, if the charge is of concealment or de- struction, the books must be described. 225 § 2604. No Greater Definiteness Necessary than Nature of Facts Requires. — But no greater definiteness is necessary than the nature of the case or of the facts requires. 22^ 220, In re Goodale, 6 A. B. R. 493, 109 Fed. 783 (D. C. N. Y.). 221, In re Ginsburg. 12 A. B. R. 461, 130 Fed. 627 (D. C. Pa.). 222, In re Levy, 13 A. B. R. 310, 133 Fed. 572 (D. C. N. Y.). 223, Instance held too indefinite. In re Mudd, 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.); instance held too indefinite. In re Ginsburg, 12 A. B. R. 461, 130 Fed. 627 (D. C. Pa.). 224, In re Frice, 2 A. B. R. 675, 96 Fed. 611 (D. C. Iowa). 225,' Instance held sufficiently definite, Goc^shalk v. Sterling, 12 A. B. R. 302, 129 Fed. 5*80 (C. C. A. Penn.) : In this case the property and act were described to be "voucher, to wit: canceled checks and check stubs, through the agency of the regularly authorized bookkeeper." Instance held indefinite, Milgraum z: Ost, 12 A. B. R. 306, 129 Fed. 827 (D. C. Penn.). 226, Bragassa v. St. Louis Cycle Co.. 5 A. B. R. 700, 107 Fed. 77 (C. C. A. Tex.); instance, Milgraum v. Ost, 12 A. B. R. 306, 129 Fed. 827 (D. C. Penn.). 1558 REMINGTON ON BANKRUPTCY. ^ 2608 § 2605. Whether to Be Pleaded "with Certainty of Indictment" Where "Offense" Charged. — Some courts have held, that where the ground of opposition is the commission of one of the offenses punishable by imprisonment, the allegations must be substantially as certain as in a criminal indictment. ^-^ In re Hirsch, 2 A. B. R. 717, 96 Fed. 468 (D. C. Tenn.) : "Substantially, the pleading must be as specific as a criminal information or indictment." § 2606. Evidence Not to Be Pleaded. — Evidence should not be pleaded. 22S Obiter, In re Troeder, 17 A. B. R. 729, 150 Fed. 710 (C. C. A. Mass.): "We find incorporated in the specifications what amounts to 15 printed pages of extracts from the bankrupt's examination, including what appears there as so- -called direct-examination and what appears there as so-called cross-examination, in the precise form in which it was taken down by the referee. There are no allegations setting out specifically any false oath, or explaining its materialty and relevancy, according to any rules of pleading in proceedings at law. Thus this portion of the specifications is clearly insufficient." Thus, it would not be proper to plead the evidence proving the fraud- ulent intent in concealment, so long as the property and the acts constitut- ing the concealment are described. § 2607. Legal Conclusions Not to Be Pleaded. — Legal conclusions are not to be pleaded. -^^ § 2608. Thus, Allegations in Mere Words of Statute Sufficient Only Where Failure to Keep Books, Ground Charged — Elsewhere Insufficient. — Allegations in the mere words of the statute are, in one in- stance, to wit, failure to keep any books of account or records whatsoever, sufficient. 230 Godshalk v. Sterling, 12 A. B. R. 302, 129 Fed. 580 (C. C. A. Penn.): "* * * the objecting creditor need not specify what books of account the bankrupt should have kept." In re Ginsburg, 12 A. B. R. 459, 130 Fed. 627 (D. C. Penn.): "This is charged in the language of the Act, and states all that is required in setting it forth. • No further particulars could be given." In re Patterson, 10 A. B. R. 371, 121 Fed. 921 (D. C. N. Y.) : "As to the 227. In re Taplin, 14 A. B. R. 361, 135 Fed. 861 (D. C. Iowa); In re Levey, 13 A. B. R. 312, 133 Fed. 572 (D. C. N. Y.); In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N. Y.). Obiter (almost with the exactness of an indictment). In re Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Spec. Master N. Y.). Contra, In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.): But "not necessarily with the technical certainty required of an indictment." 228. Instance where pleaded and held to be improper, In re Frice, 2 A. B R. 675, 96 Fed. 611 (D. C. Iowa). Also compare ante, § 1767. 229. Compare, similarly, §§ 252, 1767. 230. In re Levy, 13 A. B. R. 310, 133 Fed. 572 (D. C. N. Y.). Obiter, In re Peck, 9 A. B. R. 750, 120 Fed. 972 (Ref. Conn.). Apparently, contra. In re McNamara, 2 A. B. R. 576 (Special Master N. Y.). § 2608 OPPOSITION TO DISCHARGE. 1559 fourth specification of objection the same is, as clearly, sufficient. In the language of the Act it charges a failure to keep books of account, etc. It alleges a fact. No further particular could be given." But where the faihire charged is not an absolute faihire to keep any books or records whatsoever, but is a failure to keep such as would enable the financial condition to be ascertained, the particulars in which the failure consists should be set out.-^° In re Peck 9 A. B. R. 7.50, 120 Fed. 972 (Ref. Conn., affirmed by D. J.): "With regard to the allegation of failure to keep books, it has been held in one or two cases that the general words of the statute describing the oflFense are sufficient for the introduction of evidence where the intent is to allege that the bankrupt kept no books at all. In* the present case, however, the attorney for the objecting creditors examined the bankrupt, and the bankrupt's, books, consisting of ledgers, cash book, day book, etc., at great length, occupy- ing two days therein, and if there existed any facts sufficient to constitute a bar to the discharge in relation to the books", or to the business dealings and testimony of the bankrupt, the objecting creditors were in a position to spe- cifically charge such acts." [1867] In re Frey, 9 Fed. 376: "The objection being, therefore, to the manner in which the books are kept, and to imperfections, or omissions therein, gen- eral objections, like those above stated, are not sufficient. The particular irregularities or omissions must be pointed out in the specifications, to entitle them to be considered." [1867] In re Graves, 24 Fed. 5.50: "The authorities appear to be numerous and uniform that, under a broad, indefinite allegation like the present, the creditor may prove that the bankrupt kept no books at all, or that he failed to keep any one of the books necessary for the transaction of the business in question. Having failed in this, however, he cannot enter into an examination of the books themselves, for the purpose of showing that they were carelessly kept, or -kept on a wrong principle. If such an issue is to be raised, the bank- rupt must be advised of it by distinct, specific, and definite statements of plead- ing." And where the allegation of total failure is intermingled with allegations, as to "destruction" and "concealment" of books of account, etc., the words of the statute will be insufficient.-"^^ Allegations in the mere words of the statute (in all instances ex- cept as to the absolute failure to keep any books of account or records whatsoever) are, in short, insufficient.--" ^ 230. In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa); In re Quacken- bush, 4 A. B. R. 281, 102 Fed. 282 (Ref. N. Y.) ; [1867] In re Littlefield, 3 N. B. Reg. 57; [1867] In re Bellis, 3 N. B. Reg. 496. 231. Milgraum v. Ost, 12 A. B. R. 306. 129 Fed. 827 (D. C. Penn.) ; In re Holman, 1 A. B. R. 600, 92 Fed. 512 (T>. C. Iowa); In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 232. Obiter, McNeil v. U. S.. 18 A. B. R. 21 (C. C. A. Tex.); In re McNa- mara, 2 A. B. R. 576 (Special Master N. Y.) ; In re Holman, 1 A. B. 600. 92 Fed. 512 (D. C. Iowa); impliedly. In re Bromley, 18 A. B. R. 227, 152 Fed. 493 (D. C. Pa.); [1867] In re Butterfield, 5 Biss. 120; [1867] In re Hill, 2 Ben. 136, Fed. Cases No. 6,482; [1867] In re Freeman, 4 Ben. 245, Fed. Cases No.. 5,082; In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 1560 RICMINGTON ON BANKRUPTCY. § 2608 In re Hirsch, 2 A. B. R. 715, 97 Fed. 571 (D. C. Tenn.)* "But they likewise fall under the general rule that where the language of a statute does not of itself serve the purpose of giving notice to the offender of the particular conduct which is charged against him as an offense, the pleader must aver the facts with sufficient fullness to accomplish that object." U. S. v. Carll, 105 U. S. 611: "It is not sufficient to set forth the offense in the words of the statute, unless those words, of t)iemselves, fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." (Obiter) In re Wetmore, 6 A. B. R. 704, 99 Feb. 703 (Special Master N. Y.): "It is not enough to plead in the language of the statute, 'where the language of the statute does not of itself serve the purpose of giving notice to the offender of the particular conduct which is charged against him as an offense.' " In re Hixon, 1 A. B. R. 613, 93 Fed. 440 (D. C. Iowa): "And since abundant opportunity is thus afforded the creditor for particularly and definitely ascer- taining the exact grounds upon which a discharge should be refused, if such grounds exist, no injustice is done to the creditor by requiring that for which the statute, general orders, and rules provide, viz, 'specification' of such grounds. This is due to the bankrupt, that he may prepare to meet such grounds. It is due, also, to the court, that the court may have a defined limit wMthin which evidence and argument may be confined. The statute (§ 14) states in most general terms the 'grounds' for refusing discharge. Plainly, this was necessary, since, with the general boundaries so clearly stated, we could the more ac- curately and readily determine whether a specific state of facts was included therein. E^qually manifest is it that a part of the duty of an opposing creditor is to so clearly and specifically state the facts constituting the grounds of his oppostion that the court may know whether such grounds are within the terms of the statute." [1867] In re Condict, 19 B. Reg. 142, Fed. Cas. 3,094: "It has been the uniform practice under the Bankrupt Act to consider all specifications too vague and general which charge the offense in the words of the act. The particulars in which the bankrupt has offended should be so set forth that he may be apprised of the precise matters wherein he is alleged to have trans- gressed." Thus, alleging concealment of assets in the words of the statute, is in- pufificient.-^^ In re Ginsburg, 12 A. B. R. 459, 130 Fed. 627 (D. C. Penn.) : "* * * are fatally defective unless the facts are fully stated." Likewise, alleging in the words of the statute the commission of a false oath, is insufficient;--''^ also the destruction or concealment of books of account, etc.^^o 233. In re Quackenbush, 4 A. B. R. 274, 102 Fed. 282 (D. C. N; Y.) ; God- shalk V. Sterling, 12 A. B. R. 302, 129 Fed. 580 (C. C. A. Penn.); In re McNa- mara, 2 A. B. R. 576 (Special Master N. Y.). 234. In re Ginsburg, 12 A. B. R. 459, 130 Fed. 627 (D. C. Penn.); In re McNamara, 2 A. B. R. 576 (Special Master N. Y.). 235. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.); In re Hirsch, 2 A. B. R. 717, 96 Fed. 468 (D. C. Tenn.) ; In re Milgraum v. Ost, 12 A. B. R. 306, 129 Fed. 827 (D. C. Penn.); In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). §'2610 OPPOSITION TO DISCHARGE. 1561 Likewise, alleging in the words of the statute the obtaining of property on credit on a materially false statement in writing is insufficient. ^^"^ Godshalk v. Sterling, 12 A. B. R. 302, 129 Fed. 580 (C. C. A. Penna.): "The specification numbered 2 does not set forth what the 'materially false statement' was upon which the bankrupts obtained credit. No good reason appears why at least the substance of this alleged false statement was not contained in the specification." And allegations in the mere words of the statute have been held, in one case, insufficient to base an amendment upon.^^^ § 2609. Alternative Allegations Improper. — Allegations in the al- ternative are usually improper. --^^ SUBDIVISION "c." Defective Specifications: Taking Advantage oe Them: Waiving and Amending Them : Fatae Variances. § 2610. Defective Specifications; Rights and Remedies. — The bankrupt, as may be appvopriate, may move to require defective specifica- tions to be made more definite and certain ; to strike out improper or superfluous allegations; may object to the introduction of any evidence, if specifications are fatally defective; and may demur. It has been held that the bankrupt need not demur in order to avail him- self of the insufficiency of allegations; and that he may avail himself of the insufficiency at the hearing. In re Crist, 9 A. B. R. 1, 116 Fed. 1007 (D. C. Ala.): "Where the allegations of the specifications are vague and general, or unauthorized by law, the bank- rupt may move to have them stricken out, or he may rely upon his defense at the time of the hearing; for the court will disregard such allegations. In re Wagoner, Fe^J. Cas. No. 17,037; In re Rathbone, Fed Cas. No. 11,580; In re Tyrrel, Fed. Cas. No. 14,314. If the allegations are insufficient in law, the bankrupt may file exceptions to them, analogous to those allowed in equity, or he may demur, or may neither except nor demur, but leave it to the court to hear the application for a discharge, and such pleas and proofs as may be made in opposition thereto by parties in interest." • Presumably he may thus avail himself by objection to the introduction of evidence. Yet, where the defect does not consist in a total failure to state some element of the act attempted to be alleged but consists only in stating it wfth not sufficient definiteness, it would seem to be the better rule that 236. In re Levey, 13 A. B. R. 317, 133 Fed 572 (D. C. N. Y.). 237. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 238. In re Quackenbush, 4 A. B. R. 274, 120 Fed. 282 (D. C. N. Y.); appar- ently, In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). Apparently, Milgraum v. Ost, 12 A. B. R. 306, 129 Fed. 827 (D. C. Penn.^;, although perhaps this decision was based on the following of the bare statu- tory words rather than because of being in alternative. 1562 REMINGTON ON BANKRUPTCY. § 2612 such defect should be urged before the hearing, and that it is waived by going to hearing thereon without objection. ^^^ § 2611. Whether Specification of One Ground and Proof of An- other, a Fatal Variance. — Where one ground is specified but another is proved, it has been held to be a fatal variance,-^*^ unless, of course, per- mission be given to amend the specification to conform with the proof. But it is doubtful whether the power of amendment may be stretched thus far.2^1 § 2612. Defective Specifications Waived by Going to Trial with- out Objection. — Defective specifications are waived by going to trial on the merits without objection.^^- In re Osborne, 8 A. B. R. 165, 115 Fed. 1 (C. C. A. Mass.): "Where the specifications failed utterly to allege that the concealment complained of was done fraudulently and knowingly." In re Baldwin, 9 A. B. R. 591, 119 Fed. 796 (D. C. N. Y.): "If the contention of the opposing creditor is correct, and established by satisfactory evidence, the petitioner is not entitled to his discharge. The objections and specification of the opposing creditor are quite informal and somewhat defective. But no demurrer, or motion in the nature of a demurrer, was interposed, and the par- ties proceeded to a hearing and went through the trial without raising the question of their sufficiency. It was then too late to raise that question. The bankrupt, by pursuing this course, waived all objection to their sufificiency." Thus, lack of verification of specifications is waivable. -^^ But where there is not a mere omission to allege the objecting party to be a party in interest, but an affirmative allegation showing him to be not a party in interest, the defect is not waived by failure to object. In re Servis, 15 A. B. R. 271, 140 Fed. 222 (D. C. Iowa): "The failure to allege in the specification to whom the bankrupt was indebted for borrowed money or for goods not due or past due, and to verify the same, are perhaps waived by the failure to except to the specifications upon these grounds; but where the specification fails to show that the party making the same is a party in interest and will be affected by the discharge, but affirmatively shows that 239. Inferentially, In re Baldwin, 9 A. B. R. 591, 119 Fed. 796 (D. C. N. Y.). Where by local rule it is necessary to raise objections to the sufficiency of the allegations within a specified time by motion before the judge and the parties proceed to trial without making such objections, all objections to the sufficiency are waived, and after trial objections that the evidence received was not within the issue, comes too late. In re Baldwin, 9 A. B. R. 591, 119 Fed. 796 (D. C. N. Y.); obiter, inferentially. In re Knaszak, 18 A. B. R. 188, 151 Fed. 503 (D. C. N. Y.). 240. In re Halsell, 13 A. B. R. 106, 132 Fed. 562 (D. C. Tex.). 241.' See post, § 2617. 242. Osborne v. Perkins, 7 A. B. R. 250, 112 Fed. 127 (C. C. A. Mass.); Bragassa v. St. Louis Cycle Co., 5 A. B. R. 700, 107 Fed. 77 (C. C. A. Tex.). But see In re Crist, 9 A. B. R. 1, 116 Fed. 1007 (D. C. Ala.). 243. In re Robinson, 10 A. B. R. 477, 123 Fed. 844 (D. C. R. I.); Godshaik V. Sterling, 12 A. B. R. 302, 129 Fed. 580 (C. C. A. Pa.); obiter, In re Servis 15 A. B. R. 274, 140 Fed. 222 (D. C. Iowa). § 2615 OPPOSITION TO DISCHARGE. 1563 he will not brj, the court itself may take notice of this, though the specification is not excepted to, for oppostion to a discharge will not be heard or determined at the instance of one who does not show in his specification that he is a party in interest, and therefore entitled to oppose the same. This specification is fatally defective in this respect, and presents no issue that should be considered or determined. See In re Brown, 7 Am. B. R. 252, 112 Fed. 49; In re Chandler (C. C. A.), 14 Am. B. R. 512, 138 Fed. 637." But if defective specifications are not waived, it is the master's duty to report back to the court that nothing has been filed with him in the way of objections which he considers to require the taking of evidence.^^* § 2613. Defective Specifications May Be Amended. — Defective specifications may be amended, in the discretion of the court. -^° In re Henderick, 14 A. B. R. 795, 138 Fed. 473 (D. C. Conn.): "The creditors have offered to file amendments which go to matters of form. I think that they are entitled to do this, if by so doing they shall not change the substantial nature of their objections." Thus, where the amendment consists simply of an ampHfication of the allegations of a fraudulent transfer, it has been permitted. ^^"^ And amend- ment should be allowed, as of course, where no laches on the part of the creditor appears, and no injustice to the bankrupt or unreasonable delay will result.2^" § 2614. Must Be Something in Pleading Whereby to Amend. — There must be something already in the pleading by which to amend. -^^ And allegations in the mere words of the statute have been held insufficient to base an amendment upon.-^^ § 2615. Amendment Permissible after Time Limited for Filing Specifications. — Amendment may be permitted even after the expiration 244. In re Hendrick, 14 A. B. R. 795, 138 Fed. 473 (D. C. Conn.). 245. In re Osborne, 8 A. B. R. 165, 115 Fed. 1 (C. C. A. Mass.); In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa); In re Glass, 9 A. B. R. 391, 119 Fed. 509 (D. C. Tenn.); In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.); In re Carley, 8 A. B. R. 720, 117 Fed. 130 (C. C. A. N. J.); In re Nathanson, 18 A. B. R. 252, 152 Fed. 585 (D. C. N. Y.) ; In re Bemis, 5 A. B. R. 36, 104 Fed. 672 (D. C. N. Y.) ; In re Knaszak, 18 A. B. R. 189, 151 Fed. 503; In re ]\Iorgan, 4 A. B. R. 402, 101 Fed. 982 (D. C. Ark.). Impliedly, In re Pierce 4 A. B. R. 554, 103 Fed. 64 (D. C. X. Y.). 246. In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Pa.). 247. In re Carley, 8 A. B. R. 720, 117 Fed. 130 (C. C. A. N. J.). 248. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Penn.) : In this decision the qualification is added "after the time for filing objections to the discharge has expired;" but of course all amendments must have something whereby to amend already in the record; and absolutely new specifications could be filed, regardless of the condition of the record, up to the time limited for filing them. In re Mercur, 8 A. B. R. 275, 116 Fed. 655 (D. C. Pa.); In re Bromley, 18 A. B. R. 227, 152 Fed. 493 (D. C. Pa.). 249. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 1564 REMINGTON ON BANKRUPTCY. § 2621 of the time allowed by law for filing specifications. ^^o But after the time within which the objections to the bankrupt's discharge are required to be filed, an amendment thereto in matter of substance is only allowable where there is already a record sufficient to justify it.^^i § 2616. Even New Ground of Opposition May Be Added. — Amend- ment may be had even to introduce new ground of oppositionists but not to introduce an entirely new ground of opposition after the evidence is all in, and especially not on review. ^^^ § 2617. Amendment to Conform Pleadings to Proof, but Not to Set Up Entirely New Ground after Trial. — After hearing had, amend- ment may be allowed in order to conform the pleadings to the proof ;2o* but not, after hearing is concluded, to introduce an entirely new ground of opposition. 255 § 2618. Amendment May Be Ordered. — Amendment may be or- dered. s^*" § 2619. Striking Off Specifications after Amendment for Failing Still to Show Sufficient Grounds. — If, after amendment, the specifica- tions still fail to show sufficient grounds, they may be stricken off.^^^ § 2620. Amendment May Be Conditioned on Payment of Costs. — Amendment may be conditioned on payment of costs. ^^s § 2621. Amendment May Be Refused. — Amendment may be refused for proper cause. Thus, amendment of specifications may be refused on account of laches ;259 or on account of lack of proper excuse ;2^*^ or on account of evident nonexistence of essential facts i^f^^ or on account of 250. In re Morgan, 4 A. B. R. 403. 101 Fed. 982 (D. C. Ark.); In re Os- borne, 8 A. B. R. 165, 115 Fed. 1 (C. C. A. Mass.); In re Nathanson, 18 A. B. R. 252, 152 Fed. 585 (D. C. N. Y.). 251. In re Gift, 12 A. B. R. 244, 130 Fed. 230 (D. C. Penn.). 252. In re Glass, 9 A. B. R. 391, 119 Fed. 509 (D. C. Tenn.). Contra, but obiter, In re Hendrick, 14 A. B. R. 795, 138 Fed. 473 (D. C. Conn.). 253. See next paragraph following. 254. In re Pierce, 4 A. B. R. 554, 103 Fed. 264 (D. C. N. Y.) ; In re Lesser, 5 A. B. R. 330, 108 Fed. 205 (D. C. N. Y.). Obiter, In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.). 255. In re Pierce, 4 A. B. R. 554, 103 Fed. 264 (D. C. N. Y.). 256. In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa). 257. In re Holman, 1 A. B. R. 600, 92 Fed. 512 (D. C. Iowa).' 258. Instance, In re Patterson, 10 A. B. R. 371, 374, 121 Fed 921 CD C N. Y.). ■ ^ • • 259. Kentucky Nafl Bk. v. Carley, 10 A. B. R. 375, 121 Fed 822 (C C \ N. J.); In re Mudd, 5 A. B. R. 242, 105 Fed. 348 (D. C. Mo.). Obiter, in- fcrcntially, In re Nathanson, 18 A. B. R. 252, 254, 152 Fed 585 (D C N 'y ) 260. In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C Iowa) ' 261. In re Hixon, 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa) § 2624 OPPOSITION TO DISCHARGE. 1565 there being "nothing to amend by," the pleading being merely in the words of the statute. -'^- In re Bromley, 18 A. B. R. 227, 152 Fed. 493 (D. C. Pa.~) : "There is no state- ment of fact on which an amendment can be grafted, and leave to amend should be granted where only the words of the statute are used." § 2622. Refusal to Permit Amendment Reviewable for Abuse of Discretion. — Refusal to permit amendment in a proper case may be an abuse of discretion reviewable by the circuit court of appeals, for it is a substantial right of the creditor. ^^3 Answering the Specifications. § 2623. Answer to Specifications Not Necessary. — The specifica- tions need not be met by answer : they are taken as denied. ^^^ In re Logan, 4 A. B. R. 525, 102 Fed. 876 (D. C. Ky.): "It is insisted by the creditor, inasmuch as the bankrupt made no response to the specifications of objections to the discharge, that the charges made by the creditor therein should be taken as confessed; and we are cited to Loveland, Bankr., § 281, in support of this view. We cannot agree with that learned author in the proposition that further pleading was necessary. There is no rule in bankruptcy which requires in such cases any further pleading by a bankrupt. By the mode of procedure, uniform in this district, at least, the bankrupt files a petition for a discharge, in which he avers' that he has complied with all the provisions of the Bank- rupt Act. This is his pleading, and upon it the proper notice is served upon all creditors. The prayer of this petition will be granted as of course, unless some creditor objects and specifies his grounds of objection. If the grounds are specified, the case goes to the referee as the next step to ascertain and re- port the facts. Unless the specified grounds are established by the proof, the discharge is granted. Nothing is taken for granted, and the onus is on the creditor. Failure to establish the objections by evidence cannot be a ground for refusing the discharge, and it follows logically and inevitably from this fact that no further pleading is necessary upon the part of the bankrupt. The proof must be taken in any event, and without proof the creditor fails. The bankrupt may rely upon the presumption of innocence." In re Hendrick, 14 A. B. R. 795, 138 Fed. 473 (D. C. Conn.): "The bankrupt had the right to file whatever papers he might see fit to file, but he was under no compulsion to file any. The specifications of objection required proof, and, until a sufficient quantity of proof had been presented to the master, no valid objection to a discharge existed, and no testimony should have been heard, ex- cept such as had for a foundation a valid specification of objection." § 2624. But May Be Filed.— But the bankrupt may file answer thereto if he desires to do so.-*^^ 262. In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.). 263. In re Carley, 8 A. B. R. 720, 117 Fed. 130 (C. C. A. N. J.). 264. Obiter, In re Crist, 9 A. B. R. 1, 116 Fed. 1007 (D. C. Ala.). 265. In re Hendrick, 14 A. B. R. 795, 138 Fed. 473 (D. C. Conn.). 1566 remington on bankruptcy. § 2626 Division 5. Hearing upon Specifications of Grounds of Objection to Discharge. subdivision "h!' Before Whom Hearing to Be Held. § 2625. Final Hearing on Discharge to Be before Judge. — Upon the filing of the specifications, hearing is had. The final hearing upon the petition for discharge and specifications of grounds of objection thereto is to be held before the judge. The hearing may not be held before the referee as such. His functions as referee are confined solely to questions arising out of the administration of the estate. The law contemplates that the hearings upon the petitions for adjudication of bankruptcy, for confirmation of a composition and for discharge must be had before the judge. ^'^'^ § 2626. But Judge May Refer Issues to Special Master.— But the judge may refer the issues to a special master.-'^" In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico): "The application for discharge must, by § 14 of the Bankrput Law, and General Order in Bankruptcy No. 12, § 3, he heard and decided by the judge of the court. The referee has no jurisdiction to determine the question, but the court may refer the case to him generally for a report. He aids the court like a master in chancery. He cannot finally determine the question of discharge or nondischarge, but he may be ordered to report the facts and his recommendation or conclusion as to the matter. This is merely to aid the judge, and the court then determines the matter. The practice in bankruptcy is much like that in equity, and it is hardly supposable that the lawmaking power intended that a court, if it saw proper, should not avail itself of such aid. In re Kaiser, 3 Am. B. R. 767, 99 Fed. 689." Fellows V. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.): "In §§ 38 and 39 the jurisdiction and duties of referees are specifically enumerated, but the matter of hearing applications for a discharge is not included, either in direct terms or inferentially, while subdivision 4 of § 38 clearly excepts such hearings from his jurisdiction. IMoreover, § 14b expressly provides that 'the judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto.' As the district courts are inA^ested with jurisdiction both at law and in equity, to 'enable them to exercise original jurisdiction in bankruptcy proceedings' (§ 2), the power unquestionably exists 266. Bankr. Act, § 38 (a) (4). In re McDufif (Watson v. McDuff), 4 A. B. R. 110, 101 Fed. 241 (C. C. A. La.); In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico); Fellows v. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.). See as to peculiar practice in Iowa, In re Goodhile, 12 A. B. R. 380, 130 Fed. 782 (D. C. Iowa). 267. Gen. Ord. No. 12, § 3: '"But he (the judge) may refer such an appli- cation or any specified issue arising thereon to the referee to ascertain and report the facts." Woods V. Little, 13 A. B. R. 742, 134 Fed. 229 (C. C. A. Penn.) ; In re Kais<;r, 3 A. B. R. 767. 99 Fed. 689 (D. C. Minn.); Watson v. McDuff, 4 A. B. R. 110, 101 Fed. 241 (C. C. A. La.). § 2629 OPPOSITION TO DISCHARGE. 1567 to order a reference for the purpose of the hearing pursuant to the equity practice; and it would be practically impossible to conduct the hearings otherwise in dis- tricts like the northern district of Illinois, with the press of other business, and cases in bankruptcy under the present act numbering in the thousands. The reference is then made to the referee in the capacity of special master, not as referee in bankruptcy, and for a duty independent of the latter office, and in no sense incompatible. To avoid. confusion, it would seem better practice to desig- nate the appointee as special master for the purpose in the order, but the fact that the name of 'referee' or 'referee in bankruptcy' is retained instead cannot af- fect»his performance of the duties. His report is advisory only, and the final hearing is before the district judge." § 2627. Motions and Demurrers to Be to Judge, Not to Special Master. — ^Motions for leave to amend must be made to. the judge, not to the special master. ^^s Likewise, demurrers and motions to strike out mat- ter from the specifications or to require them to be made definite and cer- tain, etc., etc., must be made before the judge ;-^9 also, the application of one objecting creditor, whose own specifications are insufiicient, to avail himself of specifications filed by another creditor.-"*^ But objections to the introduction of any evidence under the specifications, although some- times called "in the nature of" a demurrer, are, of course, to be heard in the first instance by the special master. SUBDIVISION "b." Functions and Duties of Special ^Master on Discharge. § 2628. Hearings before Special Master. — Hearings before the special master are in general to be held in accordance with federal equity practice. 2"! § 2629. Whether Special Master to Exclude Improper Evidence. — It has been ruled in some cases that the special master must take down all the evidence excluded by him under objection and exception. ^^ 2 In re Romine, 14 A. B. R. 785, 138 Fed. 837 (D. C. W. Va.) : "The first ques- tion presents little difficult3^ In re Wilde's Sons, 11 Am. B. R. 714, 131 Fed. 268. Ky. Xat'l Bk. v. Carley, 10 A. B. R. 375, 121 Fed. 822 (C. C. A. N. ].); In re Peck, 9 A. B. R. 747, 120 Fed. 972 (D. C. Conn.); In re Kaiser, 3 A. B. R. 770, 99 Fed. 689 (D. C. Minn.); In re Burk, 3 N. B. R. 296; In re Mcln- tyre, 1 N. B. N. 115; In re Wolfensohn, 5 A. B. R. 60 (Ref. N. Y.). Compare, contra inferentially. In re Quackenbush, 4 A. B. R. 274. 102 Fed. 282 (D. C. N. Y.). Analogously, In re Baldwin, 9 A. B. R. 591, 119 Fed. 796 (D. C. N. Y.). 269. In re Baldwin, 9 A. B. R. 591, 119 Fed. 796 (D. C. X. Y.), by local rulo. 270. In re Wetmore, 6 A. B. R. 703, 102 Fed. 290 (Special Master N. Y.). 271. In re Lipsett, 9 A. B. R. 32, 119 Fed. 379 (Ref. X. Y.); Dressel v. Xorth State Lumber Co., 9 A. B. R. 541, 119 Fed. 531 (D. C. X. Y.) ; Bank v. Johnson, 16 A. B. R. 209, 143 Fed. 463 (C. C. A. W. Va.). Whose Duty to Bring on Hearing before Special Master. — As to whose duty it is to bring on the hearing before the special master, see In re Eldred, 18 A. B. R. 243. 152 Fed. 491 (D. C. X. Y.). 272. Bank z: Johnson, 16 A. B. R. 209, 143 Fed. 463 (C. C. A. W. Va.) ; In re Lipsett, 9 A. B. R. 32, 119 Fed. 279 (Ref. N. Y.). Compare, Dressel v. North State Lumber Co., 9 A. B. R. 541, 119 Fed. 531 (D. C. X. Car.). Com- pare, In re DeGottardi, 7 A. B. R. 746, 114 Fed. 328 (D. C. Calif.); ap- parently, In re Knaszak. 18 A. B. R. 188, 151 Fed. 503 £D. C. X. Y.). 1568 REMINGTON ON BANKRUPTCY. § 2629 142, it is held, that a referee acting in his character of referee or as special commissioner has the right to exclude evidence which he deems inadmissible. But 'many other cases hold the contrary. In re Lipset, 9 Am. B. R. 32, 119 Fed. 379, it is held, that hearings before referees are substantially the same as in equity, subject, in effect, to ecjuity rule 67, and therefore it is the duty of the referee, although he must rule on any objections made to testimony oflfered, to take all excluded testimony and make the same a part of the record, with his ruling on the objections, and also the exceptions which may be taken noted in connection with such testimony. It is clearly set forth in this case that the reason for this procedure is to enable the judge on a review not ta re- verse a decision made because of the error of the referee in excluding evidence, but enable such judge to at once, without reference back to take such testi- mony, to determine the issue upon the proper testimony, disregarding that which was improper. * * * "But it is needless to adduce further authority touching this point, for, in my judgment, General Order in Bankruptcy No. XXII, fully determines it. The latter clause of this order provides: " 'The referee shall note upon the deposition any question objected to, with his decision thereon; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just.' "It is clear to me that in taking testimony the referee must have it taken down, preferably in narrative form, but, upon objection raised, it is his duty to require the matter to be presented by question, to which the objection and reason thereof is to be clearly but briefly noted; then to -enter his ruling thereon as to whether proper or not, and, although he may rule it to be improper, yet allowed it to be answered. I am persuaded, however, that he is not called upon to suffer and allow counsel, as in this case, to ask and permit witnesses to answer the same question over and over again, whereby time is unnecessarily consumed and costs incurred, but that upon his noting the fact that the ques- tion has been once answered, or the demand to answer has been once positively refused, the court will justify him in preventing vain repetition. Applying these rules to this case, it is clear that the referee and the attorneys engaged all had a wrong conception of his power in the start; that they discovered their error; that the referee corrected all possible injury by recalling the witness and permitting the questions to be propounded again which he had ruled out; and that, if the witness was influenced to refuse to answer because of his ruling the questions to be improper, the referee was not blamable, because it was his duty to rule, and the witness alone could at his peril refuse to answer. There was therefore in this first proposition nothing to warrant this rule against the referee." But the more practicable rule is that the special master should exclude incompetent and irrelevant evidence, but should permit to be stated, as part of the exception to the ruling, what the evidence offered would have teen if admitted. This method preserves the rights of all parties and sub- serves the purposes of review quite as well as the first method, and does not carry with it the implication that the special master has no control over the introduction of evidence. ^"^ 273. In re Wolfensohn, o A. R. R. 60 (Special Master X. Y.). Reserving Decision as to Admissibility. — The special master may reserve decision as to the admissibility of evidence. In re Knaszak, 18 A. B. R. 188, 151 Fed. 503 (D. C. N. Y.). § 2634 OPPOSITION TO DISCHARGE. 1569 In re Wilde's Sons, 11 A. B. R. 714, 131 Fed. 142 (D. C. N. Y.) : "A referee in bankruptcy, whether acting in his character as referee or as special commis- sioner, has the right to exclude evidence which he deems inadmissible." In re Kaiser, 3 A. B. R. 767, 99 Fed. 689 (D. C. Minn.): "The authority of the referee is not limited to the taking and reporting of the evidence and ruling as to its admissibility. In addition to that, it is competent and desirable that he shall report finding and recommendations. * * * 'j^j-,g referee should not disregard the specifications, and should confine the evidence to the material facts alleged in the specifications. "The referee has authority to rule upon the sufficiency of the specifications of objections, and should not take evidence on such as are clearly insufficient. Application to amend specifications should be made to the judge." § 2630. Findings of Fact as Well as Evidence to Be Reported. — And the special master must report his findings of fact, not merely the evidence. ^■^•i § 2631. Also Conclusions of Law. — And the special master may re- port whether the objections have been sustained, as well as merely the facts themselves. '"5 § 2632. Exceptions to Special Master's Report and Findings. — Exceptions to the special master's report and findings should be made in accordance with Federal Equity Rule 83 as construed in vSchefield v. Gordon, 151 U. S. 285, except as otherwise provided in the act.^"^ § 2633. Court Presumed to Have Investigated Case on Merits, on Master's Report. — Upon confirming the report of a referee as special master and granting a discharge, it will be presumed the court investigated the case on the merits.-'^ § 2634. Findings of Fact Not Reversed Except for Clear Error. — The findings of fact by the special master will not be reversed,»except upon clear and convincing proof of error. He has view of the witnesses and may note their demeanor on the stand. ^"s 274. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.); In re Kaiser, 3 A. B. R. 367, 99 Fed. 689 (D. C. Alinn.). Separate findings of fact and conclusions of law must be given if demanded. Gen. Ord. XXXVI; In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico). 275. In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico); In re Kaiser, 3 A. B. R. 367, 99 Fed. 689 (D. C. Minn.). 276. In re Covington, 6 A. B. R. 374, 110 Fed. 143 (D. C. N. Car.). 277. Ky. Nat. Bk. of Louisville v. Carley, 12 A. B." R. 119, 127 Fed. 686 (C. C. A. N. J.). 278. In re Covington, 6 A. B. R. 373, 110 Fed. 143 (D. C. X. Car.); In re Lafleche, 6 A. B. R. 482, 109 Fed. 307 (D. C. Vt.); inferentially. In re Keefer, 14 A. B. R. 291, 135 Fe.d. 885 (D. C. N. Y.) ; In re Shriver, 10 A. B. R. 746, 125 Fed. 511 (D. C. Pa.); In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.). Compare similar ruling in C. C. A. in discharge cases, appealed from District Court, Osborne v. Perkins, 7 A. B. R. 250, 112 Fed. 127 (C. C. A. Mass.). 2 Rem B— 24 1570 REMINGTON ON BAN-KRUPTCY. § 2635 In re Forth, 18 A. B. R. 186 (D. C. X. Y.): "The referee was appointed as special master to pass on the facts, and has decided in favor of the bankrupt, after seeing and hearing the witnesses testify and it does not seem to the court that this determination upon these questions can be disregarded, as there is apparently sufficient testimonj' to support his determination." In re Conroy, 14 A. B. R. 250, 134 Fed. 764 (D. C. Pa.): "He had the wit- nesses before him, and is therefore better able to judge what weight should be given to their utterances than the court, who must depend upon the written statement." In re Knaszak, 18 A. B. R. 189, 151 Fed. ?03 (D. C. X. Y.): "They are based on conflicting testimony, and, in their ascertainment, much depended upon the credibility of the bankrupt. The master was of opinion that no reliance what- ever could be given to such of the bankrupt's testimony as was before him. In these circumstances, the record containing other credible evidence to sustain the specifications, the findings of the special master should not be disturbed. The petition for discharge must be denied." Compare, similar ruling in C. C. A. in discharge case appealed from the District Court Barton Bros. -.'. Produce Co., 14 A. B. R. 504, 136 Fed. 355 (C. C. A. Ark.): "Where, as in this case, the hearing was on oral testimony, his conclusions on disputed questions of fact should not be disturbed by the appellate court, except for cogent reasons, such as a palpable mistake or mis- conception of the decided weight of the evidence. * * * The learned judge who heard this case patiently for two days, with opportunity to observe the witnesses, their conduct on the stand, with probable personal knowledge of what manner of men they were, was in better position to form a correct esti- mate of the probative force to be attached to their testimony than this court can form from the more or less imperfect expression of the testimony in type." Compare, In re Harr, 16 A. B. R. 214, 143 Fed. 421 ( D. C. Mo.): "The find- ings of facts by a special master who attended the examination of the witnesses, thus giving him an opportunity of seeing them testify, while not as conclusive as the finding of facts by a jury or a trial judge sitting as a jury, are verj' per- suasive, and if there is substantial testimony to sustain his findings uninfluenced by any mistaken conclusions of law they will not be disturbed by the court hearing the cause on a transcript of the evidence without opportunities to see the witnesses, and thus to judge of their credibility in the same manner as was enjoyed by the master. For these reasons the findings on the objections made by the special master on the first, second, and fourth specifications of objec- tions and on the claim of Wood Bros, will not be disturbed, although the testimony is conflicting, and but for the findings of the special master the court might have reached different conclusions." subdivision "c." Burden of Proof: Dfcref of Proof: Admissibility of Evidence and Credibility of Witnesses on Discharge. § 2635. Burden of Proof on Opposing Creditor. — The opposing cred- itor has the btirden of the proof on opposition to discharge. 2" ^ The mere 279. In re Boasberg. 1 A. B. R. 353 CSpecial Master X. Y.) ; In re Ferris, 5 A. B. R. 246, 105 Fed. 356 (D. C. Iowa); In re Logan, 4 A. B. R. 525, 103 Fed. 876 (disapproved, on other grounds. In re Dow, 5 A. B. R. 400, 105 Fed. 889); In re Gaylord. 5 A. B. R. 411, 106 Fed. 833 (affirmed in 7 A. B. R. 1, 112 Fed. 668, C. C. A. N. Y.); In re Corn, 5 A. B. R. 478, 106 Fed. 143 (D. C. Ga.); In re Holman, 1 A.. B. R. 600, 92 Fed. 512 (D. C. Iowa); In re Hixon, .^ 2638 OPPOSITION TO DISCHARGE. 1571 filing of the specifications is not such denial of the petition as to throw the burden of disproof on the bankrupt. In re Troeder, 17 A. B. R. 731 (C. C. A. Mass.): "All agree that the burden of proof exists on the objecting creditors but the gravamen of proof is variously- stated." § 2636. But Presumptions of Fact May Shift against Bankrupt, and Compel Rebuttal. — But the presumptions may shift against the bankrupt so as to compel him to rebut them i^^^ as where he fails to ac- count reasonably for shortage of assets or to explain reasonably his in- ability to do so;-^^ or where an omission of assets is once shown, the duty then arising for the bankrupt to explain it.-^^ Nevertheless the burden of proof *still rests on the opposing creditors; for the discharge must be granted unless it is proved to be barred ; that is to say, the discharge is a presumptive right, not a privilege to be granted on proof that it is earned. ^'^^ § 2637. Burden of Proof Is on Objecting Creditor as to Each Element of Ground Charged. — The burden of proof is on the objecting creditor as to each element necessary to be proved. Thus, where the ground is the commission of the crime of concealing assets or of making a false oath, each element of the crime must be proved and be proved by the requisite degree of proof. -^"* § 2638. Evidence Need Not Be beyond Reasonable Doubt. — The fvidence to prove the bar need not be beyond a reasonable doubt in any case. 2*^ 1 A. B. R. 610, 93 Fed. 440 (D. C. Iowa); In re Chamberlain, 11 A. B. R. 95, 125 Fed. 629 (D. C. N. Y.) ; In re Kalster, 17 A. B. R. 52 (D. C. Nev.); In re Idzall, 2 A. B. R. 741, 96 Fed. 314 (D. C. Iowa); In re Phillips, 3 A. B. R. 542, 98 Fed. 844 (D. C. X. Y.); In re Wetmore, 3 A. B. R. 700, 99 Fed. 703 (D. C. Pa.); In re Keefer, 14 A. B. R. 290, 135 Fed. 885 (D. C. N. Y.) ; In re Howden, 7 A. B. R. 194, 111 Fed. 723 (D. C. N. Y.) ; In re Hamilton, 13 A. B. R. 335, 133 Fed. 823 (D. C. X. Y.); In re Locks, 5 A. B. R. 139, 104 Fed. 783 (D. C. N. Y.); In re Fades, 16 A. B. R. 30, 143 Fed. 293 (C. C. A. Ills.); In re McGurn, 4 A. B. R. 459, 102 Fed. 743 (D. C. Xev.); In re May, 2 X. B. N. & R. 95 (Ref. X. Y.); In re Garrison, 17 A. B. R. 332 (C. C. A. X. Y.j; In re Cohen, 18 A. B. R. 85, 149 Fed. 178 (D. C. X. Y.); [1867] In re Hill, Fed. Cas. 6482; [1841] In re Herdic, 1 Fed. 242. 280. In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. X. Y.). 281. [n re Finkelstein, 3 A. B. R. 800, 101 Fed. 418 (D. C. X. Y.). 232. In re Rauchenplat, 9 A. B. R. 766, 1 P. R. 471 (D. C Porto Rico). 283. Eankr. Act, § 14 (b). See ante, "Xature and Grounds of Opposition," ^ 2469. 284. In re Garrison. 17 A. B. R. 832 (C. C. A. X. Y.); impliedly. Fellows V. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.); instance, failure to prove the fopbidden intent. Smith r. Keegan, 7 A. B. R. 4, 111 Fed. 157 (C. C. A. Mass.). For further instances, see the cases cited under each ground of objection, ante, division 3. 285. In re Gross, 5 A. B. R. 271 (Ref. X. Y.) ; In re Greensberg, 8 A. B. R. 94, 114 Fed. 773 (D. C. Conn.); In re Salisbury, 7 A. B. R. 771, 113 Fed. 833 (D. C. N. Y.). 1572 REMINGTON ON BANKRUPTCY. § 2640 In re Howden, 7 A. B. R. 191, 111 Fed. 723 (D. C. N. Y.): "The authorities are unanimous in holding that the burden is upon the opposing creditor to prove his objections, not necessarily beyond a reasonable doubt, but by clear and convincing testimony." In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.): "It is not necessary to establish this concealment of assets beyond a reasonable doubt, but by a fair preponderance of credible evidence only." Thus, as to failure to keep proper books of account. 2^*^ § 2639. But Where "Offense" Is Charged, Evidence to Be "Clear," ''Satisfying" or "Convincing." — But where the ground urged is the commission of the crime of concealing assets, or of making a false oath, the proof must be "clear," "satisfying" or "convincing." The cases do not, all of them, enunciate the rule in these precise terms, but the consensus of the authorities will be found to establish the rule in terms substantially as given.^^" In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.): "The evidence must be satisfactory." In re Dauchy, 10 A. B. R. 527, 122 Fed. 688 (D. C. N. Y.) : "This court has held (In re Leslie, 9 A. B. R. 561, 119 Fed. 406), and holds, that the conceal- ment of property in these cases need only be shown by a fair preponderance of satisfactory evidence. This is not a criminal proceeding, in any sense." § 2640. Whether Same Degree of Proof Requisite Where Ground Charged Not a Punishable Offense. — And the same degree of proof seems to have been required, according to some decisions, in cases of objections for failure to keep proper books of account, especially before the amendment of 1903.-^^ But it would seem, on principle, that the 286. In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Ca:r.) ; In re Lafleche, 6 A. B. R. 483, 109 Fed. 307 (D. C. Vt.) ; In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.); In re Polakoff, 1 A. B. R. 358 (Master, af- firmed by D. C). 287. In re Troeder. 17 A. B. R. 732 (C. C. A. Mass.); In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471 (D. C. Porto Rico); In re Corn, 5 A. B. R. 478, 106 Fed. 143 (D. C. Ga.) ; In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (af- firming 5 A. B. R. 410, 106 Fed. 833 C. C. A. N. Y.) ; In re Howden, 7 A. B. R. 1, 111 Fed. 723 (D. C. N. Y.) ; In re Hamilton, 13 A. B. R. 335, 133 Fed. 823 (D. C. N. Y.); In re Salisbury, 7 A. B. R. 770, 113 Fed. 833 (D. C. N. Y.); In re Brumbaugh, 12 A. B. R. 204. 128 Fed. 971 (D. C. Penn.) ; In re Steed & Curtis, 6 A. B. R. 73, 107 Fed. 682 (D. C. N. Car.); In re Wetmore, 3 A. B. R. 700, 99 Fed. 703 (D. C. Pa.); In re McGurn, 4 A. B. R. 459, 102 Fed. 743 (D. C. Nev.); Fellows z'. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.); In re Marsh, 2 N. B. N. & R. 649; In re Berner, 4 A. B. R. 383 (Ref. Ohio, affirmed by D. C.) ; In re May, 2 N. B. N. & R. 93; In re Cornell, 3 A. B. R. 172, 97 Fed. 31 (D. C. N. Y.); In re Cohen, 18 A. B. R. 85 (D. C. N. Y.); In re Cann, 6 A. B. R. 217 (D. C. Ore.); Inferentially, In re Covington, 6 A. B. R. 373, 110 Fed. 143 (D. C. N. Car.); In re Lafleche, 6 A. B. R. 482, 109 Fed. 307 (D. C. Vt.) ; In re Ferris, 5 A. B. R. 246, 105, Fed. 356 (D. C. Iowa); In re Fitchard, 4 A. B. R. 609, 103 Fed. 742 (D. C. N Y.) ; In re Bryant, 5 A. B. R. 114, 104 Fed. 789 (D. C. Tenn.); In re Polakoff, 1 A. B. R. 358 (Master's Report, affirmed by D. C. N. Y.). 288. In re Hamilton, 13 A. B. R. 335, 133 Fed. 823 (D. C. N. Y.) ; In re Chamberlain, 11 A. B. R. 95, 125 Fed. 629 (D. C. N. Y.). But see. In re Hirsch, 2 A. B. R. 715, 96 Fed. 468 (D. C. Tenn.); also, after the amendment. In re Garrison, 17 A. B. R. 832 (C. C. A. X. Y ). § 2642 OPPOSITION To DISCHARGE. 1573 evidence need not be "convincing," nor "satisfying," where no crime is charged. § 2641. "General Examination" of Bankrupt Admissible. — Testi- mony of the bankrupt, given upon his general examination, may be used in opposition to his discharge.^sa Even if not written out nor signed, the testimony of a stenographer or other witness who heard it is competent to prove it.^^o In re Bard, 5 A. B. R. 810, 108 Fed. 208 (D. C. N. Y.): "In the present case it appears that the bankrupt's testimony upon his previous examination was not formally signed by him, although numerous adjournments were signed by him on the minutes. When his testimony was offered in support of the specifica- tions, it was rejected, apparently on the ground of incompetency alone, and not because it had not been signed, or because the bankrupt might wish to make corrections in the written statement. The testimony was competent and should be received when properly evidenced. Proper evidence of what his testimony was, would be either his own signature and verification, or, in the absence of that, the testimony of the person who took the minutes. The latter, in fact, is the ordinary mode o/ proving the testimony of a party given on a previous trial in an independent cause. Subsequently, before the referee, the person who took the notes of the bankrupt's examination testified that the notes of the testi- mony were truly and correctly taken. The testimony was then again offered and again rejected. It should have been received. The signature of the bank- rupt was no longer necessary; nor was it necessary that he should be directed either to sign it. or correct it, if he wished. By the testimony of the witness it was duly proved and was competent. Thenceforward the burden was upon the bankrupt to overcome it." § 2642. Competent Though Crime Charged. — And such testimony is competent, ahhough a crime is charged, the opposition to a discharge not being a criminal proceeding.-^^ 289. In re Dow, 5 A. B. R. 400, 105 Fed. 889 (D. C. Iowa); In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y., affirming 5 A. B. R. 410); In re Bard, 5 A. B. R. 810, 108 Fed. 208 (D. C. N. Y.). In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.) : It is admissible either as admissions or in contradiction of his testimony given on the di';- charge hearing. In re Goodhile, 12 A. B. R. 380, 130 Fed. 782 (D. C. Iowa); analogously, In re Wiesen Bros., 14 A. B. R. 347, 135 Fed. 442 (D. C. Pa.); In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y.) ; contra. In re Marx, 4 A. B. R. 521, 102 Fed. 676 (D. C. Ky.), and In re Logan, 4 A. B. R. 525 (D. C. Ky., disapproved by C. C. A. in In re Gaylord, 7 A. B. R. 1, 112 Fed. 668, and by D. C. Iowa, in In re Dow, 5 A. B. R. 400, 105 Fed. 889). 290. Obiter, In re Knaszak, 18 A. B. R. 189, 151 Fed. 503 (D. C. N. Y..). 291. In re Dow, 5 A. B. R. 400, 105 Fed. 889 (D. C. Iowa); In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y., affirming 5 A. B. R. 410); In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.); In re Goodhile, 12 A. B. R. 380, 130 Fed. 782 (D. C. la.); In re Krueger, 2 Low. 182; In re Marx, 4 A. B. R. 521, 102 Fed. 676 (D. C. Ky.) ; contra. In re Logan, 4 A. B. R. 525 (D. C. Ky.). As to his testimony in state court proceedings, see In re Eaton, 6 A. B. R. 531, 110 Fed. 731 (D. C. N. Y.). 1574 REMINXTOX OX BANKRUPTCY. § 2647 § 2643. But of Other Witnesses, Not Admissible. — Testimony of other witnesses taken upon general examination is not admissible in op- position to discharge. -^2 § 2644. Unless So Stipulated. — But such testimony is admissible if so stipulated. 293 The testimony of the bankrupt actually given elsewhere but admitted by stipulation of counsel as part of the bankrupt's general examination, without being actually resworn to by the bankrupt, cannot, however, con- stitute a false oath to bar discharge. ^^-^ § 2645. Ordinary Rules Determine Admissibility and Credibility. — The ordinary rules determining tbe credibility of witnesses and the ad- missibility of evidence prevail in hearings in opposition to discharge. § 2646. Failure to Produce Material Witnesses Who Are Ao- 'cessible. — Failure to produce material witnesses who could have assisted the bankrupt in accounting for the disappearance of his estate may be evi- dence against him.^^-^ Again, where a creditor has sworn positively to allegations in his specifications as being under his own knowledge and yet fails to take the stand, inference unfavorable to the truth of his allega- tions may be drawn. ^^^ § 2647. Failure of Creditors to Take Steps to Recover Property Alleged Fraudulently Concealed. — Failure of creditors to cause steps to be taken to recover the property alleged to be fraudulently concealed, is to be taken, in a doubtful case at any rate, as an admission that they do not deem the proof of fraud very strong, or that the property did not constitute property "belonging to the estate," after the election of the trustee, so as to constitute concealment of property belonging to the estate "from the trustee. "^9" But the hearing upon the discharge will not be postponed to await the outcome of pending suits for the recovery of assets. -^^ Paxton z'. Scott, 10 A. B. R. 81 (Xeb.): "The hearing on this application will not ordinarily be staj^ed pending protracted litigation in other courts, it being the policy of the Bankrupt Law to secure the debtor's discharge as soon as consistent with justice." 292. In re Goodhile, 12 A. B. R. 380, 130 Fed. 782 (D. C. Iowa); In re Wil- cox, 6 A. B. R. 362, 109 Fed. 628 (C. C. A. N. Y.) ; contra (if the bankrupt be actually present in person or by counsel), In re Cooke, 5 A. B. R. 434j_109 Fed. 631 (D. C. N. Y.). 293. In re Semmel, 9 A. B. R. 352, 118 Fed. 487 (D. C. Pa.). 294. In re Goldsmith, 4 A. B. R. 234, 101 Fed. 570 (D. C. Penn.). Ante, §§ 2530, 2540. 295. In re Hershkowitz, 14 A. B. R. 91, 136 Fed. 950 (D. C. X. Y.). 296. Inferentially, In re Romine, 14 A. B. R. 785, 138 Fed. 837 (D. C. W. Va.). 297. In re Hirsch, 2 A. B. R. 723, 96 Fed. 468 (D. C. Tenn.). 298. In re Cornell, 3 A. B. R. 173, 97 Fed. 29 (D. C. N. Y.). Post, § 2696. 8 2650 OPPOSITION TO DISCHARGE. 1575 § 2648. Evasive Testimony of Bankrupt: Credibility. — Evasive testimony of the bankrupt is a material consideration in determining the credibility of his testimony. -^^ In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.) : "Courts are not compelled to accept the bald statements of interested witnesses, or of any wit- ness when his statements are laden with inconsistencies, or burdened with in- herent improbabilities, or descredited by incriminating confessions. It is not probable this bankrupt was receiving- and paying out so much money to divers individuals at this time that he fails to recollect any of the particulars of this alleged transaction with the trustee. "There is much in evidence of this bankrupt displaying such gross ignorance, real or pretended, of his business afifairs, that the court is justified in holding that his evidence is not entitled to credit on either of two grounds: First, such want of knowledge, memory, and intelligence as to make his testimony unre- liable; or, secondly, such an unwillingness to disclose the truth as to wholly discredit him." § 2649. Contradictory Statements and Incredible Explanations. — So, also, contradictory statements and extraordinary and incredible ac- counting for the disappearance of assets, are to be taken as indicia of fraud and concealment.^^*^ § 2650. Impeachment of Witness by Inherent Improbability of Own Testimony. — A witness may be as thoroughly discredited by the inherent improbability of his own testimony as by the direct testimony of other witnesses.^o/ Inferentially, In re Henderson, 12 A. B. R. 351, 130 Fed. 385 (D. C. Pa.): "The question certified by the referee is purely a question of fact, and depends so largely upon the credibility of the testimony that his decision is entitled to more than the usual weight. If the bankrupt's explanation were true concerning the manner in which he spent the large sum of money that he received in a single month, it would certainly have been possible for him to produce some corroborating evidence, and the referee lays proper stress upon the absence of any witness who could speak of the bankrupt's habits of gambling and dissipation, to which he attributes the loss of the money. "The order of the referee directing the bankrupt to return $5,000 to his trus- tee is approved." Inferentially, In re Shultz, 14 A. B. R. .".78 (D. C. N. Y.) : -The burden of 299. In re O'Gara, ?^ A. B. R. 349, 97 Fed. 932 (D. C. Ore.). 300. In re Hershkowitz, 14 A. B. R. 86, 136 Fed. 950 (D. C. N. Y.) ; In re Leopold, 5 A. B. R. 279 (Ref. N. Y.) ; In re O'Gara, 3 A. B. R. 349, 97 Fed. 932 (D. C. Ore.). Compare, to same general effect; In re Conroy, 14 A. B. R. 250, 134 Fed. 764 (D. C. Pa.) ; Inferentially, In re McCormick, 3 A. B. R. 340, 97 Fed. 566 (D. C. N. Y.). Also compare. In i-e Schlesinger, 3 A. B. R. 342, 97 Fed. 935 (D. C. N. Y.) ; In re Dews, 3 A. B. R. 691, 96 Fed. 181 (D. C. R. I.); In re Cotton Co., 14 A. B. R. 194 (D. C. Ark.-): Too much "I don't remember." In re Weinreb, 16 A. B. R. 703, 146 Fed. 243 (C. C. A. 'N. Y.); Barton Bros. z>. Produce Co., 14 A. B. R. 502, 136 Fed. 355 (C. C. A. Ark.). 301. In re Leslie, 9 A. B. R. 56], 119 Fed. 406 (D. C. N. Y.) ; inferentially. Barton Bros. r. Produce Co., 14 A. B. R. 502, 136 Fed. 355 (C. C. A. Ark.); inferentially. In re Conroy, 14 A. B. R. 250, 134 Fed. 764 (D. C. Pa.); in- ferentially. In re Frankford, 15 A. B. R. 210 (D. C. N. Y.). 1576 REMINGTON ON BANKRUPTCY. § 2654 proof rests upon the claimants and though, as a general rule, the referee would be bound by the positive uncontradicted evidence of the petitioner, still if in his judgment such testimony was so indefinite and his statements so conflicting as to raise doubts of the petitioner's sincerity, then he was justified in dis- believing and disregarding such discredited testimony." And merely that the witness is uncontradicted does not require the ac- ceptance of his testimony. In re Domenig, 11 A. B. R. 555, 128 Feb. 146 (D. C. Pa.): "Much will neces- sarily depend on the manner of the witnesses while under examination, and referees should feel themselves obliged to consider of their own motion the credibility of the witness and of the story that is told, even if there should be no opposing testimony. The mere fact that the witness has not been con- tradicted does not require the acceptance of the testimony." § 2651. Nevertheless Merely Suspicious Circumstances Not Suffi- cient Where Witness Uncontradicted. — But where the whole proof rests on the sole testimony of the bankrupt himself, merely that the cir- cumstances are svispicious is not enough. ^*^- § 2652. Likwise Mere Evasive Testimony and Inability to Ac- count Reasonably for Assets Not Per Se Proof. — Mere evasive and disingenuous testimony of the bankrupt are insufficient to bar discharge even if sufficient to discredit his testimony, if it falls short of sustaining the burden of the proof.^os Likewise, inability of the bankrupt to account reasonably for the dis- appearance of assets in his possession shortly before bankruptcy is not, per se, proof of his concealment of them.^o^ § 2653. Though Strong Evidence Tending to Discredit. — But is strong evidence tending to prove concealment of them.-'^'^^ § 2654. Judicial Cognizance of Court Records. — Undoubtedly the court should take judicial cognizance of all the records in the case, whether before the judge or the referee. The proper practice however, is to call the attention of the court to the particular part of the record of which judicial cognizance is desired, that the opposing party may have oppor- tunity to rebut the inferences to be drawn therefrom. This is especially true of a bankruptcy proceedings, which is itself made up of a multitude 302. In re Kolster, 17 A. B. R. 52 (D. C. Nev.); In re Ferris, 5 A. B. R. 246, 105 Fed. 356 (D. C. Iowa). 303. In re Gaylord, 7 A. B. R. 1, 112 Fed. 668 (C. C. A. N. Y., affirming 5 A. B. R. 410); In re Leslie, 9 A. B. R. 561, 119 Fed. 406 (D. C. N. Y.) ; In re Kolster, 17 A. B. R. 55 (D. C. Nev.); In re Cohen, 18 A. B. R. 84 (D. C, N. Y.). 304. In re Idzall, 2 A. B. R. 741, 96 Fed. 314 (D. C. Iowa). 305. See cases ante under title "Summary Orders on Bankrupts," § 1851. § 2655 OPPOSITION TO DISCHARGE. 1577 of dependent proceedings wherein the issues are different and the facts variant. And it has been held, that the court may, but is not required to, take judicial notice of court records in the same court but in different pro- ceedings.306 § 2655. Res Judicata and Estoppel. — A decree finding a conveyance fraudulent in a suit in the state court, wherein the bankrupt, trustee (as intervenor) and the fraudulent transferee are parties, is probably bind- ing as res judicata on the opposition to discharge so far as the issues are identical, although the purposes of the two proceedings are different. In re Skinner, 3 A. B. R. 163, 97 Fed. 190 (D. C. Iowa): "It further appears in evidence that the trustee, P. A. Sawyer intervened in a suit in equity * * * to which suit * * * the bankrupt was a party and in this suit the trustee set up the alleged fraudulent tranfers * * * g^^d upon the hearing of this suit it was adjudged [that the conveyance was fraudulent and should be set aside]. In these proceedings the bankrupt, his wife, and the trustee, representing the creditors, were parties, and the decree must be held binding upon them, and to be conclusive upon the vital question litigated, to wit, whether the transfer to the wife of the property of the bankrupt were or were not fraudulent as to his creditors. Thus, in Southern Pac. R. R. Co. v. U. S., 168 U. S. 1-48, it is said that: " 'The general principle announced in numerous cases is that a right, ques- tion, or fact distinctly put in issue, and directly determined by a court of com- petent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact, once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.' "It having, therefore, been conclusively determined in a suit between the bankrupt and his creditors, represented by the trustee, that the bankrupt had conveyed to his wife, without consideration, and with intent to defraud his creditors, property to a large amount, and it appearing from the record in this case that when the bankrupt filed his petition and schedules he stated that he had no property of any kind, except a possible equity of redemption in 1,440 head of sheep mortgaged to a named creditor, the court is justified in finding that the bankrupt has knowingly and fraudulently concealed from his trustee ^property to a large amount, which in fact forms part of his estate, and there- fore, under the provisions of §§ 14 and 29 of the Bankrupt Act, the peti- tioner is not entitled to a discharge. Judgment accordingly." But compare, contra. In re Cornell, 3 A. B. R. 172, 97 Fed. 29 (D. C. N. Y.) : "The issue in the creditors' suit is not identical with that presented under the specifications in opposition to discharge. A decision adverse to defendants in the creditors' suit would not necessarily determine the right to discharge. If one of the intents of the assignment of April 13, 1896, was to hinder payment of the existing suit, that would authorize a decree for the plaintiflf and yet be no sufficient ground to deny a discharge under the Bankrupt Act. To have this effect there must be evidence of concealment of property from the trustee." Obviously, although all the issues might not be identical, yet, to the 306. In re Osborne, 8 A. B. R. 165, 115 Fed. 1 (C. C. A. Mass.). 1578 REMINGTON ON BANKRUPTCY. § 2660 extent that they are identical it would be binding. The parties are not identical, to be sure, but all the parties to the discharge proceedings were parties in the former suit and it is difficult to see how such former finding of fraudulent conveyance could be evaded. Likewise, a former decree between the debtor and the objecting creditor declaring a transfer not fraudulent, has been held res adjudicata in bankruptcy;^"' and between the trustee and an alleged fraudulent transferee declaring the transfer not fraudulent. 3''^ Similarly, the bankrupt is bound by the allowance of a claim by the referee. The bankrupt is bound, on discharge, by the allowance of claims by the referee where he has not requested the trustee to object to their allowance.^*^*^ § 2656. Discharge Hearing Not Postponed to Await Outcome of Fraudulent Conveyance Suit. — But the hearing upon "a petition for dis- charge Avill not be postponed to await the determination of a suit in the state court to set aside the fraudulent conveyance complained of as the concealment.-^ ^*^ § 2657. Declarations of Alleged Fraudulent Transferrer. — Dec- larations of an alleged fraudulent transferrer have been held admissible for the purpose of impeaching his own title, even if not admissible against the transferee."^^ SUBDIVISION "d/' Costs t)N Discharge. § 2658. Costs on Discharge. — Costs may be awarded on discharge.^i^ § 2659. Power to Award Costs Inherent. — Power to award costs in discharge proceedings is inherent.'' ^^ § 2660. Referee Allowed Compensation as Special Master on Discharge.- — And if the referee acts as special master, he may be allowed compensation therefor, the same as any other special master.-^ ^^ 307. In re McGurn, 4 A. B. R. 459, 102 Fed. 74:^ (D. C. Nev.). 308. Tn re Tiffany, 17 A. B. R. 298 (D. C. N. Y.). 309. In re Carton & Co., 17 A. B. R. 343 (D. C. N. Y.). 310. Paxton v. Scott, 10 A. B. R. 81 (Neb.); In re Cornell, 3 A. B. R. 173, 97 Fed. 29 (D. C. N. Y.). See ante, § 2647. 311. In re Gross, 5 A. B. R. 271 (Ref. N. Y., affirmed by D. C.j. 312. Bankr. Act, § 2 (18): "Tax costs, whenever they are allowed by law, and render judgments therefor against the unsuccessful party, or the s^iccess- ful party for cause,' or in part against each of the parties, and against estates, in proceedings in bankruptcy." 313. In re Wolpert, 1 A. B. R. 436 (Special Master N. Y.) ; [1867] In re George, Fed. Cases 5,326; [1867] In re Holgate, Fed. Cases 6,601; [1841] In re Guild, Fed. Cases 5,860; State of Pennsylvania v. W. & B. Bridge Co., IS How. 460. 314. In re Grossman. 6 A. B. R. 510, 111 Fed. 507 (D. C. :\Iich.) ; In '•e Bragassa v. St. Louis Cycle Co., 5 A. B. R. 700, 107 Fed. 77 (C. C. A. TexJ; Contra, In re Troth, 4 A. B. R. 780, 104 Fed. 291 (D. C. Ohio^. § 2661 opposiTiox TO discharge;. 1579 Fellows V. Freudenthal, 4 A. B. R. 490, 102 Fed. 731 (C. C. A. Ills.): "In reference to the remaining assignment of error, the award of taxable costs against the objecting creditors was authorized by subdivision 18 of § 2 of the Bankruptcy Act, and the allowance of $25 as costs of the referee on the hearing is the only debatable question. Section 40 of the act expressly provides that 'referees shall receive as full compensation for their services, payable after they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case,' together with a small percentage on payments out of the estate. This provision is in harmony with the purpose manifested throughout the act, to so limit all allowances as to secure economical ad- ministration of proceedings and estates in bankruptcy; and the duty of the courts to construe and administer the act in conformity with that purpose is well declared and exemplified in the opinion of Jenkins, Circuit Judge, speak- ing for this court, in the recent case of In re Curtis (4 Am. B. R. 17), 100 Fed. 784. If the charge ill question is for services rendered by the referee in the per- formance of the duties of a referee under the act, it is plainly not taxable as costs in this instance; for, however inadequate the prescribed compensation may be, he takes the office cum onere, and must abide by the fees so fixed. In §§ 38 and 39 the jurisdiction and duties of referees are specifically enumerated, but the matter of hearing applications for a discharge is not included, either in direct terms or inferentially, while subdivision 4 of § 38 clearly excepts such hearings from his jurisdiction. Moreover, § 14b expressly provides that 'the judge shall hear the applications for a discharge, and such proofs and pleas as may be made in opposition thereto.' As the District Courts are invested with jurisdiction both at law and in equity, to 'enable them to exercise original jurisidiction in bankruptcy proceedings' (§ 2), the power unquestionably exists to order a reference for the purpose of the hearing pursuant to the equity practice; and it would be practically impossible to conduct the hearings other- wise in districts like the Northern District of Illinois, with the press of other business, and cases in bankruptcy under the present act numbering in the thousands. The reference is then made to the referee in the capacity of special master, not as referee in bankruptcy, and for a duty independent of the latter office, and in no sense incompatible. * * * For the necessary service so per- formed under the order of reference, the appointee is entitled to a reasonable allowance, unafifected by the fact that he held as well the office of referee in bankruptcy, and was probably chosen for that reason." § 2661. Awarding Costs against Creditors — Costs of discharge may be awarded against the creditors on discharge, where iinsuccessful.^i^ Even if successful, yet the costs may be taxed against the objecting cred- itors, and they be given a judgment over against the bankrupt therefor. 315. In re Wolpert, 1 A. B. R. 436 (Special Master N. Y.). CHAPTER LR^ Effect of Discharge ox the Rights of the Parties. Synopis of Chapter. DIVISION 1. § 2662. Right to Discharge and Effect of Discharge, Distinct Matters. § 2663. Effect of Discharge on Particular Debt to Be Determined When En- forcement of Debt Attempted. § 2664. Decree of Discharge to Be General. § 2665. No Limiting of Effect, nor Excepting of Particular Debts, in Decree.- § 2666. Except Where Former Discharge Refused. § 2667. Urging Debt to Be Not "Provable" or to Be within Exceptions of § 17, Not "Collateral Attack." § 2668. Discharge Bars Debts, Not Enforcement of Liens or Title to Property. § 2669. Bankrupt Remains Liable on Debts Not Dischargeable, Collectible Out of Subsequently-Acquired Assets. § 2670. Nondischargeable Debts, if "Provable," Share in Dividends. § 2671. Secondary Liability Unaffected. § 2672. Debt Not Extinguished, but Its Enforcement Barred. § 2673. Valid Liens Not Cast Oft', nor Their Enforcement Prevented. § 2674. Transactions Themselves Not Invalidated because of Being Bars to Discharge. § 2675. Contractual Relations Not Dissolved, unless Mergeable in "Provable" Debt at Time of Bankruptcy. § 2676. Contracts for Liens on After-Acquired Property Discharged if Merge- able in Provable Debt at Time of Bankruptcy. § 2677. But Where Lien Exists in Presenti before Bankruptcy, Though Prop- erty Acquired Afterwards, Discharge No Bar. § 2678. Thus, Assignments of Unearned Wages. § 2679. "Waiver of Exemption" Notes; No Levy on Exempt Property after Discharge. § 2680. Former Refusal of Discharge Res Judicata as to All Claims Then Provable. § 2681. But Not if Former Refusal Was under State Insolvency Proceedings. DIVISION 2. § 2682. Discharge to Be Set Up as Defense, Else Waived. § 2683. Facts Showing Jurisdiction to Grant Discharge to Be Pleaded. § 2684. Certificate of Discbarge under Seal of Court Proves Discharge. § 2685. Interposition of Discharge Throws Burden on Plaintiff to Show Debt Excepted. § 2686. No Collateral Attack on Order of Discharge. § 2687. Erroneous Judgment Notwithstanding Discharge Duly Pleaded and Proved, Res Judicata, until Reversed. DIVISION 3. § 2688. Suits against Bankrupt Stayed until Adjudication. § 2689. Available to Voluntary and Involuntary Bankrupt Alike. EFFECT OF DISCHARGE. 158i § 3690. Stay under § 11 for Bankrupt's Benefit, to Permit Interposition of Discharge. § 2691. Debt Dischargeable, Else No Stay. § 2692. But Proceedings on Nondischargeable Debts Stayable Where Creditor's Rights Involved. § 2693. Error in Holding Claim Dischargeable No Warrant for Disobedience. § 2694. Proceedings Other than "Suits" Stayed. § 2695. Ipso Facto Stayed Till Adjudication or Dismissal of Petition. § 2696. Thereafter, Further Stayed, on Application, until Discharge Heard. § 2697. Not Only Pending Suits but Also Subsequent Suits Stayed. § 2698. Further Stay Discretionary. § 2699. Comity Requires Request for Stay First in Court Where Action Pending. § 2700. But Bankruptcy Court May Enjoin if Necessary. § 2701. Referee No Jurisdiction to Enjoin Court or Court Officer. § 2702. Stay Applies to All Incidents of Proceedings in State Courts. § 2703. No Further Stay than for Year, unless Application for Discharge Filed within Year Not Yet Acted Upon. § 2704. If Stay Not Applied for. Judgment and Orders of State Court Valid. § 2705. Or if Discharge Refused, Court May Render Judgment in Personam and Judgment Will Be Good. § 2706. Or if Not Interposed Though Granted, Judgment Valid. § 2707. Statutory Cancellation of Subsequently-Rendered Judgments. § 2708. No Vacating of Judgment Rendered after Discharge, for Interposition of Discharge. § 2709. Stay Only Protects Bankrupt from Judgment in Personam — Judgments in Rem as to Property UnafTected. § 2710. Stay Dissolved after Discharge Granted or Refused or Dismissed. § 2711. Qualified Stay Where Levy Sought on Exempt Property Not Exempt as to Levy Sought. § 2712. And Where Judgment Necessary to Perfect Rights against Surety, or Property. § 2713. No Deprivation of Right of Discharge by Staying Discharge Hearing or Refusing to Stay Creditor's Suits Where Judgment Requisite to Perfect Creditor's Rights against Sureties, etc. DIVISION 4. § 2714. Revival of Discharged Debt. § 2715. No New Consideration Necessary. § 2716. Part Payment on Account Insufficient to Revive Debt. § 2717. But Discharge Waivable by New Promise. § 2718. New T^romise Not Necessarily in Writing. § 2719. But to Be More than Mere Acknowledgment of Debt — Equivalent of Prom'ise to Pay Necessary. § 2720. And to Be Certain, Unequivocal and Clear. § 2721. May Be Conditional, if Definite. § 2722. Probably New Promise before Discharge Sufficient, if after Adjudica- tion. § 2723. Acceptance of New Promise Requisite. § 2724. Must Be Accepted in Terms Offered. § 2725. Conditional Promise Accepted as Offered, Sufficient. § 2726. Action on Revived Debt to Be Brought on Original Consideration. § 2727. New Promise Not to Be Pleaded nor Proved in First Instance. § 2728. Allegations, in Pleading New Promise. 1582 REMIA'GTOX ON BANKRUPTCY. DIVISION 5. § 2729. Contractual Relations Xot Dissolved by Discharge, unless Mergeable in "Provable" Debt. § 2730. Relation of Landlord and Tenant Xot Severed. § 2731. All "Provable" Debts Discharged, Save Those Excepted: if Xot "Prov- able," Not Discharged. § 2732. If Capable of Being "Proved," Debt Discharged Whether Actually Proved or X'ot. § 2733. Tort Claims Discharged, if Tort Might Be Waived and Claim Be Pre- sented Ex Contractu. § 2734. Also Unliquidated Claims if Capable, on Liquidation, of Being Presented Ex Contractu. § 2735. Only Debts Existing at Date of Filing Petition Discharged. § 2736. Contingent Claims X'ot Provable, Xot Discharged. § 2737. Costs Incurred Prior to Petition Dischargeable. § 2738. Incurred after, X'ot Discharged. § 2739. Judgment for Breach of Promise of ^Marriage Discharged. § 2740. Judgments for Torts Discharged, Though Liability on Which Founded Not. § 2741. Claims of Sureties and Endorsers against Bankrupt Principal Dis- charged. § 2742. Stockholder's Liability Dischargeable, if Fixed. SUBDIVISION "a." § 2743. Debts Excepted from Discharge. § 2744. Because Excepted, Not on That Account Entitled to Priority before Dividends. § 2745. First Exception — Taxes Not Discharged. § 2746. Second Exception — "Liabilities for Obtaining Property by False Pre- tenses or False Representations," Xot Discharged. § 2747. Xot All Frauds Excepted, but Only "Obtaining Property by False Pretenses," etc., § 2748. Judgment Xot Requisite. § 2749. Judgment Xot Such Merger as Prevents Inquiry into Original Liabilit}^ § 2750. Xot Even Though Tort Waived and Judgment on Quasi Contract. § 2751. False Representations Xot Necessarily in Writing. § 2752. False Representations to Mercantile Agency Sufficient. § 2753. Reckless Representations Sufficient. ' § 2754. Third Exception — Liabilities for Willful and Aralicious Injuries to Per- son or Property. § 2755. Fourth Exception — Liabilities for Alimony. § 2756. Simply Declaratory of Law as Already Existing. § 2757. Fifth Exception — Support of Wife or Child. § 2758. Simply Declaratory of Law as Already Existing. § 2759. Liabilities to Third Parties Not Excepted— Only Liabilities Directly to Wife or Child. § 2760. Sixth Exception — Seduction or Criminal Conversation. § 2761. Seventh Exception — Debts Not "Duly Scheduled." § 2762. "Due" Scheduling Dependent on Facts of Particular Case. § 2763. Thus, Initials Instead of Full Given X'ames. § 2764. Abbreviations. § 2765. Ditto :Marks. § 2766. Partnership Debts in Individual Bankruptcy of Partner. EFFECT OF DISCHARGE. 1583 § 2767. Debts Intentional!}- Scheduled in Name of Original Payee When Held b}- Third Person. § 2768. But Original Creditor Sufficient Where No Notice of Assignment. § 2769. Stockholders' Liability, Either Corporate Creditors, or Receiver, May Be Scheduled. § 2770. Failure to Give Street Number in City Where Ascertainable. § 2771. Giving Name and Street Correctly, but City Wrong, Not "Due" Sche- duling. § 2772. "Idem Sonans." § 2773. Innocent Intent in Faulty Scheduling, No Excuse. § 2774. Where Actual Address Unknown, a Guess at Surmised Address Not Sufficient. § 2775. Reasonable Diligence in Ascertaining Correct Address Requisite. § 2776. Where All Addresses Stated to Be Unknown, Court to Withhold Dis- charge until Satisfied Due Diligence Exercised. § 2777. Actual Knowledge by Creditor Cures Defective Scheduling. § 2778. No Particular Form of Notice Requisite. § 2779. Agent's Knowledge Imputable to Principal. § 2780. Knowledge Not Sufficient unless in Time for Creditor to Avail Himself of Benefits of Law. § 2781. Defending, That Debt Not "Duly" Scheduled, Not Collateral Attack. § 2782. After Discharge Too Late to Amend Schedules to Include Omitted Creditors. § 2783. Eighth Exception — Claims for Fraud, Embezzlement, etc.,' While Officer or in Fiduciary Capacity. § 2784. Must Be Committed While Acting as "Officer" or in "Fiduciary Ca- pacity." § 2785. "Fiduciary Capacity" Refers to Express Trusts; and Excludes Conver- sions by Agents, etc., Also Fraudulent Transfers. § 2786. "Fiduciary" Relation Must Exist Independently of Transaction in which Debt Arose. § 2787. Whether Includes "Officers" of Private Corporation. § 2788. "Fraud" Means Moral Turpitude or Intentional Wrong. § 2789. "Fraud" Must Have Existed in Original Transaction. § 2790. Judgment Not Such Merger as Prevents Inquiry into Character of Fraud. DIVISION 6. SUBDIVISION "a." § 2791. Partnerships Entitled to Discharge. § 2792. No Indidvidual Discharge of Member unless Individually Adjudged Bankrupt. § 2793. Act of One Bars Firm Discharge if Done within Scope of Partnership Business. SUBDIVISION "v,." § 2794. Discharge of Firm Debts in Individual Bankruptcy of iMembfer. § 2795. Individual Liability for Firm Debts, Discharged if Firm Debts "Duly" Scheduled, in Individual Bankruptcy, Irrespective of "Firm Assets." etc. § 2796. Firm Debts Provable Debts of Each IMember, and So Far as Affect Ind'vidual, Are Discharged by Individual's Discharge. § 2797. But Partnership Debts to Be "Duly Scheduled," Else Not Affected by Individual Discharge. 1584 REMINGTON ON BANKRUPTCY. § 2662 § 2798. And Notices to Creditors Must Give Notice of Firm Debts and That Discharge Therefrom Sought. § 2799. Petitions for Adjudication and Discharge Each to Mention Firm Debts and Pray for Discharge Therefrom. § 2800. And Firm Property to Be Described. § 2801. Amendment May Be to Include Discharge from Firm Debts, Where Already Duly Scheduled. § 2802. Even after Term at Which Discharge Granted. SUBDIVISION "C." § 2803. Where Individuals Adjudged Bankrupt with Partnership, Individual Debts Discharged. § 2804. Where Not So Adjudged, Individual Debts Not Discharged. SUBDIVISION "d." § 2805. Individual Partner Alay Be Discharged, Where Firm and Other Part- ners Not. Division 1. Nature and Effect of Discharge in General. § 2662. Right to Discharge and Effect of Discharge Distinct Matters. — The right to a discharge and the effect of a discharge are entirely distinct matters.^ Schiller v. Weinstein, 15 A. B. R. 183 (N. Y. Sup. Ct. App.) : "By this deter- mination (holding the particular debt in question to be excepted under § 17) 'The validity and effectiveness of the discharge in general are not questioned,' only 'it does not extend to this particular claim.' Sutherland v. Lasher, 11 A. B. R. 780." In re Mussey, 3 A. B. R. 592, 99 Fed. 71 (D. C. Mass.): "She has now ap- plied for her discharge in bankruptcy, and certain creditors who proved their claims in the insolvency proceedings ask that the discharge granted her shall expressly exempt from its operation all claims proved in insolvency, or within the jurisdiction of the insolvency court, and also such claims as were created by her fraud. It was held in In re Rhutassel (D. C), 96 Fed. 597 (2 Am. B. R. 697), that the only issue tendered by the petition for a discharge is the right to the discharge, and that the only facts properly pleadable in opposition thereto are those which show that the bankrupt is entitled to no discharge whatsoever. 'The issue upon the effect of a discharge will arise when a creditor seeks to enforce a judgment or claim, and the debtor pleads his discharge in bar thereof.' See, also. In re Thomas (D. C.), 92 Fed. 912 (1 Am. B. R. 515). The discretion of this court cannot determine the effect of a discharge in bank- ruptcy upon debts proved in insolvency. These debts are either barred by the discharge as matter of law, or else, as matter of law, remain unaffected thereby. The question of law is raised upon the creditors' suit to enforce these debts more conveniently than upon the petition for discharge, and so it is more 1. In re McCarty, 7 A. B. R. 40, 111 Fed. 151 (D. C. Ills.), quoted post, § 2663; In re Rhutassel, 2 A. B. R. 697, 96 Fed. 597 (D. C. Iowa), quoted post, § 2663; obiter. In re Carmichael, 2 A. 'B. R. 815, 96 Fed. 594 (D. C. Iowa); In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass.); In re Lieber, 3 A. B. R. 217 (Special Master Pa.); impliedly. In re Tinker, 3 A. B. R. 580, 99 Fed. 79 (D. C. N. Y.). S 2663 EFFECT OF discharge. V 1585 convenient that the discharge shall be in the usual form, and that its scope shall be left for future determination." In re Thomas, 1 A. B. R. 515, 93 Fed. 912 (D. C. Iowa): "That the debt was created by fraud of the bankrupt, if such be the case, is not a ground for refusal of discharge under the statute. Section 17 provides that from debts so created, a discharge does not release the bankrupt. And, when the discharge is pleaded as a defense to the enforcement of such debt, proof that the debt was so created makes the discharge inoperative against it. But the statute does not justify withholding the discharge therefore." Katzenstein v. Reid, 16 A. B. R. 746 (Ct. App. Tex.): "These two sections should undoubtedly be construed together, as argned by appellant, and, follow- ing that plan of construction, we arrive at the conclusion that the two sections are perfectly harmonious; § 14 providing for the discharge of a bankrupt, unless it should appear that certain acts have been done by him, and § 17 setting forth the debts from which the bankrupt shall be released by such discharge. Each bears upon a dififerent subject; the one relating to the discharge, the other to the debts from which such discharge will relieve the debtor. The matters and things which will prevent a discharge in bankruptcy are dififerent from those set out in the section which will not relieve from liability in case there is a discharge of the bankrupt. The bankrupt may be discharged and still be held liable for the classes of debts mentioned in amended § 17 of the act of 1903; 'and in seeking to hold a party liable, who has been discharged in bank- ruptcy, the ground for such liability must be found in § 17, and not in § 14, which enumerates grounds upon which a discharge shall be refused." § 2663. Effect of Discharg-e on Particular Debt to Be Determined When Enforcement of Debt Attempted. — The effect of the discharge on the rights of the parties is in general to be determined when the debt is thereafter sought to be enforced by legal proceedings.- In re Marshall Paper Co., 4 A. B. R. 468, 102 Fed. 872 (C. C. A. Mass., revers- ing 2 A. B. R. 653) : "The right to a discharge and the effect of a discharge, are wholly distinct propositions. The proper time and place for the determina- tion of the effect of a discharge is when the same is pleaded or relied upon by the debtor as a defense to the enforcement of a particular claim. The issue upon the effect of a discharge cannot properly arise or be considered in de- termining the right to a discharge." In re White, 10 A. B. R. 794 (Ref. Ala.): "The proper time and place to test the question as to whether the bankrupt is discharged from a particular debt or judgment is when the bankrupt may be sued upon the debt, or process may be issued upon the judgment in the court which rendered the same, sub- sequent to the discharge of the bankrupt. If the discharge is there interposed 2. See ante, §§ 2468, 24*69. In re Mussey, 3 A. B. R. 592, 99 Fed. 71 (D. C Mass.), quoted ante, § 2662; In re Frank, 6 A. B. R. 156 (D. C. Penn.J; In re Thomas, 1 A. B. R. 515, 92 Fed. 912 (D. C. Iowa), quoted ante, § 266:2; In re Carmichael. 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa); [1867] In re Elliott, 2 N. B. Reg. 110, Fed. Cases 4,391; [1867] In re Rathbone, 1 X. B. Reg. 324, Fed. Cases 11,580; [1867] In re Rosenfield, 1 X. B. Reg. 575, Fed. Cases 12,058; [1867] In re Wright, 2 N. B. Reg. 41, Fed. Cases 18,070; [1867] In re Stokes, 2 X. B. Reg. 212, Fed. Cases 13,476; [1867] In re Tracy, 2 X. B. Reg. 298, Fed. Cases 14,124; [1841] Chapman v. Forsyth, 2 How. 202. Contra, In re Meyers, 2 A. B. R. 707, 96 Fed. 408 (D. C. N. Y.). See post, § 2794. 2 Rem B— 25 1586 / REMINGTON ON BANKRUPTCY. § 2665 as a defense bj^ the bankrupt, it is for that court to determine whether that particular debt is affected by the discharge so pleaded." In re McCarfy, 7 A. B. R. 41, 111 Fed. 151 (D. C. Ills.): "The effect of such discharge if in the future it shall be pleaded in bar of the collection of the claim in question will arise in the proper tribunal where such collection is sought to be enforced. * * * "The right to a discharge and the effect of a discharge are entire!}' distinct propositions." In re Rhutassel, 2 A. B. R. 697, 96 Fed. 597 (D. C. Iowa): "The issue upon the effect of a discharge will arise when a creditor seeks to enforce a judgment or claim, and the debtor pleads his discharge in bar thereof. This question was very fully and carefully considered by Judge Woolson in In re Thomas, 92 Fed. 912; and I concur in the conclusion reached by him, that the proper place and time for the determination of the effect of the discharge is when the same is pleaded or relied upon as a defense to the enforcement of the particular claim." Consequently, it is generally in the state court that the question arises. The dischargeability of the partictilar debt involved is, however, to be determined by the law as it stood when the discharge was granted, not Vvhen it is sought to enforce the debt. § 2664. Decree of Discharge to Be General. — The decree of dis- charge should be general, and should not attempt to limit its effect by excepting particular debts excepted by statute from the operation of dis- charge; but where the right itself to a discharge has already been denied in a former bankruptcy, the discharge decree may except the old debts, because of res judicata. ^ § 2665. No Limiting of Effect, nor Excepting of Particular Debts, in Decree. — In some reported cases, the bankruptcy court, in granting a discharge, uses language indicating that it considers it to be within the court's function, when the discharge is granted, to limit or qualify its effect.4 Notably is this so in regard to individual bankrtiptcies where the in- dividual bankrupt is also a member of a partnership, the courts sometimes attempting to qualify the order of discharge by limiting it to individual debts. ^ However, in general, the bankruptcy court in granting a discharge should not attempt to limit the effect of the discharge, the sole function of the court being to grant or refuse the discharge, the law itself then 3. See post, § 2794. 4. In re Claff, 7 A. B. R. 128, 111 Fed. 506 (D. C. :\Iass.), quoted ante. § 2438; In re Feigenbaum, 9 A. B. R. 595, 121 Fed. 69 (C. C. A. X. Y.); In re Royal, 7 A. B. R. 636, 113 Fed. 140 (D. C. N. Car.); In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa); In re Blumberg, 1 A. B. R. 627, 94 Fed. 476 (Ref. Tenn., reversed in 1 A. B. R. 633.). 5. In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa). See post, § 2794. § 2668 EFFECT OF DISCHARGE. 1587 fixing the extent and effect of the discharge.'"' Thus, in cases of individual bankruptcies, the discharge should be, in the words of the former order, ^■from all provable debts excepting those excepted" by the statute. If, then, the statute does not except partnership debts, the court should not attempt to do so. § 2666. Except Where Former Discharge Refused. — Nevertheless, where it is not the effect of a discharge on a particular debt that is in- volved, but rather the right itself to a discharge, and where such right exists as to some creditors and not as to others, as in cases of former denial of discharge, the court undoubtedly may give effect to the res adjudicata by excepting debts provable under the former bankruptcy. Otherwise, such debts, being likewise provable under the present bank- ruptcy, would be discharged by the present discharge, and the former adjudication be defeated.' § 2667. Urging Debt to Be Not "Provable" or to Be within Ex- ceptions of § 17, Not "Collateral Attack." — Avoiding the effect of the discharge by urging that the claim is not a "provable" debt, or that it comes within some of the exceptions of § 17, is not a collateral attack on the discharge decree.^ Sutherland v. Lasher, 11 A. B. R. 780, 41 N. Y. Misc. 251, affirmed 87 App. Div. 663: "On behalf of the motion it is further urged that the discharge in bankruptcy cannot be collaterally attacked in this proceeding. No such attempt is made by the plaintiff. The validity and effectiveness of the discharge in general are not questioned, the only point raised being that it does not extend to this particular claim for the reasons above mentioned." Nor is it a direct attack upon the decree, nor an attack upon it of any kind ; but is rather a carrying out of its very terms, for by the law itself and the terms of the decree, the discharge is to operate only upon claims that are provable and not excepted by § 17. § 2668. Discharge Bars Debts, Not Enforcement of Liens or Title to Property. — In actions to try the title to property, or to determine the validity of liens on property, or interests therein, where no recovery of a debt is sought, the defendant may not interpose his discharge in bankruptcy 6. In re Tinker, 3 A. B. R. 580, 99 Fed. 79 (D. C. N. Y.) ; In re Blum- berg, 1 A. B. R. 633, 94 Fed. 476 (D. C. Tenn., reversing 1 A. B. R. 627); In re Mussey, .3 A. B. R. 592, 99 Fed. 71 (D. C. :\Iass.). Withholding Discharge until Compliance with Rules. — Yet, of course, it i? always within the discretion of the court to refuse to grant a discharge until the bankrupt's schedules are promptly prepared and to this extent the court can, at any rate, compel the insertion of the names of the firm creditors and full descriptions and withhold action on the petition for discharge until the requirement is complied with. See ante, § 2480. 7. See ante, § 2437. 8. Schiller v. Weinstein, 15 A. B. R. 184 (N. Y. Court of Appeals), quoted post, § 2781. 1588 ri;mixgton on bankruptcy. § 2668 — discharge bars debts, not ownership of property, whether such owner- ship be absolute, conditional or by way of lien, whether it be ownership of the whole or merely partial ownership.^ The discharge bars all future legal proceedings for the enforcement of the debt or obligation discharged, except such as are by way of enforce- ment of a lien therefor not itself invalid; but does not affect suits to determine the ownership of property or to enforce liens thereon. Berry v. Jackson, 8 A. B. R. 485, 41 S. E. 698 (Sup. Ct. Ga.): "The sole issue in the trial of an action of trover is that of title to the property in dis- pute, and the ■''act that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue. Campbell V. Trunnell, 67 Ga. 518. Counsel for the plaintiff in error proceeds in his brief upon the assumption that the action was based upon a debt owed by Berry to Jackson, and argues that as such it was a claim from which he was relieved by his discharge in bankruptcy. But no such facts appear in the record. All that we have before us is an action of trover for the recovery of specific per- sonal property, and, regardless of the election of the plaintiff to take a money verdict, the title to the property in dispute, which was the only issue for de- termination, could not be affected by any bankruptcy proceedings in which the defendant may have participated." Bank of Commerce v. Elliott, 6 A. B. R. 415 (Sup. Ct. Wis.) : "Whether the court erred in refusing to give appellant judgment in form against Elliott obviously depends upon whether, after the discharge in bankruptcy, and the entry of the plea by Elliott in bar of further prosecution of the main suit as to him, appellant had a cause of action in ariy sense upon which a judgment could be rendered. It is conceded that if a defendant is discharged in bank- ruptcy from a debt, pending proceedings to enforce it, he is entitled to plead such circumstances in bar of further proceedings for a personal judgment, if the plaintiff does not voluntarily discontinue the action, and to recover on such plea. But it is said that if an action is wholly in rem, or partly in rem and partly in personam, its status as an action to reach the res is not disturbed by a discharge of the defendant in bankruptcy, if the plaintiff's interest therein be preserved by the Bankruptcy Act. The authorities seem to be uniform to that effect." Evans V. Rounsaville, 8 A. B. R. 236 (Sup. Ct. Ga.) : "While a discharge in bankruptcy releases the bankrupt from a debt which is provable under the Bankrupt Act of 1898, and which is not within the excepted classes, and takes away from the creditor the right to proceed against his debtor in personam to recover that debt, yet a valid lien created on the property of the bankrupt more than four months before the filing of his petition in bankruptcy is not affected by his discharge. After discharge, a creditor holding such a lien, who has not proved his debt in bankruptcy, may proceed to enforce it against the property of the bankrupt in the State court." Paxton V. Scott, 10 A. B. R. 81, 92 N. W. 611 (Neb.): "If the creditor have an attachment or other lien, he may have a special judgment entered in rem." 9. Powers Dry Goods Co. v. Nelson, 7 A. B. R. 506, 10 N. Dak. 580, quoted post, § 2673. Smith z'. Zachry, 8 A. B. R. 240 (Sup. Ct. Ga.); Bassett v. Thackara, 16 A. B. R. 786, 72 N. J. L. 81, 60 Atl. 39, quoted post, § 2673. Com- pare, dissenting opinion, In re Adler, 16 A. B. R. 414 (C. C. A. N. Y.). Com- pare post, "Stay Only Protects Bankrupt from Judgment in Personam — Judg- ments in Rem as to Property Unaffected," § 2709. § 2673 EFFECT OF DISCHARGE. 1589 In re Blumberg, 1 A. B. R. 633, 94 Fed. 476 (D. C. Tenn.): "So far as ^cred- itors of Blumberg may have acquired a lien upon property by attachment levied more than four months before the petition was filed, it is not affected by the discharge; and the right to proceed to subject any property validly at- tached by levy cannot be questioned, and if the creditors can satisfy their debt in that method, their right to do so is clear, and is not in the least affected by this proceeding. It is only the debt, with the right to proceed against Blum^ berg in personam, that is discharged. § 2669. Bankrupt Remains Liable on Debts Not Dischargeable, Collectible Out of Subsequently-Acquired Assets. — The bankrupt re- mains liable on debts that are not dischargeable, and they may be col- lected out of his subsequently-acquired estate. Katzenstein v. Reid, 16 A. B. R. 749 (Ct. App. Tex.): "The statute as to debts not released by the discharge in bankruptcy does not confine itself to the debts of those only who have not accepted the benefits of the dividends paid by the bankrupt court, but it is sweeping in its provisions, and makes no exception of any who may hold the character of debts mentioned. =(= * * "The statute does not condition the right of a creditor to sue and establish his claim agaiftst a discharged bankrupt on the fact that he did not prove up his claim before the referee, and receive dividends, but it declares that certain debts are not released by the discharge, and the doing of those things will not estop him from prosecuting his suit." § 2670. Nondischargeable Debts, if "Provable," Share in Divi- dends. — Such of the nondischargeable debts as are "provable" may be allowed to share in dividends. Because they are not dischargeable does not imply they are not "provable," although the converse is not true, for debts that are not provable are not dischargeable.^" §2671. Secondary Liability, Unaffected. — Discharge does not affect secondary liability. ^^ § 2672. Debt Not Extinguished, but Its Enforcement Barred. — Discharge is not a payment nor extinguishment of debts : it is simply a bar to their enforcement by legal proceedings. Evans V. Staslle, 11 A. B. R. 184 (Sup. Ct. Minn.): "The discharge in bank- ruptcy did not pay or extinguish the plaintiff's debt, nor relieve the defendant's land from the trust with which it was charged by operation of law for the pay- ment of the debt." § 2673. Valid Liens Not Cast Off nor Their Enforcement Pre- vented. — The discharge does not operate to cast off good and valid liens given or acquired for the debt, either a lien by contract or by legal pro- 10.. Obiter, Katzenstein v. Reid, 16 A. B. R. 749 (Ct. App. Tex.). 11. See ante, "Rights of Creditors against Third Parties Liable Jointly with the Bankrupt or Secondarily for Him," § 1510, et seq. 1590 REMINGTON ON BANKRUPTCY. § 2673 ceedings, nor to prevent their enforcement. It is purely personal to the bankrupt. 12 Evans V. Staalle, 11 A. B. R. 184, 88 Minn. 253: "The only effect of the dis- charge was to relieve the debtor from all legal obligations to pay the debt, leaving all liens or trust securing the debt unimpaired. Lowell, Bankr., §§ 242-244; Smith v. Stanchfield, 84 Minn. 343, 7 Am. B. R. 498. Now, when the land in this case was conveyed to the defendant upon a consideration paid by the debtor, a trust in favor of the plaintiff as a creditor attached to the land to the extent necessary to satisfy his debt, which could be defeated only by disproving any fraudulent intent. This trust could be enforced after the debtor's discharge, although all personal remedies against him to secure pay- ment of the debt had been thereby extinguished, precisely the same as a mort- gagee may foreclose his lien on the mortgaged premises, and thereby secure payment of his debt, although an action to recover it from the mortgagor be barred by the statute of limitations. Slingerland v. Sherer, 46 Minn. 422." Powers Dry Good^ Co. v. Nelson, 7 A. B. R. 510, 10 N. Dak. 580: "It is con- ceded that if a defendant is discharged in bankruptcy from a debt, pending proceedings to enforce it, he is entitled to plead such circumstances in bar of further proceedings for a personal judgment, if the plaintiff does not voluntarily discontinue the action, and to recover on such plea. But it is said that if an action is wholly in rem, or partly in rem and partly in personam, its status as an action to reach the res is not disturbed by a discharge of the defendant in bankruptcy, if the plaintiff's interest therein be preserved by the Bankrupt Act. The authoritie.s seem to be uniform to that effect." Paxton V. Scott, 10 A. B. R. 80, 92 N. W. 611 (Neb.): "The effect of the discharge is personal to the bankrupt, and it does not affect any lawful lien, charge, or incumberance existing on his property, but judgment may be specially entered thereon in rem. * * * The discharge of the bankrupt does not affect securities, and they are subject to a judgment or decree in rem, but the creditor applying for such remedy may be required to await the result of the bankrupt's discharge if the bankrupt or assignee insists upon it. * * * The Bankruptcy Law was carefully designed to save all liens against property from being af- fected by the discharge, and its terms seem ample for that purpose." Bassett v. Thackara, 16 A. B. R. 786, 72 N. J. L. 81, 60 Atl. 39: "Undoubtedly this discharge released McGeorge from further personal liability to pay the judgment, but it did not affect the security afforded by the levy." Philmon v. Marshall, 11 A. B. R. 180, 116 Ga. 811: "This court has twice held that a discharge in bankruptcy under the Bankrupt Act of 1898 does not affect the lien of a creditor who does not prove his debt in the bankruptcy court where the lien was created more than four months before the petition in bankruptcy was filed. Evans v. Rounsaville, 8 A. B. R. 236, 115 Ga. 684; * * * Smith V. Zachry, 8 A. B. R. 240, 115 Ga. 722." It will be observed that the court in this case introduces another element, which has no bearing, however, on the matter. It qualifies its rule by saying "Where the creditor has not proved his claim in bankruptcy." The proving of the claim would have nothing to do with the validity or invalidity of the lien. Bank of Commerce f. Elliott, 6 A. B. R. 415 (Wis. Sup. Ct.) : "It is conceded that if a defendant is discharged in bankruptcy from a debt, pending proceed- ings to enforce it, he is entitled to plead such circumstances in bar of further 12. Mallin v. Wenham, 13 A. B. R. 210, 209 Ills. 252. But see Wenham v. Mallin, 103 Ills. App. 609; Evans v. Rounsaville, 8 A. B. R. 236, 115 Ga. 684; Smith V. Zachry, 8 A. B. R. 240, 115 Ga. 722; Howard v. Cunliff, 10 A. B. R. 71, €9 S. W. 737. § 2678 EFFECT OF DISCHARGE. 1591 proceedings for a personal judgment, if the plaintiff does not voluntarily dis- continue the action, and to recover on such plea. But it is said that if an ac- tion is wholly in rem, or partly in rem and partly in personam, its status as an action to reach the res is not disturbed by a discharge of the defendant in bankruptcy, if the plaintiff's interest therein be preserved bj^ the Banruptcy Act." § 2674. Transactions, Themselves, Not Invalidated because of Being Bars to Discharge. — The statute as to discharges does not set aside or otherwise affect any transaction, nor affect the recovery of prop- erty by the trustee; nor does the granting of a discharge do so.^^ § 2675. Contractual Relations Not Dissolved, unless Mergeable in "Provable" Debt at Time of Bankruptcy. — Contractual relations are not in and of themselves dissolved by the discharge. Discharge bars, cnly "provable" "debts, demands or claims ;" therefore, a mere contractual relation, not merged into a debt, demand or claim that could be "proved" at the time of bankruptcy, is not affected. Hence, contracts for liens, if in no form they could be "proved," as "debts, demands or claims" in the bankruptcy proceedings, would not be discharged, bankruptcy discharg- ing only such obligations as could be framed into provable debts. ^^ § 2676. Contracts for Liens on After- Acquired Property Dis- charged, if Mergeable in Provable Debt at Time of Bankruptcy. — A contract for a lien on future-acquired property, where such property is not acquired until after adjudication, is discharged, if discharge be eventually granted, if such contract could have been sued on, at the time of bankruptcy, as having become merged in a right of action for breach of contract ; for such .right of action is a provable debt and hence is dis- charged. And the bankrupt, of course, would be entitled to have the action stayed until his discharge could be passed upon. § 2677. But Where Lien Exists in Presenti before Bankruptcy, Though Property Acquired Afterward, Discharge No Bar. — \\ here, however, the law holds that a lien exists in presenti, before bankruptcy, notwithstanding the fruits of the property on which the lien exists be not acquired until after adjudication, the discharge will not prevent the en- forcement of the lien, § 2678. Thus,- Assignments of Unearned Wages. — Thus, where it is held, by the state law, that an assignment of vmearned wages to secure a debt creates no lien until the wages have been earned, no lien arises if 13. Howard v. Cunliff, 10 A. B. R. 71, 69 S. W. 737; In re Scott, 11 A. B. R. 327, 1B6 Fed. 981 (D. C. Del.). 14, Compare discussion as to whether or not contractual relations are dissolved by the adjudication of bankruptcy, ante, §§ 641, 1118. 1592 REMINGTON ON BANKRUPTCY, § 2678 tlie debtor be ultimately discharged, as to wages earned after the ad- judication.^^ Leitch V. Northern Pac. Ry. Co., 14 A. B. R. 411 (Minn.): "A solution of this question depends upon the efifect of the debtor's discharge in bankruptcy upon the alleged assignment of his wages. Did it release him from the liability of having his wages, earned after his discharge, collected by the plaintifif by virtue of the assignment and applied to the payment of his debt? If the plain- tiff had a valid lien at the time of the debtor's discharge upon his wages there- after to be earned as security for the payment of his debt, then the discharge would not affect such vested security. This conclusion follows from the ad- mitted proposition that a discharge in bankruptcy only relieves the debtor from all legal obligation to pay the debt, and from all liability of having his future- acquired property and earnings seized to pay the debt; but all valid and existing liens on specific property or trusts therein securing the debt are not impaired by the discharge. Evans v. Staalle, 88 Minn. 253, 93 N. W. 951. The cas-e cited was one where the creditor at the time the bankruptcj^ proceedings were initi- ated had the vested right to enforce a trust in certain land the legal title to which was held by a third party for the payment of his debt against the bankrupt. Tt was held that the right to enforce the trust was not affected by the debtor's discharge. The decision, however, is not relevant to the question whether the plaintiff herein had a valid lien at the time of his debtor's discharge upon his wages thereafter to be earned. In the case of Wenham v. Mallin, 103 111. App. 609, relied upon by the plaintiff, it does not appear whether the wages which it was -ought to subject to the payment of a debt from which the debtor had been discharged in bankruptcy were earned after such discharge. The decision in that case is based upon the admitted proposition that valid liens on property are not affected by a discharge in bankruptcy, and the statement that the creditor had a vested property right in the wages of his debtor to secure the payment of his debt which was not affected by a discharge in bankruptcy. The case is not strictly in point. The plaintiff also relies upon the decisions of this court sustaining the validity of chattel mortgages on crops to be grown or on property to be acquired. Minn. Linseed Co. v. Maginis, 33 Minn. 193, 20 N. W. 85; Miller v. McCormick Co., 35 Minn. 399, 29 N. W. 52; Ludlum v. Rothschild, 41 Minn. 218, 43 N. W. 137; Hogan v. Elevator Co., 66 Minn. 344, 69 N. W. 1. Apparently the cases are in point, but not in fact. There is a fundamental distinction between a mortgage on specific crops to be sown or definitely de- scribed chattels to be acquired and a mortgage on the future earnings of a debtor — a mere expectancy, depending upon a variety of vague contingencies. Again, there are reasons of public policy which differentiates a mortgage on chattels to be acquired and one on wages to be earned. When a necessitous wage earner is compelled to mortgage his future earnings, he mortgages not his chattels, but the means whereby he may five and maintain his family. The State necessarily has an interest in such contracts, a'iid it is contrary to a wise public policy to give effect to them, except to a limited extent. The rule on principle and deducible from the decisions of this court is that an as- signment of wages to be earned in the future under an existing contract of employment to secure a present debt or future advances is valid as an agree- ment, and takes effect as an assignment as the wages are earned, but an as- signment of wages to be earned, Avithout limit as to amount or time, are 15. In re Home Discount Co.; 17 A. B. R. 180 (D. C. Ala.), quoted ante, § 451. In re Karns, 16 A. B. R. 841 (D. C. Ohio). And compare, Wenham v. Mallin, 103 Ills. App. 609, and Mallin v. Wenham, 13 A. B. R. 210, 209 Ills. 252. § 2679 EFFECT OF DISCHARGE. 1593 void. O'Connor v. Meehah, 47 Minn. 247, 49 N. W. 982; Steinbach v. Brant, 79 Minn. 383, 82 N. W. 651, 79 Am. St. Rep. 494; Baylor v. Butterfass, 82 Minn. 21, 84 N. W. 640. Tested by this rule, it logically follows that the plaintiff, when the debtor filed his petition in bankruptcy, and when he received his dis- charge, had no lien on or vested security in the wages of the debtor thereafter to be earned by virtue of his contract, which was to take efifect as an assign- ment when the w^ages were earned. The plaintifif then had at most a mere expectancy, depending on contingencies. We accordingly hold that the dis- charge in' bankruptcy released the debtor from any liability of having his wages thereafter earned applied in payment of the debt from which he had been discharged." In re West, 11 A. B. R. 782, 128 Fed. 205 (D. C. Ore.): "The theory ^f a lien upon the earnings of future labor is not that it attaches to such earnings from the moment of contract of pledge or assignment, but from the moment of their existence It is needless to say that there can be no lien upon what does not exist. A pledge or assignment of future wages under an existing employ- ment is said to create an equitable interest in such wages. Stott v. Frany, 20 Or. 410, 23 Am. St. Rep. 132. This is true of wages earned upon a general employment, as well as those earned upon a definite contract. In this case' the railroad company was under no obligation to employ the bankrupt, nor he to work for the company. If future earnings in such a case can be said to have a potential existence, they are the subject of an agreement for a lien; but the lien, or the so-called equitable interest, does not attach until the wages come into existence, and until the lien does attach there is no lien. The discharge in bankruptcy operated to discharge these obligations as of the date of the adjudication, so that the obligations were discharged before the wages intended as security were in existence. The law does not continue an obligation in order that there may be a lien, but only does so because there is one. The effect of the discharge upon the prospective liens was the same as though the debts had been paid before the assigned wages were earned. The wages after the adjudication became the property of the bankrupt clear of the claims of all creditors. * * * These debts cannot escape the operation of the Bank- ruptcy Law by an agreement for a lien upon what the debtor expected to earn, tut did not earn until after the adjudication of bankruptcy." But where it is held, by the state law, that the lien is a lien upon the contract of employment, the wages simply being incident thereto and arising therefrom, then the lien, being in existence before the bankruptcy, is not affected by the discharge ;i^ although it may be affected by the ad- judication of bankruptcy as a preference, if not given for a presently pass- ing consideration. § 2679. "Waiver of Exemption" Notes: No Levy on Exempt Property after Discharge. — Notes in which the bankrupt maker has waived exemptions are discharged, although, if levy had been made thereon, the levy might not have been disturbed, even though acquired within the four months preceding the bankruptcy; and, after discharge, 16. Mallin v. Wenham, 13 A. B. R. 210, 209 Ills. 252. But compare, Wenham V. Mallin, 103 Ills. App. 609. 1594 REMINGTON OX BANKRUPTCY. § 2682 ijo levy can be made thereunder on the exempt property set apart to the bankrupt by the trustee.^" § 2680. Former Refusal of Discharge Res Judicata as to All Claims Then Provable. — It has been held that the refusal of a discharge is res judicata as to all provable claims under the bankruptcy; and that subsequent new proceedings in bankruptcy do not affect them.^^ But while it is true that the former refusal is res judicata, yet it is res judicata as to the right to discharge rather than as to the dischargeability <5f the particular debt, and so a defense to the petition for discharge rather than an exception to be pleaded after the discharge has been granted. The question is : "Has the bankrupt a right to renew his application for a discharge from the old debts whose discharge has once been denied?" rather than, "Does the new discharge make exception of these still 'prov- able' debts?" It would seem perilous, indeed, for the creditors under the old bankruptcy to permit a later general decree of discharge to be entered in the new proceedings, and to rely then upon a res judicata which was never presented as a bar to the petition itself.^^ § 2681. But Not if Former Refusal Was under State Insolvency Proceedings. — The refusal of discharge in prior proceedings under state insolvency laws will not affect the efficacy of the discharge in bankruptcy under the present act ; and such debt is discharged unless it is ov<^ of those excepted from discharge under § 17 of the act;-"^ at any rate, where the record does not show the ground of the refusal. -^ And the case is not different if the debt was proved in the former proceedings and not proved in the latter.-- But probably if the identical ground were urged in both proceedings, the refusal in the first proceedings would be a bar in the latter. Division 2. Pleading and Proof of Discharge. § 2682. Discharge to Be Set Up as Defense, Else Waived. — The discharge must be set up and proved as a defense.--'^ 17. Claster v. Soble, 10 A. B. R. 446, 22 Pa. Super. Ct. 631. Also compare, "Exemptions," ante, §§ 1034, 1104. 18. In re Feigenbaum, 9 A. B. R. 595, 121 Fed. 69 (C. C. A. X. Y., revers- ing 7 A. B. R. 339); inferentially. In re Royal, 7 A. B. R. 636, 113 Fed. 140 (D. C. N. Car.). But see In re Claflf, 7 A. B. R. 128, 111 Fed. 506 (D. C. Mass.). 19. See ante, §§ 2437, 2438, et seq. 20. Dean v. Justices of the Municipal Court, 2 A. B. R. 163 (Sup. Cl. Mass.). 21. In re Bybee. 10 A. B. R. 761, 124 Fed. 1011 (D. C. Calif.). 22. Dean z: Justices of the Municipal Court, 2 A. B. R. 163 (Sup. Ct. Mass.). 23. Stevens 7'. Aleyer, 8 A. B. R. 496 (N. Y. Sup. Ct. App.) ; inferentially, Bk. of Commerce v. Elliott, 6 A. B. R. 409 (N. Y. Sup. Ct. App.); obiter, In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). § 2686 EFFECT OF DISCHARGE. 1595 Collins V. McWalters, 6 A. B. R. 593 (N. Y. Sup. Ct. App.) : "A discharge in bankruptcy is not per se an extinguishment of the debt and no court, other than the court of bankruptcy, is bound to take notice of a discharge. It is however, a release which may be pleaded." And if the discharge is not set up and proved, it is waived ; and the re- sulting judgment will be good.^^ § 2683. Facts Showing Jurisdiction to Grant Discharge to Be Pleaded. — The facts conferring jurisdiction on the court to grant the discharge must be pleaded.-^ But pleading the discharge 'to have been "duly made" is sufficient in states where that form is sufficient in pleading judgments. ^^ § 2684. Certificate of Discharge under Seal of Court Proves Dis- charge. — The discharge is sufficiently proved by production of- the cer- tificate of discharge under the seal of the U. S. court. 2" § 2685. Interposition of Discharge Throws Burden on Plaintiff to Show Debt Excepted. — When the discharge has been set up properly, it then rests on the plaintiff to show why he should not be bound thereby.^s § 2686. No Collateral Attack on Order of Discharge. — The order of discharge may not be questioned or attacked collaterally. ^^ But it is not a collateral attack on a discharge for a creditor to raise the particular defense that his particular claim is not discharged where it is excepted by the statute from the operation of discharge.^" 24. No reopening of judgment to permit the interposition of discharge will be allowed where the judgment creditor was not "duly scheduled" and had no notice. Reed v. Dippel, 17 A. B. R. 371, 16 Dist. Rep. 126 (Penn.). Stevens v. Meyer, 8 A. B. R. 496 (N. Y. Sup. Ct. App.); Collins v. McWal- ters, 6 A. B. R. 593 (N. Y. Sup. Ct. App.); inferentially, Bk. of Commerce v. Elliott, 6 A. B. R. 409 (N. Y. Sup. Ct.). 25. Analogously (composition), Bdway. Trust Co. v. Manheim, 14 A. B. R. 122 (N. Y. Sup. Ct.). 26. Analogously (composition),. Bdway. Trust Co. v. Manheim, 14 A. B. R. 122 (N. Y. Sup. Ct.). But compare Bryant v. Kinyon, 6 A. B. R. 241 (Sup. Ct. Mich.). Demurrer to answer setting up defense of discharge in bankruptcy admits regular taking of all necessary steps precedent to discharge. Jarecki Mfg. Co. V. AIcElwaine, 5 A. B. R. 751, 107 Fed. 249 (C. C. Ind.). 27. Bankr. Act, § 21 (f) : "A certified copy of an order confirming or setting- aside a composition, or granting or setting aside a discharge, not revoked, shall be evidence of the jurisdiction of the court, the regularity of the pro- ceedings, and of the fact thaf the order was made." Custard v. Wiggerson, 17 A. B. R. 340 (Supreme Court Wis.). 28. Bdway. Trust Co. v. Manheim, 14 A. B. R. 123 (Sup. Ct. N. Y.). 29. Custard, v. Wiggerson, 17 A. B. R. 340 (Supreme Court Wis.); In re Shaffer, 4 A. B. R. 728, 104 Fed. 982 (D. C. N. Car.). 30. Sutherland v. Lasher, 11 A. B. R. 780 (N. Y. Sup. Ct.). See ante, § 2667. 1596 REMINGTON ON BANKRUPTCY. ^ 2689 § 2687. Erroneous Judgment Notwithstanding Discharge Duly- Pleaded and Proved, Res Judicata, until Reversed. — If a defense of discharge is erroneously held not to bar a particular debt, error or appeal must be prosecuted, else the judgment is res ad judicata. ^^ Howe V. Noyes, 15 A. B. R. 103 (X. Y. Sup. Ct. App.): "It is evident that § 1268 could only have been designed as a summary method of procuring a cancellation of a judgment rendered before a discharge in bankruptcy, because in all cases where judgment has not been perfected before a discharge, the debtor is in a position upon his discharge to plead that fact as a bar to a re- cover}' of judgment and thus obtain full and complete advantage of his dis- charge in bankruptcy. "But it seems to me that no other effect can be given to § 1268 than that it is only applicable to judgments entered before a discharge in bankruptcy for the reason that any other holding would conflict with the doctrine of res ad- judicate. "The defense of a discharge in bankruptcy is assuredly available in an action for a debt dischargeable in bankruptcy, and it needs no citation of authorities to convince one familiar, with legal rules that a final adjudication of the issue raised by such a defense is conclusive between the parties and hence may not be considered in any subsequent action, proceeding or motion to defeat the eflfect of the judgment." And code provisions permitting the cancellation of judgments discharged by bankruptcy or rendered upon debts discharged thereby can only refer to judgments rendered before the granting of the discharge in bankruptcy, as any other holding would conflict with the doctrine of res adjudicata.^^ Division 3. Staying Suits against the Bankrupt to Permit Interposition oE Discharge: and Bankrupt's Failure to Interpose Discharge. § 2688. Suits against Bankrupt Stayed until Adjudication. — Suits en dischargeable debts pending against a debtor at the time of the filing of the bankruptcy petition are stayed, when the filing thereof is brought to the attention of the court where the proceedings are pending, until either he is adjudged a bankrupt or the petition in bankruptcy is dismissed. ^•'^ § 2689. Available to Voluntary and Involuntary Bankrupt Alike. — The stay is available whether the bankrupt be a voluntary or an in- voluntary bankrupt.^-^ 31. Compare post, § 2693. 32. Howe z'. Noyes, 15 A. B. R. 103 (Sup. Ct. N. Y. App.). Compare, on germane subjects, Hussey v. Judson, 11 A. B. R. 521 (N. Y. Sup. Ct. App.), and Stevens v. Meyers, 8 A. B. R. 496 (N. Y. Sup. Ct. App.). 33. Bankr. Act, § 11 (a): "A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such a person is adjudged a bankrupt, such action may be further staj^ed until the twelve months after the date of said adjudication, or, if within that time such person applies for a discharge then until the question of such discharge is' determined." 34. In re Geister, 3 A. B. R. 228, 97 Fed. 322 (D. C. Iowa). § 2691 EFFECT OF DISCHARGE. 1597 § 2690. Stay under § 11 for Bankrupt's Benefit, to Permit In- terposition of Discharge. — The stay under § 11 is for the benefit of the bankrupt, to enable him to interpose his discharge. It is not under this provision that the bankruptcy court acts in staying or restraining suits or proceedings affecting the property of the bankrupt belonging to cred- itors.3^ :\Iarble Co. z\ Grant, 14 A. B. R. 289, 135 Fed. 322 (C. C. A. Pa.): "This (is) obviously for the purpose of assuring to the court of bankruptcy exclusive au- thority to adjudicate the claims which, by their orders of discharge, they may release. It does not apply to a suit brought in a State court to enforce an asserted right in rem under the law of such State." § 2691. Debt Dischargeable, Else No Stay. — The debt must be a dischargeable one, else the suit will not be stayed under this section of the statute.'^ '^ Thus, stay will not be granted in an action for obtaining goods by false pretenses ■,^'' nor will a supplementary proceeding for alimony be stayed.^^ Turner z'. Turner, 6 A. B. R. 289, 108 Fed. 785 (D. C. Ind.) : "This is a peti- tion for an injunction restraining the prosecution of proceedings supplementary to execution in a court of the State. * * * The right to the restraining order depends on the question whether the alimony decreed to the defendant is a debt provable against the bankrupt's estate. * * * The authorities hold that alimony is not strictly a debt due to the wife, but rather a general duty of support made specific by the decree of the court. * * * It is a special fund, devoted to the support and maintenance of the wife, provided by the policy of the State to protect her from becoming a public charge, and to secure her from the temptations of a life of vice." But stay will be granted where the creditor suing is omitted from the bankrupt's schedules but has knowledge of the bankruptcy, for his claim 35. See subject of "Restraining Orders" as part of the "Provisional Rem- edies" during the pendency of the bankruptcy petition, ante, § 400, and in "Aid of the Collection of Assets," later, ante, § 1596. 36. In re Cole, 5 A. B. R. 780, 106 Fed. 837 (D. C. N. Y.) ; In re Sullivan, 2 A. B. R. 30 (Ref. N. Y.) ; In re Floyd, 15 A. B. R. 277 (Ref. N. Y.). (Perhaps) White i\ Thompson, 9 A. B. R. 653, 119 Fed. 868 (C. C. A. Ala., for referee's decision, see 10 A. B. R. 790). Continental National Bank v. Katz, et al., 1 A. B. R. 19 (Superior Ct. 111.). Contra, In re Rogers, 1 A. B. R. 541 (Ref. Ky.) : Fiduciary capacity. Whether to Be "Clearly" Shown to Be within Dischargeable Class. — And that the debt must clearly come within the list of dischargeable debts is laiJ down as the rule. In re Sullivan, 2 A. B. R. 30 (Ref. N. Y.). But there can hardly be any reason for such a rule — the debt either is or is not discharge- able. Whether it is "clearly" so to the court is immaterial. Y^hether Character of Debt to be Determined from Pleadings. — The char- acter of the suit, it is held in one case, is to be determined by the pleadings. In re Adler, 18 A. B. R. 240 (C. C. A. N. Y.). 37. In re Wollock, 9 A. B. R. 685, 120 Fed. 516 (D. C. Ills.): This case was decided, however, before the amendment of 1903 made liabilities for obtain- ing property by false pretenses, nondischargeable. 38. White v. Thompson, 9 A. B. R. 653, 119 Fed. 868 (C. C. A. Ala., for ref- eree's decision, see 10 A. B. R. 790). 1598 REMIN^CTON ON BANKRUPTCY. . § 2695 is dischargeable ;^^ and an unliquidated provable claim diat was not liqui- dated in time is nevertheless discharged and may be stayed.'*'^ Likewise, suits for conversions by factors and commission men will be stayed, for £uch liabilities are dischargeable.'^^ § 2692. But Proceedings .on Nondischargeable Debts Stayable Where Creditor's Rights Involved. — But legal proceedings upon even nondischargeable debts may be stayed, or restrained on behalf of creditors v/here creditors' rights are involved; and § 11 will not be construed to "stay" the Bankruptcy Court from staying such proceedings.'* ^ § 2693. Error in Holding Claim Dischargeable No Warrant for Disobedience. — Error of the court in holding a claim to be provable and dischargeable when it is not such, will not authorize a disobedience of the stay.43 § 2694. Proceedings Other than "Suits" Stayed.— Proceedings other than those technically denominated "suits" may be stayed."'^ § 2695. Ipso Facto Stayed Till Adjudication or Dismissal of Pe- tition. — It has been held that the suit is ipso facto stayed for a time, that is, until the adjudication or dismissal of the petition, and that it requires no action on the part of anyone until after the debtor has been adjudged bankrupt."* 5 In re DeLany, 10 A. B. R. 634, 124 Fed. 280 (D. C. N. Y.) : "In effect, sub- division 'a' of § 11 of the Bankruptcy Law operates as an injunction on the county judge of Broome county, the plaintiff in the action against DeLany (the judgment creditor) and its attorneys, and the referee, Walker, and they were bound to observe and obey it after adjudication." (Where the court says by the provisions of § 11 (a) the filing of the petition operates of itself as a caveat to all the world, until the adjudication is had or the petition is dis- missed.) Obiter, Carpenter Bros. v. O'Connor, 1 A. B. R. 383, 16 Ohio C. C. 526: "The order of procedure in this case should be under the statute as follows: When the petition in bankruptcy was filed by the defendant, all proceedings in the State court should stop. In other words, in the language of the Bankrupt Act 39. In re Beerman, 7 A. B. R. 434, 112 Fed. 663 (D. C. Ga.). 40. In re Hilton, 4 A. B. R. 774, 104 Fed. 981 (D. C. N. Y.). 41. In re Basch, 3 A. B. R. 235, 97'Fed. 761 (D. C. N. Y.); In re Adler, 18 A. B. R. 240 (C. C. A. N. Y.). 42. Bear v. Chase, 3 A. B. R. 746, 99 Fed. 920 (C. C. A. S. C). 43. Wagner v. U. S., 4 A. B. R. 496, 104 Fed. 133 (C. C. A. Ky.) ; In re Mar- cus, 5 A. B. R. 365, 105 Fed. 907 (C. C. A. Mass.). Compare, § 2687. 44. In re Hicks, 13 A. B. R. 654, 133 Fed. 654 (D. C. N. Y.) : In this case, the bankrupt was a member of the city fire department and proceedings under city ordinance to collect dues were stayed. 45. Also, In re Mertens, 14 A. B. R. 229 (D. C. N. Y.). But see Kinmouth V. Braeutigan, 46 Atl. 769 (approved in In re Engle, 5 A. B. R. 372, 105 Fed. 893; and, also, see Kinmouth v. Breautigam, 10 A. B. R. 83, on cognate point). § 2697 EFFECT OF DISCHARGE. 1599 as contained in § 11, 'The proceedings shall be stayed.' This is mandatory. The State court has no right to proceed further in an action there pending until the petition in bankruptcy has been adjudicated. When that has been dorus, the case may be further stayed in the State court at its discretion." The provisions of § 11 (a) seem to be more direct to the protection of the bankrupt, to the end that he may not lose the benefit of his discharge, than to the protection of creditors ; yet they incidentally do operate to pro- tect creditors during the period intervening between the filing of the pe- tition and the adjudication. § 2696. Thereafter, Further Stayed, on Application, until Dis- charge Heard. — Thereafter they may be further stayed, not to exceed one year from the adjudication, unless beforehand the petition for dis- charge is filed, and then until the question of the debtor's discharge has been settled, and the debtor thus been given an opportunity to present the discharge as a defense.^*^ § 2697. Not Only Pending" Suits but Also Subsequent Suits Stayed. — Not- only suits pending at the time of the filing of the bankruptcy petition may be so stayed, but those filed afterward and before discharge is granted. In re Wollock, 9 A. B. R. 687, 120 Fed. 516 (D. C. Ills.): "There is nothing in the point made by counsel that the court is without power to stay a proceed- ing begun after the filing of a petition in bankruptcy. The argument reduces itself to an absurdity. Section 11 of the Act of 1898 provides that the court shall stay a suit which is founded upon a claim from which a discharge would be released, etc.; the plain object of the section being to bring all matters affecting provable claims into the EHstrict Court. Section 11 provides that nothing in that section shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not therein numerated. Clause 15, § 2, provides that the court has such jurisdiction at law and in equity as will enable it to 'make such orders, issue such process and enter such judg- ments in addition to those specifically provided for, as may be necessary for the enforcement of this act.' It will be seen that the court is required to stay only provable claims, by the statute. This would not limit its power to prov- able clairhs in a case, the prosecution of which would interfere with the proper enforcement ot the act. It is admitted by the petition presented herein for a restraining order that the action sought to be stayed is an action on the case for fraud. If tried, the verdict must be 'guilty' or 'not guilty.'' Fraud is the gist of the action. Unless fraud is proven, there can be no recovery. The judgment of the court will be conclusive as to the existence or absence of fraud. Manifestly, under the holding above set out, the court is entirely without juris- diction to stay the proceedings, under the language of the statute; and where, as in this" case, there is nothing but the question of fraud involved, to which a discharge cannot be pleaded, there can be no embarrassment to the administra- tion of the bankruptcy cause by this court — consequently no case made for the general powers of this court." 46. Bankr. Act, § 11 (a). For form of such orders, see In re Fortunato, 9 A. B. R. 631, 123 Fed. 622 (D. C. N. Y.) ; Carpenter Bros. v. O'Connor, 1 A. B. R. 383, 16 Ohio C. C. 526. 1600 REMINGTON OX BANKRUPTCY. § 2699 § 2698. Further Stay Discretionary. — The further stay is discre- tionary. In re Lesser, 3 A. B. R. 759, 100 Fed. 433 (C. C. A. X. Y.) : "The making- of such an order is discretionary with the District Court — the language being 'such action may be stayed" — and that discretion should not be interfered with, unless it has been abused." § 2699. Comity Requires Request for Stay First in Court Where Action Pending. — The further stay may be. and usually is, asked for in the court wherein the action is pending. Comity would seem to require epplication to be made there first.-*" In re Geister, 3 A. B. R. 228, 97 Fed. 322 (D. C. Iowa): "The proper practice to be followed in this class of cases is to make the application to the court , wherein the action sought to be stayed is pending, and it is the duty of that court, whether it be State or Federal, to grant a stay according to the pro- visions of the Bankrupt Act. * * * "The rule thus announced under the provisions of the Act of 1867 is clearly applicable to § 11 of the Act of 1898, and points out the course to be pursued in cases like that now under consideration. The bankrupt who is the defendant in the State Court should file in that court a proper pleading setting forth the pendency of the proceedings in bankruptc}^, and, based thereon, should ask a stay as provided for in § 11; and, upon being thus informed of the pendency of the proceedings in bankruptcy, it will become the duty of the State Court to grant the stay prayed for. Not only is this the proper method of bringing to the judicial notice of the State Court the fact that proceedings in bankruptcy have been instituted, and therefore the bankrupt has a right to a stay of the case until the question of a discharge can be heard, but it is also the proper procedure, for the reason that the creditors, who are the plaintiffs in the suit sought to be stayed, are parties to the action in the State Court, are within its jurisdiction, and will therefore be bound by its action in the premises, whereas, they are not now subject to'the jurisdiction of this court, as they have not been notified of the filing of this petition now before the court, nor in any way brought within the actual jurisdiction of this court. For these reasons the prayer of the petition is refused, on the ground that the application *for a stay should be made in the State Court in which the case is pending." [1867] Hill T. Harding, 107 U. S. 631: "The terms of this enactment are as broad and as peremptory as possible: 'Xo creditor whose debt is provable shall be allowed to prosecute to final judgment' any suit thereon against the bankrupt; and such suit 'shall, upon application of the bankrupt, be stayed.' This provision, like all laws of the United States made in pursuance of the constitution, . binds the courts of each State as well as those of the nation. Upon the application of the bankrupt to the court. State or national, in which the suit is pending, it is the duty of that court to stay the proceedings, 'to await the determination of the court in bankruptcy on the question of the discharge,' unless there is unreasonable delay on part of the bankrupt in endeavoring to obtain his discharge." [1867] Boynton z'. Ball, 121 U. S. 457: "The State court could not know or 47. Kinmouth v. Braeutigam, 10 A. B. R. 85 (Court of Chancery X. J.); see also, 4 A. B. R. 344. Compare analogous proposition as to the restraining of legal proceedings in aid of creditors, ante, §§ 362, 1904. § 2702 EFFECT OF DISCHARGE. 1601 take judicial notice of the proceedings in bankruptcy unless they were brought before it in some appropriate manner, and the provisions of this section show- plainly that it does not thereupon lose jurisdiction of the case, but the pro- ceedings may, upon the application of the bankrupt, be stayed to await the determination of the Court in Bankruptcy on the question of his' discharge." § 2700. But Bankruptcy Court May Enjoin if Necessary. — The bankruptcy court may issue a restraining order further staying the action in the State court, if necessary.'*^ ■ Thus, where an execution from a justice of the peace court was levied on exempt property, and the bankrupt pleaded his adjudication, but the justice disregarded it and rendered judgment and ordered sale — comity will not require the bankruptcy court to ask the justice for an order on the constable to surrender the property ; but the bankruptcy court may order its marshal to seize the property.^^ Again, an execution on a judg- ment obtained after the adjudication in an action pending at the time of the bankruptcy by a creditor omitted from the schedules, may be en- joined. ■'^*^ But the state court's officer, generally, should not be enjoined until first notice has been given to him of the application for the injunc- tion;^^ nevertheless, a temporary restraining order may issue without such notice, if absolutely necessary. ^^ § 2701. Referee No Jurisdiction to Enjoin Court or Court Officer. — But the referee has not the jurisdiction to issue the restraining order, or injunction, to restrain the proceedings of a court or of an officer of a State or of the United States. The judge, only, may do so.^^ § 2702. Stay Applies to All Incidents of Proceedings in State Courts. — This stay applies to all incidents of the proceedings in the state court. Thus, supplementary proceedings, in aid of execution, in the state court, may be so stayed.^-* In re Lesser, 3 A. B. R. 758, 99 Fed. 913 (C. C. A. N. Y.) : "There is, of course, no contention that the initiation of the proceedings supplementary to execution less than a month before the Lessers were adjudicated bankrupts 48. In re DeLany, 10 A. B. R. 634, 124 Fed. 380 (D. C. N. Y.). Impliedly, In re Fortunate, 9 A. B. R. 630, 123 Fed. 622 (D. C. N. Y.). Compare analogous proposition where the stay is sought in behalf of creditors, ante, §§ 362, 1904, et seq. 49. In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). But see. White v. Thompson, 9 A. B. R. 653, 119 Fed. 868 (C. C. A. Ala.). 50. In re Beerman, 7 A. B. R. 434, 112 Fed. 663 (D. C. Ga.). 51. Obiter, In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). 52. In re Tune. 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). 53. See ante, §§ 528, 1918. 54. In re Adams, 1 A. B. R. 96 (Ref. N. Y.) ; In re Fortunato, 9 A. B. R. 630, 123 Fed. 622 (D. C. N. Y.) ; In re DeLong, 1 A. B. R. 66 (Ref. N. Y.); In re Kletchka, 1 A. B. R. 479, 92 Fed. 901 (D. C. N. Y.) ; [1867] Johnson v. Rogers, 15 N. B. R. 110, 13 Fed. Cases 794; [1867] In re Pitts, 9 Fed. 542; [1867] Olney V. Tanner, 10 Fed. 101, 113 (affirmed in 18 Fed. 636). 2 Rem B— 26 1602 REMINGTON ON BANKRUPTCY. f^ 2703 gave the petitioning bank any superior lien. The only interference to which the order will subject it is that it will not be able to examine Tobias Lesser in supplementary proceedings as to what disposition was made of the property of the firm and its individual members, thus obtaining information which might be material or useful in the prosecution of the equity suit. Since the petitioner, however, may subject the bankrupts to a most searching examination in the District Court, and thereby obtain the same information, it is not easy to see in what way petitioner is prejudiced." In re DeLany & Co., 10 A. B. R. 634, 124 Fed. 280 (D. C. X. Y.) : "The judg- ment debtors made a mistake in not applying to this court for a stay of the supplementary proceedings instead of failing to appear for examination. But this may be regarded as an application to stay all proceedings on the judgment mentioned, including the supplementary proceedings, and proceedings founded thereon and ronnected therewith, to punish for the contempt, which evidently was not intended, the party evidently supposing that the adjudication in bank- ruptcy released her from any obligation to appear and submit to an examina- tion." And a motion to commit the bankrupt for contempt therein is stayed as well as all other proceedings, and disobedience of the stay is itself a con- tempt.^ ^ Thtis, an execution issued on a judgment rendered after the adjudica- tion in bankruptcy but before the discharge, should be perpetually stayed, if the claim was a dischargeable claim at the time of the bankruptcy.^^ Likewise, an execution levied on exempt property on a judgment rendered by a justice of the peace, in disregard of the adjudication although pleaded by the bankrupt, will be restrained.^^ And the omission from the bankrupt'^ schedules of the creditor who is suing the bankrupt, does not prevent stay being granted.-^^ But the stay should not be extended to the benefit of others than the bankrupt ;-^^ thus, not to those jointly liable with him. § 2703. No Further Stay than for Year, unless Application for Discharge Filed within Year Not Yet Acted upon. — Such further stay cannot be demanded, as of right, for a longer period than one year from the date of the bankrupt's adjudication, unless the petition for discharge is filed and not yet acted on;*^*^ nor for even that period if the discharge is granted or refused within the year. 55. In re Fortunato, 9 A. B. R. 630, 123 Fed. 622 (D. C. N. Y.), a, case oc- curring before adjudication. But not by the referee, In re Siebert, 13 A. B. R. 348, 133 Fed. 781 (D. C. N. J.). Apparently, contra. In re DeLong, 1 A. B. R. 66 (Ref. N. Y.). Also, apparently contra, In re Adams, 1 A. B. R. 96 (Ref. N. Y.). 56. Barnes :\Ifg. Co. v. Xorden, 7 A. B. R. 553 (Sup. Ct. N. J.). 57. In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). 58. In re Beerman, 7 A. B. R. 434, 112 Fed. 663 (D. C. Ga.J. 59. In re DeLong, 1 A. B. R. 66 (Ref. N. Y.). 60. Bankr. Act, § 11 (a). In re Flanders, 10 A. B. R. 379, 121 Fed. 236 (D. C. Vt.). 2707 EFFECT OF DISCHARGE. 1603 § 2704. If Stay Not Applied for, Judgment and Orders of State Court Valid. — If the bankrupt fails to apply for such further stay, the state court may go on and render judgment in personam against him, and the judgment (if rendered after the discharge has been granted or re- fused) will be good, notwithstanding the bankruptcy.'''^ Obiter, In re DeLany, 10 A. B. R. 635, 124 Fed. 280 (D. C. N. Y.) : "If not stayed, thej continue, and the debtor, though a bankrupt, may be compelled to observe and obey all orders of the State court lawfully made." Save and except that, if it be rendered upon a dischargeable debt and be rendered before the consideration of the bankrupt's petition for discharge, it will itself be discharged. "^^ § 2705. Or if Discharge Refused, Court May Render Judgment in Personam and Judgment Will Be Good. — If the bankrupt's discharge is refused, the court may go on and render judgment in personam. "^^ § 2706. Or if Not Interposed Though Granted, Judgment Valid. — If the bankrupt fails to interpose his discharge after it has been granted, a judgment thereafter rendered against him, in a pending suit started before the bankruptcy, is good f^ and, of course, is also valid if rendered on a right of action arising after bankruptcy. § 2707. Statutory Cancellation of Subsequently-Rendered Judg- ments. — However, in some states the statute permits the cancellation of judgments rendered on causes of action arising before bankruptcy, after the discharge in bankruptcy is granted.*^^ And this exception prevails, although, after the discharge was granted and the stay was still in existence, leave had been asked and granted to plead the discharge, but the discharge was never pleaded.'"' But the ex- ception does not prevail where the ex-bankrupt agrees to let judgment be taken in reliance upon the statute permitting such cancellation, the con- 61. Impliedly, Kinmouth v. Braeutigam, 10 A. B. R. 85 (Court of Chancery N. J.); also, 4 A. B. R. 344; inferentially, In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.); inferentially. Bank of Commerce v. Elliott, 6 A. B. R. 400 (Sup. Ct. Wis.); inferentially, Snyder v. Guthrie, 17 A. B. R. 902 (Penn. Com. Pleas). 62. Bankr. Act, § 63 (a) (5). Apparently contra, Snyder v. Guthrie, 17 A. B. R. 902 (Pa. Com. Pleas). 63. Obiter, In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). 64. Stevens v. Meyer, 8 A. B. R. 496 (Sup. Ct. N. Y. App.) ; Bank of Com- merce V. Elliott, 6 A. B. R. 409 (Sup. Ct. Wis.); Collies v. McWalters, 6 A. B. R. 593 (N. Y. Sup. Ct.); obiter, In re Tune, 8 A. B. R. 285, 115 Fed. 906 (D. C. Ala.). Vacating judgments in order to permit plea of discharge: Kinmouth v. Braeutigam, 4 A. B. R. 344 (Sup. Ct. N. J.). See same case in 10 A. B. R. 85. 65. Hussey v. Judson, 11 A. B. R. 520 (Sup. Ct. N. Y. App. Div.). Compare, on general subject, Howe v. Noyes, 15 A. B. R. 10.'5 (Sup. Ct. N. Y. App.). 66. Hussey v. Judson, 11 A. B. R. 520 (Sup. Ct. N. Y. App. Div.). 1604 REMINGTON ON BANKRUPTCY. § 2710 sideration for the agreement being the withdrawal by the plaintiff of al- legations of fraud.*^" § 2708. No Vacating of Judgment Rendered after Discharge, for Interposition of Discharge. — And a judgment rendered after a dis- charge has been granted will not be opened up to let in the defense of dis- charge, even though the judgment was rendered on warrant of attorney ,^*^ for the defense of discharge, though perfectly legal and valid, is not favored. § 2709. Stay Only Protects Bankrupt from Judgment in Per- sonam — Judgments in Rem as to Property Unaffected. — The stay when asked for by the bankrupt, in order to give him opportunity to plead his discharge, as, likewise, the bar of the discharge when pleaded and sustained, extends no further than to protect the bankrupt from a judg- ment in personam, or other personal order, the discharge in and of itself not being a defense to proceedings in rem; for, as previously noted,*^^ the discharge bars debts, not liens nor the assertion of interests in property.'^*^ Marble Co. v. Grant, 14 A. B. R. 288, 135 Fed. 322 (C. C. A. Pa.): "Section 11 (a) * * * does not apply to a suit brought in a State court to enforce an asserted right in rem under the State law." § 2710. Stay Dissolved after Discharge Granted, or Refused, or Dismissed. — The stay should be dissolved after the discharge has been granted, or refused, or the petition for discharge dismissed ; and the parties should be relegated to their remedies in the suit."^ In re Flanders, 10 A. B. R. 379, 121 Fed. 936 (D. C. Vt.): "By the terms of the Bankrupt Act, such a stay is to be granted only for the time during which the question of discharge may be open and pending. * -^ * If a discharge is denied, or the time for asking one is allowed to expire without application, there is no occasion for such stay. The suit may proceed as if there had been no bankruptcy, except as the trustee may intervene to save property rights for the estate." And the stay should be dissolved upon dismissal for lack of prosecution of the petition for discharge. In re Lederer, 10 A. B. R. 492, 125 Fed. 96 (D. C. N. Y.): "If the bankrupt files a petition for discharge, and then fails to carry on the proceedings with 67. Stevens v. Aleyers, 8 A. B. R. 496 (Sup. Ct. X. Y. App.). 68. Snyder v. Guthrie, 17 A. B. R. 902 (Pa. Ct. Com. Pleas). 69. See ante. § 2668. 70. Bk. of Commerce v. Elliott. 6 A. B. R. 409 (Sup. Ct. Wis.), quoted ante, § 2668. Berry t'. Jackson, 8 A. B. R. 485, 41 S. E. 698 (Sup. Ct. Ga.), qiloted ante, § 2668. Continental Nafl Bk. v. Katz, 1 A. B. R. 19 (Super. Ct. Ills.^; Reid, Murdock & Co. v. Cross, 1 A. B. R. 34 (Super. Ct. Ills.). In re DeLong, 1 A. B. R. 66 (Ref. N. Y.): Supplementary proceedings against bankrupt and others joint judgment debtors should be stayed only as t:> bankrupt. 71. In re Rosenthal, 5 A. B. R. 799, 108 Fed. 368 (D. C. N. Y.). § 2713 EFFECT OF DISCIIxVRGF. 1605 reasonable promptness, the court, upon a proper application, will dismiss the application for discharge for want of prosecution, and vacate all injunctions staying proceedings at law." § 2711. Qualified Stay Where Levy Sought on Exempt Property Not Exempt as to Levy Sought. — It would also seem that, if, there would be no exemptions against a levy of execution under the particular judgment sought to be obtained, the stay should be so qualified as to per- mit judgment to be taken for the purpose of levying on the exempt prop- erty. This is a necessary corollary of the rule that the bankruptcy court wall not administer exempt property for the benefit of certain creditors as to whom the property is not exempt. It would be inequitable to deprive such creditors of an opportimity to reduce their claims to judgment for the purpose of levying execution on the exempt property, or otherwise subjecting the same by legal proceedings.'^ § 2712. And Where Judgment Necessary to Perfect Rights against Surety, or Property. — Likewise, where a creditor's rights against a surety are dependent upon his getting judgment against the bank- rupt principal, it would seem a proper exercise of discretion to permit proceedings to be instituted, or pending proceedings to be prosecuted to judgment, for the purpose of fixing the surety's liability.'''^ Likewise, a creditor may be permitted to prosecute a pending action where it is neces- sary that it be reduced to judgment or decree in order to secure his rights.'^'* And, in general, the bankruptcy court has jurisdiction to sus- pend the proceedings in bankruptcy for a reasonable time, to allow pro- ceedings to be prosecuted in other jurisdictions for the enforcement of the rights of tlie parties."^ § 2713. No Deprivation of Right of Discharge by Staying Dis- charge Hearing or Refusing to Stay Creditor's Suits Where Judg- ment Requisite to Perfect Creditor's Rights against Sureties, etc. — Where the bankruptcy court has refused to stay a creditor's suit in order to enable the creditor to perfect his rights against exempt property, or against sureties or others in similar relations, and where, on the con- trary, it has even stayed the hearing on the bankrupt's own application for discharge in order to prevent such discharge being interposed as a bar to such perfecting of rights, such refusal to stay the creditor's pro- ceedings and such staying of the bankrupt's discharge, do not deprive the bankrupt of any substantial right nor take from him the benefit of his 72. See "Exemptions," ante, §§ 1103, 1104, et seq. 73. See "Rights of Creditors against Third Parties Jointly or Secondarily Liable," § 1524. 74. Instance, issuance of scire facias on mortgage after adjudicati/m: In re Engle, 5 A. B. R. 372, 374, 105 Fed. 893 (D. C. Pa.). 75. Compare, dissenting opinion in City of Waco v. Bryan, 11 A. B. R. 481, 127 Fed. 79 (C. C. A. Tex.). l(,()(j REMINGTON ON BANKRUPTCY. f^ 2717 discharge; for the judgment so obtained is itself discharged, 9,o far as its efifect as a judgment in ])ersonam is concerned, tlicnigh vahd so far as concerns the fixing of the crecHtor's rights against property or sureties. y\nd this is so, because, by the wise forethought of the framers of the act, such judgment, so obtained "after the fihng of the petition and before the consideration of the 1)ankrui)t's apphcation for a discharge," is itself, by § 63 (a) (5), declared to be a "])rovable del)t," and by virtue of being a "provable debt," is discharged by § 17 of the act, discharging "all provable debts except, etc/"^" Division 4. RivvivAi. oi" Discharged Debt. § 2714. Revival of Discharged Debt. — The bar oi the discharge may be waived and the original debt revived.'^'^ This applies to composition cases as well as to cases where the estate is distributed in bankruptcy.''^ § 2715. No New Consideration Necessary. — No new consideration is necessary to supp(n-t the waiver: the existence of the liability itself is sufficient, although it would be unenforceable by legal proceedings but for the waiver.'^" § 2716. Part Payment on Account Insufficient to Revive Debt. — Neither part payment, nor partial payments on account from time 1(j time, will ipso facto, waive tlie discharge.*^*' / § 2717. But Discharge Waivable by New Promise. — l^>ul the dis- charge is waivable by a new ])romise.'^' Tntcrn.-ilional Harvester Co. v. Lyman, 10 A. B. R. 4.''>0 (Sup. Ct. Minn.): "A • Idinilc jjromise of a debtor is sufficient to revive the obligation after a dis- charjre in bankruptcy." 76. Instance, although point not advert imI to, I'.arnes Mfg. Co. v. Norden, 7 A. J'. R. ryTili (N. Y. Sup. Ct.). I'ut compare instance where rule apjjarently dis- regarded, obiter, Snyder 7a (kithric, 17 A. I'.. R. 002 (Pa. Com. Pleas). 77. Gruenberg v. Trainor, II A. H. R. 776 (Sup. Ct. N. Y. Apj). J)iv.); Mut. Res. Fund Life Ass'n v. Beatty, 2 A. B. R. 244, 9:5 Ped. 747 (C. C. A. Calif.); obiter, In re Shaffer, 4 A. R. R. 728, 104 Fed. 982 (D. C. N. Car.). 78. lnii)li(dly, obiter, Mandell &; Co. v. Levy, 14 A. P,. R. r)49 (N. Y. Suj). Ct. App.). 79. (huenberg v. Trainor, 11 A. B. R. 776 (Sup. Ct. N. Y. App. Div.); Mut. Res. I'und Life Ass'n v. Beatty, 2 A. B. R. 244, 9;{ Fed. 982 (C. C. A. Calif.). 80. Dyer v. Isliam, 4th Ohio C. 429; Grill v. Solomon, 82 Ala. 8.'); Willetts v. Catherson, :i Ills. App. 644; I'.ielc v. Ogilivie, 2 Greene :!26 (Iowa); lleim v. Chapman, 171 Mass. :i47; Camb. Sav. Inst. v. Littleiield, 6 Cush. 210; Jacobs v. Carpenter, 161 Mass. 15; Stark 7). Stinson, 2;i N. H. 2.'')9; Lawrence v. Harring- ton, 122 N. Y. 408; Wheeler v. Simmons, 60 J fun 404; In re llazelton, I Weekly Notes case held, in effect, that rent to accrue on a lease not expired at the time of the bankruptcy cannot be liquidated, and is, therefore, not a provable debt, nor affected by the bankrupt's discharge. This rule is not varied by the fact that, after the bankruptcy, the landlord, by reletting the premises, was able to ascer- tain the probable deficiency. Such reletting constitutes a new debt which, while collectible from the after-acquired property of the bankrupt, cannot be allowed against his estate in the hands of the trustee. 96. In re Curtis, 9 A. B. R. 286 (Sup. Ct. La.); Witthaus v. Zimmerman, 11 A. B. R. 314 (N. J. App.); Watson v. Merritt, 14 A. B. R. 458, 136 Fed. 359 (C. C. A. Kas.), quoted supra, § 3729; contra. In re Jefferson, 3 A. B. R. 174, 93 Fed. 951 (D. C. Ky.); contra. In re Hinckel Brew. Co., 10 A. B. R. 484, 103 Fed. 942 (D. C. N. Y.); contra, obiter. In re Pennewell, 9 A. B. R. 490, 119 Fed. 139 (C. C. A. Mich.); contra, obiter, Atkins v. Wilcox, 5 A. B. R. 317, 105 Fed. 595 (C. C. A.). See ante, "Discussion as to the Effect of Adjudication in Bankruptcy upon the Relation," §§ 451, 641, 653, 981, 1118, 2675, 2729. See interesting article in 39 American Law Reg. (N. S.) 656: "Does the relation of landlord and tenant become severed by the operation of the Bankrupt Law." 97. Compare, subject of "Provable Debts," ante, § 625, et seq. Bankr. Act, § 17 (a) : "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except * * *." Bankr. Act, § 1 (11): "'Debts' shall include any debt, demand or claim provable in bankruptcy." Bankr. Act, § 63 (a): "Debts of the bankrupt may be proved and allowed against his estate which are, etc., * * *." Tindle v. Birkett, 18 A. B. R. 179 (affirmed in 18 A. B. R. 121, 205 U. S. 185, N. Y. Court of Appeals); obiter. In re Pettingill & Co., 14 A. B. R. 732, 137 Fed. 840 (D. C. Mass.); Arrington v. Arrington, 13 A. B. R. 89, 132 Fed. 200 (D. C. N. Car.); In re Burka, 5 A. B. R. 12, 104 Fed. 326 (D. C. Mo.); In re Marcus, 5 A. B. R. 365, 105 Fed. 907 (C. C. A. Mass.). § 2731 EFFECT OF DISCHARGE. 1611 bankruptcy unless the fact that the debt originated in fraud excludes it from the operation of the discharge." Burnham v. Pidcock, 5 A. B. R. 45 (affirmed in-5 A. B. R. 590, 68 N. Y. Supp. 1007) : "In short, unless the right of action, whatever it be, falls within one of the exceptions specified in the act, it is, after liquidation by judgment, barred by the discharge under said act." Crawford v. Burke, 12 A. B. R. 666, 195 U. S. 176: "If plaintiff's claim was not a provable debt, or was expressly excepted from the operation of the dis- charge, the decision of that court was right, but if it was covered by the dis- charge such discharge was a complete defense." In re United Button Co., 15 A. B. R. 399, 140 Fed. 495 (D. C. Del., affirmed sub nom. Brown & Adams v. Button Co., 17 A. B. R. 565): "It is an elementary proposition that a discharge in bankruptcy is no bar to the enforcement of de- mands against a bankrupt not provable under the Act. To undertake to except such demands from the operation of a discharge is an absurdity." Obiter, In re Gerson, 6 A. B. R. 11, 105 Fed. 891 (C. C. A. Penn.) : "Of course, if not provable, such liabilities are not discharged." Thus, judgments for penal fines are not provable nor dischargeable ;^s nor are judgments that are in the nature of police regulations, such as those for the support of a bastard child. ^^ Nor are contracts of the same nature discharged. Dunbar v. Dunbar, 10 A. B. R. 151, 190 U. S. 340: "In relation to that part of the husband's contract to pay for the support of his minor children until they respectively became of age, we also think that it was not of a nature to be proved in bankruptcy. At common law, a father is bound to support his legitimate children, and the obligation continues during their minority. We may assume this obligation to exist in all the States. In this case the decree of the court provided that the children should remain in the custody of the wife, and the contracts to contribute a certain sum yearly for the support of each child during his minority was simply a. contract to do that which the law obliged him to do; that is, to support his minor children. The contract was a recognition of such liability on his part. We think it was not the intention of Congress, in passing a Bankruptcy Act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reason- able one) in fulfillment thereof should be so discharged. It is true his promise is to pay to the mother, but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose." Nor are judgments that are in the nature of poHce regulations, such as those for the support of a wife, discharged. ^°*^ 98. In re Moore. 6 A. B. R. 590, 111 Fed. 145 (D. C. Ky.). Contra, In re Alderson, 3 A. B. R. 544, 98 Fed. 583 (D. C. W. Va.). 99. In re Baker, 3 A. B. R. 101, 96 Fed. 954 (D. C. Kas.) ; McKittrick v. Cahoon, 95 N. W. 223 (Minn.). 100. Compare, Dunbar v. Dunbar, 10 A. B. R. 144, 190 U. S. 340; Lynde v. Lynde, 181 U. S. 183; Welty v. Welty, 63 N. E. 161 (Ills.); BarcUy v. Barclay, 184 Ills. 375. 1612 REMINGTON ON BANKRUPTCY. § 2732 Audubon v. Shpfelclt, 5 A. B. R. 832, 181 U. S. 575: "The Bankrupt Act of 1898 provides, in § 1, that a 'discharge' means 'the release of a bankrupt from all his debts which are- provable in bankruptcy, except such as are ex- cepted by this act;' and includes, in § 63, arnong the debts which may be proved against his estate, 'a fixed liability, as evidenced by a judgment or an instru- ment in writing, absolutely owing,' at the time of the petition in bankruptcy, whether then payable or not, and debts 'founded upon a contract, express or implied.' 30 Stat. 541, 563. "Alimony does not arise from any business transaction, but from the rela- tion of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking; alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one State, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another State, and may therefore be there enforced by suit. Barber v. Barber (1858), 21 How. 582; Lynde v. Lynde (1901), 181 U. S. 183. But its obligation in that respect does not afifect its nature. In other respects, alimony cannot ordinarily be enforced by an action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entit'ed, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which afifect either can be better weighed by the court having jurisdiction over the relation of husband and wife, than by a court of a different jurisdic- tion. * * * "The result "s that neither the alimony in arrear at the time of the adjudica- tion in bankruptcy, nor alimony occuring since that adjudication, was provable in bankruptC3^ or barred by the discharge." Debts not comprehended within § 63, which enumerates the debts that are provable, are not discharged. ^'^^ § 2732. If Capable of Being "Proved," Debt Discharged Whether Actually Proved or Not. — If the debt be "provable"' or capable of being proved, it is discharged whether actually "proved" or not.^o^ Tindle v. Birkett, 18 A. B. R. 121, 205 U. S. 183 (affirming 15 A. B. R. 179): "This court held that plaintiff's claim was 'provable under the Bankruptcy Act,' that is, was 'susceptible of being proved,' and that it might have been proved under § 63a as 'founded upon an open account or upon a contract express or implied,' if plaintiff had chosen to waive the tort and take his place with the other crediton; of the estate." Inferentially. Crawford v. Burke, 12 A. B. R. 659, 195 U. S. 176: "Under this section whether the discharge of the defendants in bankruptcy shall operate as a discharge of plaintiff's debt, it not having been reduced to judgment, de- pends upon the fact whether that debt was 'provable' under the Bankruptcy Act, that is, susceptible of being proved." 101. Brown & Adams v. Button Co., 17 A. B. R. 565. 149 Fed. 48 (C. C. A. Del., affirming In re United Button Co., 15 A. B. R. 399, 140 Fed. 495 (D. C. Del.). 102. Wood V. Carr, 10 A. B. R. 577 (Ky. Ct. Appeals). § 2736 EFFECT OF DISCHARGE. 1613 § -2733. Tort Claims Discharged, if Tort Might Be Waived and Claim Be Presented ex Contractu. — Thus, tort claims are discharged, if they are of such nature that the tort may be waived and the claim presented in contract.^'^^ But even though the tort be a waivable tort, and the tort actually be waived, yet if the liability is one declared to be ex- cepted from the operation of discharge, it will not be discharged because of actual waiver or waivability of the tort.^^^ Even where the contract actually has been waived and suit brought in tort, a discharge pending the suit is a good bar, for although his debt be not yet reduced to a judgment for fraud and dischargeable as a judgment, it is yet a provable debt, for it is capable of being presented ex contractu. ^"^^ § 2734. Also Unliquidated Claims, if Capable on Liquidation of Being Presented ex Contractu. — Unliquidated claims that might have been liquidated but were not liquidated, are nevertheless discharged, if they were capable of being presented in form ex contractu. ^'^'^ § 2735. Only Debts Existing at Date of Filing Petition, Dis- charged. — Only debts existing at the date of the filing of the bankruptcy petition are discharged. ^^" Thus, it has been held, that attorney's fees incurred after the filing of the petition and before the adjudication, not being for services relating to the bankruptcy, are not provable claims and therefore are not dis- charged. i*^^ Likewise, a judgment for costs obtained after adjudication is not dischargeable. 1'^'' § 2736. Contingent Claims Not Provable, Not Discharged. — Con- tingent claims that are not provable, are not released by the discharge. Thus, a contract of annuity for the support of a divorced wife as long as she lives and does not remarry, is not released. Dunbar v. Dunbar, 10 A. B. R. 145, 190 U. S. 340: "Conceding that the Bank- ruptcy Act provides for discharging some classes of contingent demands or claims, this is not, in our opinion, such a demand. Even though it may be that an annuity dependent upon life is a contingent demand within the meaning of the Bankruptcy Act of 1898, yet this contract, so far as regards the support of the wife, is not dependent upon -life alone, but' is to cease in case the wife remarries. Such a contingency is not one which, in our opinion, is within the 103. Tindle v. Birkett, 18 A. B. R. 121, 205 U. S. 185 (affirming 15 A. B. R. 179); Crawford r. Burke, 12 A. B. R. 659, 195 U. S. 176; Mackel v. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.). 104. Mackel v. Rochester, 14 A. B. R. 429, 434, 135 Fed. 904 (D. C. Mont.). 105. Crawford v. Burke, 12 A. B. R. 659, 195 U. S. 176; Mackel z'. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.). 106. In re Hilton, 4 A. B. R. 774, 104 Fed. 981 (D. C. N. Y.). 107. In re Burka, 5 A. B. R. 12, 104 Fed. 326 (D. C. Mo.). 108. In re Burka, 5 A. B. R. 12, 104 Fed. 326 (D. C. Mo.). 109. In re :\Iarcus, 5 A. B. R. 365 ^C. C. A. Mass., affirming 5 A. B. R. 19, 104 Fed. 331). But compare, Aiken v. Haskins, 6 A. B. R. 46 (N. Y. Sup. Ct.). 1614 REMINGTON ON BANKRUPTCY. ^ 2739 purview of tho act, because of the innate difficulty, if not impossibility, of esti- mating or valuing the particular contingency of widowhood. A simple annuity which is to terminate upon the death of a particular person may be valued by reference to the mortality tables. Mr. Justice Bradley, in Riggin v. Magwire, 15 Wall. 549, speaking for the court, said that so long as it remained uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable under the Bankruptcy Act of 1841. The fifth section of that act gave the right to prove 'uncertain and con- tingent demands,' but it was held that a contract such as above described was not within that section. "It was remarked by the justice in that case that if the contract- had come within the category of annuities and debts payable in future, which are absolute and existing claims, that the value of the wife's probability of survivorship after death of her husband might have been calculated on the principles of life annuties. "But how can any calculation be made in regard to the continuance of widow- hood when there are no tables and no statistics bj^ which to calculate such con- tingency? How can a valuation of a provable continuance of widowhood be made? Who can say what the probability of remarrying is in regard to any particular widow? We know what some of the factors might be in the ques- tion; inclination, age, health, property, attractiveness, children. These would at least enter into the question as to the probability of continuance of widow- hood, and yet there are no statistics which can be gathered which would tend in the sHghtest degree to aid in the solving of the question." § 2737. Costs Incurred Prior to Petition Dischargeable. — Costs of a creditor incurred prior to the fiHng of the bankruptcy petition are prov- able debts against the bankrupt and are therefore discharged, provided the cause of action sued on was a provable debt. And this is so, whether a judgment was rendered or not, and whether the judgment rendered was rendered before or after the filing of the petition. ^^^ § 2738. Incurred after, Not Discharged. — Costs of a creditor in- curred after the filing of a petition in bankruptcy against the debtor, which ripen into rights against the bankrupt, are not provable debts and are not discharged, but the bankrupt remains liable for them.^^^ § 2739. Judgment for Breach of Pro-mise of Marriage Discharged. — Judgments for breach of promise to marry are discharged ;^^- but not, when the breach of promise was accompanied with seduction. ^^^ 110. Aiken, Lambert & Co. v. Haskins, 6 A. B. R. 46 (N. Y. Sup, Ot.). But compare, as to judgments for costs. In re Marcus, 5 A. B. R. 365, 104 Fed. 331 (C. C. A. Mass.). 111. Lambert & Co. v. Haskins, 6 A. B. R. 46 (N. Y. Sup. Ct.). 112. Finnegan v. Hall, 6 A. B. R. 645, 35 Misc. 773, 72 N. Y. Supp. 347; In re McCauley, 4 A. B. R. 122, 101 Fed. 223 (D. C. N. Y.); Bond z: Millikin, 17 A. B. R. 811, 109 N. W. 774 (Iowa). 113. Distler r. :\IcCauley. 6 A. B. R. 491 (Sup. Ct. X. Y.) ; obiter, Bond v. Millikin, 17 A. B. R. 811, 109 N. W. 774 (Iowa). § 2741 EFFECT OF DISCHARGE. 1615 § 2740. Judgments for Torts Discharged, Though Liability on Which Founded, Not. — Thus, since judgments are provable, judgments for torts, where the tort itself is not provable because not capable of being presented in form ex contractu, are nevertheless discharged. Burnham z'. Pidcock, 5 A. B. R. 45 (affirmed in 5 A. B. R. 590, 168 N. Y. Supp. 1007): "It was held, under the Bankruptcy Law of 1841, that a judgment obtained in an action of tort was a debt dischargeable under and by force of the bankruptcy law. In re Book, 3 McLean 317, Fed. Cas. No. 1, 637. And see Comstock V. Grout, 17 Vt. 512; Vrouch v. Gridley, 6 Hill 259. And under the Act of 1867, it was held, that a judgment for assault and battery was a debt dischargeable .'n bankruptcy. Manning v. Keyes, 9 R. I. 224. In short, unless the right of action, whatever it be, falls within one of the exceptions specified in the act, it 's, after liquidation by judgment, barred by the discharge under said act." § 2741. Claims of Sureties and Endorsers against Bankrupt Prin- cipal Discharged. — Thus, claims of sureties on the bankrupt's obliga- tions are discharged, although the sureties have paid nothing thereon until after the bankruptcy has occurred. ^^^ Likewise, the bankrupt maker's liability to the payee who has been obliged to pay the holder after the maker's adjudication as a bankrupt but before his discharge, is itself discharged. ^^^ And in general contracts #of endorsement are discharged, before the liability thereunder has become enforceable by action through default of the maker.ii*^ 114. Sureties rights, perhaps, partake of the nature of the original obligation as to dischargeability. Inferentially, In re Colacula, 13 A. B. R. 292, 133 Fed. 255 (D. C. Mass.); inferentially, In re Blumberg, 1 A. B. R. 633, 133 Fed. 845 (D. C. Tenn.). Hayer v. Comstock, 7 A. B. R. 493 (Sup. Ct. Iowa); compare. In re New, 8 A. B. R. 566, 116 Fed. 116 (D. C. Ohio) ; compare, Swarts v. Fourth Nat'l Bk., 8 A. B. R. 673, 117 Fed. 1 (C. C. A. Mo.); contra, inferentially, Phillips v. Dreher Shoe Co., 7 A. B. R. 326, 112 Fed. 404 (D. C. Penn.).» See "Provable Debts," ante, §§ 642, 644. 115. In re Smith v. Wheeler, 5 A. B. R. 46 (N. Y. Sup. Ct. App. Div.). Under act of 1841, Mace v. Wells, 7 How. 272. Under act of 1867. Hunt v. Taylor, 108 Mass. 508. 116. Obiter, In re Gerson, 6 A. B. R. 11, 107 Fed. 897 (C. C. A. Penn., affirming 5 A. B. R. 89) : This decision qualified the rule by limiting it by the proviso that it become such within the year limited for proving claims after adjudication. But it would seem that the dischargeability should not be made dependent upon the liability becoming fixed and absolute within the year, thus making its dis- chargeability or nondischargeability dependent on an immaterial contingency. It is doubtful whether this decision states the correct rule. Only provable debts are discharged, and only those debts that were owing at the time of the filing of the petition are provable. Otherwise, where is the limitation? If debts that do not become absolutely owing until after the filing of the petition are provable when they do so become, then many incongruities and peculiar situa- tions arise. Suppose one dividend has been declared and paid before the claim becomes "absolutely owing," will the claim be entitled to a second dividend — like belated claims in general? Suppose all the dividends have been paid out before the claim becomes "absolutely owing," is it to receive no dividend? Is there any reason why a claim becoming "absolutely owing" 364 days after the adjudication should be provable and be discharged whilst one becoming so 366 days afterward would not be discharged? See ante, §§ 642, 644. 1616 REMIXGTOX ON BANKRUPTCY. § 2747 § 2742. Stockholder's Liability Dischargeable, if Fixed. — Stock- liolder's liability for debts of the corporation is discharged by the stock- holder's own bankruptcy, if the facts essential to the 'maintenance of a stockholders' liability suit have already occurred ;^i' but it is not dis- charged by the corporation's discharge. ^^^ .SUBDIVISION "a." pROVABi.1; Debts Excepted by Statute from the Operation of Dis- charge. § 2743. Debts Excepted from Discharge. ^Certain debts that are provable are nevertheless excepted from the operation of the discharge decree.^i^ § 2744. Because Excepted, Not on That Account Entitled to Priority before Dividends. — Provable claims excepted from discharge are not on that account entitled to priority of payment out of dividends. ^^o § 2745. First Exception — Taxes Not Discharged. — Taxes levied by the United States, the State, County, district or municipality in which the bankrupt resides, are not discharged. ^-^ There has been somewhat of a discussion as" to whether a tax is a "debt" within the meaning of the Act. It is certainly a "demand" and therefore comes within the bankruptcy definition of a "debt."^-- § 2746. Second Exception — "Liabilities for Obtaining Property by False Pretenses or False Representations, " Not Discharged. — Liabilities for obtaining property by false pretenses or false representa- tions, are excepted from the operation of discharge. This exception was .added by the amendment of 1903, and took the place of the former provision that read : "Judgments for fraud or for obtaining property by false pretenses or false representation." § 2747. Not All Frauds Excepted, but Only "Obtaining Property by False Pretenses," etc. — Not all classes of fraud come under this section (although other frauds are excepted by a later provision if com- mitted as an officer or in a fiduciary capacity) but only such frauds as are embraced within the term "obtaining property by false pretenses or false representations." The term is more restricted in respect to the classes 117. Dight V. Chapman, 12 A. B. R. 743 (Sup. Ct. Ore.); inferentially, In re Rouse, 1 A. B. R. 231, 91 Fed. 514 (Ref. Ohio). 118. Elsbree z: Burt. 9 A. B. R. 87 (R. 'l. Sup. Ct.). 119. Bankr. Act, § 17 (a). 120. Claflin Dry Goods Co. v. Eason, 2 A. B. R. 263 (Ref. Tex.). 121. Bankr. Act, § 17 (a). 122. Bankr. Act, § 1 (11). See ante, § 2160. § 2748 EFFECT OF DISCHARGE. 1617 of fraud embraced within its exceptions than was the law before the amendment of 1903, ahhongh broader in the other respect that judgment is not a prerequisite. ^-^ Mackel v. Rochester, 14 A. B. R. 431, 135 Fed. 904 (D. C. Mont.): "The Amendment of 1903 to § 17 changed the nature of the debts included within the exceptions. * * * The difference, proper to be noticed in the present case, be- tween the law as it stood prior to 1903 and as it is at present, rests in this: Before the amendment of 1903, the bankrupt was released from all provable debts except claims in actions for fraud or for obtaining property by false pretenses or false representations, which had been reduced to judgment, while now the exception includes liabilities for obtaining property under false pre- tenses or false representations; that is to say, before the present statute, a bankrupt mighl have been released unless a provable debt for fraud, as specified in subdivision 2, was in judgment, while now he will not be released if the claim is mereK- upon a liability for fraud in obtaining property by false pre- tenses or false representations, whether or not such liability is reduced to judgment." § 2748. Judgment Not Requisite. — The right of action need not be reduced to judgment. Mere "liabilities" for obtaining property by false pretenses or false representations are excepted. ^^^ 123. Before 1903 Judgments for Any Kind of Fraud Excepted. — Before the amendment of 1903, a judgment for any fraud, as well for other frauds as for that of obtaining property by false pretenses or false representations, was ex- cepted from the operation of the discharge decree. In re Bullis, 7 A. B. R. 238 (Sup. Ct. N. Y. App. Div., affirmed by U. S. Sup. Ct. in Bullis z'. O'Beirne, 13 A. B. R. 108, 195 U. S. 606). But the fraud must have been actual fraud as distinguished from constructive fraud. Bullis f. O'Beirne. 13 A. B. R. 108, 195 U. S. 606; Burnham v. Pidcock, 5 A. B. R. 42 (N. Y. Sup. Ct., affirmed in 5 A. B. R. 590); Forsyth v. Wehmeyer, 3 A. B. R. 807, 177 U. S. 177; Mackel v. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.); Western Union Cold Storage Co. v. Hurd, 8 A. B. R. 633, 116 Fed. 442 (D. C. Mo.). 124. Mackel v. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.) § 2747. Before 1903 Must Have Been Reduced to Judgment, Else Barred. — Before the amendment of 1903, the cause of action for fraud must have been reduced to judgment, else it was barred. Crawford v. Burke, 12 A. B. R. 668, 195 U. S. 176: "The fact that the second subdivision of § 17 excepted from the discharge 'all judgments in actions for frauds, or of obtaining property by false pretenses, or false representations,' in- dicates quite clearly that as to frauds in general it was the intention of Con- gress only to except from discharge such as had been reduced to judgment, unless they fall within the fourth subdivision, of those created by the fraud, embezzlement, misappropriation, or defalcation of the bankrupt while acting as an officer or in a fiduciary capacity." In re Lewensohn, 3 A. B. R. 594, 98 Fed. 576 (D. C. N. Y.) ; Tindle v. Birkett, 15 A. B. R. 179 (N. Y. App. Ct.) ; In re Bullis, 7.A. B. R. 238 (N. Y. Sup. Ct. App. Div„ 171 N. Y. 689, affirmed in Bullis v. O'Beirne, 13 A. B. R. 108, 195 U. S. 606) ; Morse & Rogers v. Kaufman, 7 A. B. R. 549, 4 Va. Sup. Ct. Reporter 172; Smith & Wallace Co. v. Lambert, 11 A. B. R. 252 (N. J. Sup. Ct.) ; compare, obiter. In re Thomas, 1 A. B. R. 515, 103 Fed. 273 (D. C. Iowa); obiter, Brown & Adams v. Button Co., 17 A. B. R. 569, 149 Fed. 48 (C. C. ' A. Del.); In re Rhutassel, 2 A. B. R. 697, 96 Fed. 597 (D. C. Iowa); obiter, Howe v. Noyes, 15 A. B. R. 103 (N. Y. Sup. Ct. App.); contra. In re Wollock, 9 A. B. R. 685, 120 Fed. 516 (D. C. Ills.); contra, In re Cole, 5 A. B. R. 780 (D. C. X. Y.). And whether the judgment were a judgment for fraud, obtaining property by 2 Rem B— 27 1618 REMINGTON ON BANKRUPTCY. § 2750 § 2749. Judgment Not Such Merger, as Prevents Inquiry into Original Liability.— Judgment does not so far work a merger that the original character of the liabiHty cannot be inquired into.^-^ § 2750. Not Even Though Tort Waived and Judgment on Quasi Contract. — Nor does the form of the action — as, where the tort is waived — prevent incjuiry into the original character of the liability. ^^g g^^^ [^ ^p_ pears, laches in asserting the fraudulent origin of the debt may be con- sidered in determining the nature of it.^-" false pretenses or false representations, or not, must have been gathered from the record itself. Burnham v. Pidcock, 5 A. B. R. 590 (N. Y. Sup. Ct. App. Div., affirming 5 A. B. R. 42; also, In re Rhutassel, 2 A. B. R. 697, 96 Fed. .597 (D. C. Iowa). Barnes Mfg. Co. v. Norden, 7 A. B. R. 553 (Sup. Ct. N. J.): "Judgment re- covered on the common money counts is not excepted- from the operation of a discharge in bankruptcy as a judgment in an action for fraud." Smith & Wallace v. Lambert, 11 A. B. R. 252 (Sup. Ct. N. J.); In re Arkell, 6 A. B. R. 650 (N. Y. Sup. Ct. App.); Hargardine-McKittrick v. Hudson, 6 A. B. R. 657 (D. C. Mo., affirmed in 10 A. B. R. 225, 122 Fed. 232, C. C. A.). But the judgment need not have expressly read that it was rendered on those grounds; the fact might be ascertained from an inspection of the entire record. In re Bullis, 7 A. B. R. 238 (N. Y. Sup. Ct. App. Div.), affirmed in Bullis v. O'Beirne, 13 A. B. R. 108, 195 U. S. 606. Compare, to same effect under law of 1867, Packer v. Whittier, 1 A. B. R. 621 (C. C. A. Mass.). And the recitals of its character contained in the judgment record were not conclusive on the federal court. Analogousb^ Knott v. Putnam, -6 A. B. R. 80, 107 Fed. 907 (D. C. Vt.): Where the court in substance held, where in an action in a state court upon such a debt the judgment recites that "the sum of which this judgment was rendered was received, and held by the defendants in a fiduciary capacity for the plain- tifif," and "that the cause of action arose from the willful and malicious act of the defendants, and that they ought to be confined in close jail," this decision is conclusive in a court of bankruptcy only as to the matters before the state court for decision, including whether he was entitled to a close jail certificate under the state statutes, but does not affect the right of the bankruptcy court to determine whether execution awarded with the certificate upon it should be used for imprisoning the bankrupts to compel payment, and the bankruptcy court has jurisdiction and authority to stay the arrest of the bankrupts upon such execution. But compare. In re Arkell, 6 A. B. R. 650 (N. Y. Sup. Ct. App.). And compare,. Hargardine-McKittrick Dry Goods Co. v. Hudson, 6 A. B. R. 657, 122 Fed. 23'2 (D. C. Mo., affirmed in 10 A. B. R. 225, C. C. A.). But the fraud must have been the gravamen of the action and proof of the fraud must have been essential to the recovery and it was not sufficient that the fraud was merely incidentally shown. Collins z'. McWalters, 6 A. B. R. 595 (N. Y. Sup. Ct.); Burnham v. Pidcock. 5 A. B. R. 590, 68 N. Y. Sup. 1007. And a stipulation that the judgment should be confined in its construction to a money judgment rendered it discliargeable. In re Arkell, 6 A. B. R. 650 (X. Y. Sup. Ct. App.). Analogously, Hargardine-McKittrick Dry Goods Co. v. Hudson, 6 A. B. R. 657, 122 Fed. 232 (D. C. Mo., affirmed in 10 A. B. R. 225, C. C. A.). And where the creditor ha3 an option to sue upon contract or to waive the contract and sue for fraud and elected the former method of procediire, the debt was not one created by fraud; a fortiori, In re Rhutassel, 2 A. B. R. 697, 96 Fed 597 (D. C. Iowa). 125. Obiter, Mackel v. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.); obiter, being as to law before 1903, McDonald v. Brown, 10 A. B. R. 63 (R. I. Sup. Ct.); compare, to this effect under law of 1887, Packer z'. Whittier, 1 A. B. R. 621 (C. C. A. Mass.). Compare, post, § 2790. 126. Mackel v. Rochester, 14 A. B. R. 429, 135 Fed. 904 (D. C. Mont.). 127. Compare, analogouslv, Hargardine-McKittrick Co. z'. Hudson, 10 A. B. R. 225, 122 Fed. 232 (C. C. A. Mo.). § 2754 EFFECT OF DISCHARGE. 1619 § 2751. False Representations Not Necessarily in Writing. — The lalse representations need not necessarily have been made in writing in order to except the debt from the discharge.- Obiter, Katzenstein r. Reid, 16 A. B. R. 746 (Ct. App. Tex.): "There is no requirement in amended § 17 as to the manner in which the false pretenses or false representations shall be conveyed to the defrauded party, and we do not believe that the national legislature intended that a requirement that such pretenses or representations should be in writing should be read from § 14 into § 17. In the first section it is provided that the bankrupt shall not be discharged if he has obtained property on credit upon a materially false state- ment in writing made to the person defrauded for the purpose of obtaining such property on credit; but in § 17 it provides that such discharge will not release the bankrupt from liabilities for obtaining property under false pre- tenses. The two provisions are not antagonistic, and there is no warrant for reading one into the other." § 2752. False Representations to Mercantile Agency Sufficient. — The false representations need not have been made to the particular cred- itor now seeking to have his debt excepted. If made to a mercantile agency to obtain credit it will suffice.^^s § 2753. Reckless Representations Sufficient. — Reckless representa- tions made by a buyer, who, although having opportunity to find out the truth, did not actually know the falsity, will suffice to except the debt.i^a § 2754. Third Exception— Liabilities for Willful and Malicious In- juries to Person or Property. — Liabilities for willful and malicious in- juries to the person or property of another constitute the third exception. They are not discharged. ^^^ It is to be noted in this connection that such claims are, in general, not provable, and hence would not be dischargeable (unless in judgment), even if not specially excepted by the statute, ^^^ except such of them as 128. Katzenstein v. Reid, 16 A. B. R. 746 (Sup. Ct. Tex.). 129. Katzenstein v. Reid, 16 A. B. R. 746 (Sup. Ct. Tex.). 130. Bankr. Act, § 17 (a) (2). Judgment on a recognizance partakes of nature of original cause of action. — Judgment on a recognizance that had been entered into by one who took the poor debtor's oath after arrest on a judgment for assault, is not released by discharge. In re Colacula, 1.3 A. B. R. 292, 133 Fed. 25.5 (D. C. Mass.). But compare analogously. In re Blumberg, 1 A. B. R. 633. 94 Fed. 476 (D. C. Tenn.^. Before 1903 Must Have Been Reduced to Judgment, Else Released.— Before the amendment of 1903 the right of action must have been reduced to judgrnent else it was released unless it was not one of those torts which could be waived and be presented as a claim quasi ex contractu. ]\Iorse & R.ogers v. Kaufman, 7 A. B. R. 549, 4 Va. Sup. Ct. 172. See ante, § 2748. note. Before 1903 Character of Judgment Must Have Appeared from Face of Record. — Before the amendment of 1903 the character of the obligation must have appeared from the record itself: it must have been a judgment for willful or malicious injury. Inferentially, In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa). See ante, § 2748, note. 131. See ante, "Claims ex Delicto," §§ 635, 636. 1620 REMINGTON ON BANKRUPTCY. § 2756 could be proved in contract by the waiving of the tort; therefore, the amendment of 1903 added little to the exception of willful and malicious injuries to person or property, for, before that amendment, liabilities for willful and malicious injuries to the person or property of another were not provable debts and were therefore, even then, not discharged, except in cases wherein the tort could be waived and suit be brought on contract. Of course, judgments would have been then discharged had it not been for the exceptions of § 17. Thus, judgmeiits for assault and battery are not released ;^32 nor are judgments for criminal conversation. ^^^ Likewise, judgments for breach of contract of marriage, where accom- panied with' seduction, are not released i^^^ nor are judgments for aliena- tion of affections ;^'^'^ nor judgments for the seduction of a daughter ;i3® nor judgments for libel. ^^' But the liability must have been for wullful and malicious injury; and a judgment against a landlord for damages for the bite of a vicious dog kept by a tenant has been held dischargeable. ^^^ § 2755. Fourth Exception — Liabilities for Alimony. — Liabilities for alimony already due or to become due, are not discharged.^^o § 2756. Simply Declaratory of Law as Already Existing. — This ex- ception, added by the amendment of 1903, is simply declaratory of the law as it stood beforehand ; for it was already the holding that such liabilities were in the nature of demands of the state, and were not provable, and hence were not dischargeable.^""^ 132. McChristal z'. Clisbee, 16 A. B. R. 838, 190 Mass. 120; In re Colaculn, 13 A. B. R. 292, 133 Fed. 255 (D. C. Mass.). 133. Tinker v. Colwell, 11 A. B. R. 568, 193 U. S. 473 (affirming 6 A. B. R. 434, 169 N. Y. 531); a case arising before the amendment of 1903 added by ex- press words liabilities for criminal conversation. 134. Distler z: McCaulev, 6 A. B. R. 491 (Sup. Ct. N. Y.). 135. Leicester v. Hoadley, 9 A. B. R. 318, 66 Kans. 172. 136. In re Friche, 6 A. B. R. 479 (D. C. N. J.): This was a case arising be- fore the amendment of 1903 added, by express words, liabilities for the seduc- tion of unmarried females. Contra. In re Sullivan, 2 A. B. R. 30 (Ref. N. Y., distinguished in In re Smith, 3 A. B. R. 78). 137. McDonald z'. Brown, 10 A. B. R. 58, 23 R. I. 546. 138. In re Lorde, 16 A. B. R. 200, 144 Fed. 320 (D. C. N. Y.). 139. Bankr. Act, § 17 (a) (2). 140. Wetmore v. Wetmore, 13 A. B. R. 1, 196 U. S. 68; compare, Arrington V. Arrington, 13 A. B. R. 89, 132 Fed. 208 (D. C. N. Car.); Audubon z: Shufeldt. 5 A. B. R. 829, 181 U. S. 575; Young v. Young, 7 .\. B. R. 171 (Sup. Ct. N. Y.); Turner v. Turner, 6 A. B. R. 289, 108 Fed 785 (D. C. Ind.); Maisner v. Mais- ner, 6 A. B. R. 295 (N. Y. Sup. Ct. App.). Compare contra, Arrington z'. Arring- ton, 10 A. B. R. 103 (Sup. Ct. N. Car., cited in Arrington v. Arrington, 13 A. B. R. 89, D. C. N. Car.); In re Shepard, 5 A. B. R. 857, 97 Fed. 187 (D. C. N. Y.); In re Anderson, 5 A. B. R. 858 (D. C. N. Y.). Contra, Fite z: Fite, 5 A. B. R. 461 (Ky.) 61 S. W. 26, wherein alimony accru- ing before bankruptcy was held dischargeable. ^ 2760 EFFECT OF DISCHARGE. 1621 § 2757. Fifth Exception— Support of Wife or Child.— Liabilities of the bankrupt for the maintenance or support of a wife or child are not dis- charged.^^ ^ § 2758. Simply Declaratory of Law as Already Existing. — This ex- ception is simply declaratory of the law as it stood before the amendment of 1903; for'before that time such liabilities were held to be in ihe nature of police regulations, and not to be provable debts, and hence not to be cischarged.i'^2 § 2759. Liabilities to Third Parties Not Excepted— Only Liabil- ities Directly to Wife or Child. — This provision does not refer to lia- bilities to third parties for furnishing maintenance or support to the wife or child, but merely direct liabilities to themselves for maintenance or support. 1-* 3 In re Ostrander, 15 A. B. R. 96, 139 Fed. 592 (D. C. X. Y.): "It is considered that the words of § 17a, cl. 2, Bankruptcy Act, * * * 'for maintenance or sup- port of wife or child,' do not refer to a debt incurred for the services of a physician called by the husband to attend the wife while she is in normal relation to her husband. If so, a person supplying goods for a wife or child or rendering a service necessary for the support or maintenance, at the request of the husband, without delinquency on his part, would be beyond the scope of the act. The grocer, the market-man, clothiers of all descriptions, physicians, dentists, in fant all who, by service or sale, contributed to the support of the • family, and thereby to the support of a wife or child would have claims not dischargeable under the act. The provision has probable application to cases where the person applying for discharge from his debts had so betrayed his moral and legal duty as a husband or parent that another was justified in providing the maintenance and support denied by the one upon whom the law places th-e primary duty. Without attempting to define the limits of the section, it is held that it does not apply to medical attendance furnished upon the express or implied contract of the husband or- ]5arent to pay therefor while the recipient is a member of the family, and while there is no breach of duty on the part of the person contracting the debt toward the one receiving the service." § 2760. Sixth Exception— Seduction or Criminal Conversation. — Liabilities for the seduction of an unmarried female or for criminal con- versation are not discharged. Before the amendment of 1903 expressly included these "liabilities" for these classes of torts, it had been held, that judgments for seduction and criminal conversation were not released. ^^^ 141. Bankr. Act, § 17 (a) (2). 142. In re Hubbard, 3 A. B. R. 528, 98 Fed. 710 (D. C. Ills.); In re Baker, 3 A. B. R. 101, 96 Fed. 964 (D. C. Kans.). 143. Schellenberg v. Mullaney, 16 A. B. R. 542. 112 App. Div. (N. Y.) 384. 144. Tinker v. Colwell, 11 A. B. R. 568, 193. U. S. 473 (affirming Colwell v. Tinker, 7 A. B. R. 333, 169 N. Y. 531, affirming 65 App. Div. 201, 6 A. K R. 434. a case of a judgment for criminal conversation). In re McCarty, 7 A. B. R. 40, 111 Fed. 151 (D. C. Ills.), a case of a judgment for seduction of daughter by the bankrupt. In re Freche, 6 A. B. R. 479, 109 Fed. 620 (D. C. N. J.), also a case of a judg- 1622 • REMINGTON ON BANKRUPTCY. !^ 276-1 But judgments for breach of promise to marry are discharged. ^^^ § 2761. Seventh Exception— Debts Not "Duly Scheduled."— Debts are not discharged that have not been duly scheduled in time for proof and allowance', with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bank- ruptcyji^"^ in time to have proved his claim. ^^^ Longfield v. Savings Bk., 14 A. B. R. 413, 103 N. W. 706 (Sup. Ct. Minn.): "A discharge in bankruptcy does not relieve the bankrupt from liability for a provable debt v/hich was not scheduled with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the pro- ceedings in bankruptc}'." Tyrrel v. Hammerstein, 6 A. B. R. 431 (N. Y. Sup. Ct.) : "Under the former Bankruptcy Act, which contained no such exception, the discharge was a bar, even though the creditor owing the demand was omitted from the schedule and received no notice of the proceeding, provided such omission was not will- ful or fraudulent (In jNIatter of Archenbrown, 11 Bank. Reg. 149; Lamb v. Brown, 12 id. 522; Pattison v. Wilbur, id. 193; Williams v. Butcher, id. 143; Piatt V. Parker, 13 id. 14; Thurmond v. Andrews, id. 157; Symonds v. Barnes, 6 id. 377; Batchelder v. Low, 8 id. 571), and so under the State Insolvency Act. Small V. Graves, 7 Barb. 576; Ayres v. Scribner, 17 Wend. 407; American Flask & Cap Co. V. Son, 3 Abb. (X. S.) 337. The most pertinent inquiry, therefore, is, what was the defect in the former provision that Congress intended to rem- edy by the new one, for we must hold that the amendment was not made with- out a substantial purpose. The change most clearly indicated is that where the creditor has neither knowledge nor notice of the bankruptcy proceedings, his debt, if not duly scheduled, with his name if known to the bankrupt, is not to be discharged, whether the omission is fraudulent or otherwise. This would seem to be the application by Congress to bankruptcy proceedings of the familiar constitutional principle that the "due process of law' intended to deprive one of propertj' contemplates notice of some kind to the party whose property ment for seduction of daughter. Contra. Distler v. McCauley, 7 A. B. R. 138 (Sup. Ct. X. Y. App. Div.); In re Maples, 5 A. B. R. 426, 105 Fed. 919 (D. C. Mont.). 145. Distler v. :\IcCauley, 7 A. B. R. 138 (Sup. Ct. N. Y. App. Div.); In re Fife, 6 A. B. R. 258, 109 Fed. 880 (D. C. Pa.); Finnegan v. Hall. 6 A. B. R. 649 (X. Y. Sup. Ct.); obiter. In re Brumbaugh, 12 A. B. R. 207, 128 Fed. 971 (D. C. Penn.) ; impliedly (as being "provable"), In re Crocker, 8 A. B. R. 18S (Ref. X^. Y.); impliedly (as being "provable"), In re IMcCauley, 4 A. B. R. 122, 101 Fed. 223 (D. C. X. Y.). 146. Bankr. Act, § 17 (a) (3); Westheimer v. Howard, 14 A. B. R. 547, 47 Misc. 145 (X. Y. Ct. App.); In re Monroe, 7 A. B. R. 706, 114 Fed. 398 (D. C. Wash.); Dight v. Chapman, 12 A. B. R. 743, 44 Ore. 265; obiter, Kaufman v. Schreier, 17 A. B. R. 314 (X. Y. Sup. Ct. App. Div.); Collins v. McWalters, 6 A. B. R. 593 (Sup. Ct. X. Y.); instance, obiter. In re AIcFaun, 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa); instance, Cagliostro v. Indelle, 17 A. B. R. 685 (X. Y. Supt. Ct.); Analogously (composition), Bdway Trust Co. v. Manheim, 14 A. B. R. 122 (X. Y. Sup. Ct.); obiter. In re Miiskoka Lumber Co., 11 A. B R 761, 127 Fed. 886 (D. C. X. Y.) ; instance held "duly scheduled," Mueller v. Goerlitz, 17 A. B. R. 687 (X. Y. Sup. Ct.). And judgment obtained after discharge will not be reopened *to let in de- fense of discharge where creditor is not "duly scheduled" and is without knowl- edge. Reed v. Dippel, 17 A. B. R. 371 (Pa.). i47. Birkett v. Columbia Bank, 12 A. B. R. 693, 190 U. S. 345. ^§ 2763 EFFECT OF DISCHARGE. 1623 is to be taken that he may have his day in court and be heard before the court adjudicates against him." Haack v. Theise, 16 A. B. R. 700, 51 Misc. (X. Y.) 3: "Every requirement of the Act and of the rule of the United States Supreme Court relating thereto, was ignored by the defendant in scheduling plaintiff's debt. The plaintiff as a creditor was incorrectly listed as 'James Haack and wife.' There was no such concern and the defendant had no such creditor. The resort to ditto marks in attempting to indicate the plaintifif's residence is in violation of both the letter and the spirit of the Act, as well as the rule, and, moreover, has never been sanctioned by authority. The rule is known as General Order Number V, and directs that all schedules shall be printed or written out plainly without abbreviations. "But even if these ditto marks be invested with the broadest significance as a duplication of the statement of the residence of Shiby and Gaffney they are grossly insufhcient. Then the residence of the plaintiff would be stated as 'c/o New York Clipper, N. Y. C By no analysis of that combination of words and letters could the conclusion be reached that a residence is indicated. The most liberal construction would locate the plaintiff's residence 'in care of New York Clipper, New York City.' With that information who could assert where the plaintiff resided? "Save in the statement of the amount of the debt, the schedules further violate the provisions against the adoption of abbreviations." Custard v. Wiggerson, 17 A. B. R. 337 (Wis.): "Under the bankruptcy law of 1867 this court held, in harmony with the general current of authority, that a debt was discharged, even though not scheduled. * * * But it will be seen that under the act of 1867 debts not scheduled were not excepted from the operation of .iischarge, while under the Bankruptcy Act of 1898 they are. * * * This provision is a marked departure from former bankruptcy acts, and decisions under such acts, to the effect that scheduling was not necessary in order to bring the debt within the order of discharge are not pertinent. The Vv'ords of the present act, however, are plain and unambigous, and there can be no doubt that they mean what they say; and, if so, unless the debt is duly scheduled in time for proof and allowance, or the creditor had notice or actunl knowledge of the proceedings in bankruptcy, it is not affected by the discharge. * * * So far as the courts have spoken, etc." § 2762. "Due" Scheduling Dependent on Facts of Particular Case. — Under this exception, only duly scheduled debts are discharged, "due scheduling" probably meaning proper scheduling. Obviously, what is and what is not "due scheduling" must depend largely upon the facts of each case. In some instances "idem sonans" might be sufficient. To omit street and number in a large city, where the creditor's name is a common name, might be a failure to schedule "duly" although it might not be so in a small town. Likewise, mistakes in the initials of common names might be fatal, where similar mistakes in rare names might not be so. Debts mtist also have been scheduled in time for proof and allowance. It is not nec- e.-isary that the name of the creditor be shown // it is not known, as is likely to be the case with negotiable paper. § 2763. Thus, Initials Instead of Full Given Names. — Thus, it may be not "due" scheduling to give initials instead of the full given name. 1624 REMINGTON ON BANKRUPTCY. § 2766 Indeed, in one case, it has been held per se to be not "due" scheduHng;^-*^ but such holding would be extreme on discharge. § 2764. Abbreviations. — Thus, abbreviations may be not due "sched- uling.""9 One case, indeed, has held that even the abbreviation "Phila. Pa." is not "due" scheduling.^^*^ But such holding would be extreme on discharge and it would seem the use of the common abbreviations would be "due" scheduling. But compare, obiter, Sutherland v. Lasher, 11 A. B. R. 780 (N. Y. Sup. Ct.) : "If it were necessarj^ to pass upon the point it would also have to be held that the words "residence, 135 Bdwy.," are not a sufficient designation of any resi- dence." § 2765. Ditto Marks. — Thus, the use of ditto marks has been held im- proper scheduling. 1^^ § 2766. Partnership Debts in Individual Bankruptcy of Partner. — Again, where, in an individual bankruptcy, partnership debts of a firm, to which the bankrupt belonged, have not been properly described, such debts are not discharged. In re McFaun, 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa): "The schedules at- tached to the petition show that a large part of the indebtedness of the bank- rupt consists of debts created by the firm of McFaun Bros. The petition for adjudication, the notice to creditors, and the petition for discharge make no reference to any firm liability, and do not ask any relief against firm debts. A discharge granted on this record will not, in my opinion, operate to bar the firm debts, but will only afifect the debts owing by the bankrupt individually. * * * If bankrupt does not wish to amend, a discharge will be granted on the present record, but it will be at risk of bankrupt, so far as the firm debts are concerned." And if the firm debts are not "duly" scheduled therein, the failure to effect their discharge would come rather from the statute itself than from any attempted limitation contained in the order of discharge.^^- 148. Compare, obiter (not on discharge). In re Mackey, 1 A. B. R. 595 (Ref. N. Y.). 149. Haack v. Theise, 16 A. B. R. 700, 51 Misc. (N. Y.). Gen. Ord. V.: "All petitions and the schedules filed therewith shall be printed •or written out plainly, without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference." 150. Compare, obiter (not on discharge). In re Mackey, 1 A. B. R. 595 (Ref. N. Y.). 151. Haack v. Theise, 16 A. B. R. 700, 51 Misc. (N. Y.) ; In re Mackey, 1 A. E. R. 594 (Ref. N. Y.) : But this decision was not on the effect of discharge but rather as to the duty of the referee to rfequire crmendment of defective schea- ules. Ditto marks are liable to mislead but are per se not due scheduling. 152. Inferentially and obiter. In re McFaun, 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa). But compare, In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa). ^ 2769 EFFECT OF DISCHARGE. • . 1625 And if they are scheduled properly therein, the partnership debt is dis- charged. Lomis r. Wallblom, 13 A. B. R. 689 (Sup. Ct. Minn.): "Its full discharge as an individual liability on a firm debt may accordingly be had in bankruptcy proceedings. * * * "The most serious question in this case is this: Was the indebtedness prop- erly scheduled, so as to give notice to the plaintiff's assignor? This question must also be answered in the afifirmative. In the schedule, the name of the original debtor, the nature and the amount of the origin-al debt, are correctly stated. The evidence shows that respondent owed the creditor no other debt. Notice was properly given." § 3767. Debts Intentionally Scheduled in Name of Original Payee When Held by Third Person. — A debt intentionally scheduled in- correctly in the name of the payee when it is known that it is held by a discount bank, is not discharged. ^^^ § 2768. But Original Creditor Sufficient Where No Notice of As- signment. — But a scheduling of the debt in the name of the original cred- itor is sufficient, where no notice was received by the bankrupt of an as- signment of the claim. Nor is the bankrupt bound to search the records to ascertain if any assignment has been made. The duty of giving notice rests on the assignee. ^-^^ § 2769. Stockholders' Liability, Either Corporate Creditors, or Receiver, May Be Scheduled. — In order to a "due scheduling" of stock- holders' liabilities, either the creditors of the corporation may be scheduled. Longfield v. Sav. Bk., 14 A. B. R. 413, 103 N. W. (Minn.) 706: "The creditors of an insolvent corporation brought an action against it and its stockholders to determine and enforce their liability to them. Judgment was entered therein determining who the creditors were and the respective liability of the stock- Tiolders to them, and designating a receiver to collect and enforce on their be- lialf such liability, and for that purpose it was adjudged that he recover in the action from each stockholder the amount of his adjudged liability and have execution therefor. Thereafter one of the stockholders was discharged from "his debts in bankruptcy, but in his schedule of creditors he named the creditors for whose benefit the judgment was rendered, and not the receiver. "Held, that his actual creditors were named in the schedule, and that his discharge released him from liability on the judgment." Or the receiver appointed in the stockholders' liability suit may be sched- rded.^^° 153. Columbia Bank v. Birkett, 7 A. B. R. 222 (Sup. Ct. N. Y.), 9 A. B. R. 481, 174 U. S. 112 (affirmed sub nom. Birkett v. Columbia Bank, 12 A. B. R. «91. 195 U. S. 345). 154. Mueller u. Goerlitz, 17 A. B. R. 687 (N. Y. Sup. Ct.) ; Lent v. Farns- worth, 180 N. Y. 503. 155. Birkett v. Columbia Bk., 12 A. B. R. 691, 195 U. S. 345, affirming Colum- bia V. Birkett, 9 A. B. R. 481. Compare, that actual notice to receiver is suf- ficient to bind corporate creditors, Dight v. Chapman, 12 A. B. R. 745, 44 Ore. 265. 1626 REMINGTON ON BANKRUPTCY. § 2775 § 2770. Failure to Give Street Number in City Where Ascertain- able. — Failure to give the number of the street of the creditor's ad- dress in a great city, where ascertainable by due diligence, is not "due scheduling."!^^ § 2771. Giving Name and Street Correctly, but City Wrong, Not "Due" Scheduling. — The giving of the name and street correctly, but not the right city is, of course, not "due" scheduling. Westheimer v. Howard, 14 A. B. R. 547 (N. Y. Sup. Ct. App.) : "If by the default of the bankrupt no notice reaches the creditor and no actual knowledge on his part is shown, the debt is not discharged. The schedule of debts which the bankrupt files furnishes the basis for the notices sent by the referee or the court and 'thus, the bankrupt appears to be made responsible for the correct- ness of the list of his creditors.' ' "In the case at bar the schedule gives the address 317 Main street New York city. There is no presumption that notices so addressed reached them at 317 Main street, Cincinnati, O. The questions excluded by the justice were competent to show, first, that no notices reached the plaintiffs, and secondly, that they had no actual knowledge of the proceedings. The judgment should be reversed." § 2772. "Idem Sonans." — A misnomer is not always fatal, but may be so.^^' § 2773. Innocent Intent in Faulty Scheduling, No Excuse. — It is immaterial whether the omission, or the failure to "duly" schedule the debt, was innocent, or was fraudulent, willful, intentional or careless; the fact, not the intent, controls under the present law.^-^^ § 2774. Where Actual Address Unknown, a Guess at Surmised Address Not Sufficient. — A debt is not "duly" scheduled where, al- though the actual address is unknown, the bankrupt nevertheless makes a guess and mentions a surmised address as the real address ; for the forms re- C[uire that if the creditor's address is unknown, the fact is to be stated. ^'^^ And an address "In care of New York Clipper" is not an address within the .meaning of the law. § 2775. Reasonable Diligence in Ascertaining Correct Address Requisite. — The bankrupt is bound to use reasonable diligence in ascer- 156. Cagliostro v. Indelle, 17 A. B. R. 685 (N. Y. Sup. Ct.). 157. Instance where fatal, Custard v. Wiggerson, 17 A. B. R. 337 (Wis. Sup. Ct.): "Castard" for "Custard." 158. Tyrrel v. Hammerstein, 6 A. B. R. 431 (N. Y. Sup. Ct.). Contra, under the old law of 1867, Tyrrel v. Hammerstein, supra, and cases cited. 159. Sutherland v. Lasher, 11 A. B. R. 780 (Sup. Ct. N. Y. Special Term 190,'i); inferentially, Westheimer v. Howard, 14 A. B. R. 547 (N. Y. Sup. Ct App.). § 2780 EFFECT OF DISCHARGE. 1627 taining a creditor's correct address ; and failure to use due diligence in that regard will bar the excuse of lack of actual knowledge.^^f § 2776. Where All Addresses Stated to Be Unknown, Court to Withhold Discharge until Satisfied Due Diligence Exercised. Where all the addresses are stated to be "unknown," mere notice by pub- lication will be insufficient, unless the court is satisfied that reasonable dil- igence has been exercised in trying to ascertain the addresses; and the discharge may meanwhile be withheld.^*' ^ § 2777. Actual Knowledge by Creditor Cures Defective Schedul- ing. — If the creditor has actual knowledge of the bankruptcy proceedings in time to prove his claim, his omission from the schedules or the defective scheduling of him, is cured. ^^- Zimmerman v. Ketchum, 11 A. B. R. 190, 71 Pac. 264 (Kans. Sup. Ct.): "A discharge in bankruptcy will prevent a recovery against the bankrupt upon an account for lumber and material sold to and used by him in the erection of a dwelling house upon his homestead, although such liability is not scheduled in the bankruptcy proceedings, if the creditor had notice or actual knowledge of the proceedings in bankruptcy." § 2778. No Particular Form of Notice Requisite. — No particular form of notice, nor of service of notice, is requisite. Actual notice is suffi-l cient, however acquired; and' it may be proved by circumstantial evi- denced*'^ • § 2779. Agent's Knowledge Imputable to Principal. — Knowledge of the agent may be imputed to the principal. ^•'^ § 2780. Knowledge Not Sufficient unless in Time for Creditor to Avail Himself of Benefits of Law. — Such actual knowledge must have been acquired in time to have enabled the creditor to avail himself of the benefits of the law, else it will not suffice to obviate the lack of due sched- uling. Birkett v. Columbia Bank, 12 A. B. R. 693, 195 U. S. 345: "Actual knowledge of the proceedings contemplated by the section is a knowledge in time to avail ^ creditor of the benefits of the law — in time to give him an equal opportunity with 160. Schiller v. Weinstein, 15 A. B. R. 183 (N. Y. Sup. Ct. App.) ; Cagliostro V. Indelle, 17 A. B. R. 685 (N. Y. Sup. Ct.); In re Dvorak, 6 A. B. R. 66, lOT Fed. 76 (D. C. Iowa). 161. In re Dvorak, 6 A. B. R. 66, 107 Fed. 76 (D. C. Iowa); In re Mackey, 1 A. B. R. 593 (Ref. N. Y.). 162. Bankr. Act, § 17 (a) (3); Broadway Trust Co. v. Manheim, 14 A. B. R. 122 (N. Y. Sup. Ct.); inferentially, Birkett v. Columbia, 12 A. B. R. 693, 195 U. S. 345; Dight v. Chapman, 12 A. B. R. 745, 44 Ore. 265; Kaufman v. Schreier, 17 A. B. R. 314 (N. Y. Sup. Ct. App. Div.) ; Knapp v. Harold, 25 Ohio C. C. 213; obiter, Haack v. Theise, A. B. R. 700, 51 Misc. (N. Y.) ; inferentially, Suth- erland V. Lasher, 11 A. B. R. 780 (Sup. Ct. N. Y. Special Term). 163. Knapp v. Harold, 25 Ohio C. C. 213. 164. Dight V. Chapman, 12 A. B. R. 745, 44 Ore. 265: This was a case of the actual knowledge of the receiver in a stockholders' liability suit imputed to all creditors. 1628 REMINGTON ON BANKRUrTCY. ' § 2783 Other creditors — not a knowledge that may come so late as to deprive him of par- ticipation in the administration of the afifairs of the estate or to deprive him of dividends (§ 65). The provisions of the law relied upon by plaintiff in error are for the benefit of creditors, not of the debtor." § 2781. Defending, That Debt Not "Duly" Scheduled, Not Col- lateral Attack. — Avoiding the effect of a discharge by alleging one's claim was not "ditly scheduled" is not a collateral attack on the dis- charge. ^*^^ It is not a direct attack either: it is not an attack upon the discharge at all, but rather a carrying out of its terms, for, by the law itself, the dis- charge is not to operate upon claims not duly scheduled.^''*' Schiller v. Weinstein, 15 A. B. R. 184 (N. Y. Court Appeals): "By this deter- mination 'The validity and effectiveness of the discharge in general are not questioned' and 'it does not extend to this particular claim.' " § 2782. After Discharge Too Late to Amend Schedules to Include Omitted Creditors. — After discharge has been granted, it is too late to amend the schedules to include the omitted creditor. i*5' § 2783. Eighth Exception — Claims for Fraud, Embezzlement, etc., While Officer or in Fiduciary Capacity. — Debts, demands and claims created by the bankrupt's fraud, embezzlement, misappropriation, or de- falcation while acting as an officer, or in any fiduciary capacity, are not dis- charged. ^*^^ 165. See ante, § 2667. Sutherland v. Lasher, 11 A. B. R. 780, 41 N. Y. Misc. 251 (quoted ante, § 2667: affirmed 87 App. Div. 633). 166. See ante, § 2667. 167. In re Spicer, 16 A. B. R. 802 (D. C. N. Y.). 168. Bankr. Act, § 17 (a) (4); Crawford v. Burke, 12 A. B. R. 668, 195 U. S. 176; In re Bullis, 7 A. B. R. 238 (Sup. Ct. N. Y. App. Div.); Morse v. Rogers 6 Kaufman, 7 A. B. R. 549 (Sup. Ct. App. Va.; In re Blumberg, 1 A. B. R. 633, 94 Fed. 476 (D. C. Tenn.) ; Western Union Cold Storage Co. zf. Hurd, 8 A. B. R. 634, 116 Fed. 442 (D. C. Mo.); Bryant z'. Kinyon. 6 A. B. R. 237, (Mich.); In re Floyd, Crawford & Co., 15 A. B. R. 277 (Special Master N. Y.); In re Basch, 3 A. B. R. 235, 97 Fed. 761 (D. C. N. Y.) ; In re Butts, 10 A. B. R. 16, 120 Fed. 960 (D. C. ISP. Y.) ; In re Gaylord, 7 A. B. R. 577, 113 Fed. 131 (D. C. Mo.); Watertown Carriage Co. v. Hall, 11 A. B. R. 18 (N. Y. Ct. App., affirming 10 A. B. R. 23 and 7 A. B. R. 716); Knott v. Putnam, 6 A. B. R. 80, 107 Fed. 907 (D. C. Vt.) ; Burnham v. Pidcock, 5 A. B. R. 590, 68 N. Y. Supp. 1007 (affirming 5 A. B. R. 42). Bracken v. Milner, 5 A. B. R. 23 (D. C. Mo.): Trust deed, bankrupt acting is trustee, foreclosing deed but converting proceeds: Secretly buying in property at foreclosure of beneficiary's trust deed; held fiduciary capacity. Tindle v. Birkett, 18 A. B. R. 121, 205 U. S. 185 (afi^rming 15 A. B. R. 179); Tindle v. Birkett, 15 A. B. R. 179 (N. Y. Ct. Appeals); Claflin Dry Goods Co. t. Eason, 2 A. B. R. 263 (D. C. Va.). In re Harper, 13 A. B. R. 430, 133 Fed. 970 (D. C. Va., affirmed sub nom. Harper v. Rankin, 15 A. B. R. 608, C. C. A. W. Va., affirming In re Harper), wherein a bank officer was held to be such officer. Reeves v. McCracken, 13 A. B. R. 680 (N. J. Ch.) ; Bills v. Schliep, 11 A. B. R. 611 (C. C. A. N. Y.): Conversion by factor; Morse & Rogers v. Kaufman, 7 A. B. R. 549 (Sup. Ct. App. Va.); Harper v. Rankin, 15 A. B. R. 608 (C. C. A. W. Va., affirming In re Harper, 13 A. B. R. 430, 133 Fed. 970 D. C. Va); obiter, In re Adler, 16 A. B. R. 416, 144 Fed. 659 (C. C. A. N. Y.). • § 2785 EFFECT OF DISCHARGE. 1629 § 2784. Must Be Committed While Acting as "Officer" or in "Fi- duciary Capacity." — The fraud, embezzlement, misappropriation as well as the defalcation must have been committed while acting as an officer or in a fiduciary capacity. ^""'^ § 2785. "Fiduciary Capacity" Refers to Express Trusts and Ex- cludes Conversions by Agents, etc., Also Fraudulent Transfers. — "Fiduciary capacity" refers to technical or express trusts and excludes con- versions and frauds by commission men, brokers, agents, partners, etc., and other implied trustees. i"*"' It also excludes the implied trust of a fraudu- lent transferee existing in favor of creditors. Bills V. Schliep, 11 A. B. R. 611, 127 Fed. 103 (C. C. A. N. Y.) : "The debt of a factor for moneys received on sale of a principal's goods has been held not to be a debt created by one acting in a fiduciary capacity, within the mean- ing of the Bankrupt Law. * * * But the obligation of a factor for goods in- trusted to him is of a fiduciary character, and, before sale, the principal may restrain an unauthorized disposition of such property, or compel observance of the conditions of such trust; and, after, the principal may equitably follow 169. Crawford v. Burke, 12 A. B. R. 668, 195 U. S. 176; In re Bullis, 7 A. B. R. 238 (Sup. Ct. N. Y. App. Div.); Morse & Rogers v. Kaufman, 7 A. B. R. 549 (Sup. Ct. App. Va.); In re Harper, 13 A. B. R. 430, 133 Fed. 970 (D. C. Va.); In re Adler, 16 A. B. R. 416, 144 Fed. 659 (C. C. A. N. Y.) ; In re Wenman, 16 A. B. R. 691 (D. C. X. Y.) : Ticket agent converting proceeds of sales of tickets. Contra, In re Butts, 10 A. B. R. 16, 120 Fed. 960 (D. C. N. Y.); contra. Frey V. Torrev, 8 A. B. R. 196 (X. Y. Sup. Ct. App.); That this case is overruled by Crawford v. Burke, supra, see Tindell v. Birkett, 15 A. B. R. 180 (X. Y. Ct. App.). Whether "Officer" and "Fiduciary Capacity" Modified Only "Defalcation," before Amendment 1903. — It was held, even before the amendment of 1903 (and by a judge who was on the judiciary committee of congress that framed the law) that the clause "while acting as an officer or in any fiduciary capacity" modified onlj^ "defalcation," and that for this reason debts not reduced to judg- ment, created by the, bankrupt's fraud, embezzlement or misappropriation were not discharged, although the bankrupt were not "acting as an officer nor in any fiduciary capacity." And there was some weight to this argument, for otherwise there would have been a redundancy of words in the statute and each word used would not have been given a distinct meaning as is required by the canons of statutory construction, if it is possible to do so at all. Obiter, in re Butts, 10 A. B. R. 16, 120 Fed. 960 (D. C. N. Y.); Frey v. Torrey. 8 A. B. R. 196 (Sup. Ct. App. N. Y.). affirming, Frey v. Torrey, 6 A. B. R. 448). That this case is overruled by Crawford v. Burke, 12 A. B. R. 668, 17.^ U. S. 176, see Tindle v. Birkett, 15 A. B. R. 180 (X. Y. Court of Appeals). But the necessity for such distinction no longer exists since, by the amend- ment of 1903, the requirement that the liability must have been reduced to a judgment has been removed, although even yet not all frauds are excepted, but only that of obtaining property by false pretenses or false representations. See discussion of second exception, ante, § 2746. 170. Gee V. Gee, 7 A. B. R. 503 (Minn.), misappropriation of funds by partner. Tindle v. Birkett, 18 A. B. R. 121, 205 U. S. 185 (affirming 15 A. B. R. 179). Compare, Tindle v. Birkett, 15 A. B. R. 179 (X. Y. Court of Appeals), a claim for goods obtained by false representations before amendment of 1903. In re Wenman, 16 A. B. R. 691 (D. C. X. Y.), a conversion by ticket agent of proceeds of sales of tickets. Burnham v. Pidcock, 5 A. B. R. 590, 68 X. Y. Supp. 1007; Western Union Cold Storage Co. v. Hurd, 8 A.- B. R. 634, 116' Fed. 442 (D. C. Mo.); In re Adler, 16 A. B. R. 417, 114 Fed. 659 (C. C. A. N. Y.); In re Gay- 1630 REMINGTON ON BANKRUPTCY. § 2785 the moneys received from the sale of such goods into the hands of any person who receives them with knowledge of their trust character." Knott V. Putnanfi, 6 A. B. R. 80, 107 Fed. 907 (D. C. Vt.): And this is so although the judgment obtained in the state court for the conversion recites that "the sum on which this judgment was rendered was received and held by the defendants in a iiduciary capacity for the plaintiff" and that "the cause of action arose from the wilful and malicious act of the defendants, and they ought to be confined in close jail." Where the matter is before the bankruptcy court, the state court's judgment will only be binding as to parties, amounts and times and not as to the character of the debt. Reeves v. McCracken, 13 A. B. R. 680 (Ct. Ch. N. J.): "Held (1) that, the words 'Fiduciary capacity' having reference only to technical trusts, ,a debt arising out of an implied understanding had on a conveyance in the ordinary form of an absolute deed from R. to M. of certain parts of R.'s real estate, no trust being expressly declared, was not excepted from the operation of a dis- charge; (2) that the fair inference from the facts stated was that the convey- ance was intended to hinder and delay creditors, and that the grantee therein did not for that reason also hold in a fiduciary capacity within the meaning of the Act." In re Benedict, 8 A. B. R. 463, 75 N. Y. Supp. 165: "In the present case the ■ bankrupt did not come into possession of the goods of the plaintifif by fraud or false representations. They were consigned to him and his possession was a lawful one. By his contract with the plaintiff it became his duty to account for the proceeds of sales made by him. He failed to do this, and converted the money to his own use. It would seem, under the authority of the above cases, that the judgment was cme which was dischargeable by bankruptcy pro- ceedings." Mulock V. Byrnes, 129 N. Y. 23: "It has been frequently held in cases of con- trolling authority that the language of the Bankrupt Law does not apply to cases of implied trusts; but only to those technical trusts which are actually and expressly constituted by the parties. * * * That the evidence and the affidavits in the case under consideration 'show no other or different trust or fiduciary relation than such as may be said always to exist in k case of agency. In every such case there is an element of trust and confidence, so that a breach of duty may be said to be a breach of trust, but the agent is, nevertheless, not a fiduciary within the. meaning of the Bankrupt Act.' " In re Floyd, Crawford & Co., 15 A. B. R. 277 (Ref. N. Y.) : "* * * and there is nothing better settled in the Bankruptcy Law than that the liability of a converting bankrupt is not within the terms of § 17 (a) (2)." Barrett v. Prince, 143 Fed. 302, 16 A. B. R. 65 (C. C. A. Ills.): "* * * mere lord, 7 A. B. R. 577, 113 Fed. 131 (D. C. Mo.); In re Butts, 10 A. B. R. 16, 120 Fed. 960 (D. C. N. Y.) ; instance, Fechter v. Postel, 17 A. B. R. 316 (Sup. Ct. N. Y. App. Div.);- In re Basch, 3 A. B. R. 235, 97 Fed. 761 (D. C. N. Y.). Compare, to same effect, under the law of 1867, Upshur v. Briscoe, 138 U. S. 378; [1867] Hennequin v. Clews, 111 U. S. 676; [1867] In re Brown, Fed. Cases 979; Cronon v. Cutting, 104 Mass. 245; compare, to same effect [1867] Palmer V. Hussey, 118 U. S. 96; compare, to s~anie effect [1867] Ames v. Moir, 138 U. S. 306; compare, to same effect [1867] In re Smith, 22 Fed. Cas. 388; compare, io same effect 11867] Keine v. Graff, 17 N. B. Reg. 319. 14 Fed. Cas. 218; compare, to same effect [1867] Omsley v. Cobin, 15 N. B. Reg. 489, 18 Fed. Cas. 929i compare, to same effect [1867] Zeperink v. Card, 11 Fed. 295. But contra, that they include implied trusts such as those of officers of cor- porations, see In re Harper, 13.A. B. R. 430, 133 Fed. 970 (D. C. Va.). ' And also contra, that other conversions than those by express trustees are discharged, Watertown v. Hall, 11 A. B. R. 15 (N. Y. Court App., affirming 10 A. B. R. 23 and 7 A. B. R. 716). § 2787 EFFECT OF DISCHARGE. 1631 confidence reposed in the punctuality or integrity of a person with whom one has commercial transactions is not the fiduciary relation that was meant to be covered b}' the excepting portion of the Bankrupt Act." [1841] Chapman v. Forsyth, 2 How. (U. S.) 202: "If the Act embraces such a debt, it will be difficult to limit its application. It must include all debts aris- ing from agencies, and, indeed, all cases where the law iinplies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial trans- actions of the country confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act." § 2786. "Fiduciary" Relation Must Exist Independently of Trans- action in Which Debt Arose.— "Fiduciary capacity" implies one existing previously to or independently of the particular transaction out of which the debt arises.^" ^ Inferentially, obiter, In re Harper, 13 A. B. R. 430, 133 Fed. 970 (D. C. Va., affirmed sub nom. Harper z: Rankin, 15 A. B. R. 608, 141 Fed. 625): "But it seems clear that implied trusts — a term usually employed in distinguishment from express trusts — where the trust obligation is to be implied from the con- tract, are in many cases not to be held as embraced within the term 'fiduciary capacity' as used in the Acts of 1841 and 1867." § 2787. Whether Includes "Officers" of Private Corporation.— It is a question whether "oflicer" as here used includes officers of private cor- porations, as is held in some cases/"- or is confined to public officers, as held in others. i"-" That it is not so confined, see In re Harper, 13 A. B.^R. 430, 133 Fed. 970 (D. C. Va. affirmed sub nom. Harper v. Rankin, 15 A. B. R. 608, 141 Fed. 625, C. C. A.) : "And a reason of some force exists for the supposition that Congress intended by the change of language to extend the exception in clause 4 of § 17, so as to include debts created by the fraud, or embezzlement, or misappropriation or defalcation of officers of private corporations. The Supreme Court, in Chapman v. For- sythe, 2 How. 202, 207, limited the meaning" of the expression in the Act of 1841, 'any other fiduciary capacity,' so that it did not include a fidu- ciary (other than an executor, administrator, guardian, or 'special' trustee) whose trust is one implied from his contract. * * * 'j'j-^g trust or obligation of officers of private corporations, who are given such control of the funds or credits of the corporation as to be able to commit embezzlement, misappro- priation, or defalcation, is rarely or never .created by the express terms of any writing. On the other hand, such trusts correspond to and satisfy the commonly accepted definition of implied trusts: " 'Those which, without being expressed, are deducible from the nature of the transaction as matters of intent, or which are superinduced upon the trans- 171. Bryant r. Kinyon, 6 A. B. R. 237 (Mich.). 172. Harper z'. Rankin, 15 A. B. R. 608, 141 Fed. 625 (C. C. A. Va., affirm- ing In re Harper, 13 A. B. R. 430, 133 Fed; 970 (D. C. Va.). 173. Obiter, In re Floyd, Crawford & Co., 15 A. B. R. 281 (Ref. N. Y.). 1632 REMINGTON ON BANKRUPTCY. § 2789 action by operation of law, as matters of equity, independently of the particular intention of the parties.' 2 Bouv. Diet. 754. "In drafting the Act of 1898, Congress must be presumed to have known the limited meaning given by the courts to the ejcpression 'fiduciary capacity,' and the employment of this often adjudicated expression indicates that it is used with the limited meaning given it under the .former laws. The consequence, therefore, of again using the term 'public officer' might have been to reduce the embezzlements and defalcations not excepted from discharge in bankruptcy to a minimum. The vast numbers of private Corporations, the immense sums necessarily put under the control of the officers of such corporations, and the evil resuks of allowing dishonest officials of private corporations who have committed embezzlement, misappropriation, or defalcation to have discharges in bankruptcy from debts thus created, afiford a sufficient reason for an intent on the part of Congress to forbid discharges of debts so created by such per- son. * * * I am forced to the conclusion that the word 'officer' includes an officer of a private corporation." § 2788. "Fraud" Means Moral Turpitude or Intentional Wrong. — "Fraud," as here used, means moral turpitude or intentional wrong. ^''■* In re Blumberg, 1 A. B. R. 633, 94 Fed. 476 (D. C. Tenn.) : "It is not to be doubted that the purpose of this statute is the same as a similar provision found in the former Bankruptcy Law; and that the word fraud means moral turpitude or intentional wrong; and that a part of the purpose of the statute was to dis- courage and pimish such moral turpitude or intentional wrong." § 2789. "Fraud" Must Have Existed in Original Transaction. — And the fraud must have existed in the original transaction and not con- sist simply in fraudulent conveyances to defeat the obligation nor of false denials of mistake, etc., etc.^'^ In re Blumberg, 1 A..B. R. 633, 94 Fed. 476 (D. C. Tenn.): "It could not possibly, I think, have any application to a case w^ere the judgment is not based upon the fraud as a ground of recovery. * * * Their suit was one based upon a just debt, having its origin back of any mere suggestion of fraud, in which there was sought the incidental relief of setting aside a fraudulent con- veyance. Such a fraudulent conveyance itself, under the law of the State, gave nobody a right to a money judgment in the first instance. It simply rendered the sale void, and enabled any creditor against whom it was declared void to have it set aside, just as if it never had been made, and to reach the property and subject it to a debt not created at all by the fraudulent conveyance; but created prior thereto, and to obstruct collection of which the fraudulent convey- ance was made. If the fraudulent vendee had disposed of the property, so that a judgment might be rendered against him for the value of the property, such a judgment would be for the property; on the ground that the fraudulent sale 174. Western Union Cold Storage Co. z'. Hurd, 8 A. B. R. 634, 116 Fed. 443 (D. C. Mo.); In re Floyd, Crawford & Co., 15 A. B. R. 277 (Special Master N. Y.); compare [1867] Xeal z\ Clark, 95 U. S. 704. 175. Claims for Conversions by Agents, Bailees, etc., Not Entitled to Pri- ority (unless fund can be traced). — Such claims even where not discharged, are' not, on that account entitled to oriority of paj^ment from the dividends. In re Benedict, 8 A. B. R. 463, 468 (N. Y. Sup. Ct.) ; Claflin Dry Goods Co. v.' Eason. 2 A. B. R. 263 (Ref. Tex.): Unless fund can be traced. § 2793 EFFe;ct of discharge. 1633 being void, it belonged to his fraudulent vendor, and that his dispostion of it was a conversion." Western Union Cold Storage Co. v. Hurd, 8 A. B. R. 634, 116 Fed. 442 (D. C. i\Io.) : "The fact that the defendant, when restitution was demanded, denied liability, against the great weight of evidence, could not convert the wrongful detention of the money into an original positive fraud, essential in the creation of a debt to avoid the effect of a discharge in bankruptcy. § 2790. Judgment Not Such Merger as Prevents Inquiry into Character of Fraud. — The character of the debt, whether contracted in a fiditciary capacity and therefore not dischargeable, is not controlled in the bankruptcy court by the recitals of its character in the record of the judgment obtained thereon in the state court. ^"^ Division 6. Discharge of Partnership and Individuae Debts. SUBDIVISION "a." Discharge of Partnerships. § 2791. Partnerships Entitled to Discharge. — Partnerships are en- titled to discharge and may be denied discharge, the same as individuals. § 2792. No Individual Discharge of Member unless Individually Adjudged Bankrupt. — There can be no discharge of the individual mem- ber unless th.e member be individually adjudicated bankrupt.^'" § 2793. Act of One Bars Firm Discharge, if Done within Scope of Partnership Business. — The act of one partner, if done within the scope of the partnership business, will be imputed to all.^'^ Obiter, In re Schultz, Jr., 6 A. B. R. 91, lOff Fed. 264 (D. C. N. Y.) : "Where there is fraud in partnership transactions within the scope of the partnership, 176. Knott V. Putnam, 6 A. B. R. 80, 107 Fed. 907 (D. C. Vt.) : This case, in substance, held, that, where in an action in a state court upon such a debt, the judgment recites that "the sum of which this judgment was rendered was re- ceived, and held by the defendants in a fiduciary capacity for the plaintiff," and "that the cause of action arose^ from the willful and malicious act of the de- fendants, and that they ought to be confined in close jail," this decision is con- clusive in a court of bankruptcy only as to the matters before the state court for decision, including whether the plaintiff there was entitled to recover, and for how much, and whether he was entitled to a close-jail certificate under the state statutes, but does not affect the right of the bankruptcy court to determine whether execution awarded with the certificate upon it should be used for im- prisoning the bankrupts to compel payment, and the bankruptcy court has jurisdiction and authority to stay the arrest of the bankrupts upon such exe- cution. Apparently contra. Burnham v. Pidcock, 5 A. B. R. 590, 68 X. Y. Supp. 1C07. Compare, ante, § 2749. 177. In re Pincus, 17 A. B. R. 331, 147 Fed. 621 (D. C. X. Y.) ; In re Hale, 6 A. B. R. 35, 107 Fed. 432 (D. C. X. Car.). 178. Compare, In re Hamilton, 13 A. B. R. 333, 133 Fed. 823 (D. C. X. Y.). 2 Rem B— 28 1634 REMIXGTON ON BANKRUPTCY. § 2794 in which each partner acts as the agent or representative of all the copartners, the fraud of, one is usually imputed to all. * * * This principle was applied by the Supreme Court in the case of Strang z'. Bradner, 114 U. S. 555, in holding a discharge in-.ufficient to protect innocent partners from a debt fraudulently incurred by their copartner." SUBDIVISION "b." Discharge oe Partnership Debts in Individual Bankruptcy of a Member. § 2794. Discharge of Firm Debts in Individual Bankruptcy of Member. — There are different rulings as to the effect of a discharge granted in an individual bankruptcy upon partnership debts of a firm to which the bankrupt belonged.^'' ^ Some courts have held that where there are firm debts and firm assets, the discharge in the individual bankruptcy- does not operate to release the bankrupt from the firm debts. ^^" Other courts hold that, where there are no firm assets and all the part- ners are insolvent, the firm debts are discharged as against the partner by his individual bankruptcy.^^^ Obiter, In re Hirsch,'3 A. B. R. 348, 97 Fed. 571 (D. C. N. Y.): "* * * in my own judgment a partner may at his option proceed upon his individual peti- tion for his own adjudication and discharge without reference to the other partners, as under the Act of 1867 (In re Abbe, 2 N. B. R. 75, Fed. Cas. No. 4; In re Marks, Fed. Cas. Xo. 9,094; Crompton z: Conkling, 15 N. B. R. 417, 420, Fed. Cas. No. 3408; * * * ), where all are insolvent and there are no firm assets whatever, inasmuch as partnership debts are all several, as well as joint." Contra, In re Morrisoij, 11 A. B. R. 498, 127 Fed. 186 (D. C. Tex.): "As- suming, as the bankrupt claims, that he seeks a discharge from partnership debts, his purpose cannot be accomplished in this proceeding, although it may be true, as insisted, that the firm no longer exists, that it is without assets, and that the firm debts are barred by limitation." And still others hold that, where there are no assets and the firm is dis- solved, a discharge in an individual bankruptcy will release firm debts. ^^2 179. See interesting discussion of the law on this point as it stood before the passage of the present act, the editor's note to the case In re Freund, 1 A. B. R. 31. 180. In re Meyers, 2 A. B. R. 707, 96 Fed. 408 (D. C. N. Y.) : Indeed, in this case the judge refused to grant discharge. It would seem he had no right to refuse to grant discharge on such grounds, but should at least have granted it and left its effect as an effective release to be determined when the debts were sought to be enforced. To same effect, compare. In re Meyers. 3 A. B. R. 260, 97 Fed- 757 (D. C. N. Y.); Dodge v. Kaufman, 15 A. B. R. 542 (Sup. Ct. N. Y.). Compare apparently to same effect under the law of 1867: Amsinck v. Bean, 22 Wall 405; In re Winkens, 2 N. B. Reg. 349, Fed. Cases 17,875; In re Shepard, 3 X. B. Reg. 172 Fed. Cases 12,754; Crompton z: Conklin, 15 X. B. Reg. 417, Fed. Cases, 3,407, 3,408. 181. See also, under act of 1867, In re Downing, 3 X. B. Reg. 748, Fed. Cases No. 4,044. 182. Berry Bros. v. Sheehan, 17 A. B. R. 325 (X. Y. Sup. Ct. App. Div.). § 2795 EFFKCT o? discharge;. 1635 Still other courts hold that the operation of the discharge can be reg- ulated by the decree of discharge itself. As noted, ante, § 2664, the effect of the discharge upon a particular debt is in general to be determined at the time it is sought to enforce the debt, and is not to be regulated in the discharge decree itself; and the sole func- tion of the court is to grant or refuse the discharge, leaving the effect of its decree to be thus determined later ; there being the single a,pparent excep- tion of those cases where there has been a former decree refusing a dis- charge, which, being res judicata as to the right to discharge rather than as to its effect, should be pleaded in opposition to the discharge itself and the discharge decree, in that instance, be so modified as to except the former debts. ^^-^ Still other courts hold that, unless the individual bankrupt sched- ules all firm debts and makes his partner a party, the discharge will be granted only with the limitation that it shall not affect firm debts. ^^^ And still other courts have held, that in no event can a partner in his individual bankruptcy proceedings obtain a discharge from debts of a partnership of which he was a member, unless his partner be "made a party."i85 Compare, query, obiter, Jarecki Mfg. Co. v. McElwaine, 5 A. B. R. 751, 754, 107 Fed. 249 (C. C. Ind.): "It is not necessary to determine whether, as intimated • in a number of cases cited by counsel for the plaintiff, if objection had been made pending the ban'kruptcy proceeding on the ground that the other partner had not been made a party, the court would have ordered that to be done, and upon a failure to comply with such order, would have dismissed the proceed- ing or refused a discharge." And unless the partnership itself also be adjudicated bankrupt. ^^'^ But it was held, he might amend to bring in the partner. ^■'^' Still other courts have held that where an individual's bankruptcy petition is silent as to the existence of firm creditors, and so also are the notices to creditors, the discharge will be granted, but it will be at the risk of its being ineffectual to bar firm debts. This states the correct rule as to the granting or withholding of the discharge itself. ^^^ § 2795. Individual Liability for Firm Debts, Discharged if Firm Debts "Duly" Scheduled in Individual Bankruptcy, Irrespective of "Firm Assets," etc. — The true doctrine, however, seems to be that part- 183. See ante, §§ 2664, 2665, 2666. 184. In re Morrison, 11 A. B. R. 498, 127 Fed. 186 (D. C. Tex.). Apparently, also, see In re Carmichael, 2 A. B. R. 815, 96 Fed. 594 (D. C. Iowa). Also, In re Laughlin. 3 A. B. R. 1, 96 Fed. 589 (D. C. Iowa). Compare, In re Hartman, 3 A. B. R. 65, 96 Fed. 593 (D. C. Iowa). But note In re McFaun 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa). Stating the truer rule. 185. In re Freund, 1 A. B. R. 25 (Ref. Iowa): This was a case where neither the bankrupt nor the partnership had any assets. 186. Query, obiter. In re Levy, 2 A. B. R. 27, 95 Fed. 812 (Ref. N. Y.) ; In re Ottoman, 2 A. B. R. 407, 95 Fed. 263 (D. C. N. Y.). 187. In re Freund, 1 A. B. R. 25 (Ref. Iowa). 188. In re McFaun 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa). 1636 REMINGTON ON BANKRUPTCY. § 2795 nership debts are discharged by the individual bankruptcy, provided they have been duly scheduled — that is to say, properly described^and' provided they have been so scheduled in time for proof and allowance, and with the name of the creditor, if known, etc., or if the firm creditors have had ac- tual knowledge of the bankruptcy; that the limits of the discharge as to its effect upon particular debts may not be determined in advance by qual- ifying the decree (save and except as to debts in -existence when any former discharge was refused) : that its limits must be left to the deter- mination of the court wherein it is sought to enforce the old debt; that the bankruptcy court has ample power to require the firm debts and assets to be "duly scheduled" to the end that partnership creditors may have full notice; and that all this is irrespective of the question as to whether there are or are not firm assets, the firm assets being subject to such administra- tion as is granted by § 5 and being properly regarded in much the same light as any other assets in which the bankrupt may have a joint interest with others. Deaf & Dumb Institute v. Crocket, 17 A. B. R. 240 (N. Y. Sup. Ct. App. Div.): "It is evident that an individual may be a member of a solvent firm and at the same time be insolvent himself. "This rule shows quite clearly that the firm cannot be declared insolvent unless it is such in fact. In such circumstances, unless, therefore, the individual may by his own petition obtain a discharge in bankruptcy, even though insolvent, he could obtain no relief under the Bankruptcy Act. "Where a firm is solvent and an individual member thereof is insolvent and desires to be discharged in bankruptcy, it is manifest that he is entitled to such discharge and that the business of the firm should be wound up and his surplus interest applied in liquidation of his individual debts. * * * "It would therefore seem clear that an individual member of a firm may,, on his own independent application, made in his own right, obtain a discharge not only from his individual debts but from his firm liabilities, and that the exist- ence or nonexistence of firm assets is immaterial to the decision of this ques- tion. This view was expressed by the Supreme Court of Wisconsin in Curtiss V. Woodward (supra); but it is opposed by many easels in the Federal District Courts and some in this district which appear to be to the effect that the dis- charge may he complete or only partial, and that it is complete against all creditors when the firm is adjudged bankrupt or there are no firm assets and the firm debts have been scheduled as such, but partial only and limited to the individual creditors when the individual alone is adjudged bankrupt, and especially if there are firm assets. (In re Kaufman, 14 A. B. R. 393, 136 Fed. 262; In re Awe, 2 N. B. R. 75; In re Knight, 8 N. B. R. 436; Hudgins v. Lane, et al., No. 6,827, vol. 12, Fed. Cas., p. 800; Matter of Fergenbaum, 7 Am. B. R. 339; In re Conkling, et al., No. 3,408, vol. 6. Fed. Cas. p 850, and id. No. 3407, vol. 6., Fed Cas. 848; Trimble v. More, 47 Supr. Ct. 340; In re Hirsch, et al., 3 Am. B. R. 344, 97 Fed. 571; Dodge V. Kaufman, 15 Am. B. R. 542, 46 j\Iisc. 248, following In re Myers, 3 Am. B. R. 260). It is difficult to reconcile this view if it relates to a discharge granted in the general language of the statute with the plain mandatory language of § 17 of the Bankruptcy Act, that 'a discharge in bankruptcy shall release a bank- rupt from all r^f his provable debts' with certain exceptions not here involved. Since partnership debts arc provable against a bankrupt's individual estate it § 2796 EFFECT OF DISCHARGE. 1637 is difficult to see why they are not discharged by a discharge which follows the language of the statute. It appears to me to be a question of jurisdiction, and that where, as in this case, the bankruptcy court acquired jurisdiction and granted a complete discharge under the statute, without attempting to make any reservation, that it slfbuld be given effect as such. It may well be that if the adjudication and discharge in bankruptcy are expressly limited to the in- dividual debts that the discharge would not relieve the bankrupt from liability on firm obligations, and if that is what is meant by the decisions on tha't sub- ject, to which reference has been made, they are doubtless sound. * * * it was doubtless competent for the Supreme Court of the United States by virtue of the authority conferred by § 16 of the Bankruptcy Act, to prescribe that a petitioner should state in his petition whether or not he is a member of a copartnership the business of which has not been finally settled, and if so, his interest therein, and whether there are firm creditors from whom he seeks a discharge, and firm assets unadministered which could then be reached under subdivision 'h' of § 5; and doubtless the bankruptcy court could adopt rules on the same subject not inconsistent with those adopted by the Supreme Court. The Supreme Court has prescribed forms for petitions by individuals and for petitions by copartnership firms, but I find no provision in these forms requir- ing that in an individual petition it must be set forth whether the applicant is a member of a copartnership firm, and I find nothing in the rules prescribed by the Supren.e Court on the subject, or dealing with the subject of whether in any circumstances the discharge may be partial and not complete. I am of opinion, therefore, that no question of jurisdiction is presented, and that, at most a suspicion is cast on the regularity of the petitioner's bankruptcy pro- ceedings according to some of the Federal decisions; but even that depends upon there being a partnership business which has not been finally settled and on this judgment being a partnership obligation. In these circumstances I think the true rule is, and that the tendency of the decisions in the State courts, at least, is toward holding that where the court acquires jurisdiction and grants a full discharge in the language of the statute from all provable debts properly scheduled, not specially excepted, that joint as well as individual debts are discharged." § 2796. Firm Debts Provable Debts of Each Member, and So Far as Affect Individual, Are Discharged by Individual's Discharge. — Firm debts are provable debts also of each member as an individual bank- rupt, and the creditors of a partnership are also creditors of each partner ; and the partnership debts are discharged, so far as they are individual lia- bilities, by that partner's discharge in individual bankruptcy proceedings. It is now beyond question that firm debts are provable against a part- ner in individual proceedings, and consequently dischargeable therein, ^^^ Jarecki Mfg. Co. v. McElwaine, 107 Fed. 249,-5 A. B. R. 751 (C. C. Ind.): 'There is some disagreement in the authorities as to whether a discharge of 189. See ante, "Distribution in Partnership Cases," § 2230. et seq. Impliedly, In re Hartman, 3 A. B. R. 65, 96 Fed. 593 (D. C. Iowa") ; impliedly, In re McFaun, 3 A. B. R. 66, 96 Fed. 592 (D. C. Iowa); Deaf & Dumb Inst. v. Crockett, 17 A. B. R. 240 (N. Y. Sup. Ct. App. Div.) ; compare, analogously, In re Bates, 4 A. B. R. 56, 100 Fed. 263 (D. C. Vt.) ; [1867] In re Downing, 3 B. Reg. 784. Fed. Cases 4,044; [1867] In re Stevens. 5 B. Reg. 112. Fed. Cases 13.393; [1867] In re Frear, 1 B. Reg. 663, Fed. Cases 5.074; [1867] In re Grady, 3 B. Reg. 227,- Fed. Cases 5,654; [1867] In re Abbe, 2 B. Reg. 75, Fed. Cases 4; [1867] In re Leland, 5 B. Reg. 222. 1638 REMINGTON ON BANKRUPTCY. § 2796 an individual partner releases him from liability upon partnership debts. The great weight of authority is in favor of the doctrine that the discharge of a partner on his individual petition operates as a release alike from his individual and his partnership indebtedness. The cases which hold to the contrary seem to be based upon a misconception of the extent of the rights of a trustee over the bankrupt's estate, and as to the effect upon the firm of the bankruptcy of one of its members. The cases holding that a discharge granted *to one member of a firm does not release him from partnership indebtedness, where he alone is adjudged a bankrupt, proceed on the principle that the trustee could not acquire possession of and administer the assets of the firm. In so holding it si^ems to have been overlooked that the .bankruptcy of one member is ipso facto a dissolution of the firm, and that, while the solvent partner would be al- lowed to administer the partnership assets, yet the trustee in bankruptcy is en- titled to the bankrupt's share of the partnership assets after the payment of the partnership debts. The separate estate of the bankrupt partner, and his bene- ficial interest in the firm after the payment of firm debts, is to be administered by the trustee for the payment of the bankrupt's individual debts. The adjudi- cation of one partner as a bankrupt brings within the jurisdiction of the court his entire estate for administration, and if, after the payment of his individual j^lebts out of his individual estate, any surplus remains, it will be applicable to the payment of firm indebtedness. For the purpose of reaching any such surplus, firm creditors may prove against the estate of the bankrupt partner •i= * * ^ir.d, * * * the discharge of one partner releases him from all partner- ship indebtedness. The provision of § 5, par. 'h', of the Act of 1898, that where one member of a firm, but not all, becomes bankrupt, the partners not adjudged bankrupt shall wind up the business and account to the trustee for the bank- rupt's share in the firm, although it introduces no new rule of law, does, how- ever, clearly show that all the bankrupt's property — his individual assets as well as his beneficial interest in the partnership assets — passes to the trustee. As that section provides a means for reaching this beneficial interest, there would seem to be no reason for refusing a bankrupt a discharge which will re- lease him from his partnership liability on the ground that his partnership assets are not £.ssigned to and controlled by his tru'stee, to be used for the bene- fit of the partnership creditor*, because the trustee having a right to his bene- ficial interest in the partnership'assets, and the bankrupt law providing a means for the collection of that interest, everything in which the partnership creditors might have a pecuniary interest passes to the trustee by virtue of the adjudica- tion of the partner as a bankrupt. It would seem to be impossible to consider the provisions of § 5, par. 'h', with the general intent of the law to release a bankrupt from all his indebtedness existing at the time of the commencement of the proceedings in bankruptcy, and especially with the provisions of § 16, providing thft the release of the bankrupt by a discharge shall not alter the liability of a partner of the bankrupt, without reaching the conclusion' that one member of a firm may be adjudged a bankrupt, that the partnership cred- itors may prove their claims against his estate, and that a discharge granted to one member of a firni releases him from all partnership as well as individual indebtedness. And this result seems to be fortified. by § 5, par. 'g', providing that the court may permit the proof of the claims of the partnership estate aaainst the individual estate, and vice versa, and may marshal the assets of the partnership estate and the individual estates so as to prevent preferences and secure an equitable distribution of the property of the several estates. Loomis V. Wallblom, 13 A. B. R. 687 (Sup. Ct. Minn.): "The discharge did not purport to forever release the bankrupt from all his debts -and liabilities, but only from all such 'debts and claims' as were by said Bankruptcy Act 'm.Tie § 2796 EFP'ECT OF discharge;. 1639 provable against his estate!' That the debt was one which might have been proved in bankruptcy proceedings against the estate of the individual partner is evidenc from the whole tenor of the law, and especially from chapters 1, 3, §§ 1, 4, 30 Stat. 544, 547, * * * chapter 3, §§ 4, 5, of that law, 30 Stat. 547. * * * See, also, § 16, 30 Stat. * * * Indeed, subdivision 'g' of said § 5 expressly provides that the court may 'permit' the proof of the claim against the in- dividual estates and vice versa and may marshal the assets of the partnership estates and the individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates.' * * * "Such a judgment as the one here sought to be extended, filed in the bank- ruptcy proceedings, might under appropriate conditions, have been paid in full or in part by the application thereto of the whole or a proper part of the funds in the hands of the respondent's trustee in separate bankruptcy proceedings. Its full discharge as an individual liability on a firm debt may accordingly be had in bankruptcy proceedings." In re Kaufman, 14 A. B. R. 393, 136 Fed. 262 (D. C. N. Y.) : "The judgment obtained against him was a personal judgment against himself and his partner on account of the indebtedness contracted by him and his partner in the course of partnership business. Both the indebtedness and the judgment subjected to its payment tha assets of the firm, and the individual property of each debtor against whom the judgment was recovered. Therefore Kaufman was a judg- ment debtor, first, as a partner of the firm; second, as an individual. The peti- tion in bankruptcy was not for the purpose of procuring the administration of the assets of the firm, as a distinct entity, nor for the purpose of procuring the discharge of the firm as such; but it was for the purpose of administering the personal assets of a person, who was a partner, and for the discharge of such persons from all debts against him as an individual, however such debts were created. * * * The order of discharge would provide for his discharge, as an individual, from any individual responsibility growing out of the partnership liability." [1867] Wilkms z'. Davis, 15 B. Reg. 60, Fed. Cas. 17,664: "It has been an- nounced of late, chiefly in dicta, that all the members of a firm must become bankrupt in order that the assignees should be able to deal with the joint stock, or that a discharge should be obtained from joint debts. In re Little, 1 B. R. 341; 2 Ben. 186; Fed. Cas. No. 8390; In re Winkins, 2 id. 349; S. C, Fed. 'Cas. 17,875; Hudgins v. Lane, 11 id. 462; 12 Hughes 361; S. C, Fed. Cas. 6,827. Such, however, is not the law, as I understand it. First. It has been settled for more than a century and a half, that if one member of a firm becomes bankrupt and obtains his discharge, he is released from all his debts joint and separate. Ex p. Yale, 3 P. Wms. 24 note A. This leading case is the law of England today; it has not been necessary to reaffirm it; but the doctrine has. been acted on and applied in various ways. Where the bankrupt was a member of a company which was for some purpose a partnership, the court extended the rule to him. Thomas v. Harding, 3 C. B. (N. S.) 254. So the proceedings and pleadings in such cases have repeatedly recognized the law that one partner is discharged by his separate certificate; such as Bovill v. Wood, 2 Maule & S. 23; Noke v. Ingham, 1 Wils. 89; Booth v. Middlecoat, 6 Bing. 445. In this last case, it does not distinctly appear whether the bankrupt was a partner or a joint con- tractor, but the very absence of information shows the point to be immaterial. See Lindley, Partnership; Collyer, Part. (5th Am. Ed.), § 858; Mont. & Ayr. Bankrupt Law (^d Ed.), 748; 1 Deacon, id. 797; Robson, id. (2d Ed.) 554. If a creditor who had proved his debt against a bankrupt partner, brought an action at law against the solvent members of the firm, and joined the bank- rupt as a defendant, which at law he was bound to do, for reasons not now 1640 REMINGTON ON BANKRUPTCY. ^ 2797 necessary to be stated, yet the Lord Chancellor would require him to give security to the bankrupt against all damages and costs. Ex p. Read, 1 Rose, 460; Ex p. Stanton, 1 M. D. & De G. 273. Not only will the joint creditors be bound, but the bankrupt's co-partners equally; because they may pay the joint debts and prove against the bankrupt's estate the equitable debt arising from any deficiency in his accounts. Wood v. Dodgson, 2 Maule & S. 195; Afflalo v. Foudrinier, 6 Bing. 306; Butcher v. Forman, 6 Hill 583. Second, It is equally well settled, and. is a necessary part of the theory, that the bankruptcy of one partner dissolves the partnership, except for the purpose of closing their af- fairs, and that the assignee is tenant in common with the solvent partner of the joint stock. It usually happens that the latter will be in possession of the stock, and his possession will not be disturbed excepting for good reason; and, on the other hand, if, in this case, the assignee is in possession, he will not be disturbed wilhout good cause. A court of equity has undoubted power to intrust either the solvent partner or the assignee with the exclusive control of the settlement; but if no order is made, the assignee, having possession, will go on and collect the joint assets, and pay the joint debts, by way of dividends to those joint creditors who come in and prove. See West v. Skip, 1 Ves. (Sen.) 239; Button v. Morrison, 17 Ves. 193; Murray v. Murray, 5 Johns. Ch. 60; Parker v. INIuggridge, 2 Story 334; Ayer v. Brastow, 5 Law Rep. 498; Amsinck v. Bean, 11 N. B. R. 495; 22 Wall 395; S. C, 10 Blatch 361. "It is argued that the assignee of one partner cannot interfere with the affairs of the firm, unless the decree in bankruptcy or the assignment expressly confers upon him such right or conveys to him such a title. But no point of the sort was taken in any of the cases above mentioned. On the contrary, the facts in all of them simpl}^ show that one partner was bankrupt. This, of necessity, disposes of all his property, and one part of that is his interest in anj^ firm or any number of firms of which he was a member. It seems to be thought that one may be bankrupt and not bankrupt at the same time; bankrupt as an individual and not so as a member ©f a firm. This is impossible. A man may be bankrupt when the other members of his firm are solvent, and when the joint assets are in excess of the joint debts, because he may owe separate debts beyond the amount of his separate property added to his share in a solvent joint business. In such a case, the assignee may properly make a settlfement with the solvent partner, by which the joint debts are paid by the latter, and the value of the bankrupt's interest in the firm is paid over to the assignee for distribution among his separate creditors. If the balance is against the bankrupt, the solvent partner, upon paying the joint debts, could have proved for it, and have received a dividend from the separate estate, as I have already shown. But the partner would be no less bankrupt in either case, and his assignee would have no other or different title, so far as his estate was con- cerned, than if all the members of the firm were bankrupt." § 2797. But Partnership Debts to Be "Duly Scheduled," Else Not Affected by Individual Discharge. — But partnership debts are not dis- charged by the discharge granted in the individual proceedings of one part- ner, unless the partnership debts have been "duly" scheduled ; that is to say, aptly described with addresses duly given, under the limitations here- tofore laid down.^^*^ 190. Impliedly, In re Meyers, 3 A. B. R. 260, 2 N. B. N. & k. Ill (D. C. N. Y.): compare, In re Kaufman, 14 A. B. R. 393, 1136 Fed. 262 (D. C. N. Y.); impliedly. Deaf & Dumb Inst. v. Crockett, 17 A. B. R. 240 (N. Y. Sup. Ct. Apr-. Div.). § 2798 EFFECT OF DISCHARGE. 1641 And the question as to whether firm debts will be discharged in individ- ual bankruptcies is really more one of "due" scheduling than anything else. Impliedly, In re Laughlin, 3 A. B. R. 1, 96 Fed. 591, 592 (D. C. Iowa): "To avoid this result, provision is made in the last clause of § 5 for adjudging a part only of the members of a firm to be bankrupt, and a mode is provided for reaching their mterest in the partnership property and subjecting it to admin- istration by the Bankruptcy Court; and, as the act has thus made provision for giving to the creditors the benefit of the bankrupt's interest in the firm prop- erty and business, the bankrupt partners will be entitled to a discharge effectual against the firm creditors. To become entitled, however to a discharge barring the firm creditors, under such circumstances, the proper foundation must be laid in the proceedings instituted on behalf of the bankrupt partner. In the pe- tition originally filed it should be averred that the petitioner is indebted in his individual capacity, if such be the fact, and also as a member of a firm, naming it, and giving the names of the several partners; and the petition should pray for a discharge from the firm as well as his individual debts. To this petition should be attached the proper schedules, setting forth the firm debts, the firm property, if any, and all other matters, the same as is required in the case of a proceeding brought by all the partners. Schedules of the individual prop- erty and debts should also be attached to the petition. In the notice to the creditors to attend the first meeting, it should be stated that the firm, as well as the individual creditors, are notified to attend, as the bankrupt is seeking a discharge from both classes of claims; and also in the petition for a discharge a release from the firm as well as the individual debts should be asked; and in the notice to creditors of the filing and hearing upon the petition for discharge the fact that a release from the firm debts is prayed for should be specifically set forth. Notice of the filing of the petition and of the creditors' meetings should be sent to the nonjoining partner or partners, in order that, if necessary, they may appear and protect their rights and interests in the proceedings. The attention of the referees in this district is called to this matter, and they are instructed that it is their duty to examine all petitions referred to them, and, if it appears that the bankrupt is seeking a discharge from firm as well as in- dividual debts, then, if necessary, the petition arid schedules must be amended so. as to comply with the foregoing requirements before the adjudication is entered thereon; and care must be taken, in framing the notices to creditors, that they conform to the views herein expressed." Inferentially, In re Morrison, 127 Fed. 186, 11 A. B. R. 498 (D. C. Tex.): "Under § 5, clause 'h,' of the Bankrupt Act of July 1, 1898, a part only of the members of a firm may be adjudged bankrupt; but such a proceeding should be predicated upon appropriate pleadings, with proper parties, and creditors should have due notice that partnership effects are being administered, and that 3 discharge i"? sought from partnership indebtedness." § 2798. And Notices to Creditors Must Give Notice of Firm Debts and That Discharge Therefrom Sought.— Unless the notices to cred- itors give notice of the firm debts, and that discharge therefrom is sought, firm debts will not be discharged. ^^^ 191. In re Russell. 3 A. B. R. 91, 97 Fed. 32 (D. C. Iowa). But compare. In re Kaufman, 14 A. B. R. 393, 136 Fed. 262 (D. C. N. Y.) ; In re Hartman, 3 A. B. R. 65, 96 Fed. 593 (D. C. Iowa); In re McFaun, 3 A. B. R. 66, 96 Fed." 592 (D. C. Iowa). 1642 REMINGTON ON BANKRUPTCY. § 2804 In re ^Morrison, 11 A. B. R. 499, 127 Fed. 186 (D. C. Tex.): "* * * and creditors should have due notice that partnership effects are being administered and that a discharge is sought from partnership debts." But it is a qtiestion whether it is necessary to mention that they are firm debts and specifically to name the firm.^^^ § 2799. Petitions for Adjudication and Discharge Each to Men- tion Firm Debts and Pray for Discharge Therefrom. — The petition for adjudication, and the petition for discharge also, should mention the firm debts and pray for their discharge. ^^^ § 2800. And Firm Property to Be Described. — And the firm prop- erty must also be described. It is like other property in which the individ- ual bankrupt may have a joint interest. ^^i § 2801. Amendment to Include Discharge from Firm Debts, Where Already Duly Scheduled. — But if, in an individual bankruptcy, firm debts have been duly scheduled, the discharge decree may be so amended as to show that the bankrupt is discharged as an individual from any individual liability on account of the debts of the firm.^^^ § 2802. Even after Term at Which Discharge Granted. — And such amendment may be made after the term at which the discharge was granted. ^^*^ Discharge of Individual Debts in Partnership Bankruptcies. § 2803. Where Individuals Adjudged Bankrupt with Partnership, Individual Debts Discharged. — Where the individual members of the partnership have been adjudged bankrupt along widi the partnership itself, they may be discharged from their debts as individuals. § 2804. Where Not So Adjudged, Individual Debts Not Dis- charged. — Where the individual members of the partnership have not 192. Compare, apparently to same effect that it is not, Deaf & Dumb Inst. V. Crockett, 17 A. B. R. 240 (X. Y. Sup. Ct. App. Div.). 193. In re McFaun, 3 A. B. R. 66. 96 Fed. 592 (D. C. Iowa); In re Russell, 3 A. B. R. 91. 97 Fed. ?>2 (D. C. Iowa); In re Meyers. 3 A. B. R. 260, 2 N. B. N. & R. Ill (D. C. N. Y.); In re Morrison, 11 A. B. R. 499, 127 Fed. 186 (D. C. Tex.). But compare, In re Kaufman, 14 A. B. R. 393, 136 'Fed. 262 (D. C. X. Y.). But compare, that no such rule prescribed, Deaf & Dumb Inst. v. Crockett, 17 A. B. R. 240 (X. Y. Sup. Ct. App. Div.). 194. In re Hartman, 3 A. B. R. 65, 96 Fed. 593 (D. C. Iowa). 195. In re Kaufman, 14 A. B. R. 393, 136 Fed. 262 (D. C. N. Y.). 196. In re Kaufman, 14 A. B. R. 393, 136 Fed. 262 (D. C.'X. Y.) ; In re Diamond, 17 A. B. R. 563 (C. C. A. N. Y.). § 2805 EFFECT OF DISCHARGE. 1643 been adjudicated bankrupt along with the partnership itself, the partner- ship discharge will not effect a discharge from their debts as individ- uals. i»" SUBDIVISION "d." Discharge of Individual Partner Where Partnership and Remain- ing Partners Not Discharged. § 2805. Individual Partner May Be Discharged, Where Firm and Other Partners Not. — An individual partner may receive his discharge, although- the partnership and remaining partners are not discharged. In re Meyers, 3 A. B. R. 260, 2 N. B. N. & R. 112 (D. C. N. Y.) : "It is argued that under § 5 of the present act, an individual petition for a separate discharge after an adjudication of the firm, cannot be maintained. I do not appreciate the force of this contention, and must overrule it. If it were sound. It would follow that in no case of a firm adjudication could an honest partner be discharged, if a discharge was denied to his copartner on account of the latter's wf-ong, though the former was in no way privy to it. This would be plainly contrary to the evident purpose of the sections of the act relating to discharges, and no such construction of section 5 seems in the least necessary." 197. In re Hale, 6 A. B. R. 35, 107 Fed. 432 (D. C. N. Car.). CHAPTER LV. Re;vocation of Discharge. Synopsis of Chapter. § 2806. Revocation of Discharge. DIVISION 1. § 2807. "Parties in Interest," Alone, May Move to Revoke. § 2808. Includes Creditor Who Has Failed to Prove Claim within Year. § 2809. Must Have Been Creditor at Time of Bankruptcy. § 2810. Purchaser of Discharged Claim, Not Party in Interest. § 2811. Whether Court, Sua Sponte, May within Year Vacate Discharge Not on Merits. § 2812. Whether Bankrupt May Move to Vacate Discharge. DIVISION 2. § 2813. Fraud in Procuring Discharge, Accompanied by Grounds for Barring It, Sole Ground. § 2814. Buying Ofif Opposition, Sufficient. § 2815. Applicant's Knowledge of Fraud at Time Discharge Granted, or Laches, Fatal to Revocation. § 2816. Ground for Barring Discharge Itself Must Also Exist. § 2817. Creditor Defeated in Opposition to Discharge May Not Move for Revo- cation on Same Grounds. § 2818. Vacating for Irregularities Not Going to Merits. DIVISION 3. § 2819. Trial on Application for Revocation. § 2820. Before Judge, Not before Referee. § 2821. But May Be Referred to Special Master. § 2822. Petition to Set Forth Facts Showing Grounds for Revocation, but Need Not Allege Discharge Not Warranted. § 2823. Amendment. § 2824. Revocation to Be Applied for within Year after Discharge Granted. § 2806. Revocation of Discharge. — The discharge may be revoked upon the appHcation of parties in interest, who have not been guiUy of undue laches, filed within a year after the discharge was granted, upon trial, if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the pe- titioners since the granting of the discharge, and that the actual facts did not warrant the discharge.^ 1. Bankr. Act, § 15; In re Meyers, 3 A. B. R. 722. 100 Fed. 775 (D. C. N. Y.); In re Oleson, 7 A. B. R. 22, 110 Fed. 796 (D. C. Iowa), quoted post, § 2815; In re Oliver, 13 A. B. R. 582, 133 Fed. 832 (D. C. N. J.), quoted post, § 2816; In re Upson, 10 A. B. R. 758, 124 Fed. 980 (D. C. N. Y.), quoted post, § 2815. § 2811 rp.vocation of discharge. 1645 Division 1. Who May Move to Revoke Discharge. § 2807. "Parties in Interest," Alone, May Move to Revoke.— 'Tar- ties in interest," and only they, may move to revoke a bankrupt's dis- charge.2 § 2808. Includes Creditor Who Has Failed to Prove Claim within Year. — A creditor who did not prove his claim within the year from the adjudication of bankruptcy, and therefore could not share in dividends, nevertheless is a party in interest, and may maintain a motion to revoke a discharge.^ § 2809. Must Have Been Creditor at Time of Bankruptcy.— The applicant must have been a creditor at the time of the bankruptcy, not the assignee of a discharged claim, nor a subsequent creditor. In re Chandler, 14 A. B. R. 512, 138 Fed. 637 (C. C. A. Ills.): "The averment in the petition that the objectors are creditors is not such a statement as shows to the court that the petitioners are 'parties in interest,' within the meaning of the law. The petition does not make such a showing that the court can say- that the rights of the petitioners were affected by the discharge. No facts were averred which would justify the legal conclusion that the petitioners are 'parties in interest.' It is not averred that they were creditors at the time of the bank- ruptcy. The character of their debt is not shown. It is not averred that their debt was provable in bankruptcy or was proved in the proceedings. The debt or debts they represent, from all that appears from the petition, may have been created since discharge, or they may have become purchasers of the debts which were discharged, without right to attack the discharge. We are of opinion that the petition should have shown that the petitioners had at the time provable debts against the bankrupt, which were affected by the discharge of the bankrupt. Otherwise they are not 'parties in interest,' within the meaning of the statute." § 2810. Purchaser of Discharged Claim, Not Party in Interest. — The assignee of a discharged claim is not such party in interest.-^ § 2811. Whether Court Sua Sponte May within Year Vacate Dis- charge Not on Merits. — It has been held, that the court sua sponte may vacate within a year, its decree of discharge in order to let in parties to oppose the discharge.^ Obiter, In re Bimberg, 9 A. B. R. 601, 121 Ked. 942 (D. C. N. Y.) : "Moreover, a court of bankruptcy has generally power, like any other court, to amend its 2. Bankr. Act, ante, § 15. 3. In re Bimberg, 9 A. B. R. 601, 121 Fed. 942 (D. C. N. Y.); [1867] In re Douglas, 11 Fed. 403. 4. In re Chandler, 14 A. B. R. 512, 138 Fed. 637 (C. C. A. Ills.), quoted in pre- ceding paragraph. 5. [1867] In re Dupree, Fed. Cases No. 4,183. Compare, analogously, practice in vacating compositions, obiter, Bank v. Doolittle, 5 A. B. R. 743 (C. C. A. Tex.). 1646 KEMIXGTOX OX BANKRUPTCY. § 2813 decrees, in its discretion at any time, in the furtherance of justice, in the absence of any statutory prohibition. * * * Undoubtedly a discharge cannot be vacated after a year has passed, but before a year has passed, the court, on its own mo- tion, in my opinion, could vacate a discharge, if justice required it." But this is different from revoking the discharge ; for the revoking of a discharge is a direct finding that the discharge ought not to be granted at all, while the vacating of a discharge decree may be based solely upon grounds not going to the merits, and still leave the discharge ultimately, to be granted. § 2812. Whether Bankrupt May Move to Vacate Discharge. — It is also a question whether the bankrupt, on good cause shown, may also be permitted to move for the vacating of his own discharge decree. It has been held that he may do so, if proper notice be given and third persons be not injured.*^ But he may not do so, at any rate, for the pi:rpose of permitting him to amend his schedules to include an omitted creditor after the expiration of the year in which the creditor might have filed his claim for allowance ;' nor without notice to the creditor.'^ Divisiox 2. Grouxds for Rkvokixg Discharge. § 2813. Fraud in Procuring Discharge, Accompanied by Grounds for Barring It, Sole Ground. — Fraud in the procuring of the discharge (accompanied with the existence of some one of the original grounds for barring discharge) is the only ground of revocation. ^ In re Hoover, 5 A. B. R. 347, 105 Fed. 354 (D. C. Pa.): "This is an applica- tion, under section 15 of the act, to revoke the discharge of a bankrupt; but there is this fatal defect in the proceeding: Neither by averment in the petition, nor by proof in the testimony that has been laid before me, does it appear that the discharge was 'obtained through fraud of the bankrupt,' and that 'the knowl- edge of the fraud has come to the petitioners since the granting of the dis- charge.' The averments of fraud contained in the petition relate to events oc- curring several years before the adjudication, and could properly be considered, if at all, only upon objection to the granting of the discharge. No doubt the peti- 6. In re Shaflfer, 4 A. B. R. 728 (D. C. X. Car.). Impliedly, In re Hawk, 8 A. B. R. 71, 114 Fed. 916 (C. C. A.). 7. In re Hawk, 8 A. B. R. 71, fl4 Fed. 916 (G. C. A., distinguished in In re Kaufman, 14 A. B. R. -397, 136 Fed. 262, D. C. Pa.). 8. In re Hawk, 8 A. B. R. 71, 114 Fed. 916 (C. C. A.). 9. In re Hasen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.). Compare, In re Mej-ers, 3 A. B. R. 260, 2.N. B. N. & R. Ill (D. C. X. Y.). Instance held insufficient: Failure to schedule certain lands of which bank- rupt had been dispossessed by order of the U. S. Land Office, which order, after his discharge, had been reversed. In re Hansen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.). Instance held insufficient: Conditional and personal right of purchase not an asset of the estate. In re Hansen, 5 A. B. R..747, 107 Fed. 252 (D. C. Ore.), § 2815 RnOCATlOX OF DISCHARGE. 1647 tioners intended to oppose such objections at the proper time, namely, within ten days after the time fixed for hearing the bankrupt's application to be dis- charged; but for some reason no objections were filed, and the discharge was granted in due course. But it was not obtained by the bankrupt's 'fraud,' in any sense of that word, and there is not subject to be revoked under the section now being considered." The willfully giving of a wrong address of a creditor, in order to get a discharge without the creditor's knowledge, is such a fraud. i'^ By this is not meant that the court may not set aside the order granting the discharge for irregularity, or for noncompliance with the rules of practice. § 2814. Buying- Off Opposition, Sufficient. — The buying off of op- position is clearly sufficient.^ ^ In re Dietz, 3 A. B. R. 316, 97 Fed. 563 (D. C. N. Y.) : "There is no doubt that if the opposition of the creditor is bought ofif through the procurement or privity of the bankrupt, it is such fraud upon the act as would warrant vacating the discharge, the fact itself being prima facie evidence that the bankrupt was not entitled to it." § 2815. Applicant's Knowledge of Fraud at Time Discharge Granted, or Laches, Fatal to Revocation. — The applicant for revoca- tion must not have had knowledge of the fraud in obtaining the discharge at the time the discharge was granted, nor must he have been otherwise guilty of laches. ^2 In re Upson, 10 A. B. R. 758, 124 Fed. 980 (D. C. N. Y.) : "Again, it is not shown, assuming that the bankrupt was guilty of fraud in concealing facts, that the knowledge of such fraud has come to the petitioner since the granting of the discharge. It is true that certain officers of the bank have testified that they had no knowledge of certain facts proved before the referee; but it does not appear that other officers or that the board of directors did not have full knowledge, and in truth it would seem that the bank did have all the knowl- edge on the subject it cared for at the time. Having appeared to oppose the discharge, and having been given twenty days in which to file specifications in opposition, the bank was certainly guilty of undue laches in not filing its specifi- cations and proceeding to produce evidence on the subject." In re Oleson, 7 A. B. R. 22,. 110 Fed. 796 (D. C. Iowa): "It is apparent that if the court should approve of the practice of allowing a creditor to attack a 10. In re Roosa, 9 A. B. R. 531, 119 Fed. 542 (D. C. Iowa). 11. Analogously. In re Steindler & Hahn, 5 A. B. R. 63 (Ref. N. Y.) ; [1867] In re Douglass. 11 Fed. 403, 406; [1867] In re Palmer, 14 N. B. Reg. 437, Fed. Cas. No. 10,678; Tuxbury 7'. Miller, 19 Johns 311; Blasdel v. Fowle, 120 Mass. 447; Bell v. Leggett, 7 X. Y. 176; obiter. In re Luftig, 15 A. B. R. 778 (D. C. Mass.). 12. Bankr. Act, § 15; Impliedly, In re Oliver, 13 A. B. R. 582. 133 Fed. 832 CD. C. N. J.); In re Meyers, 3 A. B. R. 722, 100 Fed. 775 (D. C. N. Y.); obiter, In re Shaffer, 4 A. B. R. 730, 104 Fed. 982 (D. C. N. Car.). Denial of laches in general terms on general averments of legal conclusions will not suffice; In re Oleson, 7 A. B. R.' 22, 110 Fed. 796 (D. C. Iowa). 1648 REMINGTON ON BANKRUPTCY. § 2817 discharge months after its date, without making any substantial showing of facts to prove the absence of undue laches, it would open the door to unfair attacks upon the bankrupt on the part of single creditors, who would hope to force payment to the'^ii, in order to avoid the cost and possible injury to the bankrupt who may have entered into new business pursuits, which would be seriously affected if the question of his liability on the debts barred by the discharge were to be reopened. When, as in this case, the existence of the mortgage now claimed to be fraudulent was shown in the original schedules and the creditors do not question its validity during the pendency of the case and the discharge is granted, the court will not be justified in entertaining a peti- tion for the revocation of the discharge, unless it is made clear that the creditor has not been guilty of laches; and that cannot be done by general averments of mere conclusions to the eft'ect that the party has not been guilty of negli- gence, or has acted with due diligence. * * * No showing of facts is made explaining why the validity of this mortgage was not inquired into during the pendency of the proceedings. The evil that may result from allowing attacks upon the validity of a discharge months after it has been granted is apparent. The bankrupt, having received his discharge, will ordinarily engage in new busi- ness enterprises, and may become indebted to many persons, who, in good faith, extend credit to him in the belief that the discharge granted bars the pre-existing indebtedness, and their rights will be seriously affected if the dis- charge is revoked and held for naught." Thus, failure without good cause to file specifications within the time limited will be such laches as will bar the right to revocation. ^^ And it has been held, that notice of the fraud to the trustee is notice to each and all creditors.^'* § 2816. Ground for Barring Discharge Itself, Must Also Exist. — But the fraud of the bankrupt in obtaining his discharge must have been accompanied with the existence of grounds themselves sufficient to have forbidden discharge in the first instance. ^'^ In re Oliver, 13 A. B. R. 582, 133 Fed. 832 (D. C. N. J.): "But * * * it must further appear, in order to justify the court in vacating tlie order of dis- charge, that the actual facts did not warrant the discharge." Thus, the bankrupt's omission to schedule property conveyed to his wife in fraud of creditors, although so conveyed to her more than four months before the bankruptcy, is such concealment of assets^^ as will warrant revocation of the discharge. § 2817. Creditor Defeated in Opposition to Discharge May Not Move for Revocation on Same Grounds. ^ — A creditor who has been 13. In re Hoover, 5 A. B. R. 247, 105 Fed. 354 (D. C. Pa.); In re Upson, 10 A. B. R. 758, 124 Fed. 980 (D. C. N. Y.) ; inferentially, In re Oleson, 7 A. B. R. 22, 110 Fed. 796 (D. C. Iowa). 14. In re Hansen, 5 A. B. R. 747, 107 Fed. 252 (D. C. Ore.). 15. Bankr. Act, § 15; In re Meyers, 3 A. B. R. 722, 100 Fed. 775 (D. C. N. Y.); In re Roosa, 9 A. B. R. 531, 119 Fed. 542 (D. C. Iowa). Compare, for case where the court evidently considered fraud alone sufficient, obiter, In re Luftig, 15 A. B. R. 778 (D. C. Mass.). 16. In re Toothaker Bros., 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.). § 2822 re;vocation of discharge:. 1649 "defeated in his opposition to the discharge, may not move for a revocation of it on the same grounds, but may impeach it for other and further in- stances of fraud newly discovered , the estoppel of the former decree being limited in this particular to the specifications that were passed upon.^" § 2818. Vacating for Irregularities Not Going to Merits. ^The discharge decree may be vacated on other grounds also. Thus, courts will always, in proper cases, vacate their decrees if there is a sufficient viola- tion of the rules of practice. ^^ For instance, where separate findings of fact and law were rec[uested by the opposing creditors, but not made, the discharge should be vacated for that purpose. ^^ But such vacating merely puts the discharge petition back for a rehearing and is different from the revocation of the discharge. Division 3. Practice;. § 2819. Trial on Application for Revocation. — Trial must be had upon the application for revocation of the discharge.-*^ § 2820. Before Judge, Not before Referee. — The trial must be had before the judge, not before the referee or special master.-^ § 2821. But May Be Referred to Special Master.— The matter of the revocation may be referred to the referee as special master. ^2 § 2822. Petition to Set Forth Facts Showing Grounds for Revo- cation but Need Not Allege Discharge "Not Warranted." — The pe- tition for revocation need not allege the discharge was not w^arranted ; such allegation would be merely a legal conclusion. It is sufficient for it to set forth the facts. ^3 But it must nevertheless appear therefrom that the discharge was not warranted. ^^ Merely to state that the party "is a cred- itor" is insufficient. It must appear that he was a creditor at the time of the bankruptcy, and not the assignee of a discharged debt nor a subse- ciuent creditor. 25 17. [18671 Dowder v. Rowell, 25 Vt. 336. 18. Compare, analogously the withholding of discharges and confarinatiou o: compositions until rules are complied with, ante, §§ 2376, 2382, 2457. 19. In re Rauchenplat, 9 A. B. R. 763, 1 P. R. 471, (D. C. Porto Rico). 20. Bankr. Act, § 15. 21. Bankr. Act, § 15; Bankr. Act, § 38 (a) (4). 22. In re Meyers, 3 A. B. R, 722, 100 Fed. 775 (D. C. N. Y.). 23. In re Toothaker Bros., 12 A. B. R. 99, 128 Fed. 187 (D. C. Conn.). 24. In re Oliver, 13 A. B. R. 582, 133 Fed. 832 (D. C. N. J.). 25. In re Chandler, 14 A. B. R. 512, 138 Fed. 637 (C. A. Ills.). 2 Rem B— 29 1650 REMINGTON ON BANKRUPTCY, § 2824 § 2823. Amendment. — The petition for revocation may be amended. ^^ § 2824. Revocation to Be Applied for within Year after Dis- charge Granted. — The application must be made within the year after the granting of the discharge. ^'^ Obiter, In re Shaffer, 4 A. B. R. 730, 104 Fed. 982 (D. C. N. Car.): "Where the petition is not filed within one year, it is absolutely barred by the statute." 26. In re Oliver, 13 A. B. R. 582, 133 Fed. 832 (D. C. N. J.). 27. In re Meyers, 3 A. B. R. 722, 100 Fed. 775 (D. C. N. Y.) ; obiter, In re Oleson, 7 A. B. R. 22, 110 Fed. 796 (D. C. Iowa). PART XI. Appeals and Error. CHAPTER LVI. Parties ox AppeaIv and Error. Synopsis of Chapter. § 2825. Proper Parties on Appeal and Error, in General. § 2826. Must Have Substantial Interest in Controvers}-. § 2827. Must Be in Trustee's Xame, if in Behalf of Estate and after Election of Trustee. § 2828. Except When Controversy About Trustee's Own Compensation or Expenses or Report on Exemptions. § 2829. Or, When About Own Conduct, or Administration. § 2830. Trustee Refusing May Be Ordered, or Creditor Be Authorized to Use Trustee's Name. § 2831. Court IMay Require Creditor to Indemnify Trustee. § 2832. Laches May Bar Right to Object to Other than Trustee Appealing. § 2833. Before Election of Trustee Appeal or Error May Be by Creditor. § 2834. Appeal by One Party Does Not Nesessarily Bring Up Case as to All. § 2825. Appeal Not Dismissed for Lack of Necessary Parties Where Not Par- ties below but Represented by Trustee. § 2836. Joint Appeal. § 2837. Omitted Parties Made Parties on Appeal. § 2838. Creditors Assenting to Composition, Necessary Parties on Appeal from Confirmation. § 2825. Proper Parties on Appeal and Error in General. — The rules as to who are and who are not proper parties on appeal and error proceedings in bankruptcy follow in general the usual rules of federal procedure. § 2826. Must Have Substantial Interest in Controversy. — Parties on appeal must have a substantial interest in the controversy;^ and where the appellant loses such interest pending the appeal, as by payment or otherwise, the petition will be dismissed.- But a creditor's claim need not necessarily have been allowed.^ § 2827. Must Be in Trustee's Name, if in Behalf of Estate and after Election of Trustee. — All action and defense, as well on appeal and in error proceedings as elsewhere, in behalf of the estate, after the election of the trustee, must be taken in the name of the trustee.'^ 1. In re Baker, 4 A. B. R. 778, 104 Fed. 287 fC. C. A. Mass.). 2. In re Baker, 4 A. B. R. 778, 104 Fed. 287 (C. C. A. Mass.). 3. Allgair v. Fisher, 16 A. B. R. 278, 143 Fed. 962 (C. C. A. N. J.). 4. Foreman v. Burleigh, 6 A. B. R. 230, 109 Fed. 313 (C. C. A. Mass.). Dissent- ing opinion of Sanburn, J., in Ayres v. Cone, 14 A. B. R. 747, 138 Fed. 783 (C. C. A. S. Dak.); [1867] In re Troy Woolen Co., Fed. Cases No. 14,202; [1867] In re Joseph, Fed. Cases No. 7,532; [1867] In re Place, Fed. Cases No. 11,200; [1867] In re Randall, 20 Fed. Cases 226, 228, 1 Sawy. 56; In re Lewen- 1654 REMIXGTOX OX BAXKRUPTCY. J? 2827 Chatfield v. O'Dwyer, 4 A. B. R. 313, 101 Fed. 797 (C. C. A. Ark.): "The obvious purpose of these provisions of the act is to enable the trustee of a bankrupt's estate to take the proper and necessary steps to object to the allow- ance of a false or fictitious claim, and to take the proper steps to vacate the allowance of any such claims when thej^ have been allowed, and the fact of their invalidity comes to his knowledge. The office of a trustee under the present Bankrupt Act is entirely analogous to that of assignee under the bank- rupt law of 18G7. The trustee is elected by, and is the representative of, the creditor; and, following the general analogies of the law, he is the appropriate person to see that no unjust or fictitious claims are' allowed to be paid out of the assets in his hands. His duties are very similar to those of an administrator or executor. Tt is his duty to ascertain that all claims presented for allowance, or that may have been allowed, are genuine; and under subdivision 6, rule 21, of the rules in bankruptcy formulated by the Supreme Court of the United States, the trustee has been empowered to file a petition with the referee to have any claim further investigated, when for any reason he may desire a re- examination of the same. Furthermore, if one creditor of a bankrupt may prosecute an appeal, under § 25 of the bankrupt law, from the allowance of a claim, then any other creditor may take a like appeal upon the same or different grounds, and this court may be required to entertain a number of appeals, all of which are brought to test the validity of the same demand." Compare, obiter, Gray v. Mercantile Co., 14 A. B. R. 780, 138 Fed. 344 (C. C. A. X. Dak.) : "But one may be before a court so as to enable it to adjudicate his rights, and yet not be an actual party to the proceeding; as when he is represented by a receiver or trustee who is an actual party, and whose duty it is to protect his interests. * * * gy ^j^g decree challenged by this appeal it was adjudged that the claims of IMurphy, McXamara, Blair and Lynch rep- resent legitimate expenses and costs of administration; that the claim of Carroll, while not of-this character, is yet a lawful one, and entitled to priority; and that each of these claims is properly payable out of the bankrupt's estate. The question whether the decree shall stand or be reversed is obviously of direct interest to the claimants whose claims are sustained by it, and because of this interest the question cannot be determined without affording these claim- ants an opportunity to be heard in defense of the decree. * * * 'j'j^g only par- ties respondent to this appeal are two general creditors. The citation is di- rected to them only. The reason for their presence lies in the fact that it was upon their objections that the claims of Porter and the trustee were partially dis- allowed. Murphy, McNamara, Blair, Lynch and Carroll are not before this court as actual parties, and are not represented by any one who is an actual party. The trustee is not their representative. He is seeking to strike down the allowance of their claims, and in this is the representative of the general creditors of the estate. Chatfield v. O'Dwyer, supra. Of course he cannot represent or speak for both sides to the controversy." sohn, 9 A. B. R. 368, 121 Fed. 538 (C. C. A., referred to In re Koenig & Von Hoogenhuyze, 11 A. B. R. 619, 127 Fed. 891); In re Levy, 7 A. B. R. 56 (Ref. N. Y.). Compare, to same effect, Viquesnaj^ v. Allen, 12 A. B. R. 402, 131 Fed. 21. (C. C. .\. W. Va.); compare, to effect, that trustee represents all creditors o\ appeal, In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). Contra, and that any person aggrieved may appeal, and that one creditor may appeal from allowance of another creditor's claim, obiter. In re Roche, 4 A. B. R. 360, 101 Fed. 958 (C. C. A. Tex., distinguished in Foreman v. Bur- leigh. 6 A. B. R. 230. 109 Fed. 313. C. C. A. Mass.). Contra, McDaniel v. Stroud, 5 A. B. R. 685, 106 Fed. 486 (C. C. A. S. C). § 2832 PARTIES ON APPEAL AND ERROR. 1655 § 2828. Except When Controversy About Trustees's Own Compen- sation or Expenses or Report on Exemptions. — All such action must be taken by the trustee or in his name, except, of course, when the matter in controversy is the trustee's own compensation or expenses, or his report of exempted property. But even in such cases it has apparently been held, obiter, that he must be taken as still representing general creditors f al- though it is difficult to see how the trustee still "represents" general cred- itors when he appeals from an order cutting down his expenses. It would seem the fiction should give way to the reality that he then represents him- self, in opposition to creditors. It is precisely for the reason that he did not, in the matter of allowances of compensation and expenses 1o himself, represent creditors, that creditors should be given notice of the filing of his final account, as prescribed by the act. § 2829. Or When About Own Conduct, or Administration. — Or, also, when his own conduct, or administration of the estate, is in contro- versy ; as, for instance, where his sale is being criticised.*^ § 2830. Trustee Refusing May Be Ordered, or Creditor Be Au- thorized to Use Trustee's Name. — Where the trustee refuses to act, he may be ordered so to do ; or a creditor, or other interested party, may, on application, be authorized by the court to act for the estate in the trustee's name." § 2831. Court May Require Creditor to Indemnify Trustee. — And the court, in such instance, may require the creditor to indemnify the trustee against costs ; or to pay the costs, if unsuccessful.^ § 2832. Laches May Bar Right to Object to Other than Trustee Appealing. — Laches in objecting to other parties than the trustee taking such action, may be a waiver of the objection. Thus, the objection may not be raised for the first time on review.^ 5. Gray v. Mercantile Co., 14 A. B. R. 780, 138 Fed. 344 (C. C. A. N. Dak.\ 6. Allegair v. Fisher, 16 A. B. R. 278. 143 Fed. 962 (C." C. A. N. J.). 7. Chatfield v. O'Dwyer, 4 A. R R. 313, 101 Fed. 797 (C. C. A. Ark.), in which case the court bases its holding on the duty of the bankrupt to inform the "trustee" of iinproper claims; also upon the theory that he is the representative of all creditors, that all creditors are interested parties and must be parties on appeal; and finally, that otherwise, there might be as many appeals as there were creditors to institute them. See analogously, Smith v. Belden, 6 A. B. R. 432 (N. Y. Sup. Ct.). Compare, In re Levy, 7 A. B. R. 56 (Ref. N. Y.), where the court held a cred- itor could apgeal in his own name, where the trustee has refused for insufificient reasons and has delayed until time for appeal has almost expired. [1867] In re Randall, 1 Sawyer 56, 20 Fed. Cases 226, 228. 8. Chatfield v. O'Dwyer, 4 A. B. R. 313, 101 Fed. 797 (C. C. A. Ark.). 9. In re Koenig & Van Hoogenhuyze, 11 A. B. R. 619, 127 Fed. 891 (D. C. Tex.). 1656 REMINGTON ON BANKRUPTCY. § 2836 § 2833. Before Election of Trustee Appeal or Error May Be by 'Creditor.— Alanifestly, before a trustee is elected some one must have the right to prosecute appeal and petitions for review ; and where the order complained of was entered on an application made before the election of trustee, the original applicant is a competent party. ^^ , § 2834. Appeal by One Party Does Not Necessarily Bring Up Case as to All. — Appeal by one party does not necessarily bring up the case as to all parties. Thus, an appeal by a creditor, where there is no cross appeal by the bankrupt, from an order overruling part and sustaining part of the cred- itor's exceptions to the trustee's report of exempted property, does not bring up the bankrupt's case, and the bankrupt may not move to dismiss the creditor's appeal upon the ground that the court was without juris- diction. ^^ § 2835. Appeal Not Dismissed for Lack of Necessary Parties Where Not Parties Below but Represented by Trustee. — Appeal will not be dismissed for lack of necessary parties, where the parties alleged to be necessary were not parties below ; and, where they were represented solely by the trustee below, they must be deemed sufficiently represented by him in the appellate court. ^^ § 2836. Joint Appeal. — All parties aggrieved by a final decision, whereby a bill in equity or a petition in bankruptcy is dismissed, may join in an appeal, although some complain of one alleged error and some of another ; because, on such an appeal, all prior rulings are reviewable. ^^ Where, upon the determination of a c[uestion afifecting the distinct in- terests of several claimants, the court enters a single judgment and allows a joint appeal, a motion to dismiss, upon the ground that the interests of the petitioner are not joint, will be denied.^* The established rule of the federal appellate courts requiring all parties against whom a judgment or decree is rendered, in the absence of sever- ance, to join in suing out a writ of error or prosecuting an appeal there- Irom, only applies to a joint judgment or decree against such parties; it 10. Clark V. Pidcock^ 12 A. B. R. 309, 129 Fed. 745 (C. C. A. N. J.) : In this case the assignee of a creditor had applied for the reopening of an estate as not having been fully administered. At the same time he procured a restrain- ing order. On the hearing of the restraining order it was dissolved but a trus- tee was appointed. The court held the creditor's assignee was a competent party on review. 11. McGahan v. Anderson, 7 A. B. R. 641, 113 Fed. 115 (C. C A S C) 12. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). Compare, to'same eflfect, Love v. Export Storage Co., 16 A. B. R. 171, 143 Fed. 1 (C. C. A. Tenn.;. But compare, Ayres v. Cone, 14 A. B. R. 745, 138 Fed. 778 (C. C. A. S. Dak). 13. Stevens v. Nave-McCord Co., 17 A. B. R. 609, 150 Fed. 71 (C. C A Colo ) 14. Crim v. Woodford, 14 A. B. R. 302, 136 Fed. 34 (C. C A W Va ) § 2838 PARTIES ON APPEAL AND ERROR. 1657 has no application to separate judgments or decrees against such parties, though rendered at the same time and contained in the same entry. Trustees in bankruptcy, who, as individuals, are, by agreement of the contending parties, mere stakeholders of a fund in controversy, are not necessary parties as individuals to an appeal from such part of a decree as determines that one of the parties is entitled to the fund ; nor need they be made respondents. ^^^ § 2837. Omitted Parties Made Parties on Appeal. — Omitted parties may, under certain circumstances, be made parties on appeal ;i*^ likewise, on review.^" But laches will bar the right. ^^ § 2838. Creditors Assenting to Composition, Necessary Parties on Appeal from Confirmation. — On appeal from an order confirming a composition, creditors who have assented thereto and have received their money are necessary parties. ^^ • 15. Love V. Export Storage Co., 16 A. B. R. 171, 143 Fed. 1 (C. C. A. Tenn.). 16. Impliedly, Gray v. Mercantile Co., 14 A. B. R.'780, 138 Fed. 344 (C. C. A. N. Dak.). 17. Allgair v. Fisher, 16 A. B. R. 278, 143 Fed. 962 (C. C. A. N. J.). 18. Gray v. Mercantile Co., 14 A. B. R. 780, 138 Fed. 344 (C. C. A. N. Dak.). 19. Marshall Field & Co. v. Wolf Bros. Dry Goods Co., 9 A. B. R. 693, 120 Fed. 815 (C. C. A. Ark.). 1656 REMINGTON ON BANKRUPTCY. § 2836 § 2833. Before Election of Trustee Appeal or Error May Be by 'Creditor. — ^Manifestly, before a trustee is elected some one must have "the right to prosecute appeal and petitions for review ; and where the order ■complained of was entered on an application made before the election of trustee, the original applicant is a competent party. ^° , § 2834. Appeal by One Party Does Not Necessarily Bring Up Case as to All. — Appeal by one party does not necessarily bring up the case as to all parties. Thus, an appeal by a creditor, where there is no cross appeal by the bankrupt, from an order overruling part and sustaining part of the cred- itor's exceptions to the trustee's report of exempted property, does not bring up the bankrupt's case, and the bankrupt may not move to dismiss the creditor's appeal upon the ground that the court was without juris- diction.^^ § 2835. Appeal Not Dismissed for Lack of Necessary Parties Where Not Parties Below but Represented by Trustee. — Appeal will not be dismissed for lack of necessary parties, where the parties alleged to be necessary were not parties below ; and, where they were represented solely by the trustee below, they must be deemed sufficiently represented by him in the appellate court.^^ § 2836. Joint Appeal. — All parties aggrieved by a final decision, whereby a bill in equity or a petition in bankruptcy is dismissed, may join in an appeal, although some complain of one alleged error and some of another; because, on such an appeal, all prior rulings are reviewable. ^^ Where, upon the determination of a question affecting the distinct in- terests of several claimants, the court enters a single judgment and allows a joint appeal, a motion to dismiss, upon the ground that the interests of the petitioner are not joint, will be denied. ^^ The established rule of the federal appellate courts requiring all parties against whom a judgment or decree is rendered, in the absence of sever- ance, to join in suing out a writ of error or prosecuting an appeal there- trom, only applies to a joint judgment or decree against such parties; it 10. Clark v. Pidcock^ 12 A. B. R. 309, 129 Fed. 745 (C. C. A. N. J.): In this case the assignee of a creditor had applied for the reopening of an estate as not having been fully administered. At the same time he procured a restrain- ing order. On the hearing of the restraining order it was dissolved but a trus- tee was appointed. The court held the creditor's assignee was a competent party on review. 11. McGahan v. Anderson, 7 A. B. R. 641, 113 Fed. 115 (CCA S C) 12. In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). Compare, to same effect, Love v. Export Storage Co., 16 A. B. R. 171, 143 Fed. 1 (C. C. A. Tenn.;. But compare, Ayres v. Cone, 14 A. B. R. 745, 138 Fed. 778 (C. C. A. S. Dak). 13. Stevens v. Nave-McCord Co., 17 A. B. R. 609, 150 Fed. 71 (C C A Colo ) 14. Crim v. Woodford, 14 A. B. R. 302, 136 Fed. 34 (C. C A. W Va ) § 2838 PARTIES ON APPEAI. AND ERROR. 1657 has no application to separate judgments or decrees against such parties, though rendered at the same time and contained in the same entry. Trustees in bankruptcy, who, as individuals, are, by agreement of the contending parties, mere stakeholders of a fund in controversy, are not necessary parties as individuals to an appeal from such part of a decree as determines that one of the parties is entitled to the fund ; nor need they be made respondents. ^^ § 2837. Omitted Parties Made Parties on Appeal. — Omitted parties may, under certain circumstances, be made parties on appeal ;^'^ likewise, on review.^" But laches will bar the right. ^^ § 2838. Creditors Assenting to Composition, Necessary Parties on Appeal from Confirmation. — On appeal from an order confirming a composition, creditors who have assented thereto and have received their money are necessary parties. ^^ 15. Love v. Export Storage Co., 16 A. B. R. 171, 143 Fed. 1 (C. C. A. Tenn.). 16. Impliedly, Gray v. Mercantile Co., 14 A. B. R.'780, 138 Fed. 344 (C. C. A. N. Dak.). 17. Allgair v. Fisher, 16 A. B. R. 278, 143 Fed. 962 (C. C. A. N. J.). 18. Gray v. Mercantile Co., 14 A. B. R. 780. 138 Fed. 344 (C. C. A. N. Dak.). 19. Marshall Field & Co. v. Wolf Bros. Dry Goods Co., 9 A. B. R. 693, 120 Fed. 815 (C. C. A. Ark.). CHAPTER LVII. Ruvie;w of the; Referee's Order by the Judge. Synopsis of Chapter. § 2839. Review of Referee's Orders — Jurisdiction. DIVISION 1. § 2840. Order Must Be Made. § 2841. Order Must Be Final, Not Interlocutory: Case Not to Be Reviewed Pieremeal. § 2842. Exception to Be Taken to Order. § 2843. Also to Finding of Fact, Else Conclusive on Reveiw. § 2844. Exceptions Must Be Specific, Not "Broadside." § 2845. But No Formal "Exceptions" Need Be "Filed." § 2846. Petition for Review Must Be Filed. § 2847. Petition Must Set Forth Errors Complained of. § 2848. But New Facts May Not Be Set Up, Changing Case. § 2849. And Should Pray for Review of Referee's Order. § 2850. Petition to Be Filed with Referee. § 2851. Time Limited for Filing Petition for Review. § 2852. Certificate of Question, Summary of Evidence, Findings and Order of Referee, Requisite. § 2853. Certificate, Though Referee's, May Be Prepared by Counsel. § 2854. Record on Review to Show Certificate. § 2855. Not Entire Evidence but Only "Summary" to Be Certified. § 2856. Remedies for Incomplete Record. § 2857. Referee Also to Certify Findings of Fact. § 2858. Precise Question for Review to Be Stated Clearly and Distinctly. § 2859. Petition and Certificate Transmitted by Referee to District Clerk. § 2860. Stay of Execution or Order. DIVISION 2. § 2861. Referee's Order and Finding Presumed Correct, until ^Manifest Error Shown. § 2862. Points Not Discussed below Nevertheless Considered if Sufficiently Appearing in Record. § 2863. Remanding for Further Testimony Where Referee's Order Disallowing Claim at Close of Claimant's Evidence in Chief Reversed. § 2839. Review of Referee's Orders— Jurisdiction. — To correct the errors of referees in bankruptcy, power is vested in courts of bankruptcy, by clause 10 of § 2 of the act to "consider and confirm, modify or over- rule, or return with instructions for further proceedings records and find^ ings certified to them by referees. "^ 1. Bankr. Act, § 38. In re Home Discount Co., 17 A. B. R. 175 (D. C. Ala.). § 2840 REVIEW OF referee's ORDER. 1659 Brown v. Persons, 10 A. B. R. 422 (C. C. A. Pa.): "The jurisdiction with which a referee is invested is made expressly subject to review by the judge of a court of bankruptcy." Ellis z'. Krulewitch, 15 A. B. R. 617, 141 Fed. 954 (C. C. A.): "By § 38 * * * every act of a referee in bankruptcy is subject to review by the judge." The supreme court, in carrying out the purpose of this section, has laid down Order No. XXVII regulating the manner of procedure to obtain a review by the judge. It reads as follows : "When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee, his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon." And review may not be had unless the prescribed method is carried out.2 A party may not ignore the order of the referee ; and then, on pro- ceedings in contempt, bring forward in defense matters litigated before the referee. In re Home Discount Co., 17 A. B. R. 175 (D. C. Ala,): "He cannot ignore the order until the referee under § 41 certifies his disobedience to the judge, and then bring forward again in his defense, matter contested before the referee prior to the making of the order, provided the order itself be not void. 'The method of correcting error is by appeal, and not by disobedience.' " Division 1. Procedure to Review Referee's Rulings, § 2840. Order Must Be Made.— An order must be made.-" In re Chambers, Calder & Co., 6 A. B. R. 709, 98 Fed. 865 (Ref. R. I.) : "A petition * * * does not comply * * * where it asks for a review of the decision of the referee, instead of a review of the order of the referee." In re Reukauflf, 14 A. B. R. 344, 135 Fed. 251 (D. C. Pa.): "Certainly in the 2. In re Home Discount Co., 17 A. B. R. 175 (D. C. Ala.). Formalities. — "This court (Mass.) requires no particular formalities to be ob- served in seeking a review bv the judge of the orders or other proceedings of a referee." In re Swift, 9 A.'B. R. 237 (D. C. Mass.): If the matter in dispute i» substantially set forth that is enough. Ibid. General Subject, of Review of Referee's Orders. — Upon the general subject of reviews of referee's rulings, see In re DeGottardi, 7 A. B. R. 723, 114 Fed. 328 (D. C. Calif.). In re Taft, 13 A. B. R. 417, 133 Fed. 511 (C. C. A. Ohio); In re Russell. 5 A. B. R. 566, 105 Fed. 501 (D. C. Calif.); In re Smith. 2 A. B. R. 190, 93 Fed. 791 (D. C. Tex.); In re Schiller, 2 A. B. R. 704, 96 Fed. 400 (D. C. Va.); In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 CD. C. Wis.); Crim z: Woodford, 14 A. B. R. 302, 136 Fed. 34 (C. C. A. W. Va.). Conduct of Proceedings and Record to Give Opportunity for Fair Review. — The referee should so conduct his proceedings and make up his records that a full and fair review of his acts may be had. In re Romine, 14 A. B. R. 785, 138 Fed. 437 (D. C. W. Va.). 3. Gen. Order No. 27. 1660 REMINGTON OX BANKRUPTCY. § 2841 ordinary proceeding the referee must make some order or ruling before there is anything to certifj^" In re Smith, 2 A. B. R. 190, 93 Fed. 791 (D. C. Tex.): "H the referee pred- icated his certificate upon Rule XXVII of the Supreme Court, it does not ap- pear that in the proceeding before him anj^ order was made upon his finding; nor does the record contain a petition filed by the bankrupt, setting out any error committed by the referee." Compare, In re Kelly Dry Goods Co., 4 A. B. R. 52S, 102 Fed. 747 (D. C. Wis.) : "Rule 27 of the General Orders in Bankruptcy * * * provides for 'review by the Judge of any order made by the referee;' but I do not understand that a general review of the proceedings before the referee, or review of the rulings not directl}^ affecting an order made, is intended either by the act or rules." And request for the review of the "decision,"-^ or "opinion/'^ of the coitrt is insufficient.*' There can be no review of a question certified in advance, no review of a hypothetical question actually or likely to arise but not already arisen. In re ReukaufT Sons & Co., 14 A. B. R. 344, 135 Fed. 251 (D. C. Pa.): "The referee made no order, either directing or refusing to direct the trustee to pay over the money to the landlord, but of his own motion certified the question, whether the taxes had priority to the landlord's claim. There was no petition for review, and indeed there was nothing to which such a petition could apply. In effect, the referee is asking the court's opinion on a question which he fore- sees may arise, upon which he desires to be advised. I find nothing in the Bankrupt Act or in the general orders or forms, to sanction such a proceed- ing. * rt' ^ "Both § 39 and the order thus quoted contemplate that there shall be a con- tested matter, a finding or an order, and a party aggrieved, and I see no in- dication anywhere that the judge may be required to answer questions before the referee himself takes action." Perhaps, however, exceptional cases might arise warranting the referee in presenting a question to the judge for decision without an order.''' § 2841. Order Must Be Final, Not Interlocutory: Case Not to Be Reviewed Piecemeal. — The order should be a final order, not an inter- locutory order ; and the case may not be brought up for review piece- meal. Impliedly, In re Mullen, 4 A. B. R. 224, 101 Fed. 413 (D. C. Mass.): "I am also inclined to think it would have been more regular had the review * * * been made to' await a decision of the referee upon the facts involved. It is not usually convenient for this court, by way of review, to deal twice with the same petition * * * once upon the law and again upon the facts." 4. In re Chambers, Calder & Co., 6 A. B. R. 709, 98 Fed. 865 (Ref. R. I.). 5. Analogously (review of judge's "opinion"). In re Boston Dry Goods Co.', 11 A. B. R. 79, 125 Fed. 226 (C. C. A. Mass.). 6. See post, § 2849. 7. Apparently to sucli effect, obiter, In re Reukauff, 14 A. B. R. 344, 135 Fed. 251 (D. C. Pa.); Apparently, obiter. In re Kelly Dry Goods Co., 4 A. B. R. 258, 102 Fed. 797 (D. C. Wis.). § 2845 REVIEW OF referee's order. • 1661 The rulings of the referee made from time to time during the progress of a particular hearing may not separately be reviewed, whilst the hearing is still pending. There must be a final order ending the controversy, and then all errors can be reviewed at one time.^ Nor may there be a general review^ of the entire proceedings.^ § 2842. Exception to Be Taken to Order.— Exception- must be taken to the order of the referee complained of.^*-' § 2843. Also to Findings of Fact, Else Conclusive on Review. — If no exceptions are filed to the referee's findings of fact, the findings of fact are conclusive on review, ^^ even if the ruling or order made thereon .is duly excepted to. § 2844. Exceptions Must Be Specific, Not "Broadside."— The ex- ceptions must be specific and not broadside. ^- § 2845. But No Formal "Exceptions" Need Be "Filed."— No formal exceptions to the rulings or findings of the referee need be filed. In re Swift, 9 A. B. R. 237, 118 Fed. 348 (D. C. Mass.): "It is sufficient to say that this court has not hitherto required, and does not intend to require hereafter, any particular formalities to be observed in seeking a review by the judge of the orders or other proceedings of a referee. If the matter in dispute is substantially set out, that is enough. No formal exceptions to the referee's findings or rulings need be filed. If this practice shall seem lax to some, the answer is that it has hitherto been found convenient in this district, both for the judge and for the parties, and it has not been abused. A stricter practice has been adopted in some other districts, doubtless because it has been deemed convenient there." Special master's hearing on discharge: In re Romine, 14 A. B. R. 785, 138 Fed. 837 (D. C. W. Va., affirmed on review sub nom. Bk. v. Johnson, 16 A. B. R. 210, C. C. A. W. Va.): "When is a referee required to certify objections made to his rulings to the court for revision? Must he do so every time a question is asked which he rules is objectionable, or every time he may express an opinion dur;ng its taking, touching the evidence? Certainly not. The very reason for the establishment of the first proposition — that he is to take down testimony which he believes and rules improper — is for the very purpose of preventing constant and vexatious certificates for revision. In any matter wherein he is by the law empowered to enter orders that under the law may be- come final when he has entered such an order, a revision may be had — a re- 8. Compare, inferentially, In re Hawley, 8 A. B. R. 632, 116 Fed. 428 (D. C. Iowa); Blease v. Garlington, 92 U. S. 1. 9. In re Kelly Dry Goods Co., 4 A. B. R. 528, 102 Fed. 747 (D. C. Wis.). 10. Impliedly, Dressel v. North State Lumber Co., 9 A. B. R. 541, 119 Fed. 531 (D.'C. N. Car.); inferentially, In re O'Connor, 9 A. B. R. 18 (D. C. Ga.). 11. In re Carver & Co., 7 A. B. R. 539, 113 Fed. 138 (D. C. N. C). Analogously, In re Royal, 7 A. B. R. 636 (D. C. N. Car.): This, however, was a case where the referee sat as special master on a discharge hearing. 12. Dressel v. North State Lumt)er Co., 9 A. B. R. 541, 119 Fed. 531 (D. C. N. Car.). 1662 REMINGTON ON BANKRUPTCY. § 2848 vision of his judicial act, which, unrevoked, binds parties and becomes the law of the case." Bank z: Johnson, 16 A. B. R. 210 (C. C. A. W. Va., affirming In re Romine, 14 A. B. R. 785, 138 Fed. 437, D. C. W. Va.) : "The referee therefore was right in refusing to .stop the proceedings and certify for revision his rulings upon this testimonj'." In re Miner, 9 A. B. R. 100, 117 Fed. 953 (D. C. Ore.): "Where the specific questions as to the correctness of the referee's finding is certified for review no exception is necessary." But compare. In re Carver & Co., 7 A. B. R. 539, 113 Fed. 128 (D. C. X. C): "Where no exceptions are filed to the report of the referee, his findings of fact are conclusive on review." However, the rule dispensing with the filing of formal exceptions does not dispense with the necessit}^ of at least noting some exception to the order, in the record. § 2846. Petition for Review Must Be Filed. — Second, the exceptor must file with the referee a petition for review. ^^ In re Hawley, 8 A. B. R. 632, 116 Fed. 428 (D. C. Iowa): "It does not appear that the creditors asked for or obtained a certification of any question con- nected with this claim by the referee, nor did the creditors petition for a re- view of the ruling of the referee under the provisions of General Order 27 (89 Fed. xi). The only action taken by the creditors contesting the claim was to file in this court on June 6th, 1902, certain exceptions to the rulings of the referee. Such .action, however, does not bring before the court for review the rulings and decisions of the referee." In re Russell, 5 A. B. R. 566, 105 Fed. 501 (D. C. Calif.): "It does not appear from the certificate of the referee or from any paper returned to this court that any petition fcr the review of the order of the referee rejecting his claim has been filed by him with the referee. In the absence of such a petition, this court is not authorized to review the action of the referee." § 2847. Petition Must Set Forth Errors Complained of. — There seems to be no official form for a petition for review ; and a brief state- ment of the order entered and the errors complained of is all that is nec- essary. The petition must set forth the errors complained of.^^ In re Taft, 13 A. B. R. 419, 133 Fed. 511 (C. C. A. Ohio): "It is therefore an elementary rule of procedure that the petition for review shall set out the m.atters of law which we are asked to review." § 2848. But New Facts May Not Be Set Up, Changing Case.— But new facts may not be set up, changing the case on review ; unless per- haps on leave granted and showing made of newly-discovered evidence 13. Gen. Ord. No. 27; In re Smith, 2 A. B. R. 190, 93 Fed. 791 (D. C. Tex.). In re Schiller, 2 A. B. R. 704, 96 Fed. 400 (D. C. Va.) : Although in this case the court actually did consider the error complained of without a peti- tion. 14. In re Chambers, Calder & Co., 6 A. B. R. 709 (Ref. R. I.); In re Smith, 2 A. B. R. 190 (D. C. Tex.); In re Schiller, 2 A. B. R. 704, 96 Fed. 400 (D. C. Va.). Compare post, § 2948. § 2851 REVIEW OF referee's order. 1663 which could not by reasonable diligence have been produced at the trial; which, in effect, would not be a petition for review, but rather a motion for a rehearing before the referee. In re Mclntyre, 16 A. B. R. 85, 142 Fed. 593 (D. C. W. Va.) : "But after he had entered his final order adjudicating the matter this way, Fouse, by petition, asks a review, and for the first time charges substantially that the lessors by their agent, before his purchase of the property, represented to him that Depue had adjusted the rent and upon this representation he was induced to buy. This, if subtantiated, would make an altogether dififerent case out of the matter. * * * The petition here must be held to have been one in the nature of a bill of review. Such bills can be filed for errors in law apparent upon the face of the decree, or because of the discovery of new evidence since hearing, which could not have been discovered by the use of due diligence before such hearing. In case newly discovered evidence is set up, such a bill can only be filed by express leave of the court, and great caution is to be exercised in granting such leave. The evidence must be relevant, material, and such as wotild have pro- duced a different result had it been used at the hearing." § 2849. And Should Pray for Review of Referee's Order.— The petition should pray for review of the "order" of the referee, not of his ''decision ;"^^ nor of his "opinion. "^'^ § 2850. Petition to Be Filed with Referee. — This petition must be filed with the referee. ^^ § 2851. Time Limited for Filing Petition for Review. — Neither the statute, forms nor General Orders in Bankruptcy provide the time within which the party aggrieved by the referee's rulings must file his petition for review. ^^ Crim V. Woodford, 14 A. B. R. 302, 136 Fed. 34 (C. C. A. W. Va.): "There is nothing in the Bankrupt Act nor in the General Orders which fixes a time within which petitions for review of the referee's decisions must be filed. Sec- tion 25 requires that in the cases therein enumerated appeals to the Circuit Courts of xA.ppeal shall be taken within 10 days after the judgment appealed from has been rendered. There is no apparent reason why a longer time than this should be allowed for the filing of a petition for a review of the order of a referee, for in nearly all of the provisions of the Bankruptcy Act which re- quire notices the time limit of 10 days is adopted, and in some jurisdictions there is a rule to that efifect; but it does not appear that there is any such 15. In re Chambers, Calder & Co., 6 A. B. R. 709, 98 Fed. 865 (Ref. R. I.). 16. Analogously (review of judge's "opinion" asked). In re Boston Dry Goods Co., 11 A. B. R. 97, 125 Fed. 226 (C. C. A. Mass.). But compare inad- vertent remark, In re Taft, 13 A. B. R. 419, 133 Fed. 511 (C. C. A. Ohio). See ante, § 2840. 17. In re Russell. 5 A. B. R. 566, 105 Fed. 501 (D. C. Calif.). 18. Bacon v. Roberts, 17 A. B. R. 424 (C. C. A. N. J.); In re Grant, 16 A. B. R. 246, 143 Fed. 661 (D. C. R. I.); In re Milgraum & Ost, 13 A. B. R. 337, 133 Fed. 802 (D. C. Pa.); In re Chambers, Calder & Co., 6 A. B. R. 709, 98 Fed. 865 (Ref. R. I.); analogously. In re Worcester Co., 4 A. B. R. 501, 102 Fed. 308 (C. C. A. Mass.). 1666 REMIXGTOX OX BAXKRUPTCY. g 2855 § 2855. Not Entire Evidence but Only "Summary" to Be Certified. — The referee must not certify up the whole of the evidence, but only a "summary" of it.-'' Crim V. Wocdford, 14 A. B. R. 30G, 136 Fed. 34 (C. C. A. W. Va.): "The General Order (27) above cited, is intended, manifestly, to carry into effect these provisions, so as to avoid as far as possible the sending of the original proofs to the judge, and to substitute therefor, where the ends of justice would permit, a summary thereof. * * * It is important that this rule be enforced, for in the manifold and onerous duties devolved upon the. district judge in the adininistration of the bankrupt estates he ought not to be required to sift out the testimony in order to determine the exact question of fact which could be presented in " suminary of the evidence." In re Taft, 13 A. B. R. 419, 133 Fed. 511 (C. C. A. Ohio): "The referee certified the whole of the evidence instead of certifying a summary thereof, as he should have done under Gen. Ord. 27." It might naturally be supposed that the "summary of the evidence" does not mean that the statement of the evidence must be summary, but that it may be summary and yet be sufficient. There could be no objec- tion to a verbatim recital of all the testimony in full, if the referee's find- ings of fact accompanied it. Such recital would be a fairer statement of the evidence than the fairest "summary."' Crim V. Woodford, 14 A. B. R. 307, 136 Fed. 34 (C. C. A. W. Va.): "It may well be, in a question which involved the bona fides of the claims and the pecuniary co'i'iition of the bankrupt at the time the alleged liens were executed, that all of the testiinonj' taken was pertinent to the issue, and that no summary thereof that the referee could prepare would have been acceptable to the par- ties to the controversy. In a case of this nature every question and answer presumably has some bearing upon the point at issue, and a skilled lawyer might find it difficult to prepare a satisfactorj^ summary." Also, compare the reasoning of the court in In re Robertshaw Mfg. Co., 14 A. B. R. 342, 135 Fed. 220 (D. C. Pa.): "In fact, the judge of the court from which the appeal is taken ought not in the least interfere in the discretion allowed by thi general terms used in the acts of Congress and rules of court in designating the record to be certified in cases of appeal as his judgment i^ to be reviewed, and his opinion of the importance and relevancy of matters contained in the record might, in the estimation of counsel for one side or the other, be as faulty as it is claimed his judgment is from which an appeal is taken." This reasoning would equally as well apply to the referee's attempts to summarize the evidence. If all the evidence were thus certified up, there would not necessarily be any confusion resulting, for the referee would then also certify his findings of the facts proved thereby. Xevcrtheless, the contrary is the law and the referee must not certify up the whole of the evidence.^" 26. Bankr. Act, § .39 (a) (5); Gen. Ord. 27; Official Form Xo. 56; Cunningham v. Bank, 4 A. B. R. 192, 103 Fed. 903 (C. C. A. Ky.). 27. Compare, Cunningham v. Bank, 4 A. B. R. 192, 103 Fed. 903 (C. C. A. Ky.). § 2856 REVIEW OF referee's order. 1667 In re Kurtz, 11 A. B. R. 129, 125 Fed. 992 (D. C. Pa.): "The summary of the evidence is required in order to save the judge the labor of examining w^hat i.s often a mass of. testimony on many different questions, and of extracting so much as may be relevant to the point immediately in hand." This certificate, setting forth a summary of the evidence, perhaps is analogous to an old fashioned bill of exceptions. Litigants are so accus- tomed in these days of shorthand reporters to consider the only permissible record of facts to be a verbatim stenographic report, that they lose sight of the real law, that a verbatim report is not recjuisite. It would seem, • ijpon reason, though the decisions do not state it as the law, that this cer- tificate of facts really corresponds to a bill of exceptions,. and might thus properly be a verbatim report of all the testimony or might not be such, so. long as it shows all the evidence that is pertinent.^'^ Compare, In re Cohen, 11 A. B. R. 443, 131 Fed. 391 (D. C. Mass.): "Cred- itors prayed a recommital of the certificate in order that the referee might certify additicral facts and evidence. If the appellants desire that the judge shall weigh the evidence and determine questions of fact, they should ordinarily procure that the evidence before the referee is taken down stenographically and by him certified to the judge. If this be deemed inadvisable on account ■of expense or for other reasons, the parties should specifically point out to the referee that testimony which they wish him to summarize in his report, and they should ask him for specific findings of fact on which they may rely at the hearing before the judge." § 2856. Remedies for Incomplete Record. — The parties may stip- ulate as to what is a complete record.-'^ Also compare, analogously, In re Robertshaw Mfg. Co., 14 A. B. R. 341, 135 Fed. 220 (D. C, Pa.): "The practice here has long prevailed of counsel agree- ing, by stipulation filed, as to what the record shall contain, and in seven years there has only been found one case where there was a disagreement, but when that occurs and it is necessary to specify the record, the best practice which has prevailed in the local and in other districts, is to require the appellant to file a praecipe with the clerk, pointing out specifically what records in his Judgment are necessary to be certified on the appeal." The judge may order the record completed. Obiter, Crim v. Woodford, 14 A. B. R. 307, 136 Fed. 34 (C. C. A. W. Va.) : "If the judge desired a summary of the evidence, it was clearly within his province to drect the referee to prepare and submit it, and either party might have moved for an order to that effect; but the record does not show that any such motion was made. It may well be, in a question which involved the bona fides of the claims and the pecuniarj^ condition of the bankrupt at the time the alleged liens were executed, that all of the testimony taken was pertinent to the issue, and that no summary thereof that the referee could prepare would 28. Compare, Cunningham v. Bank, 4 A. B. R. 192, 103 Fed. 932 (C. C. A. Ky.). 29. Bankr. Act, § 29 (5) and (9). Compare, analogouslv, Cunningham v. Bank, 4 A. B. R. 192, 103 Fed. 932 (C. C. A. Ky.). As to proper practice when the parties disagree, analogously, see In re Robert- shaw Mfg. Co., 14 A. B. R. 341, 135 Fed. 220 (D. C. Pa.). 1668 REMINGTON ON BANKRUPTCY. ^ 2857 have been acceptable to the parties to the controversy. In a case of this nature every question and answer presumably has some bearing upon the point at issue, and a skilled lawyer might find it difficult to prepare a satisfactory summary. However that may be, it seems to us that it would be manifestly unjust to de- prive petitioners of the opportunity to be heard upon questions of substantial right because an officer of the court omitted to summarize the evidence in the belief that all of the testimony would the better present the questions at issue than any part of it which he might undertake to summarize." If the verbatim report of the evidence is sent up instead of the proper mere summary of it. nevertheless the reviewing court will not deprive the petitioners on review of a hearing.^" If the original tes- timony is sent up along with the certificate-, the reviewing court will, per- haps, not be bound by the findings. Inferentially, Mason z: Wolkowich, 17 A. B. R. 719 (C. C. A. Mass.): "Of course, as the proofs are before us, we are bound only so far as our judgment approves them, by either the certificate of the referee or the opinion of the learned judge of the District Court, which, as is well settled, is in no sense a formal finding of the facts." § 2857. Referee Also to Certify Findings of Fact. — The referee should also certify his findings as to the facts.-^^ In re Shea, 11 A. B. R. 209, 126 Fed. 153 (C. C. A. Mass.): "There is no specific finding of facts by either the referee or the District Court, so that questions of la-v are not made for us in the manner in which we have said in our opinion. * * * (In re Boston Dry Goods Co.) the same should be pre- sented." In re Yost, 9 A. B. R. 154, 117 Fed. 792 (D. C. Pa.): "This record is in rather an unsatisfactory shape; the referee has found no facts, and I have therefore to pass upon the evidence which has been returned by him, without any knowl- edge of the witnesses by which to judge of their credibilitj-." Sometimes, however, the record may be helped out by presumptions. Instance, In re Shea, 11 A. B. R. 209, 126 Fed. 153 (C. C. A. Mass.): "Never- theless, we are able to make an adjudication to a limited extent, and probably so far as to cover the only substantial questions that could in any way have been brought before us. "First of all, the omission from the record of any specific finding by the 30. Crim z'. Woodford, 14 A. B. R. 302, 136 Fed. 34 (C. C. A. W. Va.), quoted supra, § 2855. 31. In re Taft, 13 A. B. R. 419, 133 Fed. 511 (C. C. A. Ohio); inferentially, Burleigh v. Foreman, 12 A. B. R. 88, 125 Fed. 217 (C. C. A. Mass.); inferentially, Dressell v. North State Lumber Co., 9 A. B. R. 542, 119 Fed. 531 (D. C. N. Car.); Gen. Ord. No. 27. Bankr. Act, § 39 (a) (5) : "Referee shall make up records embodying the evidence, or the substance thereof as agreed upon by the parties in all contested matters arising before them, whenever requested to do so by either of the par- ties thereto, together with their findings therein, and transmit them to the judge." DeVries z: Shanahan. 10 A. B. R. 518, 122 Fed. 629 (C. C. A. Md.); analo- gously, In re Boston Dry Goods Co., 11 A. B. R. 97, 125 Fed. 226 (C. C. A. Mass.). § 2860 REVIEW OF referee's order. 1669 district court that the value of the equity in question exceeded $500 is not material, because, on the ordinary rule, in the absence of anything- to the con- trary, the court must be assumed to have acted rightly, and therefore it must be further assumed that it found that the value of the equity was triple the price which the trustee was to receive therefor." § 2858. Precise Question for Review to Be Stated Clearly *nd Distinctly. — The referee shall also distinctly and clearly state and certify the precise cjuestion for review.^- § 2859. Petition and Certificate Transmitted by Referee to Dis- trict Clerk. — Fourth, after the referee has certified to the facts, he transmits the petition for review, the certificate of facts and necessary files to the district clerk, for the use of the judge. And the order made by the referee, then, is not executed, if stayed, until the judge has acted on the petition for review and has certified to the referee his affirmance, reversal or modification of the order.^^ § 2860. Stay of Execution of Order. — If the trustee files the petition for review, no stay bond is required in order to stay the execution of the referee's order pending the review. But if other parties file the petition, it has been held that a stay bond may be required. In re Home Discount Co., 17 A. B. R. 189 (D. C. Ala.): "The insistence that the court has no right to make any rule for securing the costs on the peti- tions for review of the referee's order, and that it is powerless to exact bond or other indemnity for the protection of the opposite party during the stay of the order, pending the review, is wholly unfounded. In the absence of statu- tory provisions or rules of court, a petition to review or revise an order of the referee does not in and of itself operate a supersedeas of the order, and whether or not it shall have that effect, rests in the discretion of the reviewing or re- viewed authority in the particular case. It has few of the properties of an ap- peal. Primarily, at least, it does not contemplate a trial de novo. It removes nothing out of the District Court into any other court. The petition, though filed with the referee, is really addressed to the District Court, and asks action by that court on a record which remains in that court. It is no more than a petition for a rehearing, or a motion for a new trial, in the court of original jurisdiction, while the judgment or decree remains in the power of the court during the term, and does not stay execution, unless in pursuance of rules or by special order. Aside from the inherent power of courts to provide rules for administering of justice therein, the court has abundant statutory authority to make all reasonable regulations, not inconsistent with those prescribed by law and the rules made by the Supreme Court, which it deems needful to prevent abuses or frivolous petitions for review. One of the rules in force, when the 32. In re Milgraum & Ost, 13 A. B. R. 337, 133 Fed. 802 (D. C. Pa.). 33. Subsequent Orders of Referee as to Same Subject Not. Reviewable Except by Additional Petitions for Review. — Review of subsequent orders of the referee on the same matter may be had only on separate petition. Ellis v. Krulewitcn, 15 A. B. R. 617, 141 Fed. 954 (C. C. A.). 1670 REMINGTON ON BANKRUPTCY, § 2861 referee's order was made, provided 'that on hearings before referees in bank- ruptcy, and. on nisi proceedings when the rule is made final, the filing of a petition for review shall not act as a supersedeas, unless the unsuccessful party- shall file bond, with surety, in such amount as may be required by the referee or judge, conditioned to pay any damages growing out of said appeal, in event the same is not successfully prosecuted. Failure to comply with the order of the refere'e, unless petition for review and bond be filed and allowed by the referee, may be treated as a contempt of court.' The only regulation in the statute regarding the revision of orders of referees is that they are 'subject always to review by the judge.' No. 27 of the General Orders in Bankruptcy prescribes only the form in which the matter for review shall be presented to the judge, and does not deal with any question of costs or the efifect of the filing of the petition as a supersedeas. Nearly every order the District Court makes is subject to revision on appeal or writ of error." Division 2. Hearing upon Review of Referee's Order. § 2861. Referee's Order and Finding Presumed Correct, until Manifest Error Shown.— Upon review, the referee's order is to have tlie presumption in its favor; also his findings of fact. It is for the petitioner on review to prove there is error. The review- ing court will hesitate especially to overturn the referee's findings of fact; for the referee is in the better position to judge of the testimony, since he heard it given, and noted the demeanor of the witnesses, and was in a position where he could feel the weight of the spoken words. Only man- ifest error will justify reversal on the facts.'"-^ In re Stout, 6 A. B. R. 505, 109 Fed. 794 (D. C. Mo.): "It is the recognized rule of the Federal courts — and especially in matters of bankruptcy — that on review of the decision of a referee, based upon his conclusions on questions of 34. In re West, 8 A. B. R. 564, 116 Fed. 767 (D. C. Ga.) ; In re Shriver, 10 A. B. R. 746, 125 Fed. 511 (D. C. Pa.); In re O'Connor, 9 A. B. R. 18, 114 Fed. 777 (D. C. Ga.); Smith v. Evans, 17 A. B. R. 433, 148 Fed. 89 (C. C. A. Ills.); In re Covington, 6 A. B. R. 373, 110 Fed. 143 (D. C. N. Car.), although this case has to do with his findings as special master, on discharge. In re Waxelbaum, 4 A B R 120, 101 Fed. 228 (D. C. Ga.) ; inferentially. In re Abbey Press, 13 A. B. R. 11, 134 Fed. 51 (C. C. A. N. Y.) ; In re Royce Dry Goods Co., 13 A. B. R. 257, 133 Fed. 100 (D. C. Mo.); In re Tudor, 2 A. B. R. 808, 96 Fed. 942 (D. C. Colo.); In re Rider, 3 A. B. R. 192, 96 Fed. 811 (D. C. N. Y.). In re Rome Planing Mills, 3 A. B. R. 766, 99 Fed. 937 (D. C. N. Y.), a case of the review of a referee's findings as to insolvency, upon reference to him, as special master, of a petition for adjudication. In re Romine, 14 A. B. R. 788, 138 Fed. 837 (D. C. W. Va.. affirmed sub nom. Bk. V. Johnson, 16 A. B. R. 206), although this case has to do with his findings as special master on discharge. In re Stephens, 8 A. B. R. 53, 114 Fed. 192 (D. C. Ga.); In re Miner, 9 A. B. R. 100, 117 Fed. 953 (D. C. Ore.); In re Baerncopf, 9 A. B. R. 133, 117 Fed. 975 (D. C. Pa.), although the case was that of a special master's findings on dis- charge.' Love V. Export Storage Co., 16 A. B. R. 171, 198, 143 Fed. 1 (C. C. A. Te'nn.); In re Harr, 16 A. B. R. 213 (D. C. Mo.); analogously, (Master on discharge). In re Lafleche, 6 A. B. R. 483, 109 Fed. 307 (D. C. Vt.) ; analogouslv, (master on discharge). In re Forth, 18 A. B. R. 186, 151 Fed. 951 (D. C. N. Y.); analo- gously, (master on discharge). In re Harr, 16 A. B. R. 213 (D. C. Mo.). § 2861 REVIEW OF referee's ORDER. 1671 fact, the court will not reverse his findings unless the same -are so manifestly erroneous as to invoke the sense of justice of the court." In re Noyes Bros., 11 A. B. R. 506, 127 Fed. 286 (C. C. A. Mass.): "Such question of fact having been passed upon by the referee and the District Court, it cannot be disturbed here upon appeal unless the proposition is clearly and unmistakably established that the finding of the tribunals below was erroneous. The statute authorizing appeals like the one here expressly provides for 'ap- peals as in equity cases.' That kind of an appeal being authorized, the proceed- ing thereunder would conform itself, as far as may be consistent with justice,. to the ordinary course of equity procedure; and it is a familiar rule in equity that an appellate court will not interfere with findings of fact under such cir- cumstances as appear here, unless the findings are clearly erroneous, or, as it is sometimes expressed, manifestly against the weight of evidence. Some cases go so far as to bold that a chancellor's findings will not be reversed where the appellate court cannot see that the decree is right, and where the evidence raises, some doubt as to its correctness. But it is not necessary to go to that extreme in this case, fcr, while the evidence presented by the record is meager, there is nothing in the case to lead us to doubt the correctness of the finding below." Couts V. Townsend, 11 A. B. R. 126, 126 Fed. 249 (D. C. Ky.) : "The referee had before him the only witness who testified, and certainly the conclusion reached could fairly be drawn from the testimony. While it might possibly admit of doubt, still the finding by the referee is not, to say the least, so flag- rantly against the evidence as to require it to be set aside. It is not the habit of the court, under these circumstances, to overrule its referees on mere find- ings of facts, though the court should not hesitate to do so if the findings were flagrantly against the weight of the testimony." Southern Pine Co. v. Savannah Trust Co., 15 A. B. R. 621, 141 Fed. 802 (C. C. A. Ga.) : "The established rule in such cases, from which we see no reason for departing in the present instance, seems to be that the findings of fact, dependent upon conflicting testimony, by a judge, master, or a referee, who sees and hears the witnesses testify, have every reasonable presumption in their favor, and should not be set aside or modified, unless it clearlj^ appears that there was error or mistake on his part." In re Simon & Sternberg, 18 A. B. R. 205 (D. C. Ga.) : "The finding of the referee is entitled to the same consideration as that of a district judge upon conflicting evidence, as in an adiniralty case, or in any other case where the judges pass upon the facts, if that finding is under review by an appellate tribunal. The Inca (C. C. A.), 148 Fed. 367 (opinion of Meek, District Judge, sitting with Pardee and Shelby, Circuit Judges). This court is an appellate tribunal from the rulings of the referee, but when there is evidence to support those rulings — however ingenious the suggestions to the contrary — the court will not be insistent to scan those rulings so as to find some point on which there might be a difiference as to their correctness. A fine argument can be based upon almost any accumulation of facts, both pro and con, but, when the court has intrusted this particular duty to the referee, and it has been apparently well performed, the ruling should not be disturbed." In re William_s, 9 A. B. R. 731, 120 Fed. 542 (D. C. Ga.): "The report of the referee on questions of fact is presumed to be correct until the contrary is shown." Inferentially, In re Kolin, 13 A. B. R. 533, 134 Fed. 557 (C. C. A. Ills.): "The master had the witnesses before him, saw their manner of testifying, and is better able to solve the riddle than we could upon this record." In re Lawrence, 13 A. B. R. 798 (C. C. A. N. Y.) : "This court should not 1672 REMINGTON ON BANKRUPTCY. § 2862 ■disturb these findings, unless they are manifestly unsupported bj- the evi- 'dence." Compare, Buckingham v. Estes, 12 A. B. R. 182, 128 Fed. 584 (C. C. A. Tenn.) : "The master and the court below concurred in the finding of facts, and when that is the case this court will not reverse or modify unless a very plain mistake is definitely pointed out." In re Wood, 2 A. B. R. 695, 95 Fed. 946 (D. C. N. Car.): "But when there is manifest error, as in this case, the judge will look into the record, and correct the error." In re Shults, 14 A. B. R. 378, 135 Fed. 623 (D. C. X. Y.) : "The cases hold that a referee must exercise sound judicial discretion in disposing uf questions of fact, and his conclusions ordinarily will not be disturbed unless manifestly against the weight of evidence." In re Cole, 14 A. B. R. 389 (D. C. Me., affirmed in 144 Fed. 392, 16 A. B. R. 302): "The referee had the witnesses before him. He conducted the ex- amination of the bankrupt herself, saw her appearance, and was the proper tribunal to dec'de the question of fact submitted to him. After full examina- tion of the testimony, I cannot say that I should have come to a different conclusion. In any event, the conclusion of a competent referee, who has seen the witnesses, is entitled to great weight." But see In re Grant Bros., 9 A. B. R. 93, 118 Fed. 73 (D. C. X. Y.): "The referee has found in favor of Grant's contention, and ordinarily his finding would be accepted, as he had the opportunity of hearing Grant and other witnesses testily, though not Stearns, whose testimony was taken by deposi- tion in Colorado, but my special attention to the matter is asked by reason of certain testimony in the case which it is urged must have been overlooked by the referee or was ignored by him because inconsistent with Grant's state- ments on the witness stand. The contention is, that from Grant's own letters, from the books, kept by him and from his own admissions when examined, it conclusively appears that his testimony with respect to the agreement is un- v/orthy of belief. * * * "The decision of the referee is reversed and the matter is remitted to him for further proceedings in conformity herewith." In re Marsh, 8 A. B. R. 588, 116 Fed. 396 (D. C. Conn.): "In the deci- sion of questions of fact I must depend upon the conclusions arrived at by the referee. He has every opportunity for arriving at the truth." But no precise quantitative weight will be assigned to the referee's find- ings of fact;35 and where there is no distinct finding of fact upon the particular question involved, the reviewing court will not attach the weight that is usually accorded to the findings of courts of first instance.-'''^ § 2862. Points Not Discussed Below Nevertheless Considered if Sufficiently Appearing in Record. — It has been held, contrary to the usual rules in appellate courts, that points not adverted to in the hearing before the referee, may nevertheless be considered on review if appearing sufficiently in the record.^'^ 35. In re Swift, 9 A. B. R. 237, 118 Fed. 343 (D. C. Mass.). 36. Burleigh v. Foreman, 12 A. B. R. 91 (C. C. A. Mass.). 37. Compare, contra rule as to review of orders of the district court, by the circuit court of appeals, post, § 3001. § 2863 REVIEW OF referee's ORDER. 1673 In re Wilde's Sons, 16 A. B. R. 38G, 14-1 Fed. 972 (C. C. A. N. Y.): "We are clearly of the opinion that when a District Court is reviewing an order or report of a referee in bankruptcy, under the very broad provisions of § 2 (10) it may properly consider any point presented by the record then before it whether such point was or was not discussed before or by the referee." § 2863. Remanding for Further Testimony Where Referee's Or- der Disallowing Claim at Close of Claimant's Evidence in Chief Reversed. — On reversal of the referee's order disallowjng a claim, on motion, at the close of the claimant's case in chief, the reviewing court should not allow the claim, but should remand the case with instructions to give the trustee a chance to introduce evidence in defense of his ob- jection.^s 38. In re Livingston, 16 A. B. R. 385, 144 Fed. 971 (C. C. A. N. Y.). CHAPTER LVIII. Appeals x\nd Error Proceedings from District Courts to the Circuit Courts of Appeals. Synopsis of Chapter. § 2864. Fundamental Distinction between Steps "in Bankruptcy Proceedings" Proper and Incidental "Controversies." § 2865. Thus, Adjudication of Bankruptcy, or Its Refusal, a Question "in Bankruptcy Proceedings" Proper. § 2866. Likewise, Allowance or Refusal of Exemptions. § 2867. And Allowance or Rejection of Claim to Share in Dividends or in Marshaling of Firm and Individual Estates. § 2868. And Allowance or Disallowance of Costs and Expenses of Admin- istration — Such as Attorneys' Fees. § 2869. Even Validity and Priority of Lien May Be, if Incident to Allowance or Rejection of Creditor's Claim for Share in Dividends. § 2870. But if Sole Controversy About Lien or Priority, None About Debt, Not a Question "in Bankruptcy Proceedings" Proper. § 2871. And Claim Controverted Must Be Creditor's Claim, Else Not. § 2872. Seizures on Warrants to Marshal, Proceedings in Bankruptcy. § 2873. But Trustee's Petitions for Summary Surrender of Property, Not Bankruptcy Proceedings Proper. § 2874. Neither Are Trustee's Plenary Suits in U. S. District Court to Recover Property Fraudulently or Preferentially Transferred. § 287.i. Nor Are Intervening Petitions Claiming Property in Custody of Bankruptcy Court, or Liens Thereon. § 2876. But Orders of Sale and Controversies Incident Thereto, Proceedings in Bankruptcy Proper and Not "Controversies." § 2877. Unless Real Controversy. Not about Order of Sale nor Claim, but about Lien or Title Itself. § 2878. Thus, Trustee's Petition to Marshal Liens on Property in His Custody and to Enjoin Interference Not "Proceedings in Bankruptcy" but "Controversy." § 2879. Marshaling of Firm and Individual Assets and Debts in Partnership Bankruptcies. § 2880. When to Appeal, When to Petition for Revision. § 2881. Distinction between Writ of Error and Appeal, Preserved. § 2882. Distinctions between § 24 (b) and §§ 24 (a) and 25 (a). § 2883. Resort to Appeal or Petition for Review on Error, Optional in Proper Case. § 2884. Thus, in "Controversies." § 2885. If Facts Undisputed, Petition to Revise Only Remedy. § 2886. If Facts Disputed, May Be Reviewed Only if Appeal Available. § 2887. Holdings That Appeal under § 25 (a) Exclusive of Error. § 2888. Holdings that Optional Even in Three Cases Where Appeal Provided under § 25 (a). DIVISION 1. subdivision "a." § 2889. Appeals in Bankruptcy Proceedings Proper. § 2890. Order Appealed from Must Be Final Order. REVIEW IN CIRCUIT COURT OF APPEALS. 1675 § 2891. Right of Appeal Cannot Be Enlarged nor Restricted by Court. § 2892. Such Appeals Permissible Only as to Adjudication, Discharge and Al- lowance of Claims. § 2893. First: Appeals from Adjudications or Refusals to Adjudge Bankrupt. ■ § 2894. But No Appeal if Jury Trial Had. § 2895. Second: Appeals from Judgments Granting or Denying Discharge. § 2896. Includes Confirming or Refusing to Confirm Composition. § 2897. Also Dismissals of Discharge for Want of Prosecution. § 2898. Third: Appeals from Allowance or Rejection of Claims. § 2899. Amount in Dispute, Not Amount of Entire Claim, Governs. § 2900. Debt Must Have Been Owed by Bankrupt, Mere Lien on Property Insufficient. § 2901. Where Lien or Priority Incident to Disputed Debt, Its Validity, Prior- ity, etc., Appealable. § 2902. But Where Debt Undisputed Mere Fact That Disputed Lien or Priority Incident to Debt Insufficient. § 2903. Not to Split Case and Dismiss Portion Affecting Lien or Priority. § 2904. "Claim" Refers Only to Money Demand. § 2905. And to "Claims" Presented for Proof against Bankrupt Estate. § 2906. And Not to "Claims" for Exempt Property. § 2907. Nor, Probably, to "Claims" for Costs and Expenses of Administration. § 2908. Nor to "Claims" of Strangers to Property in Trustee's Possession, nor of Trustee to Property in Strangers' Hands. § 2909. Disallowance of Claim because Preference Not Surrendered, Appealable. § 2910. Rejection or Allowance of Set-Off Appealable. § 2911. No Appeal in Bankruptcy Proceedings Proper Except in Three Cases of § 25 (a) Mentioned. SUBDIVISION "b." § 2912. Appeals in "Controversies Arising in Bankruptcy Proceedings." § 2913. Appeal a Matter of Right, Not to Be Enlarged nor Restricted by Court. § 2914. Under § 24 (a) Both Law and Fact Rev'ewed. , § 2915. Litigant Has Option, in Proper Case, "Either to Appeal or Petition for Revision. § 2916. May Treat "Appeals" as Petitions for Revision. § 2917. But Not Where Questions All of Fact. § 2918. Simultaneous Appeal and Petition for Review. § 2919. Single Assignment of Errors Sufficient Where Appeal and Error Simul- . taneously Prosecuted. § 2920. Appeals in "Controversies" Only Allowable in Cases witl^in Act of Con- gress Establishing Circuit Courts of Appeal. § 2921. Decree in Equity Not Reviewable by Writ of Error, nor Judgment at Law by Appeal. § 2922. Must Be "Final" Order. § 2923. Validity, Priority, etc.. of Liens Appealable as "Controversies." § 2924. Summary Order oh Third Party to Surrender Assets, Appealable as "Controversy." § 2925. Likewise, Summary Order on Trustee or Receiver to Surrender Assets to Third Party. § 2926. Plenary Suits in U. S. District Courts by Adverse Claimants in Posses- sion to Enjoin Trustees, Appealable as "Controversies." § 2927. Also, Plenary Suits by Trustees in U. S. District Court to Recover Property Preferentially or Fraudulently Transferred. 1676 REMINGTON ON BANKRUPTCY. DIVISION 2. SUP.DIVISION "a." § 2928. Error Proceedings Sole Method of Review in Bankruptcy Proceedings Proper Except in Three Cases of 25 (a). § 2929. Limited to Matters of Law under § 24 (b). § 2930. Thus, Exemptions Reviewable Only by Petition to Review. § 2931. Likewise, Reopening or Refusal to Reopen Closed Estates. § 2932. Administrative Orders Reviewable under § 24 (b). § 2933. Attorneys' Fees and Other Expenses of Administration. § 2934. Likewise, Exemption Matters. § 2935. Orders on Nonbankrupt Partners to File Schedules or Surrender Firm Assets. § 2936. Likewise Distribution between Firm and Individual Creditors. § 2937. Also, Orders of Sale and Controversies Incident Thereto, Reviewable under § 24 (b). § 2938. And Summary Orders on Bankrupts and Others to Surrender Assets or Execute Instruments. § 2939. Allowances to Widow and Children on Death of Bankrupt Pending Ad- judication. SUBDIVISION "b." § 2940. Error Proceedings in "Controversies" and in Independent Plenary Suits. § 2941. Whether § 24 Applies Only to Orders in Proceedings in Bankruptcy Themselves, Not to Orders in Independent Plenary Suits. § 2942. Section 24 (b) Authorizes Review Only of Law, Not Facts. § 2943. Intervening Petitions Claiming Property or Funds in Custody of Bank- ruptcy Court or Claiming Liens or Other Interests Therein Review- able by Petition to Revise. DIVISION 3. § 2944. Brief Resume. SUBDIVISION "a." § 2945. Procedure on Error to Be by Writ of Error or Petition to Revise, and Notice. § 2946. If by Petition to Revise, Filing of Petition and Notice, Sole Require- ments. § 2947. Petition for Review to Be Filed. § 2948. Petition to Set Forth Order Complained of. § 2449. How Far to Set Forth Issue on Which Erroneous Order Made. § 2950. Record to Set Forth Order Complained of. § 2951. And to Present, Clearly, Issues of Law. § 2952. Also, to Show Insufficiency of Grounds for Order. § 2953. Whether Testimony and Other Evidence to Appear. § 2954. Not by "Bill of Exceptions." § 2955. Findings of Fact or Equivalent, Requisite. § 2956. Mere "Opinion" of District Court Insufficient, unless Made Part of Record. § 2957. But May Be Looked to. § 2958. Due Notice to Be Given. REVIEW IN CIRCUIT COURT OF APPEALS. 1677 SUBDIVISION "b." § 2959. Procedure on Appeal Follows Equity Appeal Procedure. § 2960. xA-pplication for Leave, Allowance, Citation and Notice. § 2961. Assignment of Errors to Be Filed. § 2962. Complete Record to Be Made. § 2963. Need Certify Only So Much as Sufificient to Exhibit Errors. § 2964. But Discretion of Parties in Making Up Record Not to Be Interfered with. § 2965. Parties May Stipulate as to What Necessary. § 2966. Must Be Stipulated or Certified That Complete Record of All Necessary. § 2967. Record Imports Verity, May Not Be Contradicted, Explained or Ex- tended by Evidence Dehors. § 2968. Remedies for Incomplete Transcript on Appeal. § 2969. Whether Findings of Fact Requisite on Appeal. § 2970. Record to Show Assignment of Errors, Prayer for Reversal and Cita- tion. § 2971. Prayer for Reversal and Citation Waivable, but Assignment of Errors Not. § 2972. Also, Time of Perfection of Appellate Proceedings. § 2973. Citation May Be Granted after Expiration of Appeal Time. § 2974. Record Sufificient if Contains All on Which District Court Acted if Not All on Which Referee Acted. § 2975. Record to Be Printed. § 2976. Bond Not Requisite, on Petition for Review, Except. § 2977. But Requisite on Appeal. § 2978. And Approval of Security, Perfects and "Allows" Appeal. § 2979. Perfecting Appeal Transfers Jurisdiction and No Further Steps Possible. § 2980. Trustee Need Not Give Bond. SUBDIVISION "d." § 2981. Time for Appeal in Bankruptcy Proceedings Proper. § 2982. May Be Heard by Appellate Court in Term or Vacation. § 2983. Record to Show Time of Appeal. § 2984. Date of Entering Order or Judgment, Not of Actual Rendition, Fixes Date. § 2985. Appeal Not "Taken" until "Allowance" Made, and Bond and Citation Filed. § 2986. But Delay in Bond and Citation Not Fatal, if Appeal "Allowed" in Time. § 2987. Application for Extension Too Late after Expiration of Time. § 2988. Time for Appeal Begins from Date of Entry of Order Overruling Mo- tion for Rehearing. § 2989. Motion for Rehearing Not Filed in Time, Insufficient. § 2990. Reviving Lost Right of Appeal by ]^Iotion Pretended to Be for Re- consideration of Merits. § 2991. Alias Order of Adjudication Ineffective to Revive Lost Right of Ap- peal. § 2992. Time for Appeal in "Controversies," Limited by Act Creating Circuit Court of Appeals. § 2993. No Express Time for Petition for Review. § 2994. But Dismissed for Laches. 1678 REMINGTON ON BANKRUPTCY. § 2864 § 2995. But Not Dismissed unless Delay Unreasonable. § 2996. Delay Excusable on Good Cause Shown. § 2997. By Analogy Should Be Filed within Six Months' Time. § 2998. At Least in All Cases of "Controversies." § 2999. Time for Review in Bankruptcy Proceedings Proper, Ten Days by Analogy. § 3000. Rehearing Where Order Based on Authority Since Overruled. SUBDIVISION "t." § 3001. Objections Not Raised Below, Not Heard Above. § 3002. Record to Show Same Issues Presented to Court Below. § 3003. Even Jurisdictional Questions, unless Nonwaivable, Not Considered for First Time on Review. § 3004. But Will Be if Not Waivable, Though Not Considered Below nor As- signed as Error. § 3005. Plain Error Noticed, Though Not Raised by Parties Themselves. § 3006. Issues Directly Raised by Pleadings Considered, Though First Made Point of on Appeal. § 3007. Findings of Fact, or Equivalent, Essential to Show Issues Same. § 3008. "Opinion" of Court Insufficient, Though May Be "Looked to." § 3009. Judgment on Facts Not Disturbed Except for Manifest Error. § 3010. Trivialities Not Considered — Substantial Interest to Be Shown. § 3011. Clerical Mistakes Disregarded. SUBDIVISION "F." § 3012. Obedience to Mandate Enforced by Mandamus. § 2864. Fundamental Distinction between Steps "in Bankruptcy- Proceedings" Proper and Incidental "Controversies."— The distinc- tion between questions arising in the regular course of bankruptcy pro- ceedings and incidental controversies at law or in equity arising out of bankruptcy proceedings, lies at the base of the subject of appeals and re- views in bankruptcy matters under the present law.^ The subject of the review of referees' orders by the district judge just completed is simple. But the subject of reviews and appeals in bankruptcy matters from the district court and from the circuit courts of appeal to the higher courts is confusing.^ There -is a fundamental distinction taken between questions arising in bankruptcy proceedings that, if kept in mind, v/ill tend to clear up many difficulties. There arc, as already seen, various steps in the progress of bankruptcy proceedings that are required to be taken in order to carry out the peculiar 1. Bankr. Act, §§ 23, 24, 25. The distinction here involved has no essential relation to the custody of the "res," as was the case when the matters of "Conflict of Jurisdiction." "Jurisdic- tion over Adverse Claimants," "Summary Orders on Bankrupts, etc.," "Marshal- ing of Liens," etc., were under consideration. The distinction here turns not on the possession of the property but upon the nature of the controversy. 2. U. S. Circuit Court No Jurisdiction on Appeal nor Error to Review Or- ders of Bankruptcy Court.— The circuit courts of the United States are without appellate jurisdiction in bankruptcy matters. Hatch z' Curtin 16 A B R 629 146 Fed. 200 (U. S. C. C. Mass.). ' • • • . § 2864 REVIEW IN CIRCUIT COURT OF APPEALS. 1679 objects of bankruptcy law; among which might be mentioned the adju- dication of the bankrupt, the allowance of claims for the purpose of shar- ing in dividends, the allowance and payment of expenses and costs of ad- ministration, the sale of assets, the declaration of dividends, the discharge of the bankrupt," the setting apart of exempt property, etc.. etc. These steps are peculiar to bankruptcy law and are necessarily taken in the leglilar course of almost every bankruptcy case, and issues arising therein are differentiated from other issues that may come up in the course of the litigation.^ There are numberless other questions likely to arise in the course of ad- ministering bankrupt estates that do not involve the peculiar features of bankruptcy law, nor directly aid in carrying out its special objects, but are incidental to the administration of almost any estate in the hands of any court. Such are controversies arising between the trustee and strangers who claim he has possession of property belonging to them, or in which they have an interest, or on which they have a lien ; and between the trus- tee and other persons, who, he claims, have possession of property belong- mg to him, etc., etc. Such controversies have to be decided, and the bank- ruptcy court is, in many instances, as previously noted, the proper forum for their decision ; but they are rather controversies arising out of the set- tlement of bankruptcy estates, than controversies peculiar to bankruptcy proceedings themselves. They are not steps in the regular course of bank- ruptcy proceedings. This, at any rate, is the distinction evidently drawn in practice under the present law. Now, questions peculiar to bankruptcy proceedings proper can only be brought to higher courts for review or on appeal under the terms and lim- itations and in the cases prescribed by the bankruptcy law itself, in §§ 24 (b) and 25 (a). But these other controversies, these that are common and general incidents to the administration of estates everywhere, that is to say, "controversies arising in the course of the administration of bank- rupt estates," are unafifected by the provisions of the bankruptcy law it- self regulating appeals, and are regulated wholly by the usual practice in federal courts in similar cases, as adopted by §§ 24 (a) and (b) of the act. This distinction lies at the base of the subject of reviews and appeals in bankruptcy matters under the present law."^ 3. Edelstein v. U. S., 17 A. B. R. 654, 149 Fed. 636 (C. C. A. Minn.). ■ 4. Note to Steele v. Buel, 5 A. B. R. 165, 104 Fed. 968 (C. C. A. Iowa); note to Bear v. Chase, 3 A. B. R. 746, 99 Fed. 920 (C. C. A. S. Car.). Also, see Hewitt v. Berlin Machine Co., 11 A. B. R. 709, 194 U. S. 296; Elliott V. Toeppner, 9 A. B. R. 50, 187 U. S. 327, 333, 334. Compare, Spencer v. Duplan Silk Co., 11 A. B. R. 563, 19r U. S. 526; Hutchinson v. Otis, 10 A. B. R. 275, 123 Fed. 14 (C. C. A. Mass., affirmed in 10 A. B. R. 138, 190 U. S. 552); Dmican V. Landis, 5 A. B. R. 649, 106 Fed. 839 (C. C. A. Pa.); In re Cohimbia Real E— tate Co., 7 A. B. R. 441, 112 Fed. 645 (C. C. A. Ind.) ; In re Rusch, 8 A. B. R. 520, 116 Fed. 270 (C. C. A. Wis.); Doroshow v. Ott, 14 A. B. R. 37, 134 Fed. 740 (C. C. A. N. J.); Mason r. Wolkowich, 17 A. B. R. 715, 150 Fed. 699 (C. C. A. Mass.); Odell z: Boyden, 17 A. B. R. 759 (C. C. A. Ohio); In re Levitt, 11 A. B. R. 411 (D. C. Wis.). 1680 REMINGTON ON BANKRUPTCY. ^ 2864 Bank v. Chicago Title & Trust Co., 14 A. B. R. 102, 198 U. S. 280 (reversing 11 A. B. R. 79) : "The distinction between steps in bankruptcy proceedings proper and controversies arising out of the settlement of the estates of bank- rupts is recognized in §§ 23, 24 and 25 of the present Act, and the provisions as to revision in matter of law and appeals were framed and must be construed in view of that distinction." First Nat'l Bk. of Denver v. Klug, 8 A. B. R. 13, 186 U. S. 202: "The words 'bankruptcy proceedings' are used in this section (§ 25) in contradistinction to controversies arising out of the settlement of the estates of bankrupts, as they are also so used in §§ 23 and 24. * * * "Apart from § 25, the Circuit Courts of Appeal have jurisdiction on petition to superintend and revise any matter of law in bankruptcy proceedings and also jurisdiction of controversies over which they would have appellate juris- diction in other cases. The decisions of those courts might be reviewed here on certiorari, or in certain cases by appeal, under § 6 of the act of 1891." Holden v. Stratton, 10 A. B. R. 789, 191 U. S. 155: "The distinction between steps in bankruptcy proceedings proper and controversies arising out of the settlement of the estates of bankrupts is recognized in §§ 23, 24 and 25 of the present act, and the provisions as to revision in matters of law and appeals were framed and must be construed in view of that distinction." Compare (although the distinction being made in the decision is between pro- ceedings and controversies together concerning property in the custody of the bankruptcy court, as distinct from independent suits concerning property not in its custody, rather than between proceedings themselves and controversies), Bardes v. Bank, 4 A. B. R. 170, 178 U. S. 524: "In Lathrop v. Drake (1875), 91 U. S. 516, the jurisdiction conferred on the District Courts and the Circuit Courts of the United States by the Bankrupt Act of 1867 was defined by this court speaking by Mr. Justice Bradley, as consisting of 'two distinct classes: first, jurisdiction, as a court of bankruptcy, over the proceedings in bankruptcy, initiated by- the petition, and ending in the distribution of assets amongst the creditors, and the discharge or refusal of a discharge of the bankrupt; secondly, jurisdiction, as an ordinary court, of suits at law or in equity, brought by or against the assignee in reference to alleged property of the bankrupt, or to claims alleged to be due from or to him,' and the jurisdiction of the District, and Circuit Courts over suits to recover assets of the bankrupt from a strangtr to the proceedings in bankruptcy, brought by the assignee in a district other than that in which the decree in bankruptcy had been made, was upheld, not under the provisions of section 1 of that act, giving to the District Court orig- inal jurisdiction of proceedings in bankruptcy, and of § 2, giving to the Circuit Court supervisory jurisdiction over such proceedings, but wholly under the distinct clause of § 2, which gave to those two courts concurrent jurisdiction of all suits, at law or in equity, brought 'by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such as- signee, touching any property or rights of property of said bankrupt transferable to or vested in such assignee.' " In re Mueller, Trustee, 14 A. B. R. 256, 135 Fed. 711 (C. C A. Ky.): "By 'controversies arising in bankruptcy proceedings' is meant those independent of plenary suits which concern the bankrupt's estate and arise by intervention or otherwise between the trustee representing the bankrupt's estate and claimants asserting some right or interest adverse to the bankrupt or his general cred- itors." Hinds V. Moore, 14 A. B. R. 1, 134 Fed. 221 (C. C. A. Tenn.) : "That this is § 2864 Ri;vii;w IN CIRCUIT court of appeai^s. 1681 not an appeal in one of the special cases mentioned in § 25a must be conceded. The petition of the trustee, and the answer of the defendant thereto raised a distinct and separable controversy over certain property adversely held and claimed by the defendant thereto. It may therefore be well treated as one of those 'controversies arising in bankruptcy proceedings,' over which this court may exercise general appellate jurisdiction, as in other cases under § 24a." In re Friend, 13 A. B. R. 597, 134 Fed. 778 (C. C. A. Ills.): "That § 23 estab- lishes a clear distinction between 'proceedings in bankruptcy' and 'controversies at law and in equity arising in the course of bankruptcy proceedings;' the former, broadly -speaking, covering questions between the alleged bankrupt and his creditors, as such, commencing with the petition for adjudication, ending with the discharge, and including matters of administration generally, such as appointments of receivers and trustees, sales, exemptions, allowances, and the like, to be disposed of summarily, all of which naturally occur in the settlement of the estate; and the latter, broadly speaking, involving questions between the trustee, representing the bankrupt and his creditors, on the one side, and ad- verse claimants, on the other, concerning' property in the possession of the trustee or of claimants, to be litigated in appropriate plenary suits, and not affecting directly the administrative orders and judgments, but only the ques- tion of the extent of the estate. "That the same distinction is maintained in § 24a, on the one hand, and §§ 24b and 25a on the other. "That § 24a, gives, if the grant be necessary in view of § 6 of the Act of March 3, 1891, c. 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549], this court ap- pellate jurisdiction of controversies at law and in equity between trustees and adverse claimants, to be invoked by writ of error or by appeal, as may be ap- propriate." In re McMahon, 17 A. B. R. 537, 147 Fed. 685 (C. C. A. Ohio): "The dis- tinction between cases which are 'proceedings in bankruptcy' under § 24b, and those which are 'controversies arising in bankruptcy proceedings' and appeal- able under the general appellate jurisdiction of the court as confirmed by § 24a, is not always clear nor easily stated. Between Hewitt v. Berlin Machine Works and First National Bank of Chicago v. Chicago Title and Trust Co., there is this distinction: In the first case the stranger voluntarily came in and set up a claim against property in possession of the bankrupt's trustee. Very clearly that made one of those independent controversies which may arise in a bankruptcy pro- ceeding or in any other where the res is in custodia legis, and was appealable under § 24a. In the latter case the same kind of issue arose, but it arose upon the application of the trustee for an ofder of sale and as incident to that the determination of a claim against the property held by one not a party to the proceeding. The latter is plainly held to -be a 'proceeding in bankruptcy' not appealable, but reviewable in matters of law only upon an appeal to the super- visory powers of the Court of Appeals, under § 24b. The distinction we recog- nize and apply in this case by holding that the proper and only mode of correcting error in the case was through the supervisory powers of this court, and that the petitioner resorted to the right remedy, though he had no wrong to redress." Liddon & Bro. v. Smith, 14 A. B. R. 206, 135 Fed. 43 (C. C A, Fla.) : "The words 'bankruptcy proceedings' are used in §§ 23, 24 and 25 * * * in contra- distinction to controversies arising out of the settlement of the estates of bank- rupts. * * * The app,ellants asserted title to the proceeds of the mortgaged property in the possession of the trustee by the petition they filed, and this 2 Rem B— 31 1682 REMINGTON ON BANKRUPTCY. § 2866 raised a distinct and separable suit, and the controversy thereon may be treated as one of those controversies arising in bankruptcy proceedings over which the Circuit Court of Appeals can, under § 24a, exercise appellate jurisdiction as in other cases. * * * The motion to dismiss the appeal must therefore be denied, but in considering the appeal we are limited to the controversy over the right of the appellants to the proceeds of the sale of the mortgaged property, which controversy embraces, of course, the correct ascertainment of the balance due the appellant on their notes and mortgage, and the amount of the cost and charges, which have a superior rank to their claim against the proceeds of the mortgaged property." In re Jacobs, 3 A. B. R. 671, 99 Fed. 539 (C. C. A. Mo.): "* * * bank- ruptcy proceedings strictly so-called, viz., those which are initiated by the peti- tion and end in the distribution of assets among creditors, and the discharge or refusal of the discharge of the bankrupt." Similar rnlings prevailed under the Bankruptcy Act of 1867.'^ Bank v. Title & Trust Co., 14 A. 'B. R. 102, 198 U. S. 280: "This distinction existed under the prior bankruptcy law, and the then decisions in respect of a proceeding in bankruptcy and an independent suit are applicable. It was set- tled that the bankruptcy court was without jurisdiction to determine adverse claims to property, not in the possession of the assignee in bankruptcy, by sum- mary proceedings, whether absolute title or only a lien was asserted."' § 2865. Thus, Adjudication of Bankruptcy, or Its Refusal, a Ques- tion "In Bankruptcy Proceedings" Proper. — Thus, the adjudication of bankruptcy of a debtor, or the refusal to adjudge him bankrupt, is a ques- tion arising in the regular course of bankruptcy proceedings, and appeal from the adjudication or refusal to adjudicate, must be taken in accord- ance with the provisions of the act, or not at all. It was so held in the case of First Nat'l Bk. v. Klug, above quoted, where the district court had refused to adjudge bankrupt a debtor, because he was a farmer, appeal being sought directlv to the supreme court under § 25 (d).' Also, Lockman v. Lang, 11 A. B. R. 597, 128 Fed. 279 (C. C. A. Colo.): "A proceeding in bankruptcy (here the adjudication of a debtor to be bankrupt) is a proceeding in equity and orders and decrees therein cannot be reviewed by writs of error." § 2866. Likewise, Allowance or Refusal of Exemptions. — The al- lowance or refusal of exemptions is a proceeding in bankruptcy.'^ 6. In re Jacobs, 3 A. B. R. 671, 99 Fed. 539 (C. C. A. Mo.); [1867] Smith v. Mason, 14 Wall. 419; [1867] Lathrop Assignee v. Drake, 91 U. S. 516, quoted in quotation from Bardes v. Hawarden Bank, 4 A. B. R. 163, 178 U. S. 524; [1867] Marshall :-. Knox, 16 Wall. 419; [1867] In re Bonesteel. 7 Blatchf. 175; [1867] Knight V. Cheney, 14 Fed. Cases 760; [1867] In re Ballou, 4 Ben. 135; [1867] In re Marter, 16 Fed. Cases 857. 7. iMrst Xat'l I'.k. of Denver 7'. Klug, 8 A. B. R. 12, 186 U. S. 202. 8. Ingram ?■. Wilson, 11 A. 15. R. 192, 125 Fed. 913 ( C. C. A. Iowa). Widows' and Children's Allowances on Death of Bankrupt Pending Proceed- ings. — P.ut it is (loul)ttul whether .'illovvances to widows and children, under § 8 on the death of tin- bankrujit pending the proceedings are proceedings in bank- ruptcy. In re McKenzie, 15 A. B. R. 680 (C. C. A. Ark.). § 2869 REVIEW IN CIRCUIT COURT OE APPEALS. 1683 § 2867. And Allowance or Rejection of Claim to Share in Divi- dends, or in Marshaling of Firm and Individual Estates. — The al- lowance or rejection of a claim for a share in the dividends, is a question arising in the regular course of bankruptcy proceedings proper.^ Thus, where the question arises in the marshaling of firm and individual estates in partnership bankruptcies whether a firm debt shall also share in the individual estate of one partner who had gone surety for the debt, it is a question concerning the "allowance or rejection" of a "claim" — pecul- iarly one of the steps taken in the regular course of bankruptcy proceed- ings proper, and is not to be considered as a "controversy" over a right of priority.^*^ , § 2868. And Allowance or Disallowance of Costs and Expenses of Administration — Such as Attorneys' Fees. — And orders of allowance or disallowance of costs -and expenses of administration — such as trustee's attorney's fees — are proceedings in bankruptcy. ^^ § 2869. Even Validity and Priority of Lien May Be, if Incident to Allowance or Rejection of Creditor's Claim for Share in Dividends. — And thus, even the validity, extent and priority of a hen on the bank- rupt's property rnay be a question arising in the course of bankruptcy pro- ceedings proper, and hence determinable upon appeal, if the lien is incident to a debt owing by the bankrupt which is in controversy. ^- Hutchinson v. Otis, 10 A. B. R. 1,35, 190 U. S. 552: "A petition was filed * * * asserting a lien on the proceeds of a seat in the New York Stock Ex- change, which formerly belonged to the bankrupt. * * * The argument chiefly relied upon by the appellant is that this is an intervening petition to reach a fund in court, and is not a proceeding in bankruptcy. Under the cir- cumstances of this case it seems to us that the petition was incident to the claim (Cunningham v. German Ins. Bank, 4 Am. B. R. 192, 101 Fed. 977), and was a bankruptcy proceeding under § 2, cl. 7, within the meaning of § 25, regu- lating appeals in bankruptcy proceedings, and that the decree upon it was not 9. Holden- v. Stratton, 10 A. B. R. 789, 191 U. S. 155. [1867] Compare, Wis- wall V. Campbell, 93 U. S. 347; [1867] compare, Leggett v. Allen, 110 U. S. 741. 10. In re Mueller, Trustee, 14 A. B. R. 259, 135 Fed. 711 (C. C. A. Ky.). 11. See post, § 2933; Davidson & Co. v. Friedman, 15 A. B. R. 490, 140 Fed. 853 (C. C. A. Ohio). Assignees' Lien Not "Bankruptcy Proceedings," but "Controversy." — The al- lowance of compensation and expenses to an assignee, upon the turning over of the assigned property to the bankruptcy trustee, is not a "proceedings in bankruptcy" but rather a "controversy arising in bankruptcy." In re Levitt, 11 A. B. R. 411 (D. C. Wis.). But compare practice in Randolph i'. Scruggs, 10 A. B. R. 1, 190 U. S. 533, which came up on appeal as a "claim" in "excess of $500." 12. Liddon & Bro. v. Smith, 14 A. B. R. 206, 135 Fed. 43 (C. C. A. Fla.), quoted at § 2864. Apparent instance. In re Antigo Screen Door Co., 10 A. B. R. 359, 123 Fed. 249 (C. C. A. Wis.): Wherein the facts would permit of the holding therein made, but the reasoning of the court is out of harmony with the great weight of authority. See analogously, post, § 2901. 1684 REMINGTON ON BANKRUPTCY. ^ 2871 'a judgment allowing or rejecting a debt or claim of five hundred dollars or over,' within § 25a, 3, and was not an independent ground of appeal." Cunningham v. Bank, 4 A. B. R. 192, 101 Fed. 977 (C. C. A. Ky.): "This motion is based upon a suggestion that an appeal will not lie to this court from a judgment denying or allowing a lien or preference out of the bankrupt's estate, but that such a judgment can only be questioned by petition invoking the power conferred upon the court by the 24th section of the Bankruptcy Act of 1898. The appellate jurisdiction of this court in bankruptcy proceedings is defined by the 25th section of the Bankruptcy Act. * * * "Learned counsel say that a review of a judgment allowing or disallowing the lien of a debt or claim can only be had under the superintending and reviewing powers of this court granted by the 24th section, and that an appeal will not lie from such a judgment. If thi^ be true, such a judgment can be reviewed only upon matters of law, and when the lien allowed or denied depends upon a con- troverted question of fact and law, no review of the judgment is possible, inas- much as the remedy afforded by the 24th section is limited to matters of law. "To this construction of the act we cannot assent. "The appeal from a judgment allowing or rejecting a debt or claim includes as an incident any question as to the rank or lien of such debt or claim in the distribution of the bankrupt's estate. If the debt or claim including its lien or preference depend upon controverted questions of fact and law, the right of appeal is granted by the 25th section, above set out." § 2870. But if Sole Controversy Is About Lien or Priority, None About Debt, Not a Question "in Bankruptcy Proceedings" Proper. — Bttt if the sole controversy is abotit the lien and not about the debt, it is not a proceedings in bankruptcy proper, but is a controversy arising out of a bankruptcy proceedings.^^ § 2871. And Claim Controverted Must Be Creditor's Claim, Else Not. — And the validity, extent or priority of a lien on the bankrupt's prop- erty, where the lienholder is not also a creditor of the bankrupt, are not questions arising in bankruptcy proceedings proper, but are "controversies" arising out of bankruptcy proceedings.^^ 13. Hutchinson v. Otis, 10 A. B. R. 138, 190 U. S. 552 (affirming S. C, 10 A. B. R. 275, 123 Fed. 14), quoted ante, § 2869, and post, § 2902. In re Rouse, Hazard & Co., 1 A. B. R. 239, 91 Fed. 96 (C. C. A.. 111.), quoted post, § 2902. But compare apparently contra. Bank z'. Title and Trust Co., 14 A. B. R. 102, 198 U. S. 280, quoted ante, § 2864. But compare, also apparently contra, O'Dell v. Boj^den, 17 A. B. R. 759 (C. C. A. Ohio): "In the case at bar the proceeding was instituted by the trustee's petition to bring in O'Dell to adjudicate his claim or lien against property al- leged to be in custodia legis. That was the ground of the jurisdiction in the case of First Nat'l Bank of Chicago z'. Chicago Title and Trust Co., and In re McMahon. In both cases the facts made a 'proceeding in bankruptcy' review- able only in matter of law under 24b. These cases govern this. So. too, the case is distinguishable in this respect from Loeser, Trustee, v. Savings Deposit Bank & Trust Co., 17 A. B. R. 628, decided with the present case. In the case last mentioned, the res was voluntarily surrendered to the bankrupt trustee by a mortgagee in possession who came in and prosecuted his claim to a lien under a mortgage covering the property thus brought in by him. The appeal must be dismissed as no appeal will lie under § 7 of the Court of Appeals Act of 1891 from an injunction awarded in course of such a proceeding." See post, § 2902 and § 2936. Compare instances under § 2875, post. 14. See analogously, post, § 2900. § 2877 REVIEW IN CIRCUIT COURT .OP APPEALS. 1685 Burleigh v. Foreman, 11 A. B. R. 76, 125 Fed. 217 (C. C. A. Mass.): "When, however, the equity courts assume a jurisdiction of that character, it is a funda- mental rule, so far as the Federal tribunals are concerned, that, whenever any- party intervening raises a distinct and separable issue or controversy involving substantial pecuniary rights, an appeal lies. Pursuing that analogy, an appeal should be allowed in the present case. A construction of the Bankruptcy Act of 1898 which would lead to a different conclusion would be monstrous. It would give a single judge absolute power over questions of fact concerning estates in bankruptcy, no matter how immense, while no such power exists in any other branch of the Federal judicial jurisdiction. Such a result should not be accepted unless the statute furnishes some express provision in that direc- tion, clear and positive. None such exists. "The relief given by the Bankruptcy Act of 1898 to litigants dissatisfied with the conclusions of the District Court are distinctly threefold: First, there is an appeal provided in § 25, with reference to the specific matters named therein. This was needed if an appeal was to be allowed, as the matters to which it relates could arise in bankruptcy only. Second, § 24b gives the several Circuit Courts of Appeals jurisdiction 'to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdic- tion.' Third, § 24a invests them 'with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.' * * * "The subject matter of this appeal is not in any way peculiar to bankruptcy. Questions of marshaling assets between a copartnership and individual partners arise at common law, but oftener at equity. In the present case the controversy is governed entirely by the principles of the common law and the rules of equity, and it is, therefore, for the reasons we have given, of an essentially dif- ferent class from the matters as to which § 25a allows appeals. It is involved in the present 'bankruptcy proceedings' simply because it -arose in them, within the meaning of the citation already made from § 24a of the statute of 1898. The question involved is not, in any proper sense of the word, a mere proceeding in bankruptcy; and there is no reason, either in the theory of the law or in the express language of the statute, why relief should be limited to that kind which is afiforded only with reference to such proceedings." § 2872. Seizures on Warrants to Marshal, Proceedings in Bank- ruptcy. — And questions arising out of the seizure of property by a re- ceiver or marshal, being under the special provisions of the Bankruptcy Act,- are proceedings in bankruptcy proper, and not mere "controversies. "^^ § 2873. But Trustee's Petitions for Summary Surrender of Prop- erty,' Not Bankruptcy Proceedings Proper. — And a petition by -the trustee for an order upon a third party, or upon the bankrupt, to surrender property in his possession belonging to the estate, is a "controversy aris- ing" out of a bankruptcy proceedings, and is not a part of the bankruptcy proceedings proper ;^^ even where the property has previously been vol- untarily surrendered by the bankruptcy receiver through the third party's 15. In re Moody, 12 A. B. R. 718, 131 Fed. 525 (D. C. Iowa). 16. See post, § 2938; im^pliedly, Schweer v. Brown, 12 A. B. R. 673, 195 U. S. 171; Hinds v. Moore, 14 A. B. R. 1, 134 Fed. 221 (C. C. A. Tenn.). 1686 REMINGTON ON BANKRUPTCY. § 2874 persuasion ;i" although it has been held, that a summary order on a non- bankrupt member of a bankrupt firm to surrender a policy of insurance, is a step in bankruptcy proceedings proper. ^^ § 2874. Neither Are Trustee's Plenary Suits in U. S. District Court to Recover Property Fraudulently or Preferentially Trans- ferred. — Likewise, a suit in equity brought by a trustee in bankruptcy in the U. S. District Court, under § 67 (e), § 70 (e) or § 60 (b) as amended in 1903, (or "by consent") to recover property adversely held, but al- leged by the trustee to belong to the bankrupt's estate, and to have been fraudulently or preferentially transferred or otherwise recoverable by the trustee, is an independent suit, incapable of being characterized as a pro- ceeding in bankruptcy within the meaning of § 24 (b), but is a "con- troversy arising" in a bankruptcy proceeding.^^ In re Jacob^, 3 A. B. R. 675, 99 Fed. 539 (C. C. A. Mo.): "In view of these adjudications upon the Bankrupt Act of 1867, we feel constrained' to hold that it is only some action taken or order made in the bankruptcy proceeding itself which can be reviewed by an original petition addressed to this court, under subdivision 'b' of § 24 of the Bankrupt Act, and that the power thereby con- ferred 'to superintend and revise' the action of the District Court does not ex- tend to suits brought in that court by the trustee in bankruptcy against third parties, to collect the assets of the estate, or to suits brought by third parties against the trustee, whether such suits are rightfully or wrongfully brought in that court, as to which point we express no opinion at this time. Such suits as those last referred to, whether at law or in equity, are not proceedings in bank- ruptcy, or 'controversies arising in bankruptcy proceedings,' within the meaning and intent of the law authorizing petitions for review, but they are suits which must be reviewed in the ordinary way, by appeal or writ of error, when they have reached a final determination in the court of first instance. We can dis- cover nothing in the language or policy of the recent Bankrupt Act which would seem to require the various Circuit Courts of Appeals to review every inter- locutory order made or proceeding taken, in an ordinary action at law or in equity, in a suit between a trustee in bankruptcy and a third party, which hap- pens to be brought in the District Court, simply because the trustee's title to the 17. Hinds v. Moore, 14 A. B. R. 1, 134 Fed. 221 (C. C. A. Tenn.). 18. In re Mertens, 15 A. B. R. 701, 142 Fed. 445 (C. C. A. N. Y.) ; Fisher v. Cushman, 4 A. B. R. 646, 103 Fed. 860 (C. C. A. Mass.). 19. See post, § 2927. Doroshow v. Ott, 14 A. B. R. 34, 134 Fed. 740 (C. C. A. N. J.); Delta Nat'l Bk. ?/. Easterbrook, 13 A. B. R. 338, 133 Fed. 521 {C. C. A. TexO, which was a suit at law to recover property preferentially transferred. McCarty v. Coffin, 18 A. B. R. 148 (C. C. A. Tex.). Dolle V. Cassell, 14 A. B. R. 52, 135 Fed. 52 (reversed, on other grounds, sub nom. York Mfg. Co. v. Cassell), wherein a vendor under a^ conditional sale of chattels sought to recover the articles under an unrecorded agreement for the retention of title until payment of the purchase price. In re First Nat'l Bk. of Canton, 14 A. B. R. 180, 135 Fed. 62 (C. C. A. Ohio), in which a creditor of the bankrupt sought to enforce a mortgage lien upon a stock of merchandise belonging to the bankrupt, which stock had come to the possession of the bankrupt's trustee. Compare, StelJing v. Jones Lumber Co., 8 A. B. R. 521, 116 Fed. 261 (C. C. A. Wis.). Also compare, Walter Scott v. Wilson, 8 A. B. R. 349, 115 Fed 284 (C. C. A. Ills.). § 2875 REVIEW IN CIRCUIT COURT OP APPEALS. 1687 property claimed, or his liability to be sued, is founded on the Bankrupt Act. Nor do we believe that such a construction of the act was within the contempla- tion of Congress." McNulty V. Feingold, 12 A. B. R. 339, 129 Fed. 1001 (D. C. Pa.): "The par- ties here have been adjudged bankrupts, a trustee appointed, and suit is insti- tuted by him against third parties for the value of property fraudulently conveyed to them by the bankrupt. It is therefore a controversy at law or in equity, within the provision of § 23, and not a proceeding in bankruptcy, wherein summary proceeding can be had." Questions arising out of the seizure by a receiver or marshal of property, under the special provisions of the bankruptcy act, are pro- ceedings in bankruptcy and not mere "controversies. "^o § 2875. Nor Are Intervening- Petitions Claiming Property in Cus- tody of Bankruptcy Court or Liens Thereon. — Intervening petitions of third parties claiming property or interests in property in the custody of the bankruptcy court are not "bankruptcy proceedings" proper, but are "controversies arising in bankruptcy."-^ Hewitt V. Berlin Machine Co., 11 A. B. R. 711, 194 U. S. 296 (discussed in In re McMahon, 17 A. B. R. 536) : "And as the Berlin Machine Works asserted title to the property in the possession of the trustee by an intervention raising- a distinct and separable issue, the controversy may be treated as one of those 'controversies arising in bankruptcy proceedings' over which the Circuit Court of Appeals could, under § 24a, exercise appellate jurisdiction as in other cases. Section 25a relates to appeals from judgments in certain enumerated steps in* bankruptcy proceedings, in respect of which special provision therefor was required (Holden v. Stratton, 191 U. S. 115, 10 Am. B. R. 786), while § 24a relates to controversies arising in bankruptcy proceedings in the exercise by the bankruptcy courts of the jurisdiction vested in them at law and in equity by § 2, to settle the estates of bankrupts, and to determine controversies in relation- thereto. Hutchinson z'. Otis, 190 U. S. 552, 10 Am. B. R. 135; Burleigh v. Fore- man, 125 Fed. 217. "The appeal to this court then followed, under § 6 of the Act of March 3,. 1897." Dodge V. Norlin, 13 A. B. R. 176, 133 Fed. 363 (C. C. A. Colo.): "The claim of the appellant * * * ^^^ brought to the attention of the court of bank- ruptcy by a verified statement of the mortgagee which set forth his mortgage, the claim it secured and the specific property upon which he claimed a lien under 20. In re Moody, 12 A. B. R. 718, 131 Fed. 525 (D. C. Iowa). See ante, § 2872. 21. Liddon & Bro. v. Smith, 14 A. B. R. 204 (C. C. A. Fla.), quoted ante, ^ 2864; In re Holmes, 15 A. B. R. 689 (C. C. A. Colo.); Hutchinson r. LeRoy, 8- A "B R. 20 (C. C. A. Mass.): Intervenine petition following trust funds. Ap- parently, Smith V. Evans, 17 A. B. R. 433 (C. C. A. Ills.). But compare. In re Antigo Screen Door Co., 10 A. B. R. 359, 123 Fed. 249 (C. C. A. Wis.): This case is defensible only on the theory that the validity of the lien therein adjudicated was an incident to the determination of the validity of a debt and hence was appealable. The opinion, however, does not rest the case on this basis. ^ ^ ^, • n Also, apparently contra, O'Dell v. Boyden, 17 A. B. R. 759 (C. C. A. Ohio), quoted ante, § 2870, note. 1688 REMINGTON ON BANKRUPTCY. § 2876 it. The issue it presented was whether or not the mortgage, which was valid between the parties, was voidable by the trustee. That issue was separate and distinct from the general subject matter of the proceedings in bankruptcy, and it presented a controversy of which the Circuit Court of Appeals would have had jurisdiction if it had arisen in any other case in a Federal court. The conclusion is -that the Circuit Court of Appeals have jurisdiction to review the final decisions by the courts of bankruptcy of controversies arising between the trustees in bankruptcy and third parties over the title to, or over the liens upon the alleged property of the bankrupt or its proceeds under § 24a; that this jurisdiction is not excluded or revoked by the grant of appellate jurisdic- tion over the three classes of cases specified in § 25 (a), but the effect of that section is to limit the time within which appeals may be taken in the cases there treated, and to increase to some extent the appellate jurisdiction of the Courts of Appeals; that the general appellate jurisdiction vested by § 24a is not impaired or afifected by the grant of the power of revision and supervision in matter of law contained in § 24b; and that the motion to dismiss this appeal must be de- nied." And compare, apparently, but not really, contra, In re Drayton, 13 A. B. R. 602 (D. C. Wis.) : "* * * settlement of title to or claims against specific prop- erty in the hands of the trustee, as purported assets of the estate, is one of the 'proceedings in bankruptcy' mentioned in § 23 of the Act as there distinguished from separate 'controversies at law and in equity' between 'trustees, as such, and adverse claimants,' concerning the property acquired or claimed by the trustees. The property or proceeds in question in the present case is in the hands of the trustee, in custodia legis, and the Bankruptcy Court is neces- sarily vested with both power and duty to determine all rights therein, upon proper notice, as 'controversies in relation thereto,' vide, § 2, subd. 7, of the 'Act; no inconsistent provision appearing elsewhere." Likewise independent plenary suits in the nature of equitable replevin instituted by adverse claimants to recover property from the custody of the bankruptcy court are not "proceedings in bankruptcy" proper but are "controversies arising in bankruptcy."-^ Also, independent plenary suits brought in the U. S. District Court by adverse claimants in possession to enjoin trustees or receivers, are "con- troversies" and not "bankruptcy proceedings" proper.^^ § 2876. But Orders of Sale and Controversies Incident Thereto, Proceedings in Bankruptcy Proper and Not "Controversies." — But orders of sale and controversies incident thereto are proceedings in bank- ruptcy proper, and not "controversies arising in bankruptcy proceedings;" and are therefore not appealable (because not within § 25a), but re- viewable only under 24 (b).^^ « 22. Walter Scott z'. Wilson, 8 A. B. R. 349, 115 Fed. 284 (C. C A. Ills.) 23. Warehousing Co. v. Hand, 16 A. B. R. 56 (C. C A Wis ) See oost §S 2926, 2937 and 2943. ' v- f , sa 24. Bk. V. Chicago Title & Trust Co.. 14 A. B. R. 102, 198 U S 280- O'Dell V. Boyden, 17 A. B. R. 759 (C. C. A. Ohio), quoted ante, § 2870, note ' Obiter In re McMahon, 17 A. B. R. 537, 147 Fed. 685 (C. C. A. Ohio); obiter. Mason V. Wolkowich, 17 A. B. R. 717, ]50 Fed. 699 (C. C A Mass) § 2880 REVIEW IN CIRCUIT COURT OF APPEALS, 1689 § 2877. Unless Real Controversy Not about Order of Sale nor Claim but about Lien or Title Itself. — But here again, if the real con- troversy is not about the order of sale or about the debt but rather about other matters connected therewith, such as the extent or validity of a lien or the right of property itself, it is a "controversy" and not a bank- ruptcy proceeding proper, and is appealable under § 24 (a),^'^ under the doctrine of § 2870, ante. § 2878. Thus, Trustee's Petition to Marshal Liens on Property in His Custody and to Enjoin Interference Not "Proceedings in Bankruptcy," but "Controversy." — Thus, a petition by the trustee to marshal liens upon property in his custody which is about to be sold, as well as to enjoin outside interference therewith, is not a "proceedings in bankruptcy," but is a "controversy" arising in bankruptcy.^*^ § 2879. Marshaling of Firm and Individual Assets and Debts in Partnership Bankruptcies. — It appears to be the holding that the mar- shaling of firm and individual assets in partnership bankruptcies is a "con- troversy" and not a step in bankruptcy proceedings proper,-" while the right of a creditor to share in the firm assets or in those of a partner, is a question in "bankruptcy proceedings," being in fact concerning the "allowance" or "rejection" of a "claim. "^s Thus, if the controversy is whether a claim is allowable against the firm alone or also against a partner's individual estate, where the partner had gone surety for the iirm, the real controversy is not concerning priority, etc., but is concern- ing the "allowance or rejection" of a claim, peculiarly a step in bank- ruptcy proceedings proper.-^ Similarly, a summary order on a nonbankrupt member of a bankrupt partnership to surrender a policy of insurance, has been held to be a step in bankruptcy proceedings proper. ^^ § 2880. When to Appeal, When to Petition for Revision. — Resort to appeal or to petition for review on error may be optional in a proper case. Appeal alone will permit of the review of both the facts and the law, but a petition for review or writ of error brings up only errors of law, as shown by the record. If it is desired to review the facts, or if the record shows the facts to be undecided, appeal alone will lie ; on the other hand, if the record shows the facts to be undisputed, appeal will not lie, but only 25. Mason v. Wolkowich, 17 A. B. R. 717, 150 Fed. 699 (C. C. A. Mass.). 26. Compare, apparently to this effect (though actual custody denied), Stell- ing V. Jones Lumber Co., 8 A. B. R. 5;21, 116 Fed. 261 (C. C. A. Wis.). 27. Burleigh v. Foreman, 11 A. B. R. 74, 125 Fed. 317 (C. C. A. Mass.). 28. In re Mueller, Tr., 14 A. B. R. 256, 135 Fed. 711 (C. C. A. Ky.). 29. In re Mueller, Tr., 14 A. B. R. 256, 135 Fed. 711 (C. C. A. Ky.). 30. In re Mertens, 15 A. B. R. 701, 142 Fed. 445 (C. C. A. N. Y.); Fisher v. Cushman, 4 A. B. R. 646, 103 Fed. 860 (C. C. A. Mass.). 1690 REMINGTON ON BANKRUPTCY. § 2881 petition for review will be proper. If no review of the facts is desired, ?.nd the record shows the facts have been decided, writ of error or petition for review is proper. § 2881. Distinction between Writ of Error and Appeal, Pre- served. — The distinction between the writ of error, which brings up matter of law only, and appeal, which, unless expressly restricted, brings up both law and fact, is preserved in bankruptcy.^^ Elliott V. Toeppner, 9 A. B. R. 50, 187 U. S. 327: "The distinction between a writ of error which brings up matter of law only, and an appeal, which, unless expressly restricted, brings up both law and fact, has always been observed by this court, and been recognized by the legislation of Congress from the foundation of the government." Duncan v. Landis, 5 A. B. R. 649, 106 Fed. 839 (C. C. A. Pa.): '"Thcvlanguage of the section conferring upon the Circuit Courts of Appeal 'appellate jurisdic- tion of controversies arising in bankruptcy proceedings from the courts of bank- ruptcy over which they have appellate jurisdiction in other cases,' is broad and applicable to all 'controversies arising in bankruptcy proceedings,' etc. If there could have been anj^ doubt in construing § 6 of the Judiciary Act of 1891, above quoted, that 'Final decisions in the District Court' included final decisions in such a court when acting as a court of bankruptc}\ it has been re- moved by § 24 of the Bankrupt Act, as above quoted. For this purpose, among others, this provision seems to have been inserted. At all events, there can be no doubt now, in view of this provision, that inasmuch as the Circuit Courts of Appeal have appellate jurisdiction over District Courts in other cases, so, also, they have the same jurisdiction over those courts when acting as courts of bankruptcy. That a jury trial has been ordered under the provisions of § 19 of the Bankrupt Act does not remove the controversy from this appellate jurisdiction. Section 24 does not state, nor was it necessary to state, how the appellate jurisdiction provided for should be invoked. The practic-e of the courts, but especially the act of Congress establishing the Court of Appeals, already referred to, had designated 'writs of error' and 'appeals,' as those terms are used and understood in our jurisprudence, as the appropriate methods for invoking the appellate jurisdiction. The form, scope, and peculiar functions of these two several methods of exercising appellate jurisdiction are well under- 31. Bank v. Chicago Title & Trust Co., 14 A. B. R. 102, 198 U. S. 280 (re- versing 11 A. B. R. 79); Holden v. Stratton, 10 A. B. R. 786, 191 U. S. 115; Mueller v. Nugent, 184 U. S. 1, 7 A. B. R. 224; In re Union Trust Co. (In re New Eng. Piano Co.), 9 A. B. R. 767, 122 Fed. 937 (C. C. A. Mass.); Cunning- ham V. Bank, 4 A. B. R. 192, 103 Fed. 932 (C. C. A. Ky.); In re Mueller, Tr., 14 A. B. R. 256, 135 Fed. 711 (C. C. A. Ky.); Bardes v. Hawarden Bank. 4 A. B. R. 163, 178 U. S. 524; inferentially. In re Rosser, 4 A. B. R. 153, 101 Fed. 562 (C. C. A. Mo.); Printing Co. v. Brew. Co., 4 A. B. R. 183, 101 Fed. 699 (C. C. A. Ky.); In re Abraham, 2 A. B. R. 266, 96 Fed. 767 (D. C. Ala., reversed, on other grounds, sub nom. Bryan v. Bernheimer) ; In re Purvine, 2 A. B. R. 787. 96 Fed. !^~ i^- ^J^- Tex.); impliedly. Dodge v. Norlin, 13 A. B. R. 181,-133 Fed. 363 (C. C. A. Colo.). Compare note to In. re Good, 3 A. B. R. 605^ 99 Fed. 389 (C. C. A. Mo.). But compare, as to case where no right to jury exists on question of adjudication of bankruptcy. Simonson v. Smsheimer, 3 A. B. R. 824, 100 Fed 426 (C C A. Ky ) Compare, also, In re Jacobs, 3 A. B. R. 675, 99 Fed. 539 (C C A Mo ) 8 2882 REVIEW IN CIRCUIT COURT OF APPEALS. 1691 stood, and their peculiar and separate functions clearly established by the decisions and practice of the courts." Loan & Trust Co. v. Graham, 14 A. B. R. 316, 135 Fed. 717 (C. C. A. W. Va.) : "The pleadings in this case clearly present for the consideration of the court a petition for review of the action of the lower court, as distinguished from an appeal therefrom; and on such proceeding questions of law, and not of fact, can be considered and passed upon by this court." In re O'Connell, 14 A. B. R. 238, 137 Fed. 838 (C. C. A. Mass.) : "Of course we are limited to matters of law." This was a proceedings in bankruptcy proper, not appealable under § 25a, being a refusal to reopen an alleged unad- ministered bankruptcy estate. In re Rouse, Hazard & Co., 1 A. B. R. 234, 91 Fed. 96 (C. C. A. Ills.): ".It will be seen that the statute contemplates two different proceedings and for two diiTerent purposes. The one is a review of an adjudication touching the merits of a claim which may rest upon a question of fact or a question of law. Such an adjudication can only be reviewed by appeal within ten days from the adjudication, and will only lie where the claim adjudicated amounts to $500 or over. The appellate court reviews the facts as well as the law. In the other case the appellate court acts, not upon appeal, but by original petition of a complaining party, and is given authority to review and to revise in matter of law only the proceeding of the bankrupt court that is complained of." In re Richards, 3 A. B. R. 145, 96 Fed. 935 (C. C. A. Wis.): "In the case of an appeal the facts as well as the law are before this court for review. In the case of original petition this court has authority to review merely a matter of law arising in the course of the proceeding below. The latter is intended as a sum- mary mode of reviewing any supposed erroneous holding upon a question of law and does not contemplate a review of the facts." § 2882. Distinctions between § 24 (b) and §§ 24 (a) and 2 5 (a). — Under §§ 24 (a) and 25 (a), jurisdiction is conferred to review facts as well as law, this being done by way of "appeal:" under § 24 (b) juris- diction exists to review only matters of law, this being done by "writ of error" or "petition for revision" as may be proper. •'^- Section 25 (a) is available only "in bankruptcy proceedings" proper as distinguished from "controversies arising in bankruptcy proceedings," and Is not available even in all "bankruptcy proceedings" but only in the three instances of adjudications of bankruptcy, discharge, and allowance of claims. 33 Section 24 (a^ is not available in bankruptcy proceedings proper in any case, not even in those cases not included within any of the three classes of § 25 (a) ; but is solely available in "controversies arising in bankruptcy proceedings," and then only where such controversies would have been appealable had they arisen elsewhere than in the course of a bankruptcy proceedings.^^ Section 24 (b) has been held not available, even though only questions 32. See post, § 2942. 33. See post, § 2880, et seq. 34. See post, § 2912, et seq. 1692 REMINGTON ON BANKRUPTCY. § 2882 of law are involved, to review any of the three classes of bankruptcy pro- ceedings for which the remedy by appeal has been given by § 25 (a), al- though available to review questions of law in all other bankruptcy pro- ceedings than those three classes. But the true rule is, it is available where only questions of law are presented, both to review "proceedings in bank- ruptcy" proper, and also to review questions of law in all "controversies arising in bankruptcy proceedings" as distinguished from "bankruptcy proceedings" proper — that is to say, as distinguished from orders made in adjudging or refusing to adjudge the debtor to be bankrupt, or in dis- charging or refusing to discharge him, or in allowing or rejecting claims, or" in the setting apart of exemptions, or in the selling of the assets, or in allowing the expenses of administration, or in declaring dividends or in other orders made in the usual course of bankruptcy proceedings. ^^ Whether independent suits against third parties to recover transferred iroperty brought by trustees in the United States District Courts under favor of the amendment of 1903, or suits brought in such courts by con- sent, are to be considered as within "controversies arising in bankruptcy proceedings" is not settled, but is immaterial, since in any event the rights of appeal or review and the manner of procedure are governed by the statute of 1891, creating the U. S. Circuit Courts of Appeal.^*^ Procedure imder § 24 (a) and (b) is to be in conformity with that pre- scribed by the statute of 1891 creating the Circuit Court of Appeals, and the rules made in furtherance thereof ;-^~ procedure under § 25 (a) is specially prescribed by the Bankruptcy Act, but, where that act is silent, is to follow the analogy of the act of 1891.^^ In what cases appeal under § 24 (a), and in what cases writ of error or petition for revision under § 24 (b), may or must be used, is deter- mined — subject to the above limitations of § 25 (a) — by the act of 1891, creating the U. S. Circuit Court of Appeals, and by the rules prescribed therefor.39 Compare, Dickas v. Barnes, 15 A. B. R. 569, 140 Fed. 849 (C. C. A. Ohio): "* * * that such orders of the bankruptcy court as relate merely to the ad- ministration of the estate are revisable on a petition for review under § 24 (b) of the Act; that such orders and decrees as are in the nature of independent suits and controversies arising in the course of bankruptcy proceedings are re- viewable on appeal or writ of error as the case may be, under § 24 (a), ex- cept that in the few cases specified in § 25 (a) (cases withdrawn from those described in the general language of the preceding section, 24,) a remedy by appeal is given when promptly prosecuted. And our further conclusion was 35. See post, § 2928, et seq. 36. Compare, In re Drayton, 13 A. B. R. 602, 135 Fed. 883 (D. C. Wis.). See ante, § 2874, and post, § 2927 and § 2940. 37. See post, § 2920. 38. See post, § 2959. ' 39. Inferentially, In re McKenzie, 15 A. B. R. 681. 142 Fed. 383 (C. C. A. Ark.). § 2883 REVIEW IN CIRCUIT COURT OF APPEALS. 1693 declared that the particular appellate remedies prescribed for the several classes of cases were so distinctly given as to preclude the court from employing in a given case any other remedy than the one specified for that case." Delta Xat'l Bk. r. Easterbrook, 13 A. B. R. 338, 133 Fed. 338 (C. C. A. Tex.): "* * * and if this court has jurisdiction to review the same, the authority must be found under § 24 (a) and in the appellate jurisdiction of the Circuit Court of Appeals, as granted by the act of 1891, which jurisdiction is not re- stricted by the Bankruptcy Law." § 2883. Resort to Appeal or Petition for Review on Error, Op- tional in Proper Case. — Resort to appeal or to petition for review on error is optional in a proper case.-**^ In re McKenzie, 1.5 A. B. R. 679, 142 Fed. 383 (C. C. A. Ark., affirming 13 A. B. R. 227): "* * * the grant of the jurisdiction 'to revise in matter of law the proceedings of the several inferior courts of bankruptcy' by § 24 (b) and the grant of jurisdiction to review final decisions therein by appeal, are not exclusive of each other, but concurrent and cumulative. Decisions of questions of law may in many cases be revised by petition in the Circuit Court of Appeals, under § 24b during the pendency of the proceedings, which are also review- able by appeal after final decisions have been rendered. The petition for re- vision in effect invokes a decision upon a demurrer, an appeal, one upon the mer- its of the case. The former permits the appellate court to determine legal questions without an examination of the evidence upon disputed issues of the fact, the latter allows it to review the entire case. In many cases parties ag- grieved have the option to present questions of law by petition for revision, or questions of law and fact by an appeal. "This case is of that nature. It involves the title to a portion of the estate of the bankrupt, not a claim of a creditor based upon his debt, obligation, or wrongful act. If the controversy had arisen in a Federal court when it was not sitting in bankruptcy, the final decision of it would have been reviewable in this court by writ of error or appeal. Jurisdiction to review the final judgment in this case upon both the law and the facts by an appeal was granted by § 24a, and jurisdiction to revise the action of the bankruptcy court herein by § 24b. As the petitioner sought to review a question of law only, the proceeding by petition for revision was the more appropriate and convenient method and this court has jurisdiction to entertain it. Act, March 3, 1891, ch. 517, § 6, 26 Stat. 828, Bankrupt Act, §§ 2 (7), 24a, 24b." In re Holmes, 15 A. B. R. 689, 142 Fed. 392 fC. C. A. Colo.): "The ex- istence of the debt is conceded. The only question which the case pre- sents is whether or not the mortgagee is entitled to his preference by virtue of his chattel mortgage. This is a controversy over the title and property of the estate of the bankrupt between the trustee and the mort- gagee,- a party adverse to the trustee and the bankrupt, of which this court is given appellate jurisdiction by Bankrupt Act, § 24a. In the second year after the Act of 1898 was passed this court decided that a petition to revise in matter of law under section 24b an appealable order or judgment, could not be main- tained, and numerous decisions have since been rendered to the effect that the right of appeal and the right of revision are exclusive each of the other. In re 40. See post, § 2915. 1694 REMINGTON ON BANKRUPTCY. § 2884 Kuffler, 11 Am. B. R. 469, 127 Fed. 125; In re Worcester County, 4 Am. B. R. 496, 102 Fed. §08, 811; First Nat'l Bk. v. State Nat. Bank, 12 Am. B. R. 440, 131 Fed. 430, 433; In re Friend, 13 Am. B. R. 595, 134 Fed. 778, 781, 67 C. C. A. 500, 503; In re Mueller, 14 Am. B. R. 256, 135 Fed. 715. This theory, however, has resulted in such contrariety of decision relative to the proper method of review of specific orders and such confusion and uncertainty in the practice that it has become necessary for lawyers in many instances to take an appeal and file a petition for .revision in the same case in order to be sure to obtain a review of the ruling challenged. In re Worcester County, 4 Am. B. R. 496, 102 Fed. 808, 811. Thus it was held in the cases of In re Worcester County, 4 Am. B. R. 496, 102 Fed. 808, 814, 42 C. C. A. 637, 643, ^nd In re Rouse-Hazard Co., 1 Am. B. R. 234, 91 Fed. 96, 33 C. C. A. 356, that an order which allowed a creditor a preference was reviewable by a petition for revision and not by appeal, while in Cunnigham z<. German Ins. Bank, 4 Am. B. R. 192, 103 Fed. 932, 935; In re Roche, 4 Am. B. R. 369, 101 Fed. 956; and In re Soudan Mfg. Co., 8 Am. B. R. 145, 113 Fed. 804, the opposite conclusion was reached. "Aloreover, under the theory that the appellate and revisory jurisdiction of the courts of appeals are exclusive each of the other, a large share of the time and labor of the judges of the courts of appeals, and of the lawyers who assist them, and no insignificant portion of the means of the litigants, all of which are imperativelv demanded for the decision of the merits of the questions the parties seek to present, or of still more important issues of law, are con- sumed in the litigation, determination, and preparation of opinions concerning the question whether an order or proceeding in bankruptcy which is clearly reviewable must be reviewed by appeal or by petition for revision. Witness the authorities already cited and numerous other learned opinions upon this question which crowd the reports of the Courts of Appeals. In this state of the case, in the year 1903, an original petition to revise in matter of law proceed- ings of the district court of Kingfisher countjs Okla., which culminated on April 6, 1903, in an order which dismissed an involuntary petition in bank- ruptcy was presented to this court. The order of the District Court was a 'judgment refusing to adjudge the defendant a bankrupt.' it was appealable under Bankrupt Act § 25a, and an appeal from it would have brought up for review all the preceding rulings in the case. This court certified these facts to the Supreme Court, and inquired whether it had jurisdiction to superintend and revise, in matter of law, these proceedings in the District Court of King- fisher county, and the Supreme Court answered in the affirmative. The fact that the only real object of the petition in that c^se was to reverse the judgment refusing to adjudge the defendant a bankrupt was disclosed by the certificate to the Supreme Court and appears in the report of the case. Plymouth Cordage Co. V. Smith, 194 U. S. 311. After the rendition of this decision this court proceeded upon the original petition for^ revision to review and reverse the judgment of the District Court of Kingfisher county, and to direct it to take further proceedings in the case. In re Plymouth Cordage Co., 13 Am. -B. R. 665, 135 Fed. 1000." § 2884. Thus, in "Controversies."— A litigant in a proper case has the option for review of an order in controversies arising out of bank- luptcy proceedings, to proceed either by appeal, or by petition for re- vision. He may proceed in either way that he wotild have been entitled to § 2887 REVIEW IN CIRCUIT COURT OF APPEALS. 1695 pursue had the controversy arisen in the federal court in any other than a bankruptcy case.^^ Apparently, Hewitt v. Berlin Machine Co., 11 A. B. R. 709, 194 U. S. 300: "If the trustee had carried the case to the Circuit Court of Appeals on petition for supervision and revision under § 24b of the bankruptcy law * * *^ the case would have fallen within Holden v. Stratton, 191 U. S. 115, 10 Am. B. R. 786. and the appeal to this court would have failed. But he took it there by appeal, though accompanied by some apparent effort to avail himself also of the other method. And as the Berlin Machine Works asserted title to the property in the possession of the trustee by an intervention arising a dis- tinct and separable issue, the controversy may be treated as one of those 'con- troversies arising in the bankruptcy proceedings' over which the Circuit Court of Appeals could, under § 24a, exercise appellate jurisdiction as in other cases." § 2885. If Facts Undisputed, Petition to Revise Only Remedy. — Where the facts are not disputed, it seems a petition for revision is the proper remedy.^ 2 § 2886. If Facts Disputed, May Be Reviewed Only if Appeal Avail- S,ble. — If, on the other hand, the facts are disputed, they may be re- viewed, if reviewable at all, only by appeal.'*^ Obiter, Ellis v. Krulewitch, 15 A. B. R. 617, 141 Fed. 954 (C. C. A.): "More- over, if the final order of the referee, inade in the proceeding subsequent to the order overruling the demurrer, were here for review, it is difficult to per- ceive how error of law could be predicated of it, because it is made upon evi- dence from which men of different minds migfit draw different conclusions, and a question of this nature is a question of fact, reviewable by appeal and not by petition for review." § 2887. Holdings That Appeal under 2 5 (a) Exclusive of Error. —It has been held that appeal was the exclusive method of obtaining re- view in bankruptcy proceedings proper in cases where the statute expressly permits appeal in § 25, and that a petition for review under § 24 (b) would not lie. Thus, the dismissal of a petition for discharge for want of prosecution, being in effect a final judgment denying discharge, has been held review- able only by appeal. 41. See ante, § 2883. Dodge v. Norlin, 13 A. B. R. 176, 133 Fed. 367 (C. C. A. Colo.); apparently, Hutchinson v. Otis, 10 A. B. R. 275, 123 Fed. 14 (C. C. A. Mass.); inferentially. Printing Co. v. Brew. Co., 4 A. B. R. 183, 101 Fed. 700 (C. C. A. Ky.). And compare, contra, Davidson v. Friedman, 15 A. B. R. 490, 140 Fed. 853 (C. C. A. Ohio). Also, see contra. In re Antigo Screen Door Co., 10 A. B. R. 359, 123 Fed. 249 (C. C. A. Wis.). 42. Hutchinson v. LeRoy, 8 A. B. R. 20. 113 Fed. 202 (C. C. A. Mass.), which was the case of an intervening petition, following trust funds. Impliedly, Mor- gan V. Nat'l Bk., 16 A. B. R. 642, 145 Fed. 463 (C. C. A. W. Va.). Instance. Moore V. Green, 16 A. B. R. 651, 145 Fed. 480 (C. C. A. W. Va.). 43. Instance held not to be such dispute and uncertainty in record as to pre- vent petition for revision. In re Great Western Mfg. Co.. 18 A. B. R. 260, 152 Fed. 123 (C. C. A. Neb.). 1696 REMINGTON ON BANKRUPTCY. § 2888 In re Kuffler, 11 A. B. R. 469, 127 Fed. 125 (C. C. A. N. Y.) : "It is sought to review this order (denying a discharge) by a petition for review under § 24 (b). * * * "The provisions of the section cited refer to cases not provided for by appeal. Section 25 allows appeals to be taken in bankruptcy proceedings as in equity cases, 'from a judgment granting or denying a discharge.' " In re Mueller, 14 A. B. R. 256, 135 Fed. 715 (C. C. A. Ky.) : "These remedies ■are exclusive of each other. That which may come here by appeal cannot come here for review." Likewise, the confirmation of a composition has been held not review- able by writ of error, but only by appeal.-*^ Again, an adjudication of bankruptcy has been held reviewable only by appeal. "^^ • ^ In re Good, 3 A. B. R. 605, 99 Fed. 389 (C. C. A. Mo.): '"Inasmuch as Congress has seen fit to prescribe by this section [25 (a)] the method in which a judg- ment adjudicating a person a bankrupt may be reviewed and for obvious reasons has fixed a short period, to wit, ten days, within which such appeal must be taken, we think it is manifest that such judgments cannot be reviewed on an original petition filed in this court .in the mode prescribed by subdivision 'b' of § 24. No time limit has been fixed under § 24 within which an original petition to superintend and revise in matter of law the action of the District Court in proceedings in bankruptcy may be filed, and for that reason we con- sider it improbable that it was the intention of the law makers to allow a judg- ment adjudicating a person a bankrupt to be reviewed otherwise than by ap- peal, and within the time expressely limited in § 25." Lockman v. Lang, 11 A. B. R. 597, 128 Fed. 279 (C. C. A. Colo.): "A pro- ceeding in bankruptcy (here t. Bank, 4 A. B. R. 192, 103 Fed. 932 (C. C. A. Ky.); impliedly, Davidson v. Friedman, 15 A. B. R. 489, 140 Fed. 853 (C. C. A. Ohio); In re Soudans Mfg. Co., 8 A. B. R. 45, 113 Fed. 806 (C. C. A. Ind.); In re National Bk., 14 A. B. R. 182, 135 Fed. 62 (C. C. A. Ohio). See anal- ogously, ante § 2871. 65. See ante, § 2869. 66. Cunningham v. Bank, 4 A. B. R. 192, 103 Fed. 932 and 101 Fed. 977 (C. - C. A. Ky.); In re Nat'l Bk., 14 A. B. R. 182, 135 Fed. 62 (C. C. A. Ohio); In re Mueller Tr., 14 A. B. R. 256, 135 Fed. 711 (C. C. A. Ky.). Compare, Burow v. Grand Lodge, 13 A. B. R. 542, 133 Fed. 708 (C. C. A. Tex.), wherein a creditor holding a deed of trust on land claimed as exempt, intervened, and prayed that property mentioned in the deed of trust be adjudged subject thereto and ordered sold free and clear by the trustee, where the mort- gage provides for attorney's fees on "foreclosure," the dispute thus involving the amount of a debt. But in this case it does not appear that there was any dis- pute over the amount or validity of the debt. In re Roche, 4 A. B. R. 369, 101 Fed. 956 (C C. A. Tex.), a case of a disputed lien of a mortgagee for attorney's fees on proceeds of land. Obiter, Hutchinson v. Otis, 10 A. B. R. 135, 190 U. S. 552. § 2903 REVIEW IX CIRCUIT COURT OF APPEALS. 1703 controversy is about the lien or the right to priority before dividends, and the debt itself is undisputed, merely that the lien or right of priority is in- cident to a debt will not suffice for appeal as to the lien or priority.*^'^ Thus, as to a lien.^^ Hutchinson v. Otis, 10 A. B. R. 135, 190 U. S. 552: "A petition was filed by Otis, Wilcox & Co., asserting a lien on the proceeds of a seat in the New- York Stock Exchange, which formerly belonged to the bankrupts. This lien had not been insisted on by Otis, Wilcox & Co., because of their impression that they had been paid effectually. No one having changed his position on the faith of their waiver, the District Court allowed the lien. The Circuit Court of Appeals held that this portion of the decree of the District Court was not subject to an appeal to the Circuit Court of Appeals. The argument chiefly relied upon by the appellant is that this is an intervening petition to reach a fund in court, and is not a proceeding in bankruptcy. Under the circumstances of this case it seems to us that the petition was incident to the claim (Cunningham v. German Ins. Bank, 4 Am. B. R. 192, 101 Fed. 977), and was a bankruptcy proceeding under § 2, cl. 7, within the meaning of § 25, reg- ulating appeals in bankruptcy proceedings, and that the decree upon it was not 'a judgment allowing or rejecting a debt or claim of five hundred dollars or over,' within § 25a, 3, and was not an independent ground of appeal." Thus, as to a right of priority ,^'^ In re Rouse, Hazard & Co., 1 A. B. R. 239, 91 Fed. 96 (C. C. A. Ills.): "If the controversy coming before us was with respect to, the merits of the several claims of these labor claimants, we should be wholly without jurisdiction, for there is neither an appeal nor does the amount allowed to any one claimant ex- ceed the sum of $500. But there is no controversy here with respect to the merits of tlie claims. The debts are conceded. The counsel for the labor claim- ants, the respondents here, distinctly states in his brief, 'and no objection is raised in this court as to the validity or justness of any claims." The only question then sought to be raised by this petition is whether, conceding the justness of the claims, they are as a matter of law entitled to priority of pay- ment over the general creditors of the bankrupt. That is a question which we think clearly falls within the subd. b of § 24, and can be determined by this court upon petition." But the disputed lien or priority may be appealable under § 24 (a), as being a "controversy" arising out of bankruptcy."" § 2903. Not to Split Case and Dismiss Portion Affecting- Lien or Priority. — It is not necessary to split the case on appeal, and to dismiss the portion that afifects priority.'^ ^ 67. See ante. § 2870. 68. But compare, Burow v. Grand Lodge, 13 A. B. R. 544. 133 Fed. 708 (C. C. A. Tex.). 69. Obiter. In re Cosmopolitan Power Co., 14 A. B. R. 606. 137 Fed. 858 (C. C. A. Ills.); obiter. In re First Nat'l Bk. of Canton, 14 A. B. R. 182, 135- Fed. 62 (C. C. A. Ohio). 70. In re First Nat'l Bank of Canton, 14 A. B. R. 182, 135 Fed. 62 (C. C. A. ' Ohio). 71. In re Cosmopolitan Power Co., 14 A. B. R. 606, 137 Fed. 858 (C. C. A. Ills.); apparently contra, In re Worcester County, 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.). 1704 REMIXGTOX OX BAXKRUPTCY. § 2907 § 2904. "Claim" Refers Only to Money Demand. — The word "claim" as used in § 25 (a) refers to, and means, only a money demand." ^ § 2905. And to "Claims" Presented for "Proof" against Bankrupt Estate. — And only to claims presented for "proof" against the bankrupt estate." 2 Holden v. Stratton, 10 A. B. R. 788, 191 U. S. 116: "And while the word 'claim' is used in its signification of the demand or assertion of a right in subdivision 11 of § 2, in respect of 'all claims of bankrupts to their exemptions,' it is also used in many parts of the act, and, as we think, in § 25, as referring to debts (which by subsection 11 of § 1 includes 'any debt, demand or claim provable in bankruptcy') presented for proof against estates in bankruptcy." Such claims are reviewable only on error by certiorari."-* § 2906. And Not to "Claims" for Exempt Property. — And does not refer to claims for exempt property ."^ § 2907. Nor, Probably, to "Claims" for Costs and Expenses of Administration. — But whether a claim which represents expenses or costs of administration under § 64 (b) is that of a creditor and is appealable under § 25 (a) is a question. Thus, it has been intimated, in an obiter, that the trustee's expenses for stenographer and attorneys are so appealable ; and, on the other hand, it lias been held directly that they are not so appealable.'*^ Obiter, Gray v. Mercantile Co., 14 A. B. R. 784 (C. C. A. N. Dak.): "Coun- sel have proceeded upon the assumption that a claim which represents expenses or costs of administration is a 'debt or claim' within the meaning of the pro- vision before quoted granting and restricting the right of appeal. The as- sumption appears to be sustained by the Bankruptcy Act, notably by § 64b; but, if it were not, that would be another reason why there would be no right of appeal from the allowance or rejection of any of the claims other than that of Carroll, which is not of that character." Davidson v. Friedman, 15 A. B. R. 489, 140 Fed. 853 (C. C. A. Ohio): "This is an appeal from an order allowing expenses incurred by the bankrupt's trus- tee for counsel fees in the realization of the assets of the estate * * * and it is insisted that the order appealed from is appealable under § 24 (a) [25 (a)], as a judgment 'allowing a debt or claim of $500 or over,' and the case of Pratt 72. In re Whitener, 5 A. B. R. 198, 105 Fed. 180 (C. C. A. Tex., distin- guished in Burow v. Grand Lodge, 13 A. B. R. 545, 133 Fed. 708). 73. Davidson v. Friedman, 15 A. B. R. 489, 140 Fed. 853 (C. C. A. Ohio), quoted post, § 2907. 74. Holden v. Stratton, 10 A. B. R. 788, 191 U. S. 116; also, Holden v. Strat- ton, 14 A. B. R. 94, 198 U. S. 202; Ingram v. Wilson, 11 A. B. R. 194, ]25 Fed. 913 CC. C. A. Iowa); instance, Lipman v. Stein, 14 A. B. R. 30, 134 Fed. 235 (C. C. A. -Pa.); instance, In re Kane, 11 A. B. R. 333, 127 Fed. 552 (C. C. A. Ills.). But see, Steele v. Buel, 5 A. B. R. 166, 104 Fed. 968 (C. C. A Iowa) 75. Holden v. Stratton, 10 A. B. R. 788, 191 U. S. 116, quoted ante, § 2905, Steele v. Buel, 5 A. B. R. 166, 104 Fed. 968 (C. C. A. Iowa). 76. In re Curtis, 4 A. B. R. 17, 100 Fed. 784 (C. C. A Ills ). ^2911 REVIEW IN CIRCUIT COURT OF APPEALS. 1705 V. Bothe is cited. Pratt v. Bothe involved a claim which was a debt against the bankrupt for legal services before and after adjudication. The debt was proven as such and priority asserted under § 60d of the Act. We entertained •an appeal, though no question was made, upon the ground that it was an appeal from a judgment disallowing a claim or debt in excess of $500. It was not a claim or expense or debt incurred by the trustee in course of administra- tion. It had its foundation in a contract antecedent to bankruptcy and was in every sense a debt presented for proof against the estate. "The matter involved in the present appeal is an expense incurred by the trustee in the course of his administration. It was not a debt against the bankrupt and had no existence before adjudication." It has also been held, however, that the attorneys' fees of the petitioning creditors are so appealable.'" Probably the rule of Davidson v. Friedman is based upon the better reasoning. § 2908. Nor to "Claims" of Strangers to Property in Trustee's Possession, nor of Trustee to Property in Strangers' Hands. — Xor does it refer to claims of third parties to property in the trustee's posses- sion, nor to claims of the trustee against third parties for the surrender of property in their possession.'^ § 2909. Disallowance of Claim because Preference Not Sur- rendered, Appealable. — Orders disallowing claims for failure to sur- render preferences are appealable.'^ § 2910. Rejection or Allowance of Set-OfF Appealable. — The re- jection or allowance of a set-off is appealable. ^*^ § 2911. No Appeal in Bankruptcy Proceedings Proper Except in Three Cases of § 25 (a) Mentioned. — And appeals may not be taken in bankruptcy proceedings proper in any other cases than those limited in § 25 (a) ; review can be had only by petition to revise.^^ 77. Compare appeal of prepaid bankrupt's attorney fees, Pratt v. Bothe, 12 A. B. R. 529, 130 Fed. 670 (C. C. A. Mich.). 78. In re Whitener, 5 A. B. R. 198. 105 Fed. 180 (C. C. A. Tex.); In re Abra- I-iam, 2 A. B. R. 289, 93 Fed. 767 (C. C. A. Ala., reversed, on other grounds, sub nom. Bryan v. Bernheimer). 79. Livingston v. Heinman, 10 A. B. R. 39 (C. C. A. Ohio); In re Jourdan, 7 A. B. R. 186 (C. C. A. Mass.). 80. Western Tie and Timber Co. v. Brown, 13 A. B. R. 447, 196 U. S. 502 (reversing 12 A. B. R. Ill), where the court sustained the right to appeal from the Circuit Court of Appeals to the Supreme Court under § 25 (b) (l) giving such right in cases where a claim appealable under § 25 (a) amounts to $2000 or over, the court saying: "It clearly appears from the record that in the claim filed on behalf of the tie company there was embodied, as an integral part thereof, as a proper credit or set-off, the sum retained from the wages of employees for supplies furnished by the bankrupt, and the rejection of the claim was based upon the denial of the right to set-off." 81. Fisher v. Cushman, 4 A. B. R. 646, 103 Fed. 860 (C. C. A. Mass.); obiter, Goodman v. Brenner, 6 A. B. R. 471, 109 Fed. 481 (C. C. A. La.); contra, Steele v. Buel, 5 A. B. R. 165, 104 Fed. 968 (C. C. A. Iowa). 1706 REMINGTON ON BANKRUPTCY. ^ 2913 Holden v. Stratton, 10 A. B. R. 788, 191 U. S. 115: "This case (refusal of exemptions) was not taken to the Court of Appeals by appeal, as in equity cases, to be re-examined on the facts as well as, the law, nor could it have been, for it was not one of the cases enumerated in § 25a." Bank v. Title & Trust Co., 14 A. B. R. 105, 198 U. S. 280: "If the pro- ceedings in the District Court (adjlxdication as to validity of lien on property taken summarily from adverse claimants over protest) was a proceeding in bankruptcy and not an independent suit, no appeal lay to the Circuit Court of Appeals, and the jurisdiction of that court was confined to revision in matter of law 'on due notice and petition' under clause b of § 24." Ingram v. Wilson, 11 A. B. R. 19-4, 125 Fed. 913 (C.^C. A. Iowa): "We are of opinion, however, that the order in question (sale of exempt real estate) is an order made in the course of a bankruptcy proceedings, which this court is em- powered to revise on a petition for review by virtue of § 24 of the Bankruptcy Act. It is not one of those cases in which an appeal in the ordinary form is ex- pressly authorized by § 25 of the Bankrupt Act. For that reason we are con- strained to hold that it is reviewable by an original petition for review." Appeals in Controversies Arising in Bankruptcy Proceedings. § 2912. Appeals in "Controversies Arising in Bankruptcy Pro- ceedings." — Appeals may be taken to the circuit court of appeals in "con- troversies arising in bankruptcy proceedings," as distinguished from '"bankruptcy proceedings" themselves, from courts of. bankruptcy from which it has appellate jurisdiction in other cases. ^- That is to say, whilst appeals in bankruptcy proceedings proper are re- stricted to the cases specifically allow^ed by the provisions of the Bank- ruptcy Act itself, in all other cases where controversies arise in the bank- ruptcy proceedings, the right of appeal is the same as if the case had not arisen- out of a bankruptcy. ^^ 82. Bankr. Act, § 24 (a): "* * * the Circuit Court of Appeals of the Unite.-l States * * * in vacation in chambers during their respective terms, as now or as they may be hereafter held, are hereby investigated with appellate juris- diction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have, appellate jurisdiction in other cases." Inferentially, In re Columbia Real Estate Co., 7 A. B. R. 444, 112 Fed. 645 (C. C. A. Ind.); appeals and reviews in Indian Territory, In re Blair, 5 A. B. R. 792, 106 Fed. 662 (C. C. A. Ind. Terr.). "Within their jurisdiction" has reference to existing appellate jurisdiction and does not operate to extend it. In re Blair, 5 A. B. R. 793, 106 Fed. 662 (C. C. A. Ind. Terr.). Even if not raised in argument, the court may consider the question of its appellate jurisdiction. In re Columbia Real Estate Co., 7 A. B. R. 444, 112 Fed. 645 (C. C. A. Ind.). 83. Hutchinson v. Otis, 190 U. S. 552, 10 A. B. R. 135; compare, Hutchin- son V. Otis, 10 A. B. R. 275 (C. C. A. Mass.); Burleigh v. Foreman, 125 Fed. 217, 11 A. B. R. 74, 12 A. B. R. 88 (C. C. A. Mass.); In re McKenzie, 15 A. B. R. 681, 142 Fed. 383 (C. C. A. Ark.); In re Mueller Tr., 14 A. B. R. 256, 135 Fed. 711 (C. C. A. Ky.). § 2912 REVIEW IN CIRCUIT COURT OF APPEALS. 1707 Hewitt V. Berlin Machine Co., 11 A. B. R. 709, 194 U. S. 296: "And as the Berlin Machine Works asserted title to the property in the possession of the trustee by an intervention raising a distinct and separable issue, the contro- versy may be treated as one of those 'controversies arising in bankruptcy proceedings' over which the Circuit Court of Appeals could, under § 24a, exer- cise appellate jurisdiction as in other cases. Section 25a relates to appeals from judgments in certain enumerated steps in bankruptcy proceedings, in respect of which special provision therefor was required (Holden v. Stratton, 191 U. S. 115, 10 Am. B. R. 786), while § 24a relates to controversies arising in bankruptcy proceedings in the exercise by the bankruptcy courts of the jurisdiction vested in them at law and in equity by § 2, to settle the estates of bankrupts, and to determine controversies in relation thereto." Dodge V. Norlin, 13 A. B. R. 176, 133 Fed. 363 (C. C. A. Colo.): "Under the judiciary act of March 3, 1891, the Circuit Courts of Appeal had 'jurisdiction to review by appeal or by writ of error final decisions in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this Act, unless otherwise provided by law. * * * "The case here under consideration was not provided for in the preceding section of the Act or in any other way than in § 6. The decision of the Dis- trict Court that the lien by mortgage claimed by the appellant could not be enforced against the trustee who had seized the property which constituted the security for his debt was a final decision. It rendered the question of the mort- gagee's right to his security res adjudicata. It finally determined a separate, collateral controversy distinct from the general subject of litigation in the proceeding in bankruptcy. * * * If this controversy had arisen in a Federal court when it was not sitting in bankruptcy, the final decision of it would have been reviewable in this court by writ of error or appeal. Section 25a vests the Courts of Appeal with appellate jurisdiction of controversies arising in bank- ruptcy proceedings of which they have jurisdiction in other cases. As this court has appellate jurisdiction of this controversy in other cases in which it might be presented in a Federal court, it has such jurisdiction when it arises in pro- ceedings in bankruptcy." In re First National Bk. of Canton, 14 A. B. R. 180, 135 Fed. 62 (C. C. A. Ohio) : "This is an appeal from an order of the District Court, sitting jn bank- ruptcy, disallowing a mortgage lien claimed by the First National Bank of Canton, Ohio, upon a stock of merchandise and certain store fixtures of the bankrupt Martin K. Purdy. * * * "This may be properly regarded as a controversy arising out of the settlement of the bankrupt's estate and the appeal to this court as one admissible under § 24a of the Bankruptcy Law." "Obiter, Delta Nat'l Bk. v. Easterbrook, 13 A. B. R. 340 (C. C. A. Tex.): "In the lower court this was an action at law for the specific recovery of personal property, and was a controversy arising in bankruptcy proceedings, of which the lower court had jurisdiction under § 70 (e) as amended. * * * From the final judgment rendered in the case no appeal lies under § 25 * * * and, if this court had jurisdiction to review the same, the authority must be found under § 24a * * * ^^d in the appellate jurisdiction of the Circuit Courts of Appeal, as granted by the Act of 1891, which jurisdiction is not restricted by the Bankruptcy Law; and therefore decrees in equity and judgments at law, although in controversies arising in bankruptcy proceedings, may be revised by this court." 1708 REIMINGTON ON BANKRUPTCY. § 2915 § 2913. Appeal a Matter of Right, Not to Be Enlarged nor Re- stricted by Court. — An appeal is a matter of right, given by statute, and can neither be restricted nor enlarged by the court.^^ § 2914. Under § 24 (a) Both Law and Fact Reviewed. — Under § 24 (b) the circuit court of appeals revises the action of the district court only in matters of law.^^ But under § 24 (a), the circuit court of appeals reviews the facts as well as the law.^*^ § 2915. Litigant Has Option, in Proper Case, Either to Appeal or to Petition for Revision. — A litigant has the option, in a proper case, to review a decision by appeal or by petition for revision as matter of law. This appellate jurisdiction is not excluded nor revoked by the provision of § 25 (a), which grants jurisdiction over three specified classes of cases and limits the time for invoking the appeal to ten days, nor by § 24 (b), which vests the power of supervision and revision in matter of law in the court of appeals.s'^ Dodge V. Norlin, 13 A. B. R. 176, 133 Fed. 363 (C. C. A. Colo.): "Nor is there anything in the grant by section 24b of the power to revise and superintend in matter of law the proceedings of the inferior courts of bankruptcy which in any way afifects or limits the general appellate jurisdiction vested by the sections of the law which have been considered. The Act of 1898 does not grant the appellate and the revisory jurisdiction in the alternative. It does not give to disappointed litigants the right of appeal or the right of revision in matter of law. It grants the right of appeal and the right of superintendence and re- vision in matter of law only. It gives both rights freely and without limitation. The two grants are not inconsistent, and on familiar principles both must stand, and in a proper case either may be invoked. "Any other construction of the bankruptcy law would- deprive litigants in the courts of bankruptcy of a review of the decisions of the most important con- troversies determined by those courts, of controversies between the trustee and third parties over the title to, and the liens upon, the alleged property of the estate. A revision as a matter of law is not equivalent to nor is it adequate to take the place of an appeal. Many controversies -of the nature of that here under consideration arise which involve large interests in which there is little doubt of the law, but in which the correctness of the finding of facts is both crucial and doubtful. The Act plainly declares that the final decisions of such 84. Lockman v. Lang, 12 A. B. R. 497, 132 Fed. 1 (C. C. A. Colo.); In re Abraham, 2 A. B. R. 266, 93 Fed. 784 (C. C. A. Ala.); In re Whitener, 5 A. B. R. 198, 105 Fed. 180 (C. C. A. Tex.). But compare Columbia Iron Wks. v. Nat'I Lead Co., 11 A. B. R. 340, 127 Fed. 99 (C C. A. Mich.), where the court seems to have refused to dismiss an appeal "taken" after the expiration of the ten days, "taking"' not being perfected until bond and citation. See ante, § 2891. 85. See post, § 2937. 86. See ante, § 2882. 87. See ante, §§ 2883, 2884. § 2918 REVIEW IX CIRCUIT COURT OE APPEALS. 1709 controversies may be reviewed by appeals, and no persuasive reasons convince that this declaration should not have its full effect." Inferentially, Printing Co. v. Brew. Co., 4 A. B. R. 183, 101 Fed. 700 (C. C. A. Ky.): "If the petitioner had desired a review of the question of the allowance of his claim upon both law and fact, he should have appealed." § 2916. May Treat "Appeals" as Petitions for Revision.— The re- viewing court may (where only questions of law are presented ) treat pro- ceedings denominated "appeals" as merely error proceedings for reversal of the judgment below, and may hear the case on the record already made and not de novo.^^ § 2917. But Not Where Questions All of Fact. — But will not so treat them where the questions are all questions of fact, and there is no specific question of law.^^ § 2918. Simultaneous Appeal and Petition for Review. — Appeal and petition for review or writ of error may be prosecuted simultaneously to review the same adjudication, where the party is in doubt as to liis proper remedy, and the pendency of one will not nullify the other.'-^*^ Lockman v. Lang, 12 A. B. R. 497, 128 Fed. 279 (C. C. A. Colo.): "The prac- tice of taking an appeal and a writ of error to review the same adjudication is not only permissible, but commendable, in cases in which counsel have just reason to doubt which is the proper proceeding to give jurisdiction to the ap- pellate court. In such cases the reviewing court will consider both proceedings, will dismiss that one which is ineffective, and will review the rulings of the court below in accordance with the rules of the method applicable to the nature of the case before it." Fisher v. Cushman, 4 A. B. R. 646, 103 Fed. 860 (C. C. A. Mass.): "Never- theless * * * the fact that an appeal was taken and a petition also filed does not defeat the right of the party moving this court to have the merits of the controversj' adjudicated bj- us. They do not neutralize each other, and the only result is that the appeal must be dismissed, while the court must proceed to the adjudication of the merits in Ida C. Fisher, et al, Petitioners, which 88. Chesapeake Shoe Co. v. Seldner, 10 A. B. R. 466, 122 Fed. 593 (C. C. A. Va.); In re Abraham (Bernheimer v. Bryan), 2 A. B. R.. 266, 93 Fed. 783, re- versed by Sup. Ct., on other grounds, in 5 A. B. R. 623, isi U. S. 188. Compare, to. similar effect, In re Russell & Birkett, 3 A. B. R. 658 (C. C. A. N. Y.); In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.) ; Fisher v. Cush- man, 4 A. B. R. 646, 103 F'ed. 860 (C. C. A. Mass.); Steiner v. Marshall, 15 A. B. R. 487, 140 Fed. 710 (C. C. A. Md.) ; contra, Dickas v. Barnes, Tr., 15 A. B. R. 566, 140 Fed. 849 (C. C. A. Ohio). 89. In re Whitener, 5 A. B. R. 198, 105 Fed. 188 (C. C. A. Tex.); Steiner V. ^larshall. 15 A. B. R. 487, 140 Fed. 710 (C. C. A. Md.). 90. In re Worcester Co., 4 A. B. R. 496, 102 Fed. 808 (C. C. A. Mass.); In re Jourdan, 7 A. B. R. 186, 11 Fed. 726 (C. C. A. Mass.); Hutchinson v. Leroy, 8 A. B. R. 21, 113 Fed. 202 (C. C. A. Mass.); In re Osborne, 8 A. B. R. 168, 115 Fed. 1 (C. C. A. Mass.); Osborne v. Perkins, 7 A. B. R. 250, 112 Fed. 127 (C. C. A. Mass.); obiter, impliedly, Steiner v. Marshall, 15 A. B. R. 487, 140 Fed. 710 (C. C. A. Md.); instance, Mason v. Wolkowich, 17 A. B. R. 714. 150 Fed. 699 (C. C. A. Mass.); instance, Union Nat. Bk. v. Neill, 17 A. B. R. 853, 841, 149 Fed. 711, 720 (C. C. A. Tex.). ' 1710 REMINGTON ON BANKRUPTCY. § 2920 petition, on the record before us, involves onlj^ a 'matter of law,' as required by § 24b of the Bankrupt Act.'' Contra, In re Mueller, Tr., 14 A. B. R. 257, 135 Fed. 711 (C. C. A. Ky.) : "There is no reason to suppose that one may elect whether he will bring up the order or judgment which he wishes to have reversed by appeal or by a petition for review. "These remedies are exclusive of each other. That which inay come here by appeal, can not come here for review. Otherwise the distinction which the Act recognizes will be ignored. "Neither is there any reason for supposing that an order or judgment may be appealed when questions of fact are to be considered and reviewed upon peti- tion if only a question of law is involved. "The distinction between cases appealable and cases reviewable lies deeper and turns upon the character of case or question." Contra, Davidson v. Friedman, 15 A. B. R. 490, 140 Fed. 853 (C. C. A. Ohio): "It is also insisted that we shall treat the appeal as a petition for review. These remedies are exclusive of each other and there is no more reason for treating an appeal as a petition for review than there would be for treating an appeal as a writ of error or vice versa." Doubtless the appeal has the precedence, and if appeal will lie, the proper practice would be to dismiss the petition for revision. This is so for the obvious reason that the appeal, if well taken, has already vacated the or- der, so there is nothing to review. § 2919. Single Assignment of Errors Sufficient Where Appeal and Error Simultaneously Prosecuted. — Where appeal and writ of error, are prosecuted simultaneously to review the same alleged errors, a single assignment of errors is all that is necessary. ^^ § 2920. Appeals in "Controversies" Only Allowable in Cases within Act of Congress Establishing Circuit Courts of Appeal. — Appeals in controversies arising in bankruptcy proceedings are allowed in cases that come within the provisions of the act of Congress establishing the circuit court of appeals (26 Stat. 826-828), and only in such cases. ^^ In re Columbia Real Estate Co., 7 A. B. R. 441, 112 Fed. 645 (C. C. A. Ind.): "The general provision for appeals, however, is coiitained in § 24a, which in- vests the Circuit Court of Appeals 'with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases;' and § 6 of the act creating the Circuit Court of Appeals (26 Stat. 826-828) referred to, confers appellate juris- diction 'to review by appeal or by writ of error final decisions in. the district courts' in all cases other than those which are reviewable by the Supreme Court pursuant to section 5 of the same act. The right to review this order, therefore, rests on the inquiry whether it constitutes a final order or decree, within the 91. Lookman v. Lang, 3 2 A. B. R. 497, 128 Fed 279 (C. C. A. Colo.). "92. Inferentially, In re McKenzie, 15 A. B. R. 681, 142 Fed. 383 (C. C. A. Ark.); impliedly, Delta Nat'l Bk. z'. Easterbrook, 13 A. B. R. 340 (C. C. A. Tex.); Stelling Bros. Co. v. Jones Lumber Co., 8 A. B. R. 529, 116 "Fed. 261 (C. C. A. Wis.); inferentially, Walter Scott v. Wilson, 8 A. B. R. 349, 115 Fed. 284 (C. C. A. Ills.). § 2921 REVIEW IN CIRCUIT COURT OF APPEALS. 1711 meaning of the latter provision, and the general rule is well settled that a de- nial of the right to intervene is not such final decision, and not appealable." Impliedly, Dodge v. Xorlin, 13 A. B. R. 176, 133 Fed. 363 (C. C. A. Colo.): "The purpose of Congress in the enactment of the judiciary act of 1891, and the effect accomplished by that law, were to provide an opportunity for a review either in the Supreme Court or in the Circuit Court of Appeals of the final de- cisions by the Circuit Courts and by the District Courts of all the controversies which they might determine. It was not, in our opinion, the purpose of Con- gress to strike down any portion of this grant or to impair in any way the appellate jurisdiction thus given by the enactment of the bankruptcy law. On the other hand, the provisions of the Bankrupt Act clearly show that it intended thereby to preserve this jurisdiction over the controversies to which it had al- ready attached in other cases, and to supplement it with the grant of authority to review^ the decisions of controversies which had not theretofore been within that jurisdiction. Before the passage of the Bankrupt Act the Courts of Appeals had appellate jurisdiction of controversies arising in the Federal courts over the title to and liens upon the property of insolvents who might become bankrupts. Congress provided by § 24a that the Courts of Appeals should still have juris- diction over those controversies when they arose in bankruptcy proceedings. By § 25a it granted to the Courts of Appeals additional jurisdiction which be- fore the enactment of the bankrupt law they could not exercise, and provided a different time within which this jurisdiction might be invoked, to the end that the proceedings in bankruptcy might not be unduly delayed. But there is noth- ing in the provisions of § 25a which excludes, revokes, or diminishes the general appellate jurisdiction granted by the previous section over controversies within the jurisdiction of the Courts of Appeals before the bankruptcy law was passed. The extent of its effect is to grant some additional jurisdiction, and to restrict to 10 days the time within which the jurisdiction of the Court of Appeals may be invoked in the three classes of cases there specified. "Nor is there anything in the grant by § 2-lb of the power to revise and superintend in matter of law the proceedings of the inferior courts of bank- ruptcy which in any way affects or limits the general appellate jurisdiction vested by the sections of the law which have been considered. The act of 1898 does not grant the appellate and the revisory jurisdiction in the alternative. It does not give to disappointed litigants the right of appeal or the right of revision in matter of law. It grants the right of appeal and the right of superintendence and revision in matter of law only. It gives both rights freely and without limitation. The two grants are not inconsistent, and on familiar principles both must stand, and in a proper case either maj^ be invoked." § 2921. Decree in Equity Not Reviewable by Writ of Error, nor Judgment at Law by Appeal. — In controversies arising in bankruptcy proceedings, a decree in equity cannot be reviewed on the facts by writ of error nor a judgment at law by appeal. ^■'^ Thus, suits at law to recover specific personal property, preferentially conveyed, are not appealable, but reviewable only by petition to review. ^^ 93. Delta Xat'l Bank v. Easterbrook, 13 A. B. R. 340 (C. C. A. Tex.), citing the following cases, Muhlenberg County v. Dyer, 65 Fed. 634; City of Wilming- ton V. Ricand, 90 Fed. 213; DeLemos v. U. S., 107 Fed. 127; Highland Boy Min. Co. V. Strickley, 116 Fed. 855. But compare. Dodge v. Xorlin, 13 A.' B. R. 176, 133 Fed. 363 (C. C. A. Colo.). 94. Delta Xat'l Bk. v. Easterbrook, 13 A. B. R. 340 (C. C. A. Tex.). 1712 REMINGTON ON BANKRUPTCY. § 2923 Conversely, suits in equity to set aside fraudulent or preferential trans- fers are appealable, and not reviewable by petition for revision. ^^ Doroshow v. Ott, 14 A. B. R. 39, 134 Fed. 740 (C. C. A. N. J.): "We have no difficulty in saying that the petitioner, in the case at bar, has not presented a matter reviewable in this court under § 24b of the bankrupt law. The suit brought by the trustee against the. petitioner in the District Court, was specially authorized by the amendment of the Bankrupt Act of 1903, above referred to. It is true, the District Court was the court of bankruptcy having jurisdiction of the bankrupt's estate, which the complainant, as trustee, was administering, but the suit in equity instituted by him was none the less an independent suit, and incapable of being characterized as a proceeding in bankruptcy, within the meaning of § 24b of the Bankrupt Act. We cannot here and now, upon this petition, consider the specifications of error made b}^ the petitioner to the in- terlocutory decree of that court. The orders and decrees of the District Court in that suit, whether interlocutory or final, can only be reviewed in this court upon appeal regularly taken." § 2922. Must Be "Final" Order.— But the order sought to be appealed from must be a final order. Thus, the dismissal of a petition for intervention to contest an adjudica- tion, filed, not by a creditor, but by a mere lienholder, is not a final order on the merits and not appealable ;^'^ nor are interlocutory orders (injunc- tion) in plenary suits by trustees.^" Mere orders of confirmation or disapproval of referees' or masters' reports are not final, and hence not appealable. Walter Scott & Co. v. Wilson, 8 A. B. R. 349, 115 Fed. 284 (C. C. A. Ills.): "We are, however, of opinion that the appeal is premature. There was no final decree from which an appeal could be taken. The order complained of is not a final decree adjudging the appellant's right and dismissing its bill or petition. It simply overrules the exceptions to the master's report and approves of the report. It neither determines the appellant's right nor disposes of its suit. It still remains within the power of the court below to set aside that report, to refer the case, and to direct further evidence to be taken. 'A confirmed report, •at best, stands in the same relation to a decree as a verdict to a judgment. It may be almost certain that the decree will follow it, but it cannot be enforced until the decree is entered.' Kingsbury v. Kingsbury, 20 ]\Iich. 212." § 2923. Validity, Priority, etc., of Liens Appealable as "Contro- versies." — Judgments determining the extent, validity or priority of mort- 95. In re Jacobs. 3 A. B. R. 671, 99 Fed. 539 (C. C. A. Mo.). Trials without jury: Findings were not reviewable under the law of 1867. Packer v. Whit, 1 A. B. R. 621 (C. C. A. Mass.). 96. In re Columbia Real Estate Co.; 7 A. B. R. 441, 112 Fed. 645 (C. C. A. Ind.). Compare, analogously (appeal in bankruptcy proceedings proper), Goodman v. Brenner, 6 A. B. R. 470, 109 Fed. 481 (C. C. A. La.). 97. Doroshow v. Ott, 14 A. B. R. 34, 134 Fed. 740 (C. C. A. N. J.). § 2926 REVIEW IN CIRCUIT COURT OF APPEALS. 1713 gages, or other alleged liens on the bankrupt's q,ssets, are "controversies arising in bankruptcy proceedings," and are appealable.'''^ Dodge z\ Xorlin, 13 A. B. R. 176. 133 Fed. 363 (C. C. A. Colo.) : "A judgment of a court of bankruptcy tliat a chattel mortgage upon the alleged property of the bankrupt is voidable by his trustee, that it entitles the mortgagee to no lien upon the property, and to no preference in payment out of its proceeds, is a final decision of a controversy arising in bankruptcy proceedings, of which the Circuit Court of Appeals would have had appellate jurisdiction if it had arisen in any other case in a Federal Court, and the decision may be reviewed by appeal." And they are appealable, although the lien be incident to a debt, the debt itself not being disputed and hence not appealable under § 25 (a).^^ § 2924. Summary Order on Third Party to Surrender Assets, Ap- pealable as "Controversy." — A summary order on the trustee's appli- cation, requiring a third party to surrender property which previously such third party had persuaded the bankruptcy receiver voluntarily to turn over to him. is an order in a "controversy," and is appealable under § 24 (a).^°'' Similarly, summary orders on purchasers at judicial sales and others hav- ing possession of the purchase price, are appealable under § 24 (a), where the facts are in dispute.^" ^ § 2925. Likewise, Summary Order on Trustee or Receiver to Sur- render Assets to Third Party. — Likewise, an order on the petition of a third party claiming ownership of goods in the hands of the trustee or receiver, is such a "controversy" and is appealable under § 24 (a),.^*^'^ § 2926. Plenary Suits in U. S. District Courts by Adverse Claim- ants in Possession to Enjoin Trustees, Appealable as "Contro- versies." — Plenary suits in the United States District Courts in bank- ruptcy, brought by adverse claimants in possession of the property involved to enjoin the trustee from interfering therewith, are "controversies arising 98. Instance, In re Roche, 4 A. B. R. 369, 101 Fed. 956 (C. C. A. Tex.) : Mortgagee's attorney denied fee as part of lien where mortgage not foreclosed Dut property sold by trustee in bankruptcy "clear and free." In re National Bank, 14 A. B. R. 180, 135 Fed. 62 (C. C. A. Ohio); instance. In re Soudans Mfg. Co., 8 A. B. R. 45, 113 Fed. 806 (C. C. A. Ind.);. Liddon & Bro. z'. Smith, 14 A. B. R. 204, 135 Fed. 43 (C. C. A. Fla.); In re Holmes, 15 A. B. R. 689, 142 Fed. 391 (C. C. A. Colo.). 99. Hutchinson v. Otis, 10 A. B-. R. 275, 123 Fed. 14 (C. C. A. Mass.). 100. Hinds v. Moore, 14 A. B. R. 1, 134 Fed. 221 (C. C. A. Tenn., reversing In re Leeds Woolen Mills, 12 A. B. R. 136, 129 Fed. 922). 101. Mason v. Wolkowich, 17 A. B. R. 717, 150 Fed. 699 (C. C. A. Mass.). 102. Walter Scott & Co. v. Wilson, 8 A. B. R. 349, 115 Fed. 284 (C. C. A.); instance, York Mfg. Co. z>. Cassell, 15 A. B. R. 633, 201 U. S. 344; Smith V. Evans, 17 A. B-. R. 433, 148 Fed. 89 (C. C. A. Ills.); Hewitt z: Berlin Machine Co., 11 A. B. R. 708, 194 Fed. U. S- 296. Compare ante, § 2875. 2 Rem B-33 1714 REMINGTON ON BANKRUPTCY. § 2928 in bankruptcy proceedii^gs," and not proceedings in bankruptcy proper, and are appealable under § 24 (a) of the Act.^"-^ § 2927. Also, Plenary Suits by Trustees in U. S. District Court to Recover Property Preferentially or Fraudulently Transferred.— And plenary suits brought by trustees in United States District Courts un- der favor of the amendment of 1903 to §§ 60 (b), 67 (e) and 70 (e), to recover or set aside preferential or fraudulent transfers, are appealable, under § 24 (a), where the facts are disputed. ^'^■* McCarty v. Coffin, 18 A. B. R. 148, 150 Fed. 307 (C. C. A. Tex.) : "The fore- going statement of the allegations of the petition which began this suit shows it to be in substance one to cancel the title held by McCarty, and to decree that the title was in Coffin as trustee. The petition is variously called by the par- ties in the subsequent proceedings a motion, a summary proceeding, and a bill. It is not written with that technical skill and proper formality usually found in a bill to cancel an adverse conveyance and to vest title in the complainant, but we find in the pleading all the necessary averments, and it concludes, if not with the usual prayer, by asking the court to grant the relief sought. The suit raises a distinct and separable issue, and is one of those 'controversies aris- ing in bankruptcy proceedings' over which the Circuit Court of Appeals have appellate jurisdiction under § 24a of the Bankruptcy Act of 1898. * * * The case does not fall within § 25a, which relates to appeals from judgments in certain enumer'ated steps in bankruptcj^ proceedings." Division 2. Error Proceedings in the Circuit Court of Appeals. SUBDIVISION "a." Error Proceedings in Bankruptcy Proceedings Proper. § 2928. Error Proceedings Sole Method of Review in Bankruptcy Proceedings Proper, Except in Three Cases of § 25 (a). — Error proceedings, as distinguished from appeals, are the method, and exclusive method, of reviewing erroneous orders made in bankruptcy proceedings proper, where the right of appeal therefrom is not expressly conferred by the bankruptcy act itself in § 25 (a) ; and it is exercisable under § 24 (b).if^ 103. Warehousing Co. v. Hand, 16 A. B. R. 56 (C. C. A. Wis.). See ante, § ^3875. 104. Instance, Rogers v. Page, 15 A. B. R. 502, 140 Fed. 596 (C. C. A. Tcnn.). See ante, § 2874. 105. Iloldcn X'. Stratton. 10 A. B. R. 788, 191 U. S. 115, quoted ante, § 2911. Ingram 7'. Wilson, 11 A. B. R. 194, 125 Fed. 91.3 (C. C. A. Iowa), quoted ante, § 2911; Apparently contra, Steele v. Buel, 5 A. B. R. 165, 104 Fed. 968 (C. C. A. Iowa). Section 24 (b) has no application to the territorial courts. In re Stumpf, 4 A. B. R. 267 (Okla. Sup. Ct.). % 2935 REVIEW IN CIRCUIT COURT OE APPEALS. 1715 Fisher v. Cushman, 4 A. B. R. 646, 103 Fed. 860 (C. C. A. Mass.): "The appeal will not lie because the subject thereof is not within the three specifica- tions of the matters of appeal found in § 25 of the Bankrupt Act." § 2929. Limited to Matters of Law under § 24 (b).— And the cir- cuit court of appeals is limited to matters of law therein. ^^*^ § 2930. Thus, Exemptions Reviewable Only By Petition to Re- view. — Thus, the allowance or disallowance of claims for exemptions and orders in relation to setting them apart, are proceedings in bankruptcy proper, but are not appealable, because not within any of the three classes, of § 25, and are reviewable by petition to review and not otherwise. ^^'^ § 2931. Likewise, Reopening or Refusal to Reopen Closed Es- tates. — Thus, an order reopening or refusing to reopen an estate once closed is not reviewable by appeal, but only by petition to revise. ^^^ § 2932. Administrative Orders Reviewable under § 24 (b).— Such -orders of the bankruptcy courts as relate merely to the administration of the estate are revisable by petition to review under § 24 (b).!^'^ § 2933. Attorneys' Fees and Other Expenses of Administration. — Allowances of attorneys' fees and other expenses of administrationii'-' ■are reviewable under § 24 (b), and only thus. § 2934. Likewise, Exemption Matters. — Likewise, exemption mat- ters.iii § 2935. Orders on Nonbankrupt Partners to File Schedules or Surrender Firm Assets. — Orders upon individual members of a bank- rupt partnership, themselves not adjudged bankrupt, to file schedules of their individual property and debts, and to surrender their property 106. In re O'Connell, 14 A. B. R. 238, 137 Fed. 838 (C. C. A. Mass.). Compare similar ruling as to petitions for revision in controversies arising in bankruptcy proceedings, post, § 2940, et seq. 107. Holden v. Stratton, 10 A. B. R. 788, 191 U. S. 115, quoted ante, § 2911; Holden v. Stratton, 14 A. B. R. 94, 198 U. S. 202; Ingram v. Wilson, 11 A. B. R. 194, 125 Fed. 913 (C. C. A. Iowa); Steiner v. Marshall, 15 A. B. R. 487, 140 Fed. 710 (C. C. A. Md.); instance, Lipman v. Stein, 14 A. B. R. 30, 134 Fed. 235 (C. C. A. Pa.); instance. In re Kane, 11 A. B. R. 533, 127 Fed. 552 (C. C. A. Ills.). But compare, apparently contra, Steele v. Buel, 5 A. B. R. 165, 104 Fed. 968 (C. C. A. Iowa). 108. In re O'Connell, 14 A. B. R. 237, 137 Fed. 838 (C. C. A. Mass.). 109. See ante, § 2868. Dickas v. Barnes, 15 A. B. R. 570, 140 Fed. 849 (C. C. A. Ohio); impliedly, Davidson v. Ferguson-McKinney Co., 18 A. B._ R. 156, 150 Fed. 269 (C. C. A. Tex.). See cases cited in next paragraph followmg. 110. Davidson i'. Friedman, 15 A. B. R. 490, 140 Fed. 853 (C. C. A. Mich.). 111. Davidson v. Ferguson-McKinney Co., 18 A. B. R. 156, 150 Fed. 269 uch clerk; of. First, the number of voluntary and compulsory cases, respectively and sepa- rately, in his charge during said year; Secondly, the amount of assets and liabilities therein, respectively and sepa- rately; Thirdly, the total receipts and disbursements therein, respectively and separately; Fourthly, the amount of dividends paid or declared, and the rate per centum thereof, in each class respectively and separately; Fifthly, the total amount of all his fees, charges and emoluments of every kind therein, earned or received. Sixthly, the total amount of expenses incurred by him for legal proceedings and counsel fees; Seventhly, the disposition of the cases respectively; Eightly, a summarized statement of both classes as aforesaid; And in like manner, the clerk of said court, in the month of August in each year, shall make up a statement for such year, ending June thirtieth, of- First, all classes in bankruptcy pending at the beginning of the said year; Secondly, all of such cases disposed of; Thirdly, all dividends declared therein; Fourthly, the number of reports made from each assignee therein; Fifthly, the disposition of all such cases; Sixthly, the number of assignees' accounts filed and settled; Seventhly, whether any marshal, register, or assignee has failed to make and file with such clerk the reports by this act required, and if any have failed to make such report, their respective names and and residences. And such clerk shall report in respect of all cases begun during said year. And he shall make a classified statement, in tabular form, of all his fees, charges, costs, and emoluments, respectively, earned or accrued during said year, giving each head under which the same accrued, and also the sum of all moneys paid into and disbursed out of court in bankruptcy, and the balance in hand or on deposit. And all the statements and reports herein required shall be under oath, and signed by the persons respectively making the same. And said clerk shall in said month of August, transmit every such statement and report so filed with him, together with his own statement and report as aforesaid, to the attorney-general of the United States. Any person who shall violate the provisions of this section shall on motion made, under the direction of the attorney-general, be by the district court dis- missed from his office, and shall be deemed guilty of a misdemeanor, and, on conviction thereof, be punished by a fine of not more than five hundred dollars, or by imprisonment not exceeding one year.) THE BANKRUPTCY ACT OF 1867. 1825 OF MEANING OF TERMS AND COMPUTATION OF TIME. § 48. And be it further enacted, That the word "assignee" and the word "creditor" shall include the plural also; and the word "messenger" shall include his assistant or assistants, except in the provision for the fees of that officer. The word "marshal" shall include the marshal's deputies; the word "person" shall also include "corporation;" and the word "oath" shall include "affirma- tion." And in all cases in which any particular number of days is prescribed by this Act, or shall be mentioned in any rule or order of court, or general order which .shall at any time be made under this Act, for the doing of any Act, or for anv- other purpose, the same shall be reckoned, in the absence of any expression to the contrary, exclusive of the first and inclusive of the last day, unless the last day shall fall on a Sunday, Christmas day, or on any day appointed by the President of the United States as a day of public fast or thanksgiving, or on the Fouth of July, in which case the time shall be reckoned exclusive of that day also. § 49. And be it further enacted, That all the jurisdiction, power, and authority conferred upon and vested in the District Court of the United States by this act in cases in bankruptc}' are hereby conferred upon and vested in the Su- preme Court of the District of Columbia. • And in and upon the Supreme Courts of the several Territories of tlit; United States, when the bankrupt resides in the said District of Columbia or in either of the said Territories. And in those judicial districts which are not within any organized circuit of the United States, the power and jurisdiction of a Circuit Court in bank- ruptcy may be exercised by the district judge. § 50. And be it further enacted. That this act shall commence and take effect, as to the appointment of the officers created hereby and the promulgation of rules and general orders, from and after the date of its approval: Provided, That no peti-tion or other proceeding under this act shall be filed, received, or commenced before the first day of June, Anno Domini eighteen hundred and S'xty-seven. 2 Rem B— 40 THE BANKRUPTCY ACT OF 1841. An Act to establish a uniform System of Bankruptcy throughout the United States. (Passed August 19th, 18-41, repealed March 3rd, 1843.) Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That there be, and hereby is, established throughout the United States a uniform system of bankruptcy, as follows: All persons whatsoever, residing in any State, District or Ter- ritory of the United States, owing debts which shall not have been created in consequence of a defalcation as a public officer; or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, who shall, by petition, setting forth to the best of his knowledge and belief a list of his or their creditors, their respective places of residence, and the amount due to each, together with an accurate inventory of his or their property, rights and credits, of every name, kind and description, and the location and situation of each and every parcel and portion thereof, verified by oath, or, if conscien- tiously scrupulous of taking an oath, by solemn affirmation, apply to the proper court, as hereinafter mentioned, for the benefit of this act, and therein declare themselves to be unable to meet their debts and engagments, and shall be deemed bankrupts within the purview of this act, and may be so declared accordingly by a decree of such court. All persons, being merchants, or using the trade of merchandise, all retailers of merchandise, and all bankers, factors, brokers, underwriters or marine insurers, owing debts to the amount of not less than two thousand dollars, shall be liable to become bankrupts within the true intent and meaning of this act, and may, upon the petition of one or more of their creditors, to whom they owe debts amounting in the whole or not less than five hundred dollars, to the appropriate court, be so declared accordingly, in the following cases, to wit: whenever such person, being a merchant, or actually using the trade of merchandise, or being a retailer of merchandise. or being a banker, factor, broker, underwriter, or marine insurer, shall depart from the State, District or Territory, of which he is an inhabitant, with intent to defraud his creditors; or shall con^ceal himself to avoid being arrested, or shall willingly and fraudulently procure himself to be arrested, or his goods and chattels, lands or tenements, to be attached, distrained, sequestered, or taken in execution; or shall remove his goods, chattels and effects, or con- ceal them to prevent their being levied upon or taken in execution, or by other process; or make any fraudulent conveyance, assignment, sale, gift or other transfer of his lands, tenements, goods or chattels, credits or evidence of debt: Provided, however. That any person so declared a bankrupt, at the instance of a creditor, may, at his election, by petition to such court within ten days after its decree, be entitled to a trial by jury before such court, to as- certain the fact of such bankruptcy; or if such person shall reside at a great distance from the place of holding such court, the said judge, in his discre- tion, may direct such trial by jury to be had in the county of such person's residence, in such manner and under such directions as the court may prescribe and give; and all such decrees passed by such court, and not so re-examined, shall be deemed final and conclusive as to the subject-matter thereof. Sec. 2. And be it further enacted, that all future payments, securities, con- veyances, or transfers of property, or agreement made or given by any bank- rupt in contemplation of bankruptcy, and for the purpose of giving any cred- • THE BAXKRUPTCY ACT OF 1841. 1827 itor, indorser, surety, or other person, any preference or priority over the general creditors of such bankrupts; and all other payments, securities, con- veyances, or transfers of property, or agreements made or given by such bankrupt in contemplation of bankruptcy, to any person or persons whatever, not being a bona fide creditor or purchaser, for a valuable consideration, with- out notice, shall be deemed utterly void, and a fraud upon this act; and the assignee under the bankruptcy shall be entitled to claim, sue for, recover, and receive, the same as part of the assets of the bankruptcy; and the person mak- ing such unlawful preferences and payments shall receive no discharge under the provisions of this act; Provided, That all dealings and transactions by and and with any bankrupt, bona fide made and entered into more than two months before the petition filed against him or by him, shall not be invalidated or effected by this act: Provided, That the other party to any such dealings cr transactions had no notice of a prior act of bankruptcy, or of the intention oi the bankrupt to take the benefit of this act. And in case it shall be made to appear to the court, in the course of the proceedings in bankruptcy, that the bankrupt, his application being voluntary, has, subsequent to the first day of January last, or at any other time, in contemplation of the passage of a bankrupt law, by assignments or otherwise, given or secured any preference to one creditor over another, he shall not receive a discharge unless the same be assented to by a majority in interest of those of his creditors who have not been so preferred: And provided also. That nothing in this act contained shall be construed to annul, destroy or impair, any lawful rights of married v.-omen, or minors, or any liens, mortgages, or other securities, on property, real or personal, which may be valid by the laws of the States respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act. Sec. 3. And be it further enacted, That all the property, and rights of prop- erty, of every name and nature, and whether real, personal or mixed, of every bankrupt, except as is hereinafter provided, who shall, by a decree of the proper court, be declared to be a bankrupt within this act, shall, by mere ope- ration of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment or other convey- ance whatsoever; and the same shall be vested, by force of the same decree, for this purpose, which power of appointment and removal such court may exercise at its discretion, toties quoties; and the assignee so appointed shall be vested with all the rights, titles, powers and authorities to sell, manage and dispose of the same, and to sue for and defend the same, subject to the orders and directions of such court, as fully, to all intents and purposes, as if the same were vested in or might be exercised by such bankrupt before or at the time of his bankruptcy declared as aforesaid; and all suits in law or in equity then pending, in which such bankrupt is a party, may be prosecuted and de- fended by such assignee to its final conclusion, in the same way and with the same efifect as they might have been by such bankrupt; and no suit com- menced by or against any assignee shall be abated by his death or removal from office, but the same may be prosecuted or defended by his successor in the same office: Provided, however. That there shall be excepted from the operation of the provisions 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 three hundred dollars; and, also, the wearing apparel of such bankrupt, and that of his wife and children; and the 1828 REMINGTON ON BANKRUPTCY. determination of the assignee in the matter shall, on exception taken, be sub- ject to the final decision of said court. Sec. 4. And be it further enacted, That every bankrupt who shall bona-fide surrender all his property, and rights of property, with the exception before mentioned, for the benefit of his creditors, and shall fully comply with and obey all the orders and directions which may from time to time be passed by the proper court, and shall otherwise conform to all the requisitions of this act, shall (unless a majority in number and value of his creditors who have proved their debts shall file their written dissent thereto) be entitled to a full discharge from all his debts, to be decreed and allowed by the court which has declared him a bankrupt, and a certificate thereof granted him by such court accordingly, upon his petition filed for such purpose; such discharge and certificate not, however, to be granted until after seventy days' notice in some public newspaper, designated by such court, to all creditors who have proved their debts, and other persons in interest, to appear at a particular time and place, to show cause why such discharge and certificate shall not be granted; at which time and place any such creditors, or other persons in in- terest, may appear and contest the right of the bankrupt thereto: Provided, That in all cases where the residence of the creditor is known, a service of him personally, or by letter addressed to him at his known usual place of residence, shall be prescribed by the court, as in their discretion shall seem proper, having regard to the distance at which the creditor resides from such court. And if any such bankrupt shall be guilty of any fraud or wilful con- cealment of his property or rights of property, or shall have preferred any of his creditors contrary to the provisions of this act, or shall wilfully omit or refuse to comply with any orders or directions of such court, or to conform to any other requisites of this act, or shall, in the proceedings under this act, admit a false or fictitious debt against his estate, he shall not be entitled to any such discharge or certificate; nor shall any person, being a merchant, banker, factor, underwriter, broker, or marine insurer, be entitled to any such dis- charge or certificate, who shall become bankrupt, and who shall not have kept proper books of account, after the passing of this act; nor any person who, after the passing of this act, shall apply trust funds to his own use: Provided, That no discharge of any bankrupt under this act shall release or discharge any person who may be liable for the same debt as a partner, joint con- tractor, indorser, surety, or otherwise for or with the bankrupt. And such bank- rupt shall at all times be subject to examination, orally, or upon written inter- rogatories, in and before such court, or any commission appointed by the court therefor, on oath, or, if conscientiously scrupulous of taking an oath, upon his solemn affirmation, in all matters relating to such bankruptcy, and his acts and doings, and his property and rights of property, which, in the judgment of such court, are necessary and proper for the purposes of justice; and if, in any such examination, he shall wilfully and corruptly answer, or swear, or affirm, falsely, he shall be deemed guilty of perjury, and shall be punishable therefor in like manner as the crime of perjury is now punishable by the laws of the United States; and such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt which are provable under this act, and shall be and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud or wilful concealment by him of his property or rights of property, as aforesaid, contrary to the provisions of this act, on prior reasonable notice specifying in writing such fraud or concealment; and if, THE BANKRUPTCY ACT OF 1841. 1829 in any case of bankruptcy, a majority in number and value of the creditors who shall have proved their debts at the time of hearing of the petition of the bankrupt for a discharge, as hereinbefore provided, shall at such hearing file their written dissent to the allowance of a discharge and certificate to such bankrupt, or if, upon such hearing, a discharge shall not be decreed to him, the bankrupt may demand a trial by jury upon a proper issue to be directed by the court, at such time and place and in such manner as the court may order; or he may appeal from that decision at any time within ten days there- after to the circuit court next to be held for the same district, by simply en- tering in the district court, or with the clerk thereof, upon record, his prayer for an appeal. The appeal shall be tried at the first term of the circuit court after it be taken, unless, for sufficient reason, a continuance be granted; and it may be heard and determined by said court summarily, or by a jury, at the option of the bankrupt; and the creditors may appear and object against a decree of discharge and the allowance of the certificate, as hereinbefore pro- vided. And if, upon a full hearing of the parties, it shall appear to the satis- faction of the court, or the jury shall find, that the bankrupt has made a full disclosure and surrender of all his estate, as by this act required, and has in all things conformed to the directions thereof, the court shall make a decree cf discharge, and grant a certificate, as provided in this act. Sec. 5. And be it further enacted. That all creditors coming and proving their debts under such bankruptcy, in the manner hereinafter prescribed, the same being bona-fide debts, shall be entitled to share in the bankrupt's property and effects, pro rata, without any priority or preference whatsoever, except only for debts due by such bankrupt to the United States, and for all debts dne by him to persons who, by the laws of the United States, have a pref- erence, in consequence of having paid monies as his sureties, which shall be first paid out of the assets; and any person who shall have performed any labor as an operative in the service of any bankrupt shall be entitled to receive the full amount of the wages due to him for such labor, not exceeding twenty- fxve dollars: Provided, That such labor shall have been performed within six months next before the bankruptcy of his employer; and all creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons, having uncertain or contingent demands against such bankrupt, shall be permitted to come in and prove such debts or claims under this act, and shall have a right, when their debts and claims be- come absolute, to have the same allowed them; and such annuitants and hold- ers of debts payable in future may have the present value thereof ascertained, under the direction of such court, and allowed them accordingly, as debts in presenti; and no creditor or other person coming in and proving his debt or other claim shall be allowed to maintain any suit at law or in equity therefor, but shall be deemed thereby to have waived all right of action and suit against such bankrupt; and all proceedings already commenced, and all unsatisfied judgments already obtained thereon, shall be deemed to be surrendered there- by; and in all cases where there are mutual debts or mutual credits between the parties, the balance only shall be deemed the true debt or claim between t'iem, and the residue shall be deemed adjusted by the set-ofif; all such proof of debts shall be made before the court decreeing the bankruptcy, or before some commissioner appointed by the court for that purpose; but such court shall have full power to disallow and set aside any debt, upon proof that such debt is founded in fraud, imposition, illegality, or mistake; and corpora- tions to whom any debts are due may make proof thereof by their president, cashier, treasurer, or other officer, who may be specially appointed for that 1830 REMINGTON ON BANKRUPTCY. purpose; and in appointing commissioners to receive proof of debts, and per- form other duties under the provisions of this act, the said court shall appoint such persons as have their residence in the county in which such bankrupt lives. Sec. 6. And be it further enacted, That the district court in every district shall have jurisdiction in all matters and proceedings in bankruptcy arising un- der this act, and any other act which may hereafter be passed upon the sub- ject of bankruptcy; the said jurisdiction to be exercised summarily, in the i!ature of summary proceedings in equity; and for this purpose the said dis- trict court shall be deemed always open. And the district judge may adjourn any point or question arising in any case in bankruptcy into the circuit court for the district, in his discretion, to be there heard and determined; and for this purpose the circuit court of such district shall also be deemed always open. And the jurisdiction hereby conferred on the district court shall ex- tend to all cases and controversies in bankruptcy arising between the bank- rupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy; to all cases and controversies between such creditors or creditors and the assignee of the estate, whether in office or removed; to all cases and controversies between such assignees and the bankrupt, and to all acts, matters and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy. And the said courts shall have full authority and jurisdiction to compel obedience to all orders and decrees passed by them in bankruptcy, by process of contempt and other remedial process, to the same extent the circuit courts may now do in any suit pending therein in equity. And it shall be the duty of the district court in each district, from time to time to prescribe suitable rules and regulations, and forms of proceedings, in all matters of bankruptcy; which rules, regulations and forms, shall be subject to be altered, added to, revised, or annulled, by the circuit court of the same district, and other rules and regulations and forms substituted therefore; and in all such rules, regulations and forms it shall be the duty of the said courts to make them as simple and brief as practicable, .to the end to avoid all unnecessary expenses, and to facilitate the use thereof by the public at large. And the said courts shall, from time to time, prescribe a tariff or table of fees and charges to be taxed by the officers of the court or other persons for services under this act, or any other on the subject of bankruptcy; which fees shall be as low as practicable, with reference to the nature and character of such services. Sec. 7. And be it further enacted. That all petitions by any bankrupt for the benefit of this act, and all petitions by a creditor against any bankrupt under this act, and all proceedings in the case to the close thereof, shall be he'd in the district court within and for the district in which the person sup- posed to be a bankrupt shall reside, or have his place of business, at the time when such petition is filed, except where otherwise provided in this act. And upon every such petition, notice thereof shall be published in one or more public newspapers printed in such district, to be designated by such court, at least twenty days before the hearing thereof; and all persons interested may appear at the time and place where such hearing is thus to be had, and show cause, if any they have, why the prayer of the said petitioner should not be granted; all evidence by witnesses to be used in all hearings before such court shall be under oath, or solemn affirmation, when the party is conscientiously scrupulous of taking an oath, and may be oral or by deposition, taken before such court, or before any commissioner appointed by such court, or before any disinterested State judge of the State in which the deposition is taken; THE BANKRUPTCY ACT OF 1841. 1831 and all proof of debts or other claims, by creditors entitled to prove the same under this act shall be under oath or solemn affirmations, as afore- said, before such court or commissioner appointed thereby, or before some disinterested State judge of the State where the creditors live, in such form as may be prescribed by the rules and regulations hereinbefore authorized to be made and established by the courts having jurisdiction in bankruptcy. But all such proofs of debts and other claims shall be open to contestation in the proper court having jurisdiction over the proceedings in the particular case in bankruptcy; and as well the assignee as the creditor shall have a right to a trial by jury upon an issue to be directed by such court, to ascertain the validity and amount of such debts or other claims; and the result therein, un- less a new trial shall be granted, if in favor of the claims, shall be evidence of the validity and amount of such debts or other claims. And if any person or persons shall falsely and corruptly answer, swear or affirm, in any hearing or on trial of any matter, or in any proceeding in such court in bankruptcy, or before any commissioner, he and they shall be deemed guilty of perjury, and punishable therefor in the manner and to the extent provided by law for other cases. Sec. 8. And be it further enacted, That the circuit court within and for the district where the decree of bankruptcy is passed shall have concurrent juris- diction with the district court of the same district of all suits at law and in equity which may and shall be brought by any assignee of the bankrupt against any person or persons claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt transferrable to, or vested in, such assignee; and no suit at law or in equit}^ shall, in any case, be maintainable by or against such assignee or by or against any person or persons claiming an adverse interest touching the prop- erty and rights of property aforesaid, in any court whatsoever unless the same shall be brought within two years after the declaration and decree of bank- ruptcy, or after the cause of suit shall first have accrued. Sec. 9. And be it further enacted. That all sales, transfers and other con- veyances of the assignee of the bankrupt's property and rights of property shall te made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy; and all assets received by the assignee in money shall, within sixty days afterwards, be paid into the court, subject to its order respecting its future safe-keeping and disposition; and the court may require of such . assignee a bond, with at least two sureties, in such sum as it may deem proper, conditioned for the due and faithful discharge of all his duties, and his compliance with the orders and directions of the court; which bond shall be taken in the name of the United States, and shall, if there be any breach thereof, be sued and suable, under the order of such court, for the benefit of the; creditors and other persons in interest. Sec. 10. And be it further enacted. That in order to ensure a speedy settle- ment and close of the proceedings in each case in bankruptcy, it shall be the duty of the court to order and direct a collection of the assets and a reduc- tion of the same to money, and a distribution thereof at as e.arly periods as practicable, consistently with a due regard ^o the interests of the creditors; and a dividend and distribution of such assets as shall be collected and re- duced to money, or so much thereof as can be safely disposed of, consistently with the rights and interests of third persons having adverse claims thereto, shall be made among the creditors who have proved their debts, as often as once in six months from the time of the decree declaring the bankruptcy; no- tice of such dividends and distribution to be given in some newspaper or news- papers in the district, designated by the court, ten days at least before the 1832 REMIXGTOX ON BANKRUPTCY. ovder therefor is passed; and the pendency of any suit at law or in equity, by or against such third persons, shall not postpone such division and distri- bution, except so far as the assets may be necessary to satisfy the same; and in all the proceedings in bankruptcy in each case shall, if practicable, be finally adjusted, settled and brought to a close by the court, within two years after the decree declaring the bankruptcy. And where any creditor shall not have proved his debt until a dividend or distribution shall have been made and declared, he shall be entitled to be paid the same amount, pro rata, out of tho remaining dividends or distributions thereafter made, as the other creditors have already received, before the latter shall be entitled to any portion thereof. ■ Sec. 11. And be it further enacted, That the assignee shall have full au- thority, by and under the order and direction of the proper court in bank- ruptcy, to redeem and discharge any mortgage or other pledge, or deposit, or lien upon any property, real or personal, whether payable in presenti or at a future day, and to tender a due performance of the conditions thereof. And such assignee shall also have authority, by and under the order and direction of the proper court in bankruptcy, to compound any debts or other claims, or securities due or belonging to the estate of the bankrupt; but no such order or direction shall be made until notice of the application is given in some public newspaper in the district, to be designated by the court, ten days at least before the hearing, so that all creditors and other persons in interest may ap- pear and show cause, if any they have, at the hearing, why the order or di- rection should not be passed. Sec. 12. And be it further enacted, That if any person who shall have been discharged under this act, shall afterward become bankrupt, he shall not again be entitled to a discharge under this act, unless his estate shall produce (after all charges) sufficient to pay every creditor seventy-five per cent, on the amount of the debt which shall have been allowed to each creditor. Sec. 13. And be it further enacted, That the proceedings in all cases in bankruptcy shall be deemed matters of record; but the same shall not be re- quired to be recorded at large, but shall be carefully filed, kept and numbered xn the office of the said court, and a dpcket only, or short memorandum there- of, with the numbers, kept in a book by the clerk of the court; and the clerk of the court, for affixing his name and the seal of the court to any form, or certifying a copy thereof, when required thereto, shall be entitled to receive, as compensation, the sum of twenty-five cents, and no more. And no officer of the court, or commissioner, shall be allowed by the court more than one dol- lar for taking the proof of any debt or other claim of any creditor or other person against the estate of the bankrupt; but he may be allowed, in additior^ his actual travel expenses for that purpose. Sec. 14. And be it further enacted. That where two or more persons, who are partners in trade, become insolvent, an order may be made in the manner provided in this act, either on the petition of such partners, or any one of them. or on the petition of any creditor of the partners, upon which order all the joint stock and property of the company, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as are herein exempted; and all the creditors of the company, and the separate creditors of each partner, shall be allowed to prove their respective debts; and the assignees shall also keep separate accounts of the joint stock or property of the com- pany, and of the separate estate of each member thereof; and after deducting- out the whole amount received by such assignees the whole of the expenses and disbursements paid by them, the net proceeds of the joint stock shall be appropriated to pay the creditors of the company, and the net proceeds of the separate estate of each partner shall be appropriated to pay his separate THE BANKRUPTCY ACT OF 1841. 1833 creditors; and if there shall be any balance of the separate estate of any part- ner, after the payment of his separate debts, such -balance shall be added to the joint stock for the payment of the joint 'creditors; and if there shall be any balance of the joint stock, after the payment of the joint debts, such balance shall be divided and appropriated to and among the separate estates of the several partners according to their respective rights and in- terests therein, and as it would have been if the partnership had been dis- solved without any bankruptcy; and the sum so appropriated to the separate estate of each partner shall be applied to the payment of his separate debts; and the certificate of discharge shall be granted or refused to each part- ner, as the same would or ought to be if the proceedings had been against bim alone under this act; and in all other respects the proceedings against partners shall be conducted in the like manner as if they had been commenced and prosecuted against one person alone. 'Sec. 15. And be it further enacted. That a copj^ of any decree of bank- ruptcy, and the appointment of assignees, as directed by the third section of this act, shall be recited in every deed of lands belonging to the bankrupt, sold and conveyed by any assignees under and by virtue of this act; and that such recital, together with certified copy of such order, shall be full and com- plete evidence both of the bankruptcy and assignment therein recited, and supersede the necessity of any other proof of such bankruptcy and assignment to validate the said deed; and all deeds containing such recital, and supported by such proof, shall be as effectual to pass the title of the bankrupt, of, in and to, the lands therein mentioned and described, to the purchaser, as fully to all intents, and purposes, as if made by such bankrupt himself immediately before such order. Sec. 16. And be it further enacted. That all jurisdiction, power and author- ity, conferred upon and vested in the district court of the United States by this act, in cases in bankruptcy, are hereby conferred upon and vested in the circuit court of the United States for the District of Columbia, and in and upon the supreme or superior courts of any of the Territories of the United States, in cases in bankruptcy, where the bankrupt resides in the said District of Columbia, or in either of the said Territories. Sec. 17. And be it further enacted. That this act shall take effect from and sfter the first day of February next. THE BANKRUPTCY ACT OF 1800. Ati Act to establish a uniform System of Bankruptcy throughout the United States. (Passed April 4th, 1800; repealed December 19th, 1803.) Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the first day of June next, if any merchant or other person residing within the United States, actually using the trade of merchandise, by buying and selling in gross, or by retail, or dealing in exchange, or as a banker, broker, factor, underwriter or marine insurer, shall, with intent unlawfully to delay or de- fraud his or her creditors, depart from the State in which such person usually resides, or remain absent therefrom, or conceal him or herself therein, or keep his or her house, so that he or she cannot be taken, or served with process, or willingly or fraudulently procure him or herself to be arrested, or his or her lands, goods, money or chattels to be attached, sequestered or taken in ex- ecution, or make or cause to be made any fraudulent conveyance of his or her lands, or chattels, or make or admit any false or fraudulent security or evi- dence of debt, or being arrested for debt, or having surrendered him or her- self in discharge or bail, shall remain in prison two months or more, or escape therefrom, or whose lands or effects being attached by process issuing out of, or returnable to, any court of common law, shall not, within two itxonths after written notice thereof, enter special bail and dissolve tRe same, or in districts in which attachments are not dissolved by the entry of special bail, being arrested for debt after his or her lands and effects, or any part thereof, have been attached for a debt or debts amounting to one thousand dollars or upwards, shall not, upon notice of such attachment, give sufficient security for the payment of what may be recovered in the suit in which he or she shall be arrested, at or before the return-day of the same, to be approved by the judge of the district, or some judge of the court out of which the proc- ess issued upon which he is arrested, or to which the same shall be returnable every such person shall be deemed and adjudged a bankrupt: Provided, that no person shall be liable to a commission of bankruptcy if the petition be not preferred, in manner hereinafter directed, within six months after the act of bankruptcy committed. Sec. 2. And be it further enacted. That the judge of the district court of the United States, for the district where the debtor resides, or usually resided at the time of committing the act of bankruptcy, upcui petition in writing against such person or persons being bankrupt, to him to be exhibited by any one creditor; or by a greater number, being partners, whose single debt shall amount to one thousand dollars, or by two creditors whose debts shall amount to one thousand, five hundred dollars^^ or by more than two creditors whose debts shall amount to two thousand dollars, shall have power, by commission under his hand and seal, to appoint such good and substantial persons, being citizens of the United States, and resident in such district, as such judge shall deem proper, not exceeding three, to be commissioners of the said bankrupt, and in case of vacancy or refusal to act, to appoint others from time to time as occasion may require: Provided always, that before any commission shall issue, the creditor or creditors petitioning shall make affidavit or solemn affir- mation before the said judge of the truth of his, her or their debts, and give THE BANKRUPTCY ACT OF 1800. 1835 bond, to be taken by the said judge, in the name and for the benefit of the said party so charged as a bankrvipt, and in such penalty, and with such surety, as he shall require, to be conditioned for the proving of his, her or their debts, as well before the commissioners as upon a trial at law, in case the due issuing forth of the said commission shall be contested, and also for proving the party a bankrupt, and to proceed on such commission in the man- ner herein prescribed. And if such debt shall not be really due, or after such commission taken out it cannot be proved that the party was a bankrupt, then the said judge shall upon the petition of the party aggrieved, in case there be occasion, deliver such bond to the said party, who may sue thereon, and recover such damages under the penalty of the same, as, upon trial at law, he shall make appear he has sustained, by reason of any breach of the condition thereof. Sec. 3. And be it further enacted. That before the commissioners shall be capable of acting, they shall respectively take and subscribe the following oath or affirmation, which shall be administered by the judge issuing the com- mission, or by any of the judges of the Supreme Court of the United States, or any judge, justice or chancellor of any State court, and filed in the office of the clerk of the district court: "I, A. B., do swear, or affirm, that I will faithfully, impartially and honestly, according to the best of my skill and knowledge, execute the several powers and trusts reposed in me, as a com- missioner, in a commission of bankruptcy against , and that with- out favor or affection, prejudice or malice." And the commissioners, who shall be sworn, as aforesaid, shall proceed, as soon as may be, to execute the same; and upon due examination, and sufficient cause appearing against the party charged, shall and may declare him or her to be a bankrupt: Pr'^vided, that before such examination be had, reasonable notice thereof, in writing, shall be delivered to the person charged as a bankrupt; or if he or she he not i found at his or her visual place of abode, to some person of the family above the age of twelve years, or if no such person appear, shall be fixed at the ■front or other public door of the house in which he or she usually resides, and thereupon it shall be in the power of such person, so charged as aforesaid, to demand before, or at the time appointed for such examination, that a jury be empanelled to inquire into the fact or facts alleged as the causes for issuing the commission, and on such demand being made the inquiry shall be had be- fore the judge granting the commission, .at such time as he may direct, and in that case such person shall not be declared bankrupt, unless, by the verdict of the jury, he or she shall be found to be within 1;he description of this act, and shall be convicted of some one of the acts described in the first section of this act: Provided also, that any commission which shall be taken out a.s aforesaid, and which shall not be proceeded in as aforesaid, within thirty days thereafter, may be superseded by the said judge who shall have granted the same, upon the application of the party thereby charged as a bankrupt, or of any creditor of such person, unless the delay shall have been unavoidable or upon a just occasion. 'Sec. 4. And be it further enacted. That the commissioners so to be ap- pointed shall have power forthwith, after they have declared such person a bankrupt, to cause to be apprehended, by warrant under their hands and seals, the body of such bankrupt, wheresoever to be found within the United States: Provided, they shall think that there is reason to apprehend that the said bank- rupt intends to abscond or conceal him or herself, and in case it be necessary in order to take the body of said bankrupt, shall have power to cause the doors of the dwelling-house of such bankrupt to be broken, or the doors of any other house in which he or. she shall be found. 1836 REMINGTON ON BANKRUPTCY. Sec. 5. And be it further enacted, That it shall be the duty of the commis- sioners so to be appointed, forthwith, after they have declared such persbn a bankrupt, and they shall have power to take into their possession all the estate, real and personal, of every nature and description, to which the said bankrupt may be entitled, either in law or equity, in any manner whatsoever, and cause the same to be inventoried and appraised to the best value, (his or her nec- essary wearing apparel, and the necessary wearing apparel of the wife and children, and necessary beds and bedding of such bankrupt only excepted) and also to take into their possession, and secure, all deeds and books of ac- count, papers and writings belonging to such bankrupt; and shall cause the same to be safely kept, until assignees shall be chosen or appointed, in manner hereafter provided. Sec. 6. And be it further enacted, That the said commissioners shall forth- with, after they have declared such person a bankrupt, cause due and suffi- cient public notice thereof to be given, and in such notice shall appoint some convenient time and place for the creditors to meet, in order to choose an as- signee or assignees of the said bankrupt's estate and effects; at which meeting the said commissioners shall admit the creditors of such bankrupt to prove their debts; and where any creditor shall reside at a distance from the place of such meeting, shall allow the debt of such creditor to be proved by oath or affirmation, made before some competent authority, and duly certified, and shall permit any person duly authorized by letter of attorney from such creditor, due proof of the execution of such letter of attorney being first made, to vote in the choice of an assignee or assignees of such bankrupt's estate and effects in the place and stead of such creditor: and the said commissioners shall assign, transfer or deliver over, all and singular, the said bankrupt's estate £nd effects, aforesaid, with all muniments and evidences thereof, to such per- son or persons as. the major part in value of such creditors, according to the several debts then proved, shall choose as aforesaid: Provided always, That in such choice, no vote shall be given by, or in behalf of, any creditor whose debt shall not amount to two hundred dollars. Sec. 7. Provided always, and be it further enacted. That it shall be lawful for the said commissioners, as often as they shall see cause, for the better preserving and securing of the bankrupt's estate, before assignees shall be chosen as aforesaid, immediately to appoint one or more assignee or assignees of the estate and effects aforesaid, or any part thereof; which assignee or as- signees aforesaid, or any of them, may be removed at the meeting of the cred- itors, so to be appointed as aforesaid for the choice of assignees, is such cred- itors, entitled to vote as aforesaid, or the major part in value of them, shall think fit; and such assignee or assignees as shall be so removed, shall deliver up all the estate and effects of such bankrupt which shall have come to his or their hands or possession, unto such other assignee or assignees as shall be chosen by the creditors as aforesaid; and all such estate and effects shall be, to all intents and purposes, as effectually and legally vested in such new- assignee or assignees as if the first assignment had been made to him or them by the said commissioners; and if such first assignee or assignees shall refuse or neglect, for the space of ten days next after notice, in writing, from such new assignee or assignees of their appointment, as aforesaid, to deliver over as aforesaid, all the estate and effects as aforesaid, every such assignee or assignees shall, respectively, forfeit a sum not exceeding five thousand dollars, ;or the use of the creditors, and shall moreover be liable for the property so detained. Sec. 8. And be it further enacted. That at any time previous to the closing of the accounts of the said assignee or assignees so chosen as aforesaid, it THE BANKRUPTCY ACT OF 1800. 1837 shall be lawful for such creditors of the bankrupt as are hereby authorized to vote in the choice of assignees, or the major part of them in value, at a reg- ular meeting of the said creditors, to be called for that purpose by the said commissioners, or by one-fourth in value of such creditors, to remove all or ctny of the assignees chosen as aforesaid, and to choose one or more in his or their place and stead, and such assignee or assignees as shall be so removed shall deliver up all the estate and eftects of such bankrupt which shall have come into his or their hands or possession, unto such new assignee or assignees >as shall be chosen by the creditors at such meeting; and all such estate and effects shall be, to all intents and purposes, as effectually and legally vested in such new assignee or assignees as if the first assignment had been made to him or them by the said commissioners; and if such former assignee or assignees shall refuse or neglect, for the space of ten days next after notice, in writing from such new assignee or assignees of their appointment, as aforesaid, to deliver over, as aforesaid, all the estate and effects aforesaid, every such former assignee or assignees shall respectively forfeit a sum not exceeding five thou- sand dollars for the use of the creditors, and moreover shall be liable for the property so detained. Sec. 9. And be it further enacted, That whenever a new assignee or as- signees shall be chosen as aforesaid, no suit at law or in equity shall be thereby abated; but it shall and may be lawful for the court in which any suit may depend, upon the suggestion of the removal of a former assignee or as- signees, and of the appointment of a new assignee or assignees, to allow the name of such new assignee or assignees, to be substituted in place of the name or names of the former assignee or assignees, and thereupon the suit shall be prosecuted in the name or names of the new assignee or assignees, in the same manner as if he or they had originally commenced the suit in his or their own names. Sec. 10. And be it further enacted, That the assignment or assignments of the commissioners of the bankrupt's estate and effects as aforesaid, made as aforesaid, shall be good at law or in equity against the bankrupt, and all per- sons claiming by, from or under such bankrupt, by any act done at the time, or after, he shall have committed the act of bankruptcy upon which the com- mission issued: Provided always, that in case of a bona-fide purchase made before the issuing of the commission from or under such bankrupt, for a valu- able consideration, by any person having no knowledge, information or notice of any act of bankruptcy committed, such purchase shall not be invalidated or impeached. Sec. 11. And be it further enacted. That the said commissioners shall have power, by deed or deeds, under their hands and seals, to assign and convey to the assignee or assignees to be appointed or chosen as aforesaid, any lands, teneinents or hereditaments which such bankrupt shall be seized of or entitled to, in fee tail, at law, or in equity, in possession, remainder or reversion, for the benefit of the creditors; and all such deeds being duly executed and recorded, according to the laws of the State within which such lands, tenements or here- ditaments may be situated, shall be good and effectual against all persons whom the said bankrupt, by common recovery, or other means, might or could bar of any estate, right, title of or in the said lands, tenements or hereditaments. Sec. 12. And be it further enacted, That if any bankrupt shall have con- veyed or assured any lands, goods or estate, unto any person, upon condition or power of redemption, by payment of money or otherwise, it shall be lawful for the commissioners, or for any person by them duly authorized for that purpose, by writing, under their hands and seals, to make tender of money or 1S38 re;mington on bankruptcy. other performance according to the nature of such condition, as fully as the bankrupt might have done; and the commissioners, after such performance or tender, shall have power to assign such lands, goods and estate for the benefit of the creditors, as fully and effectually as any other part of the estate of such bankrupt. Sec. 13. And be it further enacted. That the commissioners aforesaid shall have power to assign, for the use aforesaid, all the debts due to such bank- rupt, or to any other person for his or her use or benefit; which assignment shall vest the property and right thereof in the assignee or assignees of such bankrupt, as fully as if the bond, judgment, contract or claim had originally belonged or been inade to the said assignees; and after the said assignment, neither the said bankrupt nor any person acting as trustee for him or her, shall have power to recover or discharge the same, nor shall the same be at- tached as the debt of the said bankrupt; but the assignee or assignees afore- said shall have such remedy to recover the same, in his or their own name or names, as such bankrupt might or could have had if no commission of bank- ruptcy had issued. And when 'any action in the name of such bankrupt shall have been commenced, and shall be pending for the recovery of any debt or effects of such bankrupt, which shall be assigned, or shall or might become vested in the assignee or assignees of such bankrupt as aforesaid, then such assignee or assignees may claim to be, and shall be thereupon, admitted to prosecute such action in his or their name, for the use and benefit of the cred- itors of such bankrupt; and the same judgment shall be rendered in such action, and all attachments and other security taken therein shall be in like manner holden and liable, as if the said action had been originally commenced in the name of said assignee or assignees, after the original plaintiff therein had be- come a bankrupt as aforesaid: Provided, that where a debtor shall have, bona- fide, paid his debt to any bankrupt, without notice that such person was bank- rupt, he or she shall not be liable to pay the same to the assignee or assignees. Sec. 14. And be it further enacted. That if complaint shall be made or in- formation given to the commissioners, or if they shall have good reason to believe or suspect, that any of the property, gopds, chattels, or debts, of the bankrupt are in the possession of any other person, or that any person is indebted to or for the use of the bankrupt, then the said commissioners shall have power to summon,' or to cause to be summoned, by their attorney or other person duly authorized by them, all such persons before them, or the judge of the district where such person shall reside, by such process, or other means, as they shall think convenient, and upon their appearance to examine them by parole or by interrogatories, in writing, on oath or affirmation, which oath or afiirmation they are hereby empowered to administer, respecting the knowledge of all such property, goods, chattels and debts; and if such person shall refuse to be sworn or affirmed, and to make answer to such questions or interrogatories as shall be administered, and to subscribe the said answers, or upon examination shall not declare the whole truth, touching the subject-matter of such examination, then it shall be lawful for the commissioners or judge to commit such person to prison, there to be detained until they shall submit themselves to be examined in manner aforesaid, and they shall, moreover, for- feit double the value of all the property, goods, chattels and debts by them concealed. Sec. 15. And be it further enacted. That if any of the aforesaid persons shall, after legal summons to appear before the commissioners or judge, to be examined, refuse to attend, or shall not attend at the time appointed, having no such impediment as shall be allowed of by the commissioners or judge it shall be lawful for the said commissioners or judge to direct their warrants to THE BANKRUPTCY ACT OF 1800. 1839 such person or persons as by them shall be thought proper, to apprehend such persons as shall refuse to appear, and to bring them before the commissioners or judge to be examined, and upon their refusal to come, to commit them to prison, until they shall submit themselves to be examined according to the directions of this act: Provided, that such witnesses as shall be so sent for shall be allowed such compensation as the commissioners or judge shall thinic fit, to be ratably borne by the creditors; and if any person, other than the bankrupt, either by subornation of others, or by his or her own act, shall v/ilfully or corruptly commit perjury, shall on conviction thereof be fined not exceeding four thousand dollars and imprisoned not exceeding two years, and moreover shall,* in either case, be rendered incapable of being a witness in any court of record. Sec. 16. And be it further enacted. That if anj^ person or persons shall fraudulently or collusively claim any debts, or claim or detain any real or per- sonal estate of the bankrupt, every such person shall forfeit double the value thereof, to and for the use of the creditors. Sec. 17. And be it further enacted, That if any person, prior to his or her becoming a bankrupt, shall convey to any of his or her children, or other per- sons, any lands or goods, or transfer his or her debts or demands into other persons' names, with intent to defraud his or her creditors, the commissioners shall have power to assign the same in as effectual a manner as if the bank- rupt had been actually seized or possessed thereof. Sec. 18. z^nd be it further enacted. That if any person or persons who shall become bankrupt within the intent and meaning of this act, and against whom a commission of bankruptcy shall be duly issued, upon which commission such person or persons shall be declared bankrupt, shall not, within forty-two days after notice thereof, in writing, to be left at the usual place of abode of such person or persons, or personal notice in case such person or persons be then in prison, and notice given in some gazette, that such commission hath been issued, and of the time and place of meeting of the commissioners, sur- render him or herself to the said commissioners, and sign or subscribe such surrender, and submit to be examined, from time to time, upon oath or solemn affirmation, by and before such commissioners, and in all things conform to the provisions of this act, and also upon such his or her examination fully and truly disclose and discover all his or her effects and estate, real and personal, and how and in what manner, to whom and upon what consideration, and at what time or times, he or she hath disposed of, assigned or transferred, any of his or her goods, wares or merchandise, monies or other effects and estate, and of all books, papers and writings relating thereunto of which he or she was possessed, or in or to which he or she was in any way interested or en- titled, or which any person or persons shall then have, or shall have had in trust for him or her, or for his or her use, at any time before or after the issuing of the said commission, or whereby such bankrupt, or his or her fam- ily then hath or may have or expect any profit, possibility of profit, benefit or advantage whatsoever, except only such part of his or her estate and effects as shall have been really and bona-fide before sold and disposed of in the way of his or her trade and (fealings, and except such sums of money as shall have been laid out in the ordinary expenses of his or her family, and also upon such examination, execute in due form of law such conveyance, assur- ance and assignment of his or her estate, whatsoever and wheresoever, as shall be devised and directed by the commissioners, to vest the same in the assignees, their heirs, executors, administrators and assigns forever, in trust, for the use of all and every the creditors of such bankrupt, who shall come in and 1840 REMINGTON ON BANKRUPTCY. prove their debts under the commission; and deliver up unto the commission- ers all such part of his or her, the said bankrupt's goods, wares, merchandise, money, effects and estate, and all books, papers and writing thereunto relating, as at the time of such examination shall be in his or her possession, custody or power, his or her necessary wearing apparel, and the necessary wearing ap- parel of the wife and children, and necessary beds and bedding of such bank- rupt only excepted, then he or she the said bankrupt, upon the conviction of any wilful default or omission in any of the matters or things aforesaid, shall be adjudged a fraudulent bankrupt, and shall sufifer imprisonment for a term not less than twelve months, nor exceeding ten years, and shall not at any time after be entitled to the benefits of this act: Provided always, that in case any bankrupt shall be in prison or custody at the time of issuing such com- mission, and is willing to surrender and submit to be examined according to the directions of this act, and can be brought before the said commissioners and creditors for that purpose, the expense thereof shall be paid out of the said bankrupt's effects, and in case such bankrupt is in execution, or cannot be brought before the commissioners, that then the said commissioners, or some cne of them, shall from time to time attend the said bankrupt in prison or custody, and take his or her discovery as in other cases, and the assignees or one of them, or some person appointed by them, shall attend such bankrupt in prison or custody, and produce his or her books, papers and writings, in order to enable him or her to prepare his or her discovery; a copy whereof the said assignees shall apply for, and the said bankrupt shall deliver to them or their order within a reasonable time after the same shall have been required. Sec. 19. And be it further enacted. That the said commissioners shall ap- point, within the said forty-two days, so limited as aforesaid, for the bank- rupt to surrender and conform as aforesaid, not less than three several meet- ings for the purposes aforesaid, the third of which meetings shall be on the last of»the said forty-two days: Provided always, that the judge of the district within which such commission issues shall have power to enlarge the time so limited as aforesaid, for the purposes aforesaid, as he shall think fit, not exceeding fifty days, to be computed from the end of the said forty- two days, so as such order for enlarging the time be made at least six days before the expiration of said term. Sec. 20. And be it further enacted. That it shall be lawful for the commis- sioners, or any other person or officers by them to be appointed, by their war- rant, under their hands and seals, to break open in the day time the houses, 'chambers, shops, warehouses, doors, trunks or chests, of the bankrupt, where any of his or her goods or estate, deeds, books of account or writings, shall be, and to take possession of the goods, money and other estate, deeds, books of account or writings of such bankrupt. Sec. 21. And be it further enacted, That if the bankrupt shall refuse to be examined, or to answer fully, or to subscribe his or her examination as afore- said it shall be lawful for the commissioners to commit the offender to close imprisonment until he or she shall conform him or herself; and if the said bankrupt shall submit to be examined, and up»n his or her examination it shall appear that he or she hath committed wilful or corrupt perjury, he or she may be indicted therefor, and being thereof convicted shall suffer imprison- ment for a term not less than two years, nor exceeding ten years. Sec. 22. And be it further enacted. That every bankrupt having surrendered, shall, at all seasonable times before the expiration of the said forty-two days, as aforesaid, or of such further time as shall be allowed to finish his or her examination, be at liberty to inspect his or her books and writings, in the rut BANKRUPTCY ACT OF 1800. 1841 presence of some person to be appointed by the commissioners, and to bring with him or her, for his or her assistance, such persons as he or she shall think fit, not exceeding two at one time, and to make extracts and copies to enable him or her to make a full discovery of his or her effects; and the said bankrupt shall be free from arrests, in coming to surrender, and after having surrendered to the said commissioners for the said forty-two days, or such farther time as shall be allowed for the finishing his or her examination; and in case such bankrupt shall be arrested for debt, or taken on any escape war- rant or execution, coming to surrender, or after his or her surrender within the time before mentioned, then on producing such summons or notice under the hands of the commissioners, and giving the officer a copy thereof, he or she shall be discharged; and in case any officer shall afterwards detain such bankrupt, such officer shall forfeit to such bankrupt, for his or her own use, ten dollars for every day he shall detain the bankrupt. Sec. 23. And be it further enacted. That every person who shall knowingly or wilfully receive or keep concealed any bankrupt so as aforesaid summoned to appear, or who shall assist such bankrupt in concealing him or herself, or in absconding, shall suflfer such imprisonment, not exceeding twelve months, or pay such fine to the United States, not exceeding one thousand dollars, as upon conviction thereof shall be adjudged. Sec. 24. And be it further enacted. That the said commissioners shall have power to examine, upon oath or affirmation, the wife of any person lawfully declared a bankrupt, for 'the discovery of such part of his estate as may be concealed or disposed of bj^ such wife, of by any other person; and the wife shall incur such penalties for not appearing before the said commissioners, or refusing to be sworn or affirmed or examined, and to subscribe her examina- tion, or for not disclosing the truth, as by this act is provided against any other person in like cases. Sec. 25. And be it further enacted, That in case any person shall be com- mitted b}^ the commissioners for refusing to answer, or for not fully answering any question, or for any other cause, the commissioners shall in their warrant specify such question or other cause of commitment. Sec. 2.6. And be it further enacted, That if after the bankrupt shall have finished his or her final examination, any other person or persons shall volun- tarily make discovery of any part of such bankrupt's estate, before unknown to the commissioners, such person or persons shall be entitled to five per cent, out of the effects so discovered, and such further reward as the commissioners shall think proper; and any trustee having notice of the bankruptcy, wilfully concealing the estate of any bankrupt for the sf)ace of ten days after the bank- rupt shall have finished his final examination, as aforesaid, shall forfeit double the value of the estate so concealed, for the benefit of the creditors. Sec. 27. And be it further enacted. That if anj' bankrupt, after the issuing any commission against him or her, pay to the person who sued out the same, or give or deliver to such person, goods, or any other satisfaction or security for his or her debt, whereby such person shall privately have and receive a greater proportion of his or her debt than the other creditors, such preference shall be a new act of bankruptcy, and on good proof thereof such commission may and shall be superseded, and it shall and may be lawful for either of the judges having authority to grant the commission as aforesaid, to award any creditor petitioning another commission, and such person, so taking such un- due satisfaction as aforesaid, shall forfeit and lose, as well his or her whole debts, as the whole he or she shall have taken and received, and shall pay back or deliver up the same, or the full value thereof, to the assignee or assignees 2 Rem B— 41 1842 REMINGTON ON BANKRUPTCY. who shall be appointed or chosen under such commission, in manner aforesaid, in trust for, and to be divided among, the other creditors of the said bankrupt, in proportion to their respective debts. Sec. 28. And be it further enacted, That if any bankrupt, after the issuing any commission against him or her, pay to the person w^ho sued out the same, or give or deliver to such person, goods, or any other satisfaction or security, for his or her debt, whereby such person shall privately have and receive a greater proportion of his or her debt than the other creditors, such preference shall be a new act of bankruptcy, and on good proof thereof, such commission shall and may be superseded, and it shall and may be lawful for either of the judges, having authority to grant the commission as aforesaid, to award any creditor petitioning another commission; and such person, so taking such undue satisfaction as aforesaid, shall forfeit and lose, as well his or her whole debts, as the whole he or she shall have taken and received, and shall pay back, or deliver up the same, or the full value thereof, to the assignee or assignees who shall be appointed or chosen under such commission in man- ner aforesaid, in trust for, and to be divided amongst the other creditors of the said bankrupt, in proportion to their respective debts. Sec. 29. And further be it enacted. That every person who shall be chosen assignee of the estate and efifects of a bankrupt shall, at some time after the expiration of four months, and within twelve months from the time of issuing the commission, cause at least thirty days public notice to be given of the time and place the commissioners and assignees intend to meet, to make a dividend or distribution of the bankrupt's estate and effects; at which time the creditors who have not before proved their debts shall be at liberty to prove the same; and upon every such meeting the assignee or assignees shall produce to the commissioners and creditors then present fair and just accounts of all his or their receipts and payments, touching the bankrupt's estate and efifects, and of what shall remain outstanding, and the particulars thereof, and shall, if the creditors then present, or a major part of them, require the same, be examined upon oath or solemn afifirmation before the same commissioners, touching the truth of such accounts; and in such accounts the said assignee or assignees shall be allowed and retain all such sum and sums of money as they shall have paid or expended in suing out and prosecuting the commis- sion, and all other just allowances on account of or by reason or means of their being assignee or assignees; and the said commissioners shall order such part of the net product of the said bankrupt's estate as -by such accounts or otherwise shall appear to be in the hands of the said assignees, as they shall think fit, to be forthwith divided among such of the bankrupt's creditors as have duly proved their debts under such commission, in proportion to their several and respective debts; and the commissioners shall make such their order for a dividend in writing, under their hands, and shall cause one part of such order to be filed amongst the proceedings under the said commission, and shall deliver to each of the assignees under such commission a duplicate of such their order, which order of distribution shall contain an account of the time and place of making such order, and the sum total or quantum of all the debts proved under the commission, and the sum total of the money remain- ing in the hands of the assignee or assignees to be divided, and how many per cent, in particular is there ordered to be paid to every creditor of his debt; and the said assignee or assignees, in pursuance of such order, and without any deed or deeds of distribution to be made for the purpose, shall forthwith make such dividend and distribution accordingly, and shall take receipts in a book to be kept for the purpose, from each creditor, for the part or share of THE BANKRUPTCY ACT OF 1800. 1843 such dividend or distribution which he or they shall make and pay to each creditor respectively; and such order and receipt shall be a full and effectual discharge to such assignee for so much as he shall fairly pay, pursuant to such order as aforesaid. Sec. 20. And it be further enacted, That within eighteen months next after the issuing of the commission the assignee or assignees shall make a second dividend of the bankrupt's estate and efifects, in case the same were not Vv^holly divided upon the first dividend, and shall cause due public notice to be given of the time and place the said commissioners intend to meet to make a second distribution of the bankrupt's estate and effects, and for the creditors who shall not before have proved their debts to come in and prove the same; and at said meeting the said assignees shall produce, on oath or solemn affirma- tion as aforesaid, their account of the bankrupt's estate and effects, and what upon the balance thereof shall appear to be in their hands shall, by like order of the commissioners, be forthwith divided amongst such of the bankrupt's creditors as shall have made due proof of their debts, in proportion to their several and respective debts, which second dividend shall be final, unless any suit at law or in equity be pending, or any part of the estate standing out that could not have been disposed of, or that the major part of the creditors shall not have agreed to be sold or disposed of, or unless some other or future estate or effect of the bankrupt shall afterwards come to or vest in the said assignees, in which cases the said assignees shall as soon as may be, convert such future or other estate and effects into money, and shall within two months after the same be converted into money, by like order of the commissioners, divide the same among such bankrupt's creditors as shall have made due proof of their debt under such commission. Sec. 31. And be it further enacted, That in the distribution of the bankrupt's effects there shall be paid to every one of the creditors a portion-rate according to the amount of their respective debts, so that every creditor having security for his debt by judgment, statute, recognizance, or specialty, or having an at- tachment under any of the laws of the individual States, or of the United States, on the estate of such bankrupt, (Provided, there be no execution exe- cuted upon any of the real or personal estate of such bankrupt before the time he or she became bankrupts) shall not be relieved upon any such judgment, statute, recognizance, specialty or attachment, for more than a ratable part of his debt, with the other creditors of the bankrupt. Sec. 32. And be it further enacted. That the assignees shall keep one or more distinct book or books of account, wherein he or they shall duly enter all sums of money or effects which he or they shall have received_^or got into his or their possession, of the said bankrupt's estate, to which books of ac- count every creditor who shall have proved his or her debt shall, at all rea- sonable times, have free resort and inspect the same as often as he or she shall think fit. Sec. 33. And be it further enacted. That every bankrupt, not being in prison or custody, shall at all times after his surrender be bound to attend the as- signees upon every reasonable notice, in writing, for that purpose, given or left at the usual place of his or her abode, in order to assist in making out the accounts of the said bankrupt's estate and effects, and to attend any court of record, to be examined touching the same, or such other business as the said assignee shall judge necessary, for which he shall receive three dollars per day. Sec. 34. And be it further enacted, That all and every person and persons who shall become bankrupt as aforesaid, and who shall within the time limited by this act surrender him or herself to the commissioners, and in all things 1844 rem;ington on bankruptcy. conform as in and by this act is directed, shall be allowed five per cent, upon the net produce of all the estate that shall be recovered in and received, which shall be paid unto him or her by the assignee or assignees, in case the net produce, to be paid as aforesaid so as such ten per cent, shall not, in the whole, creditors of said bankrupt who shall have proved their debts under such com- mission the amount of fifty per cent, on their said debts, respectively, and so as the said five per cent, shall not exceed, in the whole, the sum of five hundred dollars; and in case the net produce of the said estate shall, over and above the allowance hereafter mentioned, be sufficient to pay the said creditors sev- enty-five per cent, on the amount of their said debts, respectively, that then the said bankrupt shall be allowed ten per cent, on the amount of such net produce, to be paid as aforesaid so as such ten per cent, shall not, in the whole, exceed the sum of eight hundred dollars; and every such bankrupt shall be discharged from all debts by him or her due or owing at the time he or she became bankrupt, and all which were or might have been proved under the said commission; and in case any such bankrupt shall afterwards be arrested or prosecuted or impleaded, for or on account of any of the said debts, such bankrupt may appear without bail, and may plead the general issue, and give this act and the special matter in evidence. And the certificate of such bank- rupt's conforming, and the allowance thereof, according to the directions of this act, shall be, and shall be allowed to be, sufficient evidence, prima facie of the party's being a bankrupt within the meaning of this act, and of the com- mission and other proceedings precedent to the obtaining such certificate, and a verdict shall thereupon pass for the defendant, unless the plaintif¥ in such action can prove the said certificate was obtained unfairly and by fraud, or unless he can make appear any concealment of estate or effects by such bank- rupt to the value of one hundred dollars. Provided, That no such discharge of a bankrupt shall release or discharge any person who was a partner with such bankrupt at the time he or she became bankrupt, or who was then jointly held or bound with such bankrupt for the same debt or debts from which such bankrupt was discharged as aforesaid. Sec. 35. Provided always, and be it further enacted, That if the net pro- ceeds of the bankrupt's estate, so»to be discovered, recovered and received, shall not amount to so much as will pay all and every of the creditors of the said bankrupt who shall have proved their debts under the said commis- sion, the amount of fifty per cent, on their debts respectively, after all charges first deducted, that then and in such case the bankrupt shall not be allowed five per centum on such estate as shall be recovered in, but shall have and be paid by the. assignees so much money as the commissioners shall think fit to allow, not more than three hundred dollars, nor exceeding three per centum on the net proceeds of the said bankrupt's estate. Sec. 36. Provided also, and be it further enacted, That no person becoming a bankrupt according to the intent and provisions of this act shall be entitled to a certificate of discharge, or to any of the benefits of the act, unless the commissioners shall certify under their hands to the judge of the district within which such commission issues that such bankrupt hath made a full dis- covery of his or her estate and effects, and .in all things conformed him or herself to the directions of this act, and that there doth not appear to them any reason to doubt of the truth of such discovery, or that the same was not a full discovery of the said bankrupt's estate and effects, and in all things conformed him or herself to the directions of this act, and that there doth not appear to them any reason to doubt of the truth of such discovery, or that the same was not a full discovery of the said bankrupt's estate and effects; or THE BANKRUPTCY ACT OF 1800. 1845 unless the said judge should be of opinion that the said certificate was unrea- sonably denied by the commissioners; and unless two-thirds, in number and in value, of the creditors of the bankrupt, who shall be creditors for not less than fifty dollars respectively, and who shall have duly proved their debts under the said commission, shall sign such certificate to the judge, and testify their consent to the allowance of a certificate of discharge in pursuance of this act; which signing and consent shall be also certified by the commissioners; but the said conimissioners shall not certify the same till they have proof by affidavit or affirmation, in writing, of such creditors, or of the persons re- spectively authorized for that purpose signing the said certificate; which affi- davit or affirmation, together with the letter or power of attorney to sign, shall be laid before the judge of the district within which such commission issues, in order for the allowing the certificate of discharge, and the said certifi- cate shall not be allowed unless the bankrupt make oath or affirmation in writing that the certificate of the commissioners and consent of the creditors thereunto were obtained fairly and without fraud; and any of the creditors of the said bankrupt are allowed to be heard, if they shall think fit before the respective persons aforesaid, against thfe making or allowing of such certificates by the commissioners or judge. Sec. 37. And be it further enacted. That if any creditor, or pretended cred- itor, of any bankrupt shall exhibit to the commissioners any fictitious or false debt or demand, with intent to defraud the real creditors of such bankrupt, and the bankrupt shall refuse to niake discovery thereof and sufifer the fair creditors to be imposed upon, he shall lose all title to the allowance upon the amount of his effects and to a certificate of discharge as aforesaid, nor shall he be entitled to the said allowance or certificate if he has lost at any one time fifty dollars, or in the whole three hundred dollars, after the passing of this act and within twelve months before he became a bankrupt, by any manner of gaming or wagering whatever. Sec. 38. And be it further enacted. That if any bankrupt who shall have obtained his certificate shall be taken in execution or detained in prison on account of any debts owing before he became a bankrupt, by reason that judgment was obtained before such certificate was allowed, it shall be lawful for any of the judges of the court wherein judgment was so obtained, or for any court, judge or justice, within the district in which such bankrupt shall be detained, having powers to award or allow the writ of habeas corpus, on such bankrupt producing his certificate so as aforesaid allowed, to order any sheriff or gaoler, who shall have such bankrupt in custody to discharge such bankrupt without fee or charge, first giving reasonable notice to the plaintiff, or his attorney, of the motion for such discharge. Sec. 39. And be it further enacted. That every person who shall have bona- fide given credit to or taken securities, payable at future days, from persons who are or shall become bankrupts, not due at the time of such persons be- coming bankrupt, shall be admitted to prove their debts and contracts as if they were payable presently, and shall have a dividend in proportion to the other creditors, discounting, where no interest is payable, at the rate of so much per centum per annum, as is equal to the lawful interest of the State where the debt was payable, and the obligee of any bottomry or respondentia bond, and the assured in any policy of in|urance, shall be admitted to claim, and after the contingency or loss to prove the debt thereon, in like manner as if the same had happened before issuing the commission; and the bankrupt shall be discharged from such securities as if such money had been due and payable 1846 REMINGTON ON BANKRUPTCY. before the time of his or her becoming bankrupt; and such creditors may peti- tion for a commission, or join in petitioning. Sec. 40. And, be it further enacted, That in case any pe^-son committed by the commissioners' warrant shall obtain a habeas corpus, in order to be dis- charged and there shall appear any insufficiency in the form of the warrant, it shall be lawful for the court or judge before whom such party shall be brought by habeas corpus, by rule or warrant, to commit such persons to the same prison, there to remain until he shall conform as aforesaid, unless it shall be made to appear that he had fully answered all lawful questions put to him by the commissioners; or in case such person was committed for not signing his examination, unless it shall appear that the party had good reason for re- fusing to sign the same or that the commissioners had exceeded their authority in making such commitment; and in case the gaoler to whom such person shall be committed shall willfully or negligently suffer such person to escape, or go without the doors or walls of the prison, such gaoler shall for such offense, being convicted thereof, forfeit a sum not exceeding three thousand dollars, for the use of the creditors. Sec. 41. And be it further enacted. That the gaoler shall, upon the request of any creditor having proved his debt and showing a certificate thereof under the hands of the commissioners, which the commissioners shall give without fee or reward, produce the person so committed; and in case such gaoler shall refuse to show such person to such creditor requesting the same, such person shall be considered as having escaped, and the gaoler or sherifif so rufusing shall be liable as for a willful escape. Sec. 42. And be it further enacted. That where it shall appear to the said commissioners that there hath been mutual credit given by the bankrupt and any other person, or mutual debts between them at any time before such per- son became bankrupt, the assignee or assignees of the estate shall state the account between them, and one debt may be set off against the other, and what shall appear to be due on either side on the balance of such account after such set off, and no more, shall be claimed or paid on either side respectively. Sec. 43. And be it further enacted. That it shall and may be lawful to and for the assignee or assignees of any bankrupt's estate and effects, under the direction of the commissioners, and by and with the consent of the major part in value of such of the said bankrupt's creditors as shall have duly proved their debts under the commission, and shall be present at any meeting of the said creditors, to be held in pursuance of due and public notice for that pur- pose given, to submit any difference or dispute for, on account of, or by reason or means of, any matter, cause, or thing whatsoever, relating to such bank- rupt, or to his or her estate or effects, to the final end and determination of ar- bitrators to be chosen by the said commissioners, and the major part in value of such creditors as shall be present at such meeting as aforesaid, in such manner as the said assignee or assignees, under the direction and with the consent aforesaid, shall think fit and can agree; and the same shall be binding on the several creditors of the said bankrupt, and the said assignee or assignees are hereby indemnified for what they shall fairly do, according to the directions aforesaid. Sec. 44. And be it further enacted. That the assignees shall be, and hereby are, vested with full power to dispose of all the bankrupt's estate, real and per- sonal, at public auction or vendue, without being subject to any tax, duty, im- position, or restriction, any law to the contrary notwithstanding. Sec. 45. And be it further enacted. That if after any commission of bank- ruptcy sued forth, the bankrupt happen to die before the commissioners shall THE BANKRUPTCY ACT OF 1800. 1847 have distributed the effects, or any part thereof, the commissioners shall never- theless proceed to execute the commission as fully as they might have done if the party were living. Sec. 46. And be it further enacted, That where any commission of bank- ruptcy shall be delivered to the commissioners therein named, to be executed, it shall and may be lawful for them before they take the oath or affirmation of qualification, to demand and take from the creditor or creditors prosecuting such commission a bond with one good security, if required, in the penalty of one thousand dollars, conditioned for the payment of the costs, charges and expenses which shall arise and accrue upon the prosecution of the said com- mission: Provided always, that the expenses so as aforesaid to be secured and paid by the petitioning creditor or creditors shall be repaid to him or them by the commissioner or assignees out of the first monies arising from the bank- rupt's -estate or effects, if so much be received therefrom. Sec. 47. And be it further enacted, That the district judges in each district respectively shall fix a rate of allowance to be made to the commissioners of bankruptcy, as compensation of services to be rendered under the commission, and it shall be lawful for any creditor, by petition to the district judge, to ex- cept to any charge contained in the account of the commissioners: and the said judge, after hearing the commissioners, may in a summary way decide upon the validity of such exception. Sec. 48. And be it further enacted, That all penalties given by this act for the benefit of the creditors shall be recovered by the assignee or assignees by action of debt, and the money so recovered, the charges of suit being deducted, shall be distributed towards payment of the creditors. Sec. 49. And be it further enacted, That if any action shall be brought against any commissioner, or assignee or other person, having authority under the commission, for anything done and performed by force of this act, the de- fendant may plead tbe general issue, and give this act and the special matter in evidence; and in case of a non-suit, discontinuance, or verdict or judgment for him, he shall recover double costs. Sec 50. And be it further enacted. That if any estate, real or personal, shall descend, revert to, or become vested in any person after he or she shall be declared a bankrupt, and before he or she shall obtain a certificate signed by the judge as aforesaid, all such estate shall, by virtue of this act, be vested in the said commissioners, and shall be bj' them assigned and conveyed to the assignee or assignees in fee simple or otherwise, in like manner as above di- rected, with the estate of the said bankrupt, at the time of the bankruptcy, and the proceeds thereof shall be divided among the creditors. Sec. 51. And be it further enacted. That the said commissioners shall, once in every year, carefully file in the clerk's office of the district court all the f)roceedings had in every case before them, and which shall have been finished, including the commissions, examinations, dividends, entries and other determi- nations of the said commissioners, in which office the final certificate of the said bankrupt may also be recorded; all which proceedings shall remain of record in the said office, and certified copies thereof shall be admitted as evi- dence in all courts, in like manner as the copies of the proceedings of the said district court are admitted in other cases. Sec. 52. And be it further enacted, That it shall and may be lawful for any creditor of such bankrupt to attend all or any of the examinations of said bank- rupt, and the allowance of the final certificate, if he shall think proper, and then and there to propose interrogatories to be put by the judge or commis- sioners to the said bankrupt and others, and also to produce and examine ;j^848 REMINGTON ON BANKRUPTCY. witnesses and documents before such judge or commissioners, relative to the subject-matter -before them. And in case either the bankrupt or cred- itor shall think him or herself aggrieved by the determination of the said judge or commissioners, relative to any material fact in the commence- ment or progress of the said proceedings, or in the allowance of the certifi- cate aforesaid, it shall and may be lawful for either party to petition the said judge, setting forth such facts and the determination thereon, with the complaint of the party, and a prayer for trial by jury to determine the same, and the said judge shall, in his discretion, make order thereon, and reward a venire facias to the marshal of the district, returnable within fifteen days before him, for the trial of the facts mentioned in the said petition, notice whereof shall be given to the commissioners and creditors concerned in the same; at which time the trial shall be had, unless, on good cause shown, the judge shall give farther time, and judgment being entered on the verdict of the jury sha|l be final on the said facts, and the judge or commissioners shall proceed agreeably thereto. Sec. 53. And be it further enacted, That the commissioners before the ap- pointment of assignees, and the assignees after such appointment, may from time to time make such allowance out of the bankrupt's estate until he shall have obtained his final discharge as in their opinion may be requisite for the necessary support of the said bankrupt and his family. Sec. 54. And be it further enacted. That it shall be lawful for the major part in value of the creditors, before they proceed to the choice of assignees, to direct in what manner, with whom and where the monies arising by and to be received from time to time out of the bankrupt's estate shall be lodged, until the same shall be divided among the creditors, as herein provided; to which direction every such assignee and assignees shall conform as often as three hundred dollars shall be received. Sec. 55. And be it further enacted. That every matter and thing by this act required to be done by the commissioners of any bankrupt shall be valid to all intents and purposes, if performed by a majority of them. Sec. 56. And be it further enacted. That in all cases where the assignee shall prosecute any debtor of the bankrupt for any debt, duty or demand, the commission, or a certified copy thereof, and the assignment of the commis- sioners of the bankrupt's estate, shall be conclusive evidence of the issuing the commission and of the person named therein being a trader and bankrupt at the time mentioned therein. Sec. 57. And be it further enacted, That every person obtaining a discharge from his debts, by certificate as aforesaid, granted under a commission of bankruptcy, shall not on any future commission be entitled to any other cer- tificate than a discharge of his person only; unless the net proceeds of the estate and effects of such person so becoming bankrupt a second time shall be sufficient to pay seventy-five per cent, to his or her creditors on the amount of their debts respectively. Sec. 58. And be it further enacted, That any creditor of a person against whom a commission of bankruptcy shall have been sued forth, and who shall lay his claim before the commissioners appointed in pursuance of this act, may at the same time declare his unwillingness to submit the same to the ju^dgment of the said commissioners, and his wish that a jury may be im- panelled to decide thereon: And in like manner the assignee or assignees of such bankrupt may object to the consideration of any particular claim by the THE BANKRUPTCY ACT OF 1800. 1849 commissioners, and require that the same should be referred to a jury. In either case such objection and request shall be entered on the books of the commissioners, and thereupon an issue shall be made up between the parties, and a jury shall be impanelled, as in other cases, to try the same in the circuit court for the district in which such bankrupt has usually resided. The verdict of such jury shall be subject to the control of the court, as in suits originally instituted in the said court, and when rendered, if not set aside by the said court, shall be certified to the commissioners, and shall ascertain the amount of any such claim, and such creditor or creditors shall be considered in all respects as having proved their debts under the commission. Sec. 59. And be it further enacted. That the lands and effects of any person becoming bankrupt may be sold on such credit, and on such security, as a major part in value of the creditors may direct: Provided, nothing herein con- tained shall be allowed so to operate as to retard the granting the bankrupt's certificate. Sec. 60. And be it further enacted, That if any person becoming bankrupt shall be in prison, it shall be lawful for any creditor or creditors, at whose suit he or she shall be in execution, to discharge him or her from custody, or if such creditor or creditors shall refuse to do so, the prisoner may petition the commissioners to liberate him or her, and thereupon, if in the opinion of the commissioners the conduct of such bankrupt shall have been fair, so as to en- title him or her in their opinion to a certificate, when by law such certificate might be given, it shall be lawful for them to direct the discharge of such prisoner, and to enter the same in their books, which being notified to the keeper of the gaol in which such prisoner may be confined shall be a sufficient authority for his or her discharge: Provided, that in either case, such discharge shall be no bar to another execution, if a certificate shall be refused to such bankrupt: And provided also, that it shall be no bar to a subsequent impris-. onment of such bankrupt by order of the commissioners, in conformity with the provisions of this act. Sec. 61. And be it further enacted, That this act shall not repeal or annul, or be construed to repeal or annul, the laws of any State now in force, or which may be hereafter enacted, for the relief of insolvent debtors, except so far as the same may respect persons who are or may be clearly within the pur- view of this act, and whose debts shall amount in the cases specified in the second section thereof to the sums herein mentioned. And if any person within the purview of this act shall be imprisoned for the space of three months, for any debt or upon any contract, unless the creditors of such prisoner shall proceed to prosecute a commission of bankruptcy against him or her, agreeably to the provisions of this act, such debtor may and shall be entitled to relief, under any such laws for the relief of insolvent debtors, this act notwithstand- ing. Sec. 62. And be it further enacted. That nothing contained in this law shall in any manner affect the right of preference to prior satisfaction of debts due to the United States as secured or provided by any law heretofore passed, nor shall be construed to lessen or impair any right to, or security for, money due to the United States or to any of them. Sec. 63. And be it further enacted, That nothing contained in this act shall be taken or construed to invalidate or impair any lien existing at the date of this act upon the lands or chattels of any person who may have become a bank- rupt. Sec. 64. And be it further enacted, That this act shall continue in force 1850 REMINGTON ON BANKRUPTCY. during the term of five years, and from thence to the end of the next session of congress thereafter, and no longer: Provided, that the expiration of this act shall not prevent the complete execution of any commission which may have been previously thereto issued. An Act to provide for the more convenient organisation of the Courts of the United States. (February 13, 1801.) Sec. 12. The said circuit courts respectively shall have cognizance, concur- rently with the district courts, of all cases which shall arise, within their re- spective circuits, under the act to establish an uniform system of bankruptcy throughout the United States; and each circuit judge, within his respective cir- cuit, shall and may perform, all and singular, the duties enjoined by the said act upon a judge of a district court: and the proceedings under a commission of bankruptcy which shall issue from a circuit judge shall, in all respects, be conformable to the proceedings under a commission of bankruptcy which shall issue from a district judge, mutatis mutandis. An Act to amend the judicial system of the United States. (April 29, 1802.) Sec. 11. In all cases in which proceedings shall, on the said first day of July next, be pending under a commission of bankruptcy issued in pursuance of the aforesaid act, entitled "x^n act to provide for the more convenient organiza- tion of the courts of the United States," the cognizance of the same shall be, and hereby is, transferred to, and vested in, the district judge of the district within which such commission shall have issued, who is hereby empowered to proceed therein in the same manner and to the same efifect as if such com- mission of bankruptcy had been issued by his order. GENERAL ORDERS IN BANKRUPTCY. SUPREME COURT OF THE UNITED STATES. October Term, 1898. In pursuance of the powers conferred by the Constitution and laws upon the Supreme Court of the United States, and particularly by the act of Congress approved July 1, 1898, entitled "An act to establish a uniform system of bankruptcy throughout the United States," it is ordered on this 28th day of November, 1898, that the following rules be adopted and es- tablished as general orders in bankruptcy, to take effect on the first Mon- day, being the second day, of January, 1899. And it is further ordered that all proceedings in bankruptcy had before that day, in accordance with the act last aforesaid, and being in substantial conformity either with the provisions of these general orders, or else with the general or- ders established by this court under the bankrupt act of 1867 and with any general rules or special orders of the courts in bankruptcy, stand good, subject, however, to such further regulation by rule or order of those courts as may be necessary or proper to carry into force and effect the bankrupt act of 1898 and the general orders of this court. Docket. The clerk shall keep a docket, in which the cases shall be entered and numbered in the order in which they are commenced. It shall contain a memorandum of the filing of the petition and of the action of the court thereon, of the reference of the case to the referee, and of the transmis- sion by him to the clerk of his certified record of the proceedings, with the dates thereof, and a memorandum of all proceedings in the case except those duly entered on the referee's certified record aforesaid. The docket shall be arranged in a manner convenient for reference, and shall at all times be open to public inspection. II. Filing of Papers. The clerk or the referee shall indorse on each paper filed with him the day and hour of filing, and a brief statement of its character. III. Process. All process, summons and subpcenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signature 1854 REMINGTON ON BANKRUPTCY. of the clerk and seal of the court, may, upon application, be furnished to the referees. IV. Conduct of Proceedings. Proceedings in bankruptcy may be conducted by the bankrupt in per- son in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. Every party may appear and conduct the proceedings by attor- ney, who shall be an attorney or counselor authorized to practice in the circuit court or district court. The name of the attorney or counselor, with his place of business, shall be entered upon the docket, with the date of the entry. All papers or proceedings offered by an attorney to be filed shall be indorsed ^s above required, and orders granted on motion shall contain the name of the party or attorney making the motion. Notices and orders which are not, by the act or by these general orders, required to be served on the party personally may be served upon his attorney. V. Frame oe Petitions. All petitions and the schedules filed therewith shall be printed or writ- ten out plainly, without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference. VI. Petitions in Dieeerent Districts. In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicil, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other peti- tions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an alle- gation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions ; and, in either case, the pro- ceedings upon the other petitions may be stayed until an adjudication is .Tiade upon the petition first heard; and the court which mak«s the first adjudication of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions shall be filed in different districts by different members of the same partnership for an adjudication of the bankruptcy of said partnership, the court in which the petition is first filed, having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall GENERAI, -ORDDRS IN BANKRUPTCY. 1855 be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the court so retaining jurisdiction shall, if satisfied that it is for the greatest convenience of parties in interest that another of said courts should proceed with the cases, order them to be transferred to that court. VII. Priority of Petitions. Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bankruptcy committed by said debtor on dififerent days within four months prior to the filing of said petitions, and the debtor shall appear and show cause against an adjudi- cation of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commission of the eariiest act of bankruptcy; and in case the several acts of bankruptcy are alleged in the different petitions to have been committed on the same day, the court be- fore which the same are pending may order them to be consolidated, and proceed to a hearing as upon one petition; and if an adjudication of bank- ruptcy be made upon either petition, or for the commission of a single act of bankruptcy, it shall not be necessary to proceed to a hearing upon the remaining petitions, unless proceedings be taken by the debtor for the purpose of causing such adjudication to be annulled or vacated. VIII. Proceedings in Partnership Cases. Any member of a partnership, who refuses to join in a petition to have the p'^rtnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act; and in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made. IX. Schedule in Involuntary Bankruptcy. In all cases of involuntary bankruptcy in which the bankrupt is absent or cannot be found, it shall be the duty of the petitioning creditor to file, 1856 REMINGTON ON BANKRUPTCY. v/ithin five days after the date of the adjudication, a schedule giving the names and places of residence of all the creditors of the bankrupt, accord- ing to the best information of the petitioning creditor. If the debtor is found, and is served with notice to furnish a schedule of his creditors and fails to do so, the petitioning creditor may apply for an attachment against the debtor, or may himself furnish such schedule as aforesaid. X. Indemnity for Expenses. Before incurring any expense in publishing or mailing notices or in traveling, or in procuring the attendance of witnesses, or in perpetuating testimony, the clerk, marshal or referee may require, from the bankrupt or other person in whose behalf the duty is to be performed, indemnity for such expense. Money advanced for this purpose by the bankrupt or other person shall be repaid him out of the estate as part of the cost of ad- ministering the same. XI. Amendments. The court may allow amendments to the petition and schedules on ap- plication of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules. If amendments zre made to separate schedules, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the cause of the error in the paper originally filed. XII. Duties of Referee. 1. The order referring a case to a referee shall name a day upon which the bankrupt shall attend before the referee; and from that day the bank- rupt shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the referee a protection against arrest, to continue until the final adjudication on his application for a dis- charge, unless suspended or vacated by order of the court. A copy of the order shall forthwith be sent by mail to the referee, or be delivered to him personally by the clerk or other officer of the court. And thereafter all the proceedings, except such as are required by the act or by these general orders to be had before the judge, shall be had before the-referee. 2. The time when and the place where the referees shall act upon- the matters arising under the several cases referred to them shall be fixed by special order of the judge, or by the referee; and at such times and places the referees may perform the duties which they are empowered by the act lo perform. GENERA!. ORDERS IN BANKRUPTCY. 1857 3. Applications for a discharge, or for the approval of a composition, or for an injunction to stay proceedings of a court or officer of the United States or of a State, shall be heard and decided by the judge. But he may refer such an application, or any specified issue arising thereon, to the referee to ascertain and report the facts. XIIL Appointment and Removal oe Trustee. The appointment of a trustee by the creditors shall be subject to be ap- proved or disapproved by the referee or by the judge; and he shall be removable by the judge only. XIV. No Ofeiciae or General Trustee. No official trustee shall be appointed by the court, nor any general trus- tee to act in classes of cases. XV. Trustee Not Appointed in Certain Cases. If the schedule of a voluntary bankrupt discloses no assets, and if no creditor appears at the first meeting, the court may, by order setting out the facts, direct that no trustee be appointed ; but at any time thereafter a trustee may be appointed, if the court shall deem it desirable. If no trustee is appointed as aforesaid, the court may order that no meeting of the creditors other than the first meeting shall be called. XVI. Notice to Trustee oe his Appointment. It shall be the duty of the referee, immediately upon the appointment and approval of the trustee, to notify him in person or by mail of his ap- pointment ; and the notice shall rec/uire the trustee forthwith to notify the referee of his acceptance or rejection of the trust, and shall contain a state- ment of the penal sum of the trustee's bond. XVII. Duties of Trustee. The trustee shall, immediately upon entering upon his duties, prepare a complete inventory of all the property of the bankrupt that comes into his possession. The trustee shall make report to the court, within twenty days after receiving the notice of his appointment, of the articles set oit to the bankrupt by him, according to the provisions of the forty-iseventh section of the act, with the estimated value of each article, and any creditor nay take exceptions to the determination of the trustee within twenty days 2 Rem B— 42 1858 REMINGTON ON BANKRUPTCY. after the filing of the report. The referee may require the exceptions to be argued before him, and shall certify them to the court ^ for final de- termination at the request of either party. In case the trustee shall neg- lect to file any report or statement which it is made his duty to file or make by the act, or by any general order in bankruptcy, within five days after the same shall be due, it shall be the duty of the referee to make an order requiring the trustee to show cause before the judge, at a time specified in the order, why he should not be removed from office. The referee shall cause a copy of the order to be served upon the trustee at least seven days before the time fixed for the hearing, and proof of the service thereof to be delivered to the clerk. All accounts of trustees shall be referred as of course to the referee for audit, unless otherwise specially ordered by the court. XVIII. Sale of Property. 1. All sales shall be by public auction unless otherwise ordered by the court. 2. Upon application to the court, and for good cause shown, the trustee Hiay be authorized to sell any specified portion of the bankrupt's estate at private sale; in which case he shall keep an accurate account of each article sold, and the price received therefor, and to whom sold; which ac- count he shall file at once with the referee. 3. Upon petition by a bankrupt, creditor, receiver or trustee, setting forth that a part or the wdiole of the bankrupt's estate is perishable, the nature and location of such perishable estate, and that there will be loss ifv the same is not sold immediately, the court, if satisfied of the facts stated and that the sale is required in the interest of the estate, may order the same to be sold, with or without notice to the creditors, and the proceeds to be deposited in court. XIX. Accounts of Marshal. The marshal shall make return, und-er oath, of his actual and necessary expenses in the service of every warrant addressed to him, and for custody of property, and other services, and other actual and necessary expenses paid by him, with vouchers therefor whenever practicable, and also wuth a statement that the amounts charged by him are just and reasonable. XX. Papers Filed After Reference. Proofs of claims and other papers filed subsequently to the reference, except such as call for action by the judge, may be filed either with the referee or with the clerk. GENERAL ORDERS IN BANKRUPTCY. 1859 XXL Proof of Debts. 1. Depositions to prove claims against a bankrupt's estate shall be cor- rectly entitled in the court and in the cause. When made to prove a debt due to a partnership, it must appear on oath that the deponent is a member of the partnership; when made by an agent, the reason the deposition is not made by the claimant in person must be stated ; and when made to prove a debt due to a corporation, the deposition shall be made by the treasurer, or, if the corporation has no treasurer, by the officer .whose duties most nearly correspond to those of treasurer. Depositions to prove debts existing in open account shall state when the debt became or will become due; and if it consists of items maturing at different dates the average due date shall be stated, in default of which it shall not be nec- essary to compute interest upon it. All such depositions shall contain an averment that no note has been received for such account, nor any judg- ment rendered thereon. Proofs of debt received by any trustee shall be delivered to the referee to whom the cause is referred. 2. Any creditor may file with the referee a request that all notices to which he may be entitled shall be addressed to him at any place, to be designated by the postoffice box or street number, as he may appoint ; and thereafter, and until some other designation shall be made by such creditor, ^11 notices shall be so addressed; and in other cases notices shall be ad- dressed as specified in the proof of debt. 3. Claims which have been assigned before proof shall be supported by a deposition of the owner at the time of the commencement of proceedings, setting forth the true consideration of the debt and that it is entirely un- secured, or if secured, the security, as is required in proving securea claims. Upon the filing of satisfactory proof of the assignment of a claim proved and entered on the referee's docket, the referee shall im- mediately give notice by mail to the original claimant of the filing of such proof of assignment; and, if no objection be entered within ten days, or within further time allowed by the referee, he shall make an order sub- rogating the assignee to the original claimant. If objection be made, he shall proceed to hear and determine the matter. 4. The claims of persons contingently liable for the bankrupt may be proved in the name of the creditor when known by the party contingently liable. When the name of the creditor is unknown, such claim may be proved in the name of the party contingently liable; but no dividend sliall be paid upon such claim, except upon satisfactory proof that it will diminish pro tanto the original debt. 5. The execution of any letter of attorney to represent a creditor, or of an assignment of claim after proof, may be proved or acknowledged before a referee, or a United States commissioner, or a notary public. When executed on behalf of a partnership or of a corporation, the person 1860 REMINGTON ON BANKRUPTCY. executing the instrument shall make oath that he is a member of the part- nership, or a duly authorized officer of the corporation on whose behalf he acts. When the person executing is not personally known to the offi- cer taking the proof or acknowledgment, his identity shall be established by satisfactory proof. 6. When the trustee or any creditor shall desire the re-examination of feny claim filed against the bankrupt's estate, he may apply by petition to the referee to whom the case is referred for an order for such re-exam- ination, and thereupon the referee shall make an order fixing a time for hearing the petition, of which due notice shall be given by mail addressed to the creditor. At the time appointed the referee shall take the examina- tion of the creditor, and of any witnesses that may be called by either party, and if it shall appear from such examination that the claim ought to be expunged or diminished, the referee may order accordingly. XXII. Taking of Testimony. The examination of witnesses before the referee may be conducted by the party in person or by his counsel or attorney, and the witnesses shall be subject to examination and cross-examination, which shall be had in conformity with the mode now adopted in courts of law. A deposition taken upon an examination before a referee shall be taken down in writing by him, or under his direction, in the form of narrative, unless he de- termines that the examination shall be by question and answer. When completed it shall be read over to the witness and signed by him in the presence of the referee. The referee shall note upon the deposition any question objected to, with his decision thereon; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant de- positions, or parts of them, as may be just. XXIII. Orders oe Referee. In all orders made by a referee, it shall be recited, according as the fact may be, that notice was given and the manner thereof ; or that the order was made by consent; or that no adverse interest was represented at the hearing; or that the order was made after hearing adverse interests. XXIV. Transmission of Proved Claims to Clerk. The 'referee shall forthwith transmit to the clerk a list of the claims proved against an estate, with the names and addresses of the proving creditors. CENERAi, orde;rs in bankruptcy. 1861 XXV. Special Me;e;ting of" Creditors. Whenever, by reason of a vacancy in the office of trustee, or for any other cause, it becomes necessary to call a special meeting of the creditors in order to carry out the purposes of the act, the court may call such a meeting, specifying in the notice the purpose for which it is called. XXVI. Accounts of Referei;. Every referee shall keep an accurate account of his traveling and inci- dental expenses, and of those of any clerk or any officer attending him in the performance of his duties in any case which may be referred to him; and shall make return of the same under oath to the judge, with l)roper vouchers when vouchers can be procured, on the first Tuesday in each month. XXVII. Review by Judge. When a bankrupt, creditor, trustee, or other person shall desire a re- view by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a sum- mary of the evidence relating thereto, and the finding and order of the referee thereon. XXVIII. Redemption oe Property and Compounding oe Claims. Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and discharge any mortgage or other pledge, or deposit or lien, upon any property, real or personal, or to relieve said property from any conditional contract, and to tender performance of the conditions thereof, or to compound and settle any debts or other claims due or be- longing to the estate of the bankrupt, the trustee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor ; and thereupon the court shall appoint a suitable time and place for the hear- ing thereof, notice of which shall be given as the court shall direct, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition authorizing such act on the part of the trustee. XXIX. . Payment oe Moneys Deposited. No moneys deposited as required by the act shall be drawn from the 1862 REMINGTON ON BANKRUPTCY. depository unless by check or warrant, signed by the clerk of the court, or by a trustee, and countersigned by the judge of the court, or by a referee designated for that purpose, or by the clerk or his assistant under an or- der made by the judge, stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or war- rant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be forthwith made in a book kept for that purpose by the trustee or his clerk ; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the case of each estate. A copy of this general order shall be furnished to the depository, and also the name of any referee or clerk authorized to countersign said checks. XXX. Imprisoned Debtor. If, at the time of preferring his petition, the debtor shall be imprisoned, the court, upon application, may order him to be produced upon habeas corpus, by the jailor or any officer in whose custody he may be, before the referee, for the purpose of testifying in any matter relating to his bank- ruptcy; and, if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may, upon like application, discharge him from such imprisonment. If the petitioner, during the pendency of the proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the district court, upon his application, may issue a right of habeas corpus to bring him be- fore the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be. Before granting the order for discharge the court shall cause notice to be served upon the creditor or his attorney, so as to give him an opportunity of appearing and being heard before the granting of the order. XXXI. Petition for Discharge. The petition of a bankrupt for a discharge shall state concisely, in ac- cordance with the provisions of the act and the orders of the court, the p-roceedings in the case and the acts of the bankrupt. XXXII. Opposition to Discharge or Composition. A creditor opposing the application of a bankrupt for his discharge, or for the confirmation of a composition, shall enter his appearance in oppo- sition thereto on the day when the creditors are required to show cause, ge;neral orders in bankruptcy. 1863 and shall file a specification in writing of the grounds of his opposition within ten days thereafter, unless the time shall be enlarged by special or- der of the judge. XXXIII. Arbitration. Whenever a trustee shall make application to the court for authority to submit a controversy arising in the settlement of a demand against a bank- rupt's estate, or for a debt due to it, to the determination of arbitrators, or for authority to compound and settle such controversy by agreement with the other party, the application shall clearly and distinctly set forth the subject-matter of the controversy, and the reasons why the trustee thinks it proper and most for the interest of the estate that the controversy should be settled by arbitration or otherwise. XXXIV. Costs in Conte;ste:d Adjudications. In cases of involunary bankruptcy, when the debtor resists an adjudica- tion, and the court, after hearing, adjudges the debtor a bankrupt, the peti- tioning creditor shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the peti- tioner. XXXV. Compensation of Clerks, Referees and Trustees. 1. The fees allowed by the act to clerks shall be in full compensation for all services performed by them in regard to filing petitions or other papers required by the act to be filed with them, or in certifying or de- livering papers or copies of records to referees or other officers, or in re- ceiving or paying out money; but shall not include copies furnished to other persons, or expenses necessarily incurred in publishing or mailing notices or other papers. 2. The compensation of referees, prescribed by the act, shall be in full compensation for all services performed by them under the act, or under these general orders ; but shall not include expenses necessarily incurred by them in publishing or mailing notices, in traveling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act and allowed by special order of the judge. 3. The compensation allowed to trustees by the act shall be in full com- pensation for the services performed by them ; but shall not include ex- penses necessarily incurred in the performance of their duties and allowed iipon the settlement of their accounts. 4. In any case in which the fees of the clerk, referee and trustee are Ig64 REMINGTON ON BANKRUPTCY. not required by the act to be paid by a debtor before filing his petition to be adjudged a bankrupt, the judge, at any time during the pendency of the proceedings in bankruptcy, may order those fees to be paid out of the estate; or may, after notice to the bankrupt, and satisfactory proof that he then has or can obtain the money with which to pay those fees, order him to pay them within a time specified, and, if he fails to do so, may order his petition to be dismissed. Amendment to General Orders in Bankruptcy No. 35. It is ordered by the Court that General Order in Bankruptcy No. 35 he amended by adding the following sentence to subdivision 4 : He mav also, pending such proceedings, both in voluntary and involun- tarx cases, order the commissions of referees and trustees to he paid im~ mediatelv after such commissions accrue and are earned. ■ XXXVI. Appeals. 1. Appeals from a court of bankruptcy to a circuit court of appeals, or to the supreme court of a Territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regulated, except as otherwise privided in the act, by the rules governing appeals in equity in the courts of the United States. 2. Appeals under the act of the Supreme Court of the United States from a circuit court of appeals, or from the supreme court of a Territory, or from the supreme court of the District of Columbia, or from any court of bankruptcy whatever, shall be taken within thirty days after the judg- ment or decree, and shall be allowed by a judge of the court appealed from, or by a justice of the Supreme Court of the United States. 3. In every case in which either party is entitled by the act to take an appeal to the Supreme Court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or de- cree, make and file a finding of the facts, and its conclusions of law thereon, stated separately ; and the record transmitted to the Supreme Court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the conclusions of loW. XXXVII. General Provisions. In proceedings in equity, instituted for the purpose of carrying into ef- fect the provisions of the act, or for enforcing the rights and remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceed- GENERAL ORDERS IN BANKRUPTCY. 1865 ings at law, instituted for the same purpose, the practice and procedure in cases at law shall be followed as nearly as may be. But the judge may, by special order in any case, vary the time allowed for return of process, for appearance and pleading, and for taking testimony and publication, and may otherwise modify the rules for the preparation of any particular case so as to facilitate a speedy hearing. XXXVIII. Forms. The several forms annexed to these general orders shall be observed and used, with such alterations as may be necessary to suit the circum- stances of any particular case. OFFICIAL FORMS IN BANKRUPTCY. [N. B. — Oaths required by the act, except upon hearings in court, may be ad- ministered by referees and by officers authorized to administer oaths in proceed- ings before the courts of the United States, or under the laws of the State where the same are to be taken. Bankrupt Act of 1898, c. 4, s. 20.] [Form No. 1.] Debtor's Petition. To the Honorable , Judge of the District Court of the United States for the District of : The petition of , of , in the county of , and district and State of , [state occupation], respectfully represents : That he has had his principal place of business [or has resided, or has had his domicil] for the greater portion of six months next imme- diately preceding the filing of this petition at , within said judicial district ; that he owes debts which he is unable to pay in full ; that he is willing to surrender all his property for the benefit of his creditors except such as is exempt by law, and desires to obtain the benefit of the acts of Congress relating to bankruptcy. That the schedule hereto annexed, marked A, and verified by your pe- titioner's oath, contains a full and true statement of all his debts, and (so far as it is possible to ascertain) the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said acts : That the schedule hereto annexed, marked B, and verified by your petitioner's oath, contains an accurate inventory of all his property, both real and personal, and such further statements concerning said property as are required by the provisions of said acts : Wherefore your petitioner prays that he may be adjudged by the court to be a bankrupt within the purview of said acts. , Attorney. United States of America, District of , ss : I, , the petitioning debtor mentioned and described in the foregoing petition, do hereby make solemn oath that the statements con- tained therein are true according to the best of my knowledge, information, and belief. , Petitioner. Subscribed and sworn to before me this .... day of , A, D. 19. . . (Official character.) 1870 REMINGTON ON BANKRUPTCY. ID < pq o pa w Q *-r i-r < c < C/1 Q W o in < w Q CO n a < ^ *^ -2 to :. s c S § C u u ^ 112 d c as JO rt ., 1 1 2. S 4j ^ l^ ^ c s ■" — so u5 « ^ y > c c >) > a < O'l-^ j^ +j *-i *j +j G rt j_) "t:; (T- .ii > "" 4J '^ ^ C P u. c« +j .::: V- CO u ^^.2 «« ^ 5 oj ^ a ajT^ c: ^ C G br 1- a c '> OFFICIAL FORMS IN BANKRUPTCY. 1871 = ^ rt-Q cfi O o ^ bz: o-x: ^^— S ^ > «D ■as «-3 .. !- •~ * — ZJ^ u «j S rt o -^ n ^g,s -z: o 1= -' «; .n • H-S o I. t"' ^ J — I nj < tn u 4/5- £<9- When and where debts were con- tracted. O o o .2 Q • Residences, (if unknown, that fact must be stated.) - O tn en O IS Reference to ledger or voucher. 1872 REMINGTON ON BANKRUPTCY. o -o o .JJ ^ ^ O u CO CJ s Tg.& O r- - >> H.^ S -u-^ tl ^•5 a ^ O O i2 c ^ rt"^ tH o a, p o ?^> rt tn tn u ^ ^ CT) :; U '^ ^ •o rt a en ^ (J o s < , b ci i^S-^'a •^ -So -S ^'^"^ '^'d i-^ utH ■" "-'.« ture o ontrac ractor, f so, w rt U -M.« ^ c rt o 5 " 1 +J ,_^ C U _• '^ M-l (U ^"^ ^ to C.-5 O (L) G -.Q aj 13 ^ ^^ tn O 2 (U ri 3 Pi^ a tn • t- G H o O G ^-iS ' *ir' en O c3 en (U h: r^ rt C"*^ f^ „ t-^ en O ■*-' :_, "°J • f-> i-i ^ — ( V) «J <-> Ji bjoS flj ^H e^ Cis 2 Rem B— 43 1874 REMINGTON ON BANKRUPTCY. < Q W K tn -O wT C C O ^ ''t.o €o2 £^^ &c2 O a> O s, ac mak ast h aj . - .-So I- w & ^ s 2 (U Cr-, -^3 0) W 0.2 i; a ^ ~ rt "^ .■>'-& «4-c rj > _ o 0.2 idences ankrup not ki ommer OIJS W u (U V- "-" >H aj TO I. and f th ders othe lA o o t-1 -c^ C ^- en rt (U t/i (J o j; ^ wr. ^ i wit of t lam pari Ci ^ ^ ^ "" TO •5-. 5 « G O C O u 3 o-o a. Q G I- ~ o ^ G c^ >» 2 5^ «< OJ rt.2 C5 .^ tn g " ^- « Q .E ^ *- Qj c o ■ :-€"o2 : & u G rt O O TO "g """^ tn bc ^-i: •peso — -r i2 tn G bJO^ 3 o y OFFICIAL FORMS IN BANKRUPTCY. 1875 pq In O Ph O 1-r M < w ta J n U Q Jri W ^ W W tj § tn w pq w & Q W HI u G 'U ^ ui o^ i~ C s >; 3 C g^ O h4 o 1876 REMINGTON ON BANKRUPTCY. CM Q W K o CO en " — . o a ^ tn o rt en en :i 1^ o rt u. X ■" u. 'O ri a t; £ S fj c r, •" •J ^■ en- ^ u g be o c.H a c/i ^ ^ o rs :: a -r. J_ N o > c -3 O >- -^ rt i I- o c ,, rt ^ ^ 'E ti 2 ^ o > tc C fcC b£ S o tr O . o -^ >.-- a u '-> s ^ c •:5 IS X "Ji en _r; O I- rt u O o W «o h-i <,^ CJ ■-S c/} O a, 1878 REMINGTON ON BANKRUPTCY. I •^ ^. OJ >. w H ^.h: rt •a-z} > ^ r- C rt o G C «o JD " m J^ tn OJ-o o ^ "Zl o ^ ^sz o >>-d "" 'X3 oper state and o:b^ H--. ^ ^^^ ■*<;. ^ ^ tn v^ -^ £ ^^— ^ "t! o "^ Cj"^ •^ pq •<^ H-^ M- i:-:3 o O 1^ rt cj -3 N w ■cL, ^ ui; J «o ■a o rt D Q ^' o > 5J W "S -G C t« c u C be e ditoi mou •S ■^ ^ o rt ryi V-. -* v>. 3 O W S-. *^ O - ^ r- r- X rt o ^-o 1- ^ r (^ n o - I 552 • « _ [/I 3 "S a D 02 Ph O 4^ .1 N >> C/1 4; -a > V Hi c u. OJ n o (> ,J_, o C a >i O H £ Q. < o O u Q. o r- t-, C - -S ^ ^ ►::; fL, pL, 5 -5? -".iS --! O O ^ - C r- O 3 n ^ "o CJ . . o 5 > ^ CJ r; — M-. >.o^ o o fc£ O ^ £ ;-. tfl o rt rt o <" O O a, _- 3 -5-55 a — ?-Q OFFICIAI, FORMS IN BANKRUPTCY. 1879 3 rt -t-" ^ U-t > c O o a 1 k- u (« ' •O > C en J-) w c3 U2 O -t-i at/1 ^s 1880 REMINGTON ON BANKRUPTCY. Schedule; B. (6) Books, papers, deeds, and zvritings relating to bankrupt's business and estate. The following is a true list of all books, papers, deeds and writings relating to my trade, business, dealings, estate, and effects, or any part thereof, which, at the date of this petition, are in my possession or under my custody and con- trol, or which are in the possession or custody of any person in trust for me, or for my use, benefit, or advantage; and also of all others which have been heretofore, at any time, in my possession, or under my custody or control, and which are now held by the parties whose names are hereinafter set forth, with the reason for their custody of the same. Books. Deeds. Papers. , , Petitioner. Oath to Schedule B. United States of America, District of , ss : On this day of , A. D. 19. ., before me personally came , the person mentioned in and who subscribed to the fore- going schedule, and who, being by me first duly sworn, did declare the said schedule to be a statement of all his estate, both real and personal, in accordance with the acts of Congress relating to bankruptcy. [Official character.] OFFICIAL FORMS IN BANKRUPTCY. 1881 Summary of Debts and Assets. (From the statements of the bankrupt in Schedules A and B.) Schedule A. Schedule A. Schedule A. Schedule A. Schedule A. Schedule A. Schedule A. Schedule A. Schedule B Schedule B Schedule B Schedule B Schedule B Schedulei'B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B Schedule B 1 (1) Taxes and debts due United States.... 1 (2) Taxes due States, counties, districts, and municipalities 1 (3) Wa^es 1 (4) Other debts preferred by law 2 Secured claims 3 Unsecured claims 4 Notes and bills which ought to be paid by other parties thereto 5 Accommodation paper Schedule A, total 1 Real estate 2 a Cash on hand 2b Bills, promissory notes, and securities.. 2 c Stock in trade 2 d Household goods, etc 2 e Books, prints, and pictures 2f Horses, cows, and other animals 2 g Carriages and other vehicles 2h Farming stock and implements 2 i Shipping and shares in vessels 2 k Machinery, tools, etc 2 1 Patents, copyrights, and trade-marks... 2 m Other personal property 3 a Debts due on open accounts 3 b Stocks, negotiable bonds, etc 3 c Policies of insurance 3 d Unliquidated claims 3 e Deposits of money in banks and elsewhere 4 Property in reversion, remainder, trust, etc. 5 Property claimed to be excepted 6 Books, deeds, and papers Schedule B, total 1882 remington on bankruptcy. [Form Xo. 2.] Partnership Petition. To the Honorable , Judge of the District Court of the United States for the District of : The petition of respectfully represents : That your petitioners and have been partners under the firm name of , having their principal place of business at , in the county of and district and State of for the greater portion of the six months next immediately preceding the filing of this petition; that the said partners owe debts which they are unable to pay in full ; that your petitioners are willing to surrender all their prop- erty for the benefit of their creditors, except such as is exempt by law, and desire to obtain the benefit of the acts of Congress relating to bank- ruptcy. That the schedule hereto annexed, marked A, and verified by oath, contains a full and true statement of all the debts of said partners, and, as far as possible, the names and places of residence of their creditors, and such further statements concerning said debts as are required by the provisions of said acts. That the schedule hereto annexed, marked B, verified by .... oath, contains an accurate inventory of all the property, real and personal, of said partners, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked C, verified by his oath, contains a full and true statement of all his individual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concerning said debts as are reqviired by the provisions of said acts ; and that the schedule hereto annexed, marked D, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked E. verified by his oath, contains a full and true statement of all his individual debts, and as far as possible, the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said acts ; and that the schedule hereto annexed, marked F, verified by his oath, contains an accurate in- ventory of all his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto, marked G, verified by his oath, contains a full and true statement of all his in- OFFICIAL FORMS IN BANKRUPTCY. 1883 dividual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said acts ; and that the schedule hereto annexed, marked H, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further state- ments concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked J, verified by his oath, contains a full and true statement of all •his individual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said acts, and that the schedule hereto annexed, marked K, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further statements concerning said property as are required by the pro- visions of said acts. Wherefore your petitioners pray that the said firm may be adjudged by a decree of the court to be bankrupts within the purview of said acts. Petitioners. , Attorney. . . , the petitioning debtors mentioned and described in the foregoing petition, do hereby make solemn oath that the statements con- tained therein are true according to the best of their knowledge, informa- tion, and belief. Petitioners. Subscribed and sworn to before me this .... day of , A. D. 19. [Official character.'] [Schedules to be annexed corresponding with schedules under Form No. 1.] 1884 REMIXGTOX ox BAXKRUPTCY. [Form No 3.] Creditor's Petition. To the Honorable , Judge of the District Court of the United States for the .... district of : The petition of , of , and , of .. and of , respectfully shows : That , of , has for the greater portion of six months next preceding- the date of filing this petition, had his principal, place of business, [or resided, or had his domicil] at , in the county of and State and district aforesaid, and owes debts to the amount of $1,000.* That your petitioners are creditors of said , having prov- able claims amounting in the aggregate, in excess of securities held by them, to the sum of $500. That the nature and amount of your petitioners' claims are as follows : And your petitioners further represent that said is in- solvent, and that within four months next preceding the date of this petition the said committed an act of bankruptcy, in that he did heretofore, to wit, on the .... day of Wherefore your petitioners pray that service of this petition, with a subpoena, may be made upon , as provided in the acts of Congress relating to bankruptcy, and that he may be adjudged by the court to be a bankrupt within the purview of said acts. Petitioners. Attornev. United States of America, District of ss: , .., , being three of the peti- tioners above named, do hereby make solemn oath that the statements contained in the foregoing petition, subscribed by them, are true. Before me, , this day of , 19. . . [Official character.] *[And is not a wage-earner nor chiefly engaged in farming or the tillage of the soil; (or, if a corporation), is a corporation principally engaged in, etc., ] of'flciaiv forms in bankruptcy. 1885 [Form No. 4.] Order to Show Cause upon Creditor's Petition. In the District Court of the United States for the .... District of In the matter of Bankrupt. In Bankruptcy. Upon consideration of the petition of that ....;. be declared a bankrupt, it is ordered that the said do appear at this court, as a court of bankruptcy, to be holden at , in the district aforesaid, on the .... day of ., at . . o'clock in the noon, and show cause, if any there be, why the prayer of said petition should not be granted ; and It is further ordered that a copy of said petition, together with a writ of subpoena, be served on said , by delivering the same to him personally or by leaving the same at his last usual place of abode in said district, at least five days before the day aforesaid. Witness the Honorable ., judge of the said court, and the seal thereof, at , in said district, on the .... day of , A. D. 19... Clerk. [Form No. 5.] Subpoena to Alleged Bankrupt. United States of America, .... District of To , in said district, greeting : For certain causes offered before the District Court of the United States of America within and for the .... district of , as a court of bank- ruptcy, we command and strictly enjoin you, laying all other matters aside and notwithstanding any excuse, that you personally appear before our said District Court to be holden at , in said district, on the .... day of ...., A. D. 19.., to answer to a petition filed by in our said court, praying that you may be adjudged a bankrupt; and to do further and receive that which our said District Court shall consider in this behalf. And this you are in no wise to omit, under the pains and penalties of what may befall thereon. Witness the Honorable , judge of said court, and the seal thereof, at , this .... day of , A. D. 19. . . Clerk. 1886 REMINGTON ON BANKRUPTCY. [ Form No. 6.] Denial of Bankruptcy. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. At , in said district, on the .... day of , A. D. 19. . . And now the said appears, and denies that he has com- mitted the act of bankruptcy set forth in said petition, or that he is in- solvent, and avers that he should not be declared bankrupt for any cause in said petition alleged ; and this he prays may be inquired of by the court {or, he demands that the same may be inquired of by a jury]. Subscribed and sworn to before me this .... day of ........ A. D. 19. . . > [Official character.'] [Form No. 7.] Order for Jury Trial. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. At , in said district, on .... day of \, A. D. 19. ., Upon the demand in writing filed by , alleged to be a bankrupt, that the fact of the commission by him of an act of bankruptcy, and the fact of his insolvency, may be inquired of by a jury, it is ordered, that said issue be submitted to a jury. } Clerk. official forms in bankruptcy. 1887 [Form No. 8.] Special Warrant to Marshal. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. To the marshal of said district or to either of his deputies, greeting: Whereas a petition for adjuchcation of bankruptcy was, on the .... day of , A. D. 19. . , filed against , of the county of and State of , in said district, and said petition is still pending ; and whereas it satisfactorily appears that said has committed an act of bankruptcy [or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value], you are therefore authorized and required to seize and take possession of all the estate, real and personal, of said , and of all his deeds, books of account, and papers, and to hold and keep the same safely subject to the further crder of the court. Witness the Honorable ji^ic^gc of the said court, and the seal thereof, at , in said district, on the .... day of , A. D. 19... Clerk. Rfturn of thf Marshal ThfrEon. By virtue of the within warrant, I have taken possession of the estate of the within-named , and of all his deeds, books of account, and papers which have come to my knowledge. Marslial [or Deputy Marshal.]. Fees and expenses. 1. Service of warrant 2. Necessary travel, at the rate of six cents a mile each way. . . . 3. Actual expenses in custody of property and other services as follows [Here state the particulars] Marshal [or Deputy Marshal.]. District of , A. D. 19... Personally appeared before me the said , and made oath that the above expenses returned by him have been actually incurred and paid by him, and are just and reasonable. Referee in Bankruptcy. 1888 remington on bankruptcy. [Form No. 9.] Bond of Petitioning Creditor. Know all men by these presents : That we, , as principal, and , as sureties, are held and firmly bound unto , in the full and just sum of dollars, to be paid to the said , executors, administrators, or assigns, to which payment,, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Signed and sealed this .... day of , A. D. 19. . . The condition of this obligation is such that whereas a petition in bank- ruptcy has been filed in the district court of the United States for the .... district of against the said , and the said has applied to that court for a warrant to the marshal of said district directing him to seize and hold the property of said , subject to the further orders of said district court. Now, therefore, if such a warrant shall issue for the seizure of said prop- erty, and if the said shall indemnify the said for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained, then the above obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered in presence of . . [seal.] [seal.] [SEAE.] Approved this .... day of , A. D. 19. District Judge. [Form No. 10.] Bond to Marshal. Know all men by these presents : That we, , as principal, and , as sureties, are held and firmly bound unto , marshal of the United States for the .... district of , in the full and just sum of dollars, to be paid to the said , his executors, administrators, or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and admin- istrators, jointly and severally by these presents. Signed and sealed this .... day of , A. D. 19. . . The condition of this obligation is such that whereas a petition in bank- rupcy has been filed in the district court of the United States for the .... district of , against the said , and the said court has issued a warrant to the marshal of the United States for said district, di- recting him to seize and hold property of the said , subject OFFICIAL FORMS IX BANKRUPTCY. 1889 10 the further order of the court, and the said property has been seized by said marshal as directed, and the said district court upon a petition of said has ordered the said property to be released to him. Now, therefore, if the said property shall be released according to the said , and the said , being adjudged a bank- lupt, shall turn over said property or pay the value thereof in money to the trustee, then the above obligation to be void; otherwisf to remain in full force and virtue. Sealed .and delivered in the presence of . . [seal.] [seal.] [SFAL.] Approved this .... day of , A. D. 19. . . District Judge. [Form No. 11.] Adjudication that Debtor is not Bankrupt. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankniptcy. At in said district, on the .... day of , A. D. 19. . . before the Honorable , judge of the .... district of This cause came on to be heard at , in said court, upon the petition of that be adjudged a bankrupt within the true intent and meaning of the acts of Congress relating to bankruptcy, ana [Here state the proceedings, zvhether there was no opposition, or, if opposed, state zvhat proceedings zvere had.] And thereupon, and upon consideration of the proofs in said cause [and the arguments of counsel thereon, if atiy,] it was fovmd that the facts set forth in said petition were not proved ; and it is therefore adjudged that said was not a bankrupt, and that said petition be dismissed, with costs. Witness the Honorable , judge of said court, and the seal tl.'ereof , at , in said district, on the .... day of , A. D. 19. . . Clerk. 2 Rem B— 44 1890 remington ox bankruptcy. [Form No. 12.] Adjudication of Bankruptcy. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. At ../...., in said district, on the .... day of , A. D. 18.., before the Honorable , judge of said court in bankruptcy, the petition of that be adjudged a bankrupt, ^vithin the true intent and meaning of the acts of Congress relating to bankruptcy, having been heard and duly considered, the said is hereby declared and adjudged bankrupt accordingly. Witness the Honorable , judge of said court, and the seal thereof, at , in said district, on the .... day of , A. D. 19... Clerk. [Form No. 13.] Appointment, Oath, and Report of Appraisers. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. It is ordered that , of , of , and , of , three disinterested persons, be, and they are hereby, appointed appraisers to appraise the real and personal .property belonging to the estate of the said bankrupt set out in the schedules now on file in this court, and report their appraisal to the court, said appraisal to be made as soon as may be, and the appraisers to be duly sworn. Witness my hand this .... day of , A. D. 19. .. Referee in Bankruptcy. .... District of , ss : • Personally appeared the within named and severally made oath that they will fully and fairly appraise the aforesaid real and per- sonal property according to their best skill and judgment. Subscribed and sworn to before me this .... day of . . . ., A. D. 19. [Official character. 1 We, the undersigned, having been notified that we were appointed to OFFICIAI, FORMS IN BANKRUPTCY. 1891 estimate and appraise the real and personal property aforesaid, have at- tended to the duties assigned us, and after a strict examination and careful inquiry, we do estimate and appraise the same as follows : In witness whereof we hereunto set our hands, at , this .... day ci , A. D. 19... [Form No. 14.] Order of Reference. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. Whereas , of , in the county of and district aforesaid, on the .... day of , A. D. 19. ., was duly adjudged a bankrupt upon a petition filed in this court [or, against] him on the .... day of , A. D. 19.., according to the provisions of the acts of Congress relating to bankruptcy. It is thereupon ordered, that said matter be referred to , one of the referees in bankruptcy of this court, to take such further pro- ceedings therein as are required by said acts ; and that the said shall attend before said referee on the .... day of at , and thenceforth shall submit to such orders as may be made by said referee or by this court relating to said bankruptcy. Witness the Honorable ,. , judge of said court, and the seal thereof, at , in said district, on the .... day of , A. D. 19. . . ) Clerk. 1892 remington on bankruptcy. [Form No. 15.] Order of Reference in Judge's Absence. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. Whereas on the day of , A. D. 19. . , a petitioned was tiled to have , of in the county of and district afore- said, adjudged a bankrupt according to the provisions of the acts of Con- gress relating to bankruptcy; and whereas the judge of said court was absent fr\)m said district at the time of filing said petition [or, in case of involuntary bankruptcy, on the next day after the last day on which plead- ings might have been filed, and none have been filed by the bankrupt or any of his creditors], it is thereupon ordered that the said matter be re- ferred to , one of the referees in bankruptcy of this court, to consider said petition and take such proceedings therein as are required by said acts ; and that the said shall attend before the said referee on the .... day of , A. D. 19. . , at Witness my hand and the seal of the said court, at , in said dis- trict, on the .... day of , A. D. 19.. . Clerk. [Form No. 15.] Referee's Oath of Office. I, , do solemnly swear that I will administer justice with- out respect to persons, and do ecjual right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as referee in bankruptcy, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States. So help me God. Subscribed and sworn to before me this .... day of ....... A. D, 19.. . District Judge. [Form No. 17.] Bond of Referee. Know all men by these presents : That we of as principal, and of and of , as sureties, are held and firmly bound to the OFFICIAL FORMS IN BANKRUPTCY. 1893 United States of America in the sum of dollars, lawful money of the United States, to be paid to the said United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, jvnd administrators, jointly and severally, by these presents. Signed and sealed this .... day of , A. D. 19. . . The condition of this obligation is such that whereas the said , has been on the .... day of , A. D. 19. . , appointed by the Honorable , judge of the district court of the United States for the .... district of , a referee in bankruptcy, in and for the county of , in said district, under the acts of Congress relating to bankruptcy. Now, therefore, if the said shall well and faithfully dis- charge and perform all the duties pertaining to the said office of referee in bankruptcy, then this obligation to be void ; otherwise to remain in full force and virtue. Signed and sealed in the presence of , [L.S.] , [l. s.] , [iv. S.] Approved this .... day of , A. D. 19. . . District Judge. [Form No. 18.] Notice of First Meeting of Creditors. In the District Court of the United States for the .... District of In Bankruptcy. In the matter of Bankrupt. Ill Bankruptcy. To the creditors of , of , in the county of , and district aforesaid, a bankrupt. Notice is hereby given that on the .... day of , A. D. 19. ., the said was duly adjudicated bankrupt ; and that the first meeting of his creditors will be held at in , on the .... day of ..,., A. D. 19.., at .. o'clock in the noon, at which time the said creditors may attend, prove their claims, appoint a trustee, examine the bankrupt, and transact such other business as may properly come before said meeting. > Referee in Bankruptcy. ,19... 1894 remington on bankruptcy. [Form No. 19.] List of Debts Proved at First Meeting. In the District Court of the United States for the .... District of In the matter of Bankrupt. //; Baiiknipfcy. At , in said district, on the .... day of , A. D. 19. . . before , referee in bankruptcy. The following is a list of creditors who have this day proved their debts : Names of creditors. Residences. Debts proved. ^ $ cts. Referee in Bankruptcy. [Form Nb. 20.] General Letter of Attorney in Fact when Creditor is not Repre- sented by Attorney at Law. In the District Court of the United States for the District of In the matter of Bankrupt. In Baiikruptcv. To : I' , of , in the county of and State of > do hereby authorize you, or any one of you, to attend the meeting or meetings of creditors of the bankrupt aforesaid at a court of bank- ruptcy, wherever advertised or directed to be holden, on the day and at the hour appointed and notified by said court in said matter, or at such other place and time as may be appointed by the court for holding such meeting or meetings, or at which such meeting or meetings, or any ad-' journment or adjournments thereof may be held, and then and there from time to time, and as often as there may be occasion, for me and in my rame to vote for or against any proposal or resolution that may be then OFFICIAL FORMS IN BANKRUPTCY. 1895 submitted under the acts of Congress relating to bankruptcy; and in the choice of trustee or trustees of the estate of the said bankrupt, and for me to assent to such appointment of trustee ; and with Hke powers to attend and vote at any other meeting or meetings of creditors, or sitting cr sittings of the court, which may be held therein for any of the purposes aforesaid; also to accept any composition proposed by said bankrupt, in satisfaction of his debts, and to receive payment of dividends and of money due me under any composition, and for any other purpose in my interest whatsoever, with full power of substitution. In witness whereof I have hereunto signed my name and affixed my seal the day of , A. D. 19. . . , [l. s.] - Signed, sealed, and delivered in the presence of. . Acknowledge before me this .... day of , A. D. 19. . . f [Official character.] [Form No. 21.] Special Letter of Attorney in Fact. In the matter of Bankrupt. Ill Bankruptcy. To I hereby authorize you, or any one of you, to attend the meeting of creditors in this matter, advertised or directed to be holden at , on the .... day of •. , before , or any adjournment thereof, and then and there for and in name to vote for or against any proposal or resolution that 'may be lawfully made or passed al such meeting or adjourned meeting, and in the choice of trustee or trustees of the estate of the said bankrupt. In witness whereof I have hereunto signed my nam€ and affixed my seal the day of , A. D. 19'. . . Signed, sealed, and delivered in presence of. . Acknowledge before me this .... day of , A. D. 19. . . [Official character.] 1896 REMINGTON ON BANKRUPTCY. [Form No. 22.] Appointment of Trustee by Creditors. In the District Court of the United States for the .... District of' In the matter of Bankrupt. /// Banknipicy. At , in said district, on the .... day of , A. D. 19.., before , referee in bankruptcy. This being the day appointed by the court for the first meeting of cred- itors in the above bankruptcy, and of which due notice has been given in the [here insert the names of the nezvspapers in zvhich notice luas pub- lished], we, whose names are hereunder written, being tlie majority in r.umber and in amount of claims of the creditors of the said bankrupt, v/hose claims have been allowed, and who are at present at this meeting, do hereby appoint , of , in the county of and State of , to be the trustee .... of the said bankrupt's estate and effects. . Signatures of creditors. Residences of the same. Amount of debt. « $ cts. Ordered that the above appointment of trustee — be, and the same is hereby, approved. Referee in Bankruptcy. official forms in bankruptcy. 1897 [Form No. 23.] Appointment of Trustee by Referee. In the District Court of the United States for the .... District of In the matter of Bankrupt. In Bankruptcy. At , in said district, on the .... day of , A. D. 19.., before , referee in bankruptcy. This being the day appointed by the court for the first meeting of cred- itors under the said bankruptcy, and of which due notice has been given in the [here insert the names of the nczvspapers in zvhich notice zvas pub- lished], 1, the undersigned referee of the said court in bankruptcy, sat at the time and place above mentioned, pursuant to such notice, to take the proof of debts and for the choice of trustee under the said bankruptcy; and I do hereby certify that the creditors whose claims had been allowed and w€re present, or duly represented, failed to make choice of a trustee of said bankrupt's estate, and therefore I do hereby appoint , of , in the county of and State of , as trustee of the same. Referee in Bankruptcy. [Form No. 24.] Notice to Trustee of his Appointment. In the District Court of the United States for the .... District of i In the matter of Bankrupt. In Bankruptcy. To , of , in the county of , and district afore- said : I hereby notify you that you were duly appointed trustee [or one of the trustees] of the estate of the above-named bankrupt at the first meeting » of the creditors, on the .... day of , A. D. 19. ., and I have ap- proved said appointment. The penal sum of your bond as such trustee has been fixed at dollars. You are required to notify me forth- with of your acceptance or rejection of the trust. Dated at the day of , x\. D. 19. . . Referee in Bankruptcy. 1898 remington on bankruptcy. [Form No. 25.] Bond of Trustee. Know all men by these presents : That we, , of , as principal, and , of , and , of , as sureties, are held and firmly bound unto the United States of America in the sum of dollars, in lawful money of the United States, to be paid to the said United States, f©r which payment, well and truly to be made, we bind ourselves and our heirs, executors, and administrators, jointly and severally, by these presents. Signed and sealed this .... day of , A. D. 19. . . The condition of this obligation is such that whereas the above-named . . .• was, on the .... day of A. D. 19. ., appointed trustee in the case pending in bankruptcy in said court, wherein is the bankrupt, and he, the said , has accepted said trust with all the duties and obligations pertaining thereunto : Now, therefore, if the said , trustee as aforesaid, shall obey such orders as said court may make in relation to said trust, and shall faithfully and truly account for all the moneys, assets, and effects of the estate of said bankrupt which shall come into his hands and pos- session, and shall in all respects faithfully perform all his official duties as sc'id trustee, then this obligation to be void; otherwise, to remain in full force and virtue. Signed and sealed in presence of . . ,"[se:al.] , [se;al.] ., [SKAL.] [Form No. 26.] Order Approving Trustee's Bond. At a court of bankruptcy, held in and for the .... District of , a! , , this .... day of , 19. . . Before , referee in bankruptcy, in the District Court of the United States for the .*. . . District of In the matter of Bankrupt. Ill Bankruptcy. It appearing to the Court , of , and in said dis- trict, has been duly appointed trustee of the estate of the above-named bankrupt, and has given a bond with sureties for the faithful performance of his official duties, in the amount fixed by the creditors [or by order of the court], to wit, in the sum of dollars it is ordered that the said bond be, and the same is hereby, approved. Referee in Bankruptcy. official forms in bankruptcy. 1899 [Form No. 27.] Order that no Trustee be Appointed. In the District Court of the United States for the .... District of In the matter of Bankrupt. In Bankruptcy. It appearing that the schedule of the bankrupt discloses no assets, and that no creditor has appeared at the first meeting, and that the appointment of a trustee of the bankrupt's estate is hot now desirable, it is hereby ordered that, until further order of the court, no trustee be appointed and no other meeting of the creditors be called. Referee in Bankruptcy. [Form No. 28.] Order for Examination of Bankrupt. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , on the day of , A. D. 19. . . Upon the application of , trustee of said bankrupt {or creditor of said bankrupt], it is ordered that said bankrupt attend before , one of the referees in bankruptcy of this court, at on the .... day of , at . . o'clock in the noon, to submit to examination under the acts of Congress relating to bankruptcy, and that i. copy of. this order be delivered to him, the said bankrupt, forthwith. Referee in Bankruptcy. [Form No. 29.] Examination of Bankrupt or Witness. In the District Court of the United States for the .... District of In the Matter of Bankrupt. /// Bankruptcy. At , in said district, on the .... day of , A. D. 19. ., be- fore , one of the referees in bankruptcy of said court. , of , in the county of , and State of , being duly sworn and examined at the time and place above mentioned^ upon his oath says. {Here insert substance of examination of party.'] Referee in Bankruptcy. 1900 remington on bankruptcy. [Form No. 30.] Summons to Witness. To : Whereas , of , in the county of , and State of , has been duly adjudged bankrupt, and the proceeding in bank- ruptcy is pending in the District Court of the United States for the District of These are to require you, to whom this summons is directed, personally to be and appear before , one of the referees in bankruptcy cf the said court, at , on the .... day of , at . . o'clock m the noon, then and there to be examined in relation to said bank- ruptcy. \\'itness the Honorable , judge of said court, and the seal thereof at , this day of , A. D. 19. . . Clerk. Return oe Summons to Witness. In the District Court of the United States for the .... District of In the flatter of Bankrupt. Ill Bankruptcy. On this .... day of , A. D. 19. . , before me came , of , in the county of and State of , and makes oath, and says that did, on , the .... day of , A. D. 19.., personally serve , of , in the county of and State of , with a true copy of the summons hereto annexed, by de- livering the same to him; and he further makes oath, and says that he M not interested in the proceeding in bankruptcy named in said summons. Subscribed and sworn to before me this .... day of , A. D. 19. [Form No. 31.] Proof of Unsecured Debt. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , in said district of , on the day of , A. D. 19. . , came , of in the county of , in said district of , and made oath, and says that the person by [or against] whom a petition for adjudication of bank- Or'I'iCIAIv FORMS IN BANKRUPTCY. 1901 ruptcy has been filed, was at and before the filing of said peti- tion and still is, justly and truly indebted to said deponent in the sum of dollars; that the consideration of said debt is as follows : that no part of said debt has been paid [except that there are no set-offs or counterclaims to the same [except and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for said debt whatever. Creditor. Subscribed and sworn to before me this .... day of , A. D. 19. , [Official character.'] [Form No. Z2.] Proof of Secured Debt. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , in said district of , on the .... day of , A. D. 19 . . , came , of , in the county of , in said district of , and made oath, and says that , the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent, in the sum of dollars ; that the consideration of said debt is as follows : that no part of said debt has been paid [except that there are no set-offs or counterclaims to the same [except c.nd that the only securities held by this deponent for said debt are the following : Creditor. Subscribed and sworn to before me this .... day of , A. D. 19. . . [Official character.'] 1902 remington on bankruptcy. [Form No. 33.] Proof of Debt Due Corporation. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , in said district of , on the .... day of , A. D. 19. . , came , of , in the county of , and State of , and made oath and says that he is of the , a corporation incorporated by and under the laws of the State of , and carrying on business at , in the county of , and State of , and that he is duly authorized to make this proof, and says that the said , the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of the said petition, and still is, justly and truly indebted to said corporation in the sum of dollars ; that the consideration of said debt is as follow^s : that no part of said debt has been paid [except that there are no set-offs or counterclaims to the same [except and that said corporation has not, nor has any person by its order, or to the knowledge or belief of said deponent, for its use, had or received any manner of security for said debt whatever. of said Corporation.. . Subscribed and sworn to before me this .... day of , A. D. 19.. . [Official character.] [Form No. 34.] Proof of Debt by Partnership. In the District Court of the United States for the District of In the flatter of Bankrupt. * In Bankruptcy. At , in said district of , on the day of A. D. 19, . , came of in the county of , in said district of , and made oath and says that he is one of the firm of , consisting of himself and , of , in the county of and State of ; that the said .' . . , the person by [or against] whom a petition for adjudication of bank- . ruptcy has been filed, was at and before the filing of said petition, and still • OFFICIAL FORMS IN BANKRUPTCY. 1903 is, justly and truly indebted to this deponent's said firm in the sum of dollars ; that the consideration of said debt is as follows : that no part of said debt has been paid [except that there are no set-offs or counterclaims to the same [except and this deponent has not, nor has his said firm, nor has any person by their order, or to this deponent's knowledge or belief, for their use, had or re- ceived any manner of security for said debt whatever. Creditor. Subscribed and sworn to before me this .... day of ; , A. D. 19. . . [Official character.] [Form No. 3S.] Proof of Debt by Agent or Attorney. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , in said district of , on the .... day of , A. D. 19. . , came , of , in the county of , and State of , attorney [or authorized agent] of , in the county of , , and State of , and made oath and says that , the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to the said , in the sum of dollars ; that the consideration of said debt is as follows : that no part of said debt has been paid [except ?.iid that this deponent has not, nor has any person by his order, or to this deponent's knowledge or belief, for his use had or received any manner of security for said debt whatever. And this deponent further says, that this deposition can not be made by the claimant in person because and that he is duly authorized by his principal to make this affidavit, and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied. Subscribed and sworn to before me this .... day of , A. D. 19. . . [Official character.] 1904 remington on bankruptcy. • [Form No. 36.] Proof of Secured Debt by Agent. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , in said district of , on the .... day of , A. D. 19. . , came , of in the county of , and State of , attorney [or, authori\zed agent] of , in the county of , and State of , and made oath, and says that ■ . , the person by [or, against] whom a petition for adjudication of bankruptcy has been filed, was, at and before, the fiHng of said petition, and still is, justly and truly indebted to the said in the sum of dollars ; that the consideration of said debt is as follows : that no part of said debt has been paid [except that there are no set-offs or counter claims to the same [except and that the only securities held by said for said debt are the fol- l(jwing : and this deponent further says that this deposition can not be made by the claimaint in person because and that he is duly authorized by his principal to make this deposition, and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated. Subscribed and sworn to before me this .... day of , A. D. 19. . . [Official character.] [Form Xo. 37.] Affidavit of Lost Bill, or Note. In the District Court of the United States for the .... District of In the ^Matter of Bankrupt. In Bankruptcy. On this . . . day of , A. D. 19 . . , at , came , of , in the county of , and State of , and makes oath and says that the bill of exchange [or note], the particulars whereof are underwritten, has been lost under the following circumstances, to wit, OFFICIAL FORMS IN BANKRUPTCY. 1905 and that he, this deponent, has not been able to find the same ; and this deponent further says that he has not, nor has the said , or any person or persons to their use, to this deponent's knowledge or belief, negotiated the said bill [or note], nor in any manner parted with or as- signed the legal or beneficial interests therein, or any part thereof; and that he, this deponent is the person now legally and beneficially interested in the same. Bill or note above referred to. Date. Drawer or maker. Acceptor. Sum. Subscribed and sworn to before me this .... day of , A. D. 19. , > [Official character.'] [Form No. 38.] Order Reducing Claim. Tn the District Court of the United States for the District of In the Matter of . . .' Bankrupt. In Bankruptcy. At , in said district, on the .... day of , x\. D. 19. . . Upon the evidence submitted to this court upon the claim of against said estate [and, if the fact he so, upon hearing counsel thereon] . it is ordered, that the amount of said claim be reduced from the sum of , as set forth in the affidavit in proof of claim filed by said creditor in said case, to the sum of , and that the latter-named sum be en- tered upon the books of the trustee as the true sum upon which a dividend shall be computed [// zvith interest, with interest thereon from the .... day of , A. D. 19...] Referee in Bankruptcy. 2 Rem B— 45 1906 REMINGTON ON BANKRUPTCY. [Form No. 39.] Order Expunging Claim. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. At ..'...., in said district, on the .... day of , A. D. 19. . . Upon the evidence submitted to the court upon the claim of against said estate [and, if the fact be so, upon hearing counsel thereon], it is ordered, that said claim be disallowed and expunged from the list of claims upon the trustee's record in said case. Referee in Bankruptcy. ^ [Form Xo. 40.] List of Claims and Dividends to be Recorded by Referee and by him delivered to Trustee. In the District Court of the United States for the District of In the Matter of Bankrupt. /;/ Bankruptcy. A list of debts proved and claimed under the bankruptcy of , zuith diz'idend at the rate of ... . per cent, this day declared thereon by , a referee in bankruptcy. No. Creditors. [To be placed alphabetically, and the names of all the parties to the proof to be carefully set forth.] Sum proved. cts. Dividend. cts. At , in said (hstrict, on the .... day of , A. D. 19. . . > Referee in Bankruptcy. offlciaiv forms in bankruptcy. 1907 [Form No. 41.] Notice of Dividend. In the District Court of the United States for the .... District of In the Matter of Bankrupt. In Bankruptcy. At , on the .... day of , A. D. 19. . . To Creditor of , bankrupt : I hereby inform you that you may, on application at my office, , on the .... day of , or on any day thereafter, between the hours of , receive a warrant for the dividend due to you out of the above estate. If you can not personally attend, the warrant will be de- livered to your order on your filing up and signing the subjoined letter. , Trustee. Creditor's Letter to Trustee. To , Trustee in bankruptcy of the estate of bankrupt : Please deliver to . . the warrant for dividend payable out of the said estate to me. , Creditor. [Form No. 42.] Petition and Order for Sale by Auction of Real Estate. In the District Court of the United States for the .... District of In the matter of Bankrupt. In Bankruptcy. Respectfully represents , trustee of the estate of said bankrupt, tiiat it would be for the benefit of said estate that a certain portion of the real estate of said bankrupt, to wit: [here describe it and its estimated z>alue] should be sold by auction, in lots or parcels, and upon terms and conditions, as follows : Wherefore he prays that he may be authorized to make sale by auction of said real estate as aforesaid. Dated this day of , A. D. 19. . . , Trustee. The foregoing petition having been duly filed, and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat [or after hearing in favor of said petition and in opposition thereto] , it is ordered that the said trustee be authorized to sell the portion of the bankrupt's real estate specified in the foregoing petition, by auction, keeping an accurate account 1908 REMINGTON ON BANKRUPTCY. of each lot or parcel sold and the price received therefor and to whom sold ; which said account he shall file at once with the referee. Witness my hand this .... day of , A. D. 19. . . Referee in Bankruptcy. [Form No. 43.] Petition and Order for Redemption of Property from Lien. Tn the District Court of the United States for the .... District of In the matter of Bankrupt. In Bankruptcy. Respectfully represents , trustee of the estate of said bankrupt, that a certain portion of said bankrupt's estate, to wit : [here describe the estate or property and its estimated value'\ is subject to a mort- gage [describe the mortgage^, or to a conditional contract [describing it^, or to a lien [describing the origin and nature of the lien^, [or, if the prop- erty be personal property, has been pledged or dposited and is subject to a lien] for [describe the nature of the lien], and that it would be for the benefit of the estate that said property should be redeemed and discharged from the lien thereon. Wherefore he prays that he may be empowered to pay out of the assets of said estate in his hands the sum of , being the amount of said lien, in order to redeem said property therefrom. Dated this day of , A. D. 19. . . , Trustee .... The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest be- mg represented thereat [or after hearing m favor of said petition and in opposition thereto], it is ordered that the said trustee be authorized to pay out of the assets of the bankrupt's estate specified in the foregoing petition the sum of , being the amount of the lien, in order to redeem the property therefrom. Witness my hand this .... day of , A. D. 19. . . Referee in Bankruptcy. [Form No. 44.] Petition and Orer for Sale Subject to Lien. In the District Court of the United States for the .... District of In tl'ie matter of . Bankrupt. 1)1 Bankruptcy. Respectfully represents , trustee of the estate of said OFFICIAL FORMS IN BANKRUPTCY. 1909 bankrupt, that a certain portion of said bankrupt's estate, to wit: [here describe the estate or property and its estimated value] is subject to a mortgage [describe mortgage], or to a conditional contract [describe it], or to a lien [describe the origin and nature of the lien], or [if the prop- erty be personal property] has been pledged or deposited and is subject to a lien for [describe the nature of the lien], and that it should be for the benefit of the said estate that said property should be sold, subject to said mortgage, lien, or other incumbrance. Wherefore he prays that he may be authorized to make sale of said property, subject to the incumbrance thereon. Dated this day of , A. D. 19. . . , Trustee. The foregoing petition having been duly filed and having come on for li.earing before me, of which hearing ten days" notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat [or after hearing in favor of said petition and in opposition thereto] , it is ordered that the said trustee be authorized to sell the portion of the bankrupt's estate spec- ified in the foregoing petition, by auction [or, at private sale], keeping an accurate account of the property sold and the price received therefor and to whom sold; which said account he shall file at once with the referee. Witness my hand this .... day of , A. D. 19. . . Referee in Bankruptcy. [Form Xo. 45.] Petition and Order for Private Sale. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. Respectfully represents , duly appointed trustee of the estate of the aforesaid bankrupt. That for the following reasons, to wit, , it is desirable and for the best interest of the estate to sell at private sale a certain portion of the said estate, to wit : Wherefore he prays that he may be authorized to sell the said propert)'' ai private sale. Dated this day of , A. D. 19. . . , Trustee. The foregoing petition having been duly filed and having come on for a 1910 REMINGTON ON BANKRUPTCY. hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat [or after hearing in favor of said petition and in opposition thereto] , it is ordered that the said trustee be authorized to sell a portion of the bankrupt's estate specified in the foregoing petition, at private sale, keeping an accurate account of each article sold and the price received therefor and to whom sold ; which said account he shall file at once with the referee. Witness my hand this .... day of , A. D. 19. . . Referee in Bankruptcy. [Form No. 46.] • Petition and Order for Sale of Perishable Property. l:-j the District Court of the United States for the District of In the Matter of Bankrupt. In Bankruptcy. Respectfully represents the said bankrupt, [or a creditor, 01 the receiver, or the trustee of the said bankrupt's estate]. That a part of the said estate, to wit, now in , is perishable, and that there will be loss if the same is not sold immediately. Where fore,, he prays the court to order that the same be sold immediately as aforesaid. Dated this day of , A. D. 19.. . The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to the creditors of the said bankrupt, [or without notice to the creditors], now, after due hearing, no adverse interest being represented thereat, [or after hearing in favor of said petition and in opposition thereto] I find that the facts are as above stated, and that the same is required in the interest of the estate, and it is therefore ordered that the same be sold forthwith and the proceeds thereof deposited in court. Witness my hand this .... day of , A. D. 19. . . Referee in Bankruptcy. official forms in bankruptcy. 1911 [Form No. 47.] Trustee's Report of Exempted Property. In the District of the United States for the District of In the matter of Bankrupt, Li Bankruptcy. At , on the day of , 19. . . The following is a schedule of property designated and set apart to be retained by the bankrupt aforesaid, as his own property, under the pro- visions of the acts of Congress relating to bankruptcy- General head. Particular description. Value. Military uniforms, arms, and equipments $ cts. Property exempted by State laws , Trustee. [Form No. 48.] Trustee's Return of No Assets. In the District Court of the United States for the District of In the matter of Bankrupt. /// Bankruptcy. At , in said district, on the .... day of , A. D. 19. . . On the day aforesaid, before me comes , of , in the county of and State of , and makes oath, and says that lie, as trustee of the estate and effects of the above-named bankrupt, neither received nor paid any moneys on account of the estate. Subscribed and sworn to before me at , this .....*. day oi A. D. 19... Referee in Bankruptcy. 1912 REMINGTON ON BANKRUPTCY. d 02 S3 Sh E-i o fe official forms in bankruptcy. 1913 [Form Xo. 50.] Oath to Final Account of Trustee. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. On this .... day of A. D. 19.., before me conies , of , in the county of and State of , and makes oath, and says that he was, on the .... day of , A. D. 19. . , appointed trustee of the estate and effects of the above-named bankrupt, and that as such trustee he has conducted the settlement of the said estate. That the account hereto annexed containing .... sheets of paper, the first sheet whereof is marked with the letter .... [reference may here also he made to any prior account filed by said trustee] is true, and such ac- count contains entries of every sum of money received by said trustee on account of the estate and effects of the above-named bankrupt, and that the payments purporting in such 'account to have been made by said trustee have been so made by him. And he asks to be allowed for said payments r.nd for commissions and expenses as charged in said accounts. , Trustee. . . • Subscribed and sworn to before me at , in said district of , tl}is .... day of , A. D. 19... [Official character.] [Form Xo. 51.] Order Allowing Account and Discharging Trustee. In the District Court of the United States for the District of In the matter of , Bankrupt. /;/ Bankruptcy. The foregoing account having been presented for allowance, and having been examined and found correct, it is ordered that the same be allowed, and that the said trustee be discharg^ed of his trust. Referee in Bankruptcy, 1914 remington on bankruptcy. [Form No. 52.] Petition for Removal of Trustee. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. To the Honorable , Judge of the District Court for the District of : The petition of one of the creditors of said bankrupt, respectfully represents that it is for the interest of the estate of said bank- rupt that , heretofore appointed trustee of said bankrupt's estate, should be removed from his trust, for the causes following, to wit: [here set forth the particular cause or causes for zchich such removal is re- quested.] Wherefore pray that notice may be served upon said , trustee as aforesaid, to show cause, at such time as may be fixed by the court, why an order should not be made removing him from said trust. [Form Xo. 53.] Notice of Petition for Removal of Trustee. In the District Court of the United States for the District if In the matter of' Bankrupt. In Bankruptcy. At , on the day^ of , A. D. 19 . . . To , Trustee of the estate of , bankrupt : You are hereby notified to appear before this court, at , on the .... day of , A. D. 19. ., at . . o'clock . .. m., to show cause (if any you have) why you should not be removed from your trust as trust-ee as aforesaid, according to the prayer of the petition of , one of the creditors of said bankrupt, filed in this court on the .... day of , A. D. 19. ., in which it is alleged [here insert the allegation of the petition] . Clerk. official forms in bankruptcy. 1915 [Form No. 54.] Order for Removal of Trustee. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. Whereas , of , did, on the .... day of , A. T). 19. ., present his petition to this court, praying that for the reasons therein set forth, , the trustee of the estate of said , bankrupt, might be removed : Now, therefore, upon reading the said petition of the said c«nd the evidence submitted therewith, and upon hearing counsel on behalf of said petitioner and counsel for the trustee, and upon the evidence sub- mitted on behalf of said trustee. It is ordered that the said be removed from the trust as trustee of the estate of said bankrupt, and that the costs of the said peti- tioner incidental to said petition be paid by said , trustee [or, out of the estate of the said , subject to prior charges. , Witness the Honorable , judge of the said court, and the seal thereof, at , in said district, on the .... day of , A. D. 19... Clerk. [Form No. 55.] Order for Choice of New Trustee. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. At , on the day of , A. D. 18. . . Whereas by reason of the removal [or the death or resignation] of , heretofore appointed trustee of the estate of said bank- rupt, a vacancy exists in the office of said trustee. It is ordered, that a meeting of the creditors of said bankrupt be held at , in , in said district, on the .... day of , A. D. 19. ., for the choice of a new trustee of said estate. And it is further ordered that notice be given to said creditors of the time, place, and purpose of said meeting, by letter to each, to be deposited in the mail at least ten days before that day. Referee in Bankruptcy. -[916 remington on bankruptcy. [Form No. 56.] Certificate by Referee to Judge. In the District Court of the United States for the District of In the matter of Bankrupt. In Bankruptcy. I, , one of the referees of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me the following question arose pertinent to the said proceedings; [Here state the question, a summary of the evidence relating thereto, and the finding and order of the referee thereon.'] And the said question is certified to the judge for his opinion thereon Dated this day of , A. D. 19. . . Referee in Bankruptcy. [Form No. i7.'\ Bankrupt's Petition for Discharge. In the matter of Bankrupt. In Bankruptcy. To the Honorable , Judge of the District Court of the United States for the District of , of , in the county of and State of , in said district, respectfully represents that on the .... day of , last past, he was duly adjudged bankrupt under the acts of Congress relating to bankruptcy; that he has duly surrendered all his property and rights of property, and has fully complied with all the requirements of said acts and of the orders of the court touching his bankruptcy. Wherefore he prays that he may be decreed by the court to have a full discharge from all debts provable against his estate under said bankrupt acts, except such debts as are excepted by law from such discharge. Dated this day of , A. D. 19. . . , Bankrupt. Order of Notice TherEon. District of , ss: On this .... day of , A. D. 19. ., on reading the foregoing peti- tion, it is . . Ordered by the court, that a hearing be had upon the same on the .... day of , A. D. 19. ., before said court, at , in said district, OFFICIAL FORMS IN BANKRUPTCY, 1917 » at .... o'clock in the noon; and that notice thereof be pubhshed in , a newspaper printed in said district, and that all known creditors and other persons in interest may appear at the said time and place and show cause, if any they have, why the prayer of the said peti- tioner should not be granted. And it is further ordered by the court, that the clerk shall send by mail to all known creditors copies of said petition and this order, addressed to them at their places of residence as stated. Witness the Honorable , judge of the said court, and the seal thereof, at in said district, on the .... day of , A. D. 19... » Clerk. .... hereby depose, on oath, that the foregoing order was published in the on the following days, viz : On the .... day of and on the .... day of , in the year 19... District of 19... Personally appeared , and made oath that the foregoing statement by him subscribed is true. Before me, > ■ [Official character.] I hereby certify that I have on this .... day of , A. D. 19. ., sent by mail copies of the above order, as therein directed. Clerk. [Form No. S8.] Specifications of Grounds of Opposition to Bankrupt's Discharge. In the District Court of the United States for the ...... District of In the matter of Bankrupt. /// Bankruptcy. , of , in the county of , and State of , a party interested in the estate of said , bankrupt, do hereby oppose the granting to him of a discharge from his debts, and for the grounds of such opposition do file the following specifications [Here specify the grounds of opposition.] , Creditor. 1918 remington on bankruptcy. [Form No. 59.] Discharge of Bankrupt. District Court of the United States, District of Whereas, of in said district, has been duly ad- judged a bankrupt, under the acts of Congress relating to bankruptcy, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by this court that said be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the .... day of , A. D. 19. ., on which day the petition for adjudication was filed him ; excepting such debts as are by law excepted from the operation of a discharge in bank- n.'ptcy. Witness the Honorable , judge of said district court, and the seal thereof this .... day of , A. D. 19. .. Clerk. [Form No. 60.] Petition for Meeting to Consider Composition. District Court of the United States for the District of Bankrupt. Ill Bankruptcy. To the Honorable , Judge of the District Court of the United States for the , District of ." The above-named bankrupt respectfully represents that a composition of per cent, upon all unsecured debts, not entitled to a priority in satisfaction of debts has been proposed by to creditors, as provided by the acts of Congress relating to bank- ruptcy, and verily believe that the said composition will be accepted by a majority in number and in value of creditors wnose claims are allowed. Wlierefore, he pray that a meeting of creditors may be duly called to act upon said proposal for a composition, according to the pro- visions of said acts and the rules of court. > Bankrupt. official forms ix bankruptcy. 1919 [Form Xo. 61.] Application for Confirmation of Composition. In the District Court of the United States for the District of _ In the matter of Bankrupt. " /;/ Bankruptcy. To the Honorable , Jnclge of the District Court of the United States for the District of At , in said district, on the day of , A. D. 19.. . now comes the above-named bankrupt, and respectfully repre- sents to the court that, after he had been examined in open court [or at a meeting of his creditors] and had filed in court a schedule of his property and a list of his creditors, as required by law, he offered terms of composition to his creditors, which terms have been accepted in writing by a majority in number of all creditors whose claims have been allowed, which number represents a majority in amount of such claims ; that the consideration to be paid by the bankrupt to his creditors, the money neces- sary to pay all debts which have priority, and the costs of the proceedings, amounting in all to the sum of dollars, has been deposited, sub- ject to the order of the judge, in the National Bank, of ....... a designated depository of money in bankruptcy cases. Wherefore the said respectfully asks that the said com- position may be confirmed by the court. Bankrupt. [Form No. 62.] Order Confirming Composition. In the District Court of the United States for the District of In the Matter of Bankrupt. In Bankruptcy. An application for the confirmation of the composition oft'ered by the bankrupt having been filed in court, and it appearing that the composition has been accepted by a majority in number of creditors whose claims have been allowed and of such allowed claims ; and the consideration and the money required by law to be deposited, having been deposited as ordered, ill such place as was designated by the judge of said court, and subject to his order ; and it also appearing that it is for the best interests of the creditors ; and diat the bankrupt has not been guilty of any of the acts 1920 REMINGTON ON BANKRUPTCY. or failed to perform any of the duties which would be a bar to his dis- charge, and that the offer and its acceptance are in good faith and have not been made or procured by any means, promises, or acts contrary to the acts of . Congress relating to Bankruptcy: It is therefore hereby ordered that the said composition be, and it hereby is, confirmed. Witness the Honorable , judge of said court, and the seal thereof, this day of , A. D. 19. .. Clerk, [Form No. 6^.] Order for Distribution on Composition. United States of America: In the District Court of the United States for the District of In the mat'ter of Bankrupt. In Bankruptcy. The composition offered by the above-named bankrupt in this case hav- ing been duly confirmed by the judge of said court, it is hereby ordered and decreed that the distribution of the deposit shall be made by the clerk of the court as follows, to wit: 1st, to pay the several claims which have pri- ority; 2d, to pay the costs of proceedings; 3r, to pay, according to the terms of the composition, the several claims of general creditors which have been allowed, and appear upon a list of allowed claims, on the files in this case, which list is made a part of this order. Witness the Honorable , judge of said court, and the seal thereof, this .... day of , A. D. 19.. . J Clerk. UNOFFICIAL FORMS IN BANKRUPTCY. TliQ following forms are not to be understood as in any way official or prescribed by authority. They are simply suggested forms for supple- menting the official forms prescribed by the Supreme Court, and are merely the result of the writer's experience. UNOFFICIAL FORMS IN BANKRUPTCY. ■ ' [Form No. 1.] Adjudication in Involuntary Bankruptcy by Referee. At , in said district, on this the .... day of , A. D., 19. . , at . . o'clock in the noon, the petition of , and that said be adjudged a bankrupt within the true intent and meaning of the Acts of Congress relating to Bankruptcy, having been filed, together with the certificate of the Clerk of said Court that the Judge of said Court was absent from [the division of] said district on the next day after the last day on which pleadings might have been filed and that no pleadings have been filed by said bankrupt nor of his [its] creditors, and that said matter has been referred to this referee in ac- cordance with law ; and said petition having been heard and considered, now it is found that the allegations thereof are true, and it is therefore ordered that said petition be and it hereby is granted and the said is hereby declared and adjudged bankrupt accordingly. [Form No. 2.] Adjudication by Referee on Answer Admitting Petition. At , , in said District, on this the .... day of , at .... o'clock in the noon the petition of , of , that said be adjudged a bankrupt within the true intent and meaning of the Acts of Congress relating to bankruptcy having been filed together with the answer of said respondent admitting to be true the al- legations of said petition as to the act of bankruptcy therein charged and the certificate of the District Clerk that the Judge of said Court was absent from said District upon the next day after the last day upon which adver- sary pleadings could be filed to said petition and that none were filed thereto, and that said matters have been referred to this referee on account thereof, now upon due consideration thereof it is ordered that the said petition be and it hereby is granted, and the said declared and adjudged bankrupt accordingly. [Form No. 3.] Order of Adjudication and Appointment of First Meeting. Upon this the .... day of , A. D. 19. .., at .... o'clock in the noon, the petition of , of the city of in the < cunty of and district aforesaid that he be adjudged a bankrupt 1924 REMINGTON ON BANKRUPTCY. V ithin the true intent and meaning of the Acts of Congress relating to bankruptcy, having been filed, together with his schedules and the certifi- cate of the Clerk that the Judge of said Court is absent [from the District] or [on account of illness] and that this matter has been referred to the leferee in consequence thereof; and said petition having been heard and duly considered, the said is hereby declared and adjudged bankrupt accordingly; and it is ordered that the first meeting of creditors be held at the offices of the Referee at in the city of upon the day of , A. D., 19. . , at o'clock in the . . . , iioon, at which meeting said bankrupt is hereby ordered to attend in com- pjiance with law. [Form No. 4.] Referee's Order Appointing Receiver [Involuntary Bankruptcy] and for Warrant of Seizure. Upon this the day of , 19. . , at o'clock in the noon, the applications of the for the appointment of a receiver [and for warrant of seizure to issue] herein came on for hearing upon [with- out] notice to the bankrupt, and it appearing by certificate of the District Clerk that the District Judge is absent from said District and that said ap- plications have been referred to the referee on account thereof ; and the same having been duly heard upon the evidence, at the hearing whereof said bankrupt was represented [notice upon said bankrupt having, for good cause shown, been dispensed with] ; now it is found that the allegations of said applications are true, and that a petition for adjudication was on the .... day of , 19. . , filed against of the city of in said District, and that said petition is still pending [and that an act of bankruptcy has been committed as therein set forth and that said bankrupt has neglected and is neglecting and is about to further neg- l'';ct his property, so that the same has deteriorated and will further de- teriorate in value, see Bankr. Act § 69], and that it is absolutely neces- sary for the preservation of the estate of said bankrupt that a receiver be appointed to [seize and] take charge of said bankrupt's estate, and a bond in the sum of $ having been filed as provided in Section 3 (e) of the Bankruptcy Act of 1898. Now, it is ordered that said applications be and they hereby are granted ; tliat said bond be and it hereby is approved both as to its form and amount ; that Esq. of , be and he hereby is ap- pointed receiver of the estate of said bankrupt and upon filing an additional bond as receiver in the sum of $ , with sufificient sureties to be approved by this court, that said receiver [seize upon and] take charge of all the assets of the bankrupt and preserve the same pending the election and qualification of the trustee herein or until the dismissal of the petition ; and it is further ordered that said receiver forthwith prepare and file an inventory of the assets coming into his possession; [and it is UNOFFICIAL FORMS IN BANKRUPTCY. 1925 further ordered that , and ". . of , three disinterested persons, be and they are hereby appointed appraisers to ap- praise the property belonging to the estate of the bankrupt and report their appraisal to the court, said appraisal to be made as soon as may be and the appraisers to be duly sworn]. [Form No. 5.] Eeferee's Order Appointing Receiver [in Involuntary Bankruptcy without Warrant of Seizure]. Upon this the .... day of , 19. . , at . . o'clock in the noon, the application of for the appointment of a receiver herein, came on for hearing with [or without] notice to the bankrupt; and it appearing by certificate of the District Clerk that the District Judge is absent from [the Division of] said District, and that said application has been leferred to this Referee on account thereof; and the same having been duly heard upon the evidence, at the hearing whereof [no adverse in- terest was represented] [or, if without notice, that good cause was shown for dispensing with notice upon said bankrupt] said bankrupt was present [not present though duly notified], now, it is found that the allegations thereof are true and that a petition for adjudication was on the .... day of , 19. . , filed against of the city of , in said District and that said petition is still pending and that it is absolutely necessary for the preservation of the estate of said bankrupt that a re- ceiver be appointed to take charge of said bankrupt's estate. It is therefore ordered that said application be and it hereby is granted ; and Esq., of be and he hereby is appointed re- ceiver of the estate of said bankrupt; and that, upon filing an additional bond as receiver in the sum of $ with sufficient sureties to be approved by this Court, such receiver take charge of all the assets of the bankrupt and preserve the same pending the election and qualification of the trustee herein or until the dismissal of the petition; and it is further ordered that said receiver take an immediate inventory of the assets of the bankrupt. [Form No. 6.] Order Appointing Receiver ["Voluntary Bankruptcy] [No Order to continue Business]. Upon this the . . . . day of , 19. . , at .... o'clock in the . . . .noon, the motion of , bankrupt [or creditor] for the appointment of a receiver came on for hearing, without notice, at which hearing no adverse irjterest was represented, and the same having been duly considered upon said motion and the evidence, now it is found that the allegations of said motion are true and that it is absolutely necessary for the preserva- 1926 REMINGTON ON BANKRUPTCY. tion of the estate that a receiver be appointed to take charge of the same until the trustee is appointed and quahfied. And, it is therefore ordered that Esq., be and he hereby is appointed receiver herein and upon his giving bond in the sum of S with good and sufficient sureties to the satisfaction of the Court, it is ordered that he take charge of all the assets of the bankrupt and preserve the same pending the election and qualification of a trustee herein. And it is further ordered that said receiver forthwith prepare and file an inventory of the assets so coming into his possession. [Form No. 7.] Order Refusing Application for the Appointment of a Receiver. Upon this the .... day of , 19.., the application of for the appointment of a receiver came on for hearing, [of which hearing due notice was given, or, no notice was given ; or, at which hearing no adverse interest was represented ; or upon due notice to ] and the same having been considered upon said application and the evi- dence, now it appears that it is not absolutely necessary for the preserva- tion of the estate that a receiver be appointed, and it is therefore ordered that said application be and it hereby is refused. [Form No. 8.] Order Appointing Receiver, [Voluntary Bankruptcy] with Order to Continue Business. Upon this the .... day of , 19. . , at . . o'clock in the noon, the bankrupt's motion for the appointment of a receiver [and for leave to conduct the business for a limited period] came on for hearing withoat: notice to creditors, and the same having been duly considered upon said motion and the evidence, now it is found that the allegations of said mo- tion are true and that it is absolutely necessary for the preservation of said estate that a receiver be appointed to take charge of the same, [and that it is for the best interests of said estate that said receiver be authorized to continue the business for a limited period]. And, it is therefore ordered that said motion be and it hereby is granted and , Esq., of in said District be and he is hereby appointed receiver of the estate of said bankrupt; and that, on filing a bond in the sum of dollars [$ ] to be approved by this Court, said receiver take possession of the assets of said estate [and continue the business of said bankrupt (to the extent of completing the work now on hand)], and so to do until the appointment and qualification of a trustee herein or until the further order of the Court. unofficial forms in bankruptcy. 1927 [Form No. 9.] Order for Bankrupt to Prepare Schedules. It appearing that the bankrupt [or bankrupt's officers] has failed within ten days time from the date of adjudication to file a list of the creditors and a schedule of assets of the bankrupt [corporation] herein^ now it is ordered that within five days from and after this date, said; bankrupt [or , Esq. officer of said bankrupt corporation]; prepare and file a list of creditors with their names and addresses and a schedule of the assets of said [corporation] bankrupt, in accordance with law. And it is further ordered that service of this order by copy be made upon said bankrupt [said Esq.] returnable five days before: the said .... day of , 19. . . [Form No. 10.] Order Appointing First Meeting. The petition, schedules and certified copy of the order of reference and adjudication under the above bankruptcy having been filed, now, upon this .... day of , 19. ., it is ordered that the first meeting of cred- itors of who was heretofore, to-wit : upon the .... day of by the Court of Bankruptcy of said District duly adjudged bankrupt, be held at the offices of the Referee, at in the city of upon the .... day of , 19 . . , at . . o'clock in the noon, at which meeting it is ordered that said bankrupt attend in accordance with law. [Form No. 11.] Certificate of Notice to Creditors. I hereby certify that I did upon the .... day of , 19.., mail printed notices [of the form herein filed] of the [first meeting of cred- itors under the above bankruptcy], [hearing upon the bankrupt's petition for discharge], enclosed within return and penalty envelopes, addressed tc the names and addresses given in the bankrupt's schedules, or as noti- fied by creditors; and I further certify that I did on said day likewise mail to the a notice thereof for publication therein. [Form No. 12.] Certificate of First Meeting and Orders Made Thereat [no creditors.] This being the day appointed by the Court, for the first meeting of creditors under the above bankruptcy of which meeting due notice was 1928 REMINGTON ON BANKRUPTCY, given by publication in the , and by mail, I, the Referee of said Court in charge of said Bankruptcy seat at the time and place men- tioned in said notices and ordered by the Court, to-wit : at in the city of upon the .... day of A. D. 19. ., at . . o'clock in the noon, to take the proofs of debts and for the choice of trustee, the examination of the bankrupt and other proper business and I certify that no creditor whose claim was allowed appeared at said meeting, but it appearing to be for the best interest of the estate that a trustee thereof be appointed, it is ordered that of be and he is hereby ap- pointed trustee of said bankrupt's estate and his bond is fixed in the sum of dollars, [and it further appearing that no claims have been filed against said estate and that no assets exist belonging thereto, exempt or otherwise, and that the appointment of a trustee is at this time un- necessary, now, it is ordered that the election of a trustee be and it hereby is dispensed with] and said first meeting is thereupon adjourned with- out dav. [Form No. 13.] Certificate of First Meeting and Orders Made Thereat. This being the day appointed by the Court for the First ^Meeting of the Creditors under the above bankruptcy, of which meeting due notice was given by publication in the and by ten days notice by mail, T. the referee of said Court in charge of said Bankruptcy sat at the time and place mentioned in said notices and ordered by the Court, to-wit : at in the city of upon the .... day of , 19. . , at .. o'clock in the noon, to take the proofs of debt and for the choice of trustee, the examination of the bankrupt^ and other proper busi- ness, and I certify that the following is a list of creditors whose claims were proved at said first meeting, together with the amounts for which the same were respectively made, to-wit : and said foregoing claims having been thus filed and proved and having been duly examined and found correct, now upon the severjil motions ot said respective claimants, it is ordered that the said claims be and they hereby are severally allowed and for the sums named, save and except that the following of the said claims are not allowed and are postponed for cause, to-wit : And I further certify that the following is a list of all creditors present [not present] at said first meeting whose claims have been allowed, to-wit : And I further certify that the majority in number and amount of the UNOFFICIAL FORMS IN BANKRUPTCY. 1929 creditors who have proved their claims and who were present or repre- sented by duly authorized agent or attorneys, made choice of , Esq., of in said District to be trustee of said bankrupt's estate and effects and fixed his bond in the sum of $ , and it appearing that said Esq. is a suitable person for said trust, now, it is ordered that said appointment be and the same hereby is approved ; and it is further ordered that said first meeting be adjourned [without day; or, for the examina- tion of the bankrupt] to the .... day of , 19. ., at .... o'clock in the noon. [Form No. 14.] . Order Allowing General Claims. Upon the .... day of , A. D. 19.., at .. o'clock in the noon, the following claims were presented for allowance and the same having been examined and found correct and duly proved, now, it it ordered that said claims be and the same hereby are allowed, in the respective sums set opposite the several names, as follows, to-wit : [Form No. 15.] Order Allowing Priority Claim. Upon this .... day of , 19. . , the claim of and his motion for allowance of it as a priority claim were presented ; and the same hav- ing been duly considered, now it is found that said claim is correct in amount and duly proved, and that the same is for wages earned within tliree months preceding the filing of the petition, in the capacity of work- man [clerk] [servant] of the bankrupt, and as such is entitled to priority. And it is therefore ordered that said claim be and it hereby is allowed as a priority claim against the estate in the sum of $ ; and that the same be paid [forthwith or] before the payment of any general creditors herein. [Form No. 16.] Order of Subrogation on Assignment of Claim Already Proved. Upon this the .... day of , 19. . , at o'clock in the noon, upon application of , and it appearing that upon the . . . day of proof of the assignment to of the claim of heretofore approved and entered on the referee's docket as follows was filed and ten days due notice thereof was given by mail to 1930 REMINGTON ON BANKRUPTCY, said of the filing of said proof of assignment, and that no ob- jection has been entered herein, and no request for further time been made, and that said proof of the assignment of said claim is satisfactory, now it is ordered that said be and he hereby is subrogated to the original claimant , as owner of said claim. [Form No. 17.] Order Allowing Withdrawal of Notes. [Part of certificate of first meeting of creditors.] Upon application of and it is ordered that said claimants be and they are hereby authorized to withdraw the original notes attached to their proofs of claim and to substitute copies in place thereof. [Form No. 18.] Order Determining Value of Securities for Purpose of Participa- tion in Meetings. [Part of certificate of first meeting of creditors.] At said meeting of creditors, the secured claim of was presented for allowance and the same having been examined and evidence taken to determine the value of securities for the purpose of participation in creditor's meetings prior to the final determination of the same, now, it is found that said claim is correct and duly proved and that the value of said securities seems to be $ and that there seems to be owing the sum of dollars over and above the value of said securities ; and it is therefore ordered that said claim be and it hereby is allowed for the purpose of participation in the meetings of creditors prior to the final de- termination of the value of said securities, in the sum of $ [Form No. 19.] Order Approving Receiver's [or Trustee's] Bond. Upon this .... day of , 19.., it appearing to the court that of , has been duly appointed trustee [or receiver] of the estate of the above named bankrupt and has given a bond with as surety for tlie faithful performance of his official duties in the amount fixed by the creditors [order of the Court], to- wit : in the sum of dollars, it is ordered that said bond be and the same is hereby approved. unofficiai, forms in bankruptcy. 1931 [Form No. 20.] Order for Examination of Witness. Upon application of , it is ordered that be and appear before the referee at his office No , in the city of , upon the .... day of , 19. . , at .... o'clock in the .... noon, to be examined concerning the acts, conduct and property of the bankrupt ; and that due service of this order by copy be made upon said , the same to be returnable on the .... day of , 19. .. [Form No. 21.] Order of Adjournment. Upon application of the [or, by consent of parties] it is ordered that the hearing upon be and the same hereby is adjourned to the .... day of , A. D. 19. ., at . . . . o'clock in the noon. [Form No. 22.] Order Appointing Appraisers. Upon this .... day of , 19. ., upon application of the trustee, it is ordered that , and , of , three disinterested persons be and they are hereby appointed appraisers to appraise the [real and personal] property belonging to the estate of the bankrupt [set out in the schedules now on file in this court and such other property as may be pointed out to them for appraisal] and report their appraisal to the Court, said appraisal to be made as soon as may be, and the appraisers to be duly sworn. [Form No. 23.] Order Allowing Appraisers' Fees. Upon this .... day of , 19. ., upon application of the trustee and for good cause shown, it appearing that special circumstances exist making tlie ordinary allowance to appraisers for their services inadequate and that reasonable compensation therefor would be the sum of dollars each, now, it is ordered that heretofore by order of the Court ap- pointed appraisers herein, be and they hereby are allowed said sum oi ^ , each as and for their reasonable compensation as such appraisers 1932 remington on bankruptcy. [Form No. 24.] Order to Show Cause on Trustee's Petition for Summary Order, In the District Court of the United States for the District of In Bankruptcy. In the matter of ) Order to Show Cause on Trustee'.^ Bankrupt. \ Petition for Summary Order. Upon this day of , 19. ., it appearing to the court that the trustee has filed in these proceedings his petition for a summary order upon the bankrupt [or bankrupt's agent] herein, requiring t]]e said' forthwith to surrender certain property claimed to belong to said estate and in his possession ; Now, it is ordered that the said be and he thereby is required to appear before the undersigned referee in charge of said bankruptcy, at said referee's office, in the town of , at .... o'clock in the noon, to show cause if any he have, why such order should not be granted. And it is further ordered that service of this order by copy be made upon said returnable on the .... day of , 19. . . Referee in Bankruptcy. I, the undersigned referee in charge of the above bankruptcy hereby certify that the foregoing is a true and correct transcript from my record in the said proceedings. In testimony zuhereof I hereto set my hand this .... day of , 19... Referee in Bankruptcy. [Certificate of the District Clerk, under seal, to the signature and official capacity of the referee.] [Form No. 25.] Order of Substitution of Trustee for Receiver. Upon application of the trustee it is ordered that the trustee be and he hereby is substituted for the receiver in the receiver's petition to [sell] filed herein. [Form No. 26.] Order Appointing Hearing upon Petition to Sell. Upon application of the trustee, it is ordered that the hearing upon his petition to sell at public or private sale be held before the referee, at his offices in the city of , upon the .... day of , 19. . , at . . . . o'clock in the noon. Notices of mailed to all creditors to names and addresses given in the bankrupt's schedules. unofficial forms in bankruptcy. 1933 [Form No. 27.] Notice of Order to Show Cause on Trustee's Petition to Marshal Liens and Sell. In the United States District Court for the District of In Bankruptcy. -,1 r ) Notice of Order to Show Cause on In the matter of ( ^ u ^v * at i i _ , V i rustee s Petition to Alarshai Bankrupt. , c n ; Liens and bell. To You are hereby notified that the petition of , trustee of the estate of , above named bankrupt, has been filed, praying the court for an order to sell, free from liens and claims, certain property in the custody of said court, in which property you are said to claim an interest by way of lien or otherwise and for an order marshaling said liens and interests and determining their validity, extent and priority ; and that therefore it is ordered that you shall answer and set up your claims as to the said property or be forever debarred from asserting the same, before , Esq., Referee of said Court in Bankruptcy, at the referee's office , in the city of , on or before the .... day of , 19. ., at .... o'clock in the noon, and at said time and place show cause, if any you have, why such orders should not be granted and such action taken. Witness, the undersigned Referee of said Court, in Bankruptcy, at said city, of , in said District, this ...... day of , A. D. 19. . . Referee in Bankruptcy. [Certificate of District Clerk to signature and official capacity of referee.] [Form No. -28.] Order Marshalling Liens and for Sale Free and Clear of Incum- brances. Upon this .... day of , 19.., the trustee's petition to marshal liens and sell -property free and clear of all encumbrances, came on [by adjournment from time to time from the .... day of , 19. .] for hearing, of the [original] hearing of which ten days due notice by mail was given to all creditors ; and of which petition due service of notice, by rule to show cause, was made upon the following named parties, defendants herein ; to-wit : [and to which petition the following parties waived service of process and voluntarily entered their appearance, to-wit : ] and to which petition the following parties filed answer [or answer and cross- petition] ; the trustee filing also the following pleadings, to-wit and the said filing answer [or reply, etc.] to the cross peti- 1934 REMINGTON ON BANKRUPTCY. tion [or answer] of ; and to which cross petition [or an- swer] said is in default of answer [or reply] and thereby confesses the allegations of said cross-petition [or answer] to be true; And the same having been duly considered upon said pleadings and the evidence, now it is found that the property in said trustee's petition de- scribed is in the possession [or, control] of the trustee, that the defendant has a good and valid lien upon said property in the sum of $ from the .... day of 19. . , by virtue of his mortgage set up in his cross-petition herein and that the same is the first and best lien thereon after payment of costs and taxes ; [that the title and right of pos- session of part of said property in said petition described, to-wit : is not in the cross-petitioner ] ; [that the defendant is the wife of the bankrupt; that at the date of the adjudication lierein her age was .... years and the bankrupt's age .... years ; and that she is entitled to inchoate dower in the premises described in said petition or in the following portion of the property in said petition described to-wit ] ; that the cross petitioner has a good and valid lien upon said property [upon a part of said property, to-wit: ] and that the said lien of is the next best lien upon said premises, after payment of taxes and costs and of the said lien of And it is further found that it is for the best interests of the estate and of the parties that the said property be sold at a private sale [at public auc- tion], free and clear of all encumbrances [subject to the following en- cumbrances and free and clear from the re- niainder] and that the rights of the parties be transferred to the funds derived from the sale thereof [and that the defendant wifo of the bankrupt waives her inchoate dower interest herein and consents to the sale of said premises free and clear therefrom, conditioned on the pay- ment to her of the commuted value of all inchoate interest therein; and that her commuted dower interest therein is one . . . .th part of the pro- ceeds, etc.] And it is therefore ordered that the prayer of said petition be and it hereby is granted ; and said trustee is directed to sell free and clear of all encumbrances, at private sale, upon the premises [or if at public auction and if the property be real estate then upon the premises or at the front door of the Court house of the county wherein the said property is situated, upon the day of , 19. ., beginning at the- liour in the noon, and that he give four weeks notice of the time and place of the sale thereof by advertisement in a newspaper of gen- eral circulation in the said county see § 1939 of said treatise] ; and that said sale be subject to the approval of the Court; And further proceedings herein are adjourned to the .... day of at .... o'clock in the noon, for consideration of the trustee's re- port of sale and for order of distribution hereunder. . unofflciaiv forms in bankruptcy. 1935 [Form No. 29.] Order Confirming Sale and Directing Distribution. Upon this .... day of , 19. . , at .... o'clock in the noon by adjournment from the . . day of , 19. ., the trustee's proceedings imder the previous order of sale heretofore, to-wit on the .... day of , 19. ., granted herein came on for approval of the trustee's report of his sale ; and said report having been examined, and, it appearing therefrom that the trustee has sold the prop'erty in said petition described at private sale, free and clear of all encumbrances, to 1 . ., for the sum of $ , and that said. sale was in all respects regular and in accordance with said previous order of the Court, now it is ordered that said report be and it hereby is approved and said sale confirmed and said trustee is directed forthwith to execute and deliver to said purchaser a good and sufficient instrument of title to said property, upon receipt of said consideration ; And the Court coming on to distribute the proceeds of said sale in ac- cordance with the previous order of the court marshalling the liens and interests and determining their validity, extent and priority, now it is or- dered that the trustee pay out of the said proceeds in his hands First, the costs of the proceedings herein, taxed as follows, to-wit: Referee's commissions $ , referee's expenses $ : Trus- tee's commissions $ , Trustee's expenses $ , for abstract, $ , for appraisers $ , for attorney's fees $ , for ad- vertising $ ; Second, the taxes herein, $ ; Third, to in payment of his mortgage lien, $ ; Fourth, to , to apply upon his mortgage lien, $ ; Fifth, to ., the wife of the bankrupt $ , the com- muted value of her inchoate dower interest ; Sixth, the remainder if any, said trustee to hold in his hands to await the further order of the Court. [Form No. 30.] Order of Confirmation of Sale [general]. Upon the .... day of 19. . , at o'clock in the noon, the trustee's petition to sell came on by adjournment for hearing upon the report of the trustee of sale, and said report having been ex- amined and it appearing that said trustee has sold said property in said pe- tition described, to-wit : for the sum of $ to and that said sale was in all respects regular and in accordance with the previous orders of the court and for the highest bid obtainable, now it is ordered that said report be and it hereby is approved and said sale confirmed and said trustee is directed forthwith to execute and deliver to said purchaser a good and sufficient instrument of title to said property upon payment to him of the considera- tion aforesaid. 1936 remington on bankruptcy. [Form No. 31.] Trustee's Bill of Sale. Knozv all men by these presents, That, whereas on the .... day of . . . ., 19.., by the consideration of the District Court of the United States for the District of was duly adjudged bankrupt, and that. Whereas, thereafter the undersigned, was duly appointed as trustee of his estate in bankruptcy, who thereupon duly qualified, and ever since has been and now is acting as such trustee ; and that. Whereas, thereafter, upon petition filed and notices 'given, an order of sale was duly made by said court, [by Escp, its referee in charge of said bankruptcy] authorizing the said trustee to sell [at private sale] public auction [for not less than three fourths the appraised value or for not less than $ ] the following property, such being [part of] in said petition described, to-wit : ; and that. Whereas, said as such trustee did, in pursuance of said Older sell said property to at [private sale] public auction for the sum of $ such sum being not less than three fourths of the appraised value thereof [or being not less than said $ ], sub- ject to all liens], [or free and clear from the liens and claims of the fol- lowing parties, to-wit : ] ; and thereupon did report his sale thereof to the court ; and that. Whereas, upon due examination of said report and the proceedings thereunder the court found the same to be correct and in accordance with the previous order of the court and thereupon upon the .... day of , 19. ., duly confirmed the same. Now therefore, I, the said trustee of the said , in bankruptcy, aforesaid, by virtue of said order of sale, and by virtue of said sale and the confirmation thereof, and of the statute in such cases made and provided, and of the powers vested in me, and for and in con- sideration of the premises and the sum of $ paid to me by the said , receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said , his heirs and assigns for- ever, the following described property, to-wit : To have and to hohi said property to the said his heirs and assigns forever, as fully and completely as the said as such trustee in bankruptcy, by virtue of said order of sale and by virtue -of said sale, and confirmation thereof, and of *the statute made and provided for such cases, might or should sell and convey the same. In zvitness zvhcreof the said , as such trustee, has hereunto set his hand this .... day of , 19. . . As Trustee of the Estate of In Bankruptcy. unofl^iciaiv forms in bankruptcy. 1937 [Form No. 32.] Part of Order of Declaration of a Dividend. And it appearing that there will remain in the trustee's hands after the payment of all costs of administration, expenses and priority claims here- inbefore allowed and that probably will be hereafter allowed herein, a sum such that 50% thereof will be sufficient to pay a first dividend of .... % to general creditors whose claims have already been al- lowed and probably will hereinafter be allowed, now, it is ordered that a first dividend of . . . .% be and it hereby is declared payable to the following creditors, to-wit : [Form No. ZZ.'] Failure of Trustee to File Report Order. It appearing that , Escp, the trustee herein has failed for months to file [or since the .... day of , 19. .] to file a report of his proceedings, now, it is ordered that he prepare and file a report of his proceedings herein on or before the .... day of , A. D. 19. . ; 5nd that due service of this order, by copy, be made upon him, returnable the .... day of 19. . . [Form No. 34.] Order Approving Report of Exemptions. Upon the .... day of i\. D. 19.., [at the (final) meeting of creditors of the above bankruptcy, of which meeting ten days due notice by mail was given to all creditors], the trustee's report of property set apart by him to the bankrupt as exempt was presented for approval and the same having been examined and found correct and no exceptions hav- ing been filed thereto, now, it is ordered that said report of exemptions be and it hereby is approved and said property therein described set apart to the bankrupt as exempt. [Form No. 35.] Order Appointing Final Meeting. The trustee's report under the above bankruptcy having been filed [or, it appearing that it is time for the estate to be closed], now it is ordered that the final meeting of creditors be held at the office of the Referee at in the city of upon the .... day of A. D. 19. . , at . . o'clock in the noon ; [and it is further ordered that Escp, trustee herein, be and he hereby is recjuired to prepare and file, liefore fifteen days set for said final meeting, a final report and final account of his proceedings herein ; and it is ordered that due service of this order, by copy, be forthwith made upon said trustee returnable upon the .... day of , 19..]. 2 Rem B— 47 1938 remington on bankruptcy. [Form No. 36.] Certificate of Final Meeting and Orders Closing Estate [no assets] . This being the day appointed by the Court for the final meeting of the creditors under the above bankruptcy, of which due notice has been given by mail to all creditors, I, the referee in charge of said bankruptcy, hereby certify that I sat at the time and place in the order of the Court and said notices designated, and that no creditors appeared at said final meeting and the final report and account of Esq., the trustee in the above entitled proceedings, having been examined and found correct and the same showing that the trilstee has not discovered any assets belonging to said estate or made any disbursements in behalf thereof: now, [on motion of the trustee and] no adverse interest being represented, it is ordered that the said report and account be and the same are hereby ap- proved and allowed ; the said trustee discharged of his trust and said estate closed. [Form Xo. 37.] Certificate of Referee on Proposed Composition. I, the undersigned referee in Bankruptcy, in charge of the above bank- ruptcy of hereby certify that a meeting of creditors was held upon the .... day of , A. D. 19. ., at . . o'clock in the noon, ai in the city of in said District, to consider an offer of com- position to be proposed by the bankrupt thereat, of which meeting ten days notice by mail was duly given to all creditors : And I further certify that heretofore, to-wit : at the first meeting of creditors in said bankruptcy held upon the .... day of A. D. 19. ., at .. o'clock in the noon, and in open court, said bankrupt sub- mitted himself to examination in accordance with law and was duly ex- amined by creditors. And I further certify that thereafter and upon the said .... day of , 19. ., at said meeting of creditors the bankrupt offered terms of composition to his creditors, as follows, to-wit : .... per cent, upon all unsecured debts not entitled fo priority and all priority claims in full. And I further certify that the claims of creditors allowed herein are as follows : •. That of said claims the following have accepted in writing, which origi- nal acceptances are hereto attached, marked exhibit "a," said proposed composition to-wit : and that thereby a majority in number and amount of creditors whose claims have been allowed have accepted in writing said offer of compo- sition of .... per cent, upon all unsecured debts not entitled to priority ; And I further certifv that the total number of unsecured creditors UNOFFICIAL FORMS IN BANKRUPTCY. 1939 scheduled by the bankrupt herein in addition to the creditors whose claims have heretofore been allowed herein is and that the aggre- gate amount of the claims including those allowed is $ And I certify that the following are the debts, and costs of administra- tion entitled to priority herein : And I finally certify that the bankrupt has deposited with the the sum of $ and that said sum is sufficient to pay said .... % to all unsecured creditors whose claims have been allowed and in addition thereto, the same per cent, to all unsecured creditors whose claims have been filed and that have been scheduled by the bankrupt and not yet al- lowed and that said sum is sufficient also to pay the said priority claims and costs of administration herein. [Form No. 38.] Certificate of Referee to Record. I, the undersigned Referee in charge of the above bankruptcy hereby certify that the foregoing is a true and correct record of appearances, of papers filed, of process issued in the proceedings in said bankruptcy be- fore me. [Form No. 39.] Application for Appointment of Receiver before Adjudication. In the United States District Court for the District of In Bankruptcy. ^ , . ) Application for Appointment of Re- in the matter of ( • r -.i aat . r o • „ , , > ceiver with Warrant of bei- Bankrupt. I , } zurej . the mover, is one of the petitioning creditors in the in- voluntary petition in bankruptcy pending herein against the alleged bankrupt above named [or, is a creditor of against whom an in- voluntary petition in bankruptcy is pending herein] ; and moves the court for an order appointing a receiver herein [and for a warrant to issue to him, authorizing and directing him to seize the property of said alleged bankrupt and to hold the same pending the hearing upon said petition] ; and this he prays for upon the ground that it is absolutely necessary for the preservation of the estate [the sole ground for the appointment of a receiver in bankruptcy, see § 384] that a receiver be appointed, [and, in case warrant of seizure is to issue, that said alleged bankrupt has com- mitted an act of bankruptcy, to-wit, has [here set up the facts constituting the act of bankruptcy, pleading them with certainty, see § 340] and has neglected, and is neglecting, and is about to further so 1940 KKMINGTON ON BANKRUPTCY. neglect his property that it has deteriorated, and is thereby deteriorating, and is about to further deteriorate in vahie, [see Bank. Act § 69] ; and this is so for the following facts, to-wit, [these facts constituting the "absolute necessity for the preservation of the estate" might, perhaps more properly be set forth in the affidavit] United States of America; District of ; County of ' ; being first duly sworn, upon his oath says he is a cred- itor [one of the petitioning creditors] in the above entitled proceedings and that the facts stated in his foregoing motion for the appointment of a receiver and for warrant of seizure are true ; and further affiant says that said alleged bankrupt has been recently removing large quantities of his goods from his store at night time etc., etc. [set forth evidential facts showing it to be absolutely necessary for the preservation of the estate that a receiver be appointed.] Subscribed and sworn to before me by the said this .... day of 19... . [Official character. 'I [Form No. 40.] Application for Appointment of Receivjer after Adjudication. In the United States District Court for the District of . . . . In Bankruptcy. In the matter of -n 1 , c Application for Receiver. Bankrupt. ) the bankrupt [or one of the creditors] herein moves the court for an order appointing a receiver ; and this he asks upon the ground that it is absolutely necessary for the preservation of the estate that a re- ceiver be appointed [this is the sole ground available in bankruptcy for the appointment of a receiver, see § 384] to take charge of the assets and protect the same [and, if so, "to continue the business"] until the ap- pointment of a trustee ; and this is so for the following facts, to-wit : A composition is about to be offered by the bankrupt to his creditors, and the object thereof would be defeated if the business be not continued so that the same may be turned over to the bankrupt undiminished in value as a going concern, in case said composition be accepted. Or, the assets of the bankrupt consist of a stock of groceries, which are largely of a perishable nature and should be immediately sold. Or, there are unfinished goods in process of manufacture all value of UNOFFICIAL FORMS IN BANKRUPTCY. 1941 which will virtually be lost if the business be not conducted to the extent, at any rate, of completing the manufacture of said goods. Or, the assets are. exposed and in danger of loss. Or, the assets of the bankrupt occupy a room jointly with those of an- other person, and such person insists upon continuing his own business and in keeping the place open to the public, and the bankrupt's assets are left exposed and uncared for. United States of America ; District of ; County of ; being first duly sworn, upon his oath says he is the above named [bankrupt] creditor, and that the facts stated in his foregoing ap- plication are true. Subscribed and sworn to before me by the said this .... day of 19... [Officml character.'] [Form No. 41.] Petitions to Referee for Restaining Order or Stay of Suit. In the United States District Court for the District of In Bankruptcy. In the matter of Petition for Restraining Order [In- Bankrupt. junction] [Stay of Suit]. As Trustee [Receiver] [Creditor before Appoint- ment of Receiver of Trustee] Plaintiff Defendant. Plaintiff is the duly appointed, qualified and acting trustee [receiver] in the above entitled bankruptcy. [Or, Plaintiff is a creditor of the above named bankrupt, and no receiver nor trustee has yet been appointed herein.] Defendant is the bankrupt [or, is etc.] Defendant is threatening to remove certain of the property belonging to the estate, to-wit : and, unless restrained, will remove the same [or state other acts threatened]. Defendant is plaintiff' and bankrupt is defendant in a certain suit in replevin [or in a certain attachment suit] now pending, before 1942 REMI^XTON ON BANKRUPTCY. of county , wherein certain of the property belonging to the estate has been seized ; and the trial of the said suit [or sale under said attachment] will be had on the .... day of , unless sooner restrained. This plaintiff has applied to said court for a stay of said repleyin suit until a trustee could be appointed who could intervene in behalf of the creditors in bankruptcy, but said court has refused to grant the same. Or, said attachment was obtained within the four months preceding the adjudication of bankruptcy herein and at a time when the bankrupt was insolvent; [and plaintiff has applied to said court for the surrender of said property — or plaintiff has applied to said court for a stay of said attachment suit but said court has refuged to stay the same.] Time is too short for the giving of notice, and to require the giving of notice would defeat the objects hereof. Wherefore, plaintiff prays for a restraining order to issue upon defend- ant restraining him from [removing or disturbing in any way the said property and from etc., etc ]. [Or, from prosecuting by himself or by any agent or attorney, said replevin suit — or said attachment sale etc., etc.] And further prays that said restraining order be issued without notice upon said defendant [and that in the attachment case upon flnal hearing, the same be made a perpetual injunction] ; and finally, prays for such other and further relief as in equity is proper. [Verification] [Form No. 42.] Petition for Summary Order. Iv the United States District Court for the District of Division, In Bankruptcy. In the matter of ) -n • • Bai krunt " I^etition for Summary Order. is the duly appointed, qualified and acting trustee in bank- ruptcy of the estate of of bankrupt in the above entitled proceed- ir.gs. Said the said bankrupt [agent of said bankrupt] has within his possession [or control] the following property belonging to the said trus- tee, to-wit : ; which property the said wrongfully refuses to deliver to said trustee. Wherefore, said trustee prays the court for an order upon said UNOFFICIAL FORMS IN BANKRUPTCY. 1943 the said bankrupt [or the said agent of said bankrupt] requiring him, the said forthwith to surrender to said trustee the said property. United States of America; District of ; County of ; being fjrst duly sworn, upon his oath says he is the above named trustee and that the facts stated in his foregoing petition are true, as he beheves. Subscribed and sworn to before me by the said this .... day of ...., 19... Notary Public. [Form No. 43.] Petition of for Order of Surrender or [Reclamation]. In the United States District Court for the District of Division, In Bankruptcy. In the matter of ] Petition of for Order of Bankrupt, j" Surrender [or Reclamation]. is a corporation duly organized and existing under and by virtue of law, [or is a partnership, etc., etc. — alleging other capacity if any]. is the duly appointed, qualified and acting trustee [re- ceiver] in bankruptcy of the estate of the above named bankrupt ; and as such is in possession of the following described property, to-wit: Said is the property of this petitioner [or this petitioner has right of possession of said property] by virtue of [absolute ownership ; or conditional sale wherein the condition has been broken and the title become absolute in the petitioner, etc.] and said is entitled to the immediate possession thereof. Wherefore, said prays* the Court for an order upon said as such trustee [or receiver] requiring him forthwith to surrender said property to this petitioner. United States of America ; ...... District of ; County of ; being first duly sworn upon his oath says that he is the 1944 REMIXGTOX OX BANKRUPTCY. • above named claimant and that the facts stated in his foregoing petition are true, as he beheves. Subscribed and sworn to before me bv the said this . . . . day of ,19... " . - Notary Public. [Form Xo. 44.] Petition of Assignee [receiver] for Allowance of Lien upon Assets. In the United States District Court for the District of Division, In Bankruptcy. In the matter of ) Petition as Assignee [Receiver] for Bankrupt. \ Allowance of Lien upon Assets. On the .... day of 19. . , by the court of , County. was duly appointed assignee [receiver] of the property [certain property] of the above named bankrupt, and thereafter duly qualified as such; thereafter, to-wit, within four months from the date of said appointment, a petition in involuntary bankruptcy [a vol- untary petition in bankruptcy] was filed against [by] the said and thereafter the said was duly adjudged bankrupt herein. The said as assignee [receiver] as aforesaid, has surrendered the assets in his custody to the trustee in bankruptcy herein ; and now is entitled to a lien thereon for his reasonable compensation and expenses for the care and preservation of the estate whilst the same was in his custody as such assignee [receiver] as follows, to-wit : ]] hcrcforc, said prays the Court for an order declaring the ex- istence, extent and priority of his said lien upon the assets so surrendered by him and directing the payment of the same to him from the proceeds thereof. United States of America; District of ; County of ; being first duly sworn upon his oath says that he is the above named assignee, [receiver] and that the facts stated in his foregoing petition are true. Subscribed and sworn to before me by the said this . day of 19... Notary Public. unofficial forms in bankruptcy. 1945 [Form No. 45.] Trustee's Petition to Marshal Liens and for Sale of Property Free from Liens, etc. In the United States District Court for the District of Division, In Bankruptcy. _ , . ' ) Trustee's Petition to Marshal Liens In the matter of ( j r o i r -n ^ -n ^ , V and for bale of Property tree Bankrupt. <- x • J from Liens, etc. as trustee of plaintiff vs. * defendant is the duly appointed, qualified and acting trustee in bankruptcy of the bankrupt herein; and as such has in his posses- sion [control] the following described property: and , claim to have interest in said property by way of lien or otherwise [the validity and priority of which said trustee denies] ; and said claims right of possession of a portion of said property, to-wit : [Said is the wiie of the bankrupt and as such has an irkchoate dower interest in the premises ; she is of the age of .... years, and the bankrupt is of the age of .... years ; and the said consents to the sale of said property free of her inchoate dower interest, the commuted value thereof to be paid to her in lieu of her said interest.] It is for the best interests of the estate that the said property be sold at private sale [public auction] free and clear of all incumbrances [subject to encumbrances]. The appraised value thereof is $ Wherefore as such trustee prays the court for an order marshal- ing the liens upon and interests in said property, determining the validity, amount and priority thereof, ordering its sale at public auction or private s:de as the court may direct, free and clear of all encumbrances and inter- ests and transfering the rights of the parties to the fund derived from said sale, and further prays for an order to show cause upon the several parties defendants herein requiring them to set up their rights or be forever de- barred from asserting the same ; and for such other and further relief as in equity is just. United States of America ; District of ; being first duly sworn, on his oath says he is the above 1946 kEMINGTON ON BANKRUPTCY. named trustee in bankruptcy and that the facts stated in his foregoing pe- tition are true, as he verily believes. Subscribed and sworn to before me by the said this . . . . day of ,19... '• [Official character.] [Form No. 46.] Objections to Claim. In the United States District Court for the District of In Bankruptcy. In the matter of ) ^, . ,• ^ r«i • r ^ , } Objectipns to Claim of Bankrupt. ) is the duly appointed, qualified and acting trustee in the above bankruptcy, and as such objects to the allowance of the claim of heretofore filed herein, upon the following grounds, to-wit : [Preference] Within the four months preceding the filing of the bank- ruptcy petition herein, to-wit, on or about the .... day of , 19. . , the bankrupt, while insolvent, transferred to said who was then [and still is] a creditor, the following described property, lo-wit : Said transfer was made to apply upon a pre-existing debt owed by the bankrupt to said creditor ; and the effect of the said transfer is to give said creditor a greater percentage of his claim than other creditors of the same class. Said the creditor aforesaid, received said property with reasonable cause for believing that a preference was intended to be given him thereby. Said the creditor aforesaid has not surrendered said prop- erty so as aforesaid received by him. [Payment] Upon said claim the following payments have been made in addition to those credited thereon by said creditor : As Trustee in Bankruptcy. United States of America; District of ; County of ; being first duly sworn, upon his oath says he is the object- ing trustee [creditor] in the above entitled proceedings, and that the facts stated in his foregoing objection to the claim of are true [as he verily believes]. Subscribed and sworn to before me by the said this .... day of ,19... [Official character.] unofficial forms ix bankruptcy. 1947 [Form No. 47.] Petition of for Review of Referee's Order. In the United States District Court for the District of In Bankruptcy. In the matter of ) Petition of for Review of Bankrupt. \ Referee's Order. Petitioner is the duly elected, qualified and acting trustee of the above named bankrupt, [or, petitioner is the bankrupt herein], [or, petitioner is a creditor of the above named bankrupt] and as such was a party to the fol- lowing certain proceedings in said bankruptcy pending before Esq., as the referee in bankruptcy in charge thereof, to-wit: Upon the hearing thereof a final order was made by the said referee, as follows, to-wit : To which order petitioner duly excepted. Said order is erroneous in this, that Wherefore, petitioner prays that said order be reviewed and reversed [or modified in the following particulars, to-wit] and that he be restored to all things he has lost by reason of said error. [Form No 48.] Petition for Reconsideration and Rejection of Claim. In the United States District Court for the District of In Bankruptcy. In the matter of ) Petition for Reconsidi^ration and Bankrupt. \ Rejection of Claim. is the duly elected, c[ualified and acting trustee of the es- tate of the above named bankrupt. Heretofore, to-wit, upon the .... day of , 19.., the claim of was allowed herein in the sum of $ At the time of said allowance the trustee was not elected [or, the facts herein stated were not known to the trustee] ; and good cause exists for the vacating of said order of allowance heretofore made herein. Said claim should be expunged [disallowed; or reduced to the sum of $ ] for the following facts, to-wit: On or about the .... day of , 19. . , a payment of $ was 1948 REMINGTOX OX BANKRUPTCY. made on said claim, which was not credited in the said order of allowance herein. Or, [here set up preference, fraudulent transfer, usury, want of capacity — or whatever defense there may be to the allowance of the claim]. United States of America ; District of ; County of ; being duly sworn upon his oath says that he is the trustee in the above bankruptcy and that the facts stated in his foregoing petition for reconsideration and rejection [expunging or disallowance] of claim are true [as he verily believes]. Subscribed and sworn to before me by the said this .... day of ,19... [Official character.] [If positively sworn to it would seem, on principle, that the positive oath cf the trustee should be sufficient to "overcome" the "prima facie case" made by the deposition for proof of claim itself. But see ante, §§ 843, 844 and 845]. [Form Xo. 49.] Specifications of Grounds of Opposition to Bankrupt's Discharge. In the United States District Court, for the District of In Bankruptcy. In the matter of ( Specifications of Grounds of Oppo- Bankrupt. \ sition to Bankrupt's Discharge. of in the County of and State of , a party interested in the estate of said bankrupt, does hereby oppose the granting to him of a discharge from his debts; and for the grounds of such opposition does file the following specifications : First Specification [Failure to Keep Books] : Said Bankrupt has, with in- tent to conceal his financial condition, failed to keep books of accounts or records, from which such condition might be ascertained. Second Specification [Destruction of Books] : Said bankrupt did on or about the .... day of , 19. . , destroy a certain which was a book of account from which his financial condition might have been ascer- tained, the precise entries of which this objecting creditor is unable, for want of actual knowledge and for means of acquiring knowledge to state, und which lie more properly within the knowledge of the bankrupt. Third Specification [Concealment of Assets] : On or about the .... day UNOFFICIAL FORMS IN BANKRUPTCY. 1949 of , 19. . whilst a bankrupt and after the appointment and quahfica- tion of his trustee, the above named bankrupt knowingly and fraudulently concealed the following assets belonging to his estate from said trustee, to-wit : '. Fourth Specification [Concealment by Omitting Fraudulently Trans- ferred Property from Schedules] : On or about the .... day of , the bankrupt, for the purpose of hindering, delaying and defrauding his creditors, transferred to certain of his property as follows, to-wit : • and the said property at the time of the appointment and qualification of the trustee herein was being held on secret trust by said for the bankrupt. Said bankrupt knowingly and fraudulently omitted said property from his schedule of assets herein and failed to reveal to said trustee the exist- ence of the same or the facts as to the title thereto and fraudulently and knowingly concealed said property, so as aforesaid belonging to his estate, whilst such bankrupt, from his said trustee. Fifth Specification [False Oath] : On or about the .... day of , in the bankruptcy proceedings of , the bankrupt herein knowingly and fraudulently made a false oath [or account] in [relation to] said proceedings in bankruptcy, as follows, to-wit: said bank- rupt omitted the following property from his schedules and yet did then and there knowingly and fraudulently make oath to said schedules that they were a true statement of his assets [or, did then and there, after being duly sworn on general examination, state that here set forth the words] whereas the truth and fact were, as said bankrupt well knew, that which testimony [omission] was material in that it pertained to the dis- covery of the acts, conduct and property of the bankrupt [in that the said property so omitted was his property and was of value]. Sixth Specification [Obtaining Property on Credit] : ' On or about the .... day of , the above named bankrupt obtained on credit the following described property from ; and he ob- tained said property by the statement, made in writing to such person that Whereas in truth and fact and said statement was materially false and was made for the purpose of obtaining such property on credit. [Verification] 3950 "remington on bankruptcy. [Form No. 50.] Answer of Lienholder to Trustee's Petition to ' Marshal Liens and Sell. In the United States District Court, for the District of In Bankruptcy. T- , . J Answer of Lienholder to Trustee's in the matter of I -n,--.-vriiT- j ^ , ■ Petition to ^Marshal Liens and Bankrupt. \ g^^^ as trustee plaintiit vs. defendant , defendant in the above entitled proceedings to sell, has a lien upon a portion of the property in said petition described, to-wit by reason of the following facts, to-wit : On or about, etc [here set up facts constituting lien]. U'hcrcforc, he prays the court for an order finding the validity, extent and priority of his said lien and directing the sale of said premises free and clear of all liens and the transfer of his lien to the proceeds there- from; and for such other and further relief as is just. [Verification] [Form No. 51.] Answer of Bankrupt's Wife Consenting to Sale Free of Her In- choate Dower. In the United States District Court, for the District of In Bankruptcy. T ,1 ,, J. ) Answer of Bankrupt's ^^'ife Con- in the matter of r . ^ , fl, ^ ^^ ^ T-, 1 , - senting to Sale Free of Her In- Bankrupt. \ . '^ ^ ! choate Dower. as trustee plaintifif vs. .' defendant the above named defendant, is the wife of the bankrupt and is of the age of .... years, said bankrupt being of the age of .... years. As such wife she is entitled to an inchoate dower interest in the property of said petition described [or in the following portion of the prop- erty in said petition described, to-wit : UNOFFICIAL FORMS IN BANKRUPTCY. 1951 She consents that said premises may be sold free and clear of her in- choate dower interest and that the same may be transferred to the pro- ceeds derived from said sale, and that out of said proceeds [of said por- tion of said property] there be paid to* her the commuted value of her said inchoate dower interest. [Verification] [Form No. 52.] Petition to Compromise Controversy. In the United States District Court, for the District of In Bankruptcy. In the matter of ) ^ ,.^. , ^ ■ n ^ _ , V Petition to Compromise Controversy. Bankrupt. is the duly appointed, qualified and acting trustee of the estate of the above named bankrupt. A controversy exists between said estate and a certain , the nature of which controversy is as follows : Said controversy can be compromised upon the following terms, lo-wit : It is for the best interest of the estate that said compromise be effected and for the following facts, to-wit : ; Wherefore said trustee prays the court for an order autljorizing and ap- proving such compromise. [Verification] [Form No. 53.] Petition for Leave to Abandon. In the United States District Court, for the District of ■ . . . . In Bankruptcy. Tn the matter of ) -n • • <- t ^-^ , ■n , ^ -. ■ Fetition for Ueave to Abandon. Bankrupt. \ is the duly elected, qualified and acting trustee of the es- tate of the above named bankrupt; and there has come into his control as 1952 REMINGTON ON BANKRUPTCY. such trustee the following property, to-wit : The said property is of the value of $ , but is encumbered by good and valid liens in excess of said value to the amount of $ [to-wit the following liens, ] and there is no equity therein for unsecured creditors. Wherefore this trustee prays the Court for an order authorizing him to abandon all title to said property and to disclaim the same. [Verification] TABLE OF CASES. TABLE OF CASES. Abbe, In re, § 2796, p. 1637. Abbey Press, In re, § 504, p. 321; § 523, p. 325; § 537, p. 332; § 562, p. 340; § 1531, p. 915; § 1533, p. 917; § 1534, p. 917; § 1537, p. 918; § 1541, p. 919; § 1573, p. 943; § 2103, p. 1299; § 2861, p. 1670. Abbott, Summers z'. Ablowich, In re, § 2550, p. 1536. Ablowich V. Stursburg, § 2544, p. 1532. Abraham, In re, § 2881, p. 1690; § 2891, p. 1698; § 2908, p. 1705; § 2913, p. 1708; § 2916, p. 1709. Abraham, D., In re, § 1855, p. 1153; § 2948, p. 1722. Abrahamson & Bretstein, In re, § 381, p. 251. Abrahamson v. Bretstein, § 1545, p. 922; § 1807, p. 1101; § 1916, p. 1194. Abraham Steers Lumber Co., In re, § 1280, p. 757; § 1333, p. 781; § 1369, p. 795. Abram, In re, § 898, p. 515; § 2046, p. 1267; § 2054, p. 1277; § 2054, p. 1278. Adamant Plaster Co., In re, § 1147, p. 677; § 1199^ p. 697. Adams Sartorial Co., In re, § 358, p. 240; § 2132, p. 1310. Adams z'. Terrell, § 55, p. 64; § 96, p. 92. Adelman, Thomas v. Adler, In re, § 463, p. 304; § 464, p. 304; § 466, p. 305; § 472, p. 306; § 676, p. 412; § 1819, p. 1115; § 1839, p. 1133; § 1840, p. 1134; § 1842, p. 1138; § 1844, p. 1141; § 1845, p. 1142; § 1848, p. 1145; § 1850, p. 1148; § 1852, p. 1152; § 2410, p. 1454; § 2668, p. 1588; Ad ^amo. In re, § 931, p. 524; § 1165, p. 685; § 1696, p. 1046; § 1999, p. 1236; § 2229, p. 1364. Adams, In re, § 17, p. 32; § 229, p. 179 § 399, p. 261; § 451, p. 298; § 527, p 330; § 653, p. 396; § 656, p. 399; § 657 p. 400; § 672, p. 407; § 672, p. 409 § 674, p. 411; § 688, p. 417; § 987, p 551; § 1212, p. 710; § 1217, p. 722 § 1218, p. 722; § 1234, p. 734; § 1280 p. 757; § 1439, p. 851; § l-i53, p. 862: § 1473, p. 877; § 1489, p. 886; § 1628, p. 994; § 1652, p. 1022; § 1677, p. 1034; § 1682, p. 1035; § 1718, p. 1060; § 1799, „ 1 nnn .• S -i QRri ,, i * " § 1682, p. 1035; § 1718, p. 1060; p. 1099;" § 1863, p. 1159; § 1 1160; § 1865, p. 1161; § 1901, p Ad , ^_ , „ _864, p XXV.W, 5 .^^^, p. 1161; § 1901, p. 1188 § 1918, p. 1195; § 2516, p. 1516; §2522 p. 1523; § 2595, p. 1552; § 2702 •- 1601; § 2702, p. 1602 1601; § 2702, p. 1602. dams, Chas. D., In re, § 1901. p. 1188; § 1902, p. 1190; § 1906, p. 1190. 1152; § 2410, p. 1454; § 2668, § 2691, p. 1597; § 2691, p. 2783, p. 1628; § 2784, p. 1629; p. 1629. P- p. 1588; 1598; § § 2785, Adl 84, p. "^■85, p. 1442; er f. Jones. § 2374, p. 143 p. 1440; § 2380, p. 1440; § 23 1441; § 238 § 2413, p. 1455. Ahl V. Thornor, § 611, p. 363; § 1311, p. 768. Aiken, Lambert & Co. v. Haskins, § 692, p. 419; § 692, p. 420; § 2735; p. 1613; § 2737, p. 1614; § 2738, p. 1614. Akron Mach. Co., Farmers' & Mer- chants' Bk. z'. Akron Twine & Cordage Co., In re., § 794, p. 464; § 802, p. 468. Albrecht, In re, § 2449, p. 1486; § 2453, p. 1486. Alden, In re, § 973, p. 546; § 1209, p. 707; § 1407, p. 834; § 1409, p. 835; § 1971, p. 1226. Alden Electric Co., In re, § 2851, p. 1664; § 2987, p. 1734. Alden, Jacquith z\ Alderson. In re, § 683, p. 414; § 2731, p. 1611. Aldridge, Hooks v. Allen Co., Hark v. Allen, Leggett v. Allen Miles Co., Klipstein v. Allen, Spike Iron Co. v. Allen, Viquesnay Z'. Alex, In re, § 1098, p. 623; § 1099, p. 624. Alexander, In re. § 1342, p. 785. Alex z'. Union Surety & Guaranty Co., § 877, p. 501. 1956 table: of cases. 420; i40: P- Alfred, In re, § 1047, p. 597 Allen, In re, § 383, p. 252; \ § 1121, p. 640; § 2014, p. i^o^. Allen & Co., In re, § 1047, p. 596; § 1047, p. 598; § 1082, p. 613; § 1096, p. 622; § 1100, p. 624; § 1104, p. 628; § 1447, p. 855; § 1485, p. 884; § 1487, p. 885; § 1488, p. 885. Allendorf, In re, § 2522, p. 1521; § 2545, p. 1533; § 2549, p. 1536; § 2550, o. 1537; § 2556, p. 1540; § 2558, p. 15 § 2559, p. 1541; § 2560, p. 1542; 2570, p. 1544. Allen V. Grant, § 976, p. 547; § 977, 547; § 977, p. 548. Allen v. Hollander, § 1140, p. 668; § 1141. p. 672; § 1146, p. 676. Allgair v. Fisher, § 1938, p. 1209; § 1938, p. 1210; § 2826, p. 1653; § 2829, p. 1655; § 2837, p. 1657. Allison, Hale v. Allison Lumber Co., In re, § 1616, p. 983; § 1620, p. 986; § 1621, p.- 986; § 1622, p. 988; § 1623, p. 988; § 1629, p. 997; § 1633, p. 1007; § 1993, p. 1234; § 2014, p. 1252; § 2104, p. 1300. Alphin & Lake Cotton Co., In re, § 456, p. 302; § 480, p. 309; § 1527, p. 914; § 1555, p. 930; § 1557, p. -lO. S -IQOC .^ -I 1 OO • 1821 p. 1133 § 1555, p. 930; § 1557, p. 933; § , p. 1118; § 1836, p. 1129; § 1839, 133; § 1842, p. 1137; § 1842, p. 1139; S 1848, p. 114o; S 1851, p. 1151, § 1856, p. 1154; § 1866, p. 1162; § 2126, p. 1309. p. iiiJd; s i»-i^) P- -Li-5'; § 184 1139; § 1848, p. 1145; § § 1856, p. 1154; § 1866. t p. 1309. Altman, In re, § 58, p. 65; § 67, p. 73; § 68, p. 73; § 69, p. 74. Am. Mfg. & Enamel Co.. Clark z\ American Brewing Co., In re, § 444, p. 285; § 1273, p. 751. American File Co. v. Garrett, § 935, p. 524. Am p. 04;^; § 18-10, p. i. Ames V. Moir, § 2785, p. 1630 Amsinck v. Bean, § 2794, p. 1634 Anderson, Cleland v. 24. lerican Trust Co. v. Wallis, § 1128, ». 643; § 1845, p. 1143. Anaerson, ».^ieianQ v. Anderson, In re, § 683, 450; § 1024, p. 573; § 1087, p. 615; § 1808, p. 1108; § 1819, p. 1115; § 1841, p. 1135; § 1842, p. 1138; § 1850, p. 1147; § 1856, p. 1154; § 1857, p. 1155; § 1859, p. 1157; § 204.5, p. 1267; § 2078, p. 1287; § 2082, p. 1288; § 2085, p. 1289; § 2086, p. 1291; § 2426, p. 1465; § 2756, p. 1620. Anderson, Johnson v. Anderson, McGahan v. Anderson, Marvin v. Anderson, State of New Jersey v. Anders Push Button Tel. Co., In re, § 2103, p. 1299; § 2103, p. 1300; § 2104, p. 1300; § 2105, p. 1300; § 2112, p. 1303. Andra; Co., In re, § 1140, p. 669; § 1209, p. 708; § 1270, p. 749; § 1440, p. 851; § 1507, p. 901. Andre, In re, § 356, p. 239; § 1652, p. 1021; § 1653, p.. 1023; § 1662, p. 1030; § 1696, p. 1046; § 1699, p. 1049; § 1796, p. 1092; § 1828, p. 1125; § 1863, p. 1159. Andrews, In re, § 1343, p. 786; § 1343, p. 787; § 1395, p. 823; § 1396, p. 824; § 1399, p. 826; § 1399, p. 827; § 1401, p. 829; § 1402, p. 830; § 1403, p. 830; § 1403, p. 831; § 1405, p. 833; § 1406, p. 834; § 1408, p. 835; § 1410, p. 836; § 1410, p. 837; § 1529, p. 914; § 1531, p. 915. Andrews, Landry v. Andrews v. Mather, § 1138, p. 665; § 1207, p. 699; § 1217, p. 722; § 1265, p. 745; § 1684, p. 1036; § 1687, p. 1038; § 1725, p. 1063; § -1760, p. 1074. Ankeny, In re, § 819, p. 475; § 820, p. 476; § 837, p. 483. Anonymous, § 288, p. 208. Anson, In re, § 2135, p. 1317; § 2182, p. 1342. Antigo Screen Door Co., In re, § 1033, p. 585; § 1140, p. 668; § 1236, p. 734; § 1238, p. 735; § 1582, p. 949; § 1696, p. 1045; § 1797, p. 1096; § 1798, p. 1098; § 1885, p. 1178; § 2869, p. 1683; § 2.875, p. 1687; § 2884, p. 1695. Antisdell, In re, § 2505, p. 1508. .•\ppel, In re, § 306, p. 219. Arend, National Bank v. Ark. Central Ry. Co., Credit' Co. v. Arkell, In re, § 2748, p. 1618. Armstrong, Scott v. Arlington v. Arlington, § 683, p. 415. Armstrong, In re, § 1277, p. 755; § 1395, p. 822; § 1403, p. 831. TABLE OF CASES. 1957 Arndt, In re, § 1427, p. 846. Arnett, In re, § 468, p. 305; § 898, p. 514; § 901, p. 516; § 1923, p. 1196. Arnold & Co., In re, § 636, p. 378; § 782, p. 462; § 803, p. 470; § 1100, p. 626; § 1463, p. 871. Arnold v. Maynard, § 131, p. 115. Arnstein, In re, § 640, p. 381; § 65: 393; § 653, p. 398; § 654, p. 39' 656, p. 399; § 665, p. 405; § 711, p. § 1317, p. 773. Arrington v. Arrington, § 2731, p. 1610; § 2756, p. 1620. Arrington Co., In re, § 2384, p. 1441: § 2385, p. 1441; § 2386, p. 1442. Ashcroft, Nutting v. , P- ; § Ashcroft, Nutting v. Associates Realty Co., Lindeke v. Atkins V. Bank, § 131, p. 114. " tkins V. Wilcox, § 653, p. 393; § 653, p. 394; § 655, p. 399; § 656, p. 399; § 659, p. 401; § 660, p. 402; § 2730, p. 1610. !; S ^75b, p. ibr^u. ler & Co., First Nat'l re, § 976, ^. _._, „ p. 402; § 2730, p. 1610 Atkinson, Gregory v. Audubon v. Shufeldt, § 683, p. 415; § 2731, p. 1612; § 2756, p. 1620. Aultman, Millr- « ~ ~'' Bk. V. Aurrol v. Mills, § 656, p. 399. Austin, In re, § 1124, p. 641; § 1134, p. 646; § 1140, p. 671; § 1377, p. 803. Auto Car Co., Rowland v. Automobile & Motor Co., In p. 547. Averill, In re, § 2087, p. 1291; § 2090, p. 1294; § 2091, p. 1295. Ayres v. Cone, § 210, p. 172; § 317, p. 222; § 444, p. 284; § 444, p. 288; § 447, p. 291; § 447, p. 295; § 789, p. 463; § 790, p. 463; § 824, p. 477; § 827, p. 480; § 2827, p. 1653; § 2835, p. 1656. Babbitt v. Kelly, § 1217, p. 722; § 1379, p. 804; § 1395, p. 822; § 1403, p. 830; § 1412, p. 838. Babbitt, Walburn v. Baber, In re, § 896, p. 511; § 898, p. 513; § 898, p. 514. Bachron, In re, § 2550, p. 1537. Bacon, In re, § 937, p. 525; § 1826, p. 1121; § 1868, p. 1162; § 1870, p. 1163; § 1887, p. 1181; § 1888, p. 1181. Bacon v. Roberts, § 2851, p. 1663; § 2851, p. 1664. Bacon, Roden Grocery Co. v. Baden v. Bertenshaw, § 113, p. 108; § 118, p. 110; § 1277, p. 755; § 1395, p. 822; § 1397, p. 825; § 1402, p. 830; § 1403, p. 831; § 1405, p. 832. Baer v. Grell, § 464, Raprnrnnf Tn rp 8 p. 1399. Bailej^ Hibbard v. Bailey, In re, § 824, p. 477; § 826, p. 479; § 827, p. 479 ; § 1189, p. 695; § 1190, p. 695; § 1283, p. 758; § 1284, p. 758; § 1419, p. 841; § 1429, p. 848; § 1448, p. 857; § 1451, p. 861; § 1477, p. 879; § 1478, p. 880; § 1478, p. 881; § 1718, p. 1060; § 1719, p. 1061. Bailey z: Loeb, § 653, p. 394; § 653, p. 398; § 656, p. 399. Baird & Co., In re, § 716, p. 429; § 723, p. 436; § 727, p. 437; § 728, p. 437; § 826, p. 479; § 897, p. 513; § 898, p. 513; § 898, p. 515; § 1112, p. 635; § 1207, p. 700; § 1431, p. 848; § 1462, p. 868; § 1462, p. 869; § 1489, p. 887; § 1491, p. 889; § 1863, p. 1159; § 1864, p. 1159; § 1865, p. 1161. Baker, In re, § 464, p. 304; § 863, p. 414; § 683, p. 415; § 2146, p. 1323; § 2731, p. 1611; § 2758, p. 1621; § 2826, p. 1653; § 2949, p. 1723; § 2959, p. 1725; § 2962, p. 1726. Baker-Ricketson, In re, § 150, p. 130; § 150, p. 131; § 305, p. 140. Baldwin, In re, § 2610, p. 1562; § 2612, p. 1562; § 2627, p. 1567. Baldwin v. Hale, § 1627, p. 993. all, Boynton v. Ba Ba Ball Ball 1 Ban Ban Ban , ill ic, vj oov, p. .i-iti, 5j o±o, p. coo, 1236, p. 734; § 1238, p. 735; § 1262, 744; § 1275, p. 754; § 1373, p. 802; 1901, p. 1188; § 1907, p. 1191. ew, Lins troth Wagon Co. v. ou, In re, § 1655, p. 1029; § 2864, p. i82. donine. Butter v. ':, Atkins z'. :, Bardes v. 68 1958. table; of cases. Bank v. Bruce, § 1295, p. 760; § 1314, p. 770; § 1321, p. 775; § 1326, p. 777; § 1500, p. 896; § 1507, p. 901. Bank, Chism v. Bank v. Cook, § 1399, p. 826. Bank v. Craig Bros., § 64, p. 69; § 64, p. 70; § 147, p. 129; § 171, p. 144; § 243, p. 187; § 245, p. 188; § 280, p. 204; § 281, p. 204. Bank, Cunningham z'. Bank v. De Pauw Co., § 104, p. 104; § 183, p. 152; § 2511, p. 1512. Bank v. Doolittle, § 2356, p. 1430; § 2377, p. 1439; § 2380, p. 1440; § 2381, p. 1440; § 2382, p. 1441; § 2383, p. 1441; § 2397, p. 1449; § 2399, p. 1451; § 2405, p. 1452; § 2403, p. 1452; § 2405, p. 1452; § 2811, p. 1645. Bank v. Johnson, § 552, p. 336; § 2335, p. 1418; § 2336, p. 1418; § 2628, p. 1567; § 2629, p. 1567; § 2845, p. 1661; § 2845, p. 1662; § 2861, p. 1670. Bank, Houston v. Bank v. Katz, § 1455, p. 863. Bank of Commerce v. Elliott, § 1435, p. 849; § 1455. p. 863; § 1648, p. 1013; § 1650, p. 1015; § 2668, p. 1588; § 2673, p. 1590; § 2682, p. 1594; § 2682, p. 1595; § 2704, p. 1603; § 2706, p. 1603; § 2709, p. 1604. Bank of Dearborn v. Matney, § 48, p. 60; § 48, p. 61; § 50, p. 62. Bank of Monroe, Stedman v. Bank, Pepperdine v. Bank v. Rome Iron Co., § 1144, p. 673; § 1150, p. 678; § 1252, p. 740; § 1320, p. 774; § 1320, p. 775; § 1324, p. 776. Bank, Shuts v. Bank, Stedman v. Bank, Warren v. Bankrupt, A, In re, § 385, p. 504. Banks, In re, § 444, p. 283. Bank v. Sawyer, § 612, p. 363; § 1515, p. 904; § 1517, p. 904; § 1518, p. 904. Bank v. Sherman, § 273, p. 202; § 1797, p. 1092. Bank v. Stevens Estate, § 2258, p. 13: Bank v. Sundheim, § 1297, p. 763; 1329, p. 778; § 1341, p. 785; § 1358, 792; § 1395, p. 823; § 1403, p. 831 1407, p. 834. Bank v. Title & Trust Co., § 1653, 1384. § ■ P- ; § 1027; § 1655, p. 1029; § 1685. p. 1036; § 1691, p. 1042; § 1692, p. 1043; § 1698, p. 1048; § 1796, p. 1089; § 1855, p. 1154; § 1863, p. 1159; § 2864, p. 1680; § 2864, p. 1682; § 2870, p. 1684; § 2876, p. 1688; § 2881, p. 1690; § 2911, p. 1706; § 2937, p. 1716; § 2938, p. 1717; § 2942, p. 1720. Banner, In re, § 674, p. 412; § 993, p. 553; § 993, p. 554; § 1186, p. 694; § 1191, p. 695. Barber t'. Coit, § 775, p. 459; § 1734, p. 1068. Barber, In re, § 1971, p. 1226; § 2103, p. 1299; § 2117, p. 1305; § 2206, p. 1358. Barbour, Barton z'. Barclay v. Barclay, § 683, p. 415; § 2731, p. 1611. Bard. In re, § 1555, p. 930; § 2641, p. 1575. Barden, In re, § 289, p. 208. Bardes v. Bank, § 20, p. 37; § 355, p. 238; § 1138, p. 665; § 1399, p. 827; § 1407, p. 834; § 1652, p. 1020; § 1653, p. 1024; § 1696, p. 1046; § 1725 p. 1063; § 1813, p. 1111; § 1913, p. 1192; § 2864, p. 1680; § 2864, p. 1682; § 2881, p. 1690; § 3018, p. 1746; § 3020, p. 1747. Bardon, In re, § 59, p. 65. Barker,, Brown v. Barker v. Franklin, § 1216, p. 719; § 1219, p. 723. Barker, Metcalf v. Barnes, Dickas v. Barnes, Goodier arnes Mfg. C ■ I 606; § 2748 B arnes Mfg. Co. z\ Norden, § 962, p. 538; § 1718, p. 1060; § 2702, p. 1602; § 2713, p. 1606; § 2748, p. 1618. arrett. In re, § 368, p. 244; § 370, p. 245, § 391, p. 256; § 393, p. 257; § 396, p. 258; § 882, p. 504; § 1047, p. 596; § 1281. p. 757; § 1317, p. 774; § 1370, p. 798; § 1387 p. 818; § 1421, p. 843, S J.OJ.1, p. . 11, VJ ±.)H/, , o -""■ p. 818; § 1421, p. 843, .3 1722, p. 1062; § 1723, p. 1062; § 1727, p. 1064; § 1756, p. 1073; § 1901, p. 1188; § 1921, p. 1196; § 2980, p. 1732. ett V. Prince, § 464, p. 304; § 472, 306; § 2785, p. 1630. p. 164; Barre Barrett Pub. Co., In re, § 200, § 209, p. 171. TABLE OF CASES. 1959 Barrow, In re, § 972, p. 545; § 992, p. 553; § 2014, p. 1250. Barr Pumping Engine Co., In re, § 2136, p. 1318; § 2147, p. 1324. Bartheleme, In re, § 1216, p. 719; § 1395, p. 822; § 1396, p. 824; § 1885, p. 1178; § 1885, p. 1180. Bartholomew v. Bean, § 611, p. 363; § 1311, p. 768. Bartlett v. U. S., § 2316, p. 1410; § 2321, p. 1411; § 2321, p. 1412; § 2322, p. 1412. Barton v. Barbour, § 404, p. 263. Barton Bros., In re, § 1819, p. 1115; § 1845, p. 1142; § 1845, p. 1144. Barton Bros. v. Produce Co., § 17, p. 33; § 2467, p. 1490; § 2541, p. 1529; § 2634, p. 1570; § 2649, p. 1575; § 2650, p. 1575; § 3009, p. 1741. Barton, Crittenden v. Barton Hotel Co., In re, § 94, p. 90. Barton's Estate, In re, § 2300, p. 1401; § 2303, p. 1402; § 2314, p. 1405; § 2416, p. 1462; § 2579, p. 1548. Basch, In re, § 2691, p. 1598; § 2783, p. 1628; § 2785, p. 1630. Bashinski v. Talbott. § 1095, p. 621; § 1096, p. 622; § 1097, p. 623. Bashline, In re, § 1277, p. 755; § 1421, p. 843. Bass, In re, § 755, p. 447; § 1024, p. 572; § 1032, p. 580. Bassett, Cavanna v. Bassett v. Thackara, § 767, p. 455; § 1980, p. 1229; § 1985, p. 1230; § 2668, p. 1588; § 2673, p. 1590. Batchelder & Lincoln Co. v. Whitmore, § 803, p. 469; § 1272, p. 750; § 1378, p. 803; § 2388, p. r444. Bates, In re, § 2337, p. 1368; § 2255, p. 1375; § 2796, p. 1637. Bates Machine Co., In re, § 167, p. 142; § 168, p. 142. Baudouine, In re, § 972, p. 545; § 975, p. 546; § 1265, p. 745; § 1653, p. 1028; § 1672, p. 1032; § 1796, p. 1090; § 1797, p. 1092; § 2467, p. 1490; § 2541, p. 1529. Baughman, In re, § 1582, p. 955; § 1809, p. 1109; § 1816, p. 1114; § 1827, p. 1122; § 1901, p. 1188; § 1903, p. 1190. Bauman v. Feist, § 2533, p. 1526; § 2540, p. 1528; § 2550, p. 1537. Baumann, In re, § 1344, p. 788; § 1347, p. 789. Baumberger, In re § 2549, p. 1535. Bay City Irrigation Co., In re, § 22, p. 38; § 89, p. 86; § 94, p. 89; § 250, p. 189; § 312, p. 221. Beach v. Macon Grocery Company., § 46, p. 59; § 243, p. 187; § 245, p. 189; § 261, p. 195; § 269, p. 199; § 341, p. 233; § 346, p. 234; § 355, p. 237; § 356, p. 239; § 359, p. 240; § 359, p. 241; § 363, p. 243; § 391, p. 256; § 393, p. 257; § 398, p. 259; § 1652, p. 1020; § 1717, p. 1058; § 1755, p. 1073; § 1901, p. 1188; § 1921, p. 1196. Beal, Dushane v. Beals, In re, § 18, p. 34; § 18, p. 35; § 19, p. 36; § 542, p. 332; § 1028, p. 577; § 1100, p. 626; § 1447, p. 855; § 1468, p. 873; § 1663, p. 1030; § 1807, p. 1105. Bean, Amsinck v. Bean, Bartholomew v. Bean. In re, § 288, p. 207; § 1047, p. 597; § 1050, p. 603; § 1066, p. 608; § 1070, p. 609; § 1093, p. 618. Bean-Chamberlain Mfg. Co. v. Stand- ard Spoke & Nipple Co., § 112, p. 107; § 410, p. 266. Bear v. Chase, § 19, p. 36; § 444, p 283; § 444, p. 287; § 899, p. 516; § 1429 p. 847; § 1433, p. 848; § 1463, p. 869 § 1448, p. 858; § 1464, p. 871; § 1468 p. 873; § 1472, p. 876; § 1473, p. 877 § 1479, p. 882; § 1641, p. 1011; § 1649 p. 1015; § 1860, p. 1158; § 1901, p 1188; § 1902, p. 1189; § 2692, p. 1598 § 2864, p. 1679. Beaseley v. Coggins, § 214, p. 173; § 248, p. 189; § 1138, p. 663; § 1207, p. 700; § 1208. p. 704; § 1212, p. 712; § 1216, p. 720; § 1217. p. 722; § 1225, p. 726; § 1725. p. 1063; § 1732, p. 1066; § 1751, p. 1072. Beatty, In re, § 22, p. 38; § 151, p. 132; § 158, p. 135. Beatty, Mutual Reserve Fund Life Ass'n V. Beauchamp, In re, § 1047, p. 596. ^960 TABi:,E OF CASES. Beaver Coal Co., In re, § 1448, p. 857; § 1448, p. 857; § 1449, p. 858; § 1485, p. 884; § 1588, p. 962. Becher Bros., In re, § 1019, p. 569; § 1170, p. 687; § 1177, p. 689; § 2347, p. 1424. Beck & Gregg Hdw. Co., Day v. Beck, In re, § 866, p. 497; § 867, p. 497; • § 2089, p. 1293; § 2090, p. 1294; § 2090, p. 1295; § 2091, p. 1295. Beck Provision Co., In re, § 1154, p. 680; § 1155, p. 681; § 1155, p. 682; § 1161, p. 684. Becker, In re, § 384, p. 252; § 385, p. 254; § 967, p. 541; § 968, p. 542; § 969, ;p. 542; § 1006, p. 559; § 1115, p. 637; § 1941, p. 1211; § 2347, p. 1425; § 2517, p. 1517; § 2521, p. 1519; § 2538, p. 1527; § 2541, p. 1529; § 2541, p. 1530. Beckwith & Co., In re, § 63, p. 69. Beddingfield, In re, § 198, p. 164; § 202, p. 165; § 203, p. 167; § 213, p. 172; § 235, p. 183; § 236, p. 184; § 268, p. 198; § 2160, p. 1333. Beebe, In re, § 2535, p. 1526; § 2596, p. 1554. •Beede, In re, § 1104, p. 628; § 1140, p. 667; § 1147, p. 677; § 1199, p. 697; § 1207, p. 700; § 1209, p. 707; § 1209, p. 708; § 1211, p. 709; § 1212, p. 710; § 1213, p. 714; § 1214, p. 717; 1230, p. 732; § 1235, p. 734; § 1239, p. 735; § 1239, p. 736; § 1259, p. 743; § 1265, p. 745; § 1760, p. 1074. eerman. In re, § 19, p. 36; § 493, p. 313; § 1300, p. 763; § 1332, p. 781; § 1395, p. 823; § 1399, p. 827; § 1403, p. •830; § 1407, p. 834; § 1412, p. 838; § 1504, p. 900; § 2691^ p. 1598; § 2702, p. 1602. B Beers v. Hanlin, § 214, p. 173; § 232, p. 181; § 635, p. 377; § 680, p. 413; § 705, p. 424; § 710, p. 427. Behan, United States v. Beinberg, In re, § 2461, p. 1488. Beisenthal, In re, § 149, p. 129. Belden, In re, § 1952, p. 1216; § 1953, p. 1217; § 1954, p. 1218; § 2460, p. 1488. Belding, In re, § 1298, p. 763; § 1314, p. 772; § 1329, p. 779; § 1332, p. 781. Bclford, Smith v. Belknap, In re, § 108, p. 106; § 109, p, 106; § 109, p. 107; § 113, p. 108; § 118, 110; § 138, p. 122; § 139, p. 122; § 106; § 109, p. 107; § 113, p. 108; § 118, p. 110; § 138, p. 122; § 139, p. 122; § 1160, p. 683; § 1387, p. 818; § 1387, p. 819; § 1397, p. 825; § 1437, p. 850; § 2204, p. 1356. Bell V. Dawson Grocery Co., § 755, p. 447; § 1022, p. 570; § 1024, p. 572; § 1032, p. 580; § 1034, p. 585; § 1103, p. 628; § 1104, p. 629; § 1106, p. 632; § 2446, p. 1478. Bell, Gage v. Bell V. Leggett, § 2814, p. 1647. Bell, Sellers v. Bellah, In re, § 26, p. 41; § 46, p. 59; § 243, p. 187; § 254, p. 191; § 255, p. 191; § 257, p. 192; § 258, p. 194; § 261, p. 196; § 268, p. 199; § 269, p. 199; § 278, p. 203; § 279, p. 204; § 280, p. 204; § 283, p. 205. Bellis, In re, § 2608, p. 1559. Bell Piano Co., In re, § 731, p. 439; § 2214, p. 1360. 2214, p. 1360. Bemis, In re, § 2511, p. 1512; § 2521, p. § 2613. o. 1563. emis, in re, $ :ioii, p. 1519; § 2613, p. 1563. nis V. Wilder, § 988, p. 551. Benbow, Southern Loan & Trust Co. v. ider. In re, § 356, p. 239; § 1032, p. IS; § 1037, p. 591; § _396, p. 1046; § 1820, i Benedict, In re, § 18, p. 34; § 98, p. 95; S OTT ^ ocn. SI o'oe , " 578 :, § i», p. 34; § 98, p. 95; § 377, p. 250; § 385, p. 253; § 395, p. 258; § 1215, p. 718; § 1429, p. 847; § 1433, p. 848; § 1464, p. 871; § 1471, p. 874; § 1705, p. 1051; § 1709, p. 1055; § 2785, p. 1630; § 2789, p. 1632. Benedict v. Deshell, § 1277, p. 755; § 1395, p. 822; § 1399, p. 826; § 1405, p. 832. Benjamin v. Chandler, § 1301, p. 764; § 1303, p. 765; § 1353, p. 790. Rpniamin, In re, § 527, p. 329; § 1128, p. 1134, p. 647; § 2037, p. 1263. Benjami ciijcimiii, in re, § ozt, 643; § 1134, p. 647; § -^usi, p. iz. Bullock, In re, § 1311, p. 768; § 1416, p. 839. Buntrock Clothing Co., In re, § 1652, p. 1020; § 1675, p. 1033; § 1796, p. 1089. Burgess, Graffam v. Burk, In re, § 214, p. 173; § 2627, p. 1567. Burka, In re, § 54, p. 64; § 96, p. 93; § 98, p. 95; § 312, p. 220; § 672, p. 407; § 951, p. 534; § 963, p. 538; § 1116, p. 639; § 1117, p. 639; § 1135, p. 648; § 2420, p. 1465; § 2474, p. 1494; § 2731, p. 1610; § 2735, p. 1613. Burke, Crawford v. Burke v. Guarantee Title & Trust Co., § 26, p. 41; § 1048, p. 599; § 1048, p. 600; § 1048, p. 602; § 1052, p. 604. Burke, In re, § 1168, p. 686; §2014, p. 1251; § 2020, p. 1256; § 2026, p. 1258; § 2054, p. 1276. Burkhart v. Germ. Am. Bk., § 77, p. 78; § 78, p. 79; § 79, p. 79. p. Burkle, In re, § 1147, p. 678; § 1243 738. Burleigh, Foreman v. Burleigh v. Foreman, § 1685, p. 1036; § 1885, p. 1179; § 2235, p. 1367; § 2236, p. 1367; § 2861, p. 1672; § 2871, p. 1685; § 2879, p. 1689; § 2912, p. 1706; § 3009, p. 1742. Burlington Malting Co., In re, § 203, p. 166; § 234, p. 183; § 630, p. 374. Burlin Machine Wks., Hewitt v. Burnett v. Morris, Mercantile Co., § 1653, p. 1023. Burnham, In re, § 1140, p. 670; § 1209, p. 707; § 1240, p. 736; § 1258, p. 741; § 1259, p. 743. Burnham v. Pidcock, § 635, p. 377; § 680, p. 413; § 2731, p. 1611; § 2740, p. 5; § 2747, p. 1617; § 2748, p. 1618; :783, p. 1628; § 2785, p. 1629; § p. 41 1615 2783, p 2790, p. 1633, Burnham, Will kirnham, Williams & Co., Jones v. Jurns, In re, § 2047, p. 1269. Burns v. O'Gorman, § 1729, p. 1064. kirnstine. In re, § 1019, p. 568; § 1115, p. 637; § 2522, p. 1521. 579; Burt, Elsbree v. Burow V. Grand Lodge, § 1032, p. § 1047, p. 595; § 1047, p. 596; § 1894, p. 1184; § 1985, p. 1230; § 2901, p. 1702; § 2902, p. 1703. Burr, In re, § 2376, p. 1439. Burrell & Corr, In re, § 150, p. 131. Burrell v. State, § 1556, p. 931; § 1561, p. 938. Burrus, In re, § 1429, p. 847; § 1463, p. 871; § 2045, p. 1267; § 2089, p. 1293; § 2092, p. 1295. urton Bros. Mfg. Co., In n 1347! 8 2198 n 13.51 : 8 219 § 988, p. 551. Bush V. Elliott, § 1694, p. 1044. 3ush V. Export Storage Co., § 1146, p. 1966 TABLE OF CASES. Bush, Shropshire, WoodHfif & Co. v. Bussey, In re, § 1614, p. 980; § 1614, p. 981. Butler V. Baudouine, § 975, p. 546. Butler, In re, § 1035, p. 589; § 1037, p. 591; § 1410, p. 837. Butt V. Construction Co., § 81, p. 80; § 84, p. -83; § 84, p. 84; § 90, p. 86; § 94, p. 90. Butterfield, In re, § 2608, p. 1559. Butterwick, In re, § 1140, p. 669; § 1140, p. 671; § 1207, p. 702; § 1212, 712; § 1228, p. 727; § 1245, p. 739; § 1254, p. 741; § 1265, p. 745. Button Co., Brown & Adams v. Butts, In re, § 2783, p. 1628; § 2784, p. 1629; § 2785, p. 1630. Bybee, In re, § 2440, p. 1477. Byerly, In re, § 889, p. 508; § 1621, p. 987; § 1622, p. 988; § 2045, p. 1266; § 2048, p. 1272; § 2050, p. 1274; § 2054, p. 1276; § 2054, p. 1277; § 2055, p. 1279. Byrne, In re, § 1160, p. 683; § 1896, p. 1185; § 1898, p. 1187; § 2186, p. 1344; § 2195, p. 1347; § 2202, p. 1353; § 2204, p. 1357. Byrnes, Mulock v. Cabus, In re, § 2521, p. 1519. Cady V. Whaling, § 1218, p. 722. Cagliostro v. Indelle, § 2761, p. 1622; § 2770, p. 1626; § 2775, p. 1627. Cahoon, McKittrick v. Cain, In re, § 205, p. 167; § 233, p. 182; § 1346, p. 788. Calbath, Buck v. Caldwell, Coal Fields Co. v. Caldwell, Paine v. Calif. Pac. Ry. Co., In re, § 233, p. 182. Callahan v. Israel, § 899, p. 515; § 899, p. 516; § 1641, p. 1011; § 1722, p. 1061. Callison, Brake v. Callison. In re, § 46, p. 59; § 214, p. 173; § 243, p. 187. Cambridge, In re, § 2010, p. 1246; § 2103, p. 1300; § 2111, p. 1302; § 2n6, p. 1304; § 2119, p. 1306. Camb. Sav. Inst. v. Littlefield, § 2716, p. 1606. Cameron Town Insurance Co., In re. § 94, p. 89. Camp, In re, § 1022, p. 570; § 1024, p. 572; § 1024, p. 573; § 1032, p. 578; § 1034, p. 585; § 1041, p. 592; § 1047, p. 595; § 1047, p. 596; § 1072, p. 610; § 1074, p. 611; § 1095, p. 620. Camp, Sabin v. Camp, Savin v. Campbell, In re, § 1032, p. 581; § 1035, p. 587; § 1035, p. 589; § 1079, p. 612; § 1082, ; § lu.ia, p. oay; § lu/y, p. o ^ ^.,^2, p. 613; § 1084, p. 614; § 1107, p. 633; § 2183, p. 1342. Campbell, Traders' Bk. v. Campbell, Wiswall 7'. Canal National Bank, Emery v. Canfield, In re, § 299, p. 216; § 303, p. 217. Cann, In re, § 2639, p. 1572. Cannon v. Dexter Broom & Alattress Co., § 1022, p. 570; § 1035, p. ,587; § 1035, p. 589. Cannon, In re, § 554, p. 338; § 830, p. 481; § 831, p. 481; § 831, p. 482; § :, p. 484; § 852, p. " '■ « ^--^ p. 734; L 069; § 1896, p. 1185; § 144, p. 484; § 852, p. 490; § 1035, p. i89; § 1234, p. 734; § 1265, p. 746; 1738, p. 1069; § 1896, p. 1185; § ^221, p. 1362. ir & Loco. Wks., In re, § 1140, 669; § 1141, p. 672; § 1146, p. 676 irbone. In re, § 43, p. 58; § 318, i, p. 58; § 318, p. Co. 223. Card, Zepemik z'. Carleton Dry Goods Co. v. Rogers, § 1416, p. 839; § 1418, p. 840. Carleton, In re, § 43, p. 58; § 59, p. 66; § 72, p. 75; § 72, p. 77; § 73, p. 77; § 76, p. 78; § 318, p. 223; § 2552, p. 1538; § 2558, p. 1540; § 2571, p. 1544; § 2574, p. 1547; § 2576, p. 1547. Carley, In re, § 1547, p. 924; § 1551, p. 927; § 2613, p. 1563; § 2622. p. 1565. Carley, Kentucky National Bank of Louisville v. Carley, Patten v. Carling v. Seymour Lumber Co., § 445, p. 855; § 1472, p. 876; § 1582, ^ 965; § 1610, p. 978; § 1615, p. 989; 1587, p. 962; § 1597, p. 964; §1598^ 965, § 1610, p. 978; § 1625, p. 989; 1626, p. 991; § 1628, p. 994; § 1629, ,.. 996; § 1629, p. 997; § 1632, p. 1007; § 1633, p. 1007; § 1633, p. 1008; § 1636, p. 1009; § 1637, p. 1010; § 1- P- § P- § P- § TABLE OF CASES. 1687, p. 1038; § 1901, p. 1188; § 1907, p. 1191. Carl!, U. S. V. Carmichael, In re, § 1047, p. 597; § 1081, p. 613; § 2259, p. 1385; § 2272, p. 1391; § 2468, p. 1491; § 2470, p. 1494; § 2471, p. 1494; § 2544, p. 1533; , ^ , p. 1494; § 2544, p. 1533 § 2662, p. 1584; § 2663, p. 1585 2665, p. 1586; § 2754, p. 1619; § 27 '66, 2278, p. p. 1624; § 2794, p. 1635 Carolina Car Cc 1393. Carolina Cooperage Co., In re, § 2011, p. 1247; § 2030, p. 1260; § 2045, p. 1267; § 2047, p. 1370; § 2048, p. 1271; § 2117, p. 1305; § 2169, p. 1337; 2171, p. 1338; § 2176, p. 1340. 2171, p. 1338; § 2176, p. 1340. arpenter Bros. v. O'Connor, § 1586, p. 960; § 1587, p. 962; § 1807, p. 1105; § 2695, p. 1598; § 2696, p. 1599. Carpenter, In re, § 1047, p. 599; § 1209, p. 707; § 1216, p. 721; § 1228, p. 727; § 1263, p. 744. Carpenter, Jacobs z'. Carpet Lining Co., Mauran v. Carr, Farmers' Bank z'. Carr, Farmers' Bank of Edgfield z' Carr z\ Hamilton, § 674, p. 41: Ca p. 412;, § 1173, p. 688; § 1186, 1173, p. 688; § 1186, p. 694. arr. In re, § 560, p. 340; § 909, p. 519; § 2045, p.- 1266; § 208-'l, p. 1288; § 2286, p. 1397; § 2295, p. 1400. Carr z'. ]\Ieyers, § 1018, p. 568; § 1019, p. 568; § 1743, p. 1070. Carr, Wood v. Carriage Co. v. Solanas, § 533, p. 331; § 1160, p. 683; § 1797, p. 1093; § 1807, p. 1101; § 1811, p. 1109; § 1811, p. 1110; § 1813, p. 1111; § 1874, p. 1164; § 1885, p. 1178; § 1885, p. 1179; § 1975, p. 1228; § 1985, p. 1230; § 2204, p. 1356. Carroll, Geo., & Bros. Co. v. Young, § 563. p. 341; § 1154, p. 680; § 1966, p. 1225; § 1986, p. 1230; § 1987, p. 1232; § 1988, p. 1232. Carson, Rowland z'. Carson, Pirie & Co. z'. Trust Co., § 124, p. 112; § 1277, p. 755; § 1331, p. 780; § 1343, p. 786; § 1343, p. 787; § 1426, p. 846. Carter z'. Goodykoontz, § 1303, p. 765. 1967 p. 35; § 19, p. 949; § ^^^, p. ..^^, § 1922, p. 1196. Carter, In re, § 602, p. 358; § 611, i.. 361; § 794, p. 465; § 798, p. 466; § 815, p. 474; § 824, p. 477; § 844, p. 487; § 1653, p. 1024; § 1718, p. 1060; § 1837, p. 1130; § 2280, p. 1395. Carton & Co., In re, § 459, p. 303; § 801, p. 468; § 824, p. 477; § 826, p. 479; § 2559, p. 1541; § 2655, p. 1578. Carver & Co., In re, § 1594, p. 964; § 1606, p. 976; § 1611, p. 978; § 1612, p. 979; § 1665, p. 1031; § 2843, p. 1661. Car Wheel Wks., In re, § 794, p. 464; § 794, p. 465; § 802, p. 469. Case, Brown z'. Case z>. Phelps, § 2509, p. 1510. Cassell, Dolle v. Cassell, York M'f'g Co. v. Casey t-. Cavaroc, § 1144, p. 673. Cashman, In re, § 2521, p. 1520. Cass, In re, § 993, p. 553; § 1885, p. 1180. Castleberry, In re, § 1024, p. 1032, p. 580; § 1035, p. 589; p. 599 ..-..,, ... .-, ,3 P- 572; § :, p. 580; § 1035, p. 589; § 1047, 99; § 1089, p. 616; § 1091, p. 617; § 1093, p. 617; § 1104, p. 631; § 2044, p. 1266; § 2088, p. 1293; § 2111, p. 1302. Castle Braid Co., In re, § 760, p. 451; § 801, p. 468; § 802, p. 469; § 844, p. 486; § 846, p. 489. Caswell, In re, § 1047, p. 597. therson, Willetts v. ava w m Ca C Ca Ce Cen Ch? Cha Ch atherson, Willetts z'. avagnaro. In re, § 1209, p. 707; § 1242, p. 737; § 1244. p. 738; § 1245, p. 738; J 1379, p. 804. vanna 7'. Bassett, § 2395, p. 1448. "'aroc, Casey z'. thon-Coleman Co., Lucius v. lent Co., In re, § 138, p. 122. tury Saving Bk., Taft z'. lloner. In re, § 683, p. 415. lonpka. Kohout z'. am 3640 inpka. Kohout z'. iberlain. In re, § 2635, p. 1571; § ^^, p. 1572. 1968 TABLE OE CASES. Chambers, Calder & Co., In re, § 20, p. 37; § 643, p. 383; § 825, p. 478; § 859, p. 492; § 1582, p. 949; § 1797, p. 1093? § 1798, p. 1098; § 1799, p. 1099; § 2034, p. 1261; '§ 2035, p. 1262; § 2840, p. 1659; § 2840, p. 1660; § 2847, p. 1662; § 2849, p. 1663; § 2851, p. 1663; § 2851, p. 1664. Champion, In re, § 1421, p. 843. Chandler, Benjamin v. Chandler, In re, § 453, p. 302; § 470, p. 306; § 473, p. 306; § 2809, p. 1645; § 2810, p. 1645; § 2822, p. 1649. Chaplin, In re, § 769, p. 456; § 774, p. 459; § 803, p. 469; § 1216, p. 720; § 1217, p. 722; § 2222, p. 1363. Chapman, Brown v. Chapman, Dight z'. Chapman v. Forsj^th, § 2663, p. 1585; § 2785, p. 1631. Chapman, Heim z'. Chapman, In re, § 138, p. 120; § 142, p. 125; § 143, p. 125; § 143, p. 126; § 798, p. 467; § 1444, p. 854; § 1448, p. 857; § 1455, p. 863; § 1586, p. 960. Chapman, Trustee, v. Bowen, § 2956, p. 1724; § 3008, p. 1740. Chappell, In re, § 42, p. 57; § 444, p. 287; § 1342, p. 785; § 1363, p. 793; § 1403, p. 831; § 1768, p. 1076. Chase, In re, § 789, p. 463; § 993, p. 554; § 1606, p. 977; § 1614, p. 981; § 1615, p. 982; § 1616, p. 983; § 1621, p. 986; § 1632, p. 1005; § 1734, p. 1068; § 1827, p. 1124. Chasnoff, In re, § 604, p. 360. Chatfield z: O'Dwyer, § 824, p. 477; § 826, p. 479; § 896, p. 512; § 2827, p. 1654; § 2830, p. 1655; § 2831, p. 1655. Chattanooga v. Hill, § 2136, p. 1318; § 2141, p. 1319; § 2141, p. 1320; §2141, p. 1321; § 2147, p. 1324; § 2190, p. 1346. Chattanooga Xat'l Bk. z'. Rome Iron Co., § 1686, p. 1037; § 1811, p. 1110. Chauncey v. Dyke Bros., § 1154, p. 681; § 1267, p. 747; § 1582, p. 949; § 1696, p. 1045; § 1698, p. 1048; § 1780, p. 1079; § 1797, p. 1094; § 1813, p. 1111; § 1885, p. 1178; § 1888, p. 1181; § 1896, p. 1185; § 1965, p; 1223; § 1966, p. 1225; § 1975, p. 1228; § 2202, p. 1353. Chase, Bear z'. Chavez, In re, § 2205, p. 1357. Cheeves, Woodruff v. Chem. Xat. Bank v. Meyer, § 64, p. 70; § 1603, p. 971. Cheney, Knight z'. Cheney, McKenney v. Chequasset Lumber Co., In re, § 277, p. 203. Chesapeake Shoe Co. v. Seldner, § 1138, p. 665; § 1207, p. 701; § 1212, p. 711; § 1241, p. 736; § 1245, p. 739; § 1265, p. 745; § 2916, p. 1709. Chicago Dry Goods Co., Neustadter z;. Chicago-Joplin Lead & Zinc Co., In re, § 85, p. 84; § 87, p. 85; § 93, p. 87. Chicago Title and Trust Co., Ex parte, § 3012, p. 1743. Chicago, T. & T. Co. v. Roebling's Sons, § 1350, p. 789; § 1352, p. 790; § 1304, p. 794. Child, Trust z: Chisholm, In re, § 2224, p. 1363. Chisholm z'. Earle Ore Sampling Co., § 1228, p. 730. Chism. z'. Bk., § 1397, p. 825; § 1721, p. 1061; § 1722, p. 1061; § 1761, p. 1074; § 1797, p. 1093. Christ z\ Zehner, § 1237, p: 735; § 1379, p. 807; § 1384, p. 815. Christensen, In re. § 20, p. 37; § 407, p. 265; § 1416. p. 839; § 1427, p. 846. Christer, Pratt z'. Christmas z: Russell, § 1370, p. 797. Christopherson v. Oleson, § 1396, p. 825. Christy, In re. § 1679, p. 1034; § 1885, p. 1181; § 1965, p. 1223. Churchman's Appeal, § 972, p. 544. City Bank, Wilson v. City Bk. of Sav., In re, § 1173, p. 688. City Deposit Bk. Co., Rector v. City Xat'l Bk. of Greenville v. Bruce, § 1295, p. 760. City of Waco v. Bryan, § 2141, p. 1319; § 2141, p. 1320; § 2145, p. 1322; § 2145, p. 1323; § 2147, p. 1324; § 2152, p. 1329; § 2712, p. 1605. City of Wilmington v. Ricand, § 2921, p. 1711. TABLE OF CASES. 1969 3437, p. 1471; § 24 167. '4; Claff, In re, § 3437, p. 1471; § 2438, p. 1474; § 2665, p. 1586; § 2680, p. 1594. Claflin Dry Goods Co. v. Eason, § 1884^ p. 1176; § 2744, p. 1616; § 2783, p 1628; § 2789, p. 1632. Claiborne, In re, § 465, p. 305. Clairmont, In re, § 882, p. 504. Clarion Bank z'. Jones, § 131, p. 115. Clark V. Am. Mfg. & Enamel Co., ^ 145, p. 128; § 147, p. 128; § 412, p. 2 Clark, Booth z: Clark. In re, § 63, p. 68; § 70, p. 7 § 1000, p. 556. Clarke v. Larremore, § 1429, p. 847; § 1444, p. 854; § 1451, p. 860; § 1460, p. 866; § 1467, p. 872; § 1477, p. 879; § 1478, p. 880; § 1479, p. 881; § 1481, p. 883; § 1489, p. 886; § 1805, p. 1100; s ico-r ^ 1-.02; § 1901, p. 1188; § 1902, ..^, s —39, p. 1370. V. Equitable Life Assurance Soc, § 1008, p. 560; § 1015, p. 565. Clark V. Henne & Meyer, § 221, p. 175; § 239, p. 185; § 251, p. 191; § 257, p. 192. Clark V. Ins. Co., § 1006, p. 559; § 1006, p. 560; § 1014, p. 564. Clark z>. Iselin, § 1503, p. 899. Clark, Neal v p. 1190; § 9') Clark Clark z: Pidcock, § 567, p. 344; § 871, p. 498; § 2298, p. 1401; § 2300, p. 1401; § 2305, p. 1402; 8 2311, p. 1404; § ^^^, s ^^.^, ^. ^.^., cs ^^...,, p. 1401; § 2305, p. 1402; § 2311, p. 1404; § 2314, p. 1405; § 2833, p. 1656; " 2937, p. 627; § 2679, ooo p. 1716. Claster v. Soble, § 1102 p. 1594. Cla3^ton V. Exchange Bk., § 1 724. Cleage v. Laidley, § 45, p. 59; § 80, p. 80; § 235, p. 184; § 803, p. 470. Cleanfast Hosiery Co., In re, § 235, p. 183; § 702, p. 423; § 730, p. 439; § 2141, p. 1319; § 2141, p. 1320; § 2160, p. 1333; § 2161, p. 1334; § 2162, p. 1334. Cleland v. Anderson, § 952, p. 535; § 1019, p. 569. Clemmons v. Brinn, § 647, p. 389. Clendening v. Red River Valley N. Bk., § 523, p. 325; § 523, p. 326; § 791, p. 464; § 792, p. 464; § 793, p. 464; § 2 Rem B— 49 812, p. 473; § 1771, p. 1076; § 1771, p. 1077; § 1773, p. 1077. Cleveland Ins. Co., Globe Ins. Co. v. Clevenger v. Moore, § 977, p. 547; § 1019, p. 568. Clews, Hennequin v. Clifife, In re, § 252, p. 191; § 255, p. 191; § 257, p. 193; § 260, p. 195; § 261, p. 195; § 1563, p. 939. Clifford, In re, § 1295, p. 760; § 1314, p. 770; § 1326, p. 777; § 1342, p. 785; § 1395, p. 822; § 1500, p. 896. Clinton V. Mayo, § 200, p. 164; § 205, p. 168. Clisber, McChristal v. Clisdell, In re, § 30 p. 46; § 33, p. 52; § 33, p. 53; § 241, p. 186; § 430, p. 276; § 435, p. 278; § 450, p. 296; § 546, p. 333; § 1038, p. 592; § 2477, p. 1495; § 2478, p. 1495; § 2415, p. 1459. Clothier, In re, § 2448, p. 1486; § 2449, p. 1486; § 2453, p. 1486; § 2454, p. 1486. Clothing Co. v. Hazle, § 360, p. 242; § 1917, p. 1194. Clute, In re, § 1206, p. 699; § 1711, p. 1056. Coal & Coke Co. v. Stauffer, § 97, p. 93; § 168. p. 142; § 1634, p.' 1008. Coal Fields Co. v. Caldwell, § 526, p. 329; § 2887, p. 1696; § 2889, p. 1697; § 2893, p. 1698; § 2895, p. 1700; § !, p. 1701; § 2966, p. 1727. Coats, Crandall v. 2898, Cobb, Bray v. Cobb, In re, § 760, p. 453; § 868, p. 497; § 909, p. 519; § 910, p. 519; § 910, p. 519; § 911, p. 520; § 913, p. 520; § 1314, p. 771; § 1326, p. 777; § 1500, p. 896; § 1528, p. 914; § 1533, p. 916; § 1536, p. 917; § 1573, p. 943; § 1574, p. 944; § 1679, p. 1034; § 1797, p. 1094; § 1798, p. 1098; § 1885, p. 1178; § 1913, p. 1192. Cobb V. Overman, § 651, p. 390; § 653, 394; § 676. p. 412; § 707, p. 425; § ■, p. 426; § 1798, p. 1098; § 2034; 1261. obin, Omsley v. oburn. In re, § 202, p. 165; § 229, p. 179; § 236, p. 184; § 672, p. 407. Coburn, Moulton v. P- 707, P Cob Cob 1970 TABLE OF CASES. Coddington, In re, § 179, p. 150; § 181, p. 151; § 1095, p. 619; § 1353, p. 790; § 1355, p. 791. Codington, Stilton v. Coe, Powers & Co., In re, § 756, p. 449. Coffin, In re, § 963, p. 538; § 974, p. 546; § 1312, p. 712; § 2103, p. 1299; § 2104, p. 1300; § 2206, p. 1358. Coffin, McCarty v. Coffman, In re, § 1048, p. 599; § 1820, p. 1118. Coggins, Beaseley v. Cogley, In re, § 932, p. 524; § 933, p. 524; § 1971, p. 1226; § 1971, p. 1227; § 1989, p. 1233; § 1990, p. 1233. Cohen, Conrader v. Cohen, In re, § 373, p. 246; § 869, p. 498; § 2387, p. 1443; § 2540, p. 1528; § 2635, p. 1571; § 2639, p. 1572; § 2652, p. 1576; § 2855, p. 1667. Cohen V. Wagar, § 1729, p. 1064; Co- hen, In re, § 545, p. 333; § 1565, p. 940; § 1652, p. 1022; § 1676, p. 1034; § 1695, p. 1044; § 1796, p. 1089; § 2544, p. 1532; § 2544, p. 1533. Cohn, Hahlo v. Cohn, U. S. V. Colacula, In re, § 2741, p. 1615; § 2754, p. 1619; § 2754, p. 1620. Cole, In re, § 1569, p. 942; § 1836, p. 1129; § 1842, p. 1140; § 1845, p. 1145; § 1849, p. 1146; § 1854, p. 1153; § 1855, p. 1154; § 1857, p. 1155; §.1858, p. 1156; § 2691, p. 1597; § 2748, p. 1617; § 2861, p. 1672; § 3009, p. 1741. Cole & Hoblitzel, In re, § 265, p. 197. Cole, Merchants' Nat'l Bk, v. Cole, Moody v. Cole, Rex v. Cole, Scammon v. Coleman, In re, § 1005, p. 558; § 1006, p. 559; § 1009, p. 561; § 1011, p. 562; § 1012, p. 563; § 1016, p. 566; § 1115, p. 636. Coller, In re, § 1047, p. 595; § 1047, p. 597; § 1077, p. 612. Collier, In re, § 288, p. 207. Collignon, In' re, § 640, p. 381; § 652, p. 393; § 653, p. 397; § 656, p. 400; § 659, p. 401; § 2729, p. 1610. Collins, In re, § 1335, p. 782; § 1335, p. 783; § 1431, p. 848; § 1437, p. 850; § 1451, p. 860; § 1458, p. 865; § 1460, p. 867; § 1463, p. 869; § 1464, p. 871. Collins V. McWalters, § 2682, p. 1595; § 2706, p. 1603; § 2748, p. 1618; § 2761, p. 1622. Collisi, In re, § 1883, p. 1169; § 1883, p. 1172. Collison, In re, § 1751, p. 1072. Cololuca, In re, § 441, p. 282. Colton Export & Import Co., In re, § 1390, p. 820; § 1418, p. 840; § 1419, p. 841. Columbia Bank v. Birkett, § 2767, p. 1625; § 2769, p. '1625. Columbia Bank, Birkett v. Columbia Distilling Co., Buder v. Columbia Iron Wks., In re, § 571, p. 346; § 571, p. 347; § 574, p. 348; § 576, p. 349; § 578, p. 349; § 632, p. 375; § 768, p. 456; § 864, p. 496;' § 887, p. 506; § 897, p. 513; § 898, p. 513; § 901, p. 516; § 902, p. 516; § 1926, p. 1203; § 1927, p. 1204; § 1939, p. 1209. Columbia Iron Works v. National Lead Co., § 90, p. 86; § 532, p. 331; § 2891, p. 1698; § 2893, p. 1698; § 2913, p. 1708; § 2986, p. 1733. Columbia Real Estate Co., In re, § 30, p. 46; § 94, p. 89; § 321, p. 223; § 414, p. 268; § 427, p. 275; § 431, p. 277; § 432, p. 277; § 433, p. 277; §434, p. 278; § 436, p. 279; § 437, p. 280; § 444, p. 283; § 450, p. 296; § 2864, p. 1679; § 2900, p. 1702; § 2912, p. 1706; § 2920, p. 1710; § 2922, p. 1712. Columbus Buggy Co., In re, § 1228, p. 731. Columbus El. Co. V. Worden, § 1331, p. 780. Colwell, Tinker v. Colwell V. Tinker, § 2760, p. 1621. Comingor, Louisville Trust Co. v. Comstock, Hayer v. Comstock, In re, § 1573, p. 943. Conboy v. National Bank, § 2989, p. 1735; § 3022, p. 1748. Condict, In re, § 2608, p. 1560. Coney, Holbrook v. Congdon, In re, § 1603, p. 973; § 1603, p. 974. TABLE OF CASKS. 1971 Conhaim, In re, § 578, p. 349; § 768, p. 456; § 1277, p. 755; § 1421, p. 842; § 2141, p. 1319; § 2143, p. 1321; § 2147, p. 1324; § 2152, p. 1330. Conkling, Crompton v. Conley, In re, § 2550, p. 1537. Conn, In re, § 2522, p. 1521. Connell & Sons, In re, § 2043, p. 1265; § 2044, p. 1266; § 2045, p. 1266; § 2048, p. 1271; § 2078, p. 1287; § 2081, p. 1288. Connell, Peck v. Connett, First. Nat'l Bk. v. Connolly, In re, § 1696, p. 1046; § 1698, p. 1048; § 1698, p. 1049; § 1699, p. 1049; § 1832, p. 1126. Connor, In re, § 131, p. 114; § 1370, p. 797. Conrader, In re, § 2238, p. 1369. Conrader v. Cohen, § 2238, p. 1369; § 2256, p. 1376; § 2257, p. 1380. Conroy, In re, § 2460, p. 1488- * '' '"^ p. 1488; § 2493, p. 1505; § 1509; § 2537, p. 1527; § 2544, p. 1534; § 2634, p. 1570; § 2649, p. 1505; § 2508, p, ; § 2544, p. 1534; 2649, p. 1575; § 2650, p. 1575. Construction Co., Butt v. Construction & Dry Dock Co., In re, § 1258, p. 742. Continental Corporation, In re, § 12, p. 28; § 17, p. 34; § 18, p. 34; § 19, p. 36; § 444, p. 283; § 445, p. 288; § 447, p. 291; § 495, p. 315; § 789, p. 463; § 790, p. 463. 8 vyu, p. *Oi5. Continental Nat'l Bk. v p. 851; § 1524, n QOfi- § 2709, p. 1604 p. 463; Katz, § 1439, JJi^. c. ivauA, s i-±->3, p. 851; § 1524, p. 906; § 2691, p. 1597; § 2709, p. 1604 Cook, Bank Cook, Gardner v. Cooke, In re, § 1555, p. 930; § 1839, p. 1133; § 2643, p. 1574. Cooke V. Scovil, § 1798, p. 1098. Cookingham -v. Morgan, § 611, p. 363. Cooley, Hall v. Cooper, In re, § 887, p. 507. Cooper Grocery Co. v. Bryan, § 2141, p. 1319; § 2148, p. 1326. Cooper, Smith v. Co-op. Shear Co., In re, § 1209, p. 707; § 1242, p. 737. Copper King, The, In re, § 627, p. 373; § 1485, p. 884; § 2197, p. 1350; § 2197, p. 1351; § 2198, p. 1352. Corbett, In re, § 1134, p. 646; § 1797, p. 1093; § 1800, p. 1099; § 1807, p. 1105; § 1885, p. 1178; § 2097, p. 1296; § ■ 2100, p. 1298; § 2101, p. 1298. Corbin, Sturgis v. Corcoran, In re, § 59, p. 65; § 2238, p. 1369; § 2256, p. 1376; § 2255, p. 1375; § 2257, p. 1377. Corn, In re, § 2545, p. 1533; § 2549, p. 1536; § 2635, p. 1570; § 2639, p. 1572. Cornell, In re, § 444, p. 283; § 2511, p. 1511; § 2511, p. 1512; § 2647, p. 1574; § 2655, p. 1577; § 2656, p. 1578. Cornice & Roofing Co., In re, § 384, p. 252; § 2036, p. 1262. Cornucopia ]Mines, Swafford v. Cosmopolitan Power Co., In re, § 2143, p. 1321; § 2155, p. 1330; § 2156, p. 1331; § 2157, p. 1332; § 2158, p. 1332; § 2898, p. 1701; § 2899, p. 1701; § 2901, p. 1702; § 2902, p. 1703; § 2903, p. 1703. Cotterell, S. P. v. Hook, § 656, p. 399. Cotton Co., In re, § 1819, p. 1117; § 1833, p. 1128; § 1841, p. 1135; § 1850, p. 1147; § 2649, p. 1575. Council B. Sav., Des Moines Nat'l Bk. V. Counselman v. Hitchcock, § 1558, p. 933. Countryman, In re, § 2508, p. 1510; § 2511, p. 1512; § 2511, p. 1513. Couts V. Townsend, § 49, p. 61; § 79, p. 79; § 2861, p. 1671. Covington, In re, § 523, p. 325; § 549, p. 334; § 2045, p. 1266; § 2048, p. 1272; § 2079, p. 1288; § 2522, p. 1521; § 2632, p. 1569; § 2634, p. 1569; § 2639, p. 1572; § 2861, p. 1670. Cowley V. R. R. Co., § 2229, p. 1364. Cox V. Farley, § 602, p. 358. Cox, McPherson v. Cox, Manufacturing Co. v. Cox, State Bank v. Cox V. State Bank, § 1126, p. 642. Coxe V. Hale, § 136, p. 120. Cox V. Wall, § 1653, p. 1024; § 1726, p. 1063; § 1741, p. 1070. Cox. Wall V. Craft, In re, § 265, p. 197. 1972 TABLE OF CASES. Craig Bros., Bank v. Cramond, In re, § 999, p. 556; § 1150, p. 679; § 1154, p. 681; § 1155, p. 681; § 1156, p. 682; § 1162, p. 684; § 1207, p. 699; § 1223, p. 725; § 1885, p. 1178; § 1885, p. 1179; § 2104, p. 1300; §2109, p. 1302; § 2188, p. 1345. Crandall v. Coats, § 644, p. 384; § 1303, p. 766; § 1310, p. 767; § 1395, p. 823; § 1396, p. 824; § 1407, p. 834; § 1410, p. 836. Crane Co. v. Smythe, § 1154, p. 680; § 1155, p. 682; § 1156, p. 682; § 1161, p. 684; § 1212, p. 713. Crawford v. Burke, § 628, p. 373; § 636, p. 377; § 705, p. 424; § 710, p. 427; § 2731, p. 1611; § 2732, p. 1612; § 2733, p. 1613; § 2748, p. 1617; § 2783, p. 1628; § 2784, p. 1629. Crawford, Farrin z'. Crawford, In re, § G72, p. 407. Creasinger, In re, § 603, p. 359; § 604, p. 360; § 844, p. 484. Credit Co. v. Ark. Central Ry. Co., § 2977, p. 1732; § 2978, p. 1732. Creew, In re, § 2482, p. 1499. Crenshaw, In re, § 2488, p. 1503; § 2489, p. 1504; § 2505, p. 1508; § 2511, p. 1511; § 2511, p. 1513; § 2522, p. 1522; § 2533, p. 1526; § 2541, p. 1530; § 2542, p. 1531. retiew. In re, § 2508, p. 1509. n V. Woodford, § 1314, p. 771; § x326, p. 777; § 1500, p. 896; § 1503, p. 899; § 1504, p. 899; § 2836, p. 1656; § 2839, p. 1659; § 2851, p. 1663; § 2851, p. 1664; § 2855, p. 1666; § 2856, p. 1667; § 2856, p. 1668; § 2994, p. 1736; § 2995, p. 1737. Crist, In re, § 2469, p. 1493; § 2511, p. 1513; § 2610, p. 1561; § 2612, p. 1562; § 2623, p. 1565. Criterion Watch Case Co., In re, § 2384, p. 1441; § 2385, p. 1441. Crittenden v. Barton, § 1395, p. 822; § 1396, p. 824; § 1398, p. 826; § 1399, p. 827. Crocker, In re, § 704, p. 424; § 707, p. 425; § 2760, p. 1622. Crockett, Deaf & Dumb Institute v. Crompton v. Conkling, § 59, p. 67; § 2794, p. 1634. Cre Crim 1 Cronin, In re, § 212, p. 172; § 236, 184; § 422, p. 271. Cronon v. Cutting, § 278c Tonson, In re, § 2035, p. 1262. V. Peoples Nat'l Bank, § 1300, p. ; 1.-^90. n 820: S 1394. n. Crooks V. Peoples JNat 1 iJank, § ] 763; § 1390, p. 820; § 1394, p. 822; § 1395, p. 822; § 1394, p. 822; § 1397, p. 826; § 1398, p. 826; § 1399, p. 826; § 1400, p. 828; § 1413, p. 838; § 1763, p. 1075; § 1764, p. 1075; § 1765, p. 1075; § 1767, p. 1075. Crosby, Lehman v. Crosby z'." Miller, § 1144, p. 674; § 1209, p. 708; § 1805, p. 1101; § 1812, p. 1111; § 1813, p. 1111. Crosby v. Spear, § 1215, p. 718; § 1267, p. 747; § 1582, p. 949; § 1797, p. 1097; § 1798, p. 1098; § 1807, p. 1101; § 1807, p. 1105. Cross, Reid v. Crossman, In re, § 1850, p. 1147. Crow, In re, § 2205, p. 1357. Crowninshield, Sturgis z'. Crystal Springs Bottling Co., In re, § 976, p. 547; § 977, p. 547; § 977, p. 548; § 978. p. 548; § 1172, p. 688; § 1175, p. 689; § 1176, p. 689. Cuddy, Ex parte, § 2967, p. 1728. Cullinane z: State Bank, § 1342, p. 785; § 1359, p. 792; § 1395, p. 823; § 1400, p. 828; § 1403, p. 830; § 1403, p. 831. Cummins, Patty-Joiner Co. v. Cunlifif, Howard v. Cunningham v. Bank, § 511, p. 322; § 2855, p. 1666; § 2855, p. 1667; § 2856, p. 1667; § 2869, p. 1684; § 2881, p. 1690; § 2900, p. 1702; § 2901, p. 1702; § 2962, p. 1726; § 2963, p. 1726; § 2965, p. 1727; § 2966, p. 1727; § 2968, p. 1728; § 2968, p. 1729; § 2974, p. 1730. nningham z\ Gen "^ -r^i o _x 669; " '- '" § 1885. Cu I ^v , ^ ti,r)it, p. Alow. m. Ins. Bk., § 1140, p. 669; § 1147, p. 678; § 1204, p. ^QS- § 1885. p. 1180; § 1896, p. 118 Cunningham, In re, § 2224, p. 1363. Currier, In re, § 205, p. 168; § 359, p. 240; § 365, p. 244; § 368, p. 244; § 1654, p. 1028; § 1901, p. 1188; § 1905, p. 1190; § 1918, p. 1195. Curtin, Hatch v. Curtin, Tucker v. Curtis, In re, § 24, p. 40; § 222, p. 176; § ""'^, p. 177; § 653, p. 396; § 656, p. 399; 223, TABLE OF CASES. 1973 § 660, p. 402; § 662, p. 403; § 1603, p. 972; § 1606, p. 977; § 1625, p. 989; § 1628, p. 994; § 1629, p. 997; § 1632, p. 1006; § 1632, p. 1007; § 1633, p. 1008; § 2045, p. 1266; § 2046, p. 1267; § 2047, p. 1269; § 2047, p. 1270; § 2048, p. 1271; § 2064, p. 1282; § 2068, p. 1283; § 2076, p. 1286; § 2103, p. 1300; § 2730, p. 1610; § 2907, p. 1704. Gushing, In re, § 636, p. 378; § 704, p. 424; § 710, p. 427. Cushnian, Fisher v. Custard v. Wiggerson, § 2442, p. 1477; § 2684, p. 1595; § 2686, p. 1595; § 2761, p. 1623. Cutler z: Steele, § 611, p. 363. Cutting, Cronin v. Cutting, In re, § .1144, p. 673; § 1209, p. 707; § 1230, p. 732; § 1240, p. 736; § 1295, p. 760; § 1320, p. 774; § 1323, p. 776; § 1374, p. 802; § 1379, p. 807. Dacovich v. Schley, § 2241, p. 1371. Dahl, Schmitt v. Daht-Millakan Grocery Co., Yaple v. Daignault, St. Gyr. v. Damon, In re, § 716, p. ^^^- si n^n ^ 4?!K- 8 75>5 r> A-iP,- 8 , -„ .-, „ .^-, p. 429; § 719, p. 435; § 723, p. 436; § 725, p. 437; § 2131, p. 1310. Daniels, In re, § 1619, p. 984; 1248; § 2029, ^^ io^iq- S 9nQ § 2031 uj.», p. t;o-±, vj jiOll, p. 1248; § 2029, p. 1259; § 2030, p. 1260; § 2031, p. 1260; § 2048, p. 1272; § 2197, p. 1350; § 2203, p. 1354; § 2255, p. 1375; § 2256, p. 1376; § 2257, p. 1380. Dann, In re, § 952, p. 535; § 959, p. 537. Danville Rolling Mill Co., In re, § 2156, p. 1331. Darby v. Inst., § 1500, p. 896. Darwin, In re, § 1448, p. 858; § 1458, p. 865; § 1459, p. 865; § 1459, p. 866. Daskam, McDonald v. Daubner, In re, § 1047, p. 595. Dauchy, In re, § 2464, p. 1489; § 2508, p. 1509; § 2508, p. 1510; § 2511, p. 1513; § 2512, p. 1514; § 2541, p. 1530; § 2557, p. 1540; § 2639, p. 1572. Davidson, In re, § 1133, p. 645; § 1314, p. 771. Davidson v. Ferguson-McKinney Co., § 2932, p. 1715; § 2934, p. 1715. Davidson v. Friedman, § 2041, p. 1264; § 2054, p. 1276; § 2868, p. 1683; § 2884, p. 1695; § 2900, p. 1702; § 2905, p. 1704; § 2907, p. 17*04; § 2718, p. 1710; § 2933, p. 1715. Davis V. Bohle, § 1603, p. 973; § 1602, p. 967; § 1603, p. 969; § 1604, p. 975; § 1610, p. 978; § 1827, p. 1123. Davis v. Brown, § 158, p. 135. Davis, In re, § 974, p. 546; § 1169, p. 687; § 1329, p. 778; § 1329, p. 779; § 1341, p. 785; § 1665, p. 1031; § 1819, p. 1115; § 1822, p. 1119; § 1823, p. 1120; § 1836, p. 1128; § 1847, p. 1145; § 1863, p. 1159; § 1879, p. 1166. Davison, In re, § 1842, p. 1140; § 1845, p. 1142; § 1857, p. 1155; § 1858, p. 1156; § 1859, p. 1157. Davis z: Schwartz, § 146, p. 128. Davis z\ Stevens, § 60, p. 67; § 103, p. 103; § 111, p. 107; § 150, p. 130; § 171, p. 144; § 182, p. 152; § 246, p. 189. Davis Tailoring Co., In re, § 1652, p. 1020; § 1821, p. 1118. avis v. Turner, § 1147, p. 677; § 1199, T^ COT. g 1260 "^ 'yio- S -I01I r, ir'7n. Dav... .. ^ , o ^^.., ^. „.., ^ ^^ p. 697; § 1260, p. 743; § 1314, p. 770; § 1500, p. 896; § 1500, p. 897; § 1501, p. 898; § 1504 p. 900; § 2236, p. 1367; § 2245, p. 1372. Davis, Waters v. Davis, Wilkins v. Dawley, In re, § 1047, p. 596. Dawson Grocery Co., Bell v. Day V. Beck & Gregg Hdw. Co., § 147, p. 129; § 406 p. 265; § 427, p. 275. Dayville Woolen Co., In re, § 887, p. 505; § 893, p. 509. Deaf & Dumb Institute v. Crockett, § 2237, p. 1368; § 2249, p. 1373; § 2255, p. 1375; § 2269, p. 1388; § 2271, p. 1390; § 2276, p. 1392; § 2795, p. 1636; § 2796, p. 1637; § 2797, p. 1640; § 2798, p. 1642; § 2799, p. 1642. Dean v. Justices of the ^Municipal Court, § 2681, p. 1594. Deckert, In re, § 1023, p. 571. ~ :Gottardi, In re, § 526, p. 328; § 548, 1. 333; § 552, p. 335; § 1549, p. 926; 1554, p. 928; § 1819, p. 1115; § 1838, p. 1130; § 1842, p. 1137; § 1850, p. 1147; § 1856, p. 1154; § 2629, p. 1567; § 2839, p. 1659. Deland v. Miller, § 1140, p. 668; § 1222, p. 724; § 1234, p. 734; § 1320, p. 775; § 1321, p. 775; § 1379, p. 804; § 1379, De P § P 1974 TABI,E OF CASES. p. 807; § 1395, p. 822; § 1396, p. S 1507, p. 901; § 1731, p. 1064; § 1 1 QX 3695, p. 1598; § 2700, 824, 1896, p. 1185. De Lany, In re, § p. 1601; § 2702 - p. 1602; § 2704, p. 1603. DeL< 1523. 1. ^eeuw, In re, § 2522, p DeLemos v. U. S., § 2921, p. 171 Delevan, In re, § 2482, p. 1499. Delling, In re, § 1419, p. 841. De Long, In re, § 527, p. 330; § 2702, p. 1601; § 2702, p. 1602; § 2709, p. 1604. Delta Nat'l Bk. v. Easterbrook, § 1685, p. 1036; § 1690, p. 1041; § 1691, p. 1042; § 2874, p. 1686; § 2882, p. 1693; § 2912, p. 1707; § 2920, p. 1710; § 2921, p. 1711; § 2941, p. 1719. De Lue, In re, § 1455, p. 863; § 1459, p. 865; § 1464, p. 871. Demarest, In re, § 1047, p. 596. Denning, In re, § 1303, p. 766; § 1312, p. 769; § 1385, p. 816; § 1387, p. 818; § 2238, p. 1369; § 2251, p. 1374; § 2254, p. 1374; § 2262, p. 1386; § 2270, p. 1388; § 2271, p. 1390; § 2273, p. 1391. Denny v. Bennett, § 1627, p. 993. Dent, Pickens v. De Pauw Co., Bank Deshell, Benedict v. V. p. 424. , r>eiieuicL v. Deshler v. McCauley, § 704, p. les Moines Bank v. Morgan Jewelry Co., § 1596, p. 964; § 1597, p. 964. • es Moines Nat'l Bk. v. Council B. Sav., § Des Moines Bank v. Mo Co., § 1596, p. 964; § 1597, Des Moines Nat'l Bk. v. Council B Sav., § 1160, p. 683; § 1199, p. 697. Deuell, In re, § 1819, p. 1115; § 1850, p. 1146; § 1851, p. 1150; § 1856, p. 1154. Devlin, Hurlew v. De Vries v. Orem, § 2117, p. 1305. Devries v. Shannahan, § 2854, p. 1665; § 2857, p. 1668; § 2951, p. 1723; § 2962, p. 1726. tewey, In re, § 898, p. 513. Dewey, Munroe v. Dews, In re, § 1004, p. 558; § 2522, p. 1522; § 2549, p. 1536; § 2649, p. 1575. Dexter Broom & Mattress Co., Can- non V. Diack, In re, § 1006, p. 559; § 1006, p. 560; § 1009, p. 561; § 1010, p. 562; § 1011, p. 562. Dial, Erie R. R. Co. v. Diamond, In re, § 2255, p. 1375; § 2802, p. 1642. Dickas v. Barnes, § 65, p. 71; § 2331, p. 1365; § 2882, p. 1692; § 2916, p. 1709; § 2932, p. 1715; § 2935, p. 1716. Dickey, Frank v. Dickinson, In r( p. 843. ■e, § 1369, p. 795; § 1421, ty Bk. of § layy, p. YOd. Dietz, In re, § 2481, p. 1498; 1 647, Dickinson v. Security Bk. of Richmond, § 1299, p. 763. 814, p. 1647. Dight r. Chapman, § 494, p. 313; § 573, p. 348; § 709, p. 427; § 2742, p. 1616; § 2761, p. 1622; § 2769, p. 1625; § 2777, p. 1627; § 2779, p. 1627. Dillard, In re, § 1971, p. 1226. Diller, In re, § 1047, p. 596; § 1057, p. 605; § 1089, p. 616. • Dillon, In re, § 611, p. 362; § 611, p. 363; § 630, p. 374; § 1172, p. 688; § 1177, p. 689; § 1177, p. 690; § 1179, p. 690; § 2259, p. 1385; § 2272, p. 1390; § 2280, p. 1395. Dimm & Co., In re, § 2054, p. 1278; § 2115, p. 1304. Dinglehoef Bros., In re, § 33, p. 53; § 1038, p. 592. Dippel, Reed v. Dismal Swamp Contracting Co., In re, § 1326, p. 777; •§ 1370, p. 796. Distler v. McCauley, § 2739, p. 1614; § 2754, p. 1620; § 2760, p. 1622. Ditsch, In re, § 1258, p. 741; § 1261, p. 743. Dixon, In re, § 1243, p. 738; § 1245, p. 739; § 2030, p. 1260; § 2031, p. 1260. ---, „ , p. 1260; § 2031, p. 1260. Dobson, In re, § 1464, p. 871. Docker-Foster Co., In re, § 836, p. 483; § 841, p. 484; § 1355, p. 791; § 1356, p. 791; § 1357, p. 791; § 1747, p. 1071; § 1748, p. 1071. Dodd, Giddings v. Dodd, Samel v. Doddy, Jordan & Co., In re, § 141, p. 124. Dodge V. Kaufman, § 2794, p. 1634. Dodge V. Norlin, § 20, p. 37; § 1140, p. 667; § 1140, p. 669; § 1258, p. 741; § 1262, p. 744; § 2875, p. 1687; § 2881, p. 1690; § 2884, p. 1695; § 2912, p. 1707; § 2915, p. 1708; § 2920, p. 1711; § 2921, p. 1711; § 2923, p. 1713; § 2934, p. table: of cases. 1975 1724; § 2962, p. 1726; § 2963, p. 1726; § 3009, p. 1741. Doe V. Bevan, § 987, p. 550. Doherty, In re, § 2522, p. 1522. Dokken v. Page, § 1494, p. 893; § 1496, p. 894; § 1496, p. 895; § 1876, p. 1165. Dole, In re, § 993, p. 553; § 1885, p. 1180. Dolle V. Cassell, § 1140, p. 669; § 1215, p. 718; § 1263, p. 744; § 2874, p. 1686. Domenig, In re, § 554, p. 338; § 556, p. 338; § 798, p. 466; § 852, p. 490; § 854, p. 490; § 2650, p. 1576. Donahue, Johnson v. Donaldson Z'. Farwell, § 1144, p. 673. Doolittle, Bank v. Doran, In re, § 1209, p. 706; § 1209, p. 707; § 1210, p. 708; § 1210, p. 709; § 1230, p. 732; § 1234, p. 734. Dorn, Glover Grocery Co. v. Doroshow, Ott v. Doroshow v. Ott, § 1832, p. 1126; § 2864, p. 1679; § 2874, p. 1686; § 2921, p. 1712; § 2922, p. 1712; § 2941, p. 1719. Doscher, In re, § 174, p. 147; § 1343, p. 787; § 1344, p. 788; § 1346, p. 788; § 1363, p. 793. Doty, In re, § 787, p. 462; § 838, p. 483; § 839, p. 484; § 843, p. 484; § 844, p. 484; § 846, p. 488. Dougherty, In re, § 1437, p. 850. Douglass Coal & Coke Co., In re, § 128, p. 113;. § 129, p. 113; § 132, p. 115; § 132, p. 116; § 151, p. 132; § 153, p. 133; § 155, p. 133; § 156, p. 133; § 159, p. 136; § 177, p. 149; § 233, p. 182. Douglass & Sons Co., In re, § 801, p. 468; § 1203, p. 698; § 2481, p. 1498; § 2808, p. ^645; § 2814, p. 1647.. Douglass, Unmack v. Dow, In re, § 454, p. 302; § 1555, p. 930; § 1557, p. 933; § 1839, p. 1133; § 2464, p. 1489; § 2540, p. 1528; § 2635, p. 1570; § 2641, p. 1573; § 2642, p. 1573; § 2962, p. 1726. Dowder v. Rowell, § 2817, p. 1649. Downing, In re, § 766, p. 455; § 1047, p. 597; § 1100, p. 626; § 2257, p. 1377; § 2794, p. 1634; § 2796, p. 1637. Doyle V. Heath, § 682, p. 413; § 1448, p. 857; § 1449, p. 858; § 1455, p 1459, p. 865; § 1464, p. 871. 863; Doyle V. Alilw. Nat'l Bk., § 1288, p. 759; § 1421, p. 843. Drake, Lathrop v. Drake, Wulbern v. Dravo v. Fabel, § 1759, p. 1074. Drayton, In re, § 523, p. 327; § 538, p. 332; § 1582, p. 949; § 1797, p. 1094; § 1874, p. 116-4; § 1885, p. 1178; § 2875, p. 1688; § 2882, p. 1692. Dreher Shoe Co., Phillips v. Dressel v. North State Lumber Co., § 18, p. 36; § 33, p. 54; § 35, p. 54; § 550, p. 335; § 552, p. 336; § 552, p. 337; § 819, p. 476; § 1286, p. 758; § 1289, p. 759; § 1421, p. 843; § 2011, p. 1248; § 2628, p. 1567; § 2629, p. 1567; § 2842, p. 1661; § 2844, p. 1661; § 2857, p. 1668. Dresser, In re, § 470, p. 306; § 602, p. 358; § 844, p. 485; § 1819, p. 1115; § 2241, p. 1370; § 2464, p. 1489; § 2462, p. 1489; § 2465, p. 1489; § 2557, p. 1540'; § 2558, p. 1541; § 2561, p. 1542; § 2563, p. 1542;- § 2563, p. 1543; § 2564, p. 1543; § 2565, p. 1543; § 2569, p. 1544; § 2581, p. 1549; § 2977, p. 1731. Dresser & Co., In re, § 2559, p. 1541; § 2565, p. 1543; § 2566, p. 1543; § 2570, p. 1544. Dresser, Whitney v. Drolesbaugh, In re, § 1437, p. 850. Drug Co. V. Drug Co., § 1209, p. 707; § 1232, p. 733; § 1383, p. 810; § 2946, p. 1721; § 2953, " '"'""'• ^ ^"^'^ " p. 1721; § 2953, p. 1724; § 2976, p. 1731; § 2993, p. 1736; § 2996, p. 1737. Drumgoole, In re, § 616, p. 366; § 791. o. 464 P- D Ty Dock Co., In re 1147, p. 677; e, § 1140, p. 668; § 1147, p. 677; § 1199, p. 697; § 1209, p. 708; § 1258, p. 741; § 1259, p. 743; § 1262. o. 744. 1262, p. 744. Dry Goods Co., Hussey v. Dubant, In re, § 1412, p. 838. Duble, In re, § 1160, p. 683; § 1799, p. 1099; § 1807, p. 1102; § 1807, p. 1104; § 2204, p. 1356. Ducker, In re, 707; § 1212, p. 711; § 1230, p. 732; § ;34, 16. :er. In re, § 896, p. 512; § 1209, p. ■; § 1212, p. 711; § 1230, p. 732; § :4, p. 734; § 1236, p. 734; § 1241, p. Dudley & Co., Morrow v. 12c -1976 TABLE OF CASES. iDuffy, In re, § 113, p. xuo, ^ x±o, p § 1022, p. 570; § 1041, p. 592; § p. 601; § 1052, p. 604; § 1055. n § 1066, p. 608; § 1098 p. 108; § 118, p. 110; .^.. - -""- '^ 1048, , P- 604; ;, p. 623; § 1099, - " 1397, p. 825; •p. 624; § 1134, p. 646 § 1497, p. 895. Duggett v. Emerson, § 636, p. 377 Duguid, In re, § 51, p.*6''- '^ ""^ ' § 1047, p. 595. Dunavant, In re, § 788, p. 463; § 998, 556; § 1140, p. 671; § 1368, p. ""- 1885, p. 1178; § 1885, p. 1179; p. 1185. 795; ; § 1896, P- p. ±±oo. Dunbar z\ Dunbar, § 641, p. 382; § 65 p. 391; § 670, p. 406; § 683, p. 414; 705, p. 424; § 2731, p. 1611; § 2736, 1613. Duncan, In re, § 1117, p. 639; § 1372, p. 801; § 1377, p. 803; § 1807, p. 1101; § 1807, p. 1105; § 1807, p. 1106; § 1898, p. 1187; § 1996, p. 1235. Duncan v. Ferguson-McKinney Co., § 1038, p. 592; § 1041, p. 592; § 1047, p. 598; § 1110, p. 634. ' Duncan v. Landis, § 135, p. 119; § 410, p. 266; § 559, p. 339; § 857, p. 491; § 1351, p. 790; § 1360, p. 793; § 2864, p. 1679; § 2881, p. 1690; § 2894, p. 1699. Dundas, In re, § 1303, p. 765. Dunkerson, In re, § 758, p. 450. Dunn v. Cans, § 1421, p. 843. Dunn Hardware Co., In re, § 595, p. 356; § 715, p. 429; § 1228, p. 727; § 1241, p. 736. Dunnigan Bros., In re, § 51, p. 63. Dunnigan v. Stevens, § 611, p. 363. Duplan Silk Co. v. Spencer, § 1144, p. 675; § 1150, p. 678; § 1251, p. 740. Duplan Silk Co., Spencers v. Duplex Radiator Co., In re, § 35, p. 54; § 35, p. 55; § 168, p. 142; § 170, p. 143; § 216, p. 174. Dupree, In re, § 188, p. 154; § 284, 205; § 1375, p. 803; § 1454, p. 28n, p. 1645 P- 86c ZSll, p. lO'iO. Durack v. Wilson, § 1216, p. 719. r^urham, In re, § 1022, p. 570; § 1024, p. 572; § 1032, p. 580; § 1035. p. 587; § 1035, p. 589; § 1041, p. 592; § 1100, p. 624; § 1107, p. 633; § 1199, p. 697; § 1223, p. 725; § 1314, p. 771; § 1319, p. 774; § 1447, p. 855; § 1494, p. 892; § 1504, p. 900; § 1698, p. 1048; § 1704, p. 1051. Durham Paper Co. v. Seaboard Knit- ting Mills, § 222, p. 176; § 224, p. 178. Durham v. Wick, § 1206, p. 699. T^.,^,ro.^ ^. f^ ■,-^U^',a S 1COO ^ -I nnc Duryea Dusar , P. 699 Guthrie, § 1632, p. 1006. V. Alurgatroyd, § 636, p. 377 Dushane v. Beal, § 935, p. 524 Dutcher v. Wright, § 188, p. 154; § 1375, p. 803; § 1399, p. 826; § 1454, p. 863. Du Vivier v. Gallice, § 796, p. 465; § 810, p. 471. Dvorak, In re, § 489, p. 312; § 2431, p. 1469; § 2776, p. 1627. Dwyer, In re, § 300, p. 216; § 301, p. 216; § 442, p.'283. Dyer v. Isham, § 2716, p. 1606. Dyer, Muhlenberg County v. Dyke Bros., Chauncey r. Eades, In re, § 2469, p. 1493; § 2549, p. 1536; § 2550, p. 1537; §-2635, p. 1571. Eagles & Crisp, In re, § 455, p. 302; § 572, p. 347; § 575, p. 348; § 576, p. 349; § 584, p. 351; § 590, p. 353; § 632, p. 375; § 767, p. 455; § 768, p. 456; § 862, p. 496; § 864, p. 496; § 866, p. 497; § 871, p. 498; § 2233, p. 1366. Eames, Ex parte, § 1626, p. 994; § 1630, p. 998; § 1631, p. 1003. Earle Ore Sampling Co., Chisholm v. Easley, In re, § 1464, p. 871; § 1479, p. 882. Eason, Claflin Dry Goods Co. v. Eason, First Xat'l Bk. r. Easterbrook, Delta Nat'l Bk. v. Eastern Commission & Importing Co., In re, § 359, p. 240; § 1450, p. 860; § 1514, p. 903; § 1524, p. 906; § 1524, p. 907; § 1524, p. 908; § 1901, p. 1188; § 1909, p. 1191; § 1913, p. 1193. """'"-'- In re, § 878, p. 502; § 882, p. ?7, p. 507; § 887, p. 508. re, § 2520, p. 1518; § 253c Eas to Ea 1 Eau 76 10 Ebe tlack. In re, '04; § 887 u, s ^^-tx, p. 1529; § 2543, p. 1532. Claire Nat'l Bk. v. Jackman, § p. 456 76; § 3026, 1769, rt. 770, p. 456; p. 1749. In re, § 1405, p. 832; § 1413, p. TABLE OF CASES. Economical Printing Co., In re, § 1209, p. 706; § 1209, p. 707; § 1212, p. 710; § 1230, p. 732. Edelman, In re, § 124, p. 112; § 130, p. 114; § 132, p. 117; § 179, p. 150. Edelstein v. U. S., § 29, p. 45; § 29, p. 46; § 46, p. 59; § 243, p. 187; § 244, p. 187; § 245, p. 188; § 437, p. 279; § 450, p. 296; § 450, p. 297; § 1556, p. 931; § 1558, p. 933; § 2527, p. 1524; § -2864^ 1977 p. 1679. Edes, In re, § 17, p. 32; § 20, p. 37; § 22, p. 38; § 26, p. 40; § 1932, p. 1208; § 1942, p. 1212; § 1948, p. 1214; § 1948, p. 1215. Edinburg Coal Co. v. Humphreys, § 397, p. 259. Edmondson v. Hyde, § 1061, p. 606; § 1061, p. 607. Edmunds, Page v. Edson, In re, § 783, p. 462; § 794, p. 465. Edw. G. Milbury Co., In re, § 150, p. 132; § 151, p. 132. . Edwards, Plate Glass Co. z'. Egan State Bk. v. Rice, §. 1258, p. 742; § 1494, p. 891; § 1494, p. 892. Eggert, In re, § 1395, p. 822; § 1395, p. 823; § 1396, p. 825; § 1398, p. 826; § 1399, p. 827; § 1402, p. 830; § 1403 831; § 1407, p. 834; § 1409, p 1410. p. 836. Ehle, In re, § 970, p. 543. Eidemiller, In re, § 51, p. 63. Eisenberg, In re, § 54, p. 64; § 96, p. 93; § 2354, p. 1428; § 2401, p. 1452. Elder, In re, § 603, p. 359; § 603, p. 360. Electric Corp'n v. Worden, § 1421, p. 843. Eliowich, In re, § 1817, p. 1114; § 1879, p. .1167. Elk Park Min. & Mill Co., In re, § 82, p. 81; § 93, p. 87. Elliott, Bank of Commerce v. Elliott, Bush V. Elliott, In re, § 2663, p. 1585. Elliott V. Toeppner, § 176, p. 148; § 830; § 1403, p. . 836; ioeppner, § its, p. 148; § ;65; § 410, p. 266; § 2864, p. 2881, p. 1690; § 2894, p. 1699; D. 1700; § 2942, p. lys Saddlery & Lea § 360, p. 242; § 1917, p. 1194. 406, p. 265; § 410, p. '^ 1679; § 2881, p. 1690; § ^oa^t, p. i s 9SQ.1 r^ 1700; § 2942, p. 1719. § 2894, p. itvv; § ^i, ^.«, ^. ^.^„. Ellis V. Hays Saddlery & Leather Co Ellis, In re, § 235, p. 183; § 651, p. 393; § 672, p. 409; § 1079, p. 612; § 1081, p. 613; § 1082, p. 613; § 2888, p. 1696. Ellis V. Krulewitch, § 1855, p. 1'154; § 2839, p. 1659; § 2859, p. 1669; § 2886, p. 1695; § 2938, p. 1716. Ellison, Gans v. Ellithorpe, In re, § 1022, p. 570; § 1041, p. 592; § 1047, p. 597. Ells, In re, § 640, p. 381; §«652, p. 393; § 653, p. 396; § 656, p. 399; § 659, p. 402; § 665, p. 405; § 982, p. 548; § 983, p. 549; § 989, p. 552; § 990, p. 552; § 991, p. 552. Elm Brew. Co., In re, § 1325, p. 776. Elmira Steel Co., In re, § 18, p. 34; § 29, p. 45; § 30, p. 46; § 31, p. 52; ^ 33, p. 54; § 35, p. 55; § 85, p. 84; § 141, p. 123; § 294, p. 213; § 330, p. 226; § 427, p. 275; § 437, p. 279; § 437, p. 281; S IflPf^ n '^'7'^- S lllfi r. fi-^Q- S 1117 427, p. 275; § 437, p. 279; § 437, p. 281; § 1025, p. 575; § 1116, p. 639; § 1117, p. 639; § 1144, p. 673; § 1212, p. 710; § 1363, p. 793. Elmore v. Symonds, § 993, p Elred, In re, § 2628, p. 1567. Elsasser, In re, § 1179, p. 69C p. 553. 1179, p. 690; § 11 691. Elsbree v. Burt, § 1510, p. 902; § 2742, p. 1616. Emerson, Duggett v. merson, Duggett v. mery v. Canal National Bank, § 2258, p. 1383. Empire Metallic Bedstead Co., In re, § 150, p. 130; § 150, p. 131; § 150, p. 132; § 166, p. 140. Empire Rubber Mfg. Co., Blooming- dale Z'. Emrich, In re, § 967, p. 542; § 968, p. 542; § 960, p. 542; § 1115. p. 637; § 1696, p. 1046; § 1698, p. 1048; § 1698, p. 1049; § 1807, p. 1107; § 1820, p. 1118; § 1885, p. 1179. Emslie, In re, § 1144, p. 673; § 1154, p. 680; § 1155, p. 681; § 1212, p. 710; § 1437, p. 850; § 1797, p. 1092; § 1798, p. 1098; § 1805, p. 1100; § 1807, p. 1105; § 1810, p. 1109; § 1813, p. 1112; § 1885, p. 1177; § 1885, p. 1178; § 1901, p. 1189; § 1907, p. 1191. Endelman, Skillen v. Endl, In re, § 1800, p. 1099. 1978 TABLE OF CASES. En igineering & Construction Co., In re, § 500, p. 320; § 522, p. 324. 5, p. X!1 • S 1007 r. ROo § 1069, p. V....,, s .„. p. 621; § 1097, p. 62^ Fallon, In re, § 450, p. 296. Falls City Shirt M'fg Co.. In re. § 1154, p. 680; § 1159, p. 683; § 1160, 1154, p. oou; § ij..3y, p. ooa; g j.iou, p. 683; § 1163, p. 685; § 1208, p. 705; 6, p. 1344; § 2195, p. 1347; § 705; , .. 7; § 1353; § 2204, § 2186, p , ^ 2202, p. 1353; § 2200, p p. 1356; § 2205, p. 1357. Falter z\ Reinhard, § 887, p. 505. Farjicon, Bloch z'. Farley, Cox z'. Farley & Co., In re, § 59, p. 65; § 64, p 69; § 65, p. 71; § 289, p. 209. table; oe" cases. 1979 Farmers' Bank v. Carr, § 17, p. 32; § 1273, p. 751; § 1314, p. 771; § 1326, p. 777; § 1503, p. 899; § 1504, p. 899. Farmers' Bank of Edgfield v. Carr, § 1500, p. 896. Farmers' Bk., Long v. Farmer, In re, § 630, p. 374; § 788, p. 463; § 1193, p. 696. Farmers' & Merchants' Bk. v. Akron Mach. Co., § 794, p. 464; § 802, p. 468. Farnum, In re, § 2258, p. 1383. Farrell, T. & J., In re, § 104, p. 104. Farrin v. Crawford, § 132, p. 115. Farwell, Donaldson v. Fechter v. Postel, § 2785, p. 1630. Fehling v. Goings, § 1156, p. 682; § 1161, p. 684. Feigenbaum, In re, § 2437, p. 1472; § 2437, p. 1474; § 2476, p. 1495; § 2531, p. 1525; § 2597, p. 1554; § 2665, p. 1586; § 2680, p. 1594. Feist, Bauman v. Feldser, In re, § 1822, p. 1119; § 1836, p. 1129; § 1842, p. 1138; § 1849, p. 1146; § 1850, p. 1147. Feldstein, In re, § 1558, p. 933; § 1558, p. 934; § 2482, p. 1501; § 2544, p. . 1532; § 2544, p. 1533; § 2546, p. 1534; § 2548, p. 1534; § 2549, p. 1535. Fellerath, In re, § 1429, p. 847; § 1459, p. 866; § 1464, p. 871; § 1474, p. 877; § 1602, p. 967; § 1603, p. 972; § 1604, p. 975; § 1611, p. 978. Fell ellerman. In re, § 1527, p. 914; § 1568, p. 942; § 1859, p. 1157; § 2330, p. 1414; § 2331, p. 1416. Fellows V. Freudenthal, § 24, p. 39; § 2011, p. 1249; § 2469, p. 1492; § 2511, p. 1511; § 2511, p. 1512; § 2541, p. 1530; § 2625, p. 1566; § 2626, p. 1566; § 2637, p. 1571; § 2639, p. 1572; § 2660. p. 1579. Felson, In re, § 1819, p. 1115; § 1849, p. 1146; § 1850, p. 1146; § 2016, p. 19^q- S 9017 T^ 19e;Q- S 9ni S r. -\OKA- 1146; § 1850, p. 1146; § 2016, p. 1253; § 2017, p. 1253; § 2018, p. 1254; § 2045, p. 1266; § ^n^*; r, 19K7. s onso «-> i9en- S 9nR § 2045, p. 1266; § 2045, p. 1267; § 2059, p. 1280; § 2060, p. 1281; § 2074, p. 1285; § 2085, p. 1289. Felter, In re, § 844, p. 484. Fender, Osborn v. Fenigold, McNulty v. Ferguson, In re, § 135, p. 118; § 143, p. 125; § 235, p. 183; § *333, p. 227. Ferguson-McKinney Co., Davidson v. Ferguson-McKinney Co., Duncan v. Ferris, In re, § 2635, p. 1570; § 2639, p. 1572; § 2651, p. 1576. Fetterman, In re, § 477, p. 309. Feuerlicht, In re, § 1387, p. 819. Fidelity & Deposit Co., Nixon v. Fielding, In re, § 2103, p. 1299. Fields V. Karter, § 2509, p. 1510; § 2522, p. 1520. Field V. U. S., § 2317, p. 1410; § 2316, p. 1410; § 2326, p. 1412. Fife, In re, § 464, p. 304; § 472, p. 306; § 704, p. 424; § 2760, p. 1622. Filer, In re, § 33, p. 54; § 104, p. 104; § 636, p. 377; § 710, p. 427. Findlay Bros., In re, § 1613, p. 980; § 1665, p. 1031. Finkelstein, In re, § 1850,- p. 1146; § 2480, p. 1497; § 2o01, p. 1507; § 2636, p. 1571. Findlay, In re, § 584, p. 351; § 587, p. 353; § 590, p. 353. Finley v. Poor, § 755, p. 447; § 1024, p. 574; § 1024, p. 575; § 1095, p. 620. Finnegan v. Hall, § 704, p. 424; § 2739, p. 1614; § 2760, p. 1622. Fire Lloyds Underwriters, In re, § 94, p. 89. First National Bank, Buckingham v. First National Bk. of Holdredge v. Johnson, § 1238, p. 735; § 1370, p. 798. First National Bank v. Penna. Trust Co., § 1314, p. 770; § 1370, p. 797. First National Bk. v. Staake, § 401, p. 262; § 1207, p. 700; § 1447, p. 856; § 1462, p. 868; § 1463, p. 871; § 1489, p. 886; § 1618, p. 984; § 1714, p. 1057; § 1896, p. 1185; § 2018, p. 1256. First Nat'l Bk. v. Aultman, Miller & Co., § 780, p. 461; § 2154, p. 1330; § 2156, p. 1332. First Nat'l Bk. v. Connett, § 1232, p. 733; § 1383, p. 811. First Nat'l Bk. v. Eason, § 753, p. 447; § 1520, p. 904. First Nat'l Bk. v. Ice Co., § 83, p. 82; § 91, p. 87; § 94, p. 90; § 215, p. 174; § 234, p. 183; § 1353, p. 791. 1980 TABLE OF CASES. First Nat'l Bk. v. Johnson, § 1379, p. 804. First Nat'l Bk. v. Klug, § 30, p. 48; § 3016, p. 1745; § 3017, p. 1745; § 3018, p. 1746; § 3020, p. 1747: 764, 3021, p. 1747; § 3025, p. 1749 First Nat'l Bk. v. Lasater, § 935, p. 524; § 1019, p. 568. First Nat'l Bk. of Belle Fourche, In re, § 29, p. 45; § 29, p. 46; § 30, p. 49; § 30, p. 51; § 84, p. 84; § 90, p. 86; § 94, p. 91; § 261, p. 195; § 268, p. 198; § 269, p. 200; § 324, p. 225; § 325, p. 225; § 437, p. 279; § 437, p. 280; § 437, p. 281; § 858, p. 491. First Nat'l Bk. of Canton, In re, § 1140, p. 669; § 2874, p. 1686; § 2902, p. 1703; § 2912, p. 1707. First National Bk. of Denver v. Klug, § 2864, p. 1680; § 2865, p. 1682. First National Bank of ]\Iiles City v. State National Bank, § 2241, p. 1371. Wet M^t'i Bk. V. State Bk., § .'^63. n 858, p. 492; § 2245, p. p. 1696; § 2979, p. 1732, Diate i\a[iuiiai DaiiK., First Nat'l Bk. v. State Bk., § 563, p. 340; § 858, p. 492; § 2245, p. 1372; § 2887, p. 1696; § 2979, p. 1732. Fishblate Clothing Co., In re, § 233, p. 182. Fisher, Allgair z'. Fisher & Co., In re, § 532, p. 331; § 5 isher & Co., In re, § 532, p. 870, p. 498; § 874, p. 500; § 542; § 1041, p. 593; § 1047, p. 1048, p. 600; § 1066, p. 608; § 1069, 609; § 1115, p. 637; § 1941, p. 1211 1945, p. 1214; § 1961, p. 1221; § 2141, p. 1319; § 2142, p. 1321; § 2144, p. 1321; § 2152, p. 1329; § 2160, p. 1334; § 2161, p. 1334; § 2162, p. 1334; § 2348, p. 1425. Fisher v. Cushman, § 961, p. 537; § 967, p. 542; § 1115, p. 636; § 1115, p. 637; § 2873, p. 1686; § 2879, p. 1689; § 2911, p. 1705; § 2916, p. 1709; § 2918, p. 1709; § 2928, p. 1715; § 2938, p. 1717. Fisher, Turner v. Fisher v. Zollinger, § 1371, p. 800; § 1373, p. 802; § 1384, p. 813. Fitchard, In re, § 1280, p. 757; § 2508, p. 1510; § 2511, p. 1511; § 2511, p. 1512; § 2516, p. 1515; § 2522, p. 1523; § 2639, p. 1572. Fitch V. Richardson, § 756, p. 449; § iu-±, p. 454; § 1188, p. 694; § 1679, 1034; § 1698, p. 1049. Fite V. Fite, § 683, p. 415; § 2756, 1620. Fithian, Hastings v. Fixen & Co., In re, § 385, p. 254 "93, p. 257; § 1277, P- § 393, p. 257; § 1277, p. 755; § 1527, p. 914; § 1529, p. 914; § 1533, , p. 916; § 1537, p. 918; § 1543, p. 919; § 1545, p. 922; § 1546, p. 922; § 1547, p. 925; § 1548, p. 926; § 1550, p. 926; § 1551, p. 927; § 1565, p. 940; § 1573, p. 943; § 1717, p. 1059. Fl ^ anagan, In re, § 303, p. 217; § 1047, * p. 598. Flanders, In re, § 1228, p. 727; § 1228, p. 730; § 2703, p. 1602; § 2710, p. 1604. Fleischer, In re, § 1529, p. 914; § 1543, p. 919. Fleishman, In re, § 2469, p. 1492; § 2582, p. 1549. Fletcher, In re, § 823, p. 477; § 1025, p. 575; § 1025, p. 576; § 2008, ] § 2045, p. 1267; § 2C p. 1279; § 2071, p. ick. In re, § 1387, Fl re, 8 0.40, p. tr<, s •'-"'^"J) P- ^,^, 5 .^~5, p. 576; § 2008, p. 1246; § 2045, p. 1267; § 2056, p; 1279; § 2057, p. 1279; § 2071, p. 1285. p. 819; § 1388, p. 819; § 2169, p. 1337; § 2178, p. 1341. Flick, Stearns v. Flicklinger v. Nat'l Bk., § 82, p. 95 p ^''' ^ '>Qfi1 '^ 17'>fi- S 9C 81; § Fl lickhnger v. Nat'l Bk., § 82, p. 81; ^ 95, p. 92; § 2961, p. 1726; § 2961, p. 1726; § 2968, p. 1729; § 2977, p. 1731. lint Hill Stone & Cont'n Co., In re, § 123, p. Ill; § 129, p. 113; § 248, p. 189;-§ 257, p. 192; § 257, p. 193. Florcken, In re, § 377, p. 248; § 380, p. 251; § 529, p. 330. Floyd, In re, § 2691, p. 1597. Floyd, Crawford & Co., In re, § 804, p. 470; § 2783, p. 1628; § 2785, p. 1630; § 2787, p. 1631; § 2788, p. 1632. Fly, In re, § 1025. p. 575. Flynn & Co., In re, § 1652, p. 1020; § 1676, p. 1034; § 1692, p. 1043; § 2141, p. 1319; § 2142, p. 1321; § 2365, p. 1434. Foerst, In re, § 1547, p. 922. Folb, In re, § 223, p. 177; § 1378, p. 803. Foley, In re, § 1353, p. 791. Foote, In re, § 2261, p. "'^«': Forbes v. Howe, § 1370 p. 798. p. 1385. p. 796; § 1370, TABLE OF CASES. 1981 Forbes, In re, § 17, p. 33; § 59, p. 66: § 60, p. 67; § 61, p. 67; § 64, p. 69 § 64, p. 70; § 66, p. 71; § 73, p. 77: § 74, p. 78; § 102, p. 103; § 164, p. 139, § 171, p. 145; § 408, p. 265; § 1896, p. 1185; § 1974, p. 1228; § 1992, p. 1233. Force, In re, § 972, p. 545; § 993, p. 553; § 2141, p. 1319; § 2147, p. 1324; § 2147, p. 1325; § 2149, p. 1327; § 2281, p. 1396. Foreman, Burleigh v. Foreman v. Burleigh, § 2827, p. 1653; § 2827, p. 1654; § 2857, p. 1G68. Agency, Johnston z Forsyth Mercantile .^^^.,^j, j^,,..^ Forsyth v. Wehmeyer, § 2747, p. 1617. Forth, In re, § 2634, p. 1570; § 2861, p. 1670. Forth Nat'l Bk., Swarts v. Fortunate, In re, § 2330, p. 1414; § 2696, p. 1599; § 2700, p. 1601; § 2702, p. 1601; § 2702, p. 1602. Fortune, In re, § 1485, p. 884; § 1486, p. 885. Fort Wayne EL Corp., In re, § 1331, p. 780. Foss, In re, § 798, p. 467; § 973, p. 543; § 1751, p. 1072; § 2851, p. 1664. Foster, In re, § 104, p. 104; § 114, p. 109; § 1485, p. 884; § 1486, p. 885; § 1749, p. 1071. Foster r. Ingles, § 2147, p. 1324. Foster z>. Rhodes, § 993, p. 553. Foundry Co. z'. Foundry Co., § 1705, p. 1051. Foundry & Machine Co., In re, § 1144, p. 675; § 1147, p. 677; § 1214, p. 715; § 1698, p. 1048; § 1780, p. 1079; § 1813, p. 1111; § 1814, p. 1113; § 1964, p. 1223; § 1965, p. 1223; § 1969, p. 1225; § 1975, p. 1228; § 1980, p. 1229. Fowle, Blasdel v JIasdel V. In re, § 102, p. 102; § 1047, 1565. o. 940: S 1696. o. 1045: Fowler, m re, § lu-^, p. lu:^; § 596; § 1565, p. 940; § 1696, p. 1045: 9, p. 1050; § 1701, p. 1051. P- 1699, p. 1050; § 1701, p. 1051. Fowler z: Jenks, § 870, p. 498; § 949 26; § 996, p. 555; § 1113, p. 636 526; § 996, p 1127, p 1507. , P- 642; § 1216, p. 720; § 2500, p. Fox, In re, § 2345, p. 1424; § 2365. p. ■ " 1434; § 2391, p. 1445 J393, p. 14"^ 2397, 1434; § 2366, p. 1434; § 2391, p. 14- § 2391, p. 1446; § 2393, p. 1446; 2394, p. 1446; § 2396, p. 1449; 8 "?■' p. 1449. Fox, Roche Foxhever v § 1007 V. V. Order „ , p. 560. Fraizer, In -i^rancis 251 of the Red Cross, § 19, p. 36; § 1212, i-ziz, p. 713; § 1241, In re, § 346, p. 234; re, 712; § 1212, p. 713; § 1241, p. 736 381, p. Franciscus, Wetstein v. Francis- Valentine Co., In re, § 400, p. 262; § 693, p. 420; § 1429, 451, p. 860; § 1474, p. 877; i p. 847; § 1485, p. 1401, p. »ou; s i4V-i, p. »r/; § i-tso, p. 884; § 1486, p. 885; § 1714, p. 1057; § 1816, p. 1113; § 1827, p. 1123. Frank v. Dickey, § 2049, p. 1273; § 2051, p. 1274; § 2066, p. 1283; § 2067, p. 1283; § 2068, p. 1283; § 2068, p. 1284. Frank, In' re, § 574, p. 348; § 2472, p. 1494; § 2663, p. 1585. Frank v. Mercantile Xat'l Bk., § 1173, 824; § P Frank v. usliner, § 1396, 1738, p. 1069. Ml P- 3001, 1115; § § 2650, Frank v. Vollkommer, § 1684, p. 1036; § 1687, p. 1038; § 1813, "p. 1111; § _ p. 1738. Frank, Vollkommer v. Frankfort, In re, § 1819, p. 1850, p. 1147; § 1851, p. 1149 p. 1575. Franklin, Barker v. Franklin Coal Co., Morss v. Franklin, In re, § 773, p. 459; § 1154, p. 680; § 1162, p. 685; § 1241, p. 736; § 1428, p. 846; § 1507, p. 901; § 1514, p. 903; § 1524, p. 907; § 1797, p. 1093; § 1798, p. 1098; § 1899, p. 1187; § 1913, p. 1193. 'ranklin Lumber Co., In re, § 1241, p. 736. 'ranklin Syndicate, In re, § 1545, p. fi22; § 1558, p. 933; § 1559, p. 936. nks. In re, § 1476, p. 878; § 1479, p. = ■■ • § 1481, p. 883. ner V. McDonald. § 98, p. 95. zier v. Southern Loan & Trust Co., 1224, p. 725; § 1455, p. 863; § 1582, 951; § 1582, p. 955; § 1593, p. 963; § ■52, p. 1072; § 1807, p. 1104; § 1885, 1178. r. In re, § 2356, p. 1430; § 2358, p. l; § 2364, p. 1434; § 2369, p. 1435; 796, p. 1637. F Fra 881; raziei F Frji § P- 17 P- Frea 143 §2^ 1982 TABLE OF CASES. Freche, In re, § 2760, p. 1621. Fredenburg, In re, § 1573, p. 943. Freel, Hoyt v. Freeman v. Howe, § 1797, p. 1092. Freeman, In re, § 930, p. 523; § 970, p. 543; § 1780, p. 1079; § 1798, p. 1098; § 1875, p. 1164; § 2608, p. 1559. French v. Smith, § 1687, p. 1039; §1741, p. 1070. Freudenthal, Tellows v. Freund, In re, § 2488, p. 1503; § 2489, p. 1504; § 2511, p. 1511; § 2522, p. 1521; § 2522, p. 1522; § 2522, p. 1523; § 2535, p. 1526; § 2541, p. 1531; § 2794, p. 1634; § 2794, p. 1635. Frey, In re, § 2608, p. 1559. Frey v. Torrey, § 2784, p. 1629. Frice, In re, § 2454, p. 1486; § 2460, p. 1488; § 2461, p. 1488; § 2595, p. 1553; § 2596, p. 1553; § 2603, p. 1556; § 2603, p. 1557; § 2606, p. 1558. Friche, In re, § 2754, p. 1620. Frick, In re, § 1993, p. 1234; § 1996, p. 1235; § 2045, p. 1267; § 2049, p. 1273; § 2186, p. 1344. Friedman, Davidson v. Friedman, In re, § 620, p. 367; § 623, p. 368; § 765, p. 454; § 766, p. 455; § 1429, p. 847; § 1457, p. 865; § 1460, p. 867; § 1463, p. 869; § 1464, p. 871; § 1819, p. 1115; § 1842, p. 1138; § 1844, p. 1141; § 1848, p. 1145; § 1850, p. 1147. Friedman v. Vorchofsky, § 1494, p. 891. PViedrich, In re, § 1024, p. 572; § 1047, p. 595; § 1048, p. 599; § 1072^, P- 611; § 1073, p. 611; § 1079, p. 612; § 1112, p. 635. Friend, In re, § 2349, p. 1426; § 2410, p. 1454; § 2411, p. 1454; § 2864, p. 1681; § 2887, p. 1696; § 2896, p. 1701; § 2998, p. 1737; § 2999, p. 1737. Friend, Moss & Morris, In re, § 2898, p. 1701. Frischberg, In re, § 30, p. 49; § 311. p. 220; § 314, p. 221; § 419, p. 269; § 419, p. 270; § 423, p. 273. Fritz, In re, § 469, p. 305. Froeder, In re, § 2488, p. 1503. Fry V. Pennsylvania Trust Co., § 1303, p. 765; § 1309, p. 767; § 1397, p. 825. Ft. Wayne Electric Corp., In re, § 2103, p. 1299. Fuller V. Jameson, § 1122, p. 641. Fuller V. N. Y. Fire Ins. Co., § 1122, p. 641. Fulton Club, In re, § 94. p. 88. Funk, In re, § 54, p. 64; § 96, p. 93. Funkenstein, In re, § 882, p. 504. Furniture Co., In re, § 1212, p. 712; § 1222, p. 724; § 1222. p. 725. Furth V. Stahl, § 1314, p. 772; § 1319, p. 774; § 1504, p. 900; § 1582, p. 953; § 1582, p. 956; § 1586, p. 961; § 1809, p. 1109; § 1813, p. 1112; § 2096, p. 1296. Gaff, Eyster v. Gage V. Bell, § 26, p. 40; § 26, p. 42; § 202, p; 165; § 208, p. 171; § 235, p. 184; § 259, p. 194; § 259, p. 195; § 333, p. 227. Gailey, In re, § 2541, p. 1528. Gainsburg, In re, § 2449, p. 1486. Galbraith Admr., Osman z\ Gallagher, In re, § 1337, p. 783; § 1369, p. 795. Gallice, Du Vivier v. Gait, In re, § 1140, p. 668; § 1140, p. 669; § 1228, p. 727; § 1228, p. 730; § 1241, p. 736. Gammon, In re, § 2511, p. 1511; § 2511, p. 1512; § 2521, p. 1519; § 2541, p. 1529. Gans, Dunn v. Gans V. Ellison, § 1296, p. 761; § 1416, p. 839; § 1418, p. 840; § 1421, p. 844j § 1427, p. 846. Gansevoort Bk., Wright v. Gansevoort, Wright v. Gany, Marco, In re, § 1879, p. 1165. Garcewich, In re, § 1138, p. 664; § 1144, p. 674; § 1209, p. 707; § 1238, p. 727; § 1242, p. 737; § 1245, p. 738; § 1263, p. 744. Garden, In re, § 1032, p. 579; § 1034, p. 585. Gardner v. Cook, § 1485, p. 884; § I486,' p. 885. Gardner, In re, § 970. p. 543; § 1047, p. 595; § 2103, p. 1299. Garlington. Blease v. Garlington, In re, § 671. p. 407; § 672, p. 407. Garman, In re, § 239, p. 185. table; of cases. 1983 Garneau, In re, § 30, p. 47; § 31, p. 52; § 33, p. 53; § 196, p. 160; § 414, p. 268; § 432, p. 277; § 435, p. 278; § 436, p. 279. Garner, In re, § 1034, p. 586; § 1216, p. 721. Garrett, American File Co. v. Garrett, Aleriwether v. Garrison, In re, § 2485, p. 1503; § 2549, p. 1536; § 2635, p. 1571; § 2637, p. 1571; § 2640, p. 1572. Garside, Insley v. Gaskill, In re, '^ p. 1172; 1246. Gasser, In re, § 584, p. 351 1486. , „ 1882, p. 1170; § 1883, 1884, p. 1177; § 2010, p. 2450, p. 1486. Gay, In re, § 289, p. 208. Gaylord, In re, § 636, p. 378; § 804, p. 470; § 967, p. 540; § 968, p. 542; § 1218, p. 722; § 1313, p. 769; § 1555, p. 930; § 1557, p. 933; § 1839, p. 1133; § 2464, p. 1489; § 2469, p. 1493; § 2c p. 1509; § 2635, p. 1570; § 2639, 1572; § 2641, p. 1573; § 2642, p. 157 § 2652, p. 1576; § 27"" - """" " """ p. 1629. P- O . 83, p. 1628; § 2785, azley v. Williams, § p. 551- s ie«=c - 11 Gazl 987, p. 550; § 988, p. 551; § 1885, p. 1181. Gebhard, In re, § 671, p. p. 407. Gee V. Gee, § 2785, p. 1629. Geiser, In re, § 1479, p. 881; § 1827, p. 1122; § 1836, p. 1129; § 1856, p. 1155; § 2330, p. 1414; § 2334, p. 1417. Geister, In re, § 2689, p. 1596; § 2699, p. 1600. General Metals Co., In re, § 297, p. 214. George, In re, § 2659, p. 1578. Georgia Handle Co., In re, § 1154, p. 680; § 1161, p. 684. Gerdes, In re, § 1582, p. 953; § 1965, p. 1223; § 1980, p. 1229. Germ. Am. Bk., Burkhardt v. Germ. Ins. Bk., Cunningham v. Gerry, In re, § 1963, p. 1223; § 1986, p. 1230; § 1987, p. 1232; § 2148, p. 1327. Gerson. In re, § 627, p. 372; § 627, p. 373; § 643, p. 383; § 645, p. 387; § 672, p. 409; § 672, p. 410; § 1160, p. 683; § 2014, p. 1250; § 2035, p. 1262; § 2103, p. 1299; § 2]04, p. 1300; § 2179, p. 1341; § 2203, p. 1354; § 2204, p. 1356; § 2206, p. 1358; § 2257, p. 1377; § 2262, p. 1386; § 2273, p. 1391; § 2731, p. 1611; § 2741, p. 1615. Gerstel. In re. § 1819, p. 1115; § 1843, p. 1141; § 1850, p. 1148; § 1856, p. 1154. Gesas, In re, § 1314, p. 771; § 1506, p. 901. Gettinger, National Bank v. Gettysburg Nat'l Bank, Keith v. Ghiglione, In re, § 348, p. 235; § 352, p. 236; § 417, p. 269; § 418, p. 269. Gibbs, In re,, § 1971, p. 1226. Gibson, In re, § 787, p. 463. Giddings v. Dodd, § 131, p. 115. Gift, In re, § 2553, p. 1539; § 2583, p. 1549; § 2584, p. 1550; § 2586, p. 1551; § 2596, p. 1554; § 2613, p. 1563; § 2614, p. 1563; § 2615, p. 1564. Gilbert, In re, §.129, p. 113; § 132, p. 115; § 132, p. 116; § 132, p. 117; § 150, p. 130; § 1543, p. 919. Gilblom & King, In re, § 1614, p. 981. Gillette, In re, § 104, p. 104; § 114, p. 109; § 171, p. 146; § 198, p. 163; § 198, p. 164; § 200, p. 164; § 233, p. 182; § 237, p. 185; § 321, p. 223; § 1219, p. 723; § 2269, p. 1387; § 2271, p. 1390. Gillette & Prentice, In re, § 233, p. 182. Gilroy & Bloomfield, In re, § 1842, p. 1137; § 1844, p. 1141. Ginsburg, In re, § 2603, p. 1557; § 2608, p. 1558; § 2608, p. 1560. Girard Glazed Kid Co., In re, § 185, p. 153; § 233, p. 183; § 859, p. 492; § 1368, p. 794; § 2.220, p. 1361; § 2226, p. 1363; § 2990, p. 1735. Githens v. Shiffler, § 106, p. 105; § 109, p. 106; § 113, p. 108; § 118, p. 110; § 1134, p. 646; § 1397, p. 825; § 1497, p. 895. Gladding, Co. B. H., In re, § 1614, p. 981; § 2166, p. 1335; § 2168, '""" p. 1336. Glass, In re, § 2415, p. 1459; § 2430, p. 1468; § 2430, p. 1469; § 2467, p. 1490; § 2583, p. 1549; § 2584, p. 1550; § 2586, p. 1551; § 2588, p. 1551; § p. 1551; § 2591, p. 1552; § 26] 590, 1563; § 2616, p. 1564 1984 TABLE OF CASES. Glassner, Snyder & Co., In re, § 1558, p. 933; § 1558, p. 934; § 1852, p. 1152. p. 933; § 1558, p. 934; § iHdZ, p. 115:^. Gleason v. Smith Perkins Co., § 261, p. 261, p. 196; § 266, p. 197; § 270, ledbun V. omun jrerKins ^o., § Zbl, 195; § 261, p. 196; § 266, p. 197; § 2' p. 200; § 302, p. 217; § 311, p. 220. Glenn, Hawkins v. Glenny v. Langdon, § 1718, p. 1060. Globe Cycle Works, In re, § 359, p. 240; § 361, p. 243; § 366, p. 244; § 528, p. 330; § 1473, p. 877; 8 loni ^ iisq- § igno r. lion Globe 1901, p. 1188; § 1902, p. 1190. rlobe Ins. Co. z'. Cleveland Ins. Co. § 149, p. 129; § 149, p. 130. Glover Grocery Co. v. Dorn, § 2351, p. 1427. Glucklich, Boyd v. Godfrey, Morse 'v. Coding v. Rosenthal, § 643, p. 383; § 644, p. 386; § 645, p. 387. Godshalk v. Sterling, § 2544, p. 1532; § 2585, p. 1551; § 2603, p. 1557; § 2608, p. 1558; § 2608. p. 1560; § 2608, p. 1561; § 2612, p. 1562. Godwin, In re, § 2387, p. 1443. Goembel, Paper Co. v. Goerlitz, Mueller v. Goings, Tehling z'. Goldberg Bros., In re, § 359, "p. 241 § 366, p. 244; § 369, p. 245; § 545 p. 333; § 693, p. 420; § 1485, p. 884 § 1490, p. 888; § 1481, p. 883; § 1482, p. 883; § 1619, p. 984; § 1695, p. 1045; § 1901, p. 1188; § 1902, p. 1189; § 1919, p. 1196; § 1920, p. 1196; § 2016, p. 1253; § 2197, p. 1349; § 2197, p. 1350. Goldfarb, In re, § 1819, p. 1115; § 1842, p. 1139; § 1843, p. 1140; § 1845, p. 1144; § 1850, p. 1147; § 1859, p. 1157. Goldman, In re, § 1140, p. 671; § 1197, p. 697; § 2303, p. 1402. Goldman v. Smith, § 121, p. Ill; § 3 222; § 332, p. 226; § 896, p. 5: 96, p. 512; § 992, p. 553; S 11 S 66}i, p. -d-db; § sue, p. § 896, p. 512; § 992, p. 553; § p. 683; § 1266, p. 747; § 1268, p. 00. o. 763: S 1303. o. 765. 17, 11; 60, 748; p. ooo, s i^oo, p. fii, 8 izoo, p § 1300, p. 763; § 1303, p. 765. Goldsmith. In re, § 1893, p. 11 1894, p. 1184: § 1970, p. 1226; § p. 1226; § 1975, p. 1228; § 19bo, p. 1230; § 1995, p. 1234; § 2206, p. 1358; § 2530, p. 1525; § 2540, p. 1528; §2644, p. 1574. 84; § § 1971, 1985, p. Goldstein, In re, § 659, p. 401; § 663, p. 404; § 1160, p. 683; § 2204, p. 1356. Goldstein, U. S. v. Goldville M'f'g Co., In re, § 1993, p. 1234; § 1996, p. 1235; § 2011, p. 1248; § 2014, p. 1251; § 2045, p. 1266; § 2047, p. 1268; § 2048, p. 1271; § 2049, p. 1273; § 2069, p. 1284; § 2075, p. 1286; § 2078, p. 1287; § 2083, p. 1289; § 2084, p. 1289; § 2103, p. 1299. Gomila V. Wilcombe, § 1387, p. 818; § 2205, p. 1357. Good, In re, § 2881, p. 1690; § 2887, p. 1696; § 2893, p. 1699; § 2981, p. 1733; § 2997, p. 1737; § 2999, p. 1737. Goodale, In re, § 435, p. 278; § 450, p. 296; § ale. In re, § 435, p. 278; § 450, J96; § 450, p. 297; § 2477, p. 1495; „ !508, p. 1510; § 2522, p. 1521; § 2603, p. 1557. Goodall v. Tuttle, § 1041. Goodbehere "' t^^'-" ■« r p. 593. 988, p. 551, Goodfellow, In re, § 2482, p. 1500. Goodhart, McCullough v. Goodhile, In re, § 1395, p. 823; § 14 r\0. n .9^1 • S 1107 r, 8 >oodhile. In re, § 1395, p. 823; § 1402, p. 830; § 1403, p. 831; § 1407, p. 835; § 1409, p. 836; § 2556, p. 1540; § 2558, p. 1540: § 2563. p. 1542; 2625, p. 1566; 2642, p. 1573; § p. 1024; § § 6241, p. 1573; 2643, p. 1574. Goodier z'. Barnes, § 1653, 1686, p. 1037. Goodman z'. Brenner, § 1560, p. 938; § 2890, p. 1698; § 2911, p. 1705; § 2922, p. 1712. Goodman Shoe Co., In re, § 795, p. 465; § 976, p. 547; § 1185, p. 693. Goodridge, In re, § 1849, p. 1146; § 1851, p. 1150; § 2505, p. 1508. Goodykoontz, Carter z'. Gordon, In re, § 1032, p. 581; § 1035, p. 587. Gordon z'. Jennings, § 2169, p. 1337; § 2176, p. 1340. Gordon, Schefield v. Gordon Supply & M'f'g Co., In re, § 882, p. 504; § 887, p. 505; § 887, p. 507; § 1924. p. 1203; § 1930, p. 1206; § 2121, p. 1308. Goreley, Butter v. ^ rman. In re, § 426, p. 274; § 444, p. Go 287. Gorman t'. Wright, § 758, p. 450. TABLE OF CASES. 198; Gorwood, In re, § 1959, p. 1220. Gosch, In re, § 1140, p. 667; § 1140, p. 671; § 1154, p. 681; § 'l241, p. 736; § 1876, p. 1165; § 1896, p. 1185. Gose, In re, § 987, p. 550. Gottman z: Konea, § 131, p. 114. Gould c'. X. Y. Life Ins. Co., § 963. p. 538; § 966, p. 540; § 1008, p. 560; § 1108, p. 561; § 1012, p. 562; § 1012, p. 563; § 1013, p. 563; § 1015, p. 565; § 1016, p. 567. Gourdin. Strain t'. Gove r. Morton Trust Co., § 1140, p. 671; § 1144, p. 675; § 1207, p. 702; § 1209, p. 708; § 1222, p. 723; § 1222, p. 724; § 1230, p. 732; §*1239, p. 735; § 1265, p. 745; § 1508. p. 901; § 1760, p. 1074. Goyer z\ Jones, § 1511, p. 903. Grady. In re, § 1047, p. 597; § 2796, p. 1637. Graff, In re, § 629. p. 374; § 804. p. 470; § .1314, p. 771; § 1883, p. 1169; § 1883, p. 1172; § 1884, p. 1173. Graff, Keine v. Graffam v. Burgess, § 1953, p. 1216. Graham, In re, § 1396, p. 824. Graham, Loan & Trust Co. v. Graham, Norfolk & W. Ry. Co. v. Graham v. Richardson, § 1035, p. 589; § 1102, p. 628; § 1104, p. 628. Grahs, In re, § 1653, p. 1024; § 1676, p. 1034; § 1695, p. 1044. Grand Lodge, Burrow v. Grandy & Son, In re, § 800, p. 467; § 1150, p. 679; § 1370, p. 798; § 1372, p. 801. Granite City Bank, In re, § 533, p. 331; § 1215. p. 718; § 1705, p. 1053; § 1706, p. 1054; § 1797, p. 1092; § 1798, p. 1098; § 1807, p. 1105; § 1808, p. 1108; § 1809, p. 1109; § 1835, p. 1128; § 1885, p. 1178; § 1885, p. 1180; § 1888, p. 1181; § 1889, p. 1182; § 1889, p. 1183; § 1891, p. 1183; § 1894, p. 1184; § 1931, p. 1207; § 1965, p. 1223; § 1967, p. 1225; § 1975, p. 1228; § 1977, p. 1228; § 1978, p. 1228; § 1979, p. 1228; § 1981, p. 1229. Granite Quarries Co., In re, § 236, p. 184. Grant, Allen v. Grant, In re, § 64, p. 69; § 132, p. 115; § 882, p. 504; § 2449, p. 1486; § 2851, p. 1663; § 2851, p. 1664; § 2861, p. 1672. Grant, Manufacturing Co. v. Grant, ]\Iarble Co. z\ Grant z: National Bank, § 1407, p. 834. Grant Shoe Co., In re, § 230, p. 179; § 232, p. 180; § 630, p. 374; § 689, p. 417; § 704, p. 423; § 705, p. 425. Grant Shoe Co. v. Laird Co., § 2894, p. 1699. Graves, In re, § 2608, p. 1559. Gray, In re, § 1207, p. 702; § 1440, p. 851; § 1493, p. 890; § 1602, p. 967; § 1603, p. 971; § 1604, p. 975. Gray, James z'. Gray, Littlefield z\ Gray v. Alercantile Co., § 896, p. 512; § 2054, p. 1277; § 2103, p. 1300; § 2827, p. 1654; § 2828, p. 1655; § 2837, p. 1657; § 2899, p. 1701; § 2899, p. 1702; § 2907, p. 1704. Gray v. Rollo, § 1175, p. 689. Greater American Exposition, In re, § 1165, p. 685; § 1582, p. 954; § 1583, p. 958; § 1586, p. 960; § 1653, p. 1024; § 1682, p. 1035; § 1692, p. 1043. Great Western Mfg. Co., In re, § 1144, p. 674; § 1209, p. 707; § 1214, p. 717; § 1242, p. 737; § 1314, p. 772; § 1370, p. 796; § 1878, p. 1165; § 1987, p. 1232; § 2886, p. 1695. Great Western Mineral & Mfg. Co. v. Harris, § 1709, p. 1056. Greeman. In re, § 928. p. 523. Green, In re, § 1664, p. 1031; § 1845, p. 1145; § 1852, p. 1151; § 2151, p. 1329; § 2256, p. 1376; § 2257, p. 1381. Green, ]\Ioore z'. Green, Orcutt Co. v. Greenberg, In re, § 1848, p. 1145; § 1850, p. 1146; § 2521, p. 1519; § 2549, p. 1535. Greene, In re. § 1140, p. 668; § 1140, p. 670; § 1247. p. 739. Greenewald, In re. § 2169, p. 1336; § 2159, p. 1337; § 2170, p. 1338; § 2176, p. 1340. Greensberg. In re. § 2638. p. 1571. Green & Rogers, In re, § 146, p. 128. Gregory v. Atkinson, § 1689, p. 1040. 2 Rem B— 50 1986 TAELE OF CASES. 627, 820, Grell, Baer v. Grensfeld Bros. v. Brownell, § 1 p. 993. Griffin V. Mutual Life Ins. Co., § p. 476; § 826, p. "479; § 1640, p. 1011; § 1644, p. 1012; § 1649, p. 1015. Grill V. Solomon, § 2716, p. 1606. Grimes Co. v. Malcolm, § 114, p. 109. Grimes, In re, § 33, p. 53; § 1022, p. 570; § 1024, p. 572; § 1032, p. 579; § 1038, p. 592; § 1044, p. 594; § 1047, r, e;Q?;- S in4.8 n .eiQC) • 8 1079, n filO" p. 595; § 1048, p. 599; § 1072, p. 610; § 1073, p. 611; § 1076, p. 612; § 1089, p. 616; § 1093, p. 618; § 2025, p. 1258. Grissler, In re, § 1154, p. 680; § 1156, p. 682; § 1156, p. 683; § 1156, p. """• '^ 683; § 682; § 1156, p. 683; § 1156, p. 683; § 1161, p. 684; § 1165, p. 685; § 1682, p. 1035; § 1696, p. 1046; § 1813, p. 1111. rist. In re, § 465, p. 305; § 470, p. 306; § 472, p. 306; § 528, p. 330. Griswold V. Pratt, § 1629, p. 997. Grive, In re, § 1150, p. 680; § 1681, p. 1161 Gri 1035. Groetzinger, In -..^-, -- re, § 1885, p. 117e 1885, p. 1179; § 2236, p. ^"'■"- '^ """' ^ ^-ooo, jj. x±ii>, X /ji^o\j, p. 136<; § .i~3o, p. 1369; § 2937, p. 1716; § 2993, p. 1736; § 2996, p. 1737. Grohs, In re, <^ - ' ' -- """'^- ^^ '-'- - 545, p. 33J -, ^- --, „ 544, p. 332; » ^,^, „„3; § 1212, p. 710; § 1216, p. 719; 1217, p. 722; § 1493, p. 890, Gross, In re, § ^ — , ^. — , ^ 2521, p. 1519; § 2542, p. 1531; § 2543, p. 1532; § 2638, p. 1571; § 265' p. 1578. i:ii7, p. i-;i4\ s i4yd, p. »yu. iross. In re, § 1070, p. 609; § 2520, 1518; § 2521, p. 1519; § 2542, p. 15 § 2543, p. 1532; § 2638 - -" "^^ • ^ or p. 1578. Grossman, In re, § 2521, p. 1519; §2541, p., 1529; § 2660, p. 1578. Groves, In re, § 1022, p. 570; § 1041, p. 592; § 1048, p. 599; § 1048, p. 601; § 1051, p. 603; § 1052, p. 603; § 1054, p. 604; § 1092, p. 617; § 1578, p. 945; , § 1950, p. 1215; § 1952, p. 1216; § 1954, p. 1217; § 1954, p. 1218; § 1957, p. 1219; § 2014, p. 1251; § 2018, p. 1254; § 2025, p. 1258; § 2125, p. 1309. Grubbs-Wiley Grocery Co., In re, § 801, p. 468; § 2169, p. 1336; § 2176, p. 1340. Gruenberg v. Trainor, § 27] 4, p. 1606; § 2715, p. 1606; § 2717. p. 1606; § 2722, p. 1607; § 2726, p. .1608; § 2727, p. 1608; § 2728, p. 1608. Grunsfeld Bros. v. Brownell, § 16, p. 31; § 1265, p. 745; § 1343, 1606, p. 976; § 1630, p. IOOjl, s -^"^~. p. 1004; § 1632, p. 1007; § 1634, p. 1009; § 1760, p. 1074; § 1790, p. 1083. Guarantee Title & Trust Co., Burke v. Guarantj^ Co., Boyce f. 787; § 1632, 4, p. 1083. V. Gueras v. Porter, § 123 uichard. Brown v. iO, p. 732. 659, p. 1578. G Guild, In re, § Gump, Long V. Gurewitz, In re. § 2171, p. 1338; § 2175, p. 1340; § 2176, p. 1340. Guthrie, Duryea v. Guthrie, Snj^der v. Gutman & Wenk, In re, § 1780, p. 1079; § 1781., p. 1080; § 1782, p. 1080; § 1784, p. 1081; § 1807, p. 1105; § 1916, p. 1194. Gutterson, In re, § 1011, p. 562; § 1925, p. 1203; § 1959, p. 1221; § 3001, p. 1738; § 3002, p. 1738. Gutwillig. In re, § 571, p. 346; § 1463, p. 871; § 1602, p. 967; § 1603, p. 973; § 1604, p. 975; § 1610, p. 978; § 1532, p. 1006. Haack v. Theise, § 477, p. 309; § 2761, p. 1623; § 2764, p. 1624; § 2765, p. 1624; § 2777, p. 1627. Haas-Barnick Co. v. Poruondo, § 2278, H p. 139^. aas. In re, § ,885, Haase, In re, § " p. 1548 Hab p. 1296 129 p. 504. !571, p. 1544; § 2577, •egger, In re, § 1134, § 2096, ...„., p. 646; § 2095, p. 1296; § 2097, p. Hackney v. First Nat'l Bank, § 1216, H p. 720. ackney 19, p. Ha ackney v. Hargreaves Co., § 36; § 444, p. 287; § 1181, p. 692; § 1182. p. 692; § 1284, p. 758; § 1303, p. 765; § 1316, p. 773; § 1332, p. 781; § 1355, p. 791; § 1356, p. 791; § 1357, ). 791; § 1.395, p. 822; § 1401, p. 829. ,ckney v. Raymond Bros. Clarke Co., § 1356, p. 791; § 1357, p. 791; § 1396, p. 823; § 1396, p. 824; § 1398, p. 826; § 1399, p. 826; § 1403, p. 831; § 1407, p. 834; § 1504, p. 900; § 1747, p. 1071. Hadden-Rodee Co., In re, § 1696, p. 1045; § 1698, p. 1048; § 1701, p. 1051; I § 1796, p. 1092; § 1873, p. 1163. TABLE OF CASES. 1987 Haensell, In re, § 1020, p. 569; § 1643, p. 1011; § 1644, p. 1012. Haesler-Kohloff Carbon Co., In re, § 417, p. 269. Haff, In re, § 207, p. 171; § 208, p. 171; § 210, p. 172; § 211, p. 172; § 264, p. 197; § 265, p. 197;, § 268, p. 199; § 341, p. 233; § 346, p. 234; § 354, p. 237. Hahlo V. Cohn, § 899, p. 516; § 1641, p. 1011; § 1644, p. 1012; § 1722, p. 1061. Hakes, Off v. Halbert, In re, § 2059, p. 1280; § 2117, p. 1305. Halbert v. Pranke, § 1356, p. 791; § 1744, p. 1071; § 1746, p. 1071; § 1747, p. 1071; § 1759, p. 1074. Hale T'. 'Allison, § 1709, p. 1056. Hale, Baldwin v. Hale, Coxe v. Hale, In re, § 59, p. 65; § 64, p. 70; § 2422, p. 1465; § 2792, p. 1633; § 2804, p. 1643. Hall Co., F. A., In re, § 1625, p. 989; § 1628, p. 995; § 1629, p. 996; § 1630, p. 1002; § 1632, p. 1007. Hall V. Cooley, § 94, p. 88. Hall, Finnegan v. Hall, Oil Well Supply 'Co. v. Hall, Wager v. Hall, Watertown Carriage Co. v. Halsell, In re, § 2611, p. 1562. Hamilton, Carr v. Hamilton Furniture & Carpet Co., In re, § 842, p. 484; § 1169, p. 687; § 1879, p. 1165. Hamilton, In re, § 1122, p. 641; § 2486, p. 1503; § 2541, p. 1530; § 2545, p. 1533; § 2549, p. 1536; § 2635, p. 1571; § 2639, p. 1572; § 2640, p. 1572; § 2793, p. 1633. Hamilton, Parmenter Mfg. Co. v. Hamilton, Selkregg v. Hammer, Swarts v. Hammerstein, Tyrrel v. Hammond, Botts v. Hammond, In re, § 1429, p. 848; § 1477, p. 878; § 1479, p. 881; § 1488, p. 885; § 1653, p. 1024. Hammond, U. S. ex rel. Adler v. Hand, Warehousing v. Hanks, In re, § 1472, p. 874. Hanlin, Beers v. Hanna & Kirk, In re, § 1150, p. 679. Hanover Xat'l Bk. v. Moyses, § 2, p. 21; § 3, p. 21; § 5, p. 22; § 6, p. 23; § 8, p. 23; § 9, p. 25; § 12, p. 28; § 13, p. 28; § 18, p. 35; § 19, p. 37; § 1023, p. 571; § 1632, p. 1004. Hansen, In re, § 896, p. 511; § 995, p. 555; § 2491, p. 1504; § 2522, p. 1522; § 2813, p. 1646; § 2815, p. 1648. Hanson v. Stephens, § 1439, p. 850; § 1616, p. 983; § 1620,. p. 985. Happke and Doyle v. jNIilw. Xat. Bk., § 1387, p. 818. Hardie & Co., In re, § 2484, p. 1502; § 2485, p. 1503; § 2556, p. 1540; § 2563, p. 1542; § 2563, p. 1543. Harding, Hill r. Hardt v. Schuylkill Plush & Silk Co., § 1429, p. 848; § 1460. p. 867; § 1468; p. 873; § 1471, p. 874; § 1470, p. 874; § 1476, p. 878; § 1484, p. 884. Hardware Co., Little v. Hardware & Furniture Co., In re, § 286, p. 206; § 2032, p. 1261; § 2117, p. 1305. Hare, In re, § 878, p. 502; § 894, p. ^10; § 895, p. 510. Hargardine-]\IcKittrick Co. v. Hudson, § 2, p. 21; § 630, p. 374; § 784, p. 462; § 786, p. 462; § 788, p. 463; § 791, p. 464; § 2748, p. 1618; § 2750, p. 1618. Hargreaves Co., Hackney v. Hark v. Allen Co., § 267, p. 198. Hark Bros., In re, § 252, p. 191; § 255, p. 191; § 257, p. 192; § 258, p. 194; § 267, p. 198; § 324, p. 225; § 1552, p. 928; § 1559, p. 936; § 1560, p. 938; § 1561, p. 938; § 1574, p. 944; § 1852, p. 1152. Harmon. In re, § 2135, p. 1318; § 2183, p. 1343. Harmon v. Jamieson, § 1486, p. 885. Harold, Knapp v. Harper, In re, § 138, p. 122; § 141, p. 124; § 150, p. 132; § 444, p. 283; § 2783. p. 1628; § 2784, p. 1629; § 2785, p. 1630; § 2786, p. 1631; § 2787, p. 163]. Haiper f. Rankin, § 2783, p. 1628; § 2786, p. 1631; § 2787, p. 1631. 1988 TABLE OF CASES. Harpke, In re, § 1288, p. 759; § 131i, p. 768. Harr, In re, § 17, p. 33; § 2462, p. 1489; § 2556, p. 1540; § 2557, p. 1540; § 2559, p. 1541; § 2634, p. 1570; § 2861, p. 1670. Harrington, In re, § 1048, p. 598. Harrington, Lawrence z'. Harris, Great Western [Mineral & Mfg. Co. z'. Harris, In re, § 33, p. 52; § 62, p. 68; § 70, p. 74; § 963, p. 538; § 1116, p. 639; § llir, p. 639; § 1132, p. 644; § 1135, p. 648; § 2368, p. 1435; § 2252, p. 1374; § 2253, p. 1374; § 2365, p. 1434; § 2522, p. 1520. Harris & Algor, In re, § 2426, p. 1466. Harrison, Hanselt v. Harriskamp v. Wagon Co., § 2269, p. 1387. Harson Co., In re, § 1303, p. 765; § 1615, p. 982; § 2014, p. 1250. Hart & Co., In re, § 2011, p. 1248; § 2044, p. 1266; § 2068, p. 1284; § 2072, p. 1285; § 2116, p. 1304; § 2117, p. 1305. Ha%t, [Matthews v. Hart, Wright z'. Hartman, In re, § 1694, p. 1044; § 2237, p. 1368; § 2794, p. 1635; § 2796. p. 1637; § 2798, p. 1641; § 2800, p. 1642. Hartman v. Peters, § 171, p. 144. Hartsell & Son, In re, § 1032, p. 580; § 1091, p. 617; § 1104, p. 631. Harvester Co. z'. Lyman, § 2717, p. 1606. Harvey. In re, § 1931, p. 1207; § 1931, p. 1208; § 1950, p. 1215; § 2141. p. 1319; § 2147, p. 1324; § 2161, p. 1334; § 2163, p. 1335; § 2365, p. 1434; § 2366, p. 1434; § 2367, p. 1435. Harvey v. Smith, § 1586, p. 961. Haskin, In re, § 1041, p. 592; § 1057, p. 605; § 1089, p. 616. Haskins, Aiken, Lambert & Co. v. Haslage, Hoover v. Hassenbusch, In re, § 376, p. 247. Hastings z'. Fithian, § 1200, p. 698; § 1277, p. 755; § 1363, p. 793; § 1396, p. 825. Hasting, In re, § 1047, p. 599. Hatch, In re, § 1022, p. 570; § 1024, p. 1082; § 2864, p. 1678. Hatch, In re, § 1022, p. 750; § 1024, p. 572; § 1029, p. 578; § 1032, p. 579; § 1037, p. 591; § 1047, p. 595. Hatcher, In re, § 2022, p. 1257. Hatje, In re, § 320, p. 223; § 1485, p. 884. Hauselt v. Harrison, § 1144, p. 673. Hausman, In re, § 1842, p. 1140; § 1858, p. 1156; § 2341, p. 1419. Havens & Geddes Co. z'. Pierek, § 1033, p. 585; § 1797, p. 1093; § 1873, p. 1163; § 1885, p. 1178; § 1892, p. 1184; § 2009, p. 1246. Hawk z'. Hawk, § 648, p. 389; § 710, p. 427; § 1117, p. 639; § 1140, p. 671. Hawk, In re, § 494, p. 313; § 723, p. 436; § 858, p. 491; § 2445, p. 1477; § 2812, p. 1646. Hawkins z'. Glenn, § 977, p. 547. Hawkins, In re, § 1896, p. 1185; § 1938, p. 1210; § 1948, p. 1214; § 1974, p. 1228. Hawley, In re, § 563, p. 340; § 1954, p. 1217; § 1955, p. 1218; § 2841, p. 1661; § 2846, p. 1662. Hawthorn, In re, § 1558, p. 933; § 1562, p. 939.' Hayden, In re, § 1547, p. 925. Haydock, Varnish Wks. z'. Hayer v. Comstock, § 611, p. 362; § 645, p. 387; § 2741, p. 1615. Haynes, & Sons, In re, § 1443, p. 853; § 2427, p. 1467; § 2479, p. 1496. Hays, In re, § 653, p. 394; § 653, p. 395; § 656, p. 399; § 660, p. 402; § 979, p. 548. Hays Saddlery & Leather Co., Ellis v. Hays z'. Wagner, § 222. p. 176; § 224, p. 178; § 235, p. 183; § 235, p. 184; § 236, p. 184; § 238, p. 185; § 805, p. 470; § 2968, p. 1729. Haynard, In re, § 607, p. 361; § 1160, p. 683; § 2204, p. 1356. Hazleton, In re, § 2716, p. 1606. Hazen, Tomplins z'. Hazle, Clothing Co. z'. Head, Western Union Cold Storage Co. z'. Headley, In re, § 758, p. 450; § 2220, p. 1362. TABLE OF CASES. 1989 Head & Smith, In re, § 1047, p. 596; § 1216, p. 720; § 1312 """ " p. 769; § 1494, " 2271, p. 1""" 389; 687, , p. 281; § 439, p. p. 891; § 2254, p. 1374 § 2271, p. 1390. Headlej', Pepperdine v. Heaney, Marckson v. Heaney, Alarkson & Spalding v. Hearick, Rex Buggy Co. v. Heath, Doyle v. Heath v. Shafifer, § 1582, p. 956; § 1586, p. 961; § 1597, p. 964; § 1646, p. lOl''- § 1653, p. 1024; § 1675, p. 1033; §168 p. 1038. Heaton, Marsh v. Hebbart, In re, § 438 282. Heckathorn, In re, § 1140, p. 669; § 1207, p. 703; § 1212, p. 710; § 1228, p. 730. Heckman, In re; § 1451, p." 861; § 1582, p. 949; § 1593, p. 964. [ee, In re, § 217, p. 175; § 333, p. 227; § 2237, p. 1368. Heffron, In re, § 236, p. 184. Heim v. Chapman, § 2716, p. 1606. Heineman, Livingston v. Heinsfurter, In re, § 636, p. 378; § 638. p. 379; § 791, p. 464; § 1335, p. 782; § 1443, p. 853; § 1880, p. 1168; § 2379, p. 1440; § 2382, p. 1441. Helena Coal Co., McN; H Helena Coal Co., McNamara v. Heller v. Le Roy, § 1586, p. 96( Hellman, Mayer v. Hemby-Hutchinson Pub. IfiQS T-. ind7- S 1KQS r. ^..man, Mayer v. emby-Hutchinson Pub. Co., In re, § 1698, p. 1047; § 1698, p. 1048. Hemstreet, In re, § 1047, p. 595; § 1216, p. 721; § 1569, p. 942; § 2186, p. 1344. Henderson, Henrie v. Henderson, In re, § 1693, p. 1043; § 1700, p. 1050; § 1819, p. 1115; § 1850, p. 1147; § 1856, p. 1154; § 2000, p. 1237; § 2255, p. 1375; § 2257, p. 1377; § 2257, p. 1378; § 2650, p. 1575. Hendrick, In re, § 2463, p. 1489; § 2612 p. 1563; § 2613, p. 1563; § 2616, p p. luoo, Nj <;ui.o, y. xou 1564; § 2623, p. 1565; § 2624, p- p. 1565. 5; § 2613, p. 1563; § 2616 "15 Hennequin v. CI Henne & Meyer, Clark Hennequin v. Clews, § ^,^^, y. ^^.j... iennis, In re, § 1033, p. 585; § 1047, p. 599; § 1150, p. 679; § 1883, p. 1172; § 1884, p. 1177. Hennocksburgh, In re, § 636, p. 377. Henrie r. Henderson, § 1693, p. 1043; § 1700, p. 1050; § 2000, p. 1237. Henry, In re, § 1047, p. 597. Henry AlcShane Mfg. Co., Lowen- stein f. Henschel, In re, § 571, p. 346; § 571, p. 347; § 572, p. 347; § 575, p. 348; § 581, p. 350; § 582, p. 350; § 583, p. 350; § 584, p. 351; § 858, p. 491; § 862, p. 496; § 878, p. 502; § 879, p. 503; § 887, p. 505; § 892, p. 509; § 1558, p. 933; § 2435, p. 1470; § 2999, p. 1737. Herbold, In re, § 40, p. 56; § 288, p. 208; § 1047, p. 598; § 1091, p. 617; § 2010, p. 1246. Hercules Atkins, Co., In re, § 80, p. 80; S 151, p. 132; § 160, p. 138; § 1616, p. 982 --ei _.-, Herman, In Herdic, In re, § 2635, p. 1571. , _.. re, § 2508, p. 1510. Hernich, In re, H 1005, p. 558. 2475, P- eiiiicii. III re, 8 luuo, p. o errman. In re. § 2439, p. 1476; ^ .. p. 1495; § 2508, p. 1509; § 2521 1519; § 2532, p. 1526. Herron Co. z'. Superior Court,^ § 1625, p. 989; § 1626, p. 990; § 1627, p. 991; § 1628, p. 994; § 1630, p. 1000. Hershkowitz, In re, § 1850, p. 1147; § 1855, p. 1154; § 2521, p. 1520; § 2646, p. 1574; § 2649, p. 1575. Herskovitz, In re, § 1543, p. 919; § 2011, p. 1248; § 2117, p. 1305. Herzikoph, In re, § 20, p. 37; § 233, p. 182; § 277, p. 203; § 282, p. 204; § 404, p. 263; § 409, p. 265. ess. In re. § 780, p. 461; § 954, p. 536; § 955, p. 536; § 956, p. 536; § 1140, p. 670; § 1212, p. 710; § 1241, p. 736; § 1245, p. 739; § 1557, p. 932; § 1558, p. ""'^; § 1558, p. 934; § 1558, p. 935; 559, p. 936; § 1560, p. 938; § 1562, p. ■ oj; § 1852, p. 1152. sseltine z'. Prince, § 961, p. 537; § 171, p. 544. •itt z/. Berlin Machine Wks., § 1140, 668; § 1144, p. 673; § 1207, p. 700; L207, p. 704; § 1209, p. 707; § 1231, p. '33; § 1243, p. 738; § 2864, p. 1679; § :875, p. 1687; § 2884, p. 1695; § 2912, ). 1707; § 2925, p. 1713. H 9 He Hew P- §1 73 287 P 1990 TABLE OF CASES. Heynian, In re, § 571, p. 346; § 571, p. 347; § 613, p. 364; § 929, p. 523; § 2521, p. 1520. Hibbard v. Bailey, § 676, p. 412; § 678, p. 413. Hibbard v. McGill, § 2242, p. 1371; § 2255, p. 1375. Hickey, In re, § 1392, p. 820. Hicks, In re, J 17, p. 34; § 55, p. 64; § 96, p. 93; § 98, p. 95; § 306, p. 219; § 474, p. 306; § 945, p. 526; § 2421, p. 1465; § 2694, p. 1598. Hicks V. Knost, § 17, p. 32; § 1653, p. 1027; § 1676, p. 1034; § 1677, p. 1034. Hicks V. Langhorst, § 1395, p. 822; § 1403, p. 830; § 1764, p. 1075. Higgins, In re, § 184, p. 152; § 1429, p. 847; § 1457, p. 865; § 1464, p. 871. Highland Boy v. Strickley, § 2921, p. 1711. Hilberg, In re, § 2141, p. 1319; § 2148, p. 1327. Hilborn, In re, § 2358, p. 1431. Hildebrant, In re, § 638, p. 379; § 638, p. 381; § 1880, p. 1168. Hilgers, Oliver v. Hill Co., In re, § 84, p. 84; § 90, p. 86; § 94, p. 90; § 1180, p. 691; § 1296, p. 762; § 1297, p. 762; § 1311, p. 767; § 1341, p. 785; § 1419, p. 841; § 1420, p. 842; § 2985, p. 1733; § 2986, p. 1733; § 2986, p. 1734. Hill, Chattanooga z\ Hill V. Harding, § 1450, p. 860; § 1524, p. 907; § 2699, p. 1600. Hill, In re, § 189, p. 154; § 1024, p. 572; § 1221, p. 723; § 1494, p. 892; § 1499, p. 895; § 2505, p. 1508; § 2608, p. 1559; § 2635, p. 1571. Hill V. Levy, § 333, p. 227. Hill, Zeiber v. Hiller v. Le Roy, § 1592, p. 963. Hillman, Pullen v. Hills. In re, § 1022, p. 570; § 1032, p. 578; § 1034, p. 585. Hilton, In re, § 704, p. 423; § 723, p. 436; § 732. p. 4.39; § 2691, p. 1598; § 2734, p. 1613. Hinckel Brew. Co., In re, § 653, p. 394; 3rew. Co., In re, § § 656, p. 399; § 657, - "" 406; " )56, p. 399; § 657, p. 400; § 667, p. i; § 842. p. 484; § 2035, p. 1262; § 2103, p. 1299; § 2206, p.. 1358; § 2730, p. 1610. Hindman, In re, § 1047, p. 598. Hinds V. Moore, § 1652, p. 1020; § 1657, p. 1029; § 1694, p. 1044; § 1797, p. 1093; § 1800, p. 1099; § 1801, p. 1099; § 1802, p. 1100; § 2864, p. 1680; § 2873, p. 1685; § 2873, p. 1686; § 2924, p. 1713. Hinds, Moore v. Hines, In re, § 288, p. 207; § 348, p. 235; § 352, p. 237; § 359, p. 241; § 364, p. 243; § 370, p. 245; § 751, p. 446; § 754, p. 447; § 1303, p. 765; § 1328, p. 778; § 1332, p. 781; §■ 1344, p. 788; § 1347, p. 788; § 1351, p. 790; § 1364, p. 794; § 1395, p. 822; § 1398, p. 826; § 1399, p. 827; § 1401, p. 829; § 1402, Hines, Zartman v. Hinsdale, In re, § 1209, p. 707; § 1241, p. 736; § 1489, p. 886; § 1491, p. 889. Hintze, In re, § 435, p. 278; § 436, p. 279; § 444, p. 285. Hirose, In re, § 145, p. 128; § 222, p. 176; § 1602, p. 967; § 1604, p. 975; § 1606, p. 977. Hirsch, In re, § 58, p. 65; § 2469, p. 1493; § 2490, p. 1504; § 2505, p. 1508; § 2511, p. 1511; § 2518, p. 1517; § 2519, p. 1517; § 2522, p. 1522; § 2533, p. 1526; § 2539, p. 1528; § 2541, p. 1531; § 2544, p. 1532; § 2583, p. 1549; . § 2595, p. 1553; § 2596, p. 1553; § 2602, p. 1555; § 2603, p. 1556; § 2603, p. 1557; § 2605, p. 1558; § 2608, p. 1560; § 2640, p. 1572; § 2647, p. 1574; § 2794, p. 1634. Hirschman, In re, § 636, p. 377; § 636, p. 378; § 638, p. 379; § 638, p. 380; § 639, p. 381; § 705, p. 424; § 710, p. 427; § 1880, p. 1168. Hiscock v. Mertens, § 1016, p. 566; § 1016, p. 567. Hiscock V. Varick Bank, § 756, p. 449; § 759, p. 450; § 760, p. 451; § 761, p. 453; § 761, p. 454; § 1112, p. 635; § 1116, p. 639; § 1117, p. 639; § 1129, p. 643; § 1140, p. 668; § 1500, p. 896; § 1896, p. 1185. Hitchcock, Counselman z'. table; of cases. 1991 Hitchcock, In re, § 2041, p. 1264; § 2054, p. 1276; § 2082, p. 1288; § 2087, p. 1291; § 2090, p. 1294; Hixon, In re, § 2457, p. 1487; § 2469, p. 1492; § 2602, p. 1555; § 2603, p. 1556; § 2608, p. 1559; § 2608, p. 1560; § 2613, p. 1563; § 2621, p. 1564; § 2635, p. 1570. Hoadley, In re, § 970, p 545; § 1130, p. 643. Hoadley, Leicester v. Hoag, In re, § 1047, p. 596; § 1088, p. 616 543; § 972, p. .95; § 1047, p. 680; § Hobbs, Carter v. Hobbs & Co., In re, § 1154, p. 680; § 1682, p. 1035; § 1165, p. 685; § 2011, p. 1248; § 2238, p. 1369. Hobbs, National Bank v. Hoffman, In re, § 2511, p. 1512. Hofifschlaeger v. Young Nap., § 46, p. 59; § 48, p. 61; § 50, p. 62; § 05, p. 91; § 109, p. 107; § 112, p. 107; § 112, p. 108; § 207, p. 171; § 235, p. 183; § 245, p. 188; § 245, p. 189; § 252, p. 191; § 257, p. 194; § 259, p. 195; § 340, p. 233; § 348, p. 235; § 373, p. 246; § 1189, p. 694; § 1190, p. 695; § 2122, p. 130S; § 2127, p. 1309. Hogan. Thornton v. Holbrook v. Coney, § 1955, p. 1218. Holden, In re, § 1006, p. 559; § 1018, p. 568; § 1041, p. 593; § 1047, p. 598. Holden v. Stratton, § 1003, p. 557; § 1015, p. 565; § 1016, p. 566; § 1016, p. 567; § 1022, p. 570; § 1041, p. 592; § 1042, p. 593; § 1109, p. 634; § 2867, p. 1683; § 2881, p. 1690; § 2905, p. 1704; § 2906, p. 1704; § 2911, p. 1706; § 2928, p. 1714; § 2930, p. 1715. Holgate, In re, § 2659, p. 1578. Hollander, Allen v. Hollenfeltz, In re, § 993, p. 553; § 1885, p. 1180; § 1997, p. 1236; § 2147, p. 1325; § 2148, p. 1326; § ^2148, p. 1327. Hollenshade, In re, § 2482, p. 1499, § 2508, p. 1509. Holloway, In re, § 1586, p. 960. Holman, In re, § 2448, p. 1485; § 2452, p. 1486; § 2457, p. 1487; § 2544, p. 1532; § 2544, p. 1533; §2549, p. 1536; § o«no ,. i^-«. .(; oftna ^ 1559. § 26O8, 2603, p. 1556; § 2608, p p. 1560; § 2609, p. 1561; § 2618, p. 1564; § 2619, p. 1564; § 2635, p. 1570. Holmes, In re, § 1485, p. 884; § 1486, p. 885; § 2875, p. 1687; § 2883, p. 1693; § 2888, p. 1696; § 2923, p. 1713; § 2942, p. 1720; § 2993, p. 1736; § 2997, p. 1736. Holstein, In re, § 2521, p. 1519. Holtz, In re, § 2544, p. 1532. Holzworth, Bower v. Home Discount Co., In re, § 451, p. 299; § 1678, p. 1034; § 1857, p. 1156; § 2330, p. 1414; § 2333, p. 1417; § 2839, p. 1658; § 2839, p. 1659; § 2860, p. 1669. Home Security Co., In re, § 1333, p. 781. Honea, Gottman v. Hook, Cotterell, S. P. v. Hooks V. Aldridge, § 158, p. 135; § 1581, p. 948; § 1584, p. 958, § 1603, p. 969; § 1637, p. 1010. Hooper, Strause v. Koover v. Haslage, § 1099, p. 624. Hoover, In re, § 1034, p. 587; § 1160, p. 683; § 2204, p. 1356; § 2813, p. 1646; § 2815, p. 16^8. Hopkins, In re, § 1032, p. 578; § 1034, p. 585; § 1034, p. 586; § 1089, p. 616; § 1100, p. 624; § 1273, p. 751; § 1447, p. 855; § 1463, p. 869. Horgan :'. Slattery, In re, § 1547, p. 924. Horner-Gaylord C. nett; § 399, p. 261 800, p. 467; § 121 o. V. Miller & Ben- .., ^ 401, p. 262; § ouu, p. -lui, s i.ij6, p. 720; § 1495, p. 893; § 1716, p. 1058; § 1746, p. 1071. Hornstein, In re, § 233, p. 182; § 234, p. 183; § 359, p. 240; § 362, p. 243; § 366, p. 244; § 368, p. 244; § 632, p. 376; § 1472, p. 876; § 1901, p. 1188; § 1902, p. 1189. kins V. Sanderson, § 545, p. 333; § 2, p. 1020; § 1690, p. 1042; § 1695, 1044; § 1727, p. 1064; § 1755, p. lyu^i, p. iisy. Horskins v. Sanderson, § 545, 1652, p. 1020; § 1690, p. 104 , „ 1044; § 1727, p. 1064; § 1755, p. f3; § 1891, p. 1183; § 1912, p. 1192. it, Roehm v. P 107 Hors Horton Hos o § norion v. Smith, § 114, p. 109. Hosmer v. Tififany, § 1216, p. 719. Hotel & Cafe Co., In re, § 141, p. 123; 143, p. 125. 1992 TABLE OF CASES. Houghton, Ex parte, § 653, p. 396; § ! 653, p. 398; § 656, p. 399; § 887, p. 505. Housberger, In re, § 1485, p. 884; § 1486, p. 885. House, In re, § 2508, p. 1510; § 3511, p. 1511; § 2511, p. 1512; § 2511, p. 1513. Houston V. Bank, § 1885, p. 1181, § 1965, p. 1223. Houston, In re, § 464, p. ^ 72, p. 306. Cole & Co., In re, i04; § 469, p. 756, Cunliff, § 1154, p. 680; § Kuddleston, In re, § 20, p. 37; § 523, 327; § 527, p. 329; § 528, p. 330; = fO .^ QQO- S 1 ^eo f. OJ.Q- S 17Q7 Howard p. 450. Howard >. . „ , - . - 1155, p. 681; § 1155, p. 682; § 2673, p. 1590; § 2674, p. 1591. Howard, In re, § 801, p. 468; § 843, p. 484; § 903, p. 517; § 904, p. 518; § 1533, p. 916; § 1547, p. 925; § 1550, p. 926; § 1563, p. 939; § 1573, p. 943; § 1755, p. 1073; § 1786, p. 1081; § 1881, p. 1169; § 1900,^. 1187. Howard & Co., Lockwood v. Howard Nat'l Bk. Ex parte, § 1173, p. 688. ' Howard, Westheimer r. Elowden, In re, § 2469, p. 1492; § 2522, p. 1520; § 2541, p. 1530; § 2635, p. 1571; § 2638, p. 1572; § 2639, p. 1572. Howe, Forbes v. Howe, Freeman r. Howe V. Noyes, § 2687, p. 1596, § 2707, p. 1603; § 2748, p. 1617. Howe Security Co., In re, § 1280, p. 757. Howland v. Carson, § 680, p. 413. Howland, In re, § 963, p. 539; § 997, p. 556; § 1228, p. 727; § 1263. p. 744; § 1489, p. 886. Howley Dresser Co., In re, § 958, p. 537. Hoy, In re, § 49, p. 62. Hoyt 7'. Free], § 1510, p. 902. Hoyt, In re, § 345, p. 234; § 877, p. 5( § 909. p. 519; § 910, p. 519; § 1055, 604; § 1074, p. 612; § 1089, p. 616; 2038. p. 1263. Hoyt & :\Iitchcri, In re, § 24. p. 39; 517, p. 323; § 858. p. 492; § 909, p. 51 § 910, p. 519; § 911, p. 519; § 911, 520; § 2038, p. 1248. Hubbard, In re, § 683, p. 414; § 683, 415; § 2758, p. 1621. P p. 330; § 543, p. 332; § 1582, p. 949; § 1797, p. 1092; § 1800, p. 1099; § 1807, p. 1101; § 1836, p. 1129; § 1901, p. 1188, § 1908, p. 1191; § 1910, p. 1191; § 1918, p. 1195. Hudson Clothing Co., In re, § § 446, p. 290; § 2990, p. 1735. Hudson, Hargardine-McKittrick Co. v. Hudson v. ^Mercantile National Bank, § 2508, p. 1509; § 2510, p. 1510; § 2511, p. 1511, § 2601, p. 1555. Hudson River W. P. Co., In 63, p. 69; 501; P- § 39; § 9; p- p- 1813, p. 1111 Huenergardt re, § rfuenergardt v. Brittain Dry Goods Co., § 1046, p. 594; § 1047, p. 598; § 1079, p. 612; § 1316, p. 773. Huff, Johnston v. Huffman, In re, § 1336, p. 783; § 1431, p. 848; § 1478, p. 881. Huffman, Jewett Bros. v. Hugill, In re, § 1885, p. 1178; § 1885, p. 1180. Hulen, Martin v. Hull, In re, § 1140, p. 670; § 1258, p. 741; § 1258. p. 742; § 1326, p. 777. Humbert Co., In re, § 425, p. 273; § 425; p. 274; § 427,, p. 275. Humphrey z'. Tatman, § 1144, p. 673; § 1236, p. 734; § 1236, p. 735; § 1237, p. 735; § 1238, p. 735; § 1281, p. 757; § , p. 735; § 1281, p. 757; § 1896, p. 1185. Humphrey, Tatman r'. Humphreys, Edinburg Coal Co. •;:'. Hunt, In re, § 200, p. 164; § 277. p. 203; § 1144, p. 675; § 1207, p. 700; § 1207. p. 703; § 1222, p. 724; § 1232, p. 733; § 1369, p. 795; § 1370, p. 797; § 1370, p. 798; § 1373, p. 802; § 1381. p. 80S; § 1.183, p. 810; § 1382, p. 810; § 1383. p. 811. Hunt Z'. Taylor, § 644, p. 384; § 2741, p. 1615. Huntley, Moody 7'. Hurlbutt, Hatch Co., In re 426; § 751, p. 446; § '767, 967, p. 540; § 968. p. 637. Hurlbutt, In re. § 2235, § 707, p. ..^i, p. i-r><, 5 lui, p. 455; § 540; § 968. p. 542; § 1115, p. p. 1367. •ley V. Devlin, § 1688, p. 1040; § Hurley 1689, p 1040. TABLE OF CASES. 1993 Hurst. In re, § 2369, p. 1435. Hu— "• T^— ^— ssey V. Dry Goods Co., § 446, p. 291' S 1343 "^ '?««• S 1'^J.Q r. 787- S ^v^., s ^343, p. 786; § 1343, p. 787; § 1395, p. 822; § 1396, p. 825; § 1402, p. 830; § 1777, p. 1078; § 3009, p. 1741. Hussey v. Judson, § 2687, p. 1596; § 2707, p. 1603. Hussey, Merrill v. Hussey, Palmer v. Hussey, Pulsifer v. Hussman, In re, § 2482, p. 1500; § 2505, p. 1508; § 2508, p. 1509; § 2511, p. 1513. p. 1509; § 2511 1513. Huston, In re, § 1154 , _.. ._, „ , p. 680; § 1156, p. 682; § 1156, p. 683; § 1164. p. 685; § 1682, p. 1035; § 1696, p. 1046 § 1682, p. 1035; § 1696, p. 1046. Hutchinson Co., In re, § 1617. p. 984; § 2014, p. 1250; § 2014, p. 1252. Hutchinson Co., Publishing Co. v. Hutchinson v. Le Roy, § 1883, p. 1170; § 1884, p. 1173; § 2875, p. 1687; § 2885, p. 1695; § 2918, p. 1709; § 2943, p. 1720. Hutchinson v. Otis, § 617, p. 366; § 622, p. 367; § 734, p. 439; § 766, p. 455; § 1884, p. 1176; § 2864, p. 1679; § 2869, p. 1683; § 2870, p. 1684; § 2884, p. 1695; § 2901, p. 1702; § 2902, p. 1703; § 2912, p. 1706; § 2923, p. 1713; § 2937, p. 1716; § 3013, p. 1744; § 3014. p. 1745. Hyde, Edmondson v. Hyman, In re, § 2480, p. 1497; § 2484, p. 1502. Hymes Buggy & Implement Co., In re, § 1443, p. 853; § 1585, p. 959; § 1638, p. 1010; § 1696, p. 1045; § 1797, p. 1093; § 1807, p. 1102. Ice Co., First Nat'l Bk. v. Ice Mfg. & Storage Co., In re, § 2183, p. 1343. Ice Lines, In re, § 81, p. 80; § 91. p. 87. Izall, In re, § 1850, p. 1149; § 2501, p. 1507; § 2511, p. 1513; § 2548, p. 1534; § 2549, p. 1536; § 2635, p. 1571; § 2652, p. 1576. Imperial Corp., In re, § 167, 430, p. 276; § 443, p. 283; ial Corp., In re, § 167, p. 141; § 430, p. 276; § 443, p. 283; § 546, p. 333. Tndelle, Cagliostro v. Independent Thread Co., In re, § 44, p. 58; § 167, p. 142; § 216, p. 174. Indianapolis, In re, § 236, p. 184. Ingalls Bros., In re, § 26, p. 41; § 720, p. 435, § 723, p. 436; § 921, p. 522. Ingles, Foster v. Ingram v. Wilson, § 1022, p. 570; § 1024, p. 572; § 1032, p. 578; § 1035, p. 590; § 1104, p. 631; § 1109, p. 634; § 1110, p. 634; § 2446, p. 1478; § 2866, p. 1682; § 2905, p. 1704; § 2911, p. 1706; § 2928, p. 1714; § 2930, p. 1715. Ins. Co., Clark v. Ins. Co., Spring v. Insley v. Garside, § 611, p. 362, § 611, p. 363. Inst., Darby v. Institution, Tififany v. Institution, Yeatman v. International Coal Min. Ci 97, p. 94; § 160, p. 138; 1008; § 1634, p. 1008. International Harvester Co. v. Lj'man, § 2720, p. 1607; § 2723, p. 1608; § 2724, p. 1608; § 2725, p. 1608. International Mercantile Agency, In re, § 92, p. 87; § 151, p. 132. Iowa Central Railway Co., Rand c'.- lowa Falls Mfg. Co., In re, § 2103, p. 1299; § 2103, p. 1300; § 2105, p. 1300. Iron and Suppl}- Co. v. Rolling Mill Co., § 146, p. 128; § 1314, p. 771; § 1320, p. 775; § 1324, p. 776; § 1370, p. 798. In re. § 1633, p. 798. Iron Works v. Xational Lead Co. 3021, p. 1747. Irvin, In re, § 1041. p. 593; § 1046, p. 594; § 1079, p. 612. Iselin, Clark v. Isham, Dyer v. Israel, Callahan v. Israel, Schuler v. Israel. In re, § 200, p. 164; § 205, p. 168. Ives, In re. § 43, p. 58; § 96, p. 93; § 318. p. 223; § 429, p. 276; § 431, p. 276; § 436, p. 279; § 443, p. 283; § 858, p. 491; § 1753, p. 1072; § 2893, p. . 1699. Jackman, Eau Claire Xat'l Bk. v. Jackson, Berry v. Jackson, cerry v. Jackson, In re, § 1019, p. 569; § 570; § 1024, p. 572; § 1032, 1022. S n. Kenney, In re, § 63, p. 68; § 751, p. 446; § 1429, p. 847; § 1429, p. 848; § 1451, p. 860; § 1462, p. 868; § 1473, p. 877; § 1478, p. 880; § 1479, p. 881; § 1481, p. 883; § 1489, p. 886; § 1805, p. 1100; § 1827, p. 1122; § 1901, p. 1188; § 1902, p. 1190; § 2239, p. 1370. Kenney, E. T., & Co., In re, § 574, p. 348; § 891, p. 509. Kentucky National Bank of Louisville v. Carley, § 2533, p. 1526; § 2596, p. 1553; § 2621, p. 1564; § 2627, p. 1567; § 2633, p. 1569. Kenyon, In re, § 2544, p. 1533. Keppel ZK Tiffin Sav. Bank, § 233, p. 182; § 723, p. 436; § 770, p. 456; § 1269, p. 748. rber, In re, § 1575, p. 944; § 1576, ). 944. rski. In re, §' 1653, p. 1024; § 1901, I. 1188; § 1905, p. 1190; § 1918, p. 195. ersten. In re, § 135, p. 119; § 138, p. 120; § 139, p. 122; § 169, p. 143; § 171, n. 145; § 250, p. 190; § 333, p. 226; 1439, p. 850; § 1461, p. 867; § 1472, 875; § 1602, p. 967; § 1609, p. 978; 625, p. 989; § 1634, p. 1008. K Ke F 1 Ker P- § P § 1 Kers ten z: Kersten, § 79, p. 79. TABLE OF CASES. 1997 971; 1626, 996; Kest, In re, § 1965, p. 1224. Ketcham, In re, § 1115, p. 637. Ketcham v. McNamara, § 1603, p. § 1603, p. 974; § 1625, p. 989; § p. 991; § 1628, p. 994; § 1629, p. § 1632, p. 1005. Ketchuni, In re, § 372, p. 246; § 373, p. 246; § 374, p. 247. Ketchum, Zininierman v. Key, English t'. Keyes v. McKirrow, § 902, p. 517; § 2388, p. 1444. Keyes, Manning v. Keyser v. Wessel, § 1986, p. 1230; § 1987, p. 1231. Keystone Coal Co., In re, § 30, p. -1 § 81, p. 80; § 84; p. 83; § 93, p. 87. Kibbourne & Clark, Northwest Fi ture Co. V. Kimball, In re, § 194, p. 159; § 614, 365; § 887, p. 507; § 147" 1901, p. 1189; § 1902 Kf ' '• 48; . p. 877; § p. 1190. yui, p. ii»y; § iyu:i, p. iiyu. tnball V. Rosenham Co., § 1296, ■61; § 1416, p. 839; § 1419, p. 841. Cimball 761; § 1416, p. 839; § 1419, p. 841 Kimball, Scammon v. 'lindt, In re, § 194, p. 159; § 586 § 1316, ~""- " """" - - o-viiiiuan, w-cammon v Kindt, In re, § 194, p. 159; § 586, p. 353; § 1316, p. 773; § 2275, p. 1391; § 2275', p. 1392. King, Boese v. King Co., In re, § 1189, p. 695; § 1190, p. 695; § 1284, p. 758; § 1296, p. 761; § 1393, p. 821; § 1403, p. 830; § 1419, p. 841; § 1421, p. 843. King, First National Bk. of Denver v. King, Keegan v. Zing, Keegan v. Ring, London King, Moran z p. 981; § 1954, re, § 630, p. 374. King V. Sullivan. § 354, p. 237. Kingman, In re, § 1614, p. 1218. Kingsley, In re, § 630, p. o.,. Kinmouth v. Braeutigam, § 1119. p. 640; § 1126, p. 642; § 1134, p. 646; § 1448, p. 857; § 1449, p. 859; § 1452, p. 861; § 1453, p. 862; § 1466, p. 872; § 2695, p. 1598; § 2699, p. 1600; § 2704, p. 1603; § 2706, p. 1603. Kinney, Kane Co. v. Kinyon, Brj'ant v. Kirby-Dennis Co., In re, § 1144, p. 673; § M54, p. 680; § 1155, p. 681; § 1161. p. 684; § 1162, p. 685. Kirkpatrick, In re, § 358, p. 240; § 2115 p. 1304; § 2116, p. 1304; § 2118, 1306; § 2119, p. 1307; § 2132, p. 1311 juo; s ;iiiy, p. idu<; § (iL6 p. 199; § 1157, p. 683; § 1437, p. 850. errill v. Hussey, § 974^ p. 546; § 1216, p. 720. lero, in re, § 'to, p. 59; § 139, p. 12~, § 243, p. 187; § 245, p. 188; § 257, p. 192; § 258, p. 194; § 261, p. 195; §269, p. 199; § 1157 " ««''• 8 1^^7 " «-" Me ' p. .-„. Merrill, Watson v. Merrow. In re, § 1436, p. 849; § 1489, p. 886; § 1489, p. 888; § 1492, p. 890. :erry v. Jones, § 150, p. 130; § 1586, p. . 961. Mersman, In re, § 1379, p. 804; § 1721, p. 1061; § 1722, p. 1061, § 1722, p. 1062. Mertens, Hiscock v. Mertens, In re, ^ 365, p. 244; § 636, p. 377; § 704, p. 424; § 715, p. 429; § 721, p. 435; § 756, p. 448; § 756, p. 449; § 760, p. 451; § 761, p. 453; § 761, p. 454; § 1006, p. 559; § M >^-^, s x.^.^„, p. ..^^, s 1230, p. 732. Metzger Toy & Novelty Co., In re, 1282, p. 757; § 1312, p. 769; § 1332, p. 781; § 1335, p. 782. Meuer, In re, § 2583, p. 1549; § 2586, p. 1551. Meyer, Chem. Nat. Bank v. Mej^er & Dickinson, In re, § 1173, p. 688; § 1180, p. 691; § 1186, p. 694. Meyer, In re, § 59, p. 65; § 61, p. 67; § 64, p. 69; § 64, p. 70; § 65, p. 71; § 171, p. 145; § 1287, p. 758; § 1311, p. 768; § 1421, p. 843; § 2969, p. 1729; § 2231, p. 1366; § 2253, p. 1374; § 2473, p. 1494; § 2484, p. 1502; § 2485, p. 1503. 2008 TABLE OF CASES. n2 2824, 963; 4; § 1, 2816, p. 1648; § 2821, p. 1649; § p. 1650; § 1591, p. 963; § 1593, p. • § 1634, p. 1009. Meyers v. Josephson, § 936, p. 1005, p. 558; § 1012, p. 562. Mfg. Co. V. Spoke & Nipple Co p. 115; § 177, p. 149. Michie, In re, § 1653, p. 1023; § 1653, p. a024; § 1666, p. 1032; § 1698, p. 1047; § 1698, p. 1048; § 1865, p. 1161; § 1865, p. 1162. Michel, In re, § 2078, p. 1287; § 2086, p. 1291. Milbury Co., In re, § 1602, p. 967; § 1634, p. 1008. Milgraum v. O.st, § 2587, p. 1551; § 2590, p. 1551; § 2592, p. 1552; § 2603, p. 1557; § 2604, p. 1557; § 2608, p. 1559; § 2608, p. 1560; § 2609, p. 1561; § 2851, p. 1663; § 2851, p. 1664; § 2858, p. 1669. Milk Co., In re, § 1128, p. 643; § 1134, p. 646; § 1134, p. 647; § 1377, p. 803; § 1845, p. 1144; § 1850, p. 1147; § 1851, p. 1149; § 1863, p. 1159. Miller & Bennett, Horner-Laylord Co. V. Miller & Brown, In re, § 1140, p. 669; § 1147, p. 677; § 1228, p. 727; § 1228, p. 731. Miller, Crosby v. Miller, Deland v. Miller Electrical ^Maintenance Co., In re, § 976, p. 547; § 977, p. 547. Miller, In re, § 98, p. 95; § 134, p. 118; § 138, p. 122; § 139, p. 122, § 141, p. 124; § 233, p. 182; § 267, p. 198; § 539, p. 332; § 799, p. 467; § 1088, p. 616; § 1196, p. 696; § 1819, p. 1115; § 1836, p. 1128; § 1838, p. 1130; § 1839, p. 1133; § 1901, p. 1188; § 1905, p. 1190; § 1913, p. 1193; § 2335, p. 1418; § 2336, p. 1418; § 2420, p. 1464; § 2420, p. 1465; § 2421, p. 1465; § 2469, p. 1492; § 2474, p. 1494; § 2553, p. 1539. Miller, Schuler v. Miller, Tuxbury v. Milliken, Bond v. Milliken, Stevenson v. Milliken-Tomlinson, Stevenson v. Milling Co., In re, § 13, p. 28; § 671, p. 407; § 1627, p. 992; § 1627, p. 993. Mills, Aurrol v. Mills, In re, § 2255, p. 1375; § 2256, p, 1376; § 2257, p. 1377. ; Milner, Bracken z'. Milw. Xat'l Bk., Doyle v. IMilw. Nat. Bk., Happke and Doyle v. Miner, In re, § 200, p. 16*; § 205, p. . 168; § 206, p. 170; § 224, p. 178; § 610, p. 362; § 798, p. 466; § 2541, p. 1529; § 2541, p. 1530; § 2542, p. 1531; § 2551, p. 1538; § 2845, p. 1662; § 2861, p. 1670. ]\Iingo Valley Creamery Ass'n, In re, § 113, p. 108; § 118, p. 110; § 185, p. 153. ^Mining Co., Rogers v. p. 305. xMining Co., Rogers v. Minon z\ Van Nostrand, § 465, . ^Mirror & Beveling Co., In re, § 707, p. 426. Mitchell, In re, § 655, p. 399; § 656, p. 399; § 992, p. 552; § 1160, p. 683; § 1954, p. 1218; § 1955, p. 1218; § 2045, p. 1267; § 2054, p. 1276; § 2059, p. 1280; § 2204, p. 1356. Mitchell 2'. McClure, § 1652, p. 1023. Mitchell, Manufacturing Co. v. Mitchell V. Mitchell, § 1061, p. 606; § 1207, p. 701; § 1222, p. 725; § 1258, p. 741; § 1261, p. 743; § 1730, p. 1064. _ , p. 674. w^>^...o, .II re, § 622, p. 367; § 723, p. 436; § 734, p. 440. 741; § 1261, p. 743; § 1730, Mitchell, Peck Lumber Mfg. Mitchell r. Winslow, § 1144, Moebins, In re, § 622, p. 367; 436; § 734, p. 440. [oench. In re, § 36, p. 55; § 87, p. 85; § 163, p. 139; § 167, p. 141; § 168, p. 142; § 170, ^p. 143; § 216, p. 174; § 97, p. 93; § 317, p. 222; § 320, p. 223. 97, p. 93; § 317, p. 222; § 320, p. 223. Mohr & Sons v. Mattox; § 1459, p. 865; § 1464, p. 871; § 1467, p. 872; § 1468, p. 873; § 1478, p. 880; § 1479, p. 882. Moir, Ames z'. Mollan z'. Torrance, § 95, p. 91. Monroe, In re, § 2761, p. 1622. Montague, In re, § 1379, p. 804. Montgomery v. McNicholas, § 444, p. 288. oody v. Cole, § 1750, p. 1072; § 1842, p. 1139; § 1843, p. 1141; § 1844, p. 1141; § 1851, p. 1151; § 1856, p. 1154; § 1859, p. 1157. idy z'. Huntley, § 2280, p. 1395. M Mooc TABLE OF CASES. 2009 380, p. ■3; § 893; Moody, In re, § 356, p. 239; § 251; § 529, p. 330; § 1316, p. , „ 1409, p. 836; § 1410, p. 836; § 1410, p. 837; § 1494, p. 892; f -" § 1496, p. 893; § 1494, p. ■.^^, ^ ^.^«, p. 895; § 1582, p. 949; § 1653, p. 1024; ■ § 1797, p. 1096; § 1820, p. 1117; § 1873, p. 1163; § 1885, p. 1180; § 1888, p. 1181; § 1889, p. 1182;" § 1918, p. 1195; § 2872, p. 1685; § 2874, p. 1687. J\Ioody V. Port Clyde Development Co., § 1629, p. 996. core, Clevenger v. oore v. Green, § 46, p. 59; § 1154, p. 681; § 1155, p. 681; § 1155, p. 682; § 1216, p. 720; § 1266, p. 747; § 1267, p. 747; § 1267, p. 748; § 1269, p. 749; '^ 1441, p. 851; § 1441, p. 853; § 1446, 855; § 1797, p. 1097; § 1885, p. 117 § 1897, p. 1186; § 2885, p. 1695. M M p. 1097; § 1885, p. 1177; 8 ±ovi, p. ±i86; § 2885, p. 1695 Moore, v. Hinds, § 1690, p. 1042 Moore, Hinds v. Moore, In re, § 683, p. 414; § 683, p. 415; § 1032, p. 579; § 1034, p. 586; § 1037, p. 591; § 1041, p. 593; § 1047, p. 598; § 1104, p. 628; § 1489, p. 888; § 1822, p. 1119; § 1885, p. 1178; § 1885, p. 1180; § 2482, p. 1499; § 2508, p. 1509; § 2731, p. 1611. Morales, In re, § 232, p. 181; § 707, p. 426; § 710, p. 427. Moran v. King, § 1034, p. 586; § 1063, p. 607; § 1070, p. 610. Morey Mercantile Co. v. Schiffer, § 1296, p. 761; § 1418, p. 840; § 1419, p. 841; § 1427, p. 846. Morgan, Cookingham z'. Morgan, In re, § 2544, p. 1532; § 2549, p. 1535; § 2613, p. 1563; § 2615, p. 1564. ^Morgan, Jewclrj^ Co., Des IMoines Bank z'. Morgan v. Nat'l Bk;, § 1140, p. 668; § 1269, p. 748; § 1314, p. 771; § 1370, p. 796; § 1885, '^ -""" " p. 1695. 628, ^. ...,, ^ .^^5, p. 1178; § 1896, p 1185; § 2885, p. 1695. Morgan v. Wordell, § 630, p. 374; § 643, p. 383; § 645, p. 387; § 1170, p. 687: § 1174, p. 689; § 1177, p. 689; § 1177, p. 690; § 1179, p. 690. Morris Arc Lamp Co., In re, § 976, p. 547; § 977, p. 547. Morris, In re, § 348, p. 235; § 352, p. 236; § 417, p. 269; § 1504, p. 900; § 2045, p. 1267; § 2089, p. 1294; § 2098, p. 1298; § 2835, p. 1442. Morris Mercantile Co., Burnett v. Morrison, In re, § 1047, p. 598; § 2794, p. 1634; § 2794, p. 1635; § 2797, p. 1641; § 2798, p. 1642; § 2799, p. 1642. Morrow, v. Dudley & Co., § 846, p. 488; § 1690, p. 1042 S iu;/u, p. iu-t„. orrovv & Co. John, Ii p. 773. n re, § 1315, Morrow, In re. § 1423, p. 844; § 1425, p. 845; § 2490, p. 1504; § 2511, p. 1511; 2522, p. 1522. rse V. Godfrey, § 444, p. Mo*''^'^ /?r Rncrprc 7) Ts^niifn P- p. 283. Morse v. Uodtrey, § 444, p. 2: orse & Rogers v. Kaufma o. 1617: S 2754.' o. 1619: ;e & Rogers v. Kaufman, § 2748, ^. 1617; § 2754,' p. 1619; § 2783, p. 1628; § 2784, p. 1629. Mors 1628; § 2784, p. 1629. Morse, White Mountain Paper Co. v. jMorss V. Franklin Coal Co., § 404, p. 263; § 408, p. 265. Alorton Boarding Siables, In re, § 94, p. 88. Morton, In re, § 887, p. 508. Morton Trust Co., Gove t'. Moses V. Pond, § 2248, p. 1373; § 2250, p. 1373. Mosier, In re, § 972, p. 544; § 972, p. 545; § 1047, p. 596; § 2236; p. 1367; § 2238, p. 1369; § 2238, p. 1370; § 2254, p. 1374; § 2258, p. 1384; § 2269, p. 1387; § 2271, p. 1390. Moss, Equitable Loan & Security Co. v. j\Iotor Vehicle Co. t'. Oak Leather '^- § 260, p. 195; § p. 198; § 1352 '; § 1353, p. 791. ott itor Vehicle Co Co., § 174, p. 147 262, p. 196; § 267 790; § 1353, p. 791. ott 7'. Wissler Mfg. Co., § 2205. p. 1357. ott V. Wissler Min. Co.. § 11*54, p. 680; § 1155, p. 681; § 1159, p. 683; § 1161, p. 684. Mottley, Smith z\ Mottley, Smith z\ Moulton z'. Coburn, § 201, p. 165; 202, p. 165; § 211, p. 172; § 212, 172; § 221, p. 176; § 222, p. 176; 224, p. 178. Moyer, In re, § 135, p. 118; § 1336, 783. Moyses, Hanover, Nat'l Bk. v. Moyses, National Bank v. P- 2010 TABLE OF CASES. Mt. ^lorris Bk., Upson z\ Mudd, In re, § 2488, p. 1503; § 2499, p. 1506; § 2595, p. 1552; § 2596, p. 1553; § 2602, p. 1555; § 2603, p. 1556; § 2603, p. 1557; § 2621, p. 1564. Mueller v. Bruss, § 1208, p. 705; § 1217, p. 722; § 1653, p. 1024; § 1687, p. 1038; § 1731, 'p. 1065; § 1732, p. 1065. Mueller v. Goerlitz, § 2761, p.' 1622; § 2768, p. 1625. Mueller, In re, § 2864, p. 1680; § 2867, p. 1683; § 2879, p. 1689; § 2881, p. 1690; § 2887, p. 1696; § 2901, p. 1702; § 2912, p. 1706; § 2918, p. :i7]0. Mueller v. Nugent, § 523, p. 327; § 540, p. 332; § 1215, p. 718; § 1653, p. 1024; § 1819, p. 1115; § 1822, p. 1119; ^ 1836, p. 1129; § 1863, p. 1159; § 1916, p. 1194; § 2881, p. 1690; § 2942, p. 1720. Muhlenberg Courtty v. Dyer; § 2921., p. 1711. Muhlhauser Co., In re, § 1898, p. 1187; § 1959, p. 1220; § 2103, p. :• >99; § 2011, p. 1249; § 2140, p. 1319; § 2186, p. 1344; § 2200, p. 1358. Mullaney, Schellenberg v. Mullen, In re, § 548, p. 334; § 1022, p. 570; § 1041, p. 592; § 1042, p. 593; § 1047, p. 597; j; .11^0, p. 668; § 1207, p. 704; § 1208, p. ':u6; § 1215, p. 718; § 1216, p. 719; S ; S--"!. p. 1660. MuUer, In re, § 22, p. 38; § 214, p. 173. Muller, Small v. Mulligan, In re, § 1882, p. 1168; § 1883, p. 1169; § 1883, p. 1170; § 1883, p. 1171; § 1883, p. 1172; § 1884, p. 1173; § 1884,, p. 1176. Mulock V. Byrnes, § 2785, p. 1630. Muncie Pulp Co., In re, § 392, p. 256; § 1150, p. 678; § 1673, p. 1033; § 1805, p. 1100; § 1807, p. 1108; § 1812, p. 1111; § 1818, p. 1114; § 1821, p. 1118; § 1822, p. 1119; § 1823, p. 1120; § 1824, p. 1120; § 1863, p. 1159. Mundle, In re, § 1267, p. 747; § 1807, p. 1107; § 1811. p. 1110; § 1813, p. 1111; § 1820, p. 1117; § 1876, p. 1165. Munroe v. Dewey, § 972, p. 545; § 975, p. 546; § 1265, p. 745. Murdock, In re, § 2508, p. 1509. ^lurgatroyd, Dusar f. ^lurphj' Barbee Shoe Co., In re, § 1169, p. 687; § 1879, p. 1166; § 1879, p. 1167. :\Iurphe3% In re, § 531, p. 330; § 548, p. 334. Murray, In re, § 72, p. 77; § 74, p. 78; § 310, p. 220. Murray v. Joseph, § 1750, p. 1072; § 1775, p. 1077; § 1850, p. 1149. Muskoka Lumber Co., In re, § 718, p. 434; § 723, p. 436; § 725, p. 437; § 726, p. 437; § 2761, p. 1622. Musliner, Frank z\ Mussey, In re, § 2468, p. 1491; § 2469, p. 1492; § 2662, p. 1584; § 2663, p. 1585; § 2665, p. 1587. Mutual Life Ins. Co., Griffin v. Mut. Life Ins. Co. of X. Y., Griffin v. Mutual Mercantile Agency, In re, § 92, p. 87; § 94, p. 90; § 167, p. 141; § ,319, p. 223; § 2156, p. 1331. ]\Iutual Reserve Fund Life Ass'n v. Beatty, § 2714, p. 1606; § 2715, p. 1606; § 2718, p. 1607. Myers & Charni, In re, § 617, p! 366; § 1180, p. 691; § 1180, p. 692. ]\Iyers, In re, § 1047, p. 596; § 1047, p. 597; § 1885, p. 1178; § 188.5, p. 1179; § 2204, p. 1356. ^Ij^ers, Plummer v. Nachman, In re, § 1557, p. 932; § 1558, p. 934; § 1559, p.- 937; § 1561, p. 938. Nash, Peterson v. Nassau, In re, § 1366, p. 794; § 1410, p. 837; § 1412, p. 838. Nathan, Norcross v. Nathanson, In re, § 2613, p. 1563; § 2615, p. 1564; § 2621, p. 1564. National Bank v. Arend. § 159, p. 137. National Bank, Conboy r. National Bank z: Gettinger, § 1331, p. 779. National Bank, Grant f. National Bank v. Hobbs. § 1453, p. 862; § 1582, p. 949; § 1591, p. 963; § 1593, p. 964; § 1750, p. 1072. National Bank v. Moses, § 1455, p. 863; § 1489, p. 888; § 1582, p. 949; § 1593, p. 964. TABLE OF CASES. 2011 National Bank f. ]\Ioyses, § 43, p. 58; § 73, p. 77; § 102, p. 102; § 164, p. 139; § 2432, p. 1470. National Bank of Canton, In re, § s^ational Bank of Canton, In 1258, p. 742; § 1261, p. 743. National Bank of Chattanooga ?7. R^ Iron Co., § 1207, p. 700. National Bank, Sandusky v. National Bank v. Sawyer, § 1510, 902. ome P- National Bk., In re, § 1212, p. 710 1214, p. 715 '' '""" "'" 1258, p. 742; § 1896, I. 1186; § 2900, p. 1702; § 2901, 702; § 2923, p. 1713. Nat'l Bk., i^licklinger v. Nat'l Bk., Laundy v. Nat'l Bk., ]\Iorgan v. Nat'l Bk., Steinhardt v. Nat'l Bk., Siiffel v. Nat'l Bk., Zartman v. Nat'l Bedstead Mfg. Co., Singer v. National Lead Co., Columbia Iron Works V. National Lead Co., Iron Works v. National Mercantile Agency, In re, § 395, p. 258; § 1709, p. 1056; § 2011, p. 1247; § 2014, p. 1250. National Valve Co., In re, § 1238, p. 735; § 1371, p. 800; § 1384, p. 813. Nave-McCord Co., Stevens v. Nave, Norcross v. Naylor Mfg. Co., In re, § 1149, § 1228, p. 731. Neal V. Clark, § 2788, p. 1632. Neal, Ex parte, § 641, p. 382. Neal, In re, § 1052, p. 603; 604; § 1054, p. 604; 8 10.'^.'; 1066, p. 608; § 1070 p. 610; § 1095, p. 621 Ncasmith, In re, § 404, p. 263; § 405, p. 264; § 408, p. 265; § 411, p. 266; § 2894, p. 1699; § 2894 - ^~"" p. 678; :, p. 604; § 1055, p. 604; § «; § 1070, p. 609; § 1071, 5, p. 621, p. 1700. 2894, p. 1699; § 2894, p. 1' Neely, In re, § 1488, p. 885; § 1585, p. 958; § 1646, p. 1012; § 1650, p. 1015; § 1874, p. 1164; § 1882, p. 1168; § 2415, p. 1460; § 2466, p. 1490; § 2482, p. 1499; § 2541, p. 1530; § 2552, p. 1538; § 2558, p.l540; § 2571, p. 1544; § 2572, p. 1546; § 2573, p. 1546; § 2574, p. 1547; § 2576, p. 1547. Neil, Union Nat'l Bk. v. Neimann, In re, § 798, p. 467; § 967, p. 540; § 9C8, p. 542; § 1047, p. 596. Nelson, In re, § 252, p. 191; § 257, p. 192; § 277, p. 202; § 280, p. 204; § 1047, p. 595; § 1705, p. 1052. Nelson, Powers Dry Goods Co. v. Nelson, Wilson Bros. v. Nesbit, Blake v. Neustadter v. Chicago Dry Goods Co., § 213, p. 173; § 237, p. 185; § 322, p. 224; § 419, p. 271; § 420, p. 271; § 444, p. 285. New, In re, § 645, p. 387; § 2741, p. 1615. Newberry, In re, § 1653, p. 1024. Newell, In re, § 683, p. 415. New England Piano Co., In re, § 533, p. 331; § 1489, p. 888; § 1796, p. 1089; § 1797, p. 1093; § 1885, p. 1177; § 1965, p. 1224; § 1971, p. 1226; § 1975-, p. 1228. Newland v. Zodikow, § 1735, p. 1068; § 1761, p. 1074. Newton, In re, § 99, p. 96; § 100, p. 97; § 870, p. 498; § 1167, p. 686; § 2300, p. 1401; § 2302, p. 1402; § 2303, p. 1402; § 2304, p. 1402; § 2309, p. 1403; § 2310, p. 1404; § 2314, p. 1405. New York Building & Loan Banking Co., In re, § 94, p. 89. New York Co. Nat'l Bk. v. Massey, § 1173, p. 688; § 1179, p. 690; § 1180, p. 691; § 1297, p. 762; § 1329, p. 778; § 1341, p. 785. New York Economical Printing Co., In re, § 1144, p. 673; § 1235, p. 734; § 2993, p. 1736; § 2995, p. 1737; § 2997, p. 1737. New York Exch. Bk., Pond Trustee v. New York Water Co., In re, § 83, p. 82. New York Wheel Works, In re, § 1864, p. 1159; § 1865, p. 1161. Niagara Contracting Co., In re, § 84, p. 83; § 90, p. 86; § 433, p. 277; § 436, p. 279. Nice & Schreiber, In re, § 863, p. 496; § 869, p. 498. Nicholas, In re, § 1144, p. 675; § 1146, p. 677; § 1295, p. 760; § 1320, p. 774. Nichols & Lemon, Thornton v. 2012 N TABLE OF CASES. p. 373; § 798, Co. P- ; § N ickerson, In re, § 627 p. 466. Ninan, In re, § 2045, p. 1267; § 2047 p. 1270. Ximnio, Richter z\ Xixon V. Fidelity & Deposit 348, p. 235; § 351, p. 236. Xixon, In re, § 348, p. 235; § 355, 239; § 416, p. 268; § 1653, p. 1024 1669, p. 1032. X. J. Fire Ins. Co., Fuller v. Xoel, In re, § 716, p. 429; § 717, p. 430; § 717, p. 431; § 717, p. 432; § 717, p. 433; § 999, p. 556; § 1140, p. 668; § 1212, p. 711; § 1222, p. 725; § 1248, p. 740; § 1265, p. 746; § 1314, p. 771; § 1320, p. 775; § 1582, p. 949; § 1698, p. 1048; § 1796, p. 1090; § 1797, p. 1C92; § 1807, p. 1105; § 1809, p. 1109; § 1811, p. 1109; § 1811, p. 1110; § 1816,. p. 1113; § 1885, p. 1178; § 1885, p. 1180; § 1889, p. 1183; § 1980, p. 1229. orcross. In re, § 205, p. 167; § 233, p. 182; § 1346, p. 788. Xorcross z\ Xathan, § 24, p. 39; § 1207, p. 700; § 1653, p. 1024. Xorcross v. Xave, § 2960, p. 1725; § 2981, p. 1733; § 2984, p. 1733. Xorden, Barnes Mfg. Co. v. Norfolk & W. Ry. Co. v. Graham, § 628, p. 374; § 719, p. 435; § 733, p. 439; § 1170, p. 687; § 1177, p. 690; § 1178, p. 690. Norlin, Dodge v. Xorrington v. Wright, § 687, p. 417. Xorseworthy, Ray v. Xorth Carolina Car Co,, In re, § 20, p. 37; § 1883, p. 1169; § 1883, p. 1171; § 2135, p. 1318; § 2183, p. 1342; § 2183, p. 1343; § 2184, p. 1344. Xorth State Lumber Co., Dressel v. Xorth, Trustee v. Taylor, § 1216, p. 721. Xorthern Counties of Eng. Fire Ins. Co., In re, § 674, p. 412. Xorthern Pac. Ry. Co., Eitch, v. Xorthrop, In re, § 527, p. 329; § 528, p. 330; § 1473, p. 877; § 1479, p. 881; § 1836, p. 1129; § 1901, p. 1188; § 1902, p. 1190. Northwest Fixture Co. v. Kilbourne & Clark. S 708. o. 426. , uritivvesi x-ixLure v^u Clark, § 708, p. 426. Xorton z\ Boyd, § 1679, p. 1034. Xorton, In re, § 312, p. 220. Xounnan, In re, § 672, p. 407. Xovak, In re, § 215, p. 174; § 227, p. 179; § 798, p. 466; § 1047, p. 596; § 1197, p. 697. Xovelty Co., Rumsey v. Xoyes Bros., In re, § 756, p. 449; § 757, p. 450; § 2861, p. 1671; § 3009, p. 1741. Xoyes, Howe i'. Xoyses, In re, § 2054, p. 1276. Nugent, In re, § 541, p. 332; § 1822, p. 1119; § 1836, p. 1129. Xugent, Mueller v. Nunn, In re, § 1048, p. 599; § 1051, p. 603; § 1070, p. 609; § 1078, p. 612; § 1087, p. 615. Xutting v. Ashcroft, § 59, p. 67. Xye, In re, § 1047, p. 596. X. Y. Life Ins. Co., Gould v. X. Y. & N. J. Ice Lines, In re. § 82, p. 81; § 83, p. 82, § 87, p. 85, § 94, p. 90. X. Y. & Westch. Water Co., In re, § 81, p. 80; § 83, p. 83; § 85, p. 84; § 87, p. 85; § 94, p. 89. Oak Leather Co., Motor Vehicle po. v. O'Beirne, Bullis z: O'Brien, Philpott z: Oconee Mill Co., In re, § 1154, p. 681; § 2202, p. 1353. O'Connell, In re, § 2045, p. 1266; § 2092, p. 1295; § 2304, p. 1402; § 2881, p. 1691; § 2929, p. 1715; § 2931, p. 1715; § 2942, p. 1720; § 2948, p. 1722; § 2950, p. 1723; § 2951, p. 1723; § 2952, p. 1723; § 2954, p. 1724; § 2955, p. 1724; ■§ 2962, p. 1726; § 3002, p. 1738; § 3007, p. 1740. O i/.3s; 8 6VUi, p. it-i O'Connor, Carpenter Bros. z'. O'Connor, In re, § 1036, p. 590; § 1169, p. 687; § 1464, p. 871; § 1879, p. 1166; § 2842, p. 1661; § 2861, p. 1670. I'Dell V. Boyden, § 964, p. 539; § 967, p. 540; § 968, p. 542; § 969, p. 542; § 1674, p. 1033; § 1796, p. 1091; § 1797, p. 1093; § 1798, p. 1098; § 1805, p. 1100; § 1807, p. 1102; § 1807, p. 1105; § 1807, p. 1107; § 1812, p. 1111; § 1822, p. 1120; § 1835, p. 1128; § 1885, p. 1178; § 1885, p. 1179; § 1901, p. TABLE OF CASKS. 2013 643, 766; 1188; § 2864, p. 1679; § 2870, p. 1684; § 2875, p. 1687; § 2876, p. 1688; § 2890, p. 1697. Odell V. Wootten, § 1511, p. 902. Oderkirk, In re, § 1089, p. 616. O'Donnell, In re, § 122, p. Ill; § p. 383; § 644, p. 385; § 1303, p. § 1310, p. 767. O'Dwyer, Chatfield v. O'Fallon, In re, § 1954, p. 1218. Off V. Hakes, § 1283, p. 758; § 1303, 765; § 1396, p. 825; § 1407, p. 834; § 1690, p. 1041; § 1725, p. 1063; § 1728, p. 1064. O'Gara, In re, § 2521, p. 1520; § 2648, p. 1575; § 2649, p. 1575. Ogilvie, Biele v. Ogilvie, In re, § 1022, p. 570; § 1024, p. 574; § 1032, p. 578; § 1034, p. 585; § 1041, p. 592; § 1048, p. 599; § 1077, p. P- p. 58 § 1041, p. 592; § 1048, p. 599; § 1077, p. 612; § 1095, p. 620; § 1104, p. 628; § 1106, p. 632. Ogles, In re, § 136, p. 119; § 250, p. 190; § 573, p. 348; § 1819, p. 1115; § 1840, p. 1134; § 1842, p. 1140; § 1845, p. 1142; § 2018, p. 1254. O'Gorman, Burns v. Oil Well Supply Co. v. Hall, § 404. p. 263; § 405, p. 264. Old Town Bank, The v. McCormick, § 1625, p. 989; § 1627, p. 991; § 1630, p. 998; § 1630, p. 1000. Oleson, Christopherson v. Oleson, In re, § 1025, p. 575; § 1047, p. 595; § 2806, p. 1644; § 2815, p. 1647; § 2815, p. 1648; § 2824, p. 1650. Olewine, In re, § 967, p. 541; § 968, p. 542. Oliver v. Hilgers, § 1736, p. 1068. Oliver, In re, § 539, p. 332; § 993, p. 553; § 1150, p. 679; § 1427, p. 846; § 1819, p. 1115; § 1836, p. 1128; § 1837, p. 1130; § 1838, p. 1130; § 1883, p. 1169; § 1883, p. 1172; § 2806, p. 1644; § 2815, p. 1647; § 2816, p. 1648; § 2822, p. 1649; § 2823, p. 1650. Olman, In re, § 2387, p. 1443. Olney v. Tanner, § 2702, p. 1601. Omsley v. Cobin, § 2785, p. 1630. O'Neal, Ex parte, § 2330, p. 1414; § 2330, p. 1416; § 2332, p. 1417; § 2343. p. 1419; § 2967, p. 1728; § 3019, p. 1746. Oppenheimer, In re, § 24, p. 39; § 770, p. 456; § 771, p. 458; § 772, p. 459; § 2011, p. 1248; § 2041, p. 1264; § 2044, p. 1266; § 2045, p. 1267; § 2047, p. 1270; § 2048, p. 1272; § 2054, p. 1277. Orcutt Co. V. Green, § 26, p. 40; § 729, p. 438; § 921, p. 522. Order of the Red Cross, Foxhever v. Orem, Devries v. Oriental Society, In re, § 94, p. 88. Ornian, In re, § 563, p. 340; § 563, p. 341; § 858, p. 492. Osborn v. Fender, § 1631, p. 1003. Osborne, In re, § 1047, p. 597; § 1047, p. 598; § 1095, p. 619; § 1095, p. 621; § 2535, p. 1526; § 2596, p. 1554; § 2612, p. 1562; § 2613, p. 1563; § 2615, p. 1564; § 2654, p. 1577; § 2918, p. 1709. Osborne v. Perkins, § 2502, p. 1507; § 2521, p. 1519; § 2612, p. 1562; § 2634, p. 1569; § 2918, p. 1709; § 3002, p. 1738; § 3009, p. 1741. Osnian v. Galbraith Admr., § 072, p. 544; § 972, p. 545.. Ost, Milgraum v. Ostrander, In re, § 2759, p. 1621. Otis, Hutchinson v. Ott, Doroshaw v. Ott V. Doroshow, § 1750, p. 1072. Ott, In re, § 2154, p. 1330. Otto, In re, § 2521, p. 1520; § 2541, p. 1529. Ottoman, In re, § 2794, p. 1635. Overman, Cobb v. Overstreet, In re, § 1026, p. 577; § 1047, p. 597; § 1087, p. 615, Overton, In re, § 875, p. 500. Owen V. Brown, § 142, p. 125; § 143, p. 125; § 143, p. 126; § 1448, p. 857; § 1451, p. 861; § 1453, p. 862; § 1455. p. 863; § 1458, p. 865. Owens V. Bruce, § 1959, p. 1220. Owings, In re, § 29, p. 45; § 33, p. 53; § 1038, p. 592; § 1039, p. 592; § 1705, p. 1051; § 1706, p. 1054; § 1707, p. 1054. Oxford Iron Co. v. Slafter, § 131, p. 114. Oyster & Fish Co., In re, § 94, p. 88. Pacific Coast Warehouse Co., In re, § 94, p. 89. 2014 TABLE OF CASES. L618: Pa P Packer v. Whit, § 2921, p. 1712. Packer v. Whittier, § 2748, p. 1 2749, p. 1618. Padgett V. Lawrence, § 114, p. 109. Page, Blanche, In re, § 1840, p. 1134. Page, Dokken v. Page V. Edmunds, § 964, p. 539; § 967, p. 540; § 968, p. 542; § 1022, p. 570; § 1043, p. 594. age V. Rogers, § 2041, p. 1264; § 2045, p. 1267; § 2046, p. 1268; § 20-^8, p. 1271; § 2054, p. 1276. Page, Rogers v. Paige, In re, § 26, p. 41; § 327, p. 225; § 333, p. 227. Paine v. Caldwell, § 1569, p. 942. Paine, In re, § 23, p. 38; § 723, p. 436; § 908, p. 519; § 1791, p. 1083; § 2300, p. 1401; § 2301, p. 1402; § 2303, p. 1402; § 2305, p. 1402; § 2306, p. 1403; § 2307, p. 1403; § 2312, p. 1404; § 2311, p. 1404. Palmer v. Husse}% § 2785, p. 1630. Palmer, In re, § 2481, p. 1498; § 2814, p. 1647. Pancoast, In re, §.614, p. 365. Paper Co. v. Goembel, § 1352, p. 790; 115. Parsons z: Topliff, § 132, p. Pattee, In re, § 1614, p. 980. Patten v. Carley, § 1489, p. 886; § 1489, p. 888; § 1640, p. 1011; § 1645, p. 1012. • 1012. • Patterson, In re, § 672, p. 407; § 2533, p. 1526; § 2596, p. 1553; § 2597, p. 1554; § 2608, p. 1558; § 2620, p. 1564, Patterson & Co., In re § 1169, p. 687; § 1879, p. 1165. Patterson, Shultz v. Pattson, Shesler v. Patty-Joiner Co. v. Cummins, § p. 982; § 1629, p. 997; § 16c § 1632, p. 1006; § 1634, p. Pauly, In re, § 585, p. 352; § 624, p. 368; § 1614, p. 980; § 1614, p. 981. n^i-r^-r, r, Q/-r.ff S 1 f;9J. r. 007- S 1774 1206, aper v^o. v. ijoemoei, § 1409, p. 835; § 1409, p. 836 Paper Co., In re, § 1147, p. 677 p. 699. Paret v. Ticknor, § 2395, p. 1448. Parish, In re, § 1130, p. 643; § 2523, p. 1523; § 2596, p. 1553; § 2603, p. 1556. Park, In re, § 1076, p. 612; § 1098, p. 623; § 1099, p. 624. Parker v Black, § 1314, p. 771; § 1385, p. 815; § 1399, p. 827; § 1405, p. 832; § 1725, p. 1063; § 1729, p. 1064. Parker, In re, § 1047, p. 595; § 201], p. 1249; § 2421, p. 1465; § 2490, p. 1504. Parker, Sheldon t'. Parmelee Library, In re, § 94, p. 89. Parmenter Mfg. Co. v. Hamilton, § 1625, p. 989; § 1626, p. 991; § 1628, p. 996; § 1629, p. 997; § 1631, p. 1003. Parmenter Mfg. Co. v. Stoever, § 135, p. 119; § 143, p. 125; § 143, p. 126. Parr, Wilson v. Parschen, In re, § 99, p. 96; § 100, p. 97; § 1025, p. 576; § 1167, p. 686. Parsons, Smith v. 1615, p. 1005; 1009. 368; § 1614, p. y»u; § , ^. Paxton V. Scott, § 1524, p. 907; § 1774, p. 1077; § 2508, p. 1509; § 2415, p. 1459; § 2647, p. 1574; § 2656, p. 1578; § 2668, p. 1588; § 2673, p. 1590. Payne, In re, § 2078, p. 1287. Peacock, In re, § 2469, p. 1492; § 2470. p. 1493; § 2595, p. 1553; § 2603, p. 1555. Pearlman, Title & Trust Co. v. Pearson, In re, § 1317, p. 774; § 1325, p. 776; § 1837, p. 1130; § 1838, p. 1130; § 1839, p. 1132. Pease, In re, § 105, p. 104; § 109, p. 107; § 112, p. 108; § 113, p. 108; § 177, p. 148; § 682, p. 413; § 682, p. 413; § 682, p. 414; § 951, p. 535; § 1126, p. 642; § 1128, p. 643; § 1133, p. 644; § 1133, p. 646; § 1135, p. 648; § 1216, p. 721; § 1282, p. 757; § 1314, p. 771; § 1410, D. 836; § 1448. p. 857; § p. 1377. Peasley, In re, § 1140, p. 670; § 1147, p. 677; § 1505, p. 901. Peck V. Connell, § 1405, p. 832, § 1478, p. 881; § 1764, p. 1075. Peck, In re, § 2535, p. "'"''«• ^ 2591, p. 1552; § 2596, 2602, p. 1555; §■ 2603, p- 1526; 15; 1555; §. 2603, p. 155(j; § , p. 1558; § 2608, p. 1559; § 2608, p. 1560; § 2608, n. 1.161: S 2614. , „ ju3, p. 1561; § 2614, p. 1563; § 2621, p. 1565; § 2627, p. 1567. Peck V. Jenness, § 1582, p. 950: TABI ;j Txr^ „K :., „. 1U>_C \^U., Uai LUll JJ1U3. ;pect Worsted IMills, In re, § 794, 465. Protter. Bogen & Trumme Providence Washington Ins. Co., Tefft Publishing Co. v. Hutchinson Co., § 1585. p. 958; § 1652, p. 1020; § 1668, p. 1032; § 1796, p. 1089. Pullen V. Hillman, § 1627, p. 993. Pulsifer v. Hussey, § 1003, p. 557; § 1004. p. 558; § 1005, p. 558; § 1006, p. 2 Rem B-52 559; § 1006, p. 560; § 1014, p. 564; § 1015, p. 565; § 1016, p. 566. Pursell, In re, § 1527, p. 913; § 1547, p. 926. Purvine, In re, § 539, p. 332; § 1819, p. 1115; § 1833, p. 1127; § 1836, p. 1128; § 1840, p. 1134; § 1842, p. 1137; § 1843, p. 1141; § 1848, p. 1145; § 1856, p. 1154; § 1856, p. 1155; § 2881, p. 1690; § 2938, p. 1716; § 2942, p. 1720. Putman, Knott v. Quackenbush, In re, § 2482, p. 1499; § 2482, p. 1501; § 2497, p. 1506; § 2499, p. 1506; § 2508, p. 1509; § 2508, p. 1510; § 2510, p. 1510; § 2511, p. 1511; § 2511, p. 1512; § 2514, p. 1514; § 2: S 2596. o. 1553: § 2605, )ii, p. ioia; 8 i;oj.4, p. j-d ..595, p. 1552; § 2596, p. 1553; § 2605, p. 1558; § 2608, p. 1559; § 26C p. 1559; § 2608, " 2627 In re, 599. 2229, p. 1364. 1560; § 2609, p. 1561; § 2627, p. 1567. Quimby Freight Forwarding Co., In re, § 85, p. 84; § 94, p. 89. Quincy Granite Quarries Co. § 90, p. 87; § 93, p. 87. Rabenau, In re, § 1228, p. 727; § 1241, p. 736. Rafiferty, In re, § 1047, Railroad Co. v. Pettus, ,, , ^. ^ Railroad Company v. Schutte, § 2968, p. 1728. Railroad Co., Rankin v. Rand v. Iowa Central Railway Co., § 483, p. 310; § 872, p. 499; § 996, p. 555; § 1019, p. 568; § 1112, p. 635; § 1113, p. 635; § 1113, p. 636; § 1120, p. 640, § 1121, p. 640; § 1121, p. 641; § 1122, p. 641; § 1123, p. 641; § 1127, p. 642; § 2500, p. 1507. Randall, In re, § 2827, p. 1653; § 2830, . p. 1655. Randolph v. Scruggs, § 144, p. 126 § 1602, p. 967; § 1603, p. 968; § 1603 p. 971; § 1606, p. 976; § 1614, p. 980 § 1614, p. 981; § 1615, p. 982; § 1621 p. 986; § 1621, p. 987; § 1622, p. 988 § 1713, p. 1057; § 2868, p. 1683. Rankin, Harper v. Rankin v. Railway Co., § 233, p. 183 Rasmussen, In re, § 963, p. 538; 1228, p. 727. Rathbone, In re, § 2505, p. 1508; § 2663, p. 1585. § 2018 TABivE 01^ case;s. Rauchenplat, In re, § 552, p. 3 1547, p. 924; § 2457, p. 1487; § 2541, 7, p. 924; § :i4o7, p. 1487 1530; § 2545, p. 1533; § 2549, p 1535; § 2549, p. 1536; § 2603, p. 1 S 262' '^ if^fiR- S oe.' 1557; ', p. 1729; § 3023, P- i, p. 1566; § 2626, p. 1566; § 2630, p. 1569; § 2631, ' p. 1569; § 2636, p. 1571; § 2639, p. 1572 2818, p. 1649; § 296r p. 1748. Ray V. Norseworthy, § 1885, p. 1181 § 1965, p. 1223. Rayl V. Lapham, § 444, p. 283. Raymond Bros. Clark Co., In re, : 1284, p. 758. Raymound Bros. Clark Co., Hackneys Rea, In re, § 611, p. 363. Read, In re, § 1385, p. 816; § 1387, 819; § 1388, p. 819. Real Estate Trust Co. v. Thompson, § 1811, p. 1109. Realty Co., Lesser v. Rebman, In re, § 684, p. 415; § 784, p. 462. Receivers v. Staake, § 400, p. 262; § 693, p. 420; § 1207, p. 699; § 1209, p. 707; § 1489, p. 888; § 1490, p. 888; § 1618, p. 984; § 1714, p. 1057; § 2018, p. 1255; § 2018, p. 1256. Rector v. City Deposit Bk. Co., § 1303, p. 765; § 1329, p. 779; § 3026, p. 1749; § 3026, p. 1750. Red River Valley N. Bk., Clendeningz/. Redmond, In re, § 171, p. 145. Reed v. Dippel, § 2682, p. 1595; § 2761, p. 1622. Reed v. Equitable Trust Co., § 1586, p. 960; § 1587, p. 962. Reed v. Mclntyre, § 149, p. 129; § 1603, p. 974. Reese, In re, § 18, p. 34; § 19, p. 37; § 1085, p. 615; § 2306, p. 1403. Reeves v. McCracken, § 2783, p. 1628; § 2785, p. 1630. Reichman, In re, § 135, p. 118; § 1429, p. 847. Reid V. Cross, § 1455, p. 863; § 2709, p. 1604. Reid, In re, § 1567, p. 941. Reid, Katzenstein v. Reiman, In re, § 2369, p. 1435; § 2385, p. 1442. Reinhard, Falter v. Reinhart, In re, § 1034, p. 587; § 1047, p. 596; § 1047, p. 598; § 1077, p. 612. Rekersdres, In re, § 887, p. 506. Reliance Storage & Warehouse Co., In re, § 518, p. 323; § 817, p. 475; § 1885, p. 1178; § 1885, p. 1180; § 2291, p. 1398; § 2294, p. 1399. Remington Automobile & Motor Co., In re, § 709, p. 427; § 714, p. 428; § 1524, p. 906; § 1914, p. 1193. Renda, In re, § 1034, p. 585; § 1035, p. 588; § 1035, p. 589; § 1058, p. 606; § 1089, p. 616; § 1797, p. 1093; § 1798, p. 1098; § 1807, p. 1102. Rennie, In re, § 53, p. 63; § 936, p. 538; § 1117, p. 639; § 1130, p. 643; § 1133, p. 644; § 1133, p. 646; § 1134, p. 647; § 1135, p. 648; § 1316, p. 773. Resler, In re, § 787, p. 462; § 788, p. 463. Reukauff, In re, § 2840, p. 1659; § 2840, p. 1660. Rex Buggy Co. v. Hearick, § 132, p. 115; § 132, p. 116. Rex %'. Cole, § 51, p. 63. Reynolds, In re, § 18, p. 34; § 19, p. 36; § 1215, p. 718; § 1632, p. 1007; §-1686, p. 1037; § 1687, p. 1039; § 1797, p. 1094; § 1798, p. 1098; § 1800, p. 1099; § 1807, p. 1105; § 1808, p. 1108; § 1820, p. 1117; § 1916, p. 1194. Rhodes, Foster v. Rhodes, In re, § 723, p. 436; § 1047, p. 599; § 1087, p. 615. Rhutassel, In re, § 2468, p. 1491; § 2470, p. 1493; § 2595, p. 1552; § 2662, p. 1584; § 2663, p. 1586; § 2748, p. 1617; § 2748, p. 1618. Ricand, City of Wilmington v. Rice, Egan State Bk. v. Rich, In re, § 1124, p. 641; § 1158, p. 683. ooo. Richard, In re, § 234, p. 183; § 632, p. 376; § 699, p. 423; § 776, p. 460; § 777, p. 460; § 778, p. 460; § 779, p. 461; § 1089, p. 616; § 1484, p. 883; § 1487, p. 885; § 1629, p. 997. Richard, Sparhawk v. Rif^liards, Tn re, § 387, p. 255; § 584, p. P Rich 351 1429 P ., s 869. p. 498; § 1429, p. 847; § ^9, p. 848; § 1430, p. 848; § 1431, 848; § 1432, p. 848; § 1434, p. 848; TABLE OF- CASES. 2019 119, 2942, p. ITS.T; 26; § § 1451, p. 860; § 1463, p. 868; § 1463, p. 869; § 1464, p. 371; § 1468, p. 873; § 1474, p. 878; § 1479, p. 881; § 1487, p. 885; § 1629, p. 997; § 1883, p. 1169; § 2116, p. 1304; § 2119, p. 1306; § 2119, p. 1307; § 2881, p. 1691; § 294^ 1719; § 2948, p. 1722; § 2949, p. 1 § 2950, p. 1723; § 2962, p. 172 2963, p. 1726. Richardton, Fitch v. Richardson, Graham v. Richardson, In re, § 1032, p. 581; § 1034, p. 585; § 1104, p. 631; § 1705, p. 1052. Richardson v. Shaw, § 804, p. 470; § 1303, p. 766; § 1313, p. 770. Richardson v. Woodward, § 1022, p. 571; • § 1041, p. 593; § 1042, p. 593; § 1043, p. 593; § 1047, p. 599. Richter v. Nimmo, § 1761, p. 1074. Riddles' Sons, In re, § 1325, p. 776 Rider, In re, § 799, p. 467; § iddles' Sons, In re, § 1 ider, In re, § 799, p. 467; § 800, p. 467; § 2347, p. 1425; § 2356, p. 1430; § 2358, p. 1431; § 2358, p. 1431; § 2358, p. 1432; § 2359, p. 1432; § 2360, p. 1432; § 2361, p. 1432; § 2361, p. 1433; § ^2384, p. 1441; § 2393, p. 1446; § 2397, 'p. 1449; § 2861, p. 1670. Ridge Ave. Bk. v. Snndh p. S9Q JK. IClg^, ilVV. JJtV., V_)U.lHJ.llV-ill iggin V. Magwire, § 641 leim, § 1396, p. 823. Ige Ave. Bk., Sundheim v. Ri~~--- - ^' =-" = "' Rii re. 124, 'p. 1449; § 2861, p. 1670 V. Snndli Sundheim iggin 'u. iviagwire, § 641, p. 382. iggs Restaurant Co., In 112; § 265, p. 197; § 8 , ^ 1331, p. 780. Riker, In re, § 1696, p. 1045; § 1901, p. 1188. Riley, In re, § 167, p. 142. Riley. Talbott & Hunt, In re. § 167, p. 141; § 170, p. 143. Ripon Knitting Works v. Schreiber, § 1819, p. 1115; § 1834, p. 1128; § 18; 6, p. 1154; § 1856, p. Rise V. Bordner, § 49, p. 62; § 243, p. 187; § 245, p. 188. Risteen, In re, § 98, p. 95; § 312, p. 220. Roach, Whitley Grocery Co. v. Roalswick, In re, § 1169, p. 687; § 1879, p. 1166. Robert Shaw M'f'g Co., In re, § 1 p. 721; § 2855, p. 1666; § 2856, p. li !16, p. 721; § 2855, p. 1666; § 2856, p. 1667; § 2957, p. 1725; § 2959," p. 1725; § 2962. o. 1726: § 2963. o. 1727: § 2964. i<.io, V} 2963, p. 1727; § 2964, p. 1727; § 2965, p. 1727; § ^'"•'^ •- ^ ^^^ . , ^. -.- . ~« , 2962, p. 1726; § 2 p. 1727; § r"" 1729; § 2992 2968, p. j./;i»; 8 syy~, p. i(ao, ^ 3008, p. 1741. Roberts, Bacon v. Roberts v. Johnson, § 1496, p. 895; § 1500. p. 896; § 1500, p. 897; § 1504, p. 900. Robinson, In re, § 617, p. 366; § 619, p. 367; § 621, p. 367; § 803, p. 469; § 2585, p. 1551; § 2612, p. 1562. Robinson, Rugsley v. Robinson v. White, § 1653, p. 1024; § 1721, p. 1061. Roche V. Fox, § 207, p. 170; § 282, p. 204. Roche, In re, § 824, p. 478; § 1996, p. 1235; § 2229, p. 1364; § 2827, p. 1654; § 3901, p. 1702; § 2923, p. 1713. Rochester, Mackel z'. Rochford, In re, § 30, p. 37; § 355, p. 238; § 531, p. 331; § 532. p. 331; § 543, p. 332; § 1582, p. 949; § 1653, p. 1038; § 1686, p. 1037; § 1696, p. 1045; § 1698, p. 1048; § 1704, p. 1051; § 1796^ p. 1089; § 1797, p. 1096; § 1816, p 1113; § 1832, p. 1126; § 1873, p. 1163 § 1874, p. 1164; § 1885, p. 1178; §1888, p. 1181; § 1889, p. 1183; § 1918, p, 1195; § 3320, p. 1361; § 2464, p. 1489. Rockwood, In re, § 355, p. 237; § 357, p. 240; § 1652, p. 1020. Roden Grocery Co. v. Bacon, § 1024, p. 574; § 1033, p. 579; § 1034, p. 585; § 1103, p. 638; § 1104. p. 630. Rodgers, In re, § 1140, p. 669; § 1146, p. 677; § 1207, p. 700; § 1212, p. 710; § 1216, p. 719; § 1228, p. 728; § 1655, p. 1029; § 1797, p. 1096; § 1885, p. 1177. Rodgers & Hite, In re, § 1152, p. 680; § 1205, p. 698. Redo, In re, § 333. p. 182. Roeber, In re. § 617, p. 366; § 715, p. 429; § 1156, p. 683. Roeblings Sons, Chicago, T. & T. Co - "--hm V. Horst, § 687, p. 417. ', Joseph V. V. Roeh Roff Ro Ro igers, Carleton Dry Goods Co. v. igers. In re, § 1616, p. 983; § 1620, 2020 TABLE OF CASES. 985; § 1620, p. 986; § 1637, p. 1010; § 1646, p. 1012; § 2691, p. 1597. Rogers, Johnson v. Rogers Milling Co., In re, § 198, p. 163; § 333, p. 182; § 1363, p. 793; § 1421, p. 843. ogers z'. Mining Co., § 26, p. 41; § Ro 277, p. 20 Rogers v. Page, § 1222, p. 724; 1222, p. 725; § 1334, p. 782; § 1379, p. 807; § 1396, p. 824; § 1399, p. 828; § 1408, p. 835; § (1410, p. 836; § 2927, p. 1714. Rogers, Page v. Rogers & Woodward, In re, § 1140, p. 668; § 1140, p. 669; § 1140, p. 670; § 735; § 1256, p. 741; § 1371, p. 1238, p 800. Rolling Co. Mill Co., Iron and Supply Co. V. Rollins Gold & Silver Min. Co., In re, § 93, p. 87; § 167, p. 141; § 215, p. 174. 145, p. 128; § 207, p. Rollo, Gray v. Romadka, Sessions v. Romanow, In re, § 145, p. 128; § 207, p. 171; § 213, p. 172; § 213, p. 173, § 224, p. 178; § 1602, p. 967; § 1604, p. 975; § 1606, p. 977; § 1632, p. 1005. Rome Iron Co., Bank v. Rome Iron Co., Chattanooga Xat'l ■Rinl- -. Bank v. Iron Co., National Bank of Chat- Rome tanooga _ Rome Planing Mills, In re, § 120, p. Lome Planmg Mills, in re, § 120, p. Ill; § 129, p. 113; § 130, p. 114; § 132, p. 115; § 132, p. 116; § 132, p. 117; § 133, p. 118; § 135, p. 119; § 136, p. 119: § 138, n. 120; § 138, p. 121; § 139, P- § 133, p. , „ 119; § 138, p. 120; § 138, p. 121; p. 122; § 140, p. 122; § 140, p. 1' § 141, p. 123; § 172, p. 146; § 173. p 146; § 175, p. 148; § 257, p. 193; § 412, p. 266; § 412, p. 267; § 1429, p. 848; § 1437, p. 850; § 2861, p. 1670. omine. In re, § 511, p. 322; § 523, p. 326; § 548, p. 334; § 552, "p- 336; § 552, p. 337; § 560, p. 340; § 1547, p. 925; § 1548, p. 926; § 1551, p. 927; § 1552, p. 928, § 1554, p. 928; § 1554; p. 929; § 2336, p. 1418; § 2337, p. 1418; § 2335, 141S- S 2.^40. n 1419: S 2342. p. 74; Rom ), p. 1419; § 2342, 1419; § 2629, p. 1567; § 2646, p. 15 § 2839, p. 1659; § 2845, p. 1661: 2861, p. 1670. Ronk, In re, § 1222, p. 724; § 1229, p. 731; § 1326, p. 777; § 1370, p. 796. Rooney, In re, § 998, p. 556. Roosa, In re, § 972, p. 544; § 2521, p. 1519; § 2813, p. 1647; § 2816, p. 1648. Rose, In re, § 1879, p. 1166; § 2164, p. 1335; § 2169, p. 1336; § 2169, p. 1337; § 2171, p. 1338; § 2172, p. 1338; § 2175, p. 1340; § 2176, p. 1340; § 2195, p. 1347. i Rosenbaum, In re, § 1316, p. 773; § 2271, p. 1390. Rosenberg, In re, § 533, p. 331; § 676, p. 412; § 1219, p. 723; § 1421, p. 842; § 1427, p. 846; § 1582, p. 955; § 1658, p. 1029; § 1696, p. 1046; § 1807, p. 1105; § 1975, p. 1228; § 1985, p. 1230. Rosenberg, Mencke v. Rosenblatt, In re, § 956, p. 536; § 1558, p. 934; § 1559, p. 937; § 1560, p. 938; § 1815, p. 1113; § 1818, p. 1114. Rosenfeld, In re, § 2457, p. 1487; §2482, p. 1499; § 2508, p. 1509. Rosenfield, In re, § 200, p. 164; § 1547, p. 925; § 2663, p. 1585. Rosenham Co., Kimball v. Rosenthal, Coding v. Rosenthal, In re, § 384, p. 252; § 2710, p. 1604. Rosenthal & Lehman. In re, § 2045, p. 1267; § 2048, p. 1271; § 2052, p. 1275; § 2077, p. 1286; § 2080, p. 1288; § 2085, p. 1289; § 2087, p. 1291; § 2097, p. 1296. Ross, English v. Ross-Meeham Fdy. Co. v. Southern Car & Fdy. Co., § 1707, p. 1054. Ross V. Saunders, § 17, p. 33; § 2375, p. 1439; § 2376, p. 1439; § 2381, p. 1440; § 2410, p. 1454; § 2411, p. 1454; § 2412, p. 1454; § 2895, p. 1700. Rosser, In re, § 539, p. 332; § 1558, p. 933; § 1819, p. 1116; § 1833, p. 1127; § 1836, p. 1128; § 1838, p. 1131; § 1839, p. 1132; § 1841, p. 1135; § 1842, p. 1138; § 1843, p. 1141; § 1848, p. 1145; § 1850, p. 1147; § 1855. p. 1153; § 1856, p. 1154; § 1857, p. 1155; § 2881, p. 1690; § 2938, p. 1716; § 2942, p. 1719. Rothenberg, In re, § 230, p. 179; § 643, p. 383. TABLE OF CASES. 2021 Rothschild, In re, § 824, p. 477; § 1096, p. 622; § 1098, p. 623; § 1718, p. 1060; § 1837, p. 1130. Roukous. In re, § 277, p. 202; § 2402, p. 1452; § 2406, p. 1453; § 2408, p. 1453; § 2409, p. 1453. Rounsaville, Evans Rouse, H ■* ^- *" 22; 178, uunsavme, nvans v. ouse, Hazard & Co., In re, § 5, p. § 1023, p. 571; § 2014, p. 1250; § 2 , p. 1341; § 2179, p. 1341; § 2197, p. 1350; § 2203, p. 1354; § 2870, p. 1684; 2Z0S, p. 1354; S ^S7U, p. IbS-l § 2881, p. 1691; § 2902, p. 1703; § 294S p. 1719. p. niv. Rouse, In re, § 494, p. 313; §. 709 427; § 713, p. 428; § 714, p. 428; 2742, p. 1616 :ouse, In re, § 494, p. 313 427; § 713, p. 428; § 714, 2742, p. 1616. Rowell, Dowder v. Rowland v. Auto C; 1063; § 1727, p. 1064. 2541, p. ;ar Co., § 1726, p. iUD.j; s i-i'^t, p. -lO Rowley, Jacquith v. Roy. In re, § 2528, p. 1524; 1529. Royal, In re, § 563, p. 341; § 1048, p. 599; § 1051, p. 603; § 1069, p. 609; § 2437, p. 1472; § 2449, p. 1486; § 2457, p. 1487; § 2493, p. 1505; § 2521, p. 1519; § 2539, p. 1528; § 2541, p. 1529; § 2547, p. 1534; § 2665, p. 1586; § 2680, p. 1594; § 2843, p. 1661. Royce Dry Goods Co., In re, § 801, p. 468; § 828, p. 480; § 831, p. 481; § 833, p. 482; § 834, p. 482; § 897, p. 513; § 1024, p. 572; § 1032, p. 578; § 1203, p. 698; § 1821, p. 1118; § 1850, p. 1147; § 2220, p. 1361; § 2861, p. 1670. Royea, In re, § 1883, p. 1170; § 1883, p. 1173; § 1884, p. 1175. Royston v. Weis, § 69, p. 73. Rozinsky, In re, § 2027, p. 1258; § 2044, p. 1266; § 2045, p. 1266; § 2054, p. 1276; § 2061, p. 1282. R. R. Co., Cowley v. R. R. Co., Pierce v. Rubber Ref. Co., In re, § 1228, p. 730; § 1228, p. 731; § 1877, p. 1165. Rude, In re, § 20, p. 37; § 404, p. 263; § 548, p. 334; § 849, p. 489; § 911, p. 520; § 1885, p. 1178; § 1885, p. 1179; § 2220, p. 1361; § 2228, p. 1364; § 2229, p. i.-'.ni. Rudnick. In re, § 1207, p. 700; § 1207, p. 703; § 1314, p. 771; § 1316, p. 773; § 2271, p. 1390. Rudwick, In re, § 2382, p. 1441; § 2400, p. 1451. Rugsley t'. Robinson, § 936, p. 524. Rumsey z: Machine Co., § 106, p. 105; § 109, p. 106; § 148, p. 129; § 1603, p. 971; § 1606, p. 976. Rumsey v. Novelty Co., § 106, p. 105; § 146, p. 128. Rung Bros., In re, § 863, p. 496; § 887, p. 507; § 890, p. 509; § 2368, p. 1435. Rung Furn. Co., In re, § 135, p. 118; § 136, p. 119; § 137, p. 120; § 138, p. 121; § 140, p. 122; § 1343, p. 787; § 1350, p. 789; § 1361, p. 793. Ruppel, In re, § 664, p. 404; § 992, p. 553; § 2204, p. 1356. Rusch, In re, § 902, p. 516; § 2864, p. 1679; § 2941, p. 1718. Rush v. Lake, § 63, p. 69; § 70, p. 74; § 801, p. 468; § 2247, p. 1372; § 2950, p. 1723. Russell & Birkett, In re, § 1169, p. 687; § 1582, p. 949; § 1780, p. 1079; § 1797, p. 1093; § 1798, p. 1098; § 1814, p. 1112; § 1874, p. 1164; § 1876, p. 1165; § 1879, p. 1165; § 1879, p. 1166; § 1879, p. 1167; § 1901, p. 1189; § 1908, p. 1191; § 2916, p. 1709. Russell, Christmas v. Russell, In re, § 68, p. 73; § 76, p. 78; § 971, p. 544; § 2798, p. 1641; § 2799, p. 1642; § 2839, p. 1659; § 2846, p. 1662; § 2850, p. 1663. Russell V. Place, § 158, p. 135. Russie, In re, § 53, p. 63; § 963, p. 538; § 975, p. 546. 8 y Ryerson, Lansing Boiler & En Wks. V. Ryttenberg v. Schefer. § 1150, p. 678; § 1150, p. 679; § 1196, p. 696; § 1216, p. 720; § 1252, p. 740; § I378, p. 803; § 1396, p. 825; § 1689, p. 1040; § 1690, p. 1042; § 1696, p. 1045; § 1698, p. 104*8; § 1811, p. 1110; § 1883, p. 1169; § 1883, p. 1172; § 1885. p. 1178; § 1885, p. 1179; § 1885, p. 1180. 2022 TABLE OF CASES. St. Albans Foundry Co., In re, § 2227, p. 1364: § 1646, o. 1012: § 1646, p. L. .Aiuans rounury \^u., in p. 1364; § 1646, p. 1012; § 1646, p. 1013; § 1787, p. 1082. St. Arbans Furniture Co., ^lason v. St. Cyr. z: Daignault, § 682, p. 414; § 699, p. 423; § 1449, p. 858; § 1453, p. 862; § 1466, p. 872. St. John, In re, § 972, p. 544. St. Louis Cycle Co., Gragassa v. Sabine, In re, § 528, p. 330; § 1586, p. 960; § 2103, p. 1299. Sabin z'. Camp, § 1314, p. 771. Sable, Claster v. Sagor & Bro., In re, § 1296, p. 761; § 1416, p. 839; § 1418, p. 840. S. Ah. Mi., In re, § 1458, p. 865; § 1459, p. 865; § 1489, p. 886; § 1491, p. 889. Salaberry, In re, § 438, p. 281. Sale, In re, § 1047, p. 597. Salisbury, In re, § 2638, p. 1571; § 2639, p. 1572. Salkey, In re, § 1543, p. 919; § 1819, p. 1115; § 1842, p. 1137; § 1843, p. 1141; § 1856, p. 1154. Salmon & Salmon, In re, § 104, p. 104; § 106, p. 105; § 109, p. 106; § 112, p. 107; § 146, p. 128; § 147, p. 128; § 148, p. 129; § 222, p. 177; § 806, p. 470; § 1603, p. 971; § 1606, p. 976; § 1625, p. 989; § 1632, p. 1007; § 1634, p. 1009; § 1883, p. 1172; § 2415, p. 1460. Sa § 1883, p. 1172; § 2415, p. 1460. amel V. Dodd, § 1819, p. 1115; § 1840, p. 1134; § 1841, p. 1136; § 1842, p. 1137; § 1844, p, 1141; § 1845, p. 1143; § 1853, p. 1152; § 1855, p. 1154; § 1856, p. 1154; § 1857, p. 1155; § 2938, p. 1716; § 3008, p. 1741. imson V. Blake, § 1800, p. 1099. Sanborn, In re, § 532, p. 331; § 533, p. 331; § 1885, p. 1181; § 1888, p. 1181; § 1960, p. 1221; § 1965, p. 1223; § 1975, p. 1228; § 1980, p. 1229; § 2481, p. 1497. Sanderlin, In re, § 59, p. 65; § 60, p. 67; § 64, p. 70; § 171, p. 144; § 1992, p. 1233. Sanders, Ross v. Sanderson, Horskins z>. Sanderson, In re, § 1310, p. 767; § 1411, p. 838. Sandusky z: National Bank, § 858, p. 491. Sanford Furn. M'f'g Co., In re, § 2103, p. 1300; § 2105, p. 1300; § 2112, p. 1302. San Gabriel Sanatorium, In re, § 81, p. 80; § 91, p. 87; § 94, p. 90; § 1582, p. .956; § 1586, p. 961; § 1653, p. 1024; § 1805, p. 1100. Sangenour, Smalley v. Sapiro, In re, § 1558, p. 935; § 1562, p. 939. Sargent, In re, § 236, p. 184; § 279, p. . 203. Sarsar, In re, § 341, p. 233; § 342, p. 233. Sasater, First Nat'l Bk. v. Sauer, In re, § 914, p. 520; § 915, p. 520; § 915, p. 521. Saunders, In re, § 844, p.. 484. Savage v. Savage, § 798, p. 466; § 1147, p. 677; § 1974, p. 1227. Savage, Williams Bros. v. Savannah Trust Co., Southern Pine ■ Co. V. Savin z: Camp, § 1370, p. 799. Savings Bank v. Jewelry Co., § 444, p. 287; § 1395, p. 822; § 1402, p. 830; § 1403, p. 831; § 1404, p. 832; § 1582, p. 953; § 1582, p. 956; § 1586, p. 961; § 1648, p. 1014; § 1650, p. 1015; § 1687, p. 1038. Savings Bk., Longfield z'. Savory v. Stocking, § 656, p. 399. Sawyer, Bank z>. Sawyer, In re, § 1196, p. 696; § 1326, p. 777. Sawyer, National Bank v. Sawyer v. Turpin, § 131, p. 115; § 1295, p. 760; § 1320, p. 774; § 1379, p. 807; § 1384, p. 815. Sawyer v. Upton, § 977, p. 547. Sax, In re, § 1842, p. 1137; § 1845, p. 1144; § 1850, p. 1149. Saxton Furnace Co., In re, § 533, p. 331; § 562, p. 340; § 707, p. 425; § 783, p. 462; § 1968, p. 1225; § 1975, p. 1228; § 1977, p. 1228; § 1980, p. 1229; § '1983, p. 1230; § 1997, p. 1236. Scammon v. Cole, § 611. p. 363. Scammon r. Kimball, § 1173, p. 688; § 1180, p. 691. Scanlon & Co., In re. § 2170. p. 1338; § 2171, p. 1338. TABLE OF CASES. 2023 Schachter, In re, § 1819, p. 1115; § 1837, p. IKJO; § 1838, p. 1130; § 1843, p. 1141; § 1830, p. 1148; § 1856, p. 1154. Schafer, In re, § 1274, p. 753. Schawninger, In re, § 2415, p. 1461. Schcchter, In re, § 1034, p. 585; § 1035, p. 587; § 1035, p. 589. Schefer, Rytenberg v. Schefield v. Gordon, § 2632, p. 1569. Scheld, In re, § 1003, p. 557. Schellenberg v. MuUaney, § 2759, p. 1621. Schenck, In re, § 1217, p. 722; § 1499, p. 895; § 2521, p. 1520. Schenkein & Coney, In re, § 75, p. 78; § 124, p. 112; § 177, p. 149; § 206, p. 170; § 234, p. 183; § 235, p. 183; § 1335, p. 783. Scherber, In re, § 545, p. 333; § 1652, p. 1020; § 1695, p. 1044; § 1695, p. 1045; § 1698, p. 1049; § 1699, p. 1049; § 1699, p. 1050; § 1836, p. 1129; § 1863, p. 1159; § 1865, p. 1161; § 1865, p. 1162. Schermerhorn, In re, § 1782, p. 1080; § 1782, p. 1081; § 1796, p. 1089; § 1797, p. 1096; § 1800, p. 1099; § 1802, p. 1100; § 1805, p. 1100; § 1807, p. 1106; § 1814, p. 1112; § 1885, p. 1178. ^1-,^.-.- T^ ^o S 90S7 n p. 1081; § 17C >, p IK , ^ § looiJ, p. a.iiu. Scherr, In re, § 2287, p. 1398; § 2851, p. 1664. Scherzer, In re, § 1179, p. 690; § 1180, p. 691; § 1297, p. 762; § 1341, p. 785. Scheuer v. Book Co., § 97, p. 93; § 134, p. 118; § 142, p. 124; § 142, p. 125; § 150, p. 131; § 1603, p. 972; § 1605, p. 975. Scheyer v. Book Co., § 1472, p. 874. Schiffer, Morey Mercantile Co. v. Schiller, In re, § 478, p. 309; § 512, p. 322; § 2839, p. 1659; § 2846, p. 1662; § 2847, p. 1662. / Schiller v. Weinstein, § 2443, p. 1477; § 2468, p. 1491; § 2662, p. 1584; § 2667, p. 1587; § 2775, p. 1627; § 2781, p. 1628. Schlesinger, In re, § 1819, p. 1115; § 1841, p. 1136; § 1843, p. 1140; § 1850, p. 1146; § 1851, p. 1151; § 1856, p. 1154; § 2517, p. 1517; § 2649, p. 1575. Schley, Dacovich v. Schliep, Bills v. Schloerb, In re, § 1797, p. 1092; § 1807, p. 1101; § 1807, p. 1106; § 1885, p. 1178. Schloerb, White v. Schloss, Strellow v. Schmechel, In re, § 611, p. 362; § 611, p. 363; § 645, p. 388. Schmidt, In re, § 1209, p. 707. Schmilovitz v. Bernstein,. § 1429, p. 848; § 1439, p. 851; § 1468, p. 873; § 1479, 'p. 881. Schmitt i: Dahl, § 1216, p. 719. Schofield, In re, § 2489, p. 1504; 2490, p. 1504; § 2491, p. 1504; § 2522, p. 1520; § 2541, p. 1530. Schlotz, In re, § 1612, p. 079; § 1614, p. 980; § 1614, p. 981; § 1631, p. 1004. Schonfield, Stern v. Schophofen, Van Ingen z'. Schreck, In re, § 2489, p. 1504; § 2491, p. 1504; § 2492, p. 1505; § 2511, p. 1511; § 2511, p. 1512; § 2522, p. 1522; § 2541, p. 1530. Schreiber, Ripon Knitting Works v. Schreier, Kaufman v. Schrom, In re, § 367, p. 244; § 393, p. 257; § 395, p. 257; § 395, p. 258; § 399, p. 261; § 1705, p. 1052; § 1708, p. 1055; § 1717, p. 1059. Schuchardt, In re, § 636, p. 377. Schuler v. Israel, § 1186, p. 694. Schuler v. Miller, § 1095, p. 620. Schuller, In re, § 1047. p. 595; § 1Q61, p. 606; § 1293, p. 760. Schultze, In re, § 171, p. 144; § 1038, p. 592; § 1047, p. 598; § 2484, p. 1502; § 2545, p. 1533; § 2549, p. 1535; § 2563, p. 1542; § 2793, p. 1633. Schutte, Railroad Company v. Schuyler, In re, § 2457, p. 1487. Schuylkill Plush & Silk Co., Hardt v. Schwaninger, In re, § 41, p. 57. Schwartz, Davis z'. Schweer v. Brown, § 1819, p. 1115; § 1841, p. 1135; § 1842, p. 1137; § 1843, p. 1140; § 1851, p. 1149; § 1855, p. 1153; § 1855, p. 1154; § 1863, p. 1159; § 2873, p. 1685; § 2938, p. 1716. Scollan, Jetter Brew. Co. z\ Scott V. Armstrong, § 1173, p. 688. 2024 TABLE OF CASES. Scott, In re, § 22, p. 38; § 26, p. 40; § 33, p. 53; § 430, p. 276; § 435, p. 2 § 523, p. 327; § 535, p. 331; § 546, 333; § 603, p. 359; § 603, p. 360; 278; „„„, a „„„, p. 359; § 603, p. 360; § 604, p. 360; § 617, p. 366; § 1558 933; § 1560; p. 938; § 1995, p. 1234, a 2118, p. 1306; § 2119, p. 1307; § 2131, p. 1310; § 2132, p. 1311; § 2213, p. 34; § p. 1310; § 2132, p. 1311; 1360; § 2467, p. 1490; § 24 8 248."^ n 1.S01 • 8 25.'^fi. n 1 2482, p. bu; s 4-io^, p. i4yu; § -^isz, p. v s 2483, p. 1-501; § 2556, p. 1540; § 2. p. 1540; § 2558, p. 1541; § 2674, 1591; § 2851, p. 1664. Scott, Paxton v. Scott, Walter v. Wilson, § 2874, 1686; § 2875, p. 1688; § 2920, p ' § 2922, p. 1712; § 2925, p. 17 1499; 57, P- P- 1710; Scovil, Cooke v. Scrafford, In re, § 206, p. 170. Screws, In re, § 2117, p. 1305. Scrinopskie, In re, § 1217, p. Scrinopskie, In 1874, p. 1164; § 1885 p. 1182. Scruggs, Randolph v. Scully, In re, § 579, p. 349; § 584, 351; § 682, p. 413; § 776, p. 460. Seaboard Fire Underwriters, In re, 77, p. 78. 1217, p. 722, p. 1181; § 1889, 349; § 584, p. Mills, Durham I I, p. lO. Seaboard Knittin Paper Co. v. Seaboard Steel Casting Co. v. Trigg. § 141, p. 124; § 150, p. 132; § 257, p, 193. Seabolt, In re, § 99, p. 96; § 100, p. 97; § 1022, p. 570; § 1024, p. 572; § 1025, D. 575: § 1025. o. 576: § 1047. o. 595: ^ , ^. ,._, „ ...„-, r. _...; § 1025, p. 575; § 1025, p.. 576; § 1047, p. 595; § 1047, p. 596; §' 1047, p. 599; § 1062, p. 607; § 1167, p. 686. Seaholm, In re, § 2571, p. 1545; § 2572, p. 1546; § 2576, p. 1547. Searchy v. McCourt, § 1959, p. 1220. Sears Humbert & Co., In re, § 341, p. 233; § 343, p. 233; § 344, p. 233; § 345, p. 234; § 346, p. 234; § 347, p. 234. Sears, In re, § 266, 213; § 297, p 298, p. 215. Seay, In re, § 1421, p. 843. Sebring v. Wellington, § 1277, p. 755 § 1351, p. 790; § 1395, p. 822; § 1396 n 89.4 ■ 8 -\!^()R. p. 899; § 1504, p sars. In re, § 266, p. 197; § 294, p. 213; § 297, p. 214; § 297, p. 215; § 298. n. 215. § 1952, p. 1216. 899; Sechler, In re, § 3 427, p. 846 Security Bank, Vaccaro z\ ■ Security Bk. of Richmond, Dickinson v. Seebold, In re, § 1437, p. 850; § 1444, p. 854; § 1472, p. 875; § 1474, p. 877; § 1582, p 951; § 1582, p. 957; § 1589, p. 962; § 1686, p. 1037; § 1696, p. 1046. Seeley, In re, § 2482, p. 1500. Seibert, In re, § 1918, p. 1195. Seiter, Levor v. Seldner, Chesapeake Shoe Co. v. Selkregg t-. Hamilton, § 348, p. 235; § 349, p. 235; § 349, p. 236; § 352, p. 236; § 353, p. 237; § 354, p. 237. Sellers v. Bell, § 288, p. 207; § 288, p. 208; § 1047, p. 597; § 2013, p. 1250; § 2014, p. 1350; § 2015, p. 1253; § 2141, p. 1319; § 2528, p. 1524; § 2541, p. 1530; § 2542, p. 1531; § 2549, p. 1536. Selwyn Importing Co., In re, § 2157, p. 1332; § 2159, p. 1332. Semmel, In re, § 2495, p. 1505; § 2511, p. 1511; § 2522, p. 1520; § 2522. p. 1521; § 2541, p. 1529; § 2541, p. l.oliO; § 2644, p. 1574. Semons, In re, § 2895, p. 1700. Sentenne & Green Co., In re, § 1147, p. 677; § 1199, p. 697; § 1489, p. 887; § 1489, p. 888; § 1491, p. E-89; § 1582, p. 949; § 1797, p. 1097; § 1873, p. 116;;; § 1885, p. 1177; § 18S5, p. 1178 Servis, In re, § 2457, p. 1487; § 2459, p. 1488; § 2460, p. 1488; § 2594, p. 1552; § 2603, p. 1556; § 2612, p. 1562. Sessions v ^ i< « _» . iSions V. Romadka, § 935, veil, In re, § 1209, p. 707; iCW 734 omaaKa, § y,io, p. 524. § 1209, p. 707; § 1234, p. .o,, s 1242, p. 737; § 1245, p. 739. Seydel, In re, § ]037, p. 591. Seymour, In re, § 465, p. 305. Seymour Lumber Co., Carling v. Shaeffer, In re, § 1166, p. 686; § 1971, p. 1226; § 1972, p. 1227; § 1973, p. ^ 1227. Shafifer, Heath v. Shaffer, In re, § 494, p. 313; § 658, p. 10; § 659, p. 401; § 659, p. 402; § 665, 404; § 665, p. 405; § 723, p. 436; § !6, p. 437; § 1073, p. 611; § >1090, p. -7: § 2315, p. 1405; § 2442, p. 1477; § 2445, p. 1477; § 2686, p. 1595; § 400 P- 7J 61 table: of cases. 2025 2714, 4, p. 1606; § 2717, p. 1606; § 2812, p. 1646; § 2815, p. 1647; § 2824, p. 1650. J-DOU. Sliainwald, Lewis v. Shanker, In re, § 457, p. 302; § 1538, p. 918; § 1577, p. 945; § 2455, p. 1487. Shannahan, Dcvries z'. Sharp, Tn re, § 1048, p. 599; § 1062, p. 607; § 1095, p. 619; § 1478, p. 880; § 1663, p. 1030. Sharp z\ Woolslare, § 1029, p. 578; § 1032, p. 578; § 1063, p. 607; § 1100, p. 625. Shattuck & Bugh, In re, § 2245, p. 1372. Shaw, In re, § 801, p. 468; § 815, p. 474; § 844, p. 484; § 844, p. 485; § 1207, p. 699; § 1207, p. 703; § 1208, p. 705; § 1222, p. 724; § 1230, p. 732; § 1236, p. 734; § 2203, p. 1355. Shaw, Richardson v. Shawham v. Wherritt, § 444, p. 283. Shea, In re, § 1950, p. 1215; § 1954, p. 1217; § 1954, p. 1218; § 1957, p. 1219; § 1958, p. 1220; § 1960. p. 1221; § 2854, p. 1665; § 2857, p. 1668. Shedaker, In re, § 993, p. 553. Sheehan, Berry Bros. v. Sheets Ptg. & Mfg. Co., In re, § 1140, p. 668; § 1228, p. 727; § 1241, p. 736. Sheinbaum. In re, § 1653, p. 1028; § 1864, p. 1159; § 1865, p. 1161. Sheldon v. Parker, § 1207, p. 700; § 1208, p. 705; § 1226, p. 726; § 1653, p. 1028; § 1687, p. 1038; § 1687, p. 1039; § 1726, p. 1063; § 1760, p. 1074; § 1790, p. 1083; § 1791, p. 1083. Shenberger, In re, § 953, p. 535; § 972, p. 544. ' I, p. 634. p. 760; § 1320, p. 544. Shepard. In re, § 59, p. 67; § 683, 415; § 2756, p. 1620; § 2794, p. 16 Shepherd, In re, § 1295, p. 760; § 13 n 774. Sh p. 774. Shera, In re, § 1558. p. 933. Sheridan, In re, § 1370, p. 798. Sherman, Bank v. Sherman " """ ' Sh hcrman v. Bingham, § 1705, p. 1051. berman v. Luckhardt, § 1494, p. 891; § 1745, p. 1071. Sherman Mfg. Co., In re, § 1146, p. 677. Shertzer, In re, § 2544, p. 1533. Shesler v. Patton, § 1954, p. 1218; § 1959, p. 1220. Shields, In re, § 2356, p. 1430. Shirley, In re, § 1140, p. 668; § 1209, p. 707; § 1222, p. 724; § 1230, p. 732. Shoe Co., Wilkinson v. Shoe & Leather Reporter, In re, § 1935, p. 1209; § 1965, p. 1223; § 1967, p. 1225; § 1986, p. 1231; § 1987, p. 1231; § 2948, p. 1722; § 3002, p. 1738; § 3002, p. 1739; § 3007, p. 1740; § 3010, p. 1742 3010, p. 1742. Shoemaker, In re, § 1458, p. 1459, p. 865; § 1472, p. 874; § 1472, p. 876; § 1473, p. 877; § 1582, p. 949; § 1600, p. 966; § 1904, p. 1190. Shoesmith. In re, § 261, p. 195; § 262, p. 196; § 265, p. 197; § 273, p. 202; § 1344, p. 788. Shorer, In re, § 2482, p. 1499; § 2544, p. 1532. Shriver, In re, § 2634, p. 1569; § 2861, p. 1670. SI hropshire, Woodlifif & Co. z: Bush, § 2135, p. 1318; § 2183, p. 1342; § 2183, p. 1343. Shufeldt, Audubon f. Shulte V. Patterson, § 98, p. 95; § 306, p. 219. Shults, In re, § 1176, p. 689; § 1180, p. 691; § 1182, p. 692; § 1183, p. 693; § 2861, p. 1672. Shults and Marks, In re, § 544, p. 332; § 545, p. 333; § 1414, p. 838; § 1695, p. 1044; § 1699, p. 1049. Shultz, In re, § 2650, p. 1575. Shuster, In re, § 1215, p. 718; § 1234, p. 734; § 1236, p. 734. Shutts V. Bank, § 1653, p. 1024; § 1832, p. 1126. Siebert, In re, § 472, p. 306; § 527, p. 330; § 528, p. 330; § 1028, p. 577; § 2702, p. 1602. Siegel-Hillman Dry Goods Co., In re, § 20, p. 37; § 2220, p. 1361; § 2220, p. 1362. Siegel, Swarts v. Sievers. In re, § 1602, p. 967; § 1604, p. 975; § 1606, p. 977; § 1629, p. 996; § 1632, p. 1005; § 1632, p. 1007; § 1653, p. 1024. 2026 TABLE 0:F CASES. P- Silberhorn, In re, § 1653, p. 1024; § 1674, p. 1033; § 1887, p. 1181. Silberman, In re, § 22, p. 38. Silberstein v. Stahl, § 1302, p. 764; § 1303, p. 765; § 1687, p. 1038. Sill V. Solberg, § 611, p. 363. Silverman Bros., In re, § 132, p. 117; § ■ 686, p. 416; § 704, p. 424; § 707, p. 425; § 712, p. 428; § 2018, p. 1254. Silverman & Schoor, In re, § 2045, p. ■ 1266; § 2047, p. 1270; § 2072, p. 1285. Silvey & Co. v. Tift, § 444, p. 284; § 445, p. 288; § 638, p. 380; § 1302, p. 764; § 1776, p. 1078; § 1879, p. 1166; § 1880, p. 1168. Simmons, Wheeler v. Simon, In re, § 1647, p. 1013. Simon & Sternberg, In re, § 523, ■ 325; § 2316, p. 1410; § 2861, p. 1671. Simon, U. S. v. Simonson, In re, § 282, p. 204; § 316, p. 221. •Simonson r. Sinsheimer, § 406, p. 265; § 408, p. 265; § 1632, p. 1005; § 2881, p. 1690; § 2894, p. 1700. Simonson, Sinsheimer f. Simonson, Whiteson & Co., In re, § 277, p. 202. Simpson v. Van Etten, § 1460, p. 866. Sims, In re, § 2152, p. 1329. Singer z: Xat'l Bedstead Mfg. Co., § 2, p. 21; § 3, p. 21; § 7, p. 23; § 10, p. 26: § 14, p. 29; § 21, p. 37; § 103, p. . 103; § 150, p. 132; § 1603, p. 975; § 1625, p. 989; § 1627, p. 993; § 1628, p. 994; § 1630, p. 998; § 1630, p. 1001; § 1630, p. 1003. Sinsheimer v. Simonson, § 223, p. 177; § 612, p. 979; § 1653, p. 1023; § 1666, p. 1031; § 1666, p. 1032; § 1840, p. 1134. Sunsheimer, Simonson v. Sisler, In re, § 1032, p. 581; § 1034, p. 585; § 1035, p. 587; § 1102, p. 627. Skillen v. Endelman, § 1140, p. 671; § 1207, p. 700; § 1217, p. 722; § 1220, p. 723; § 1227, p. 726; § 1258, p. 742; § 1261, p. 743; § 1262, p. 744; § 1741, p. 1070. Skilton V. Codington, § 1208, p. 705; § 1209, p. 707; § 1209, p. 708; § 1214, p. 715; § 1235, p. 734; § 1258, p. 741; § 1760, p. 1074; § 1780, p. lOSO; § 1782, p. 108U; § 1813, p. 1111; § 1814, p. 1112. Skinner, In re, § 444, p. 283; § 2502, p. 1507; § 2505, p. 1508; § 2521, p. 1520; § 2655, p. 1577. Skinner, Wright v. Slack, In re, § 99, p. 96; § 99, p. 97; § 100, p. 97; § 1166, p. 686; § 1167, p. 686. Slater, Oxford Iron Co. v. : Co.. In re. 5 35. o. 55 ate Co., In re, § 35, p. 55; § 86, p. 85; § 93, p. 87. Slate Co., Van Kirk v. ■luff. In re, § 1005, p. 558; § 1006, SI; Slin p. 559; § 1015, p. 565. In re, § 1032, p. " —' 589; " )79; § 1034, p. Sloan, in re, § luda, p. o^y; s nJ^-t, P- 587; § 1035, p. 589; § 1058, p. 606; § 1061, p. 606; § 1331, p. 780; § 2204, p. 1356. Sloan, Lewis z\ Slocum, In re, § 2257, p. 1377. Slomka, In re, § 1603, p. 971; § 1603, p. 974; § 2014, p. 1250; § 2178, p. 1341; § 2179, p. 1341; § 2196, p. 1347; § 2198, p. 1351; § 2203, p. 1354; § 2203, p. 1355. Small V. Miller, § 1216, p. 719; § 1267, p. 747; § 1655, p. 1029; § 1687, p. 1038; § 1813, p. 1111. Smalley v. Laugenour, § 1022, p. 570; § 1025, p. 575; § 1041, p. 593; § 1073, p. 611; § 1086, p. 615; § 1109, p. 634; § 1110, p. 634; § 3026, p. 1749. Smart, Brown v. Smart, In re, § 806, p. 470; § 1883, p. 1169; § 1883, p. 1172. Smelting Co., In re, § 1115, p. 637; § 1540, p. 918; § 1558, p. 934; § 1856, p. 1155; § 1858, p. 1157. ^;n, „, Ts^lden, § 1718, p. 1060; § 541,' Smith V. Bel 2830, p. 1655. Smith V. Belford; § 528, p. 330; „ .__, p. 332; § 1836, p. 1129; § 1838, p. 1132. Smith, Bindseil v. Smith, Buchanan v. Smith v. Cooper, § 2045, p. 1266; § 2046, p. 1267; § 2046, p. 1268; § 2047, p. 1268; § 2064. p. 1282. Smith & Dodson, In re, § 1602, p. 967; § 1607, p. 977; § 1611, p. 978; § 1625, TABI.E OF CASES. 2027 p. 989; § 1629, p. 997; § 1632, p. 1005; § 1633, p. 1008. Smith V. Evans, § 2861, p. 1670; § 2875, p. 1687; § 2925, p. 1713. Smith, French v. Smith, Goldman v. Smith, Harvey z': Smith, Hoston v. Smith, In re, § 282, p. 204; § 313. p. mith. In re, § 282, p. 204; 221; § 348, p. 235; § 349, p. 236 § 352, p. 236; § 353, p. 237; 221; § 348, p. 235; § 349, p. 236; § 352, p. 236; § 353, p. 237; § 358, p. 240; § 359, p. 242, § 573, p. 348; § 642, p. 383; § 643, " """ " 409; § 672; -- *-"^' i; s 04d, p. 383; § 672, p. '., p. 410; § 683, p. 415; § 838, p. 483; § 872. o. 499; § 882, p. », p. 1S6; 8 o'^, P- -199; § 882, p. 504; § 886, p. 504; § 896, p. 511; 901, p. 516; §1000. p. 556; § 1047, 59 " )1. p. 516; §1000. p. 556; § 1047, p. 597; § 1073, p. 611; § 1111, p. 634; § 1130, p. 643; § 1152. p. 680; § 1558, p. 934; § 1778, p. 1079; § 1779, p. 1079; § 1783, p. 1081; § 1798, p. 1098; § 1819, p. 1115; § 1820, p. 1118; § 1875, p. 1164; § 1901, p. 1188; § 1905, p. 1190; § 1986, p. 1230; § 1987, p. 1231; § 2018, p. 1254; § 2045, p. 1266; § 2045, p. 1267; § 2047, p. 1268; § 2048. p. 1271; § 2050, p. 1274; § 2081, p. 1288: § 2089, p. 1293; § 2097, p. 1296; § 2169, p. 1336; § 2169, p. 1337; § 2171, p. 1338; § 2172, p. 1338; § 2172, p. 1339; §'2]73, p. 1339; § 2174, p. 1339; § 2176, p. 1340; § 2211. p. 1359; § 2511, p. 1512; § 2521, p. 1519; § 2754, p. 1620; § 2785. p. 1630; § 2839, p. 1659; § 2840, p. 1660; § 2846, p. 1662. Smith V. Keegan, § 2522. p. 1520; § 2533, p. 1526; § 2545, p. 1533; § 2637, p. 1571. Smith, Liddon & Bro. v. Smith, Linn z'. Smith Lumber Co.. In re. § 801, p. 468; § 1204, p. 698. Smith, McMurtrey v. Smith 7'. Mason, § 1655, p. 1029; § 2864 p. 1682 re, oni'th & Xixou Piano Co., In 1228, p. 730. Smith V. Parsons, § 1627, p. 993. Smith Perkins Co., Gleason v. Smith, Plymouth Cordage Co. v. Smith & Shuck, In re, § 1140, p. 668; § 1212, p. 711; § 1215, p. 718; § 1241, p. 736. Smith v. Stanchfield, § 2718, p. 1607; § 2721, p. 1607; § 2723, p. 1608. Smith z'. Township, § 551, p. 335; § 1567, p. 941; § 1883, p. 1169; § 1883, p. 1172; § 1884, p. 1174; § 1884, p. 111-7; § 1885, p. 1178; § 1885, p. 1179; § 1888, p. 1181 Smith & Wallace Co. a. ^... 2748, p. 1617; § 2748, p. 1618. Smith "' \Mht^f>'\(^r S fij-i n :'. Lambert, § § V. Wheeler, § 644, p. 385; 2741, p. 1615. Smith V. Zachry, § 1086, p. 615; § 2668. p. 1588; § 2673, p. 1590. Smithwick, Brinkley v. Smythe, Crane Co.z;. Snell, In re, § 1451, p. 860; § 1588, p. 962; § 1903, p. 1190. Snyder v. Bougher, § 1999, p. 1236 Snyder, Breckons v. Snyder v. Guthrie, § 1104 " ""^ 110~ """ " p. 628; § 7, p. 633; § 2704, ■ " ■ " ~~'" p. 16uo. ion Co., In re, § 94, 1416, p. 839; § 1427, Snyder & Johns p. 89. Solberg. Lill z<. Soldosky, In re. p. 846. Soloman, Grill v. Sonnabend, In re, § 523, p. 325; § 2391, p. 1445. Sonneborn v. Stewart. § 354, p. 237. Soper & Slada, In re, § 2303, p. 1402; § 2304, p. 1402; § 2310, p. 1404. Soudans M'f'g Co., In re, § 1262, p. 744; § 1314. p. 771; § 1357, p. 791; § 1357, p. 792; § 1500, p. 896; § 1500, p. 897; § 1501, p. 898; §^ 1504, p. 900; § 2900, p. 1702; § 2923, p. 1713. Southern Car & Fdy. Co., Ross Mee- ham Fdy. Co. z'. Southern Loan & Trust C bow, § 18, p. 34; § 19 " ' ; 18, p. 34; § 1>J. p. 36; § 22, p 38; § 1885. p. 1178; § 1965, p. 1"~" Ben- !, p. 223. 2028 TABLE OF CASES. Southern Pine Co. v. Savannah Trust Co., § 1146, p. 677; § 2861, p. 1671. Spalding, In re, § 98, p. 95; § 150, p. 130; § 151, p. 132; § 152, p. 132; § 153; p. 133; § 155, p. 133; § 157, p. 134; § 158, p. 134; § 158, p. 135; § 159, p. 137; § 350, p. 236; § 352, p. 236. Sparhawk v. Richard, § 131, p. 114. Sparhawk v. Yerkes, § 935, p. 524. Spear, Crosby v. Spear, In re, § 2544, p. 1532. Speer Bros., In re, § 2241, p. 1371. Spencer v. Duplan Silk Co., § 1686, p. 1037; § 2864, p. 1679; § 3017, p. 1746. Spencer, Duplan Silk Co. v. Speyer, In re, § 1819, p. 1115. Spicer, In re, § 494, p. 313; § 2303, p. 1402; § 2782, p. 1628. Spike & Iron Co. v. Allen, § 128, p. 113; § 138, p. 120; § 138, p. 122: § 139, p. 122; § 142, p. 125; § 171, p. 144; § 1385, p. 815. Spitzer, In re, § 1780, p. 1079; § 1781, p. 1080; § 1797, p. 1093; § 1798, p. 1098; § 1814, p. 1112. Spoke & Nipple Co., M'fg Co. v. Spring 7'. Ins. Co., § 1372, p. 801. Staake, First National Bk. v. Staake, Receivers v. Staale, Evans v. Stahl, Furth v. Stahl, Silberstein v. Stalker, In re, § 2141, p. 1319; § 2141, p. 1320; § 2147, p. 1324; § 2148, p. 1327; § 2153, p. 1330; § 2154, p. 1330. Stanchfield, Smith v. Standard Laundry Co., In re, § 1144, p. 673; § 1148, p. 678; § 1207, p. 700. Standard Spoke & Nipple Co., Bean- Chamberlain M'fg Co. V. Stansell, In re, § 233, p. 182. Stapleton, Ex parte, § 674, p. 412. Stark, In re, § 2544, p. 1533; § 2545, p. 1533; § 2549, p. 1536. Stark V. Stinson, § 2716, p. 1606. State Bank v. Cox, § 1117, p. 639; § 1121, p. 640; § 1126, p. 642; § 1138, p. 665; § 1207, p. 703; § 1215, p. 718; § 1453, p. 862; § 1808, p. 1108. State Bank, Cox v. State Bank, Cullinane v. State Bank, First National Bank v. > State, Burrell v. State ex rel. Strohl v. Sup. Ct. of Kings Co., § 1461, p. 867. State of New Jersey v. Anderson, § 2141, p. 1319; § 2155, p. 1330; § 2155, p. 1331; § 2156, p. 1331; § 2156, p. 1332; § 2157, p. 1332; § 2158, p. 1332. State of Pennsylvania, v. W. & B. Bridge Co., § 2659, p. 1578. State National Bank, First National Bank of Miles City v. State V. Strait, § 2323, p. 1412. Staufifer, Coal & Coke Co. v. Staunton, In re, § 1041, p. 592; § 1055, p. 605; § 1097, p. 623. Steadman v. Taylor, § 1950, p. 1215. Steam Vehicle Co. of Am., § 1279, p. 756. Stearns v. Flick, § 1614, p. 981. Stedman v. Bank of Monroe, § 1314, p. 771; § 1324, p. 776; § 1326, p. 777; § 1395, p. 823; § 1396, p. 825; § 1500, p. 897. Steed & Curtis, In re, § 1047, p. 596; § 2318, p. 1410; § 2480, p. 1497; § 2557, p. 1540; § 2597, p. 1554; § 2598, p. 1554; § 2603, p. 1556; § 2630, p. 1569; § 2638, p. 1572; § 2639, p. 1572. Steel Co., Woodford r. Steele v. Buel, § 1003, p. 557; § 1022, p. 571; § 1041, p. 592; § 2864, p. 1679; § 2892, p. 1698; § 2805, p. 1705; § 2906, p. 1704; § 2911, p. 1705; § 2928, p. 1714; § 2930, p. 1715; § 2982, p. 1733; § 2992, p. 1736. Steele, In re, § 1004, p. 558; § 1015, p. 565. Steers Lumber Co. In re, § 1280, p. 757; § 1421, p. 842; § 1421, p. 843; § 1427, p. 846. Stegar, In re, § 291, p. 210; § 301, p. 216; § 302, p. 216; § 303, p. 217. Stein & Co., In re, § 54, p. 64; § 59, p. 65; § 76, p. 78; § 96, p. 93; § 198, p. 164; § 207, p. 171; § 268, p. 198; § 269, p. 200; § 306, p. 219; § 309, p. 220; § 311, p. 220; § 731, p. 439; § 1055, p. 605; § 1058, p. 606; § 1069, p. 609; § 1089, p. 616; § 2214, p. 1360; § 2238, p. 1369. Stein, Lipman v. TABLE OF CASKS. 2029 Steindler & Hahn, In re, § 2469, p. 1492; § 2481, p. 1498; § 2511, p. 1511; § ;511, p. 1512; § 2521, p. 1519; § 2814, ). 1647. P t Steiner teiner, In re, § 24, p. 39. teiner v. Marshall, § 1047, p. 599; § 2916, p. 1709; § 2917, p. 1709; § 2918, p. 1709; § 2930, p. 1715; § 2949, p. 1722. Steinharclt z'. Xat'l Bk. 1180, p. 692. Steininger, In re, § 177, p. 148. Steininger Mercantile Co., In r( § 629, p. 374; § teininger. In re, § 177, p. 148. teininger Mercantile Co., In re, § 1494, p. 891; § 1733, p. 1067. telling z'. Jones Lumber Co., § 1146, p. 677; § 1258, p. 742; § 1691, p. 1042; § 1696, p. 1045; § 2874, p. 1686; § Stellin p. 67 § 1696, 2878, p. 1689; § 2920, p. 1710. Stengel, Leidigh Carriage Co. v. Steoling, Godshalk v. Stephens, Hanson v. Stephens, In re, § 1047, p. 599; § 1098, p. 623; § 2861, p. 1670. Stephenson, In re, § 265, p. 197. Sterling, Ahrens & Co., In re, § 1520, p. 904; § 1522, p. 905. Sterllow z'. Schloss, § 171, p. 144. Stern, Falk & Co. z: Trust Co., § 1224, p. 725; § 1299, p. 763; § 1332, p. 781; § 1335, p. 783; § 1393, p. 821; § 1770, p. 1076. Stern, In re, § 230, p. 179; § 232, p. 180; § 242, p. 186; § 674, p. 410; § 687, p. 416; § 704, p. 423; § 707, p. 425; § 826, p. 479; § 851, p. 490; § 902, p. 516; § 1196, p. 696. Stern v. Mayer, § 1329, p. 778. Stern & Schonfield, § 265, p. 197. Steuer, In re, § 501, p. 320; § 527, p. 329; § 545. p. 333; § 1653, p. 1027; § 1695, p. 1044; § 1695, p. 1045; § 1696, p. 1045; § 1698, p. 1048; § 1698, p. 1049; § 1699, p. 1049; § 1699, p. 1050; § 1811, p. 1110; § 1832, p. 1127; §1863, p. 1159; § 1888, p. 1181; § 1901, p. 1188; § 1918, p. 1195; § 1921, p. 1196. Stevens, Bank v. Stevens, Briggs v. Stevens, Davis v. Stevens, Dunnigan v. Stevens, In re, § 602, p. 358; § 603, p. 359; § 614, p. 364; § 617, p. 366; § 1486, p. 885; § 2259, p. 1385; § 2260, p. 1385; § 2796, p. 1637. Stevens, Jones v. Stevens v. Meyer, § 2682, p. 1594; § 2682, p. 1595; § 2687, p. 1596; § 2706, p. 1603; § 2707, p. 1604. Stevens v. Nave-McCord Co., § 17, p. 34; § 205, p. 168; § 233, p. 182; § 233, p. 183; § 632, p. 376; § 28.36, p. 1656; § 2888, p. 1697; § 2890, p. 1697; § 2893, p. 1698. Stevenson, In re, § 189, p. 154; § 283, p. 205; § 284, p. 205; § 1375, p. 803; § 1454, p. 863. Stevenson & King, In re, § 1041, p. 593; § 1042, p. 593; § 1047, p. 595; § 1047, p. 596. Stevenson r. Milliken, § 1395, p. 823; § 1407, p. 834. Stevenson r. Milliken-Tomlinson, § 1343, p. 786; § 1343, p. 787. Stewart, In re, § 303, p. 217. Stewart v. Piatt, § 1144, p. 674; § 1209, p. 707; § 1993, p. 1234. Stewart, Sonneborn v. Stich V. Berman, § 1170, p. 687; § 1182, .p. 692; § 1182, p. 693; § 1367, p. 794. Stiffler, Githens v. Stillwell, In re, § 900, p. 516. Stinson, Stork v. Stix, Wolf V. Stocking, Savory v. Stoddard, In re, § 2492, p. 1505. Stoever, In re, § 707, p. 425; § 707, p. 426'; § 730, p. 439; § 840, p. 484; § 2189, p. 1346; § 2191, p. 1346; § 2192, p. 1346; § 2193, p. 1346. Stoever, Parmenter M'f'g Co. z\ Stokes, In re, § 34, p. 54; § 64, p. 69; § 65, p. 71; § 1047, p. 599; § 1461, p. 867; § 1611. p. 978; § 1612, p. 979; § 1665, p. 1031; § 2233, p. 1367; § 2248, p. 1373; § 2663, p. 1585. Stone, In re. § 1041, p. 593; § 1042, p. 593. Stone z'. Jenkins, § 2347, p. 1424. Stone & Supply Co., Weaver v. Stoner, In re, § 1135, p. 648. Storck Lumber Co.. In re, § 97, p. 94; § 166, p. 140; § 321, p. 224; § 333, p. 227; § 1602, p. 967; § 1625, p. 989; § 1626, p. 990; § 1634, p. 1008. 2030 TABLE OF CASES. 125: itton, Holden v. luse V. Hooper, § 59, p. 65; § 2232, 1366; § 2243, p. 1371; § 2251, p. 1374; 2457, p. 1487; § 2469, p. 1492; >: Storm, In re, § 97, p. 94; § 142, p. § 150, p. 131. Stotts, In re, § 2045, p. 1267; § 2053, p. 1275; § 2054, p. 1276; § 2089, p. 1293; § 2091, p. 1295. Stout, In re, § 643, p. 383; § 644, p. 384; § 850, p. 490; § 1032, p. 579; § 1035, p. 587; § 1047, p. 597; § 1310, p. 767; § 2861, p. 1670. Stover, In re, § 824, p. 477. , Strain v. Gourdin, § 131, p. 115. Strait, In re, § 265, p. 197. Strait, State v. Stratemeyer, In re, § 2045, p. 1267; § 2078, p. 1287; § 2082, p. 1288; § 2086, p. 1291; § 2087, p. 1293; § 2088, p. 1293. Stratton, Holde Strause v. H p. 1366; § 2: § 2457, p. 1487; § 2469, 2480, p. 1496. Strickley, Highland Boy v. Strobel v. Knost, § 1421, p. 843. Strohl, ex rel. v. Sup. Ct. Kings Co., § 150, p. 130; § 1634, p. 1008. Stroud V. McDaniel, § 1199, p. 697. Stroud, McDaniel v. Structural Stee] Car Co., In re, § 707, p. 425. Stucky V. Masonic Savings Bank, § 1407, p. 835. Studebaker, In re, § 2550, p. 1537. Stumpf. In re, § 2898, p. 1701; § 2928, p. 1714. turgeon. In re, § 552, p. 336; § 1570, p. 943; § 1571, p. 943. Sturgis V. Corbin, § 1934, p. 1208; § 1953, p. 1216; § 1953, p. 1217; § 1954, p. 1218; § 1960, p. 1221; § 1965, p. 1224. Sturgis V. Crowninshield, § 1627, p. 992; § 1631, p. 1003; § 1632, p. 1004. Stursburg, A^lowitch v. Stuyvesant, In re, § 1547, p. 925; § 1573, p. 943. St p. 943. Styer, In re, § 532, p. 331; § 533, p. 331; § 1927, p. 1204; § 1945, p. 1214; § 1946, p. 1214; § 1971, p. 1226; § 1975. p. 1228. Suffel V. Nat'l Bk., § 1402, p. 830; § 1403, p. 830; § 1407, p. 834; § 1410, p. 836: S 1410. D. 837: 8 1729. o. 1064. Su 836; § 1410, p. 837; § 1729, p. 1064. enheimer. In re, § 584, p. 351; § 588 " ■'''''■ « ^--^ - ^«« nneiiiier, xii ic, s oo'±, p. ooi, jj 3o, p. 353; § 614, p. 365. Sullivan, In re, § 1041, p. 593; § 1042, p. 593; § 1047, p. 595; § 2691, p. 1597; § 2754, p. 1620. Sullivan, King v. Sully, In re, § 821, p. 476; § 915, p. 521; § 818, p. 475; § 822, p. 476; § 824, p. 477; § 824, p. 478; § 826, p. 479; § 827, p. 479; § 2116, p. 1304; § 2119, p. 1307. Summers v. Abbott, § 142, p. 125; § 144, p. 127; § 1606, p. 976; § 1614, p. 980; § 1615, p.'982. Sumner, In re, § 571, p. 346; § 814, p. 474; § 815, p. 474; § 844, p. 486; § 846, p. 488; § 863, p. 496. Sundheim, Bank v. Sundheim v. Ridge Ave. Bk., § 1396, p. 823: § 1396, p. 824; § 1398, p. 826; § 1399, p. 827; § 1400, p. 828; § 1401, p. 829. 829. Sundheim, Ridge Ave. Bk. v. Sunseri, In re, § 336, p. 231; § 340, p. ~ 1, p. 233; § 355, p. 237; § 355, 1863, p. 1159; § 1864, p. 1159. Sunseri, In re, § 336, p 233; § 341, p. 233; § 35 . p. 238; § 1863, p. 1159; § 1864, p Superior Court, Herron Co. v. Sup. Ct. of King Co., State ex Strohl z'. Surety & Guarantee Trust Co., In re, § 79, p. 79; § 82, p. 82; § 83, p. 83; § :• s QA T^ 89. rel. 94, p. 88; § 94, p. 89. Sutherland v. Lasher, § 486, p. 311; § 489, p. 312; § 2443, p. 1477; § 2667, p. p. 1595: § 276 1626; § 2777, p. 489, p. 312: § 2443, p. 147., ^ , ^ 1587; § 2686, p. 1595: § 2764, p 1624; § 2774, p. 1626; § 2777, p. 1627; § 2781, p. 1628. Sutter Bros., In re, § 1572, p. 943; § 1705, p. 1051. Swafford v. Cornucopia Mines, § 1686, p. 1037. at'l Bk., § 17, p. 34; § 759; § p. 1U,)(. Svvarts V. Fourth Nat'l Bk.,. § 17, p. 34; § 629, p. 374; § 644, p. 384; § 645, p. 387; § 756, p. 449; §^757, p. 450; § 1274, p. 753; § 1276. p. '754; § 1277, p. 756; § 1288, p. 759; § 1289, p. 759; § 1310, p. 767; § 1385, p. 815; § 1387, p. 818; § 1390, p. 820; § 1411, p. 838; § 1421, p. 844; § 2741, p. 1615. Swarts V. Hammer, § 2152, p. 1329. TABLE OP CASES. 2031 p- 18; 1, p. 644, 767; P- 20 Swarts, People v. Swarts V. Siegel, § 20, p. 37; § 22, § 231, p. 180; § 419, p. 270; § CI 362; § 611, p. 363; § 629, p. 374; § p. 384; § 645, p. 387; § 1310, p. § 1411, p. 838; § 1421, p. 843; § 222 1361; § 2220, p. 1362. Sweetser, Pembroke & Co., In re, § 686, p. 416. Swift. In re, § 629, p. 374; § 636, p. 378; § 640, p. 381; § 672, p. 407; § 674, p. 411; § 707, p. 426; § 766, p. 455; § 804, p. 470; § 1519, p. 904; § 1521, p. 905; § 1884, p. 1173; § 2236, p. 1367; § 2839, p. 1659; § 2845, p. 1661; § 2861, p. 1672. Switzcr, In re, § 1842. p. 1138; § 1850, p. 1149; § 1859, p. 1157. Swords, In re, § 1032, p. 579; § 1034, p. 585; § 1034, p. 587. Sykes, In re, § 2417, p. 1464. Syman, Harvester Co. v. Syman, International Harvester Co. v. Symonds, Elmore v. Taft V. Century Savings Bk., § 29, p. 45; § 30, p. 46; § 2888, p. 1697; § 2893, p. 1698: § 3004, p. 1739. Taft, In re, § 1883. p. 1169; § 1883. p. ,1172; § 2282, p. 1396; § 2839, p. 1659; § 2847, p. 1662; § 2849, p. 1663; § 2855, p. 1666; § 2857, p. 1668; § 2942, p. 1719; § 2947, p. 1722; § 2948, p. 1722; § 2649, p. 1722: § 2955, p. 1724. Talbott, Bashinski v. Talbott, In re, § 627, p. 373; § 631, p. 375; § 780, p. 461; § 798, p. 467. Talton, In re, § 2045, p. 1267; § 236S, p. 1435. Tanner, In re, § 1189. p. 695; § 1191, p. 695; § 1422, p. 844; § 1427, p. 846. Tanner, Olney v. Taplin, In re. § 2596, p. 1553;- § 2596, p. 1554; § 2605, p. 1558. Tarante, ex rel. t'. Erlanger, § 472, p. .306. Tatem, Mann & Co., In re, § 1241, p. 736; § 1614, p. 981. Tatman v. Humphrey, § 1369, p. 795. Tatman, Humphrey 2'. Taylor, Hunt v. Taylor, In re, § 30. p. 48; § 46, p. 59; § 46, p. 60; § 244. p. 187; § 245, p. 188; § 317, p. 222; § 320, p. 223; § 330, p. 226; § 1098, p. 623; § 1841, p. 1136; § 1842, p. 1137. Taylor, Lumber Co. z'. Taylor, North, Trustee, v. Taylor v. Taylor, § 896, p. 511; § 896, p. 512; § 1455, p. 863; § 1582, p. 954; § 1586, p. 960; § 1593, p. 964. Teague, In re, § 1412, p. 838. Tebbetts, In re, § 2460, p. 1488. Tebo, In re, § 1898, p. 1187; § 1989, p. 1233; § 1993, p. 1234; § 2030, p. 1260; § 2045, p. 1267. Tecopa Min. & Smelt Co., In re, § 84, p. 83; § 90, p. 87. Tefft V. Providence Washington Ins. Co., § 1122, p. 641. Tefft-Weller Co., MacDonald v. Tenney, May v. Terrell, Adams v. Terrill In re, § 1266, p. 746; § 1376, p. 803; § 2043, p. 1265; §• 2045, p. 1267; § 2090, p. 1294; § 2090, p. 1295. Terry z: Johnson, § 1510, p. 902; § 1511, p. 902. Teschmacher & Mrazay, In re, § 1652, p. 1022; § 1653. p. 1023; § 1699, p. 1049; § 1796, p. 1089; § 1863, p. 1159; § 1864, p. 1160. Teslow, In re, § 1421, p. 843. Teuthorn, In re, § 902, p. 516. Thackara, Bassett z'. Thackara, In re, § 1265, p. 745. Thackara M'f'g Co., In re, § 1140, p. 668; § 1459, p. 866. Theise, Haack z'. '"Viessen, In re, § 987, p. 550. omas z'. Adelman, § 1395, p. 823; § 1396, p. 824. homas. In re, § 135, p. 119; § 136, p. 119; § 1072, p. 610; § 2258, p. 1384; § 2457, p. 1487; § 2468, p. 1491; § 2469, p. 1492; § 2662, p. 1585; § 2663, p. 1585; § 2748, p. 1617. Thomas, Merchants' Bk. z'. Thompson r. Fairbanks, § 1139, p. 667; § 1140. p. 668; § 1140, p. 669; Thi Th Tl )mpson z'. I'airbanks, § 1139, p. 667; 1140. p. 668; § 1140, p. 669; § 1140, 671; § 1144, p. 673; § 1214, p. 717; 1235, p. 734; § 1237, p. 735; §.1238, 735; § 1258. p. 742; § 1371, p. 800; :58. p. 742; § 1371, p. 800; i.i. p. »02; § 1436, p. 849; 865; § 1489, p. 886; § 1489, p. 735; § 1258. p. 742; § § 1373, p. 802; § 1436, p. 849; § 1459, D. 865: § 1489. n. 886; § " p. 888; 2032 TABLE OF CASES. § 1492, p. 890; § 1498, p. 895; § 1505, p. 901; § 1896, p. 118n p. 901; § 1896, p. 1185. Thompson, In re, § 48, p. 61; § 50, p. 62; § 233, p. 182; § 1047, p. 596; § 1047, p. 598; § 1096, p. 622; § 1098, p. 623; § 1202, p. 698; § 1602, p. 967; § 1604, p. 975; § 1611, p. 978; § 1612, p. 979; § 1665, p. 1031; § 1824, p. 1120; p. yvy; § J-0d5, p. 1031; § 1824, p. 1120; § 1827, p. 1122; § 1836, n 1129- 8 1953. 1217. Th Th p. 1129; § 1953, 1217. ..ompson ^Mercantile Co., In re, § 693, p. 420; § 1485, p. 884; § 1487, p. 885; § 1490, p. 888. hompson's Sons, In re, § 617, p. 366; § 717, p. 430; § 736, p. 440; § 1416, p. 839; § 1421, p. 844; § 1427, p. 846. Thompson, Watschke v. Thompson, White v. Thornor, Ahl v. Thornton v. Hogan, § 444, p. 283. Thornton v. Nichols ■& Lemon, § 2718, p. 1607; § 2719, p. 1607; § 2722, p. 1607; § 2728, p. 160&. Thorp, In re, § 1138, p. 663; § 1207, p. 700; § 1212, p. 710; § 1230, p. 732; § 1248, p. 740. Throckmorton, In re, § 1960, p. 1221; § 2942, p. 1720. Tice, In re, § 1140, p. 667; § 1228, p. 728. Ticknor, Paret z\ Tiffany v. Boatman's Inst., § 1500, p. 896; § 1504, p. 899. Tiffanj^ Hosmer v. Tiffany, In re, § 972, p. 545; § 975, p. 546; § 1265, p. 745; § 1439, p. 850; § 1654; p. 1028; § 1901, p. 1188; § 1907, p. 1191; § 2446, p. 1478; § 2655, p. 1578. Tiffany z:' Institution, § 1314, p. 770; § 1503, p. 899. Tiffany v. La Plume Condensed Milk Co., § 31. p. 52; § 95, p. 92; § 97, p. 93. Tiffany z: Lucas, § 1494, p. 892. Tiffin Sav. Bank, Keppel v. Tifft, In re, § 1705, p. 1051. Tift, Silvery Co. v. Tilden, In re, § 523, p. 325; § 536, p. 331; § 2141, p. 1319; § 2141, p. 1320; § 2146, p. 1323. Tillyer, In re, § 2522, p. 1521. Tindle v. Birkett, § 2731, p. 1610; § 2732, p. 1612; § 2733, p. 1613; § 2748, p. 1617; § 2783, p. 1628; § 2784, p. 1629; § 2785, p. 1629. Tinker, Colwell v. Tinker v. Colwell, § 2754, p. 1620; § 2760, p. 1621. Tinker, In re, § 2468, p. 1491; § 2470, p. 1493; § 2472, p. 1494; § 2662, p. 1584; § 2665, p. 1587. Tirre, In re, § 205, p. 168. Title & Trust Co., Bank v. Title & Trust Co. v. Pearlman, § 393, p. 257; § 399, p. 261. Tobias, In re, § 1035, p. 589; § 1047, p. 595; § 1098, p. 623. Todd, In re, § 490, p. 312; § 535, p. 331 § 1050, p. 603; § 1579, p. 945; § 1995 p. 1234; § 2002, p. 1244; § 2003, p 1244; § 2004, p. 1245; § 2005, p. 1245 § 2006, p. 1245; § 2007, p. 1246; § 2011 p. 1249; § 2027, p. 1258; § 2031, p 1260; § 2494, p. 1505; § 2539, p. 1528 § 2547, p. 1534. Tollett, In re, § 1062, p. 607; § 1095, p. 621; § 1096, p. 622. Tomlinson v. Bk. of Lexington, § 1297, p. 763; § 1329, p. 778; § 1341, p. 785; § 1370, p. 797; § 1396, p. 825. Tomplins z\ Hazen, § 2718, p. 1607.' Tonawanda Street Planing Mill Co., In re, § 188, p. 154; § 189, p. 154. Tontine Surety Co., In re, § 87, p. 85. Toof z: Martin, § 132, p. 115; § 132, p. 117; § 1399. p. 827; § 1409, p. 836; § 1410, p. 837. Toothacker, In re, § 872. p. 499; § 1217, p. 722; § 1499, p. 895; § 2500, p. 1507; § 2502, p. 1507; § 2507, p. 1508; § 2505, p. 1508; § 2521, p. 1520; § 2541, p. 1529; § 2816, p. 1648; § 2822, p. 1649. Topliff, In. re. § 804, p. 470; § 1418, p. 840; § 1419*, p. 841. Topliff, Parsons z'. Torrance. ]\Iollan v. Torrance v. Winfield Nafl Bk., § 1370, p. 797. Torre3% Frey z\ Towne, In re, § 725, p. 437. Townsend, Couts v. Township, Smith v. TABLE OF CASES. 203S Tracy, In re, § 2663, p. 1585. Traders' Bk. v. Campbell, § 131, p. 114 § 1180, p. 691. Traders' Ins. Co. v. Mann, § 899, p. 515 § 899, p. 516; § 1641, p. 'lOll; § 1721 p. 1061; § 1722, p. 10t52; § 1797, p 1093.- Trainos, Gruenberg v. Traphagen, Ex parte, § 2460, p. 1488. Treat v. Wooden, § 1780, p. 1080; § 1785, p. 1081; § 1797, p. 1092; § 1814, p. 1112. Tredway, Kaufman v. Tribelhorn, In re, § 204, p. 167; § 208, p. 171; § 209, p. 171; § 213, p. 172; § ■213, p. 173; § 237, p. 185. Trigg, Seaboard Steel Casting Co. v. Troeder, In re, § 2523, p. 1523; § 2533, p. 1526; § 2583, p. 1549; § 2603, p. 1557; § 2606, p. 1558; § 2635, p. 1571; § 2639, p. 1572. Trombly, In re, § 780, p. 461; § 781, p. 461; § 798, p. 466; § 1047, p. 597. Troppner, Elliott v. Troth, In re, § 2011, p. 1249; § 2117, p. 1305; § 2660, p. 1578. Troy Steam Laundering Co., In re, § 87, p. 86; § 94, p. 88. Troy Wagon Works v. Vastbinder, § 121, p. Ill; § 126, p. 113; § 329, p. 226; § 333, p. 226; § 1228, p. 728; § 1299, p. 763; § 1303, p. 764; § 1342, p. 786; § 1353, p. 791. Troy Woolen Co., In re, § 2827, p. 1653. Trust V. Child, § 1370, p. 797. Trust Co., Carson, Pirie & Co. v. Trust Co., Frazier v. Trust Co., Stern, Falk & Co. v. Trust Co. V. Wallis, § 1819, p. 1115; § 1822, p. 1119; § 1840, p. 1135; § 1842, p. 1138; § 1844, p. 1141; § '1856, p. 1154. Trust Co. & Warehouse Co. v. Wilson, § 1146, p. 677. Trustee v. Mercantile Nat'l Bk., § 1171, p. 688; § 1187, p. 694. Tucker v. Curtin, § 798, p. 466; § 1150, p. 679. Tucker, In re, § 780, p. 461; § 798, p. 466: § 858, p. 492. Tudor, In re, § 1819, p. 1115; § 1836, p. 2 Rem B— 53 1864, p. 1161; § 1901, p. 1188; § 1910, p. 1191; § 2682, p. 1594; § 2700, p. 1601; § 2702, p. 1602; § 2704, p. 1603; § 2705, p. 1603; § 2706, p. 1603. TurnbuU, In re, § 1047, p. 597; § 1085, p. 615. Turner, Davis v. Turner v. Fisher, § 1395, p. 822; § 1396^ p. 824; § 1400, p. 828; § 1403, p. 831; § 1407, p. 834; § 1409, p. 835. Turner, Phillips v. Turner v. Turner, § 683, p. 415; § 2691, p. 1597; § 2756, p. 1620. Turner, Turner v. Turpin, Sawyer v. Turrentine z\ Blackmore, § 2330, p. U414. T 1128; § 1841, p. 1137; § 1845, p. 114L, § 1854, p. 1153; § 2861, p. 1670. une. In re, § 1028, p. 577; § 1100, p. 626; § 1447, p. 855; § 1462, p. 868; § -I ICO »^ QCa. S -I ARQ r^ Q7Q- S 1463, p. 869; § 1468, p. 873; § 1582, p. I; § 1827, p. 1124; § 1863, p. 1159; § U n llfil! 8 1901. n. 1188: S 1910. 952 Turrentine v. Blackwood, § 1582, p. mtme v. Blackwood, § issz, p. 949; § 1582, p. 953; § 1797, p. 1094; § 1798, p. 1098. Tuttle, Goodall v. Tuxbury v. ]\Iiller, § 2814, p. 1647. Twadell, In re, § 970, p. 543; § 971, p. 544; § 972, p. 544; § 972, p. 545. Tweed, In re, § 1212, p. 711; § 1215, p. 718; § 1228, p. 729; § 1241, p. 736; § 1249, p. 740. Tybo Min. & Reduc. Co., In re, § 18, p. 36; § 294, p. 213; § 295, p. 213; § 297, p. 214; § 1705, p. 1053. Tyler, In re, § 1439, p. 850; § 1605, p. 975. Tyrrel v. Hammerstein, § 2761, p. 1622; § 2773, p. 1626. Ulfelder Clothing Co., In re, § 444, p. •283; § 448, p. 295. Ullman, \^ehoa v- Ullman, Vernon z'. Umstadtter, Ludvigh zK Union Feather & Wool Mfg. Co., In re, § 1314, p. 772. Union Nat'l Bk. v. ]McKay, § 1173, p. 688. Union Nat'l Bk. v. Neill, § 794, p. 465; § 2240, p. 1370; § 2887, p. 1696; § 2898, p. 1701; § 2918, p. 1709. 2034 tabive; of cases. Union Surety Co., U. S. ex rel. v. Union Surety & Guaranty Co., Alex v. Union Trust Co. v. Bulkeley, § 555, p. 338; § 556, p. 338; § 853, p. 490; § § 858, p. 490; § 1140, p. 670; § 1150, p. 679. Union Trust Co., Euclid National Bank v. Union Trust Co., In re, § 1885, p. 1177; § 1967, p. 1225; § 2881, p. 1690. United Button Co., In re, § 293, p. 213; § 296, p. 213; § 297, p. 214; § 297, p. 215; § 636, p. 377; § 636, p. 378; § 702, p. 423; § 705, p. 424; § 710, p. 427; § 712, p. 428; § 713, p. 428; § 714, p. 428; § 1705, p. 1052; § 2160, p. 1333; § 2731, p. 1611; § 2731, p. 16'12. United States v. Behan, § 687, p. 417. United States Hotel Co., In re, § 82, p. 81; § 83, p. 82; § 83, p. 83; § 94, p. 88; § 94, p. 89. Unitype Co. v. Long, § 1241, p. 736; § 3000, p.' 1738. Unmack v. Douglass, § 1494, p. 891. Upshur V. Briscoe, § 2785, p. 1630. Upson, In re, § 636, p. 378; § 799, p. 467; § 2806, p. 1644; § 2815, p. 1647; § 2815, p. 1648. Upson, Marks v. Upson V. Mt. Morris Bk., § 1283, p. 758; § 1303, p. 765; § 1343, p. 786; § 1343, p. 787; § 1364, p. 794; § 1395, p. 822: S 1396. D. 824: § 1396. p. 825; § 1343, p. ■{»'{; 9 ic!t)4, p. iyi; § 822; § 1396, p. 824; § 1396, p. 825; § 1397, p. 825; § 1399, p. 827; § 1405, p. 832; § 1407, p. 834; § 1409, p. 836. Upson, Young v. Upton, Sawyer v. Urban & Suburban, In re, § 30, p. 49; §314, p. 221; § 433, p. 277; § 436, p. 279; § 437, p. 280. U. S., Bartlett v. U. S., Boyd v. U. S. V. Carll, § 255, p. 191 1560. U. S. V. Cohn, § 2319, p. 1410; § 2316, p. 1410; § 2318, p. 1410; § 2319, p. 1411; § 2482, p. 1501; § 2498, p. 1506; § 2500, p. 1506; § 2508, p. 1509. U. S., De Lemos v. U. S., Edelstein v. U. S. ex rel. Adler v. Hommond, § 17, p. 32; § 23, p. 38; § 2345, p. 1423; § 2608, p. 2349, p. 1426; § 2384, p. 1441; § 2385, p. 1442; § 2410, p. 1454; § 2411, p. 14.54; § 2414, p. 1459. U. S. ex rel. Scott v. McAleese, § 467, p. 305; § 472, p. 306. U. S. ex rel. v. Union Suretj^ Co., § 877, p. 502. U. S. Fidelity & Guaranty Co., Wood v. U S., Field v. U. S. Food Co., In re, § 1223, p. 725; § 1314, p. 771; § 1319, p. 774; § 1379, p. 804; § 1500, p. 896. U. S. V. Goldstein, § 1557, p. 932; § 1558, p. 933; § 1562, p. 939; § 2320, p. 1411; § 2330, p. 1414; § 2333, p. 1417; § 2338, p. 1419; § 2491, p. 1504; § 2500, p. 1506. U. S. V. Lake, § 171, p. 145; § 2316, p. 1410; § 2321, p. 1411; § 2321, p. 1412; § 2325, p. 1412; § 2326, p. 1412. U. S., Ledbetter v. U. S. V. Levinson & Kornblut, § 2316, p. 1410; § 2487, p. 1503; § 2500, p. 1506; § 2511, p. 1511; § 2511, p. 1512; § 2511, p. 1513. U. S. z'. Lowenstein, § 2316, p. 1410. U. S., McNeil V. U. S. V. Marsh. Chambers, § 1556, p. 931; § 2316, p. 1410; § 2323, p. 1412. U. S., Powell V. U. S. V. Simon, § 1556, p. 931 933; § 2324, p. 1412; § 23^ U. S., Wagner v. U. S. v. Wechsler, § 1547, p. 924; § 2327, p. 1413; § 2524, p. 1523; § 2525, p. 1523; § 2526, p. 1523; § 2533, p. 1526; § 2535, p. 1526; § 2540, p. 1528. U. S., Wechsler v. Utt, In re, § 1965, p. 1223; § 1989, p. 1233; § 1993, p. 1234; § 1996, p. 1234; § 1996, p. 1235; § 1996, p. 1236; § 2075, p. 1286; § 2103, p. 1299; § 2827, p. 1654; § 2835, p. 1656.. caro z'. Security Bank, § 59, p. 65; § 60, p. 67; § 150, p. 'l30; § 247, p. 189; § 2238, p. 1369; § 2255, p. 1375. entine, Blake zj. entine. In re, § 1917, p. 1194. 1558, p. p. 1413. Vac Val Val Van Van Van Alstyne, In re, § 1650, p. 1015. Buren, In re, § 681, p. 413. TABI.E OF CASES. 2035 Van Ingen v. Schophofen, § 2544, p. 1532; § 2544, p. 1533; § 2549, p. 1535. Van Kirk v. Slate Co., § 1005, p. 558; § 1014, p. 564; §'1015, p. 565; § 1016, p. 566; § 1017, p. 567; § 1116, p. 639. Van Nostrand, Minon v. Van Orden, In re, § 683, p. 415. Van Sickel, Jacobs v. Varick Bank, Hiscock v. Varnish Wks. v. Haydock, § 638, p. 379; § 639, p. 381. Vastbinder, In re, § 140, p. 122; § 140, p. 123, § 213, p. 173; § 233, p. 183; § 237, p. "185; § 257, p. 192; § 257, p. 193; § 258, p. 194; § 261, p. 195; § 277, p. 203; § 280, p. 204; § 282, p. 204; § 324, p. 225; § 1582, p. 954; § 1662, p. 1030; § 1816, p. 1114; § 1827, p. 1122; § ,1901, p. 1188; § 1903, p. 1190. Vastbinder, Troy Wagon Works z'. Vaughn, In re, § 1429, p. 847; § 1464, p. 871. Vehon v. Ullman, § 2489, p. 1504, § 2502, p. 1507; § 3001, p. 1738. Veitch, In re, § 2141, p. 1320; § 2146, p. 1323; § 2147, p. 1324. Veneer & Panel Co., In re, § 1342, p. 785; § 1370, p. 798; § 1372, p. 801. Vernon v. Ullman, § 2514, p. 1514; § 2541, p. 1531. Vetterman, In re, § 141, p. 124; § 143, p. 126; § 257, p. 193. Victor V. Lewk, § 360, p. 242; § 1917, p. 1194; § 2017, p. 1253. Viquesnay v. Allen, § 401, p. 262; § 1686, p. 1037; § 1712, p. 1057; § 1716, p. !l058; § 1718, p. 1060; § 1732, p. 0«07 r. -IRKA 1065; § 2827, p. Co., In re, Virginia Hardwood Mfg. Co., In § 444, p. 284; § 1395, p. 823; § 1398, p. 826; § 1399, p. 826; § 1399, p. 828; § 1403, p. 830; § 1404, p. 831; § 1776, o. 1078. p. 1078. Vogcl, In re, § 1798, p. 1098. VoIIkommer v. Frank, § 1267, p. 747; § "1725, p. 1063; § 1813, p. 1111. Vollkommers, Frank v. Von Hartz, In re, § 1705, p. 1051; § 1867, p. 1162. Von Kerm, In re, § 1048. p. 599; § 1048, p. 601; § 1051, p. 603; § 1052, p. 603; § 1057, p. 605; § 1063, p. 607; § 1065, p. 608; § 1066, p. 608; § 1070, p. 610. Vorchofsky, Friedman v. Waddell, E-x parte, § 1472, p. 874. Wagar, Cohen v. Wager v. Hall, § 132, p. 115; § 132, p. 117; § 1496, p. 895. V Wagner, Hays Wagner, In re, § 2427, p. 1466. agner v. U. S., § 464, p. 304; § 472, p. sn6: 8 2693. n. 1598. Wag.... .. ^. ^., , ..^ 306; § 2693, p. 1598. Wagon Co., Harriskamp v. Walburn v. Babbitt, § 1409, p. 836; § 1410, p. 837; § 1496, p. 894; § 1496, p. 895. Wald, Johnson v. :r, In re, § lui~, p. ^^^^, o - 1139; § 1842, p. 1140; § 1845, p K^ r^ 1 1 f^i Johnson v. Walder, In re, § 1842, p. 1138; § 1842, p. : S 1842. o. 1140; § 1845, p. 1143; § 1851, p. 1151. , Walker, Brown v. Walker, In re, § 465,- p. 305; § 573, p. 348; § 575, p. 348; § 580, p. 350; § 1529, p. 914; § 1532, p. 915; § 1532, p. 916; § 2461, p. 1488. Wall V. Cox, § 1653, p. 1024; § 1676, p. 1034; § 1725, p. 1063; § 1726, p. 1063. Wall, Cox V. Wallace, In re', § 444, p. 283. Walace, Wiseman z\ Wallblom, Loomis z'. Wallerstein v. Ervin, § 235, p. 183; § 802, p. 468; § 2243, p. 1371. Walles, Trust Co. v. Wallis, American Trust Co. v. Walsh, In re, § 1556, p. 931; § 1558, p. 933; § 1559, p. 937; § 1562, p. 939. Walther, In re, § 1852, p. 1152; § 2469, p. 1492; § 2480, p. 1497. Walton, In re, § 1547, p. 925. Ward, In re, § 355, p. 238; § 399, p. 261; § 541, p. .332; § 672, p. 407; § 1485, p. 884; § 1486, p. 885; § 1487, p. 885: § 1653, p. 1026; § 1654, p. 1028; § 1836, p. 1129; § 1905, p. 1190. Ward z'. Kohn, § 2047, p. 1268. Ward, Mahoney v. Warden, Electric Corp'n z'. Warehousing Co. v. Hand, § il46, p. 677; § 1207, *p. 702; § 1228, p. 728; § 1265. p. 746; § 1372, p. 801; § 1702, p. 1051; § 1900, p. 1187; § 2875, p. 1688; § 2926, p. 1714. 2036 tabi^e; of cases. p. 775. Waring v. Buchman, § 1321, p. Warne, In re, § 2511, p. 15112. Warner, In re, § 189, p. 154; § 1454, p. 863. Warren v. Bank, § 131, p. 114; § 136, p. 120. Warren v. Bishop, § 2716, p. 1606. Washburn Bros., In re, § 438, p. 281. Waterbury Furn. Co., In re, § 611, p. 363; § 1287, p. 758; § 1311, p. 768. Waterloo Organ Co., In re, § 533, p. 331; § 802, p. 469; § 1238, p. 735; § 1675, p. 1033; § 1800, p. 1099; § 1885, p. 1178; § 1885, p. 1181; § 1896, p. 1185; § 1965, p. ,1223; § 1967, p. 1225; § 1975, p. 1228; § 1994, p. 1234; § 1996, p. 1235; § 1997, p. 1236. Waters v. Davis, § 1745, p. 1071. Watertown Carriage Co. v. Hall, § 2783, p. 1628; § 2785, p. 1630. Watertown, Metcalf v. Watkinson, In re, § 709, p. 427; § 784, p. 462; § 1419, p. 841; § 1425, p. 845. Watkinson Co., George, In re, § 838, p. 483; § 842, p. 484; § 847, p. 489; § 848, p. 489; § 1570, p. 943; § 1575, p. 944. Watschke v. Thompson, § 1429, p. 847 § 1480, p. 882; - -- - - « p. 889. Watson Wats § 1489, p. 887; § 1489, V. McDuff, § 2625, p. 1566; § 2626, p. 1566. ''atson V. Merrill, § 451, p. 297; § 640, p. 381; § 652, p. 393; § 653, p. 396; § 653, p. 397; § '656, p. 400; § 660, p. 402; § 982, p. 549; § 2729, p. 1609; § 2730, p. 1610. Watson, Wilbur v. Watts, In re, § 1602, p. 967; § 1602, p. 967; § 1603, p. 972; § 1605, p. 975; § 1625, p. 987; § 1626, p. 990; § 1634, p. 1008; § 1860, p. 1158; § 2330, p. 1414; § 2491, p. 1504. Watts, Wilder v. Waugh, In re, § 20, p. 37; § 428, p. 275. Waukesha Water Co., In re, § 1707, p. 1055; § 1863, p. 1159; § 1866, p. 1162; § 1887, p. 1181; § 1889^ p. 1182. Waxelbaum, In re, § 33, p. 53; § 196, p. 160; § 293, p. 213; § 297, p. 214; § 299, p. 216; § 300, p. 216; § 304, p. Weav( 217; § 414, p. 268; § 431, p. 277; § 432, p. 277; § 1038, p. 592; § 1047, p. 599; § 1098, p. 623; § 2861, p. 1670. W. & B. Bridge Co., State of Penn- sylvania V. /■eaver. In re, § 1100, p. 624; § 1100, p. 625; § 1104, p. 628; § 1108, p. 633. Weaver v. Stone & Supply Co., § 2172, p. 1338; § 2175, p. 1340; § 2176, p. 1340. Webb, In re, § 653, p. 394; § 656, p. 399; § 2497, p. 1506; § 2508, p. 1509; § 2541, p. 1530. Webb V. Manheim, § 1726, p. 1063. Weber Furn. Co., In re, § 2361, p. 1433; § 2482, p. 1499; § 2385, p. 1441; § 2386, p. 1442. Webster, In re, § 58, p. 65. Wechsler v. U. S., § 2524, p. 1523; § 2525, p. 1523; § 2526, p. 1523; § 2533, p. 1526; § 2535, p. 1526; § 2540, p. 1528. Wechsler, U. S. v. Wehmeyer, Foryth v. Weil, In re, § 1169, p. 687; § 1879, p- 1165. Weinger, Bergman & Co., In re, § 359, p. 241; § 1443, p. 854; § 1586, p. 959; § 1807, p. 1102; § 1863, p. 1159; § 1901, p. 1188; § 1916, p. 1194. Weinger, In re, § 1429, p. 848. Weinman, In re, § 261, p. 195; § 269, p. 199; § 269, p. 200. Weinreb, In re, § 1819, p. 1115; § 1850, p. 1147; § 1851, p. 1150; § 2649, p. 1575. Weinstein, Schiller v. Weintraub, In re, § 2436, p. 1471; § 2437, p. 1471. Weis, Royston v. Weisenberg & Co., In re, § 2244, p. 1372; § 2245, p. 1372; § 2263, p. 1386. Weissner, In re, § 1287, p. 758; § 1311, n 7fifi 1508; § 2511, 1079; ■ § 1883, p. 1170. v- 768. Welch, In re, § 2505, p. p. 1512; § 2521, p. 1519. Welch V. Policy, § 1780, p. , ^ 1814, p. 1112; § 1883, p. 1170. Welling, In re, § 972, p. 545; § 1006, p. 559; § 1015, p. 565; § 1016, p. 566. ''ellinston. Sebrins- ?'. Wellington, Sebriug c. Wells, In re, Introd. (m), p. 14; § TABLE OF CASES. 2037 1022, p. 570; § 1024, p. 572; § 103. 578; § 1035, p. 589; § 1101, p. 62 llOi, p. 630; § 1228, p. 730; § 1582 p. 953; § 1582, p. 956; § ^'=°- 958; § 1796, p. 1089; § 1797, § 1807, p. 1101; § 1807, p. 101; § 1807, p. 1102; § 1807, p. 1105; § 1822, p. 1119. Wells, Mace v. p. 956; § 158 vvcub, iviace v. Welty V. Welty, § 683, p. 415; p. 1611. Wenham v. Mallin, § 2673 2678, p. 1592; § 2fi'7j: Wenham. Mallin v. W P- 7; § p- p. p. 1093 2731, din t/, nxaiiiii, >( ^\j t tjy p. loJUj :678, p. 1592; § 2678, p. 1593. /enham. Mallin v. /enman, In re, § 464, p. 304; § 471, 306; § 472, p. 306; § 2784, p. 1629; 2785, p. 1629 Wennian, Whitney v. Wertheimer, In re, § 1303, p. 765; § I6l5, p. 982; § 2521, p. 1519. \\ . 'escott V. Berry, § 1625, p. 989; „ 1626, p. 991; § 1628, p. 994; § 1629, p. 997; § 1631, p. 1003. West V. Bk. of Lahoma, § 1180, p. 691; § 1297, p. 762; § 1329, p. 778; § 1331, p. 780; § 1341, p. 785; § 1385, p. 815; § 1765, p. 1075. 'est Co. v. Lea Bros., § 26, p. 41; § 145, p. 128; § 147, p. 128; § 147, p. 129; § 149, p. 129; § 149, p. 130; § 177, p. 149; § 259, p. 195; § 1603, ;). 971; § 1603, p. 973; § 1610, p. 978. West, In re, § 177, p. 149; § 333, p. 227; § 451, p. 298; § 1C47, p. 599; § 1098, p. 623; § 1150, p. 679; § 2257, p. 1377; § 2861, p. 1670; § 3006, p. 1740. West, Lea Bros, v; Western Tie & Timber Co. v. Brown, §'1176, p. 689; § 1179, p. 690; § 1180, n. 692: S 1182. o. 692: S 1277. o. 755: p. 692; § 1182, p. 692; § 1277, p. 755; § 1303, p. 765; § 132^ - '''^s- ^ ""-"if^ *^ ryot' R lon^ *-. co 5j J.OV.O, y. .ua, s .Lo29, p. 778; § 1340. p. 784; § 1396, p. 824; § 1396, p. 825; § 1398, p. 826; § 1400, p. 828; § 1401, ^ Qon. S 11 OS .^ CQO- R 111-1 .^ QOO. § 1398, p. 826; § 1400, p. 828; § 1401 p. 829; § 1405, p. 832; § 1411, p. 838; § 1418, p. 840; § 2910, p. 1705; § 3014, p. 1745. Western Union Cold Storage Co. v. Hurd, § 2747, p. 1617; § 2783, p. 1628; § 2785, p. 1629; § 2788, p. 1632; § 2789, p. 1633. Westfall Bros. Co., In re, § 1542, p. 910. Westheimer v. Howard, § 2761, p. 1622; § 2771, p. 1626; § 2774, p. 1626. Westlund, In re, § 2135, p. 1318; § 2183, p. 1343. West Norfolk Lumber Co., In re, § 1154, p. 681; § 1159, p. 683; § 1161, p. 684; § 2205, p. 1357. Wetmbre, In re, § 887, p. 505; § 970, p. 543; § 1130, p. 643; § 2469, p. 1492; § 2481, p. 1498; § 2522, p. 1523; § 2583, p. 1549; § 2595, p. 1552; § 2596, p. 1553; § 2600, p. 1554; § 2603, p. 1556; § 2605, p. 1558; § 2608, p. 1560; § 2627, p. 1567; § 2635, p. 1571; § 2639, p. 1572. Wetmore v. Wetmore, § 683, p. 414; § 2756, p. 1620. Wetstein v. Franciscus, § 1395, p. 823; § 1396, p. 824; § 1729, p. 1064. Whaling, Cady v. Whealton Restaurant Co., In re, § 1160, p. 683; § 2204, p. 1356. Wheeler v. Simmons, § 2716, p. 1606. Wheeler, Smith v. Wherritt, Shawham v. Whipple, In re, § 2385, p. 1441. Whit, Packer v. White v. Bradley Timber Co., § 142, p. 124; § 263, p. 196; § 264, p. 197; § 265, p. 197; § 274, p. 202; § 1274, p. 753. White, Bradley Timber Co. v. White, In re, § 26, p. 40; § 46, p. 59; § 240, p. 185; §.243, p. 187; § 245, p. 188; § 252, p. 191; § 257, p. 192; § 259, p. 194; § 261, p. 195; § 268, p. 199; § 269, p. 199; § 527, p. 329; § 528, p. 330; § 1050, p. 603; § 1055, p. 605; § 1066, p. 608; § 1082, p. 613; § 1095, p. 619; § 1095, p. 620; § 1098, p. 623; § 2603, p. 1556; § 2663, p. 1585. White Mountain Paper Co., In re, § 87, p. 86; § 90, p. 86. White Mountain Paper Co. v. Morse, § 90, p. 86; § 97, p. 93; § 101, p. 99; § 142, p. 125. White, Robinson v. White V. Schloerb, § 503, p. 320; § 523, p. 325; § 1582, p. 949; § 1797, p. 1092; § 11798, p. 1098; § 1800, p. 1099; § 18S5. p. 1178; § 1901, p. 1188; § 1908, p. 1191. 2038 TABLE OF CASES. White Star Laundry Co., In re, § 94, p. 88. White V. Thompson, § 1100, p. 624; § 1447, p. 855; § 1458, p. 865; § 1595, p. 964; § 1910, p. 1191; § 2691, p. 1597; § 2700, 7, 8 'tii^u, p. 1601. Whitener, In re, § 1582, p. 949; § 179., p. 1093; § 1798, p. 1098; § 1800, p. 1099; § 1873, p. 1163; § 1901, p. 1188; § ,1908, p. 1191; § 2891, p. 1698; § 2904, p. 1704; § 2908, p. 1705; § 2913, p. 1708; § 2917, p. 1709; § 2942, p. 1719. Whiting, Ex parte, § 756, p. 449. Whitley Grocery Co. v. Roach, § 1375, p. 803. Whitmore, Batchelder & Lincohi Co. v. Whitney v. Dresser, § 844, p. 485. Whitney v. Wenman, § 18, p. 35; § 789, p. 463; § 790, p. 463; § 1690, p. 1041; § 1690, p. 1042; § 1796, p. 109(1; § 1797, p. 1096; § 1800, p. 1099; § 1801, p. 1099; § 1802, p. 1100; § 1807, p. 1105; § 1811, p. 1110; § 1822, p. 1119; § 1885, p. 1177; § 1916, " "'-•"^ Whittier, Packer v. Wick, Durham v. Wielarski, In re, § 303, p. 217. Wiesen Bros., In re, § 1555, p 1816, p. 1113; §.'1825, p. 1121; p. 1133; § 2641, p. 1573. ''iesen, McNulty v. iessner. In re, § 2031: p. 1194. 930; § § 1839, Wiesen, McNulty v. Wiessner, In re, § 2035, p. 1262. Wigmore, In re, § 635, p. 377; § 636, p. 377; § 636, p. 378; § 705, p. 424; § 710, p. 427. Wilbur V. Watson, § 1603, p. 974; § 1614, p. 981. Wilcombe. Gomila v. Wilcox, Atkins v. Wilcox, In re, § 1547, p. 924; § 1552, p. 928; § 11555, p. 930; § 1564, p. 940; § 1839, p. 1133; § 2238, p. 1369; § 2238, p. 1370; § 2255, p. 1375; § 2256, p. 1376; § 2257, p. 1377; § 2643, p. 1574. Wilcox & Wright, In re, § 638, p. 379. Wilder, Bemis v. Wilder, In re, § 621, p. 367; § 765 454. Wilder v. Keeler, § 756, p. 450. Wilder r. Watts, § 123, p. Ill; § 261, p. 196; § 264, p. 197; § 266, p. 197; § 271, p. 201; § 275, p. 202; § 298, p.' 215; § 328, p. 225; § 1150, p. 679; § 1370, 1150, p. 679; § 1370, p. 799; § 1372, p. 801. § P Wild p. 604; § 1055, p. 605; § 1057, p. 605; § 1066, p. 608; § 1070, p. 610. Wyly, In re, § 794, p. 464; § 1311, p. 768. Wyoming Vallej^ Ice Co., In p. 1319; § 2148, p. 1326. aple V. Dahl-Millakan Grocery Co., 1419, p. 841; § 1420, p. 842. ates. In re, § 41, p. 57; § 227, p. 179; § 232, p. !181; § 440, p. 282; § 635, p. 377; § 705, p. 424; § 710, p. 427. Yeatman v. Institution, § 1144, p. 674. Yerkes, Sparhawk v. ''■ ' Co., In re, § 233, p. 183. er, In re, § 47. p. 60; § 2172, p. 1339; § 2173, p. 1339. Ya 1 Yat § Yick Yod TABLE OF CASES. 2041 York Mfg. Co. v. Cassell; § 1144, p. 673; § 1209, p. 707; § 1210, p. 709; § 1212, p. 710; § 12.14, p. 715; § 1214, p. 717; § 1242, p. 737; § 1245, p. 739; § 1379, p. 807; § 1896, p. 1185; § 2874, p. 1686; § 2925, p. 1713. Yost, In re, § 1098, p. 623; § 2857, p. 1668. Young, Carrol, Geo. & Bros. Co. v. Young, In re, § 24, p. 39; § 355, p. 238; § 1796, p. 1089; § 2046, p. 1267; § 2048, p.* 1271; § 2050, p. 1274; § 2053, p. 1276; § 2054, p. 1277; § 2064, p. 1282; § 2527, p. 1524; § 2529, p. 1524; § 2542, p. 1531; § 2553, p. 1539. Young, Kuntz v. Young, Lott V. Young Nap, Hoffschlarger v. Young V. Upson, § 1140, p. 667; § 1140, p. 671; § 1150, p. 679; § 1314, p. 771; § 1501, p. 898. Young V. Young, § 683, p. 415; § 2756, p. 1620. Yukon Woolen Co., In re, § 1207, p. 700; § 1212, p. 710; § 1241, p. 736; § 1247, p. 739. Zachry, Smith v. Zartman v. Hines, § 1189, p. 695; § 11191, p. 695; § 1194, p. 696. Zartman v. Nat'l Bk., § 1140, p. 669;*^^ 1199, p. 697; § 1207, p. 703; § 1209, p. 708; § 1236, p. 734; §.1237, p. 735; § 1238, p. 735; § 1258, p. 741; § 1262, p. 744; § 1265, p. 745. Zehner, Christ v. Zeiber v. Hill, § 1485, p. 884; § 1486, p. 885; § 1487, p. 885. Zeitner Brew. Co., In re, § 150, p. 131. Zeperink v. Card, § 2785, p. 1630. :ier & Co., In re, § 1616, p. 982; § 1616, p. 983; § 1621, p. 986; § 1621, p. Ketchum, § 2777, p. 987 Zimmerman 1627. Zimmerman, Witthans v. Zodikow, Newland v. Zollinger, Fisher v. Zugalla V. M .igalla V. Mercantile Agency, § 82, p. 8'1; § 82, p. 82; § 83, p. 82; § 92, p. 87; § 94, p. 90; § 157, p. 134; § 2893, ^ 1 fiQS p. 1698. GENERAL INDEX. GENERAL INDEX. ABANDONMENT Of Lien, State law controls, § 1459, p. 865. ABANDONMENT OF WORTHLESS OR BURDENSOME ASSETS By trustee, § 932, p. 524. Matter of discretion, § 933, p. 524. Declining to accept burdensome property, § 932, p. 524; § 935, p. 524. Manner of effecting abandonment, § 934, p. 524. Failing, after notice, to accept, is, § 935, p. 524. Once abandoned not again reclaimable, § 936, p. 524. ABATEMENT None by death or insanity after filing of petition, § 98, p. 94; § 2420, p. 1464; § 2421, p. 1465; § 2456, p. 1487. None by dissolution of corporation after filing of petition, § 101, p. 99. None of replevin suit, where State court first obtains possession, § 1585, p. 958. ABBREVIATIONS In Schedules to be avoided, § 486, p. 311; § 2764, p. 1624. Whether "due scheduling," § 2764, p. 1624. "ABSOLUTELY NECESSARY FOR PRESERVATION OF ESTATE" Sole ground for appointment of Receiver, § 384, p. 252. "ABSOLUTELY OWING" Judgments and written instruments must be, to be provable, § 670, p. 406. ABSTRACT Chargeable as part of costs on selling free from liens, § 1996, p. 1234. ABUSE OF DISCRETION Refusal to confirm composition not to be reversed, except for, § 2413, p. 1455. Refusal to permit amendment, reviewable for, § 2622, p. 1565. ACCEPTANCE Of new Promise requisite to revive discharged debt, § 2723, p. 1608. ACCOMMODATION PAPER Allowability of, § 794, p. 464. ACCORD AND SATISFACTION Trustee may plead, § 1202, p. 698. ACCOUNT Itemized, to be attached to proof of claim, § 604, p. 360. Open, must be owing at time of filing bankruptcy petition, to be provable, § 672, p. 407. Are provable, § 694, p. 420. ACCOUNTING FOR ASSETS Bankrupt's inability to make reasonable, § 2652, p. 1576. 2046 GENERAL INDEX. ACCOUNTS AND REPORTS Approval of, § 2292, p. 1399. Auditing of, § 2291, p. 1398; § 517, p. 323; § 518, p. 323. Duty of Referee to audit trustee's, § 517, p. 323; § 2291, p. 1398. Duty of trustee to file reports, § 917, p. 521; § 2285, p. 1397; § 2297, p. 1401. Duty of referee to audit receiver's, § 518, p. 323; § 2291, p. 1398. Duty of trustee to keep accounts, § 916, p. 521; § 2285, p. 1397; § 2297, p. 1401. Exceptions to, § 2293, p. 1399. Form of, § 2286, p. 1397. Notice of, § 2288, p. !1398. To be kept separately, of firm and individual estates, § 2234, p. 1367. Trustee's accounts and papers open to inspection, § 915, p. 520. Review^ of Order approving, § 2287, p. 1398. ACKNOWLEDGMENTS See, "Oaths and Acknowledgments." ACTS OF BANKRUPTCY Adding other acts by amendment to petition, § 263, p. 196; § 264, p. 196; § 265, p. 197; § 266, p. 197. Assignments, Receiverships and Trusteeships, as See "Assignment for Benefit of Creditors — as Act of Bankruptcy." See "Receiverships and Trusteeships — as Acts of Bankruptcy." Bankruptcy _ petition itself an act, § 73, p. 77; § 102, p. 102; § 164, p. 139; § 192, p. 1*59. Fifth act of bankruptcy committed by filing voluntary partnership petition, § 73, p. 77. Burden of proof of commission of, on creditors, § 172, p. 146. Distinct Acts alleged in same Petition, § 249, p. 189. Fifth Class of Acts of Bankruptcy, see "Acts of Bankruptcy — 'Written Ad- missions' as." First Act, see "Acts of Bankruptcy — 'Fraudulent Transfers, Removals and Concealments' as." Fourth Act, see "Acts of Bankruptcy — 'Assignments and Receiverships,' as." "Frauds on the Bankruptcy Act," not Acts of Bankruptcy, § 106, p. 105. Fraudulent transfers, removals and concealments, as, § 104, p. 104. "Continuing Concealments," bringing commission of act within four months, § 183, p. 152. Historically original act, § 105, p. 104. Insolvency of debtor not requisite in chief, § 116, p. 109. Must have occurred within preceding four months, § 115, p. 109. Same as reprobated at Common law, or by Stat. EHz., § 106, p. 105. Solvency a valid defense, § 116, p. 109. Meaning of Removal, § 107, p. 105. Meaning of "Permit," § 108, p. 106. Actual Intent to Defraud Necessary, § 109., p. 106. Imputed Acts, § 171, p. 144. By agents of corporations and partners, § 171, p. 144. Individual partners joined with partnership, what acts of bankruptcy requi- site, § 64, p. 70. None requisite in partnership petitions filed by one partner, § 73, p. 77. GENERAL, INDEX, 2047 ACTS OF BANKRUPTCY— Continued. None requisite in Voluntary Bankruptcy, § 102, p. 102; § 192, p. 159; § 73, p. 77. Need not be actually committed by all partners, § 66, p. 72. i\Iust be committed in same capacity as act charged, § 171, p. 144. Preferences as, § 117, p. 109. Creditor's Claim must be pre-existing debt, § 123, p. 111. Creditor's Intent immaterial, § 130, p. 114. Definition as act of bankruptcy, § 117, p. 109; § 119, p. 110. All elements of preference in fact must exist, § 120, p. 110. Must give greater percentage over others, § 128, p. 113. Depletion of Insolvent Estate implied, § 121, p. 111. Elements of, § 120, p. 110. Fraudulent or fictitious debt not implied, § 122, p. 111. "Four months" limit, § 127, p. 112. Insolvency, § 126, p. 112. Intent to prefer requisite, § 129, p. 113. Must give recipient "greater percentage" than other creditors, § 128, p. 113. "Notorious possession," § 127, p. 112. "Transfer" or seizure by debtor's acquiescence, § 124, p. 112. Transfer to apply on debt, § 125, p. 112. Preferences by legal proceedings not vacated in five days, as, § 133, p. 117. No fraudulent intent implied, § 134, p. 118. Intent to prefer not requisite, § 135, p. 118. Continuing consent, § 136, p. 119. Debtor's resistance of suit without release of property, § 137, p. 120. Preference must have been obtained thereby, § 138, p. 120. Legal proceedings must have created the preference, § 139, p. 122. Date of levy determines whether within four months, § 184, p. 152. Vacating ineffectual unless accomplished at least five da5^s before sale, § 140, p. 122. "At least five days before a sale," § 141, p. 123. How vacating accomplished and how not, § 142, p. 124. The lien must have been obtained within four months, § 143, p. 125. Mere enforcement of lien obtained before, insufficient, § 143, p. 125. - Must have been obtained after passage of Bankruptcy Act, § 143, p. 125. Producing books and appearing for examination at trial, § 154, p. 133; § 179, p. 150. Destruction or loss of adequate books no excuse, § 180, p. 150. Failure to keep adequate books no excuse, § 180, p. 150. Whether requirement of, applies in cases of receiverships as acts of bankruptcy, § ISI, p. 151. Requisite in involuntary bankruptcy, § 103, p. 103. Second act, see "Acts of Bankruptcy — 'Preferences' as." Third act, see "Acts of Bankruptcy — -'Preferences by Legal Proceedings Not Vacated in Five Days,' as." Voluntary petition itself act of bankruptcy, § 73, 'p. 77; § 102, p. 102; § 164, p. 139; § 192, p. 159. What were, in First English Bankruptcy Act, 34 Henry VIIT, Introd. (g), p. 5; § 105, p. 104. Written Admissions of Inability to Pay Debts, etc., as, § 161, p. 138. Are acts of bankruptcy, § 161, p. 138. 2048 GEXER-\L INDEX. ACTS OF BANKRUPTCY— Continued. Admissions by board of directors of corporations, § 167, p. 140. Admissions to be unqualified, § 165, p. 139. Assent of stockholders, whether requisite, § 167, p. 141. Mere admission of insolvency insufficient, § 166, p. 140. Not contrary to prohibition against voluntary bankruptcy of corpora- tion, § 168, p. 142; § 44, p. 58. No fraud implied, § 162, p. 138. Insolvency not requisite in proof of, § 170, p. 143. By partners, § 169, p. 143. Purpose of Act, § 163, p. 139. Solvenc}^ not competent as defense, § 170, p. 143. Voluntary petition itself, a commission of the Act, § 73, p. 77; § 102, p. 102; § 164, p. 139; § 192, p. 159. Voluntary petition itself, a written admission of inability to pay debts and Willingness, etc., § 164, p. 139;. § 102, p. 102; § 73, p. 77; § 192, p. 159. "ACTS," "CONDUCT" AND "PROPERTY" Broad scope of general examination as to, § 1547, p. 922. ACTUAL KNOWLEDGE As curing defective scheduling, § 2777, p. 1627. ADJOURNMENT Of meetings of creditors, § 590, p. 353. ADJUDICATION OF BANKRUPTCY After adjudication, no preference, § 1378, p. 803. Appealable, § 2892, p. 1698; § 2893, p. 1698. Not, when jury trial had, § 2894, p. 1699. Collateral attack on, § 450, p. 296. Consent to, § 314, p. 221. Contractual relations not affected by, § 451, p. 297; § 641, p. 382; § 1118, p. 639. Date of If life insurance policy has no actual value at, will not pass to trustee, § 1012, p. 562. Fixes right to exemptions, § 1025, p. 575. Description of exempt property to be as of, § 1053, p. 604. Determines whether requisite number have joined as petitioning cred- itors, § 201, p. 165. Is Date of cleavage of title, § 1117, p. 639. Default Referee may adjudge bankrupt on default, § 524, p. 328. Jurisdiction to make, § 424, p. 273. By referee in Judge's absence or disabilitj', § 425, p. 273. A judgment on merits binding* on all, § 426, p. 274. Discharge barred, does not prevent, § 2579, p. 1548. Due Process of Law, § 12, p. 28. Effect of on rights of peurties Contractual relations not affected by, unless merged in provable debt, § 451, p. 297; § 641, p. 382; § 1118, p. 639. Establishes status of debtor as bankrupt, § 452, p. 301. GENERAI, INDlvX. 2049 ADJUDICATION OF BANKRUPTCY— Continued. • Res adjudicata on question of insolvency, § 1362, p. 793; § 1461, p. 867 n.; § 1776,, p. 1078. Establishes status of debtor as bankrupt, § 452, p. 301. On involuntary petitipn, "soon as may be," § 423, p. 273. In name of ostensible partner, § 62, p. 68. Notice to creditors not necessary, § 19, p. 36. On pleadings, § 428, p. 275. Premature adjudication on bankrupt's consent, § 427, p. 274. Former refusal of discharge does not prevent, § 2441, p. 1477. Of individual partner requisite, to avoid preferences or liens by legal pro- ceedings on individual partner's property, § 1461, p. 867. Of Partnership Only actual partnership subject to, § 63, p. 68. Partnership by "holding out" not subject to, § 63, p. 68. Of partnership in firm name, § 61, p. 67. Of partnership v\^here non-joining partner comes in and joins, § 72, p. 74. As proof of insolvency, § 1461, p. 867 n.; § 1362, p. 793; § 1776, p. 1078. Property acquired after, does not pass, § 1130, p. 643. Question in "bankruptcy proceedings" proper, § 2865, p. 1682. Record of Existence of jurisdictional facts need not appear on face of record, § 30, p. 51 n. But if lack of jurisdictional facts affirmatively appears on face, decree void, § 30, p. 51 n. Requisite to annul liens by legal proceedings, § 1461, p. 867.- Requisite to avoid preference, § 1393, p. 821 n. Res Judicata In general, § 444, p. 283; § 1776, p. 1078; § 1777, p. 1078; § 1362, p. 793; § 1461, p. 867 n. Not binding except on mere status of debtor as bankrupt unless parties actually, contest, § 445, p. 288. As to "reasonable cause for belief," § 446, p. 290; § 1777, p. 1078. Refusal to adjudge bankrupt, after hearing merits, res adjudicata as to all, § 448, p. 295. Second petition not maintainable after refusal to adjudge bankrupt on merits, § 448, p. 295. As to insolvency, § 1362, p. 793; § 1461, p. 867n; § 1776, p. 1078. As to petitioning creditors' claims when presented for allowance, § 447, p. 291. Rights of creditors against sureties for bankrupt, etc., not impaired by, § 1510, p. 902. See "Sureties and Guarantors." No summary jurisdiction to compel surrender where liens by legal pro- ceedings annulled until adjudication, § 1461, p. 867; § 1662, p. 1030. Vacating of "After term," § 431, p. 276. Any "party in interest" competent, § 433, p. 277. Application to judge, not referee, § 430, p. 276. Creditors proper parties, § 435, p. 278. Disturbing of vested rights may bar vacating, § 443, p. 283. Grounds for — no provable debt sufficient ground, § 440, p. 282. 2 Rem B— 54 2050 GENERAL INDEX. ADJUDICATION OF BANKRUPTCY— Continued. Laches bars right, § 436, p. 278. Present interest requisite, § 434, p. 278. Record of, imports jurisdiction, and need not recite all jurisdictional facts, § 437, p. 279. That only debis not dischargeable, insuflicient, § 441, p. 282. Voluntary bankrupt may move to vacate, § 438, p. 281. Voluntary adjudication vacated where involuntary petition pending, § 442, p. 282. Who maj-- oppose vacating, § 439, p. 281. Who may move to vacate. Court sua sponte, § 432, p. 277. None on voluntary partnership petition, where non-consenting partner not made party, § 68, p. 73. On Voluntary Petition Creditor may not oppose, § 195, p. 159. "Forthwith," § 195, p. 159; § 423, p. 273. Whether it "ipso facto" passes bankrupt's property into custodia legis, § 1808. p. 1108. ADMINISTRATION Dispatch in, § 718, p. 434. Xone of exempt property, see "Exemptions, Jurisdiction over." ADMINISTRATION OF ESTATE After adjudication, distinguished from proceedings for adjudication, § 495, p. 315. ADMINISTRATIVE ORDERS Reviewable, by petition to review, § 2932, p. 1715. ADMINISTRATOR Of deceased partner, in possession of firm assets, "adverse claimant," § 1671, p. 1032. Holding bankrupt's distributive share not adverse claimanf, § 1670, p. 1032. Possession of, where bankrupt owns interest in estate, not disturbed, § 1595, p. 964. Trustee of bankrupt heir may contest account of, § 1206, p. 699 n. ADMISSIBILITY OF EVIDENCE Referee to rule on, § 552, p. 335; § 1554, p. 928. Declarations of alleged fraudulent transferrer, § 2657, p. 1578. ADMISSIONS By Agent, not binding unless within scope of authority, § 559, p. 339. General examination, competent as, in subsequent litigation against same witness as party, § 1555, p. 930. Not to be rejected, because of witness being enormous liar, § 1850, p. 1149. Of alleged fraudulent transferrer, § 2657, p. 1578. ADVERSE CLAIMANT Before Amendment of 1903 neither summary nor plenary jurisdiction over adverse claimants existed in bankruptcy court, § 1653, p. 1023. Entitled to inspection of trustee's accounts and papers, § 915, p. 520. Entitled to plenary action, § 1796, p. 1089. GENERAL INDEX. 2051 ADVERSE CLAIMANT— Continued. Injunctions on, issuable in bankruptcy proceeding, § 1654, p. 1028; § 1905, p. 1190. No judgment by trustee for excess of offset against creditor presenting claim in bankruptcy proceedings, § 1188, p. 694. No judgment in bankruptcy proceedings against holder of claim for excess of security, § 764, p. 454. Jurisdiction of Bankruptcy Court over, by consent May be conferred on bankruptcy court, § 1696, p. 1045. ]\Iay not be conferred on U. S. Circuit Court, § 1696, p. 1046 n. Garnishee on own motion paying exempt wages into court, § 1696, p. 1046 n. May be conferred over debtor owing money, § 1697, p. 1047. What constitutes "consent," § 1698, p. 1047. May be conferred only in plenary actions, unless property in custodia legis, § 1699, p. 1049. • None where no custody and neither litigant party to bankruptcy pro- ceedings, § 1700, p. 1050. Trustee may not object if adverse claimant consents, § 1701, p. 1050. Trustee not to object to plenary suit in bankruptcy court by adverse claimant in possession, § 1702, p. 1051. After "consent" too late to retract, § 1704, p. 1051. Not conferred as to property adversely held, by mere proving of dif- ferent claim in bankruptcy, § 1698,- p. 1048. Jurisdiction over, § 1652, p. 1019; § 1796, p. 1089; § 1905, p. 1190. Owner is, where mechanics and subcontractors have liens on fund, § 1165, p. 685. As to part of property in possession, not as to remainder, whether summary jurisdiction exists, § 1824, p. 1120. Persons in possession but not "adverse claimants" subject to summary jurisdiction, § 1815, p. 1113; § 1822, p. 1118. Plenary suits against \lay be brought in bankruptcy court, when, § 1690, p. 1041. When not, § 1692, p. 1042. May be brought in State court, § 1684, p. 1035. Distinction between proceedings in bankruptcy and "controversies" arising out of bankruptcy, § 1685, p. 1036. Jurisdiction of U. S. Circuit Court in bankruptcy matters, § 1686, p. 1037. Jurisdiction of State Courts in bankruptcy matters, § 1687, p. 1038. By amendment of 1903 jurisdiction conferred also in certain cases upon bankruptcy courts, § 1688, p, 1039. Cases under § 70 (e) included though not expressly mentioned in § 23 (b), § 1689, p. 1040. Who may bring Plenary Suits Creditors may, before trustee appointed, § 1712, p. 1056. But not after trustee appointed, § 1718, p. 1060. But may, when permitted to use trustee's name, § 1719, p. 1061. In possession may be restrained, § 365, p. 243; § 1654, p. 1028; § 1905, p. 1190. Property claimed adversely not to be seized, § 355, p. 237. To property in hands of bankrupt or agent, summary jurisdiction not di- vested, § 1816, p. 11^3. 2052 GENERAI. INDEX. ADVERSE CLAIMANT— Continued. Receiver maj' not seize property held adversely, § 391, p. 256. Referee may not order surrender of property held by, § 540, p. 332. Referee may order surrender of property not held adversely, § 540, p. 332. Restrained from interfering with custody of bankruptcy court, § 1906, p. 1190. Not subject to summary jurisdiction, § 1796, p. 1089. Third party not to be compelled to accept paid-up policy nor to apply for cash surrender value, § 1010, p. 562. Who is "Adverse Claimant" Alleged but not real partner in involuntary partnership petition, whether "adverse claimant," subject to summary seizure of property, § 1669, p. 1032. Executor holding legacy to bankrupt, not, § 1670, p. 1032. But administrator of deceased partner in possession of firm assets is, § 1671, p. 1032. Trustees of spendthrift trusts, § 1672, p. 1032. Mere bailee in possession, not, § 1673, p. 1033; § 1826, p. 1121. Stock exchange not contesting sale of bankrupt's seat, not, § 1674, p. 1033. Mortgagees in actual possession, § 1675, p. 1033. Alleged fraudulent transferee in possession, § 1676, p. 1034. Alleged preferential transferee in possession, § 1677, p. 1034. Assignee of bankrupt's wages, § 1678, p. 1034. Lienholder and secured creditor as, § 1679, p. 1034; § 1825, p. 1121. Debtors of bankrupt "adverse claimants," not to be proceeded againsi summarily, § 1680, p. 1034. When bank owing "deposit" is, § 1681, p. 1035; § 1822, p. 1119. • Owner owing on building contract, subject to mechanic's liens, § 1682, p. 1035. Employers holding wages of bankrupt tied up by assignment, § 1683, p. 1035. Court officer, in possession, adverse claimant until adjudication, § 1662, p. 1030; § 1828, p. 1124. Whether garnishee adverse claimant where garnishment within four months, § 1663, p. 1030. Wife "adverse claimant," as to property she may hold adversely to husband, § 1664, p. 1031. Assignee or receiver not "adverse claimant" as to proceeds still in hands, § 1665, p. 1031. Assignee or receiver is, as to proceeds already disbursed, § 1666, p. 1031. Agent in possession applying funds on salary, § 1667, p. 1032. Trustee in possession under mortgage for benefit of certain creditors, § 1668, p. 1032. Not confined to absolute owners, § 1655, p. 1029. Bankrupt holding jointly, bankruptcy court has jurisdiction, § 1656, p. 1029. Obtaining voluntary possession from bankruptcy officer not subject to summary jurisdiction, § 1657, p. 1029. Himself becoming bankrupt gives jurisdiction, § 1658, p. 1029. Attaching creditor receiving proceeds, within four months, adverse claimant, § 1659, p. 1029. GENERAL INDEX. 2053 ADVERSE CLAIMANT— Continued. Receiving proceeds after bankruptcy, not "adverse claimant," § 1660, p. 1029. Proceeds still in officer's hands; neither creditor nor officer adverse claimant, § 1661, p. 1030. Custodians and court officers in possession under nullified legal pro- ceedings, not, § 1827, p. 1122. ADVERSE PARTY State statutes permitting cross-examination of, without making him one's own witness, whether followed, § 1549, p. 926; § 1759, p. 1073. ADVERTISEMENT Of sales Of real estate at public auction, for four weeks, § 1939, p. 1210. Of real estate or personal propert}^ at private sale, § 1940, p. 1210. • Taxable as part of costs, § 1996, p. 1234. ADVERTISING COMPANIES See "Involuntary Bankruptcy." ADVICE Asking advice of court on hypothetical question, § 2840, p. 1660. ADVICE OF COUNSEL May negative criminal or fraudulent intent, § 2329, p. 1413; § 2536, p. 1527. May palliate but does not excuse contempt, § 2333, p. 1417. May negative intentional concealment, § 2491, p. 1504. Requisites of, in general, as defense, § 2491, p. 1504 n. Insufficient to excuse, where legal questions are matters of common knowl- edge, § 2492, p. 1505. Insufficient where facts not fully laid before counsel, § 2492, p. 1505. Insufficient where inferences drawn from advice, are unwarranted, § 2492, p. 1505. AFFIDAVIT Hearings on petition for reclamation not to be on, § 1876, p. 1164. For warrant for provisional seizure of property, § 336, p. 231; § 339, p. 232. Cannot be waived by bankrupt, § 342, p. 233. To be specific as to facts constituting act of bankruptcy and neglect of property, § 340, p. 232. AFTER-ACQUIRED PROPERTY Contracts for liens on, when discharged, § 2676, p. 1591; § 2677, p. 1591; § 2678, p. 1591. Debts not discharged collectible out of bankrupt's, § 2669, p. 1589. Mortgages on, § 1264, p. 745; § 1384, p. 812; § 1509, p. 902. Taking of Possession of Curing lack of record, § 1238, p. 735; § 1384, p. 812. Whether lien begins at date of, or reverts, determined by State law, § 1237, p. 735. Under chattel mortgage, § 1373, p. 802 n. Within four months, § 1371, p. 800; § 1384, p. 812. 2054 GENERAL INDEX. AGENCIES Actual, but voidable sales, disguised as, § 122S, p. 726. AGENCY Contract of involving personal skill and confidence does not pass to trus. tee, § 994, p. 555. AGENT Acts of, imputable to bar discharge when, § 2484, p. 1502; § 2485, p. 1502; § 2563, p. 1542. Material false statement in writing by, whereby property obtained on credit, bars principal's discharge, § 2563, p. 1542. Admissions of as to insolvency of principal, § 1360, p. 793. Admissions of not binding unless within scope of authority, § 559, p. 339; § 857, p. 491; § 1360, p. 793. ■Assignee, agent of bankrupt, where assignment nullified, § 1665, p. 1031. Claim of for commissions for taking orders, § 807, p. 470. Conversion by Not in "fiduciary" capacity, so that claim for excepted from dis- charge, § 2785, p. 1629. Husband's admissions while acting as "manager" for bankrupt wife, § 559, p. 339. In possession, applying funds on salary, is "adverse claimant," § 1667, p. 1032. Insolvent debtor, after failure beginning new business as agent, § 2516, p. 1515. Knowledge of, imputable to principal, § 2779, p. 1627; § 1412, p. 838. Knowledge of not imputable to principal, when agent acting for own in- terest, § 1413, p. 838. Preference received by, § 1391, p. 820; § 1392, p. 820. "Reasonable cause for belief" of Imputable to principal, § 1412, p. 838. Xot imputable when agent acting for own interest, § 1413, p. 838 Verifying involuntary petition, must allege capacity and authority, § 279. p. 203. ALIENIATION OF AFFECTIONS Judgment for, wlien not discharged, § 2754, p. 1620. ALIMONY Arrest of bankrupt for contempt for failure to pay, § 469, p. 305 n. Judgments for, not provable, § 683, p. 414. Provability of before amendment of 1903, § 683, p. 4] 5 n. Whether discharged, § 2754, p. ]62(). ALLEGATIONS OF INVOLUNTARY PETITION Sec ''Invdhinlary I'etition." ALLEGATION IN MERE WORDS OF STATUTE Insufficient, § 255, p. 191. When sufficient pleading, § 2608, p. 1558. "ALLOWABILITY" Distinguished from "provability," § 595, p. 35(); § 6.^2, p. 375; § 745, p. U5. GENERAL INDEX. i 2055 ALLOWABLE CLAIMS "Allowability"' distinguished from "provability," ^ 632, p. S7o; § 7i:>, p. 445. Only "provable" claims "allowable," § 746, p. 44o. But all "provable" claims not necessarily "allowable," § 747, \.-. 445. Allowability of Secured Claims, see "Secured Claims, Allowability of." Allowability of claims of creditors holding voidable prererence's, see "Pre- ferred Creditors, Allowability of Claims of;" "Surrender of Preferences." Allowability of claims where creditor holds lien by legal proceedings, see "Surrender of Lien by Legal Proceedings before Claim Allowed," § 779, p. 461. "ALLOWANCE" Of Appeal, § 2960, p. 1725. Condition on giving bond, § 2961, p. 1726 n. And "proof"' different terms, § 595, p. 350; 5 632, p. 375; § 7-15, p. 445. ALLOWANCE OF CLAIMS To be "allowed" on Presentation or Receipt, § 815, p. 474. Appealability of, § 2892, p. 1698; § 2898, p. 1701; § 2899, p. 1701; § 2900, p. 1702; § 2901, p. 1702; § 2902, p. 1702; § 2903, p. 1703; § 2904, p. 1704; § 2905, p. 1704; § 2906, p. 1704; § 2907, p. 1704; § 2908, p. 1705; § 2909, p. 1705; § 2910, p. 1705; § 2911, p. 1705. Appealability of, see "Appeal and Error — In Circuit Court of Appeals — In Bankruptcy Proceedings Proper." Court on own motion postponing, § 816, p. 475. Creditors not to vote whose claims not allowed, § 575, p. 348. "Duly proved," no allowance where claim not, § 814, p. 474. Of Endorsers See "Endorsers." See "Sureties and Guarantors." After expiration of year, if filed within, § 721, p. 435. At first meeting, § 593, p. 354. Of Fraudulent Transferree, where constructively fraudulent transfer set aside, § 1734i4, p. 1O6T. Jurisdiction as to, § 811, p. 473. Motion or pleading not requisite to procure, § 815, p. 474. Order of, appealability of, see "Allowance of Claim — Appealability." For other participation than voting, not requisite, § 580, p. 349. Postponing, § 864, p. 496. Of Preferred Creditor See "Preferred Creditor — Allowability of Claim of." See "Surrender of Preference." Procedure on where not objected to Allowed on "Presentation or Receipt," § 815, p. 474. Court on own motion postponing, § 816, p. 475. Where "duly proved" and not objected to, § 813, p. 474. Where not "duly proved," § 814, p. 474. No "provisional" allowance for voting, § 812, p. 473; § 865, p. 496. Is Question arising in "Bankruptcy proceedings proper," § 2867, p. 1683. Vacating of, after expiration of current term, § 858, p. 491. 2056 GENERAI. INDEX. ALLOWANCE TO WIDOW AND CHILDREN See "Widow's and Children's allowances." ALTERNATIVE Orders in, to surrender specific propertj^ or its "value," § 1853, p. 1152. Pleading in, improper, § 2609, p. 1561. AMENDMENT Of Assignment of Errors, on appeal, § 2961, p. 1726. Of Claim After expiration of year, § 622, p. 367; § 734, p. 439. But an original claim must exist, filed within year, § 618, p. 366; § 735, p. 440. Power of, not to be distorted to let in dilatory creditors who have withdrawn proofs, § 736, p. 440. Nor to let dilatory creditors filing claims against firm, file claims against separate partners, after expiration of 3'ear, § 737, p. 440. Permissible, § 617, p. 366. Changing nature of claim set up in proof, § 619, p. 367. Imposing conditions on proof of claim, § 620, p. 367. Amendment of proof of claim may be refused, § 621, p. 367. Of Claim of Exemptions Amendment reverts to date of filing original claim, § 1071, p. 610. None of claims of exemptions, after obtaining possession, to defeat lienholders as to whom property not exempt, § 1031, p. 578. Claim may be inserted or corrected by amendment, § 1066, p. 608. Leave or order to amend requisite, § 1067, p. 608. Required by Court where exemptions claimed improperly, § 1068, p. 608. • Leave liberally granted, § 1069, p. 609. Leave refused where original omission was intentional, § 1070, p. 609. Leave refused where third parties would be injured, § 1070, p. 609. May be conditioned on payment of rent, storage and other charges for care of exempt property, § 1093, p. 618. May be conditioned on payment of expenses to put parties in statu quo, § 1093, p. 618. Conditional Amendment To Proof of Claim, § 620, p. 367. To Specifications in Opposition to Discharge, § 2620, p. 1564. To Conform pleadings to proof, § 2617, p. 1564. Of Discharge decree To include firm debts, where already duly scheduled, § 2801, p. 1642. After term at which discharge granted, § 2802, p. 1642. Of Exemption Laws Does not Affect right of exemptions in wages earned before, § 1041, p. 593 n. Of Involuntary Petition Allowed, § 261, p. 195. Must be "something to amend by," § 262, p. 196. Similar acts of series added by, § 263, p. 196. Acts occurring within four months of application to amend added, § 264, p. 196. GENERAL INDEX. 2057 AMENDMENT— Continued. But occurring before and not originally referred to, not to be added, § 265, p. 197. Except where two petitions consolidated, earlier acts in one may be adopted in other, § 266, p.- 197. Individual petitions not amendable to include partnerships, § 69, p. 73. Amending joint involuntary petition, to make partnership, § 69, p. 74. Refusing amendment because of unwisdom of instituting bankruptcy proceedings, § 305, p. 218. To make pleadings conform to facts proved, § 267, p. 198. Failure to show requisite number, and amount and nature of claims amendable, § 268, p. 198. Jurisdictional averments amendable, § 269, p. 199. Misnomer, amendment allowable, § 270, p. 200. Amendment may be refused, § 271, p. 200. To make partnership petition out of individual refused, § 272, p. 201. Relates back to date of filing original, § 273, p. 202. Application to amend, Cause of error to be stated in, § 274, p_. 202. Time to answer amended petition, § 275, p. 202. By adopting earlier act from other petitions, § 298, p. 215. New Ground added by, § 2616, p. 1564. Of Objections to Claims Permissible, § 834, p. 482. Ordered by court, § 2618, p. 1564. Of petition for revocation, § 2823, p. 1650. Of Proofs of Claiin, see "Amendment — Of Claim." Refused, § 2621, p. 1564. Of Schedules After discharge too late to amend to include omitted creditors, § 2782, p. 1628. Allowed, § 492, p. 313. Omitted creditors added by, § 493, p. 313. But not after expiration of year for filing claims, § 494, p. 313. Of schedules after discovery of concealed assets, of no avail, § 2520, p. 1518; § 2543, p. 1542. Must be "Something to amend by," § 2614, p. 1563. Of specifications in opposition to discharge, see "Discharge — Opposition to — Specifications — Amendment of." Of Verification Permitted. § 280, p. 204; § 2586, p. 1551. AMENDMENT OF 1903 As to dischargeability of Alimony, simply declaratory of existing law, § 2756, p. 1620. Before, judgments for any kind of fraud excepted, § 2747, p. 1617. Before, fraud claims must have been reduced to judgment, else barred, § 2748, p. 1617 n. Before, no jurisdiction existed in bankruptcy court over adverse claimants, § 1653, p. 1023. Confers plenary Jurisdiction on Bankruptcy Court over trustee's action- against adverse claimant, § 1688, p. 1039. See, also, "Plenary Action by Trustee against Adverse Claimant." New grounds for opposition to discharge added by, see "Discharge — Op- position to, Grounds of — Added by Amendment of 1903." 2058 GENERAL INDEX. "AMOUNT INVOLVED" In dispute, not amount of entire claim, governs appealability, § 2S99, p. 1701. As element in fixing attorney's fees, § 2047, p. 1268. Xot entire estate, but only surplus over valid liens, § 2070, p. 1284; ^ 2083, p. 1289. "ANCILLARY BANKRUPTCY PROCEEDINGS" Not maintainable, § 1705, p. 1051. But bankruptcy court may marshal liens and sell personal property in ac- tual custody though in another state, § 1706, p. 1053. Propert}' in other states not in custody to be protected by independent suits, § 1707, p. 1054. Before adjudication, bankruptcy receiver no power in another district, § 1708, p. 1055. After adjudication trustee may institute proceedings in another district, § 1709, p. 1055. No ancillary jurisdiction in bankruptcy court of another district to make summary order, § 1867, p. 1162. No ancillarjr injunction in aid of bankruptcy proceedings in another dis- trict, § 1912, p. 1192. Annual Subscription to Mercantile Agency Reports, § 809, p. 471. ANNUITY Bond for, annuitant still living, § 651, p. 390. When will pass, § 972, p. 545. ANSWER To Involuntary petition, § 323, p. 225. Form of, § 327, p. 225. Denying act pleaded but showing facts sufficient to constitute another act, § 331, p. 226. No demurrer to, § 332, p. 226. Time to answer amended petition, § 328, p. 225. Under oath requires testimony to overcome, § 1757, p. 1073. Who may, § 326, p. 225. To Specifications in opposition to discharge Not necessary, § 2623, p. 1565. But may be filed, § 2624, p. 1565. ANSWER DAY To involuntary petition, § 315, p. 221. May be extended, § 316, p. 221. ANTECEDENT DEBT Transfer must have been to apply on, else no preference, § 1314, p. 770. Petition to recover preference must allege, § 1766, p. 1075. ANTICIPATORY BREACH Bankruptcy Operating as, § 674, p. 410. APPEAL Bond for, released by bankrupt's discharge, if liability dependent upon ob- taining judgment, § 1511, p. 902. GENERAL INDEX. 2059 APPEAL— Continued. Distinction between and writ of error, § 2881, p. 1690. Exemption matters not appealable, § 1109, p. 634. Exemption matters ''Proceedings in Bankruptcy," not "Controversies," § 1109, p. 634. Jurisdiction superseded when appeal perfected, § 2979, p. 1732. Perfecting of See "Appeal and Error — Time for Appeal." "Taken" when "allowance" made, and bond and citation filed, § 2985, p. 1733. When to appeal and when to petition for review, § 2880, p. 1689; § 2883, p. 1693; § 2884, p. 1694; § 2885, p. 1695; § 2886, p. 1695; § 2887, p. 1695; § 2888, p. 1696. • APPEAL AND ERROR Appeals to Circuit Court of Appeals In bankruptcy proceedings proper Adjudications or refusals to adjudge bankrupt, § 2893, p. 1698. No appeal if jury trial had, § 2894, p. 1699. Composition, confirming or refusing to confirm, § 2896, p. 1701. Costs and expenses of administration, whether "claim," § 2907, p. 1704. Intervening creditors petitions not "claims," § 2908, p. 1705. Trustee's petition for order of surrender not "claim," § 2909, p. 1705. Rejection or allowance of set-off appealable, § 2910, p. 1705. • No appeal in bankruptcy proceedings proper except in three cases of 25 (a) mentioned, § 2911, p. 1705. Discharge, judgments granting or denying, § 2895, p. 1700. Discharge, dismissals of for want of prosecution, § 2897, p. 1701. Claims, allowance or rejection of, § 2898, p. 1701. Amount in dispute, not amount of entire claim, governs, § 2899, p. 1701. Debt must have been owed by bankrupt, mere lien on property insufficient, § 2900, p. 1702. Where lien or priority incident to disputed debt, its validity, priority, etc.. Appealable, § 2901, p. 1702; Where debt undisputed mere fact that disputed lien or priority incident to debt insufficient, § 2902, p. 1702. Not to split case and dismiss portion affecting lien or priority, § 2903, p. 1703. "Claim" refers only to monej^ demand, § 2904, p. 1704. "Claim" refers to "Claims" presented for proof against bank- rupt estate, § 2905, p. 1704. "Claim" does not refer to "Claims" for exempt property, § 2906, p. 1704. When to be taken, § 2889, p. 1697. Order appealed from must be final order, § 2890, p. 1697. Right of appeal cannot be enlarged nor restricted by court, § 2S9i, p. 1693. Such appeals permissible onlj^ as to adjudication, discharge and allowance of claims, § 2892, p. 1693. 2060 GENERAL INDEX. APPEAL AND ERROR— Continued. In "Controversies arising in Bankruptcy Proceedings" Jurisdiction, § 2912, p. 1706. Appeal a matter of right, not to be enlarged nor restricted by Court, § 2913, p. 1708. Under § 24 (a) both law and fact reviewed, § 2914, p. 1708. Litigant has option, in proper case, either to appeal or to petition for revision, § 2915, p. 1708* May treat "appeal" as petition for revision, § 2916, p. 1709. Appeal not treated as petition for review, where questions are all of fact, § 2917, p. 1709. Simultaneous appeal and petition for review, § 2918, p. 1709. Single Assignment of errors sufficient where appeal and error simul- taneously prosecuted, § 2919, p. 1710. Appeals in "Controversies" only allowable in cases within Act of Congress establishing Circuit Court of Appeal, § 2920, p. 1710. Decree in equity not reviewable by writ of error, nor judgment at law by appeal, § 2921, p. 1711. Must be "Final" order, § 2922, p. 1712. Validity, priority, etc., of liens appealable as "controversies," § 2923, p. 1712. Summary order on third party to surrender assets, appealable as "Controversy," § 2924, p. 1713. Summary order on trustee or receiver to surrender assets to third party, § 2925, p. 1713. Plenary suits in U. S. District Courts by adverse claimants in pos- session to enjoin trustees, appealable as "Controversies," § 2926, p. 1713. Plenary suits by trustees in U. S. District Court to recover property preferentially or fraudulently transferred, § 2927, p. 1714. "Bankruptcy Proceedings" proper Adjudication of bankruptcy, or its refusal is, § 2865, p. 1682. Allowance or rejection of claim, in marshaling firm and individual estates is a question in, § 2867, p. 1683. Allowance or rejection of claim to share in dividends, is a question in, § 2867, p. 1683. Assignee's lien for reimbursement of expenses and compensation not a question in, § 2868, p. 1683 n. Costs and expenses of administration, allowance or disallowance of, is a question in, § 2868, p. 1683. Exemptions, allowance or refusal of is a question in, § 2866, p. 1682; § 2934, p. 1715; § 2930, p. 1715. Intervening petitions claiming property in custody of bankruptcy court, or liens thereon, are not, § 2875, p. 1687. Marshaling of firm and individual assets and debts, whether question in, § 2879, p. 1689. Orders of sale and incidental questions, are, § 2876, p. 1688. Unless real controversy not about order of sale, nor claim, but about lien or title itself, § 2877, p. 1689. Seizures on warrants to marshal, are questions in, § 2872, p. 1685. Trustee's petition for summary surrender of property, is not question in, § 2873, p. 1685. GENERA!, INDEX. 20bl APPEAL AND ERROR— Continued. Trustee's petition to marshal liens, is not, § 2878, p. 1689. Trustee's plenary suits, in U. S. District Court to recover property, are not, § 2874, p. 168G. Validity and priority of lien, if incident to allowance or rejection of creditor's claim, may be a question in, § 2869, p. 1683. But not, if sole controversy is about lien or priority, § 2870, p. 1684. Claim controverted must be creditor's claim, § 2871, p. 1684. Widow's and children's allowance on death of bankrupt whether ques- tions in, § 2866, p. 1682 n. In Circuit Court of Appeals Obedience to mandate enforced by mandamus, § 3012, p. 1743. Clerical Mistakes disregarded, § 3011, p. 1742. Composition matters appealable, *§ 2410, p. 14.54. Composition, whether appeal is only method of review, § 2411, p. 1454. Contempt Order of District Judge on, not reversed except for clear error, § 2344, p. 1419. "Controversies Arising in Bankruptcy Proceedings" What are and what are not Adjudication of bankruptcy or its refusal, not, § 2865, p. 1682. Exemptions, allowance or refusal of, not, § 1109, p. 634; § 2866, p. 1682. Widow's and children's allowances, whether, § 2866, p. 1682. Allowance of Claim, not, § 2867, p. 1683. Costs and expenses of administration, not, § 2868, p. 1683. Assignee's lien is, § 2868, p. 1683 n. Liens or priorities, are, § 2870, p. 1684. Trustee's petition for summary surrender of property is, § 2873, p. 1685; § 2924, p. 1713. Trustee's plenary suits in U. S. District Court to recover property are, § 2874, p. 1686; § 2927, p. 1714. Intervening petitions claiming property are, § 2875, p. 1687; § 2925, p. 1713. Intervening petitions claiming liens on property, § 2875, p. 1687. Attorneys fees, allowance of, not, § 2868, p. 1683. Seizures on warrants to marshal are not, § 2872, p. 1685. Orders of sale, and incidental questions are not, § 2876, p. 1688. Trustee's petition to marshal liens is, § 2878, p. 1689; § 2923, p. 1712. Marshaling of firm and individual assets and debts, whether, § 2879, p. 1689. When optional to appeal or petition for review in, § 2884, p. 1694. Discretion in approving and setting aside sale, not to be revised except for abuse, § 1960, p. 1221. Distinction between writ of error and appeal, preserved, § 2881, p. 1690. Distinction between § 24 (b) and §§ 24 (a) and 25 (a), preserved, § 2882, p. 1691. Error Proceedings in Circuit Court of Appeals In Bankruptcy Proceedings proper Allowance to widow and children on death of bankrupt pending adjudication, § 2939, p. 1717. Attorneys' fees and other expenses of administration, § 2933, <>. 1715. 2062 GENERAL INDEX. APPEAL AND ERROR— Continued. Exemption matters, § 2934, p. 1715. Orders on nonbankrupt partner to file schedules or surrender firm assets, § 2935, p. 1715. Distribution between firm and individual creditors, § 2936, p. 1716. Orders of sale and controversies incident thereto, reviewable under § 24 (b), § 2937, p. 1716. Summary orders on bankrupts and others to surrender assets or execute instruments, § 2938, p. 1716. Sole method of review except in three cases of § 25 (a), § 2928, p. 1714. Limited to matters of law under § 24 (b), § 2929, p. 1715. Exemptions reviewable only bj^ petition to review, § 2930, p. 1715. Reopening or refusal to reopen closed estates reviewable only by petition to revise, § 2931, p. 1715. Administrative orders reviewable under § 24 (b), § 2932, p. 1715. In "Controversies arising in bankruptcy proceedings" When will lie, § 2940, p. 1717. Whether § 24 applies to orders in independent plenary suits, § 2941, p. 1717. Section 24 (b) authorizes a review of law only, not facts, § 2942, p. 1719. Intervening petitions claiming property or liens, reviewable by peti- tion to revise, § 2943, p. 1720. Expenses and Commissions Review of allowances of, § 2287, p. 1398. Findings of fact, or equivalent, essential to show issues same, § 3007, p. 1740. Fundamental distinction between steps "in bankruptcy proceedings" proper and incidental "controversies," § 2864, p. 1678. No Indirect review by suing trustee in U. S. Circuit Court, where litigant dissatisfied in bankruptcy proceedings, § 1703, p. 1051. Issues directly raised by pleading considered, though first made point of on appeal, § 3006, p. 1740. Judgments on facts not disturbed except for manifest error, § 3009, p. 1741. Jurisdictional questions considered for first time on review, though not considered below nor assigned as error, § 3004, p. 1739. Jurisdictional questions, unless nonwaivable, not considered for first time on review, § 3003, p. 1739. Obedience to mandate enforced by mandamus, § 3012, p. 1743. Objections not .raised below, not heard above, § 3001, p. 1738. "Opinion" of Court insufficient, though may be "looked to/' § 3008, p. 1740. Parties on In General, § 2825, p. 1653. Must have substantial interest in controversy, § 2826, p. 1653. Must be in trustee's name, if in behalf of the State and after election of trustee, § 2827, p. 1653. Excci)t when controversy about trustee's own compensation, § 2828, p. 1655. Or trustee's own expense, § 2828, p. 1655. Or trustee's report of exempt property, § 2828, p. 1655. Or when about trustee's own conduct or administration, § 2829, p. 1655. GENERAL INDEX. 2063 APPEAL AND ERROR— Continued. Joint appeal, § 2836, p. 1656. Omitted parties made parties on appeal. § 2837, p. 1G57 Creditors assenting to composition, necessary parties on appeal from confirmation, § 2838, p. 1657. Trustee refusing to appeal, may be ordered, § 2830, p. 1655. Creditor authorized to use trustee's name, when, § 2830, p. 1655. Court may require creditor to indemnify trustee, § 2831, p. 1655. Laches may bar right to object to other than trustee appealing, § 2832, p. 1655. Before election of trustee appeal or error may be by creditor, § 2833, p. 1656. Appeal by one party does not necessarily bring up case as to all, § 2834, p. 1656. Appeal not dismissed for lack of necessary parties where not parties below but represented by trustee, § 2835, p. 1656. Petitioning creditors' attorneys' fees, to be reviewed by appeal, § 2076, p. 1286. Plain error noticed, though not raised by parties themselves, § 3005, p. 1740. Procedure on Appeal Follows equit}^ appeal procedure, § 2959, p. 1725. Application for leave, allowance, citation and notice, § 2960, p. 1725. Assignment of errors to be filed, § 2961, p. 1726. Complete record to be made, § 2962, p. 1726. Need certify only so much as sufficient to exhibit errors, § 29G3, p. 1726. Discretion of parties in making up records not to be interfered with, § 2964, p. 1727. Parties may stipulate as to what necessary, § 2965, p. 1727. Must be stipulated or certified that complete record of all necessary, § 2966, p. 1727. Record imports verity, may not be contradicted, explained or extended by evidence dehors, § 2967, p. 1727. Remedies for incomplete transcript on appeal, § 2968, p. 1728. Whether findings of fact requisite on appeal, § 2969, p. 1729. Record to show assignment of errors, prayer for reversal and cita- tion, § 2970, p. 1729. Prayer for reversal and citation waivable, but assignment of errors not, § 2971, p. 1729. Time of perfecting of appellate proceedings, § 2972, p. 1730. Citation may be granted after expiration of appeal time, § 2973, p. 1730. Record sufificient if contains all on which district court acted if not all on which referee acted, § 2974, p. 1730. Record to be printed, § 2975, p. 1731. Procedure on Error Proceedings, or Petition for Review 1 Record to present, clearly, issues of law, § 2951, p. 1723. Record to show insufficiency of grounds for order, § 2952, p. 1723. Whether testimony and other evidence to appear, § 2953, p. 1724. Whether "bill of exceptions" proper, § 2954, p. 1724. Findings of fact or equivalent, requisite, § 2955, p. 1724. Mere "Opinion" of District Court insufficient, unless made part of record, § 2956, p. 1724. Opinion may be "looked to" § 2957, p. 1725. 2064 GENERAL INDEX. APPEAL AND ERROR— Continued. Due notice to be given, § 2958, p. 1725. Writ of error, § 2945, p. 1721. Petition to revise, § 2945, p. 1721. Notice, § 2945, p. 1721. If by petition to revise, tiling of petition and notice, sole requirement, § 2946, p. 1721. Petition for review to be filed, § 2947, p. 1722. Petition to set forth order complained of, § 2948, p. 1722. How far to set forth issue on which erroneous order made, § 2949, p. 1722. Record to set forth order complained of, § 2950, p. 1723. Record on To show same issues presented to court below, § 3002, p. 1738. Refusal to confirm composition not to be reversed except for abuse of discretion, § 2413, p. 1455. Refusal to permit amendment, may be reviewable for abuse of discre- tion, § 2622, p. 1565. Review of Referee's Orders Hearing upon review, § 2861, p. 1670; § 2862, p. 1672; § 2863, p. 1673. Jurisdiction, § 2839, p. 1658. Order and finding presumed correct, until manifest error shown, § 2861, p. 1670. Points not discussed below, § 2862, p. 1672. Procedure on Certificate of question, § 2852, p. 1664. Summary of evidence, § 2852, p. 1664. Findings of fact, § 2852, p. 1664. Order of referee, § 2852, p. 1664. Certificate prepared by counsel, § 2853, p. 1665. Record on review to show certificate, § 2854, p. 1665. Not entire evidence but only "summary" to be certified, § 2855, p. 1666. Remedies for incomplete record, § 2856, p. 1667. Referee also to certify findings of fact, § 2857, p. 1668. Precise question for review to be stated clearly and distinctly, § 2858, p. 1669. Petition and certificate transmitted by referee to district clerk^ § 2859, p. 1669. Formal written "exceptions" need not be filed, § 2845, p. 1661. Petition for review, § 2846, p. 1662. Petition must set forth errors complained of, § 2847, p. 1662. New facts not to be set up changing case, § 2848, p. 1662. Petition should pray for review of order, § 2849, p. 1663. ' Petition to be filed with referee, § 2850, p. 1663. Time limited for filing petition for review, § 2851, p. 1663. Order must be made, 3 2810, p. lHo',). Order must be final, -.lot interlocutory, § 2841, p. 1600. Reviewing referee's "decision," or "opinion," § 2^40, p. 1660. No review of hypothetical caestion, § 2340, p. ]560. No "general" review, § 28H, p. I60I. Exception to be taken to ordc", -i 2842, p. lilOJ. GENERAL INDEX. 2065 APPEAL AND ERROR— Continued. Exceptions to findings of fact, § 2843, p. 1661. Exceptions must be specific, § 2^i:i, p. 1661. Stay of Execution of Order, § 2860, i>. 1609. Remanding for further testimony, § 2863, p. 1673. Security on On petition for review, not requisite, § 2976, p. 1731. On appeal, requisite, § 2977, p. 1731. Approval of security, perfects and allows appeal, § 2978, p. 1732. Perfecting appeal transfers jurisdiction and m further r.eps .possible, § 2979, p. 1732. Trustee need not give Bond, § 2980, p. 1732. Summary orders upon bankrupts and others to surrender, set aside only for manifest error, § 1854, p. 1153. Summary orders, whether to be "reviewed" or "appealed," § 1855, p. 1153. Time for Appeal Appeals may be heard in appellate court in term or vacation, § 2982, p. 1733. Record to show time of appeal, § 2983, p. 1733. Date of entering order or judgment, not of actual rendition, fixes date, § 2984, p. 1733. Appeal not "taken" until "allowance" niado, and bond and citation filed, § 2985, p. _1733. Delay in bond and citation not fatal, if appeal "allowed" in time, § 2986, p. 1733. • Application for extension too late after expiration of time, § 2987, p. 1734. In bankruptcy proceedings proper, within ten days, § 2981, p. 1732. Begins from date of entry of order overruling motion for rehearing, § 2988, p. 1735. Motion for rehearing not filed in time, insufficient, § 2989, p. 1735. Reviving lost right of appeal by motion pretended to be for re- consideration of merits, § 2990, p. 1735. Alias order of adjudication ineffective to revive lost right of appeal, § 2991, p. 1735. Time for appeal in "controversies," limited by i\ct creating Circuit Court of Appeals, § 2992, p. 1736. No express time for petitions for review, § 2993, p. 1736. Dismissed for laches, § 2994, p. 1736. Not dismissed unless delay unreasonable, § 2995, p. 1737. Delay excusable on good cause shown, § 2996, p. 1737. By analogy should be filed within six m.onths' time, § 2037, p. 1737. At least in all cases of "Controversies," § 2998, p. 1737. Time for review in bankruptcy proceedings proper, ten days by an- alogy, § 2999, p. 1737. Rehearing where order based on authoritj^ since overruled, § 3000, p. 1738. Time for appeal in "Controversies" Limited by act creating Circuit Court of Appeals, § 2992, p. 1736. Trivialities not considered — substantial interest to be shown, § 3010, p. 1742. 2 Rem B— 55 2066 GENERAL INDEX. APPEAL AND ERROR— Continued. Trustee's Report Review of approval of, § 2287, p. 1398. When to appeal, when to petition for review, § 2880, p. 1689. Whether to appeal or petition for review Optional in proper case, § 2883, p. 1693. When optional in "controversies," § 2884, p. 1694. If facts undisputed, petition to revise only remedy, § 2885, p. 1695. If facts disputed, may be reviewed only if appeal available, § 2886, p. 1695. Holding that appeal under 25 (a) exclusive of error, § 2887, p. 1695. Holding that optional even in three cases where appeal provided under ~ 25 (a), § 2888, p. 1696. When to appeal, when to petition for review Treating "appeal"' as petition for revision, § 2916, p. 1709; § 2917, p. 1709. Simultaneous appeal and petition for review, § 2918, p. 1709; § 2919, p. 1710. Who may appeal In composition matters, § 2412, p. 1454. APPEALS TO SUPREME COURT From Courts of Bankruptcy In Bankruptcy proceedings Only allowance of rejection of claims appealable, § ."'013, p. 1744. Only permissible, then, if amount in controversy exceeds S2,000, etc., § 3014, p. 1745. Some Supreme Court Justice certifies essential to uniform con- struction of act, § 3015, p. 1745. In "Controversies" "Question of Jurisdiction" means jurisdiction over subject matter as pleaded, not over particular person as dependent on proof, § 3021, p. 1747. Appeals to Supreme Court to be taken within thirty days, § 3022, p. 1748. Record for transmission to Supreme Court, § 3023, p. 1748. Where would have jurisdiction if "other cases," § 3016, p. 1745. "Other cases" refer to cases covered by Act creating Circuit Court of Appeal, § 3017, p. 1745. Only in "Controversies" and not in bankruptcy Proceedings proper, § 3018, p. 1746. Jurisdictional questions, in "controversies," appealable directly from District Court to Supreme, only where jurisdiction would exist if not concerning bankruptcy, § 3019, p. 1746. To l)e on certificate, § 3020, p. 1747. From State Supreme Court Reviewable when presents federal question, § 3026, p. 1749. APPEARANCE Entry of in opposition to confirmation to composition Requisite, § 2378, p. 14 10. GENERAL INDEX. 2067 APPEARANCE— Continued. Entry of in opposition to discharge, § 2448, p. 1485. Essential. § 2449, p. 1486. May be by attorney, § 2450, p. 1486. Gives ten days time to file specifications, § 2451, p. 1486. Voluntary, on involuntary petition, § 314, p. 221. APPEARING FOR EXAMINATION AT TRIAL .See "I'roducing Books and Appearing for Examination at Trial." APPLICATION OF PAYMENTS Creditors' right to apply in absence of debtor's instructions, § 1190, p. 695. To be as Equity i-equires in ajDsence of directions, § 1191, p. 695. Payment actually made, not to be applied to evade preference statute, § 1284, p. 758. Rights of parties as to, unimpaired by bankruptcy, § 1189, p. 694. APPOINTMENT Of Referee, § 498, p. 319. Of trustee See "Trustee, Election and Appointment of." APPOINTMENT OF TRUSTEE AS ACT OF BANKRUPTCY See "Trusteeship as Act of Bankruptcy." Also, see "Receiverships and Trusteeships as Acts of Bankruptcy." APPORTIONMENT • Of attorneys' fees where intervening creditors assist, § 2066, p. 1283. In cases of consolidation, § 2067, p. 1283. Of referee's expenses, § 2032, p. 1261. APPRAISAL Not Admissible against alleged fraudulent transferee, § 1748, p. 1071. Admissibility of as against creditor, § 1357, p. 791; § J504, p. 900; § 1748, p. 1071. Appraisers to be appointed by and report to the court, § 1927, p. 1204. Appraisers to be disinterested, § 1926, p. 1203. Appraisers to be sworn, § 1929, p. 1204. ' Not Binding as to exemptions, § 1080, p. 613. Methods of arriving at appraisal values, § 1930, p. 1205. AIL Property of estate to be appraised, § 1924, p. 1203. Only Property of estate need be appraised, § 1925, p. 1203. As Provided for by the First .English Bankruptcy Act, 34 Henry VIII, Introd. (g), p. 6. Reappraisal, § 19301^, p. 1206. Three appraisers, § 1928, p. 1204. APPRAISERS' FEES Allowable in bankruptcy, § 2121, p. 1308. Taxable as part of costs of selling free from liens, § 1996, p. 1234. APPROVAL OF COURT Before starting litigation by trustee not necessary, § 899, p. 515. Except where substituted in pending suit, § 899, p. 515. Sales in bankruptcy, subject to, § 1949, p. 1215. Formal, not always essential to confirmation, § 1958, p. 1220. 206S GENERAL INDEX. APPROVAL AND DISAPPROVAL OF CREDITORS ELECTION OF TRUSTEE See "Trustee — Approval and Disapproval of Creditors Election of." APPROVAL OF SECURITY Perfects and allows appeal, § 2978, p. 1732. ARBITRATION OF CONTROVERSIES, § 922, p. 522. Allegations of application for, § 923, p. 522. • Application for, § 923, p. 522. Procedure on, § 924, p. 522. Findings of arbitrators, have force of verdict, § 925, p. 523. And are reviewable, § 925, p. 523. ARGUMENTATIVE PLEADING Facts not to be alleged argumentatively, § 253, p. 191; § 2603, p. 1555. Whether negativing of exceptions of wage earners, etc., necessarily by direct denial, § 245, p. 188. "ARMED WITH PROCESS" See "Creditor Armed with Process." ARREST See "Arrest and Detention of Bankrupt." Protection of bankrupt from , Attending bankruptcy court or performing statutory duties, protected while, § 470, p. 305. Before bankruptcy, protection equally available, § 465, p. 304. Contempt of bankruptcy court, arrest for npt within protection, § 468, p. 305. Contempt of other courts, whether within protection, § 469, p. 305. Criminal cl^arge, arrest for not within protection, § 467, p. 305. Federal court, whether protection applies to arrest on process from, § 471, p. 306. Jurisdiction, § 463, p. 303. ARREST AND DETENTION OF BANKRUPT Absconding bankrupts outlawed by First English Bankruptcy Act, 34 Henry VIII, Introd. (g), p. 8. For examination, § 371, p. 245. Warrant not proper where bankrupt already departed, § 372, p. 246. Writ of ne exeat also available, § 373, p. 246. ARTISANS' LIENS, § 1158, p. 683. ASSAULT AND BATTERY Judgments for, not discharged, § 2754, p. 1620. ASSETS See Different Classes of Particular Property Involved. Duty of bankrupt to file schedule of, § 477, p. 308. If any shown, trustee to be appointed, § 872, p. 499. GENERAL INDEX. 2069 ASSIGNED CLAIMS Assigned before bankruptc}% § 608, p. 361; § 2135, p. 1317. Assigned after bankruptcy, but before proof, § 609, p. 361. Assigned after proof, § 610, p. 362; § 2277, p. 1392; § 742, p. 442. ASSIGNEE Of Bankrupt's wages, is "adverse claimant," § 1678, p. 1034. For Benefit of creditors Lien of, for expenses and compensation, not "bankruptcy proceedings,'' but "controversies," § 2868, p. 1683 n. Officer of corporation acting as, does not estop corporation from being petitioning creditor, § 225, p. 178. As candidate for trustee, § 889, p. 508. Compensation and expenses of, when assignment nullified by bank- ruptcy, see "Assignments and Receiverships Superseded by Bank-_ ruptcy." Bond of, no liability on to those creditors who participate in defeating assignment, § 1624, p. 988. Not "adverse claimant" as to proceeds still in hand, § 1665, p. 1031. But "adverse claimant" as to proceeds already disbursed, § 1666, p. 1031. Order on may not require surrender of more than is in his hands, § 1830, p. 1125. Power of referee to order surrender from assignees, § 541, p. 332. May be subjected to "general examination," § 1527, p. 913. Subject to summary jurisdiction, § 1822, p. 1118. ASSIGNMENT Bankrupt required to execute assignment of life insurance policies to effect transfer to trustee, § 1009, p. 561. Compelling bankrupt to execute, to aid passing of title, § 1115, p. 636; § 1835, p. 1128. Compelling trustee to execute, on ordering him to surrender property to rightful owner, § 1873, p. 1163. Covenants against, not violated by bankruptcy, § 987, p. 550. Life insurance policies assigned as security, bankrupt's interest therein passes to trustee, § 1006, p. 559. Petition to redeem from undisputed lien gives jurisdiction to order, on tender of amount due, § 1870, p. 1163. Preceding bankruptcy, effect on right to forfeit leasehold, § 987, p. 550. ASSIGNMENT FOR BENEFIT OF CREDITORS As Act of Bankruptcy Act of Bankruptcy, § 145, p. 128. Assignment must be "General," § 146, p. 128. Intent to Defraud not requisite, § 148, p. 129. Insolvency not requisite, § 147, p. 128. "Preference" need not result, § 149, p. 129. Solvency no Defense, § 147, p. 129. Whether "Interference with Operation of Bankruptcy Law," § 149, p. 129. Whether "Transfer to Hinder Creditors," § 149, p. 129 n. Not per se Illegal nor void, but voidable merely, § 1606, p. 976. 2070 ^ GENERAL INDEX. . ASSIGNMENT FOR BENEFIT OF CREDITORS— Continued. Laws for, distinguished from State bankruptcy and State insolvency laws, § 1632, p. 1004. Receivership not considered equivalent of general assignment as Act of Bankruptcy, § 150, p. 130. Superseding of custody under, by bankruptcy court, see "Assignments and Receiverships Superseded by Bankruptcy." ASSIGNMENT OF CLAIM, § 738, p. 441. Several assigned to one person — claims merged for voting, § 574, p. 348; § 739, p. 441. After bankruptcy, but before filing proof, § 609, p. 361; § 741, p. 441. Before Bankruptcj^ § 608, p. 361; § 740, p. 441. After Filing, § 610, p. 362; § 742, p. 442. Notice to original claimant, § 743, p. 442. Not Payment of it, § 738, p. 441 n. By Petitioning creditor, ineffectual to change number necessary to join, § 202, p. 165. Priority, right of, whether destroyed by, § 2135, p. 1317; § 2183, p. 1342. "Satisfactory proof," of assignment to be filed, § 744, p. 442. Subrogation of assignee, § 2277, p. 1392; § 610, p. 362; § 742, p. 442. ASSIGNMENT OF ERRORS On appeal, to be filed, § 2961, p. 1726. Record on appeal must show, § 2970, p. 1729. Single, sufficient where appeal and error simultaneously prosecuted, § 2919, p. 1710; § 2961, p. 1726 n. ASSIGNMENTS AND RECEIVERSHIPS Created before four months, not superseded, § 1594, p. 964. ASSIGNMENTS AND RECEIVERSHIPS SUPERSEDED BY BANK- RUPTCY No Liability on assignee's bond on superseding of State Court's custody, to those creditors who participate in defeating assignment, § 1624, p. 988. Whether State priorities preserved when custody superseded, § 2196, p. 1347; § 2197, p. 1349; § 2198, p. 1351. Mortgagees in possession under mortgage executed for benefit of all cred- itors assenting entitled to lien, § 1617, p. 984. Attaching creditors where attachment lien preserved for benefit of estate entitled, § 1618, p. 984. Where attachment really for benefit of all, creditor entitled to reimburse- ment, § 1619, p. 984. Whether extent of lien of assignee, receiver, etc., may be fixed by State court before surrender, § 1620, p. 985. " Only expenses and compensation for services beneficial to estate and reasonable, allowed in assignee's and receiver's lien, § 1621, p. 986. Others' right to be worked out through assignee or receiver, § 1622, p. 987. How assignee's or receiver's rights to be presented, § 1623, p. 988. Nullified by bankruptcy, § 1440, p. 851. Whether exemptions allowed out of fund, § 1097, p. 623. Whether still effective to avoid liens recorded before bankruptcy and after assignment, § 1270, p. 749. GENERAI. INDEX. 2071 ASSIGNMENTS AND RECEIVERSHIPS SUPERSEDED BY BANK- BANKRUPTCY— C.nitinued. Until adjudication, custody not superseded, § 1009, p. 978; § 1828, p. 1124. Assignee or receiver may be enjoined, § 1610, p. 978. May be ordered summarily to surrender assets, § 1611, p. 978; § 1829, p. 1125. No summary order as to sums already disbursed, § 1612, p. 979; § 1830, p. 1125; § 1846, p. 1145. Sales by assignee under void Assignment, § 1613, p. 980. Assignee has lien upon surrendered assets for expenses and compensation, § 1614, p. 980. Assignment must be "general" and "bona fide," not "partial" nor "fraudu- lent," § 1615, p. 981. Receivers entitled to lien where receiverships nullified by bankruptcy, § 1616, p. 982. No interest to be included in summary order on receivers and assignees, § 1847, p. 1145. Where obtained within four months. § 1602, p. 966. Basis of superseding custody of assignee and receiver, § 1603, p. 967. Possession under general assignment superseded, § 1604, p. 975. Possession under State court receivership superseded, § 1605, p. 975. Receiverships in suits for dissolution of corporations, § 1605, p. 975 n. General assignments not per se illegal nor void, but voidable merely, § 1606, p. 976. Unless petition filed within four months, followed by adjudication, State court's custody not superseded, § 1607, p. 977. But if filed within four months and adjudication occurs, assignment void, § 1608, p. 978. ASSIGNMENT OF WAGES TO BE EARNED IN FUTURE Assignee is "adverse claimant," § 1778, p. 1034. Employer is adverse claimant, § 1679, p. 1034; § 1683, p. 1035. Whether discharged by assignor's discharge, § 2678, p. 1591. ASSUMPTION Of firm debts by individual partner Assented to by firm creditors, § 2270, p. 1388; § 2264, p. 1386. "ASSUMPTION OF JURISDICTION" See "Custodia Legis." ATTACHING CREDITOR Attachment lien not preserved, but attachment really brought for benefit of all, entitled to reimbursement, § 1619, p. 984. .\ttachment lien preserved for benefit of estate, entitled to reimbursement, § 1618, p. 984. Competent as Petitioning Creditor, § 234, p. 183. May Intervene to resist involuntary petition witUout surrendering propertj' attached, § 320, p. 223. Receiving proceeds within four months "adverse claimant," § 1659, p. 1029. Receiving proceeds after bankruptcy, not "adverse claimant," § 1660, p. 1029, ATTACHMENT Bond of, released if liability dependent on judgment, § 1511, p. 902. Brought really for benefit of all, attaching creditor entitled to reimburse- ment, § 1619, p. '984. '2072 GENERAI, INDEX. ATTACHMENT— Continued. Dissolved, provability of costs, § 693, p. 420; § 1487, p. 885. Filing of bankruptcy petition operating as a "caveat, attachment and in- junction," § 1215, p. 718. No garnishment of dividend, in hands of trustee, § 2224, p. 1363. Levying on exempt propertj' while in trustee's hands, § 1107, p. 633. Obtained prior to four months Not Abated, § 1588, p. 962. Lien not nullified though judgment rendered within four months, § 1455, p. 863; § 1588, p. 962. Permitting creditors to levy after bankruptcy, in order to "arm with proc- ess," § 1239, p. 735. Preserved for benefit of estate, attaching creditors entitled to reimburse- ment, § 1618, p. 984. Restraining sale under, § 1902, p. 1189; § 1903, p. 1190. ATTENDANCE OF BANKRUPT, § 455, p. 302. Order requisite to procure attendance at creditors' meeting, § 457, p. 302. But not on discharge hearing, § 457, p. 302. Order requisite to procure attendance for examination, § 1537, p. 918; § 1539, p. 918. No order requisite for attendance of bankrupt for examination at first meet- ing, § 1538, p. 918. ATTORNEY Assignee's or Receiver's in State court, § 1622, p. 987; § 1621, p. 987. Attaching Creditor's, where attachment lien preserved for benefit of estate, § 1618, p. 984. Only attorneys Admitted to U. S. Court, to practice in bankruptcy, § 586, p. 353; § 2450, p. 1486. Bankrupt may verify petition before his own attorney, § 194, p. 159. Bankrupt's Subject to summary jurisdiction, § 1821, p. 1118. Collection fee of, stipulated in note, when provable, § 671, p. 407. Competent to withdraw proofs of claim without written power, §'624, p. 368. Creditor may act by, § 583, p. 350. Creditors not to elect trustee's attorney, § 901, p. 516. Entry of Appearance by in Opposition to Discharge, permissible without written power, § 2450, p. 1486. Fees of, in bankruptcy proceedings, see "Attorneys' Fees in Bankruptcy Proceedings." Lien of, on client's dividend, § 1885, p. 1179 n; § 2229, p. 1364. Prepaying or securing of, preparatory to going into bankruptcy, § 1504, p. 900. Proofs of claims may be verified before claimant's attorney, § 614, p. 365. Of Trustee Not to act as Claimant's attorney, § 851, p. 490. Fees for services Benefiting Entire Fund taxable in selling free from liens, § 1994, p. 1234. Fees for services in litigating liens, not chargeable against fund in selling free from liens, § 1994, p. 1234. Adverse interests, attorney representing, not to be employed by trustee, § 902, p. 516. Trustee liable for his attorney's misfeasance, § 903, p. 517. GENERAL INDEX. 2073 ATTORNEY— Continued. Verification by Of Involuntary Petition, § 277, p. 202. Of Injunction Petition, § 369, p. 245; § 1920, p. 1196. Of Specifications in Opposition to Discharge, § 2590, p. 1551. Capacity and Authority of Attorney to be alleged, in verifying, § 279, p. 203. Written power requisite to vote, § 584, p. 351. Written pov^er of attorney not requisite, in other matters than voting, § 585, p. 352. ATTORNEYS' FEES IN BANKRUPTCY PROCEEDINGS Reviewable by petition to revise, § 2933, p. 1715. Allowance or disallowance of, are "Proceedings in Bankruptcy Proper," § 2868, p. 1683. What attorneys' fees allowable, § 2042, p. 1265. Clerical work and ordinary business advice not to be charged for at pro- fessional rates, § 2043, p. 1265. For many services attorney to seek pay from own client, not from estate, § 2044, p. 1265. Fees must be "reasonable," § 2045, p. 1266. "Reasonableness" left to sound judicial discretion of court, § 2046, p. 1267. Various elements to be considered, each having modifying effect' § 2047, p. 1268. Sixth Element, in Bankruptcy cases, "economy," § 2048, p. 1271. Bankrupt's attorney's fees, § 2077, p. 1286. No allowance out of mortgaged property, except for mere preservation, § 2084, p. 1289. None for services in opposing bankruptcy proceedings, § 2085, p. 1289. For attendance at bankrupt's examination allowable, § 2086, p. 1290. Whether fees allowable for petition for discharge, etc., § 2087, p. 1291. No allowance for bankrupt's admission in writing of inability to pay debts, etc., nor for services in aid of adjudication; nor in contests over exemptions, § 2088, p. 1293. Bankrupt's fee allowable more discretionary in voluntary than in in- voluntary cases, § 2089, p. 1293. Test in voluntary cases, in general, § 2090, p. 1294. Preliminary consultations may be charged for, in voluntary cases, § 2091, p. 1295. Application for receiver or other provisional remedy, allowed for, § 2092, p. 1295. Only one fee. to be allowed, § 2093, p. 1295. Bankrupt paying attorney in advance, § 2094, p. 1296. All payments to attorney in contemplation of bankruptcy governed by § 60 (d), § 2095, p. 1296. In involuntary cases, confined to services rendered while bankrupt in performance of duties prescribed by law, § 2078, p. 1287. Actual benefit to estate no test, § 2079, p. 1288. Services must be reasonably necessary and actually rendered, § 2080, p. 1288. Must be professional legal services, and not merely clerical or business, § 2081, p. 1288. 2074 GENERAL IiNDEX. ATTORNEYS' FEES IN BANKRUPTCY PROCEEDINGS— Continued. Legal assistance in preparing schedules, examining claims at first meet- ing, etc., proper, § 2082, p. 1288. "Amount involved" not entire estate but only surplus over valid Liens, § 2083, p. 1289. Prepayment before filing petition, or at any time before adjudication, § 2100, p. 1298. Whether dififerent> principles govern in re-examination of prepaid fees from those where allowed out of estate, § 2096, p. 1296. Under § 60 (d) services prepaid must be for benefit of estate or in furtherance of administration, § 2097. p. 1296. Prepaid fee, to be "reasonable" and subject to re-examination, § 2098, p. 1298. Summary jurisdiction over attorney to require repaj-ment of excess, § 2099, p. 1298. Prepayment effected by giving security, § 2101, p. 1298. Creditors not entitled to reimbursement for objections to claims before election of trustee, even where successful, § 2057, p. 1279; § 2071, p. 1285. No fees for preparation of papers where Supreme Court's Forms adequate, § 2058, p. 1280. Whether trustee allowed attorney's fees for own professional service, § 2059, p. 1280. Attorneys for creditors co-operating with trustee's or receiver's attorney not entitled, § 2060, p. 1281. Exhausting entire estate in attorney's fees in efforts to discover assets, § 2061, p. 1282. Fee bills, properly, should be itemized, § 2062, p. 1282. Items properly to be grouped according to separate controversies involved and estimate made as to each group, § 2049, p. 1272. "Retainer fees" no place in bankruptcy, § 2050, p. 1274. Mere incidental benefit from services in opposing adjudication, etc., not sufficient, § 2051, p. 1274. Showing to be made of propriety and reasonableness, § 2052, p. 1275. Notice to creditors not requisite, unless by local rule, § 2053, p. 1275. Trustee's and receiver's attorney's fees, § 2054, p. 1276. Not to employ attorney to do ordinarj- business duties of trustee, § 2f:55, p. 1278. Fees allowable to trustee's attorney for investigating and resisting impropcr claims, § 2056, p. 1279. Petitioning creditors' attorney's fees, § 206,3, p. 1282. No fees for examination of bankrupt after appointment of trustee. § 2072, p. 1285. But allowable for pursuing property before adjudication, § 2073, p. 1285. None for services after election of trustee, § 2074, p. 1285. No allowance in general out of mortgaged property sold, § 2075, p. 1285. Review of allowance of petitioning creditor's fees by appeal, § 2076, p. 1286. Are matter of right, § 2064, p. 1282. Only one fee, irrespective of number of attorneys, § 2065, p. 1282. Apportionment where intervening credit(^rs assist, § 2066, p. 1283. Apportionment in cases of consolidation, § 2067, p. 1283. For what services allowable to petitioning creditors, § 2068, p. 1283. GENERAL INDEX. 2075 ATTORNEYS' FEES IN BANKRUPTCY PROCEEDINGS— Continued. Allowance not to be on basis of plaintiffs' in creditors' bills, § 2069, p. 1284. "Amount involved," not entire estate but only surplus over valid liens," § 2070, p. 1284. No fees to petitioning creditors for objecting to claims at election of trustee, § 2057, p. 1279; § 2071, p. 1285. AUCTION Sales of real estate at, to be on four weeks advertisement, § 1939, p. 1210. Sales to be at, unless expressly authorized at private sale, § 1947, p. 1214. AUCTIONEER Employment of to conduct sales in bankruptcy, § 1934, p. 1208; § 2037, p. 1263. Compensation of, § 2037, p. 1263. AUTHORITY OF CORPORATE OFFICER To file petition, § 219, p. 175. AUDITING ACCOUNTS Duty of referee to audit trustee's accounts, § 517, p. 323. Duty of referee to audit receiver's account, § 518, p. 323. AUTHORITY SINCE OVERRULED Rehearing where order based on, § 3000, p. 1738. BAILEE In possession, when is "adverse claimant," § 1673, p. 1033; § 1826, p. 1121. BAILMENT Actual, but voidable Sales, disguised as, § 1228, p. 726. Reclaiming of property left with bankrupt on, § 1877, p. 1165. Trustee bound by Bankrupt's, § 1145, p. 676. "Warehousing," § 1146, p. 676. BANK Owing "deposit," when is "adverse claimant," § 1681, p. 1035; § 1822, p. 1119. "BANKER'S LIEN," § 1329, p. 779. BANKRUPT Actual or constructive possession by, constitutes custodia legis, § 1807, p. 1101. Attorney's Fees of, see "Attorneys' Fees in Bankruptcy Proceedings — Bank- rupt's Attorney's Fees." Is "bankrupt" for Purposes of protection as long as any proceedings pend- ing, § 473, p. 306. Corporation officers as the "bankrupt," § 456, p. 302; § 1821, p. 1118; § 1527, p. 914; § 2126, p. 1309. Corporation, officers of, subject to summary jurisdiction, § 1821, p. 1118. Death of before redemption of life insurance policy accomplished, § 1017, p. 567. Discharge of, see "Discharge — Who May Apply For." 2076 GENERAL INDEX. BANKRUPT— Continued. Duties of To attend hearing on discharge, § 2455, p. 1487; § 455, p. 302. Preparation of schedules, § 461, p. 303; § 477, p. 308. Statutory duties, § 454, p. 302. "Attendance," § 455, p. 302; § 2455, p. 1487. "Obedience," § 458, p. 303. Examination of claims, reporting of fraud, etc., § 459, p. 303. Execution of papers, § 460, p. 303. Compelled to execute assignment to efifect transfer of insurance poli- cies, § 1009, p. 561. Submission to examination, § 462, p. 303. Endorsers and sureties for, impliedly excepted by statute from rule that contingent claims not provable, *§ 642, p. 383. Not entitled to reimbursement for care of Exempt property pending setting off, § 1092, p. 617; § 2025, p. 1258. No reimbursement for attending hearing on discharge, § 2455, p. 1487. Expenses of, where examined away from his town, § 1577, p. 945; § 2124, p. 1309. General Examinations of, see "General Examinations of Bankrupts and Witnesses." Infliction of Penalty or Forfeiture upon, for taking benefit of act prohibited, § 474, p. 306. Is "Interested" in estate, though assets insufficient to pay debts, § 1644, p. 1012. May except to trustee's report of exempted property, § 1081, p. 613. May buy at trustee's sale, § 1955, p. 1218. May Continue prosecution of Pending Suit where trustee does not inter- vene, § 1644, p. 1011. May File petition to sell before receiver or trustee appointed, § 1941, p. 1211. May Petition for Injunction, § 368, p. 244. Officers of -a bankrupt corporation are the "bankrupt," § 456, p. 302; § 1821, p. 1118; § 1527, p. 914; § 2126, p. 1309. Orders upon to execute assignments and other papers, § 1115, p. 636. As to Licenses, § 1115, p. 637 n. As to Seats in Stock Exchange, § 1115, p. 637 n. As to interests in Insurance Policies, § 1115, p. 636 n. Outstanding claims by third parties on property in hands of, does not divest summary jurisdiction, § 1816, p. 1113. Possession by gives jurisdiction to bankruptcy court, § 1796, p. 1089. As Principal, — surety is creditor before default and from date of signing, § 644, p. 384. Protection of from arrest, § 463, p. 303. As Quasi trustee for creditors before appointment of receiver or trustee, § 383, p. 252; § 1121, p. 640. Referee may order surrender of property held by, § 539, p. 332. Reimbursement of None for attorney's fees paid in advance, § 2024, p. 1258. For expenses advanced, § 2022, p. 1257. None of original deposit, § 2023, p. 1257. Remains liable on debts not dischargeable, § 2669, p. 1589. Rights of, during pendency of petition Institution of suits by, § 1123, p. 641. GENERAL INDEX. 2077 BANKRUPT— Continued. Retains dominion and power of disposal, unless receiver or marshal takes possession or injunction issues, § 1128, p. 643. Whether may create liens on property, § 1124, p. 641. Whether creditors may acquire liens by levy on property of, § 1126, p. 642. Property acquired bj^ independently, or by purchase on credit does not vest in trustee, §'1132, p. 644. Proceeds of property transferable or seizible at time of filing petition, vests in trustee^ § 1132, p. 644. Evils of old law vesting title as of date of filing petition, § 1133, p. 644. Bona fide transactions on present consideration not affected, § 1134, p. 646. Property acquired by gift or inheritance, belongs to bankrupt, § 1135, p. 647. Propert3' bought on credit, does not pass to trustee, § 1135, p. 647. Property purchased meantime with proceeds of property which was in existence at time of filing petition, § 1136, p. 649. W'hether may be put under general examination, § 1543, p. 919. Summary order on where receiver appointed, § 1818, p. 1114. As Surety, Guarantor or Endorser — his liability a provable claim though default not made by principal until after adjudication, § 643, p. 383. Sworn denial of present possession of assets by, not conclusive, § 1843, p. 1140. Undischarged, incompetent to be trustee, § 886, p. 504. See "Voluntary Bankrupt.'' See "Involuntary Bankrupt." Voluntarily removing residence after adjudication, not entitled to reimburse- ment, § 1578, p. 945; § 2125, p. 1309. Cannot voluntarily surrender discharge, § 2445, p. 1477. When begins and when ceases to be a "bankrupt,"' § 2497, p. 1506; § 453, p. 301; § 473, p. 306. Whether may move to vacate discharge, § 2812, p. 1646. W'hether Officers and directors of bankrupt corporation entitled to witness fees, § 2126, p. 1309; § 1527, p. 914. No Witness fees to, § 1577, p. 945; § 2123, p. 1308. BANKRUPTCY As breach of contract Bankruptcy of tenant no breach of subtenant's covenant of quiet en- joyment, § 666, p. 406. Of Tenant does not ipso facto terminate lease, § 981, p. 548. Operating as anticipatory breach, § 674, p. 410. Operating by contract to mature future installments, § 675, p. 412. Operating as breach of continuing contracts to sell or buy or of employ- ment, § 690, p. 417. Whether operates as "equitable levy," § 1212, p. 709; § 1213, p. 713. Not an equitable levy, § 1214, p. 714. BANKRUPTCY ACT First English Bankruptcy Act, 34 Henry VIII, Introd. (g), p. 5. Not Intended to cover all cases of Insolvency, § 21, p. 37. Policy of strictest economy, Introd. (m), p. 14; § 24, p. 39; § 2011, p. 1247; § 2048, p. 1271; § 2121, p. 1308. § 1532, p. 1338; 2078 geni;rai. index. BANKRUPTCY ACT— Continued. Sections construed or referred to Sec. 1.— § 645, p. 387; § 968, p. 542; § 1208, p. 704; § 1331, p. 78' p. 915; § 1614, p. 981; § 1653, p. 1024; § 2160, p. 1334; § 2171 § 2731, p.. 1612; § 2796, p. 1639. Sec. 1 (a), Subd. (4).— § 453, p. 302; § 1464, p. 871. Sec. 1 (a), Subd. (6).— § 80, p. 80. Sec. 1 (a), Subd. (7).— § 1695, p. 1044. Sec. 1 (a), Subd. (8).— § 28, p. 45. Sec. 1 (a), Subd. (9).— § 573, p. 348; § 645, p. 2.87; § 1308, p. 766; § 2160, p. 1333; § 2361, p. 1433. Sec. 1 (a), Subd. (10).— § 1133, p. 645. Sec. 1 (a), Subd. (11).— § 626, p. 372; § 627, p. 372; § 776, p. 460; § 2160, p. 1333; § 2731, p. 1610; § 2745, p. 1616; § 2905, p. 1704. Sec. 1 (a), Subd. (12).— § 2414, p. 1459; § 2729, p. 1610. Sec. 1 (a), Subd. (13).— § 955, p. 536; § 1558, p. 935. Sec. 1 (a), Subd. (15).— § 1343, p. 787; § 1344, p. 788; § 1349, p. 789. Sec. 1 (a), Subd. (19).— § 171, p. 145; § 480, p. 309; § 690, p. 418; § 2126, p. 1309. Sec. 1, Subd. (23).— § 748, p. 445. Sec. 1, Subd. (25).— § 965, p. 540; § 1330, p. 779; § 1332, p. 780. Sec. 1 (a), Subd. (27).— § 47, p. 60. Sec. 2.— § 431, p. 276; § 858, p. 491; § 1616, p. 983; § 1652, p. 1021; § 1653, p. 1024; § 1653, p. 1025; § 1797, p. 1094; § 1797, p. 1097; § 1836, p. 1129;. § 1897, p. 1186; § 1901, p. 1189; § 1913, p. 1193; § 1965, p. 1224; § 2626, p. 1566; § 2660, p. 1579; § 2864, p. 1680; § 2875, p. 1687; § 2912, p. 1707; § 2986, p. 1734. Sec. 2, Subd. (l).— § 29, p. 45; § 30, p. 51; § 34, p. 54. Sec. 2, Subd. (2).— § 811, p. 473. Sec. 2, Subd. (3).— § 377, pp. 248 and 249; § 384, p. 252; § 385, p. 253; §'1941, p. 1211; § 2119, p. 1307; § 2132, p. 1310. Sec. 2, Subd. (5).— § 385, p. 253; § 387, p. 255; § 377, p. 249; § 1135, p.^ 647; § 2036, p. 1262; § 2115, p. 1303; § 2116, p. 1304; § 2119, p. 1307. Sec. 2, Subd. (6).— § 1653, p. 1025; § 1682, p. 1035; § 1796, p. 1090. Sec. 2, Subd. (7).— § 760, p. 453; § 907, p. 519; § 1115, p. 637; § 1580, p. 948; § 1653, p. 1025; § 1654, p. 1028; § 1796, p. 1090; § 1797, p. 1092; § 1797, p. 1097; § 1819, p. 1116; § 2219, p. 1361; § 2869, p. 1683; § 2875, p. 1688; § 2883, p. 1693; § 2902, p. 1703. Sec. 2, Subd. (8).— § 2298, p. 1401; § 2300, p. 1401. Sec. 2, Subd. (9).— § 2356, p. 1430. Sec. 2, Subd. (10).— § 2839, p. 1658; § 2862, p. 1673; § 3001, p. 1738. Sec. 2, Subd. (11).— § 1026, p. 577; § 1043, p. 594; § 2905, p. 1704. Sec. 2, Subd. (14).— § 374, p. 247. Sec. 2, Subd. (15).— § 760, p. 453; § 1115, p. 637; § 1653, p. 1025; § 2697, p. 1599. Sec. 2, Subd. (17).— § 941, p. 525; § 944, p. 525. Sec. 2, Subd. (IB).— § 2001, p. 1244; § 2658, p. 1578; § 2660, p. 1579. Sec. 3.— § 1381, p. 809; § 1383, p. 810; § 1383, p. 812; § 1543, p. 921; § 1603, p. 970; § 1629, p. 996. Sec. 3 (a).— § 1379, p. 805. Sec. 3, Subd. (a) (1).— § 103, p. 103; § 104, p. 104; § 177, p. 148. Sec. 3, Subd. (a) (2).— § 113, p. 108; § 117, p. 110; § 120, p. Ill; § 175, p. 148. GEXERAI. IXDEX. 2079 123; § 390, BANKRUPTCY ACT— Continued. Sec. 3, Subd. (a) (3).— § 133, p. 118; § 137, p. 120; § 141, p. 256; § 1449, p. 859. Sec. 3, Subd. (a) (4).— § 145, p. 128; § 150, p. 130; § 151, p. 132. Sec. 3, Subd. (a) (5).— § 161, p. 138. Sec. 3, Subd. (b).— § 104, p. 104; § 127, p. 113; § 182, p. 152; § 185, p. 153; § 1133, p. 645; § 1379, p. 805; § 1381, p. 808; § 1381, p. 809; § 1381, p. 810. Sec. 3, Subd. (c).— § 176, p. 148; § 177, p. 149. Sec. 3, Subd. (d).— § 172, p. 146; § 179, p. 150; § 181, p. 151. Sec. 3, Subd. (e).— § 177, p. 149; § 336, p. 231; § 346, p. 234; § 348, p. 235; § 397, p. 258; § 1133, p. 645; § 1836, p. 1129; § 2018, p. 1255. Sec. 4, Subd. (a).— § 37, p. 55; § 1629, p. 996; § 2171, p, 1338; § 2796, p. 1639. Sec. 4, Subd. (b).— § 46, p. 59; § 48, p. 60; § 77, p. 78; § 79, p. 79; § 80, p. 80; § 413, p. 267; § 424, p. 273; § 1510, p. 902; § 1628, p. 995; § 2231, p. 1365. Sec. 5.— § 1303, p. 765; § 2239, p. 1370; § 2270, p. 1389; § 2795, p. 1636; § 2796, p. 1639; § 2805, p. 1643. Sec. 5. Subd. (a).— § 39, p. 56; § 56, p. 64. Sec. 5 (b).— § 866, p. 497; § 2233, p. 1366. Sec. 5, Subd. (c).— § 36, p. 55; § 2233, p. 1367. Sec. 5 (d).— § 2234, p. 1367. Sec. 5 (e).— § 2234, p. 1367. Sec. 5 (f).— § 2238, p. 1368; § 2238, p. 1370; § 2271, p. 1390. Sec. 5 (g).— § 2238, p. 1369; § 2271, p. 1390; § 2796, p. 1638; § 2796, p. 1639. Sec. 5 (h).— § 2232, p. 1366; § 2251, p. 4374; § 2795, p. 1637; § 2796, p. 1638; § 2797, p. 1641. Sec. 6.— § 1003, p. 557; § 1003, p. 558; § 1022, p. 570; § 1038, p. 592; § 1133, p. 645; § 2912, p. 1707; § 2920, p. 1710. Sec. 6 (c).— § 2231, p. 1365. Sec. 7.— § 1048, p. 602; § 1089, p. 616; § 1115, p. 636; § 1532, p. 916; § 1979, p. 1229; § 2077, p. 1286; § 2078, p. 1287; § 2124, p. 1309; § 2394. p. 1447; § 2469, p. 1493. Sec. 7 (a), Subd. (1).— § 453, p. 302; § 463, p. 304; § 2455, p. 1487. Sec. 7 (a), Subd. (2).— § 458, p. 303. Sec. 7 (a), Subd. (3).— § 447, p. 292; § 459, p. 303. Sec. 7 (a), Subd. (4).— § 460, p. 303; § 1115, p. 637. Sec. 7 (a), Subd. (5).— § 460, p. 303; § 1114, p. 636; § 1835, p. 1128. Sec. 7 (a), Subd. (6).— § 459, p. 303. Sec. 7 (a), Subd. (7).— § 459, p. 303; § 819, p. 476. Sec. 7 (a), Subd. (8).— § 461, p. 303; § 477, p. 308; § 481, p. 309; § 482, p. 309; § 1048, p. 600; § 1049, p. 603; § 1051, p. 603; § 1022, p. 570; § 2538, p. 1527. Sec. 7 (a), Subd. (9).— § 462, p. 303;- § 1525, p. 912; § 1527, p. 914; § 1538, p. 918; § 1556, p. 931; § 1557, p. 932; § 1558, p. 933; § 1577, p. 945; § 2124, p. 1309; § 2324, p. 1412. Sec. 8 (a).— § 99, p. 95; § 101, p. 99; § 1117, p. 639; § 2420, p. 1464; § 2939, p. 1717. Sec. 9 (a).— § 463, p. 304. Sec. 9, Subd. (b).— § 371, p. 246; § 373, p. 246; § 375, p. 247; § 1133, p. 2080 • GENERAL INDEX. BANKRUPTCY ACT— Continued. lUfl^^Y AUi — Uontinued. Sec. 10 (a).— § 374, p. 247. Sec. 11 (a).— §1103, p. 628; § 1133, p. 645; § 1582, p. 952; § 2688. p. 1596; § 2690,p. 1597; § 2695, p. 1598; § 2695, p. 1599; § 2696, p. 1599; § 2699, p. 1600; § 2703, p. 1602. § 2699, p. 1600; § 2703, p. 1602. Sec. 11 (b).— § 1645, p. 1012; § 1648, p. 1013. Sec. 11 (c).— § 899, p. 515; § 1640, p. 1011; § 1641. Sec. 11 (d).— § 1790, p. 1083; § 2307, p. 1403. Sec. 12 (a).— § 1405, p. 834; § 2349, p. 1426; § 2353, p. 1428; § 2355, p. 1429; § 2356, p. 1430; § 2358, p. 1431; § 2359, p. 1432; § 2361, p. 1433; § 2363, p. 1434. Sec. 12 (b).— § 1532, p. 915; § 1941, p. 1211; § 2360, p. 1432; § 2361, p. 1432; § 2365, p. 1434; § 2381, p. 1440; § 2384, p. 1441; § 2388, p. 1444; § 2394, p. 1447. Sec. 12 (c).— § 2372, p. 1436; § 2375, p. 1438. Sec. 12 (d).— § 2387, p. 1443. Sec. 12 (e).— § 2345, p. 1424; § 2356, p. 1430; § 2389. p. 1445; § 2390, p. 1445; § 2391, p. 1445; § 2394, p. 1447; § 2396, p. 1449. Sec. 13.— § 2400, p. 1451; § 2404, p. 1452. Sec. 14 (a).— § 1840, p. 1134; § 2349, p. 1426; § 2418, p. 1464; § 2420, p. 1465; § 2423, p. 1465; § 2424, p. 1465; § 2427, p. 1467; § 2459, p. 1488; § 2468, p. 1491; § 2468, p. 1492; § 2469, p. 1493; § 2477, p. 1495; § 2502, p. 1507; § 2608, p. 1560; § 2626, p. 1566; § 2655, p. 1577; § 2662, p. 1585; § 2751, p. 1619. Sec. 14 (b).— § 2387, p. 1443; § 2420, p. 1464; § 2447, p. 1485; § 2469. p. 1492; § 2487, p. 1503; § 2510, p. 1511; § 2523. p. 1523; § 2544, p. 1532; § 2553, p. 1539; § 2556, p. 1540; § 2626, p. 1566; § 2636, p. 1571; § 2660, p. 1579. Sec. 14 (b), Subd. (5).— § 2571, p. 1544; § 2572, p. 1546. Sec. 14 (b), Subd. (6).— § 2580, p. 1548; § 2581, p. 1549. Sec. 14 (c).— § 2349, p. 1426; § 2556, p. 1540. Sec. 15.— § 2481, p. 1499; § 2806, p. 1644; § 2807. p. 1645; § 2813, p. 1646; § 2815, p. 1647; § 2Sl6, p. 1648; § 2819, p. 1649; § 2820. p. 1649. Sec. 16 (a).— § 662, p. 403; § 1510, p. 902; § 2795, p. 1637; § 2796, p. 1638. Sec. 17 (a).— § 1448, p. 858; § 1449, p. 859; § 1455. p. 864; § 2160, p. 1333; § 2160, p. 1334; § 2438, p. 1475; § 2468, p. 1491; § 2470, p. 1494; § 2662. p. 1584; § 2662, p. 1585; § 2667, p. 1587; § 2681, p. 1594; § 2713, p. 1606; § 2731, p. 1610; § 2743, p. 1616; § 2745, p. 1616; § 2747, p. 1617; § 2751, p. 1619; § 2754, p. 1620. Sec. 17, Subd. (a) (2).— § 1449, p. 859; § 2747, p. 1617; § 2754, p. 1619; § 2757, p. 1621; § 2759, p. 1621; § 2785, p. 1630. Sec. 17 (a), Subd. (3).— § 2761, p. 1622; § 2777, p. 1627. Sec. 17 (a), Subd. (4).— § 2783, p. 1628. Sec. 17 (b).— § 2550, p. 1537. Sec. 18.— § 425, p. 274; § 437, p. 2&1. Sec. 18, Subd. (a).— § 307, p. 219; § 308, p. 220. Sec. 18, Subd. (b).— § 317, p. 222; § 444, p. 286; § 447, p. 202. Sec. 18, Subd. (c).— § 26, p. 41; § 447, p. 292; § 2430, p. 1469; § 2584, p. 1549; § 2584, p. 1550. Sec. 18, Subd. (d).— § 403, p. 263; § 423, p. 273; § 447, p. 292; § 2890, p. 1698. Sec. 18, Subd. (e).— § 424, p. 273; § 2890, p. 1698. Sec. 18, Subd. (f).— § 425, p. 273. GENERAL, INDEX. 2081 « BANKRUPTCY ACT— Continued. Sec. 18, Subd. (g).— § 195, p. 160; § 196, p. 160; § 419, p. 270; § 2890, p. 1698. Sec. 19, Subd. (a).— § 405, p. 264; § 406, p. 264; § 411, p. 266; § 2881, v. 1690; § 2894, p. 1699; § 2894, p. 1700. Sec. 20.— § 614, p. 365. Sec. 21.— § 1838, p. 1131. Sec. 21 (a).— § 462, p. 303; § »525, p. 912; § 1527, p. 913; § 1528, p. 914; § 1536, p. 917; § 1543, p. 920; § 1543, p. 921; § 1547, p. 922; § 1565, p. 940; § 1567, p. 941; § 1570, p. 943; § 1839, p. 1133. Sec. 21 (e).— § 1215, p. 718. Sec. 21 (f).— § 2684, p. 1595. Sec. 21 (g).— § 2347, p. 142 tiec. JJi {g). — s ^34V, p. 14:^4. Sec. 22 (a).— § 519, p. 323; § 521, p. 324. Sec. 22 (a), Subd. (2).— § 522, p. 324. Sec. 23.— § 1580, p. 948; § 1652, p. 1021; § 1652, p. 1022; § 1653, p. 1025; § 1653, p. 1026; § 1696, p. 1046; § 1796, p. 1089; § 1796, p. 1090; § 1811, p. 1110; § 1885, p. 1178; § 2864, p. 1678; § 2864, p. 1680; § 2864, p. 1681; § 2874, p. 1687; § 3025, p. 1749. Sec. 23 (a).— § 1653, p. 1027; § 1684, p. 1036; § 1686, p. 1037; § 1718, p. 1060. Sec. 23 Cb).— § 1477, p. 879; § 1652, p. 1021; § 1653, p. 1027; § 1684, p. 1036; § 1687, p. 1038; § 1688, p. 1039; § 1688, p. 1040; § 1689, p. 1040; § 1689, p. 1041; § 1696, p. 1045; § 1696, p. 1046; § 1716, p. 1058; § 2875, p. 1688. Sec. 24 (a).— § 1790, p. 10S9; § 2864, p. 1678; § 2864, p. 1679; § 2864, p. 1680; § 2864, p. 1681; § 2864, p. 1682; § 2869, p. 1684; § 2871, p. 1685; § 2875, p. 1687; § 2875, p. 1688; § 2877, p. 1689; § 2881, p. 1690; § 2882, p. 1691; § 2882, p. 1692; § 2882, p. 1693; § 2883, p. 1693; § 2884, p. 1695; § 2887, p. 1696; § 2888, p. 1697; § 2893, p. 1699; § 2902, p. 1703; § 2907, p. 1704; § 2911, p. 1706. Sec. 24 (a).— § 2912, p. 1706; § 2912, p. 1707; § 2914, p. 1708; § 2920, p. 1710; § 2920, p. 1711; § 2924, p. 1713; § 2925, p. 1713; § 2926, p. 1714; § 2927, p. 1714; § 2941, p. 1717; § 2941, p. 1718; § 2941, p. 1719; § 2942, p. 1720; § 3013, p. 1744; § 3016, p. 1745; § 3017, p. 1745; § 3025, p. 1749. Sec. 24 (b).— § 1109, p. 634; § 1110, p. 634; § 2864, p. 1679; § 2864, p. 1681; § 2870, p., 1684; § 2871, p. 1685; § 2874, p. 1686; § 2875, p. 1688; § 2876, p. 1688; §2882, p. 1691; §2882, p. 1692; § 2883, p. 1693; § 2884, p. 1695; § 2887, p. 1695; § 2887, p. 1696; § 2888, p. 1697; § 2901, p. 1702; § 2902, p. 1703; § 2911, p. 1706; § 2914, p. 1708; § 2915, p. 1708; § 2920, p. 1711 2 Rem B— 56 2082 GENKRAL INDEX. ri5; § 2941, p. 1719; § 2942, p. 1720. Sec. 25 (a).— § 2944, p. 1721; § 2959, p. 1725; § 2969, p. 1729; § 1733; § 2982, p. 1733; § 2985, p. 1733; § 2986, p. 1734; § 2992, ^. ^.„„, § 2999, p. 1737; § 3025, p. 1749. Sec. 25 (a), Subd. (3).— § 2076, p. 1286; § 2902, p. 1703. Sec. 25 (b), Subd. (1).— § 2910, p. 1705; § 3013, p. 1744; § 3014, p. 1745; § 3025, p. 1749. f-r- 9A fh") .Cliihrl To^ S QAI "^ r. 17^^^- 8 ■^00.'^ r. 17^0 p. 1749. § 3024, p. 1749. 1745; § 3025, p. 1749. Sec. 25 (b), Subd. (2).— § 3015, p. 1745; § 3025, p. 1 Sec. 25 (c).— § 2980, p. 1732. Sec. 25, Subd. (d).— § 2865, p. 1082; § 3013, p. 1744; Sec. 26 (a).— § 922, p. 522. Sec. 26 (b).— § 924, p. 523. Sec. 26 (c).— § 925, p. 523. Sec. 27 (a).— § 926, p. 523. Sec. 29.— § 1840, p. 1134; § 2017, p. 1253; § 2316, p. 1409; § 2326, p. 1412; § 2477, p. 1495; § 2655, p. 1577. , Sec. 29, Subd. (a).— § 2316, p. 1409; § 2317, p. 1410; § 2502, p. 1507; § 2510, p. 1511; § 2551, p. 1538. Sec. 29 (b), Subd. (l).— § 2316, p. 1409; § 2326, p. 1413; § 2487, p. 1503; § 2488, p. 1503; § 2490, p. 1504; § 2497, p. 1506; § 2498, p. 1506; § 2499, p. 1506; § 2514, p. 1514; § 2596, p. 1553. Sec. 29 (b), Subd. (2).— § 2316, p. 1409; § 2523, p. 1523; § 2538, p. 1527; § 2541, p. 1530. Sec. 29 (b), Subd. (3).— § 2316, p. 1409. Sec. 29 (b), Subd. (4).— § 1133, p. 645; § 2316, p. 1409. Sec. 29 (b), Subd. (5).— § 2316, p. 1409. Sec. 29, Subd. (c).— § 2316, p. 1409. Sec. 29 (c), Subd. (1).— § 2316, p. 1410. Sec. 29 (c), Subd. (2).— § 2316, p. 1410. Sec. 29 (c), Subd. (3).— § 2316, p. 1410. Sec. 29 (d).— § 2316, p. 1410. Sec. 30 (a).— § 25, p. 40; § 1133, p. 645. Sec. 31 (a).— § 189, p. 154; § 1375, p. 803; § 1454, p. 863. Sec. 33 (a)-— § 497, p. 319. Sec. 34 (a), Subd. (2).— § 500, p. 319; § 501, p. 320. Sec. 35 (a).— § 502, p. 320. Sec. 35 (a), Subd. (4).— § 501, p. 320. Sec. 36.— § 523, p. 325; § 592, p. 354. Sec. 36 (a).— § 503, p. 320. Sec. 37.— § 501, p. 320; § 1133, p. 645. Sec. 38 (a).— § 425, p.- 273; § 1580, p. 948; § 2335, p. 1418; § 2626, p. 1566; § 2660, p. 1579; § 2839, p. 1658; § 2839, p. 1659. 1566; § 2660, p. 1579; § 2839, p. 1658; § 2839, p. 1659. Sec. 38 (a), Subd. (1).— § 524, p. 328. Sec. 38 (a), Subd. (3).— § 337, p. 232; § 379, p. 251; § 525, p. o^o. Sec. 38 (a), Subd. (4).— § 379, p. 251; § 425, p. 274; § 2373, p. 1436; § 2391, p. 1446; § 2625, p. 1566; § 2626, p. 1566; § 2660, p. 1579; § 2820, p. 1649. Sec. 38 (a), Subd. (5).— § 1579, p. 945; § 2006, p. 1245; § 2007, p. 1246. GENERAI, INDEX. 2083 p. 1731. BANKRUPTCY ACT— Continued. Sec. 39.— § 2626, p. 1566; § 2660, p. 1579; § 2840, p. 1660; § 2974 Sec. 39 (a), Subd. (l).— § 507, p. 321. Sec. 39 (a), Subd. (2).— § 479, p. 309; § 508, p. 321; § 1068, p. .._. Sec. 39 (a), Subd. (3).— § 509, p. 322. Sec. 39 (a), Subd. (5).— § 511, p. 322; § 2855, p. 1666; § 2856, p. 1667; § 2857, p. 1668; § 2974, p. 1730. Sec. 39 (a), Subd. (6).— § 512, p. 322 Sec. 39 (a), Subd. (7).— § 513, p. 32 Sec. 39 (a), Subd. (8).— § al4, p. 322 Sec. 39 (a), Subd. (9).— § 515, p. 322; p. 322. 2856, p. 1667. bee. 39 (a), bubd. (.9;.— § 515, p. 322; § 2856, p Sec. 39 (a), Subd. (10).— § 516, p. 323. Sec. 39 (b), Subd. (l).— § 504, p. 321. Sec. 39 (b), Subd. (3).— § 505, p. 321; § 1955, Sec. 40.— § 2036, p. 1263; § 2103, p. 1300; § 2185 p. 1218. c. 40.— § 2036, p. 1263; § 2103, p. 1300; § 2188, p. 1345. c. 40, Subd. (a).— § 285, p. 206; § 2102, p. 1299; § 2106, p. 1301; § 2108. D. 1301. Sec p. 1301. Sec. 40 (c).— § 526, p. 329. Sec. 41.— § 2330, p. 1415; § 2839, p. 1659. p. 498; § p. 526; Sec. 41.— § 2330, p. 1415; § 2839, p. U Sec. 41 (a), Subd. (1).— § 2334, p. 1417 Sec. 41 (a), Subd. (2).— § 2334, p. 141 Sec. 41 (a), Subd. (3).— § 2334, p. 1417. Sec. 41 (a), Subd. (4).— § 2334, p. 1418. Sec. 41 (b).— § 2330, p. 1415; § 2336, p. 1418; § 2338, p. 1419. Sec. 42.— § 560, p. 339. Sec. 43.— § 1133, p. 645. Sec. 48.— § 2188, p. 1345. Sec. 44 (a).— § 584, p. 351; § 862, p. 496; § 869, p. 498; § 870, p 875, p. 500; § 873, p. 500; § 895, p. 510; § 895, p. 5l'l; § 948, § 949, p. 526; § 1133, p. 645; § 2314, p. 1405. Sec. 45.— § 879, p. 503; § 881, p. 503. 'Sec. 46 (a).— § 947, p. 526. Sec. 47 (a), Subd. (l).— § 906, p. 518; § 907, p. 519. Sec. 47 (a), Subd. (2).— § 908, p. 519. Sec. 47 (a), Subd. (3).— § 909, p. 519. Sec. 47 (a), Subd. (4).— § 912, p. 520. Sec. 47 (a), Subd. (5).— § 914, p. 520. Sec. 47 (a), Subd. (6).— § 916, p. 521. Sec. 47 (a), Subd. (7).— § 917, p. 521; § 2297, p. 14011. Sec. 47 (a), Subd. (8).— § 917, p. 521; § 2297, p. 1401. Sec. 47 (a), Subd. (9).— § 918, p. 522. Sec. 47 (a), Subd. (lO).— § 917, p. 521; § 2285, p. 1397. Sec. 47 (a), Subd. (11).— § 1022, p. 570; § 1048, p. 601; § 1074, p. 611; § 1075, p. 612. Sec. 47 (b).— § 874, p. 500; § 876, p. 500. Sec. 47 (c).— § 2108, p. 1301. Sec. 48.— § 2036, p. 1263; § 2103, p. 1300; § 2119, p. 1307. Sec. 48, Subd. (a).— § 285, p. 206; § 2110, p. 1302; § 2116, p. 1304. Sec. 48 (b).— § 2114, p. 1303. Sec. 48 (c).— § 2113, p. 1303. Sec. 49 (a). — § 915, p. 520. Sec. 50 (a).— § 503, p. 320. Sec. 50, Subd. (a) (2).— § 2J 287, p. 206. 2084 GENERAL INDEX. BANKRUPTCY ACT— Continued. Sec. 50 (b).— § 877, p. 501. Sec. 50 (c).— § 877, p. 501. Sec. 50 (e). — § 877, p. 501. Sec. 50 (f).— § 877, p. 501. Sec. 50 (g).— § 877, p. 501. Sec. 50 (k).— § 877, p. 501. Sec. 51.— § 2023, p. 1257; § 2036, p. 12G3. Sec. 52. — § 285, p. 206. Sec. 52, Subd. (b).— § 2129, p. 1310. Sec. 54.— § 1133, p. 645. Sec. 55 (a).— § 591, p. 354. Sec. 56.— § 584, p. 351; § 1532 p. 915. Sec. 56, Subd. (a).— § 205, p. 169; § 572, p. 347. Sec. 56 (b).— § 576, p. 349; § 634, p. 376; § 1387, p. »is. See. 57.— § 729, p. 438; § 845, p. 488; § 1494, p. 891; § 2139, p. 1318; § 2163, p. 1335; § 2223, p. 1363; § 2394, p. 1447; § 2395, p. 1449. Sec. 57 (a).— § 447, p. 291; § 594, p. 355; § 594, p. 356; § 603, p. 359; § 614, § 57.— § 729, p. 438; § 845, p. 488; § 1494, p. 891; § 2139, p. 63, p. 1335; § 2223, p. 1363; § 2394, p. 1447; § 2395, p. 1449. 57 (a).— § 447, p. 291; § 594, p. 355; § 594, p. 356; § 603, f W..4, p. 364; § 720, p. 435; § 844, p. 486; § 2139, p. 1319. Sec. 57 (b).— § 602, p. 358; § 844, p. 486. Sec. 57 (c).— § 447, p. 291; § 577, p. 349; § 2358. p. 1431. Sec. 57 (d).— § 447, p. 292; § 813. p. 474; § 816, p. 475; § 818, p. 475; 819, p. 475; § 844, p. 486. Sec. 57 (e).— § 634, p. 376; § 751. p. 446; § 763, p. 454; § 767, p. 455; § 1314, p. 772; § 1387, p. 818; § 2139, p. 1319. Sec. 57 (£).-§ 844, p. 486; § 1314, p. 772. . Sec. 57, Subd. (g).— § 119, p. 110; § 205, p. 169; § 578, p. 349; § 632, p. 376; § 768, p. 456; § 769, p. 456; § 1314, p. 772; § 1329, p. 779; § 1401, p. 829; § 1421, p. 843; § 1421, p. 844. Sec. 57 (h).— § 751, p. 446; § 755. p. 448; § 759, p. 450; § 760, p. 452; § 760, p. 453; § 762, p. 454; § 767, p. 455; § 1314, p. 772; § 1387, p. 818. Sec. 57 (i).— § 611, p. 362; § 61S, p. 364; § 644, p. 386; § 645, p. 386; § 645, p. 388; § 1516, p. 904. Sec. 57 (k). — § 447, p. 291; § 817, p. 475; § 819, p. 475; § 838, p. 483; § 861, p. 493. Sec. 57 (n).— § 7a7, p. 429; § 717, p. 430; § 717, p. 432; § 719, p. 434; § 719, p. 435; § 724, p. 437; § 730, p. 438; § 729, p. 438; § 730, p. 439; § 731, p. 439; ^ 1178, p. 690; § 1614, p. 981; § 2161, p. 1334; § 2358, p. 1431. Sec. 58.— § 928, p. 523; § 934, p. 524; § 1706, p. 1054; § 1869, p. 1162; § 1942, p. 1212. Sec. 58. Subd. (a).— § 419, p. 269; § 565, p. 343; 1535, p. 917; § 1938, p. 1209; § 2053, p. 1275; § 2289, p. 1398; § 2296, p. 1401. Sec. 58 (a), Subd. (2).— § 2371, p. 1436; § 2431, p. 1469. Sec. 58 (a), Subd. (4).— § 1944, p. 1213. Sec. 58 (a), Subd. (5).— § 2215, p. 1360; § 2289, p. 1398. Sec. 58 (a), Subd. (6).— § 2296, p. 1401. Sec. 58 (b).— § 568, p. 344; § 569, p. 344. Sec. 59, Subd. (b).— § 197, p. 163; § 198, p. 163; § 220, p. 175; § 227, p. 179; § 240, p. 186; § 444, p. 284; § 672, p. 407. Sec. 59, Subd. (c).— § 190, p. 157; § 283, p. 205. Sec. 59, Subd. (d).— § 204, p. 197; § 207, p. 170; § 672, p. 407. CEXERAL IXDEX. 2085 BANKRUPTCY ACT— Continued. Qp^ r,Q C.-KH fp^ S 1QQ 1 (Uir-TUY AUi — continued. Sec. 59, Subd. (e).— § 199, p. 164; § 215, p. 174. Sec. 59, Subd. (f).— § 210, p. l72; § 317, p. 222; § 672, p. 407. Sec. 59, Subd. (g).— § 419, p. 269. Sec. 60.— § 1138, p. 665; § 1303, p. 766; § 1314, p. 770; § 1385, p. 816; § 1395, p. 823; § 1494, p. 891; § 1603, p. 970; § 1629, p. 996; § 1652, p. 1021; § 2086, p. 1290; § 2087, p. 1292; § 2097, p. 1298; § 2205, p. 1357; § 2223, p. 1363. Sec. 60, Subd. (a).— § 119, p. 110; § 123, p. Ill; § 126, p. 112; § 127, p. 113; § 128, p. 113; § 205, p. 169; § 446, p. 291; § 1126, p. 642; § 1137, p. 662; § 1179, p. 690; § 1277, p. 756; § 1282, p. 757; § 1294, p. 760; § 1295, p. 760; § 1296, p. 761; § 1308, p. 766; § 1314, p. 772; § 1368, p. 794; § 1377, p. 803; § 1379, p. 804; § 1379, p. 805; § 1379, p' 806; § 1381, p. 808; § 1381, p. 809; § 1381, p. 810; § 1383, p. 811; § 1383, p. 812; § 1384, p. 8!l3; § 1384, p. 815; § 1385, p. 816; § 1416, p. 839; § 1452, p. 861; § 1453, p. 862; § 1477, p. 880. Sec. 60, Subd. (b).— § 205, p. 169; § 395, p. 257; § 445, p. 290; § 1133, p. 645; § 1137, p. 662; § 1179, p. 690; § 1329, p. 779; § 1381, p. 809; § 1383, p. 812; § 1395, p. 822; § 1401, p. 829; § 1405, p. 834; § 1411, p. 838; § 1477, p. 879; § 1477, p. 880; § 1497, p. 895; § 1580, p. 948; § 1688, p. 1039; § 1688, p. 1040; § 1689, p. 1040; § 2874, p. 1686; § 2927, p. 1714. Sec. 60, Subd. (c).— § 1416, p. 839; § 1419, p. 841; § 1422, p. 844; § 1423, p. 844. Sec. 60 (d).^§ 1504, p. 900; § 2090, p. 1294; § 2095, p. 1296; § 2096, p. 1296; § 2097, p. 1296; § 2094, p. 1296; § 2097, p. 1297; § 2907, p. 1705. Sec. 61.— § 909, p. 519. Sec. 62.— § 517, p. 323; § 2291, p. 1398. Sec. 62 (a).— § 2028, p. 1259; § 2029, p. 125^ Sec. 63.— § 645, p. 387; § 749, p. 446; § 776, p. 474; § 2160, p. 1333; § 2731, p. 1612. Sec. 63 (a), Subd. (4).— § 694, p. 420. Sec. 63 (a), Subd. (5).— § 672, p. 407; § 682, p. 414; § 695, p. 421; § 1133, p. 645; § 1448, p. 858; § 1449, p. 859; § 1647, p. 1013; § 2704, p. 1603; § 2713, p. \1606. Sec. 63, Subd. (b).— § 232, p. 180; § 704, p. 423; § 704, p. 424; § 705, p. 425; § 706, p. 425; § 711, p. 427; § 717, p. 430; § 717, p. 431; § 717, p. 433; § 1647, p. 1013. Sec. 63 (b), Subd. (5).— § 1104, p. 632; § 1524, p. 908. Sec. 64.— § 845, p. 488; § 1387, p. 817; § 2019, p. 1256; § 2086, p. 1290; § 2087, p. 1292; § 2090, p. 1294; § 2097, p. 1298; § 2139, p. 1319; § 2160, p. 1333; § 2160, p. 1334; § 2183, p. 1343. Sec. 64 (a).— § 702, p. 423; § 2141, p. 1319; § 2141, p. 1320; § 2141, p. 1321; § 2144, p. 1321; § 2144, p. 1322; § 2150, p. 1328; § 2156, p. 1331; § 2157, p. 1332; § 2161, p. 1334. Sec. 64 (a), Subd. (!).—§ 2013, p. 1250. 2086 GEXEIL-Ji-L IXDEX. BANKRUPTCY ACT— Continued. Sec. 64 (b).— § 1485, p. 884; § 1708, p. 1055; § 2017, p. 1253; § 2053, p. 1275; § 2093, p. 1295; § 2096, p. 1296; § 2103, p. 1300; § 2141, p. 1321; § 2169, p. 1337; § 2907, p. 1704. Sec. 64, Subd. (b) (2).— § 400, p. 261; § 1485, p. 884; § 1620, p. 985; § 1708, p. 1055; § 1714, p. 1057; § 1712, p. 1057; § 1713, p. 1057; § 2015, p. 1252; § 2018, p. 1255. Sec. 64 (b), Subd. (3).— § 2063, p. 1282; § 2065, p. 1282; § 2077, p. 1286; § 2078, p. 1287; § 2089, p. 1293; § 2097, p. 1297; § 2097, p. 1298. Sec. 64 (b), Subd. (4).— § 1133, p. 645; § 2164, p. 1335; § 2165, p. 1335: § 2167, p. 1336; § 2170, p. 1338; § 2172, p. 1339; § 2178, p. 1341; § 2179, p. 1341; § 2180, p. 1342; § 2186, p. 1344; § 2203, p. 1355; § 2203, p. 1356. Sec. 64, Subd. (b) (5).— § 5, p. 22; § 150, p. 131; § 1210, p. 709; § 1441, p. 851; § 1441, p. 852; § 1485, p. 884; § 1619, p. 984; § 1631, p. 1003; § 2018, p. 1255; § 2141, p. 1320; § 2170, p. 1338; § 2179, p. 1341; § 2179, p. 1342; § 2181, p. ^1342; § 2186, p. 1344; § 2187, p. 1345; § 2188, p. 1345; § 2189, p. 1346; § 2190, p. 1346; § 2194, p. 1346; § 2196, p. 1347; § 2196, p. 1349. Sec. 64, Subd. (b) (5).— § 2197, p. 1349; § 2197, p. 1350; § 2197, p. 1351; § 2198, p. 1351; § 2198, p. 1352; § 2203, p. 1355; § 2203, p. 1356; § 2204, p. 1356; § 2205, p. 1357. Sec. 65 (a).— § 1532, p. 915; § 2209, p. 1359; § 2780, p. 1628. Sec. 65 (c).— § 2212, p. 1359; § 2113, p. 1360. Sec. 66 (a).— § 2217, p. 1360. Sec. 66 (b).— § 2217, p. 1360. Sec. 67.— § 1244, p. 738; § 1342, p. 786; § 1441, p. 851; § 1449, p. 859; § 1494, p. 892; § 1603, p. 970; § 1603, p. 973; § 1603, p. 974; § 1629,- p. 996; § 1652, p. 1021. Sec. 67 (a).— § 1137, p. 662; § 1138, p. 664; § 1138, p. 666; § 1207. p. 699; § 1207, p. 702; § 1207, p. 703; § 1209, p. 706; § 1222, p. 723; § (1229, p. 731; § 1257, p. 741; § 1270, p. 749; § 1507, p. 901; § 1896, p. 1185. Sec. 67 (b).— § 1209, p. 706; § 1489, p. 886; § 1489, p. 887; § 1712, p. 1057. Sec. 67 (c).— § 1126, p. 642; § 1133, p. 645; § 1137, p. 662; § 1138, p. 665; § 1463, p. 869; § 1463, p. 870; § 1485, p. 884; § 1492, p. 890; § 1603, p. 973; § 1603, p. 974; § 2198, p. 1352. Sec. 67 (c), Subd. (3).— § 2036, p. 1262. Sec. 67 (d).— § 760, p. 452; § 760, p. 453; § 1207, p. 702; § 1207, p. 703; § 1314, p. 770; § 1500, p. 896; § 1500, p. 897; § 1501, p. 897; § 1501, p. 898; § 2049, p. 1273. Sec. 67 (e).— § 1095, p. 620; § 1126, p. 642; § 1133, p. 645; § 1137, p. 662; § 1138, p. 664; § 1207, p. 699; § 1207 p. 700; § 1219, p. 723; § 1259. p. 743; § 1269, p. 749; § <1454, p. 863; § 1493, p. 890; § 1493, p. 891; § 1496, p. 893; § 1497, p. 895; § 1498, p. 895; § 1499, p. 895; § 1580, p. 948; § 1603, p. 971; § 1688, p. 1039; § 1688, p. 1040; § 1690, p. 1041; § 1746, p. 1071; § 2874, p. 1686; § 2927, p. '1714. Sec. 67 (f).— § 777, p. 460; § 1100, p. 624; § 1100, p. 626; § 1126, p. 642; § 1133, p. 645; § 1137, p. 662; § 1138, p. 665; § 1207, p. 700; § 1429, p. 847; § 1436, p. 849; § 1443, p. 853; § 1443, p. 854; § 1444, p. 854; § 1447, p. 856; § 1448, p. 857; § 1449, p. 859; § 1452, p. 861; § 1453, p. 862; § 1455, p. 864; § 1458, p. 865; § 1460, p. 866; § 1461, p. 868; § 1462, p. 869; § 1463, p. 869; § 1463, p. 870; § GENERAL INDEX. 2087 BANKRUPTCY ACT— Continued. 1464 p 871; § 1465, p. 871; § 1466, p. 872; § 1472, p. 87o; § 1474, p. 877- § 1477 p 879; § 1478, p. 880; § 1480, p. 882; § 1481, p. 882; § 1482, p. 883; § 1485, p. 884; § 1489, p. 886; § 1489, p. 887; § 1491, p. 889; § 1511,' p. 903; § 1586, p. 960. Sec 67 (f) -§ 1600, p. 965; § 1603, p. 973; § 1605, p. 975; § 1714, p. 10o7; § 1712 p 1057; § 1807, p. 1105; § 1828, p. 1125; § 2018, p. 1255; § 2116, p. 1304; § 2197, p. 1350; § 2197, p. 1351; § 2198, p.. 1351; § 2198, p. 1352. Sec. 68.— § 1178, p. 690; § 1341, p. 785. Sec. 68 (a).— § 1180, p. 691; § 1341, p. 785. Sec. 68 (b).—§ 1133, p. 645; § 1178, p. 690. Sec. 68 (b), Subd. (!).—§ 1177, p. 689. Sec. 68 (b), Subd. (2).— § 1182, p. 692. Sec 69.— § 1652, p. 1021; § 1836, p. 1129; § 2018, p. 1255. Sec. 69 (a).-§ 336, p. 231; § 377, p. 249; § 39i 5, p. 718; 1216, p. 7iy. „, o >c 70 (a), Subd. (5).-§ 963, p. 538; § 1002, p. 557; § 1014, p. 564; § 1015, p. 565; § 1135, p. 647; § 1138, p. 664; § 1207, p. 702; § 1208, p. 706; § 1215, p. 718. 3ec 70 (b).— § 1957, p. 1219; § 1956, p. 1219; § 1958, p. 1220. Sec. 70 (b), Subd. (4).-§ 1222, p. 723; § 1631, p. 1003; § 1924, p. 1203; § 1942, p. 1212; § 1949, p. 1215. Sec 70 (c).— § 1208, p. 704. Sec 70 (e).-§ 1137, p. 662; § 1138, p. 663; § 1138, p. 664; § 1138, p. 666; § l'>07 p 699; § 1207, p. 700; § 1207, p. 702; § 1209, p. 706; § 1215, p. 718- §'l216, p. 719; § 1222, p. 723; § 1227, p. 726; § 1580, p. 948; § 1684, p 1036- § 1687, p. 1038; § 1688, p. 1039; § 1689, p. 1040; § 1689. p. 1041; § 1716, p. 1058; § 2874, p. 1686; § 2912, p. 1707; § 2927, p. 1714; § 2941, p. 1719. Sec. 70 (f).— § 2347, p. 1424. Sec. 71.— § 1626, p. 990. Sec. 72.— § 2029, p. 1259; § 2059, p. 1281; § 2117, p. 1305. BANKRUPTCY ACT REMEDIABLE AND' TO BE FAIRLY CONSTRUED. § 22, p. 37. BANKRUPTCY COURT Forum for determination of "tax" questions, § 2157, p. 1332. Jurisdiction of, see "Conflict of Jurisdiction." 2088 GENERAL INDEX. BANKRUPTCY LAW Release from Debts not [Main nor Essential Idea, Introd. (a), p. 1. See "History." State Courts will administer, § 1597, p. 964. BANKRUPTCY PETITION See ''Involuntarj^ Petition." See "Voluntary Petition." "Caveat to all the world," and "attachment and injunction," § 1916, p. 1194. Refusal of former discharge no bar to present bankruptcy petition, § 2441, p. 1477. Voluntary To mention firm debts, if discharge therefrom sought, § 2799, p. 1642. BANKRUPTCY PROCEEDINGS Proceedings "In rem," also "In personam," § 18, p. 34. Nature of, § 18, p. 34. "BANKRUPTCY PROCEEDINGS" PROPER Distinguished from "Controversies," § 19, p. 36; § 2864, p. 1678. Reviewable in Supreme Court on Certiorari, § 3025, p. 1749. "BECAUSE OF INSOLVENCY" Receiverships as acts of bankruptcj', § 155, p. 133. "BEYOND REASONABLE DOUBT" Contempt for disobedience of summary order to surrender assets, proof must be, to warrant punishment for, § 1842, p. 1137; § 1859, p. 1157. On Discharge, evidence need not be, § 2638, p. 1571. Summary order on bankrupt to surrender assets, whether proof must be, § 1842, p. 1137. BIDDERS Unfairness towards, at sales in bankruptcy, § 1954, p. 1217. BILL OF EXCEPTIONS Not requisite on appeal nor petition for review, § 2954, p. 1724. BILL OF SALE Of trustee, § 1998, p. 1236. Also, see "Unofficial Forms No. 31." BONA FIDE HOLDERS OR PURCHASERS For value prior to adjudication, protected, § 1227, p. 726. At sales by officers of State courts, protected where subsequent bank- ruptcy invalidates lien by legal proceeding, § 1481, p. 882. Have burden of proof of bona fides, § 1482, p. 883. BOND For Annuity, annuitant still living, § 651, p. 390. Appeal bond, § 648, p. 389. On Appeal Approval of, perfects and "allows" appeal, § 2978, p. 1732. Delay in, not fatal, if appeal allowed in time, § 2986, p. 1733. Requisite, § 2977, p. 1731. Trustee need not give, § 2980, p. 1732. GENERAL INDEX. 2089 BOND— Continued. For Appeal Released if liability dependent on judgment, § 1511, p. 902. For Attachment Released if liability dependent on judgment, § 1511, p. 902. Of Assignee, no liability on to creditors who participate in defeating assign- ment, § 1624, p. 988. For Costs of receiver, § 390, p. 258. Damages on, § 370, p. 245. For Injunction, § 370, p. 245; § 396, p. 258; § 1756, p. 1073. For Injunction by receiver, § 396, p. 258. ■ Obtaining of Judgment prerequisite to liability on, § 648, p. 389. On Petition for Review Not requisite except by local rule, § 2976, p. 1731. Of Receiver, § 382, p. 251. Premium on, § 2038, p. 1263. Of referee, § 503, p. 320. Refusal to Stay Suit, and Permitting Creditor to Perfect rights against Bond, see "Restraining Orders and Injunctions — Qualified Stay Where Judgment netessary to perfect rights against Surety or Property." On Review Trustee need not give, § 2980, p. 1732. Of Trustee, § 2038, p. 1263. Liable on loss for failure to deposit in depository, § 910, p. 519. Premium on, § 2038, p. 1263. Remains liable for two years after estate closed, § 1791, p. 1083 n. For warrant for seizure of property, § 336, p. 231; § 341, p. 233. Cannot be waived by bankrupt, § 342, p. 233. Xeed not be signed by petitioners, § 343, p. 233. Surety Company bond sufficient, § 344, p. 233. Premium, § 345, p. 234. BONDS \Micn pass to trustee, § 1001, p. 556. BOOKS Of Account Failure to keep as bar to discharge, see, "Discharge — Opposition to — Grounds of — Destruction, Failure to Keep and Concealment of Books." Production of may be enforced, § 1548, p. 926. Relating to bankrupt's business pass to trustee, § 955, p. 536. Not Relating to bankrupt's business do not pass to trustee, § 957, p. 536. BORROW Receiver's power to borrow money, § 389, p. 255. BREACH OF PROMISE OF MARRIAGE Discharge of, § 2739, p. 1614; § 2754, p. 1620. BRIDGE BUILDING CORPORATIONS See "Manufacturing Corporations." 2090 GENERAL INDEX. BRIDGE CONSTRUCTION COMPANIES See "Involuntary Bankruptcy." BROKERS Conversions by Whether discharged, § 2785, p. 1629. BUILDING COMPANIES See "Involuntary Bankruptcy." BUILDING CONTRACT, § 672, p. 409. Claims for uncompleted, whether provable, § 688, p. 417. Owner ''adverse claimant" where mechanics' or subcontractors' liens exist,. § 1682, p. 1035. Rights under, on marshaling liens, § 1885, p. 1178 n. Unrecorded indemnity agreement to surety of bankrupt contractor, § 1370, p. 800. BUILDING AND LOAN ASSOCIATION See "Involuntary Bankruptcy." BURDEN OF PROOF ^ . On Bankrupt If exceptions to report of exempted propert}- amount to general denial, § 1085, p. 615. Of Bona Fides On Purchaser, at Judicial Sale, § 1482, p. 883. Of Debt Excepted from Discharge On Plaintiff where discharge interposed ns defense, § 2685, p. 1595. Deposition for proof of debt, prima facie case for claimant, § 844, p. 484. Of Each Element of preference, on trustee, in suit to recover, § 1768, p. 1070. Of Insolvency As to Preferences and preferential liens not vacated as acts of bank- ruptcy, on petitioning creditors, § 178, p. 149. In receivership as act of Bankruptc}% § 154, p. 133. On Opposition to Confirmation of Composition, § 2383, p. 1441. On Opposing creditor, on opposition to discharge, § 2635, p. 1570. As to each element of ground charged, § 2637, p. 1571. Original Order of Allowance, prima facie case, § 843, p. 484. Of Partnership On Petitioning Creditors, § 63, p. 69. Presumptions of fact may shift against bankrupt, § 2636, p. 1571. Of propriety of off-set, on debtor seeking to use same, § 1183, p. 693. In Prosecuting bankruptcy petition is on creditors, § 172, p. 146. On Setting aside Composition, on creditor, § 2403, p. 1452. BUSINESS Conducting of Expense of, § 388, p. 255; § 2036, p. 1262. Expense of, whether chargeable upon property to detriment of prior valid lien, § 2036, p. 1262 n. Extra compensation for, § 2115, p. 1303. Receiver may conduct, but only for limited period, § 387, p. 255. GENERAL INDEX. ' 2091 BUSINESS TAKEN OVER Claims on old concern's debts, § 810, p. 471. BUYING IN CLAIMS Claims l)ought in by one creditor lose separate identity, § 203, p. 166. BUYING OFF OPPOSITION TO DISCHARGE Sufficient for revoking discharge, § 2814, p. 1647. "CALL" Bankruptcy court may make, for unpaid stock subscriptions, § 977, p. 547. CANCELLATION Of Discharged judgments, § 2687, p. 1596; § 2707, p. 1603. Petition to Redeem gives jurisdiction to order, on tender of amount due, where undisputed, § 1870, p. 1163. CAPACITY Act Barring Discharge, whether must have been committed in same, § 2486, p. 1503. In which Bankrupt holds, as afifecting summary jurisdiction, § 1820, p. 1117. Pleadings to show trustee's representative capacity, § 1734, p. 1068. Specifications of objections to discharge, to show capacity of objecting creditor, § 2594, p. 1552. Trustee may plead bankrupt's «lack of, § 1204, p. 698. CAPTION AND TITLE Of Proofs of claims, § 596, p. 356. CARE OF EXEMPT PROPERTY Bankrupt not entitled to reimbursement for, pending setting off, § 1092. p. 617. Rents, storage and other charges pending setting off, may be taxed against bankrupt, § 1093, p. 617. CASH SURRENDER VALUE See "Life Insurance Policies as Assets." CASH TRANSACTIONS Not preferences, § 1315, p. 773. CATTLE DEALER Exempt from Involuntary Bankruptcy, § 48, p. 61. "CAVEAT" Maxim that filing of petition a caveat, attachment and injunction, § 1215, p. 718; § 1916, p. 1194. "CAVEAT EMPTOR" Prevails at trustee's sales, § 1959, p. 1220. CELERITY OF PROCEDURE INTENDED, § 23, p. 38. CERTIFICATE Of "Conformity" None required as prerequisite to discharge, § 2457, p. 1487. Of discharge, is proof of discharge, § 2684, p. 1595. 2092 GENERAL INDEX. CERTIFICATE— Continued. Of referee To his record, § 2299, p. 1401. Of contempt, § 2336, p. 1418. Of commission of contempt, a judicial act, not ministerial duty, § 2337, p. 1418. Of referee on review, § 2852, p. 1664 On review of Referee's order, Findings of fact, § 2857, p. 1668. May be prepared by counsel, § 2853, p. 1665. Not entire evidence, but only "summary," § 2855, p. 1666. Petition and certificate transmitted to District Clerk, § 2859, p. 1669. Question, to be stated clearly and distinctly, § 2858, p. 1669. CERTIORARI To send up missing matter, to complete record on appeal, § 2968, p. 1729. Review in Supreme Court on, § 3025, p. 1749; § 3024, p. 1748. "CESSIO BONORUM" Introd. (d), p. 2. CHANGE OF BENEFICIARY Life insurance policies containing right to change beneficiary pass to trus- tee, § 1007, p. 560. CHANGE OF DEBTOR'S CLASS After commission of act but before filing of petition, § 95, p. 91. CHATTEL MORTGAGEES When are adverse claimants, § 1655, p. 1029; § 1675, p. 1033. On After-acquired property, § 1264,- p. 745; § 1509, p. 902. To Cover Future Advances, good, though made within four months, § 1223, p. 725. Distinction between conditional sales, as mere retentions of title, and chat- tel mortgages as "transfers," § 1244, p. 738. Failure to comply with statutory requirements Void for, § 1199, p. 697. Indefiniteness in, Void for, § 1199, p. 697. Jilade in State where recording not required, but contemplating delivery where required, § 1247, p. 739. Marshaling of lien of, § 1885, p. 1178. With Power of sale When void, § 1258, p. 741. Not void, if agreement to apply exists, though agreement disregarded, § 1259, p. 743. Mere remaining in possession and selling for short period, without reservation of, does not vitiate, § 1262, p. 743. Not reserved in express terms, § 1261, p. 743. WHiether void as to goods to be sold, or void in toto, § 1262, p. 743. Trustee may defend that it does not cover after-acquired property, § 1199, p. 697. GENERAL INDEX. 2093 CHATTEL MORTGAGEES— Continued. Unfiled Permitting creditors to levy after bankruptcy in order to arm with process, § 1239, p. 735. Defective refiling of, § 1240, p. 736. Whether lien begins at date of taking possession or reverts, § 1237, p. 735. As to after-acquired property, § 1238, p. 735. Pretended to be property held in trust, § 1228, p. 729. When void as against trustee, § '1230, p. 732. Not void where filing or recording not required, § 1231, p. 732. Meaning of "required," § 1232, p. 733. Whether creditor must have levied, or been "armed with process," § 1233, p. 733. Not void where damage, etc.. must also be shown, § 1234, p. 734. Not void where equitable sequestrations by receivers, assignees, etc., insufficient, § 1235, p. 734. Taking of possession curing lack of record, § 1236, p. 734. Withheld from record, § 1508, p. 901. CHECK Giving of not preference, but paying of it is, § 1283, p. 757. CHIEFLY ENGAGED IN FARMING OR TILLING Corporations not within this exemption from involuntary bankruptcy, § 50, p. 62. Exempt from involuntary bankruptcy, § 48, p. 60. Incidental farming or tilling does not exempt, § 48, p. 60. ]\Iust be "chiefly" engaged, else not exempt, § 48, p. 60. CHILD Rights of on Bankrupt's Death Death occurring after adjudication, § 100, p. 97. Death occurring Before adjudication and after filing of petition, § 99, p. 95. Support of Liabilities for, not discharged, § 2757, p. 1621. Liabilities to third parties not excepted, § 2759, p. 1621. CHOSES IN ACTION Not property '"in possession" of bankrupt, § 1810, p. 1109. CIRCUIT COURT OF APPEALS Appeals to, see "Appeal and Error — Appeals to Circuit Court of Appeals — In Bankruptcy Proceedings Proper." CIRCUIT COURT OF THE UNITED STATES Jurisdiction of in bankruptcy matters, § 1686, p. 1037. CIRCULATING LIBRARY CORPORATIONS Not subject to Bankruptcy, § 94, p. 89. CIRCUMSTANTIAL EVIDENCE As Proof of Intent To Conceal financial condition, § 2546, p. 1534. To Prefer, § 131, p. 114. 2094 GENERAL INDEX. CITATION ' On Appeal, § 2960, p. 1725. Delay in, not fatal if appeal "allowed" in time, § 2986, p. 1733. May be granted after expiration of appeal time, § 2973, p. 1730. Record on appeal must show, § 2970, p. 1729. CLAIM Allowable claims, see "Allowable Claims." Allowance or rejection of, is the only "bankruptcy proceedings" proper appealable to Supreme Court, § 3013, p. 1744. Only permissible then if amount in controversy exceeds $2000, § 3014, p. 1745. Or some Supreme Court Justice certifies Essential to uniform con- struction, § 3015, p. 1745. Allowance of not necessary for other participation in creditors' meetings than voting, § 580, p.' 349. , Allowed, only, may vote, § 575, p. 3*8. Appealabilitj' of, see "Appeal and Error — Appeal to Circuit Court of Ap- peals — In Bankruptcy Proceedings Proper — Claims." Assignment of, see "Assignment of Claim." On Contract, Express or Implied See "Contract, Express or Implied." Also, see "Claim Not Owing at Time of Filing Bankruptcy Petition." Of Endorser See "Endorsers." See "Sureties and Guarantors." Ex Contractu Onlj^ such claims and tort claims presentable as such, may be liquidated, § 706, p. 425. Ex Delicto Discharged if tort might be waived and claim be presented ex con tractu, § 2733, p. 1613. Not provable unless in judgment, § 635, p. 376. But provable where tort waivable, and Claim presentable as in Con- tract, § 636, p. 377. Claimant must elect, § 637, p. 378. May not waive tort as to part and affirm it as to balance of same trans- action, § 638, p. 378. After election claimant foreclosed, § 639, p. 581. Judgment for, discharged, though liability on which founded not, § 2740, p. 1615. Where Lien by Legal Proceedings created within four months held by claimant Allowability of, § 776, p. 459. Judgment whose lien null under section 67 (f), nevertheless allowable, § 777, p. 460. Judgment remains and is res judicata, § 778, p. 460. Lien to be surrendered before claim allowable, § 779, p. 461. Meaning of "claim" in § 25 (a), § 2904, p. 1704; § 2905, p. 1704; § 2906, p. 1704; § 2907, p. 1704; § 2908. p. 1705. For Money Deposited with Bankrupt Bank, § 806, p. 470. On Old Concern's Debts, where business taken over, § 810, p. 471. GEXERAI, INDEX. 2095 CLAIM— Continued. On Open Account See "Account." Also, see "Claim Not Owing at Time of Filing Bankruptcy Petition." Not Owing at time of filing bankruptcy petition Attorney's Collection Fee stipulated in note, § 671, p. 407. Anticipatory Breach, bankruptcy operating as, § 674, p. 410. Bankruptcy Operating by contract, to Mature Future Installments, § 675, p. 412. Judgment must be "Absolutely Owing" to be provable, § 670, p. 406. Open accounts and contracts express or implied, must be "owing," § 672, p. 407. To be "Owing," not necessary to be "Dtie," § 673, p. 410. To be "Owing" not necessary for damages to be liquidated, § 67.3, p. 410. Property bought on credit, after filing of petition and before adjudica- tion, claim for not "Owing," § 1135, p. 648. Not Provable, § 669, p. 406. Subject of, involves that of contingent claims, § 668, p. 406. Not Sufificient for Petitioning Creditor's Claim, § 229, p. 179. Written Instruments must be "Absolutely Owing" to be "Provable," § 670, p. 406. Not Discharged, § 2735, p. 1613. Of "Preferred Creditor" Allowance of, see "Preferred Creditor — Allowabilitj^ of Claiip of." Also, see "Surrender of Preference." See "Proof of Claim." Rejection of allowance of, see "Allowance of Claims." Of Relative See "Relative." For Rent Provability of, involved in subject of provability of contingent claims, § 625, p. 393. Does bankruptcy sever relations of landlord and tenant, § 653, p. 393. Rent accrued up to date of filing bankruptcy petition, provable, § 654, p. 399. Rent due and payable before such filing, but for occupancy to occur afterwards, provable, § 655, p. 399. Installments accruing after adjudication, for occupancy thereafter, not provable, § 656, p. 399. Rent accruing before adjudication but after filing of petition, § 657, p. 400. Bankruptcy stipulated to terminate lease, future rents not provable, § 658, p. 400. Bankruptcy or default in payment maturing future installments, § 659, p. 400. Bankruptcy of tenant no breach of subtenant's covenant of quiet en- joyment, § 666, p. 406. Subtenant's eviction must occur before tenant's bankruptcy, else no prov- able claim, § 666, p. 406 n. Subtenant no damages where no right of forfeiture reserved, § 666, p. 406 n. 2096 GENERAIv INDEX. CLAIM— Continued. Rent for occupation after filing of petition, and before adjudication, re- coverable at stipulated rate, § 667, p. 406. Even where notes given for future rent, notes not provable, § 660, p. 402. Notes for future rent provable if negotiable and in hands of innocent holders, or taken as payment, § 661, p. 403. Sureties for future rent not released by bankruptcy, § 662, p. 403. Liens for futui-e rent not released, § 663, p. 404. Mere re-entry clause gives no lien, on sale of leasehold, § 664, p. 404. Landlord forfeiting lease or accepting surrender waives claim for un- expired term, § 665, p. 404. Of Surety See "Sureties and Guarantors." Tainted with Illegality or Fraud Allowability of, § 803, p. 469. Whether a "debt," "claim" or "demand," dependent on state law, § 631, p. 375. Year's Limitation for Filing, see "Year's Limitation for Filing Claims." "CLEAR" AND "CONVINCING" PROOF Requisite to warrant summary order on bankrupt to surrender assets, § 1842, p. 1137. "CLEAR" EVIDENCE When necessary on discharge, § 2639, p. 1572. CLERICAL MISTAKES Disregarded on review, § 3011, p. 1742. CLERK Of U. S. District Court, may require indemnity in advance, § 2021, p. 1257. CLERKS See "Wages— Of Workmen, Clerks and Servants." CLOSING OF CASE After composition and distribution completed, § 2397, p. 1449. CLOSING OF ESTATES Certifying to Referee's Record and Transmission to District Clerk, § 2299, p. 1401. CLOSING OF ESTATE Claims not re-examined after, § 861, p. 493. Duty of trustee to close estate expeditiously, § 908, p. 519. Estate not technically closed where no trustee appointed, § 871, p. 498. Final Report and Final Meeting, § 2295, p. 1400. Notice, ten days, of Final Report and Final Meeting, § 2296, p. 1401. Order Approving Trustee's Report and Discharging trustee from his trust, closes estate, § 2298, p. 1401. Property Concealed until, does not revest in bankrupt, § 996, p. 555; § 1113, p. 636 n. See further, "Reopening of Estate." Trustee's Duty to file final report, § 2297,. p. 1401. GENERAI, INDEX. 2097 CLOSING AND REOPENING OF ESTATES Reviewable by petition to revise, § 2931, p. 1715. CLUBS Memberships in, when pass to trustee, see "Memberships in Stock Ex- change," etc. COLLATERAL ATTACK On adjudication, § 450, p. 296. Existence of Jurisdictional Facts need not appear on Face of Record, § 30, p. 51 n. But if Lack of Jurisdictional Facts affirmatively appears on Face, De- cree Void, § 30, p. 51 n. On Discharge Defending that debt not duly scheduled, is not, § 2781. p. 1628. None permissible, § 2442, p. 1477; § 2478, p. 1495; § 2686, p. 1595. Avoiding effect of discharge by showing debt excepted, not, § 2443, p. 1477; § 2444, p. 1477; § 2667, p. 1587. For lack of "residence," § 2478, p. 1495. Avoiding efifect of discharge by showing debt not "provable," not col- lateral attack. § 2667, p. 1587. COLLECTION OF ASSETS Duty of Trustee as to, § 907, p. 518. COLLECTION FEE Stipulated in note, when provable, § 671, p. 407. COLLUSION On Election of Trustee Question of, to be definitely disposed of before approval of election of trustee, § 893, p. 509. COMITY Injunction refused on ground of, § 1904, p. 1190. Requires request for stay first in court where action pending, § 2699, p. 1600. Requires resort first to State court, before injunction, § 362, p. 243; § 2699, p. 1600; § 1904, p. 1190. Requires resort first to court wherein lien by legal proceedings obtained, § 1472, p. 874; § 1600, p. 966 n. Requires resort to State Court first, where State "Insolvency" or "Bank- ruptcy" proceedings superseded, § 1637, p. 1010. COMMENCEMENT OF PROCEEDINGS Filing of petition is, § 306, p. 219. Service of process, to be according to Federal equity practice, § 307, p. 219. Service by publication upon involuntary petition, § 308, p. 219. COMMERCIAL AGENCIES Statements to, whether to be taken as conclusive admissions of assets, § 1852, p. 1151 n. 2 Rem B— 57 2098 GENERAL INDEX. COMMERCIAL PAPER Allowability of accommodation paper, § 794, p. 464. Disregarding note and claiming on original consideration, § 796, p. 465; § 1153, p. 680. Negotiability unimpaired by bankruptcy, § 794, p. 464. Nonnegotiable paper subject to same defenses as elsewhere, § 795, p. 465. When pass to trustee, § 1001, p. 556. COMMINGLING OF TRUST FUNDS OR PROPERTY, § 1884, p. 1173. COMMISSIONS Of Agents For taking orders, Claims for, § 807, p. 470. Of Referee On Sales Free from Liens, § 1996, p. 1236. See "Referee in Bankruptcy — Fees of." Of Trustee On Sales Free from Liens, § 1996, p. 1236. See "Trustee in Bankruptcy — Fees of." COMMON CARRIERS See "Involuntary Bankruptcy." COMMUNICATIONS See "Privileged Communications." "COMMUNITY PROPERTY OF HUSBAND AND WIFE" Priority of, § 2205, p. 1357. COMPENSATION No Additional, allowable "in any form or guise," to trustee or referee, § 2117, p. 1305. Of Receiver in bankruptcy, § 2118, p. 1806; § 2119, p. 1306. Of Referee in bankruptcy, see "Referee in Bankruptcy — Fees of." Of Special Master on discharge, § 2660, p. 1578. Of Trustee, see "Trustee in Bankruptcy — Fees of." COMPETENCY Of Witnesses, governed by U. S. statutes not by State statutes, § 551, p. 335; § 1567, p. 941. COMPOSITION Candidate for trustee interested in scheme of, incompetent, § 891, p. 509. Claim of Creditor obtaining secret advantage in, § 803, p. 469. Commissions of referee upon, § 2106, p. 1300. Commissions of trustee upon, § 2110, p. 1302. Confirmation of Appealability of, § 2896, p. 1701. Appeal of, § 2410, p. 1454 Creditors assenting to composition necessary parties on, § 2838, p. 1657. Whether appeal is only method of review, § 2411, p. 1454. Who may appeal, § 2412, p. 1454. Refusal to confirm not to be reversed, except for abuse of discre- tion, § 2413, p. 1455. GENERAL INDEX. 2099 COMPOSITION— Continued. Distribution after confirmation To be made as the Judge "may direct." § 2389, p. 1445; § 2390, p. 1445. Referee divested of jurisdiction, except as otherwise ordered by Judge, § 2391, p. 1445. Distributing agent usually appointed, § 2392, p. 1446. All creditors to share, whether proofs filed or allowed or not, unless limited by order of distribution, § 2393, p. 1446. Whether bound by year's limitation for filing claims, § 2394, p. 1446. Secured creditors to participate to amount of deficit, § 2395, p. 1448. Judge may limit time and require filing of proofs of claims, § 2396, p. 1449. Closing of case after distribution completed, § 2397, p. 1449. Jurisdiction to determine .ownership of property in custody of court not divested, § 2398, p. 1449. Nature and Effect of Composition simply different method of administering estate and real- izing on same for creditors, § 2345, p. 1423. Effect of, in general, § 2346, p. 1424. Restores estate to debtor, § 2347, p. 1424. Pendency of petition for confirmation suspends sale and distribution of assets, § 2348, p. 1425. Confirmation of composition in effect a discharge, § 2349, p. 1426. Release of debts is by operation of law and not by consent, § 2350, p. 1427. Claims "provable," though not actually "proved," "discharged," § 2351, p. 1427. Must be "duly" scheduled, § 2352, p. 1427. "Duly scheduled" — as to time — different in composition from what it is in discharge, § 2353, p. 1427. Right to, and effect of, distinct, § 2354, p. 1428. Opposition to confirmation of Who may oppose, § 2375, p. 1438. Creditors may, § 2375, p. 1438. Trustee may not, § 2375, p. 1438. Court may postpone confirmation, where procedure irregular, § 2376. p. 1439. Procedure on opposition to composition similar to that on discharge, § 2377, p. 1439. Entry of appearance requisite, § 2378, p. 1440. Ten days time, after appearance, for filing specifications, § 2379, p. 1440. Form and allegations of specifications, § 2380, p. 1440. Three grounds, for, § 2381, p. 1440. Statutory grounds requisite to bar confirmation on merits, § 2382, p. 1441. Burden of Proof on opposing creditor, § 2383, p. 1441. First ground for opposing confirmation "Not for best interest of creditors," § 2384, p. 1441. Test of "best interest," § 2385, p. 1441. Creditors acceptance of offer not to be lightly interfered with, § 2386, p. 1442. 2100 GENERAL INDEX. COMPOSITION— Continued. Second ground for opposing confirmation Commission of act barring discharge, § 2387, p. 1443. Third ground for opposing confirmation Offer or acceptance not in good faith or procured improperly, § 2388, p. 1444. Procedure on Offer to be accepted bj^ majority in number and amount of allowed claims, § 2361, p. 1432. Creditors once accepting may not withdraw, except for fraud or mis- representation, § 2362, p. 1433. Petition for confirmation of composition, when may be filed, § 2363, , p. 1434. Designation of amount and place of deposit, § 23G4, p. 1434. Deposit to be sufficient to pay all costs and priority claims, as well as consideration to creditors, § 2365, p. 1434. Must cover all claims filed and all scheduled, § 2366, p. 1434. Whether must cover deficiency of secured claims not yet filed, § 2367, p. 1434. Ofifer of Composition. § 23.55, p. 1429. Statute strictly construed and all requirements to be fulfilled, § 2356, p. 1430. Irregular compositions and settlements in other than statutory manner, § 2357, p. 1430. Special meeting for presentation of offer, § 2358, p. 1431. Examination of bankrupt and filing of schedules requisite before offer, § 2359, p. 1432. Offer to be accepted in writing, § 2360, p. 1432. What costs provided for in composition, § 2368, p. 1435. Whether consideration always to be in monej^ § 2369, p. 1435. Form of application for confirmation of composition, § 2370, p. 1436. Ten daj's notice by mail to be given, § 2371, p. 1436. Hearing on petition for confirmation, § 2372, p. 1436. Only Judge to pass on application, § 2373, p. 1436. May refer issues to referee as special master, § 2374, p. 1437. Setting Aside of Petition to -set aside composition, § 2406, p. 1453. Leave to file petition granted unless lack of merit appears on face, § 2407, p. 1453. Consideration need not be tendered back, § 2408, p. 1453. Ignorance of fraud sufficiently alleged in general terms, § 2409, p. 1453. Court's power to set aside confirmation for irregularity, § 2399, p. 1451. Setting aside confirmation on application of parties, § 2400, p. 1451. Must be applied for within six months, § 2401, p. 1452. What not estoppel of creditor, § 2402, p. 1452. Burden of proof on creditor, § 2403, p. 1452. Only "parties in interest" competent to petition for setting aside, § 2404, p. 1452. Principles and practice on revocation of discharge, whether ap- plicable, § 2405, p. 1452. GENERAL INDEX. 2101 COMPROMISE OF CONTROVERSIES, § 926. p. 523 Application for, § 927, p. 523. Allegations of, § 927, p. 523. Creditors entitled to be heard, but vote not conclusive, § 929, p. 523. Notice, ten days, requisite, § 565, p. 343; § 928, p. 523. Rights of Lienholders not to be prejudiced by, § 931, p. 524. What claims may be compromised, § 930, p. 523. Notice to be given of, § 565, p. 343; § 928, p. 523. COMPUTATION OF TIME Of "four months" period, § 189, p. 154. CONCEALED PROPERTY Belonging to the estate passes to trustee, § 996, p. 555. Does not revest in bankrupt on closing of estate, § 1113, p. 636 n. Reimbursing creditors for expense in recovering, see "Reimbursement of Creditors Through Whose Efforts Assets Recovered." Title to, in whom, if no trustee ever appointed, § 1127, p. 642. CONCEALMENT Forfeiting of exemptions by, § 1098, p. 623. CONCEALMENT OF ASSETS Bankrupt only, indictable for, § 2326, p. 1412. As bar to discharge, see "Discharge— Opposition to — Grounds of — Con- cealment of Assets." Continuing concealment, as an "offense," § 2319, p. 1410. Essential elements in proof of as a crime, § 2328, p. 1413. CONCEALMENT OF FRAUDULENTLY TRANSFERRED PROPERTY See "Discharge, Opposition to — Grounds of — Concealment of Assets." CONDITIONAL SALE Distinction between, as mere retention of title, and chattel mortgage, as "transfer," § 1244, p. 738. Made in State where recording not required, but Contemplating Delivery in State where required, § 1247, p. 739. Reclaiming of Property, left with bankrupt on, § 1877, p. 1165. Power of sale in conditional vendee, § 1245, p. 738 n; § 1263, p. 744. With Power of Sale in the vendee, subject to same rules as chattel mort- gages, § 1263, p. 744. With Power to Sell in usual course, property sold on passes to trustee, § 997, p. 555; § 1263, p. 744. Unfiled or Unrecorded Not void where filing or recording not required, § 1243, p. 738. Pretended to be property held in trust, § 1228, p. 729. Disguised, void, for want of record, § 1246, p. 739. Disguised as "consignment," "lease," "agency," "pledge," or "bail- ment," § 1228, p. 726. When void as against trustee, § 1241, p. 736. Whether creditor "Armed with Process" must exist, § 1242, p. 736. CONDITIONS Imposing of on Amendment To Proof of Claim, § 620, p. 367. To Specifications in Opposition to Discharge, § 2620, p. 1564. 2102 GENERAI. INDEX. CONFIRMATION Of composition, see "Composition — Nature and Effect of." CONFIRMATION OF COMPOSITION Notice to all creditors to be given, § 565, p. 343. CONFIRMATION OF SALE See "Sales in Bankruptcj'."' CONFLICT OF JURISDICTION Administrators, etc., where bankrupt owns interest in estate, not disturbed, § 1595, p. 964. Assignments and receiverships created before four months, § 1594, p. 964. Attachments obtained prior to four months, not abated, § 1588, p. 962. Bankruptcy Court may enjoin to permit intervening of trustee, § 1598, p. 964. Because Bankruptcy Court Preferable or trustee interested, not sufficient to confer jurisdiction, § 1583, p. 957. In collecting and Protecting assets, § 1580, p. 948. Court cautious in dealing with conflict of jurisdiction, § 1581, p. 948. Creditors' bills instituted before four months, § 1593, p. 963. Custody of State court preserved in part, and in part superseded, § 1587, p. 962. First exception to rule that State court retains jurisdiction if first to ob- tain it: Nullified Legal Liens, § 1599, p. 965. See also, "Liens by Legal Proceedings NuUilied by Bankruptcy." When Lien Nullified, property recoverable by summary order-, § 1601, p. 966. Foreclosure and other suits not themselves creating liens nullified by bankruptcy, but simply enforcing liens, etc., not abated, where started before bankruptcy seizure, § 1586, p. 959. Fraudulent conveyance suits instituted before four months, § 1591, p. 963. Fraudulent convej-ance suits within four months in aid of le\y made before four months, not abated, § 1592, p. 963. Landlord's Levy, § 1589, p. 962. Partnership dissolution suits, l^ 1590, p. 963. Pending Suits by and against bankrj.ipt, see "Pending Suits by and against Bankrupts." Replevin and other suits asserting Ownership, where seizure made first by State court, not abated, § 1585, p. 958. Second exception to rule that State court retains jurisdiction if first to ob- tain it— general assignments, receiverships, etc., nullified by bankruptcy, § 1602, p. 966. Until adjudication custody not superseded, § 1609, p. 978. Assignee or receiver may be enjoined, § 1610, p. 978. May be ordered summarily to surrender assets, § 1611, p. 978. No summary order as to sums already disbursed, § 1612, p. 979. Sales by assignee under void assignment, § 1613, p. 980. Assignee has lien upon surrendered assets for expenses and compensa- tion, § 1614, p. 980. Assignment must be "general" and "bona fide," not "partial" nor "fraudulent," else no lien for reimbursement, § 1615, p. 981. GENERAL INDEX. 2103 CONFLICT OF JURISDICTION— Continued. Receivers entitled to lien for expenses and compensation where receiv- erships nullified by bankruptcj', § 1616, p. 982. Only expenses and compensation for services beneficial to estate and 'reasonable, allowed reimbursement, § 1621, p. 986. Others' rights of reimbursement, to be worked out through assignee or receiver, § 1622, p. 987. How assignee's or receiver's rights to be presented, § 623, p. 988. No liability on assignee's bond on superseding of State Court's custody, to those creditors who participate in defeating assignment, § 1624, * p. 988. Mortgagees in possession under mortgage executed for benefit of all creditors assenting, entitled to lien, § 1617, p. 984. Attaching creditors entitled to lien where attachment lien preserved for benefit of estate, § 1618, p. 984. Where attachment really for benefit of all, creditor entitled to reimburse- ment, § 1619, p. 984. Whether extent of lien may be fixed by State court before surrender, § 1620, p. 985. Basis of superseding custody of assignee and receiver, § 1603, p. 967. Possession under general assignment superseded, § 1604, p. 975. Under State court receiverships, § 1605, p. 975. General assignment not per se illegal nor void but voidable merely, § 1606, p. 976. Unless petition filed within four months, followed by adjudication, State court's custody not superseded, § 1607, p. 977. If filed within four months and adjudication occurs, assignment void, § 1608, p. 978. Third exception to rule that State court retains jurisdiction if first to ob- tain it — State insolvency and State bankruptcy, § 1625, p. 988. Bankruptcy and insolvency laws, and general assignment laws, dis- tinguished, § 1632, p. 1004. Various holdings as to what amount to "Insolvency" proceedings, § 1633, p. 1007. Receiverships and Winding up of Insolvent Corporations, whether insolvency proceedings, § 1634, p. 1008. Procedure to procure surrender from State bankruptcy or Insolvency courts, § 1635, p. 1009. State Court receiver may be enjoined, § 1636, p. 1009. Comity requires resort first to State tribunal, § 1637, p. ]010. Basis of supersedence, § 1626, p. 990. State Bankruptcy and Insolvency laws not prohibited, § 1627, p. 991. But suspended during existence of Federal bankruptcy law, as to all classes subjected to latter, § 1628, p. 993. State insolvency and bankruptcy laws ipso facto suspended, § 1629, p. 996. Not suspended nor inoperative as to classes not covered by federal Bankruptcy Act, § 1630, p. 998. State Bankruptcy and insolvency laws simply held in abeyance, § 1631, p. 1003. State Courts administer Bankrupt law and trustee, intervening, not con- fined to rights accorded by State law, § 1597, p. 964. '2104 GENERAL INDEX. CONFLICT OF JURISDICTION— Continued. State Court First Obtaining Possession, retains jurisdiction, except in three instances, § 1582, p. 949. State Courts permitted to Retain Jurisdiction, where better suited to adjust rights, § 1584, p. 958. Trustee's intervention in State Court proceedings does not oust State Court, § 1596, p. 964. Voluntary Surrender of Custody by State Court, § 1638, p. 1010. "CONFORMITY" Certificate of • Xone necessary as prerequisite to discharge, § 2457, p. 1487. CONNIVANCE Estoppel of Creditors by, see "Estoppel." CONSENT To Adjudication before Answer day, § 427, p. 274. What Constitutes, to Administration of Partnership assets in individual bankruptcy, § 2253, p. 1374. What Constitutes consent to jurisdiction, § 1698, p. 1047; § 2253, p. 1374. Individual Partner's, not requisite for Administration of Individual Estate in firm bankruptcy, § 2232, p. 1366. To Jurisdiction Mechanics' and subcontractors' liens, consent to payment into court, of fund affected by, § 1164, p. 685. Without consent. State court proper forum, where contractor or sub- contractor bankrupt, § 1165, p. 685. Jurisdiction by, see "Adverse Claimant — Jurisdiction by Consent Over." Property Adversely Held, jurisdiction not conferred, by mere proving of different claims, § 1698, p. 1048. Requisite to Administration of Partnership assets in individual bank- ruptcy, § 2251, p. 1373; § 2252, p. 1374. To Sale Free and Clear « Inchoate Dower, wife's consent requisite, § 1974, p. 1227. Lienholder's, not requisite, § 1966, p. 1225; § 1979, p. 1228. CONSIDERATION In Composition Whether always to be money, § 2369, p. 1435. Need not be tendered back on setting aside composition, § 2408, p. 1453.. See, also, "Present Consideration." Proof of Claim, consideration to be stated in, § 603, p. 359. Revival of Discharged debt, consideration not requisite to support new promise, § 2715, p. 1606. CONSIGNMENTS Pretended to be, but really sales, § 1228, p. 726. Reclaiming property left on consignment, § 1877, p. 1165. CONSOLIDATION OF PROCEEDINGS Amendment of involuntary petition by adoption of earlier acts, § 266, p. 197. Apportionment of attorney's fees in cases of, § 2067, p. 1283. GENERAL INDEX. 2105 CONSTABLE See "Sherifif." CONSTITUTIONAL LAW Xo constitutional right to discharge, § 2466, p. 1490. Delegation of Legislative Power Bankruptcy law not a, § 11, p. 27. Recognition and Enforcement of changes in State Law, as to Prior- ities and Payment, not a, § 11, p. 27. Due Process of Law, Bankruptcy Law does not violate, § 12, p. 28. Impairment of Obligation of Contracts, Discharge in Bankruptcy not, § 13, p. 28. Nullification of liens by legal proceedings does not impair obligations of contract, nor divest vested rights, § 1465, p. 871. Power of Congress to Impose Enforcement of Bankruptcy Laws on State Courts, § 14, p. 29. Power to Enact Bankruptcj'- Laws, § 1, p. 1. Right of trial by jury not violated by summary orders on bankrupts and others, § 1834, p. 1128. See "Subject." Uniformity See "Uniformity." CONSTITUTIONALITY Of Bankruptcy Act Not unconstitutional for lack of uniformity as to exemptions, § 1023, p. 571. CONSTITUTIONAL RIGHT None to a Discharge, § 2466, p. 1490. Infprisonment for debt, imprisonment for contempt is not, § 1841, p. 1136. As to Incriminating questions preserved, § 1558, p. 933. As to Producing Incriminating Documents, as defense to summary order, § 1852, p. 1152 n. To Trial by Jury not violated by summary orders on bankrupts and others, § 1834, p. 1128. CONSTRUCTION OF STATUTE See "Statutory Construction." CONTEMPLATION OF BANKRUPTCY, § 2544, p. 1532 n. Liens given and accepted in, when not protected, § 1505, p. 900. CONTEMPT Advice of Counsel, § 2333, p. 1417. Alimony, arrest of bankrupt for contempt for failure to pay, § 469, p. 305 n. Making of Certificate of, by referee, Judicial act, not ministerial duty, § 2337, p. 1418. What Constitutes in General, § 2330, p. 1414. For Disobedience of Summary Orders on bankrupts and others Punishment for, not imprisonment for debt, § 1841, p. 1135. Degree of proof requisite, § 1842, p. 1137; § 1859, p. 1157; § 2340, p. 1419. 2106 ge;ne;rai. index. CONTEMPT— Continued. Proceedings on, different from those for order of surrender, § 1857, p. 1155 n. Opportunity must be given to Defend, § 1858, p. 1156; § 2341, p. 1419. Evidence on to be "Beyond Reasonable Doubt," § 1859, p. 1157; § 2340, p. 1419. Whether evidence on w^hich order for surrender based, may be re- examined, on Contempt, § 1857, p. 1155. Disobedience of Subpoena, contempt for, § 1576, p. 944. Disobedience of Order, while Witness on Stand, to bring document, when not contempt, § 1576, p. 944 n. Evidence to be "Beyond Reasonable Doubt," § 2340, p. 1419. Ignoring Referee's order, and Relitigating same matter on contempt hear- ing, § 2839, p. 1659. Judge to hear and punish, if committed, § 2338, p. 1419. Jurisdiction to punish for, § 1922, p. 1196. Opportunity to be given to show inability to comply with order, § 2341, p. 1419. Of Other Courts, whether arrest for within protection, § 469, p. 305. Power to commit, cautiously exercised, § 2339, p. 1419. Not in Presence of Court, § 2332, p. 1417. Protection from arrest, none for contempt of bankruptcy court itself, § 468, p. 305. Before Referee, what constitutes, defined by statute, § 2334, p. 1417. Referee no Power to Commit for, § 2235, p. 1418. Referee simply to certify facts of to judge, § 2336, p. 1418. Restraining order not prerequisite, § 1923, p. 1196. Review of Refusal to certify, § 2342, p. 1419. Reviewable, not by Habeas Corpus, § 2343, p. 1419. Reversal of order of District Judge, none except for Clear Error, § 2.^44, p. 1419. "Willfully' evasive" or "Flagrantly false" testimony in face of Court, § 15'33, p. 942; § 2331, p. 1416. CONTINGENT CLAIM Bankrupt's Guaranty of Dividends not yet declared nor due, § 650, p. 390. Bankrupt as Principal — surety is creditor before default and from date of signing, § 644, p. 384. Bankrupt Surety, Guarantor or Endorser, § 643, p. 383. Bond for Annuity, annuitant still living, § 651, p. 390. Cosurety's claim for Contribution for payments after bankruptcy, § 649, p. 390. Contract to support until remarriage, § 651, p. 391. Whether Counted in, in determining insolvency, § 1366, p. 794. Discharge of, § 2736, p. 1613. Endorsers, sureties, etc., for bankrupt, impliedly excepted by statute, § 642, p. 383. Not to be Liquidated and Proved under § 63 (b), where not otherwise provable, § 711, p. 427. Obtaining of Judgment prerequisite to liability on bond, § 648, p. 389. Where Principal's liability not provable in favor of creditor, not provable in favor of surety, § 646, p. 388. Not Provable, § 640, p. 381. GENERAL INDEX. 2107 CONTINGENT CLAIM— Continued. Not Sufficient for Petitioning Creditors' claim, § 230, p. 179. Sureties for bankrupt's faithful discharge of duty, where no default until after petition filed, not provable, § 647, p. 389. Surety paying principal's debt after principal's bankruptcy, § 645, p. 386. Test of contingency, § 641, p. 382. CONTINUING BUSINESS See "Business — Conducting of." CONTINUING CONCEALMENT As Bar to Discharge, § 2498, p. 1506. Brings act of bankruptcy within four inonths period, § 183, p. 152. As a Crime, § 2319, p. 1410. "CONTINUING CONSENT," § 136, p: 119. CONTINUING CONTRACT To Buy Damages for breach of, provable, § 689, p. 417. But not Provable, unless obligation renounced or bankruptcy itself operates as breach, § 690, p. 417. To Supply goods Damages for breach of, provable, § 685. p. 415; § 687, p. 416. "CONTINUING REPRESENTATIONS" Bar to discharge, when, as "false statements in writing to obtain property on credit,'' § 2570, p. 1544. CONTRACT To Buy See "Contracts of Sale;" "Sale, Contracts of." Cont,inuing Contracts to Buy, § 689, p. 417. Trustee bound by bankrupt's, § 1147, p. 677. Express or Implied Must be owing at time of filing bankruptcy petition, else not provable, § 672, p. 407. Is Provable, § 694, p. 420. Involving Personal Skill or Confidence Does not pass to tri'istee, § 994, p. 554; § 1021^ p. 570. Insurance Agent's- contract, § 994, p. 555. Personal right to purchase, nonassignable, does not pass, § 995, p. 555. For Liens on After-acquired property Dissolved by discharge, if mergeable in provable debt at time of bank- ruptcy, § 2676, p. 1591. Where lien exists in prjesenti before bankruptcy, though property ac- quired afterwards, discharge does not afifect, § 2677, p. 1591. Rights of Action on, pass to trustee, § 1019, p. 568. Of Sale Damages- for breach of, provable, § 685, p. 415. Trustee bound by bankrupt's, § 1147, p. 677. CONTRACT TO SUPPLY GOODS See "Contract of Sale;" "Sale, Contract of." 2108 ' GENERAL INDEX. CONTRACT TO SUPPORT WIFE Is Provable debt, as long as wife lives, § 651, p. 391. Until Remarries, not a provable debt, § 651, p. 391. Trustee bound by bankrupt's, § 1145, p. 676. CONTRACTORS AND SUBCONTRACTORS, § 672, p. 409. CONTRACTUAL RELATIONS Not affected by Adjudication, unless merged in provable Debts, § 451, p. 297. See "Claim — for Rent — Does Bankruptcy Sever Relations of Landlord and Tenant." See "Landlord and Tenant — Does Bankruptcy Sever Relations of." Not dissolved by adjudication of bankruptcy or discharge, § 451, p. 297; § 641, p 382; § 1118, p. 639; § 2729, p. 1609; § 2675, p. 1591. Not dissolved by discharge, unless mergeable in "provable" debt at time of bankruptcy, § 2675, p. 1591; § 2729, p. 1609. CCNTRIBUTTON Cosurety's claim for, for payments after bankruptcj', § 649, p. 390. Partner's right of for paying firm debts, provable in other partner's bank- ruptcy, § 2259, p. 1385. CONTROVERSIES Arbitration of, see "Arbitration of Controversies." Compromise of, see "Compromise of Controversies." "CONTROVERSIES ARISING IN BANKRUPTCY PROCEEDINGS" Appeals in. see "Appeal and Error — In Circuit Court of Appeals — In Con- troversies Arising in Bankruptcy Proceedings." Appeals to supreme court in, where would have jurisdiction in "other cases," § 3016, p. 1745; § 3018, p. 1746; § 3019, p. 1746. Distinguished from "proceedings in Bankruptcy," § 1685, p. 1036; § 2864, p. 1678. Plenary suits by trustees against adverse claimants are, § 1691, p. 1042. Persons not Parties, not Bound, § 19, p. 36. Reviewable in Supreme Court on Certiorari, § 3025, p. 1749. Time for 51ing petition for review in, § 2998, p. 1737. CONVERSION By Agents, Partners, Commission men, etc., not excepted from discharge as being in "fiduciary capacity," § 2785, p. 1629. Converted Property or its traced Proceeds, reclaimable, § 1882, p. 1168. Of Shares of Stock by Bankrupt Broker, § 804, p. 470 n. "Tracing Trust Funds," § 1883, p. 1169. CONVERTING NONEXEMPT PROPERTY INTO EXEMPT ON EVE OF BANKRUPTCY, § 1046, p. 594. CONVICT LABOR Claims by county for hire of, § 808, p. 471. ■'CONVINCING" EVIDENCE When necessary on discharge, § 2639, p. 1579. GENERAL INDEX. 2109 COPYRIGHTS Pass to trustee, § 958, p. 536. CORPORATION Actual occupation governs whether subject to involuntary bankruptcy, § 87, p. 85. Cannot be a private banker, § 79, p. 79. Ceasing to do business, after Commission of act but before petition filed, jurisdiction not defeated, § 97, p. 93. Classes of, included and excluded, in involuntary bankruptcy, § 80, p. 80. Dissolution of after commission of act but before petition filed, jurisdic- tion not defeated, § 97, p. 93. Dissolution of after Filing of Petition, no abatement, § 101, p. 99. Engaged in Different Occupations some within and some without classes subject to Involuntary Bankruptc}% § 86, p. 85. Entitled to discharge, § 2419, p. 1464. Imputed acts of bankruptcy by agents of, § 171, p. 144. Insolvent, sales by, § 1734, p. 1067 ^n. Jurisdiction over more limited under act of 1898 than under act of 1867, § 81, p. 80. Moneyed, business or commercial corporations, etc., subject to involuntary bankruptcy uuder act of 1867, § 81, p. 80. Not within statutory classes, are exempt from involuntary bankruptcy, § 94, p. 87. Officers of Authoritj' of to file petition, § 219, p. 175. Presumption of authority of, to execute transfer, § 1734, p. 1067 n. Assuming Functions of Board of Directors, when bind, § 1204, p. 698. Are the "Bankrupt," § 1527, p. 914; § 1821, p. 1118; § 456, p. 320. Not the "Bankrupt" in Criminal prosecutions for Concealment of As- sets, §'2326, p. 1412. Embezzlement, defalcation, or fraud by, whether excepted from dis- charge, § 2787, p. 1631;. § 2784, p. 1629. May b3 indicted for false oath, § 2325, p. 1412. Subject to summary jurisdiction, § 1821, p. 1118. Witne.=s fees, whether are entitled to, § 2126, p. 1309; ,§ 1527, p. 914. Powers. of attorney for, to contain oath of official capacity, § 587, p. 353. "Principally" engaged, must be, in order to be subject to involuntary bank- ruptcy, § 85, p. 84. Whether Public corporations chargeable with "reasonable cause for be- lief," § 1414, p. 838. Quasi public corporations not subject to involuntary bankruptcy, § 89, p. 86. Subject to Bankruptcy, see "Involuntary Bankruptcy." Voluntary Bankrupt, Corporation may not be a, § 37, p. 55; § 44, p. 58. "Written Admissions" by, not contrary to prohibition of voluntary bank- ruptcy oi, § 168, p. 143. "Written i\dmissions" by Directors of, as Acts of bankruptcy, § 167, p. 140. COSTS Of Administration See "Costs and Expenses of Administration." On Appeal and Error, § 2999, p. 1737 n. Attachmen; or Execution dissolved, § 693, p. 420; § 1485, p. 884; § 1487, p. 885. 2110 GEXERAI. INDEX. COSTS — Continued. Awarding, against creditors, § 2661, p. 1579. See "Deposit for Costs." On Discharge, § 2658, p. 1578. On Dismissal of Voluntary petition after hearing merits, § 417, p. 269. On Dismissal of Involuntary petition for want of jurisdiction, § 418, p. 269. Expenses of receivership taxable against petitioning creditors, § 398, p. 259. Incurred prior to petition, dischargeable, § 2737, p. 1614. Incurred ifter, whether discharged, § 2738, p. 1614. No Judgm.ent in personam for, against parties in summary proceedings not personally appearing, § 2009, p. 1246. Jurisdiction to tax, § 2001, p. 1244. Lien for, falls where lien by legal proceedings nullified by bankruptcy, § 1485, p. ^84; § 693, p. 420. Part incurred before filing of petition, part afterward, § 692, p. 419. Power to award inherent, § 2659, p. 1578. "Provable" Claim, § 691, p. 419; § 1487, p. 885. Preliminary deposits for referee, clerk and trustee, § 2012, p. 1249. Referee may tax, § 535, p. 331; § 1995, p. 1234; § 2002, p. 1244. Remain Lien in cases of Preservation of liens by legal proceedings for benefit c\ estate, § 1490, p. 888. Retaining of property till costs paid, where lien by legal proceedings nulli- fied by bankruptcy, not proper, § 1486, p. 885. On Selling Free from Liens Each fund to bear its own expense and costs, § 1990, p. 1233. Proportionate part not to be charged against each lien, § 1991, p. 1233. Expenses first deducted and liens paid out of remainder, § 1992, p. 1233. General Costs of Administration not chargeable, § 1993, p. 1233. Trustee's Attorney's Fees and Expenses benefiting entire fund chargea- ble, § 1994, p. 1234. Attorney's Services in Litigating liens, not chargeable, against fund, § 1994, p. 1234. Referee has authority to tax, § 1995, p. 1234. What costs and expenses are taxable, § 1996, p. 1234. Sheriff no right to retain creditor's costs out of proceeds, where lien by legal proce.edings nullified by bankruptcy, §. 1486, p. 885. No Shownig of cause requisite where Taxed against Unsuccessful Party, § 2004, p. 1245. Special Master on discharge, § 2660, p. 1578. In Suits brought by receivers and trustees against third parties, § 1755. p. 1073. May be Taxed against Successful Party for cause, § 2003, p. 1244. Trustee not to refuse to set apart exemptions until costs paid. § 109i, p. 617. COSTS AND EXPENSES OF ADMINISTRATION "Actual and Necessary cost of preserving estate subsequent to liling peti- tion," § 2013. p. 1250. What included in term, § 2014, p. 1250. Appeal and review of, § 2120, p. 1308; § 2287, p. 1398; § 2907, p. 1704. Appealability of, § 2907, p. 1704. In Composition cases, § 2368, p. 1435. No costs :n Personam against parties in Summary proceedings, not per- sonally appearing, § 2009, p. 1246. GENERAL INDEX. 2111 COSTS AND EXPENSES OF ADMINISTRATION— Continued. E(iuit\' rules to govern order of precedence in, § 2020, p. 1256. Expense of Contesting Claims before Election of Trustee not chargeab! ? against estate, § 823, p. 477; § 2008, p. 1246. General, rot chargeable against fund on Selling Free from Liens, § 1993, p. 1233. Include what, § 2019, p. 1256. Indemnifying court officers and advancing moneys for expenses, § 2021, p. 1257. Jurisdiction to tax, § 2001, p. 1244. X"o Part cf general costs of administration to be taken out of property not forming part of assets for administration, § 2010, p. 1246. Policy of Act, Strictest economy, Introd. (m), p. 14; § 24, p. 39; § 2011, p. 1247; § 2048, p. 1271; § 2121, p. 1308. Preliminary deposit for referee, clerk and trustee, § 2012, p. 1249; § 2023, p. 1257. Priorities in, § 2012, p. 1249; § 2013, p. 1250; § 2015, p. 1252; § 2019, p. 1256; § 2027, p. 1258. Probable Order of priority, § 2027, p. 1258. .A.re "Proceedings in bankruptcy proper," § 2868, p. 1683. Reimbursement Of Attorney's Fees paid by bankrupt in advance, none, § 2024, p. 1258. Of Bankrupt, none for care of exempt property, § 2025, p. 1258. Of Expenses advanced, § 2022, p. 1257. Follows Order of Priority of Expenses themselves, § 2026, p. 1258. Of Original Deposit, none except to petitioning creditor, § 2023, p. 1257. Rent See "Use and Occupation." See "Rent." See "Leasehold." See "Trustee in Bankruptcy^Expenses of." Review of Orders in Need not be in trustee's name, where trustee's own expenses in con- troversy, § 2828, p. 1655. Reviewable by petition to review, § 2932, p. 1715; § 2933, p. 1715. Stenographer's fees taxable, § 2005, p. 1245. Stenographer, emplo3^ment of, at expense of estate, § 2006, p. 1245. Stenographer, compensation of, § 2007, p. 1245. Taxed by Referee, § 2002, p. 1244. COSURETY Cosurety's claim for contribution for payments after bankruptcy, § 649, p. 390. COUNSEL FEES AND EXPENSES Where property seized before adjudication, § 348, p. 234; § 349, p. 235; § . 352, p. 236. COUNTERCLAIM See "Set-off and Counterclaim." • COUNTERSIGNING Disburscnn.'ius by trustee to be by check, countersigned, § 912, p. 520. 2112 GENERAL INDEX. COURT To appoint trustee where no majority. § 869, p. 497. To appoint trustee where creditors fail altogether to act, § 870, p. 498. Bankruptcy court may make call for unpaid stock subscription, § 977, p. 547. Bankruptcy Courts not Inferior Courts, § 28, p. 45. Duty of to protect bankrupt from arrest on dischargeable debt, § 466, p. 305. • As Established by first English Bankruptcy Act, 34 Henry VIII, Introd. (g), P- 6. In General, § 27, p. 45. Jurisdiction in Bankruptcy Limited, § 29, p. 45. See "Referee." Referee, upon reference, becomes the, § 523, p. 324. Referee nr jurisdiction to enjoin court or oflicer, § 2701, p. 1601. May Subirit issue of fact to jurj', § 404, p. 263. Trial in general to be by court, § 403, p. 263. U. S. District Courts created Bankruptcy Courts, § 28, p. 45. COURT OFFICERS See "Sheriii." CREDIBILITY Of witnesses, see "Witnesses." CREDITOR "Armed with Process" "Arming with Process" not requisite by State law, not requisite in bankruptcy, § 1210, p. 70S. "Creditor" same as in State law, as to "arming with process," § 1209, p. 706. "Equitable levy," whether bankruptcy operates as, § 1212, p. 709; § 1213, p. 713; § 1214, p. 714. Necessity of existence of, to avoid unfiled or unrecorded liens, § 1242, p. 736; § 1233, p. 733. Permitting creditors to levy after bankruptcy in order to "arm with process," § 1239, p. 735. Prior general assignment, whether effective to avoid liens, recorded be- fore bankruptcy but not until after assignment, § 1270, p. 749. Title of, taken by trustee, § 1208, p. 704. May be Candidate for Trustee, § 883, p. 504. Contesting each other's claims before election of trustee, not chargeable against estate, § 2018, p. 1254; § 2057, p. 1279; § 2071, p. 1285. With Disputed claim incompetent to be trustee, § 890, p. 509. Independent plenary suits by creditors against adverse claimants Contesting Unjust Claims before Election of Trustee, no reimburse- ment for, § 2018, p. 1254; § 2057, p. 1279. Must have resulted to benefit estate, else no reimbursement, § 1714, p. 1057. Reimbursement of Creditor where litigation results in recovery of Concealed Assets, § 1713, p. 1057; § 2015, p. 1252; § 2016, p. 1253; § 2018, p. 1255. "Transferred" or "Concealed" by "Bankrupt," else no reimbursement, § 1715, p. 1058. Until Trustee elected, may be maintained, § 399, p. 260. GENERAI, INDEX. 2113 CREDITOR— Continued. After Trustee elected, not maintainable, § 1712, p. 1056; §. 1718, p. 10G3. Must be for benefit of all, § 400, p. 261. Not maintainable in U. S. District courts, § 401, p. 262; § 1716, p. 1058. No Jiiit to maintain status quo for filing bankruptcy petition, § 402, p. 262. Holding Lien by Legal Proceedings Competent as petitioning creditor, § 234, p. 183. Votes only if Surrenders Lien, § 579, p. 349. May ask for general examination of bankrupt and witnesses, § 1529, p. 914. May examine bankrupt and witnesses before filing claim, though proof may be required, § 1532, p. 915. .May except to Trustee's Report of Exempted Property, § 1081, p. 613. May petition for Injunction, § 368, p. 244. Qualifications of for voting at meetings, § 573, p. 348. Reimbursement of, where concealed assets recovered by, § 2015, p. 1252; § 2016, p. 1253; § 2073, p. 1285. When Stockbroker's customer becomes creditor, § 1313, p. 769. Subsequent, see "Subsequent Creditors." Transfer must be to a "creditor" else no preference, § 1304, p. 766. Use of Trustee's Name by, where trustee refuses to sue, § 1719, p. 1061. Use of Trustee's Name by, where trustee refuses to Object to Claim, § 827, p. 479. Use of Trustee's Name by, where trustee Refuses to Appeal, § 2830, p. 1655. CREDITORS' BILLS Instituted before four months not superseded by bankruptcy, § 1593, p. 963. Substitution of trustee in, pending, § 1646, p. 1012. CREDITORS' MEETINGS See "Meeiiiigs of Creditors." CRIME Bankrupt not protected from arrest upon Criminal Charge, § 467, p. 305. CRIMES AGAINST THE BANKRUPT ACT Acts committed before bankruptcy not within statute, § 2318, p. 1410. Advice of Counsel, § 2329, p. 1413. Bankrupt alone indictable for "Concealment of Assets" from trustee, § 2326, p. 3412. "Concealment of Assets," essential elements in proof of, § 2328, p. 1413. Continuing Concealment, § 2319, *p. 1410. Committed before Trustee appointed, whether a crime, § 2320, p. 1411. "False Oath," essential elements in proof of, § 2327, p. 1413. Indictment to be Specific and to contain all essential elements, § 2321, p. 1411. Indictment for False Oath to aver falsity and scienter, § 2322, p. 1412. Immunity horn use of bankrupt's testimony effectual obstacle to convic- tion for perjury, § 2324, p. 1412. Others than Bankrupt Indictable for "False Oath," § 2325, p. 1412. Section 29 penal and to be strictly construed, § 2317, p. 1410. What are. § 2316, p. 1409. 2 Rem B— 58 2114 GENERAL INDEX. CRIMINAL CONVERSATION Judgment:-, for, not discharged, § 2754, p. 1620; § 2760, p. 1621. CRIMINAL PROCEEDINGS Bankrupt's testimony not to be used in, § 1556, p. 931; § 2324, p. 1412. Schedules of Bankrupt not to be used before Grand Jury, § 2323, p. 1412. CROPS When will pass to trustee, § 972, p. 545. CROSS-EXAMINATION Of Adverse party. State statutes permitting, not followed, § 1759, p. 1073. See "General Examination of Bankrupts and Witnesses." Whether may call Opposite Party as W'itness and Cross-Examine him, and not be bound, § 1549, p. 926. See "Witnesses." CURTESY Estates by curtesy initiate do not pas^, § 971, p. 544. Estates by curtesy consummate do pass, § 971, p. 544. "CUSTODIA LEGIS" Whether Adjudication of bankruptcy, "ipso facto" passes bankrupt's prop- erty into, § 1808, p. 1108. Adverse claimants restrained from interfering with, § 1906, p. 1190. What Constitutes, § 1807, p. 1101. Test of summary jurisdiction of bankruptcy court, § 1796, p. 1088. CUSTODIAN In possession under nullified legal proceedings, not adverse claimant, § 1827, p. 1122. CUSTODY Voluntary surrender of by State Court, § 1638, p. 1010. CUSTODY OP STATE COURT See "Conflict of Jurisdiction." DAMAGES Accruing after bankruptcy Liquidation of, § 707, p. 425. For Breach of Contract By Receiver, § 388, p. 255 n. Of Sale, see "Sale, Contracts of.'^ Of Employment, see "Employment. Contracts of." Of Continuing Contracts, see "Continuing Contracts." On Injunction Bond, § 370, p. 245. Property wrongfully Seized on Warrant, damages for, § 348, p. 234; § 349, p. 235; § 350, p. 236; § 351, p. 236; § 352, p. 236; § 353, p. 237. DATE Of Adjudication Is date of Cleavage of Title, § 1117, p. 639. Of Insolvency and "Fair Valuation" Date immediately preceding transfer or levy, § 1364, p. 793. GENERAL INDEX. 2115 DEATH Of Bankrupt After Commission of Act, but before Filing of petition, § 96, p. 92. After filing of petition no abatement, § 98, p. 94; § 2421, p. 1465; § 2474, p. 1494. Before Redemption of Life Insurance policy accomplished, § 1017, p. 567. Widows' and Children's Rights, see "Widows' and Children's Allow- ances." Also, see "Dower." Exemptions not defeated though death occurs before exemptions set apart, § 1025, p. 576. Right to discharge not affected by, § 2421, p. 1465; § 2474, p. 1494; § 98, p. 94. Opposition to discharge not abated by, § 2456, p. 1487. Of One Partner Jurisdiction over Partnership not defeated, § 96, p. 93. Of Trustee Pending Suit not abated by, § 947, p. 526. Creditors to elect new trustee, § 948, p. 526. Before Adjournment of meeting at which elected, § 947, p. 526 n. DEBT Dischargeable Protection from arrest on process issued upon, see "Protection from Arrest." Also, see "Dischargeable Debt." Existence of to be shown in voluntary petition, § 191, p. 158. Includes demands and claims which are not technically debts, § 627, p. 372. Must be pre-existing debt to be preference, § 123, p. Ill; § 1314, p. 770. Voluntary Bankrupt Must Owe "Debt," § 41, p. 57. What is meant by, § 626, p. 372. What is provable debt, see "Provable Debts." Whether a "debt" or not dependent on state law, § 631, p. 375. Whether tax is a, § 2745, p. 1616. "Owing but not yet due," how to be set forth in proofs of claim, § 599, p. 357. DEBTORS OF BANKRUPT Are "Adverse Claimants," § 1680, p. 1034. Not Proper Parties to Object to Claims, § 821, p. 476. Actions in personam against, not to be brought in bankruptcy court, § 1694, p. 1043. May confer jurisdiction on bankruptcy cotirt by consent, § 1697, p. 1047. No summary jurisdiction over, § 1680, p. 1034; § 1796, p. 1089. Trustees may institute suits against, § 1724, p. 1062. DECEDENT Not subject to Involuntary Bankruptcy, § 55, p. 64. "DECISION" Of lower court, insufficient as "findings" or "order" on review, unless made part of record, § 2956, p. 1724. Of low^er court may be "looked to," on review, § 2957, p. 1725. No review of, § 2840, p. 1660. 2116 ge;ne;rai, index. DECREE See "Adjudication of Bankruptcy." DEDUCTION OF SECURITIES Accommodation notes of third parties given as collateral not to be de- ducted, § 752, p. 446. Claim allowable only after, § 751, p. 446. None for amount paid by surety, §§ 757, p. 450. None for property of principal held by creditor, where surety bankrupt, § 758, p. 450. Notes of Third Parties Endorsed by bankrupt as collateral, to be deducted, § 752, p. 446. Orders on Third Party by Bankrupt, deducted, § 754, p. 447. Preliminary determination of value of securities for voting purposes, § 763, p. 454. Securities not on bankrupt's property not to be deducted, § 756, p. 448. Securities on exempt property to be deducted, § 755, p. 447. Securities surrendered, claim allowed without deduction, § 767, p. 455. Whether holder of note containing waiver of exemptions a secured cred- itor, whose security to be deducted, § 1034, p. 585 n. DEED Form of trustee's, § 1998, p. 1236. Relating to bankrupt's property passes to trustee, § 955, p. 536. If not so relating, does not pass, § 957, p. 536. DEED BY WAY OF SECURITY, § 1885, p. 1180 n. DEFALCATION Whether paying up defalcation is preference, § 1309, p. 767. While officer or in fiduciary capacity not discharged, § 2783, p. 1628. DEFAULT ADJUDICATION Jurisdiction to make, § 424, p. 273. By referee in Judge's absence or inability, § 425, p. 273. A judgment on merits, binding on all, § 426, p. 274. DEFENSE TO BANKRUPTCY PETITION Solvency as clefense to first act, § 116, p. 109. DEFENSES TO PETITION FOR ADJUDICATION Defense of Solvency not Available to Creditors against Partnership Peti- tion by One Partner, § 43, p. 58. "DEFINITE" AND "CERTAIN" Facts to be Pleaded definitely and certainly, § 257, p. 192. DEFINITION Of Bankruptcy Law, § 16, p. 31. "Clerks," § 2169, p. 1336. "Insolvency," § 1343, p. 786. "Manufacturing," § 84, p. 83. "Preference," § 1276, p. 754. "Servants," § 2169, p. 1336. GENERAL INDEX. 2117 DEFINITION— Continued. "Trading" and "Mercantile Pursuits," § 83, p. 82. "Transfer," § 1330, p. 779. "Wage Earner," § 2171, p. 1338. "Workman," § 2169, p. 1336. DEFRAUD Intent to, not requisite in proof of assignment as Act of Bankruptcy, § 148, p. 129. DEGREE OF PROOF On summary orders upon bankrupts and others, § 1842, p. 1137. DELAY IN FILING PETITION AND SCHEDULES AFTER VERIFICA- TION, § :382, footnote. DELEGATION OF LEGISLATIVE POWER See "Constitutional Law." DELIVERY Sufficient to pass title to goods sold, pledged or in process of manufacture, § 1145, p. 676; § 1146, p. 676. Trustee bound by bankrupt's acts of delivery, § 1145, p. 676. "DEMAND" Meaning of, dependent on State law, § 631, p. 375. Not requisite in trustee's suit to recover Preference, § 1769, p. 1076. To set apart exempt property, none requisite, § 1072^, p. 611. Taxes, whether constitutes a, § 2745, p. 1616. DEMURRER No demurrer to answer, § 332, p. 226. To involuntary petition, § 324, p. 225. To petitions before referees, § 548, p. 334 n. DEPLETION OF ASSETS Necessary to effect Preference, § 1278, p. 756. Of Individual Estate, not preference in partnership bankruptcy, § 1291, p. 759. Of Partnership, where partnership not in bankruptcy, but assets be- ing administered in bankruptcy of member, § 1290, p. 759. Also, see "Preference — First Element." Transfers based on Present Consideration, not preferences, § 1295, p. 760. DEPLETION OF INSOLVENT ESTATE Implied in preference as Act of Bankruptcy, § 121, p. 111. DEPOSIT On. composition, § 2364, p. 1434; § 2365, p. 1434; § 2366, p. 1434; § 2367, p. 1434; § 2368, p. 1435. Trustee's duty to deposit moneys in depository, § 909, p. 519. DEPOSIT FOR COSTS, § 285, p. 205. luinkrupt giving mortga25. Two or more pending at same time, § 293, p. 212. Petition in district of domicile first heard, § 293, p. 212. In partnership and corporation cases, petition first filed, first heard, § 294, p. 213. Other hearings stayed, § 295, p. 213. GENERAL INDEX. 2175 INVOLUNTARY PETITION— Continued. Court making first adjudication retains jurisdiction, § 296, p. :213. But court having right to retain, may relinquish, § 297, p. 214. Amendment bj^ adopting earlier act from other petitions, § 298, p. 215. Whether partner may file ordinarj- involuntar}- petition against firm, § 75, p. 78. JEWISH SABBATICAL YEAR OF RELEASE, Intro, (b), p. 1. JOINDER Of Acts of Bankruptcy In one petition, permissible, though acts be distinct, § 249, p. 1S9. Of Grounds of Opposition to Discharge In one specification permissible, § 2599, p. 1554. JOINING OF ADDITIONAL CREDITORS See "Parties in Involuntary Proceedings."' JOINT APPEAL Practice on, § 2836, p. 1656. JOINT CONTRACTORS I^Iay not Join as Voluntary Bankrupts, § 40, p. 56. JOINT DEBT Separate debt not to be off-set against, § 1175, p. 689. JOINT OWNERS May not Join as Voluntary Bankrupts, § 40, p. 56. "JOINTLY LIABLE" See "Sureties and Guarantors." "JUDGE" Alone, ma}^ remove trustee, § 942, p. 525. Alone, to order sale before adjudication, unless unable to act, § 1946, p. 1214. JUDGMENT See "Adjudication of Bankruptcy." Debtor's Voluntarj^ action not implied in Preferences bj^ way of, § 1337, p._ 783. If Discharge Refused, § 2705, p. 1603. If 'Discharge Xot Interposed though granted, § 2706, p. 1603. Dormant judgment, whether provable, § 684, p. -415. Erroneously entered, notwithstanding discharge dulj' pleaded and proved, § 2687, p. 1596. Fraud, Judgment for any kind of, excepted from discharge, before amend- ment of 1903, § 2747, p. 1617 n. Fraudulent, may be attacked by trustee, § 1224, p. 725. Lien of judgment Nullified by § 67 (f), nevertheless, judgment itself "allow- able," § 777, p. 460. Means Judgment Lien, not judgment itself, when nullified by bankruptcy, § 1448, p. 857. None Against Trustee for Excess of Off-set, § 1187, p. 694. 2176 GENERAL INDEX. JUDGMENT— Continued. Xone in bankruptcy proceedings Against Claimant, where estate's claim exceeds claimant's, § 1188, p. 694. None in bankruptcy proceedings against Claimant for Excess of Security, § 764, p. 454. Not such merger as prevents inquiry into original character of obligation, § 2749, p. 1618; § 2790, p. 1633. Even though tort waived and judgment be on quasi contract, § 27.50, p. 1618. Xot Preference, unless creates lien, § 1282, p. 757. Xon-Dischargeable, nevertheless lien of, within four months, nullified by bankruptcy, § 1433, p. 848. ■ Not requisite to nondischargeabilit}', where property obtained by false pre- tenses, § 2748, p. 1617. Original debt, not the judgment to be proved, where provable claim re- duced to judgment after bankruptcy and before discharge, § 698, p. 422. Priority, judgment not entitled to priority over other claims, on Distribu- tion, § 21.37, p. 1315. "Procuring or Suffering"' of, as Preference, § 1335, p. 782. Proof of claim must state whether judgment taken, § 600, p. 357. Proof of claim necessary for judgment, § 676, p. 412 n. Provability of "Absolutely Owing" is provable, § 670, p. 406; § 676, p. 412. Absolutel}' owing at time of filing bankruptcy petition requisite to provability, § 670, p. 406; § 678, p. 412. Alimony not provable, § 683, p. 414. Not Dischargeable, yet provable when, § 681, p. 413. For Money, else not provable, § 677, p. 412. For Penal Fine, not provable, § 683, p. 414. Personal Injury, or other Tort, Judgment for is provable, though Tort itself not, § 680, p. 413. Rendered within Four IMonths, yet provable, § 682, p. 413. Rendered on provable debt After Bankruptcy but before discharge, the debt provable, § 695, p. 420. Taking of does not destroy priority of distribution, § 2135, p. 1317; § 2182, p. 1342. In Rem Xot prevented by discharge, § 2709, p. 1G04. Remains Valid, though lien itself nullified, § 778, p. 460; § 1449, p. 858. Res judicata though lien nullified, § 778, p. 460. For Support, not provable, § 683, p. 414. Of State Court as to' Exemptions in same fund Res Adjudicata, § 1087, p. 615. Vacating of, none to permit Interposition of Discharge, § 2708, p. 1604. Warrants of attorney to confess As Continuing consents, § 1336, p. 783. Debtor's Voluntary action not implied in cases of preferences by way of judgments, § 1337, p. 783. JUDGMENT AT LA'W Not Appealable, § 2921, p. 1711. GENKRAI, INDEX. 2177 JUDGMENT IN PERSONAM If Discharge not Interposed, § 2706, p. 1603. If Discharge refused, § 2705, p. IBOS. None for costs against parties in summary proceedings not personally ap- pearing, § 2009, p. 1246. Mere Possession of Res and service of notice does not warrant, § 1892, p. 1183. Stay protects bankrupt only from, § 2709, p. 1604. Not Warranted by mere Possession of Res, and Service of Notice, § 1892, p. 1183. "JUDGMENT FOR TORT" Property not exempt as to, § 1035, p. 587. JUDGMENT LIEN Fraudulent transfer suit within four months, in aid of lien or levy obtained before four months, not nullified by bankruptcy, § 1592, p. 963. Marshaling of, § 1885, p. 1180 n. JUDICIAL COGNIZANCE Of court records, § 2654, p. 157G. JUDICIAL DISCRETION Reasonableness of Attorneys' fees left to, § 2046, p. 1267. JUDICIAL SALE Trustee's sale is a, § 1950, p. 1215. JURISDICTION To Administer bankrupt estates Unimpaired, though Discharge Barred Because of Previous discharge within six years, § 2579, p. 1548. To Allo.vv, Disallow and Reconsider Claims, § 811, p. 473. Of Bankruptcy court Over Attorney's lien on client's dividend, § 2228, p. 1364. To Reopen Estate, § 2300, p. 1401. To determine ownership of property in .custody, not divested by con- firmation of composition, § 2398, p. 1449. To set aside confirmation of composition for irregularity, § 2399, p. 1451. May stay suits, § 2700, p. 1601. None to entertain Independent Plenary Action by Creditors, § 1716, p. 1058. None to entertain Plenary Action by Trustee to Recover Debt owing bankrupt, § 1694, p. 1043. None to entertain Stockholders' Liability Suit, § 977, p. 548. None of Equitable Action to Subject Dividends in trustee's hands, § 2226. p. 1363. Over Plenary action by trustee against adverse claimant, § 1688, p. 1039. Sec "Plenary Actions by Trustee against Adverse Claimants." To punish for Contempt for Interference with custody, § 1922, p. 1196. To make Summary Order on Bankrupts and Others, not new func- tion, § 1833, p. 1127. Change of Debtor's Class after commission of Act, but before filing pe- tition, § 95, p. 91. 2 Rem B- 62 2178 GENERAI, INDEX. JURISDICTION— Continued. Corporation ceasing to do business after commission of act but before petition filed, § 97, p. 93. Over Corporations More Limited under Act of 1898 than Act of 1867, § 81, p. 80. Deatli or insanity after commission of act but before filing of petition, § 9G, p. 92. Death or insanity after filing of petition, no abatement, § 98, p. 94. See, also, "Death." See, also, "Insanity." To discharge None on petition filed after eighteen months, § 2427, p. 146(3. Dismissal of petition for want of, § 414, p. 2G8. Dissolution of Corporation after commission of Act but before petition filed, § 97, p. 93. As Established by the First English Bankruptcy Act, 34 Henry VIII, Introd. (g), p. 6. Existence of Jurisdictional Facts need not appear on face of record, § 30, p. 51 n. Facts showing, to be alleged in involuntary petition Corporation to be brought within class subject to bankruptc}^, § 242, p. 186. Natural persons to be shown not within excepted classes, § 243, p. IgG. Residence, domicile, etc., to be shown, § 241, p. 186. To Grant Discharge, facts showing must be pleaded, § 2683, p. 1595. Lack of, affirmatively appearing on face of record, decree void, § 30, p. 51 n. If Lacking, Voluntary Petition may be Dismissed by court, § 196, p. 160. None in bankruptcy court to render Judgment in Personam for Debt, § 1796, p. 1089. Jurisdiction where mechanics and subcontractors have lien on fund due from owner, § 1165, p. 685. None in Bankruptcy Avhere debtor Insane or Dead at time of petition filed, § 96, p. 93. , Not to be _Conf erred by Consent, where bankrupt not in class, § 30, p. 46. Over "Adverse claimants," see "Adverse Claimants." Referee has none to entertain plenary action, § 545, p. 333. To Reviev/ Referee's order, § 2839, p. 1658. To Revoke Discharge, § 2806, p. 1644. To Vacate Adjudication, § 429, p. 275. Voluntary Bankruptcy, Jurisdiction in over Natural Persons, § 37, p. 55. Voluntary Bankruptcy, no jurisdiction in over Corporations, § 37, p. 55. Voluntary petition Dismissed for want of, § 414, p. 268. JURISDICTIONAL LIMITATIONS Affect Jurisdiction over Subject Matter, § 30, p. 46. Limitations as to Residence, Occupation, etc.. Jurisdictional, § 30, p. 46. JURISDICTIONAL QUESTIONS Appealable to Supreme Court, when, § 3019, p. 1746; § 3021, p. 1747. "Question of Jurisdiction," meaning of in appeals to Supreme Court, § 3021, p. 1747. On review, § 3003, p. 1739; § 3004, p. 1739. GENERAL INDEX. 2179 JURISDICTION BY CONSENT Over adverse claimants, see "Adverse Claimants — Jurisdiction of Bank- ruptcy Court Over, by Consent." JURISDICTION OF COURTS Adjudication on Default, jurisdiction to make, § 424, p. 273. Bankruptcy Courts not Inferior, § 29, p. 45. Bankruptcy Court's Jurisdiction over Exempt Property, see "Exemptions, Jurisdiction over." Of Bankruptcy Courts, see "Conflict of Jurisdiction;" "Jurisdiction." * Examination of bankrupt before adjudication, jurisdiction as to, § 1543, p. 919. In General, § 27, p. 45. Limited, § 29, p. 45. See "Restraining Orders and Injunctions." State Court's, in bankruptcy matters, § 1687, p. 1038. Of State Courts, see "Conflict of Jurisdiction." Territorial Jurisdiction, § 29, p. 45. U. S. Circuit Court's jurisdiction in bankruptcy matters, § 1686, p. 1037. See "Referee in Bankruptcy." JURY Confined to two Issues where demandable, § 408, p. 265. Not demandable by Intervening Creditor, § 409, p. 265. Demand for, § 411, p. 266. Not Demanded, reference to Master, § 412, p. 266. Demandable by virtue of statute not constitution, § 407, p. 265. Nonjoining partner entitled to. on issue of insolvency, § 74, p. 77. Rules of Equity Applied, though jury be invoked, § 20, p. 37. Submitting issue of fact to, § 404, p. 263. Trial by An Absolute Right on Issues of Insolvency and commission of act, § 406, p. 264. To be conducted according to Common Law, § 410, p. 266. Not on Re-Examination of Claims, nor on Objections thereto, § 849, p. 489. Not Violated by Summary Orders on bankrupts and others, § 1834, p. 1128. Verdict of, in general. Advisor}^, § 405, p. 263. JURY TRIAL On petition for adjudication, whether appealable, § 2894, p. 1699; § 2894, p. 1700 n. JUSTICE OF THE PEACE. Disregarding bankruptcy, § 2700, p. 1601. KEEPER See "Custodian." KINDS OF PROPERTY PASSING TO TRUSTEE See "Propert}' Passing and Not Passing to Trustee — Kinds of Property." 2180 GENERAL INDEX. "KNOWINGLY AND FRAUDULENTLY" Concealment of assets must be done, § 2488, p. 1503. False oath must be perpetrated, § 2535, p. 1526. Indictment for false oath to aver, § 2322, p. 1412. To be alleged, where act charged is an "offense" § 2596, p. 1553. KNOWLEDGE As curing defective scheduling, § 2777, p. 1627. LABOR Performance of in payment of debt, not preference, § 1280, p. 757, §^ 1333, p. 781. Performance of not a "transfer,"' § 1333, p. 781. •'LABORER" See "Workmen, Clerks and Servants." State priorities to, where different from bankruptcy priorities, § 2195, p. 1347. LACHES Appeal from Referee's ruling, right to, barred by, § 2851, p. 1664. Defense of Lack of Jurisdiction as barred by, § 449, p. 296. Dismissal of Petition for Review for, § 2994, p. 1736. Liens by Legal Proceedings nullified by bankruptcy, trustee not charge- able with laches, § 1468, p. 873. "Nunc pro tunc" extension of Time for Filing Discharge petition, to cover, § 2426, p. 1465. Omitted Parties on Appeal or Review, right to make barred by, § 2837, p. 1657. Other than Trustee Appealing, laches barring right to object to, § 2832, p. 1655. Reconsideration of claim refused for trustee's, § 842, p. 484. Revocation of Discharge barred by, § 2815, p. 1647. Right to Reopen Estate barred by, § 2306, p. 1403. "Tracing Trust Funds" barred by, § 1884, p. 1176 n. Vacating of Adjudication barred by, § 436, p. 278. LANDLORD'S LIEN Not Impaired by the bankruptcy act, § 1160, p. 683. Jurisdiction to marshal priority of, § 1885, p. 1179 n. Landlord's priorities, on distribution, § 2204, p. 1356. Re-entry clause does not give, on proceeds of leasehold, § 992, p. 552 n. Trustee of bankrupt tenant cannot perfect, § 992, p. 553 n; § 2201, p. 1353. LANDLORD AND TENANT Docs Bankruptcy Sever Relations of, § 653, p. 393; § 2730, p. 1610. Forcible Detainer suits not maintainable where bankruptcy court in pos- ■ session, § 1799, p. 1098. Judgment against landlord for bite by tenant's dog, whether discharged, § 2754, p. 1620. Landlord's Levy not nullified I)y bankruptcy, § 1589, p. 962. See "Leasehold." See "Rent." "Same Class," whether Landlord in, § 1387, p. 818 n. Tenant's bankruptcy not ipso facto termination of lease, § 981, p. 548. GENERAL INDEX. 2181 LAUNDRY CORPORATIONS See "Involuntary Bankruptcy." LEASEHOLD Accept Lease as Assets, trustee not bound to, § 982, p. 548. Bankrupt as landlord, whether leasehold passes, § 979, p. 548. Bankrupt as tenant, whether leasehold passes, § 980, p. 548. Forfeiture of Assigning or Subletting, covenants of forfeiture for, not violated by bankruptcy, § 964, p. 539; § 987, p. 550. Bankruptcy operates a, if specifically so provided, § 989, p. 552. General Assignment preceding bankruptcy, efifect of on right to for- feit leasehold for assignment, § 987, p. 551. If Specific Method of, stipulated, such method alone effective, § 990, p. 552. Leasehold Liberated from Forfeiture clause, § 988, p. 551. Previous Forfeiture not nullified by tenant's bankruptcy, § 986, p. 550. Trustee takes, Subject to Forfeiture Clauses, § 1151, p. 680. Where Future Rent already paid, leasehold passes, § 991, p. 552. Landlord Forfeiting lease waives claim for unexpired term, § 665, p. 404. Landlord Accepting Surrender of lease waives claim for unexpired term, § 665, p. 404. Occupied by Receiver or Trustee Free of Rent for any period for which landlord holds provable claim, § 992, p. 552. Passes to trustee, though providing for forfeiture on "assignment," § 964, p. 539; § 987, p. 550. Perfecting of landlord's lien, none by trustee of bankrupt tenant, § 992, p. 553 n. Mere Re-entry gives no lien for future rent, on sale of, § 664, p. 40J Rents of Mortgaged Premises, uncollected or accruing after bankrrptcy, § 993, p. 553. Special Deposit by tenant with landlord to secure rent, how to be used as offset, on bankruptcy, § 1186, p. 694 n. Tenant's bankruptcy not Ipso Facto termination of lease, § 981, p. 548 Time to Accept or Reject, trustee entitled to, § 983, p. 549. Trustee's right to Occupy Premises for Reasonable period, § 984, p 549. Whether trustee bound to pay Rent Stipulated or only for Use and Oc- cupation, § 985, p. 549. Trustee takes title, subject to forfeiture clauses of, § 1151, p. 680. LEASES Actual but Voidable Sales, Disguised as, § 1228, p. 726. LEAVE TO APPEAL Application for, § 2960, p. 1725. LEGAL CONCLUSIONS "Duly Made" sufficient in pleading discharge when, § 2683, p. 1595. Not to be Pleaded, § 252, p. 191; § 1767, p. 1075; § 2607, p. 1558. LENDING "WRITTEN INSTRUMENT" TO SURETY TO MAKE PROOF, § 612, p. 363. 2182 GENDRAI, INDEX. "LESS THAN TWELVE" CREDITORS Bankrupt to Supply Sworn List of Creditors, if he claims averment of less erroneous, § 208, p. 171. Erroneous averment of, § 207, p. 170. Notice, mode of Service of, § 209, p. 171. LEVY See "Bankruptcy, Whether Operates as Equitable Levy." See "Equitable Levy." See "Title of Trustee, as Successor to Creditors' Title." LEVYING ON EXEMPT PROPERTY Before and after discharge, § 1102, p. 627, § 1107, p. 633. By Attachment or Execution, § 1107, p. 633. By Direct Execution after exempt property set apart, § 1108, p. 633. LEVYING ON PROPERTY AFTER BANKRUPTCY To "Arm with Process," § 1239, p. 735. LIABILITIES Duty of bankrupt to file list of creditors, § 477, p. 308. LIABILITIES FOR OBTAINING PROPERTY UNDER FALSE PRE- TENSES Excepted from discharge, § 2746, p. 1616; § 2747, p. 1616; § 2748, p. 1617; § 2749, p. 1618; § 2750, p. 1618; § 2751, p. 1619; § 2752, p. 1619; § 2753, p. 1619. LIABILITIES FOR WILLFUL AND MALICIOUS INJURIES TO PER- SON OR PROPERTY Excepted from discharge, § 2754, p. 1619. LIBEL Judgment for whether Discharged, § 2754, p. 1620. LICENSE Dependent on local law as to title passing, § 967, p. 541. Liquor license on Marshaling of Liens, § 1885, p. 1179 n. Pass to Trustee, when, § 967, p. 540. Subject to Contingency of Approval of Public Authorities yet may pass, § 968, p. 542. Whether a "Tax," entitled to priority on distribution, § 2154, p. 1330. Transferable by Peculiar and Unusual means, yet maj'- pass, § 969, p. 542. LIEN Agreement for, Not Effective Until within Four ^ilonths, § 1370, p. 795. Not Appealable under § 25 (a), § 2900, p. 1702. Unless incident to disputed debt, § 2901, p. 1702. "Banker's," § 1329, p. 779. Of Assignee and Receiver for compensation and expenses, see "Assignments and Receiverships Superseded by Bankruptcy." Also, see "Conflict of Jurisdiction — Second Exception." Enforcement of, not barred by Discharge of debtor, § 2668, p. 1587; § 2673, p. 1589. GENERAL. IXDE'X. 2183 LIEN — Continued. See "Equitable Liens." On Exempt Property Paid Off on Eve of Bankruptcj^ no Subrogation of trustee to, § 2283, p. 1396. For Future Rent not Released by Tenant's Bankruptcy, § 603, p. 404. Landlord's, see "Landlord's Lien." Of partnership creditors on firm assets In individual bankruptcy of partner, § 2254, p. 1374; § 2271, p. 1390. Priority of Appealable as "controversies," § 2923, p. 1712. Whether questions in, are "Proceedings in Bankruptcy Proper" or "Controversies," § 2869, p. 1683; § 2870, p. 1684; § 2871, p. 1684, § 2875, p. 1687; § 2877, p. 1689; § 2878, p. 1689. Mere Re-entry Clause gives no lien for future rent, § 664, p. 404. Redeeming from, § 937, p. 525; § 1826, p. 1121. Selling subject to, § 938, p. 525. Selling free from, § 939, p. 525; § 1965, p. 1223. Selling free from some, subject to others, § 940, p. 525; § 1969, p. 1225. Selling free from, see "Sales in Bankruptcy — Selling Free from Liens." Tender of Amount due, whether gives summary jurisdiction to order sur- render, § 1826, p. 1121. Lien, itself not a preference not to be denied validity, in marshaling, because preference on distinct transaction not surrendered, § 1428, p. 846; § 1899, p. 1187; § 773, p. 459. LIENHOLDER "Adverse Claimant," when, § 1679, p. 1034. Consent of, not necessary on marshaling of liens, § 1886, p. 1181. Consent of, not necessary for sale free from lien, § 1880, p. 1181; § 1966, p. 1225; § 1979, p. 1228. Desiring to Bid, may object to sale free from liens, before validity deter- mined, § 1980, p. 1229. Entitled to notice of sale free and clear from liens, § 1980, p. 1229. Liens by legal proceedings within four months, void only as to Trustee, not as to other lienholders, § 1436, p. 849. Petition to Redeem, whether gives Summary Jurisdiction, on Tender, § 1826, p. 1121. In Possession, Sale of Securities by, not enjoined, § 1913, p. 1192. In Possession, after satisfaction of lien, subject to summary jurisdiction, § 1825, p. 1121. As Purchaser, may Apply Lien on Price, § 1997, p. 1236. Rights of, not to be prejudiced by Compromise of Controversies, § 931, p. 524. LIENS BY LEGAL PROCEEDINGS After adjudication none obtainable, § 1125, p. 642. Artisans' liens are not, § 1158, p. 683. Between Filing of Petition and Adjudication whether obtainable on Bank- rupt's Property, § 1126, p. 642. Landlord's liens are not, § 1160, p. 683. Liverymen's liens are not, § 1157, p. 683. Mechanics' liens, etc., are not, § 1155, p. 681. Subcontractors' lierrs are not, § 1156, p. 682. Supplies, statutory lien for, § J.159, p. 683. 2184 GENERAL INDEX. LIENS BY LEGAL PROCEEDINGS NULLIFIED BY BANKRUPTCY Is second branch of trustees' peculiar title and rights conferred by the bankruptcy Act, § 1429, p. 846. BsLsis of Nullification, § 1462, p. 868. Clause "f" of § 67 Supersedes Clause "c" where in Conflict, § 1463, p. 869. Clause "f" applies to Voluntary bankruptcies as well as to Involuntary, § 1464, p. 871. Creditor may Prove Claim where lien nullified, also Costs, § 1487, p. 885. Creditor whose lien nullified under no duty to keep officer in posses- sion, § 1488, p. 885. Nevertheless Creditors not to sit by, else estopped, § 1468, p. 873. Coming into court where lien obtained and asking for Surrender, § 1471, p. 874. Comity requires resort first to court wherein lien obtained, § 1472, p. 874. Custodians and Court officers in possession under, not adverse claimants, but subject to summary jurisdiction, § 1827, p. 1122. Custody of State Court Superseded, § 1600, p. 965; § 1827, p. 1122. Distinguished from Barring of debt by bankrupt's Discharge, § 1435, p. 848. Injunction, § 1473, p. 877. Invalidating of Lien Relates Back to inception of lien, § 1467, p. 872; § 1600, p. 966. Lien Absolutely Void and falls of itself, § 1468, p. 873. Lien for Costs falls with the rest, § 1485, p. 884. Only Liens Obtained Before Filing of Petition are nullified, § 1466, p. 872. Nullification of liens by legal proceedings, § 1429, p. 846; § 1600, p. 965. Obligations of Contract not impaired by, § 1465, p. 871. Order of Surrender, § 1474, p. 877; § 1601, p. 965. Preservation of lien for benefit of estate, § 1489, p. 885. Costs of Court Remain Lien in cases of preservation, § 1490, p. 888. Lien not preserved, is void as to other lienholders on same property, § 1492, p. 890. Order of Preservation and Subrogation requisite, § 1489, p. 888; § 1491, p. 889. Subrogation of Trustee to creditors' rights, § 1639, p. 1010. Proceeds already paid over to Execution Creditor latter becomes Adverse party not to be Summarily dealt with, § 1477, p. 878. Proceeds of E.xecution or Attachment Sale in Sherifif's hands pass to trustee, § 1479, p. 881. Property itself may be Pursued and Recovered, § 1480, p. 882. Purchaser has Burden of Proof of bona fides, § 1482, p. 883. Rule adopting State priorities, not to override § G7 "f" annulling "legal" liens, § 2198, p. 1351. Recovery of proceeds from Execution Creditor only to be had on other grounds than § 67 (f), § 1478, p. 880. Requisite to bring situation to notice of court or officer seeking to enforce lien, § 1470, p. 874. Replevin, trustee may, § 1475, p. 878. Not Requisite that Lien create preference, § 1462, p. 869. Requisites to Nullification — First — Must be lien by legal Proceedings, § 1437, p. 849. Liens from all courts equally nullified, § 1438, p. 850. GENERAL IXDEX. 2185 LIENS BY LEGAL PROCEEDINGS NULLIFIED BY BANKRUPTCY— Continued. All kinds of liens by legal proceedings nullified, § 1439, p. 850. Including lien acquired by creditors by general assignments, § 1440, p. 851. Including statutory suits in behalf of all creditors for setting aside fraudulent or preferential transfers prohibited by State law, § 1441, p. 851. "Legal proceedings" must have operated to create lien, § 1442, p. 853. * Unfounded replevin actions, § 1443, p. 853. Legal proceedings not themselves creating liens but merely enforcing pre-existing rights or liens, ndt affected, § 1444, p. 854. Lien valid in part, and void as to balance, § 1445, p. 854. Receivership, etc., may operate to create '"lien by legal proceedings," § 1446, p. 855. Requisites — Second — Must have been obtained upon property accruing to estate, § 1447, p. 855. "Judgment"' means judgment lien, not judgment itself, § 1448, p. 857. Judgments whose liens annulled yet valid for other purposes, as res adjudicata, etc., § 1449, p. 858. Requisites — Third — Must have been obtained within four months, § 1451, p. 860; § 1457, p. 965. Suit started before but lien obtained within four months, lien falls, § 1457, p. 865. Levy within four months on judgment rendered before, annulled, § 1458, p. 865. State law controls as to nature of lien, time takes effect, abandonment, etc., § 1459, p. 865. Whether continued possession under writ of general execution, obtained before four months, superseded, § 1582, p. 954 n. Attachment obtained prior to four months, not abated, § 1588, p. 962. Fraudulent Conveyance suit instituted before four months, not abated, § 1591, p. 963. Fraudulent Conveyance suit within four months in aid of levy made before four months, not abated, § 1592, p. 963. Creditor's Bill instituted before four months not abated, § 1593, p. 963. Partnership Dissolution suit instituted before four months not dis- turbed, § 1593, p. 963. Assignments and Receiverships created before four months, not af- fected, § 1594, p. 964. No Injunction where lien not nullified, § 1909, p. 1191. If obtained after filing of petition, not nullified by § 67 "f" — though perhaps otherwise void, § 1452, p. 861. Whether lien obtainable by legal proceedings after filing bankruptcy petition, § 1453, p. 862. Computation of time, § 1454, p. 863. Attachment or other lien effected before four months, but judgment not rendered until within, lien good, § 1455, p. 863; § 1588, p. 962. Where State court attempts further distribution than mere aid to valid lien already existing, § 1456, p. 864. Requisites — Fourth — Insolvency, § 1460, p. 866. 2186 GEXERAI. INDEX. LIENS BY LEGAL PROCEEDINGS NULLIFIED BY BANKRUPTCY--^ Continued. Requisites — Fifth — Debtor must Eventually be Adjudged bankrupt, § 1461, p. 867; § 1609, p. 978 n. Sheriff paying over proceeds before filing of petition protected, § 1483, p. 883. Sheriff paying over proceeds after petition filed, whether liable, § 1484, p. 883. Sheriff no right to Retain Creditor's Costs, nor to retain property till costs paid, § 1486, p. 885. Suing State Court's Officer for ]\Ioney Had and Received, § 1476, p. 878. Subrogation of Trustee where lien preserved for benefit of estate, § 1639, p. 1010. Vested Rights not divested thereby, § 1465, p. 871. Void, irrespective of constituting Acts of Bankruptcy, § 1430, p. 848. Void, irrespective of Constituting Preferences, § 1431, p. 848; § 1462, p. 869. Void, irrespective of Consent or Permission of Debtor, § 1432, p. 848. Void, though Judgment not Dischargeable, § 1433, p. 848. Void, irrespective of Creditor's Knowledge of Debtor's Insolvency, § 1434, p. 848. Void, however, only as to Trustee, not as to Other Lienholders, § 1436, p. 849. Allowability of claim where creditor holds, see "Claims Where Creditor Holds Lien by Legal Proceedings." Custody of State court Preserved in Part and in part superseded, § 1587, p. 962. On Exempt Propert}', whether nullified by bankruptcy, § 1100, p. 624. On Individual Propertj- not Nullified by Firm Bankruptcy, § 2265, p. 13j6; § 2266, p. 1386. On Partnership Propertj- not Nullified by Individual Bankruptcy, § 2267, p. 1386. On Property Claimable as Exempt but not Claimed, nullified by bankruptcy, § 1101, p. 627. LIFE INSURANCE POLICIES AS ASSETS No Actual Value in at date of adjudication will not pass, § 1012, p. 562. Assigned absolutely to third person do not pass, § 1004, p. 558. Assigned as Security, bankrupt's interest passes to trustee, § 1006, p. 559. Bankrupt's Interest passes, provided it have actual value, § 1008, p. 560. Bankrupt required to Execute Assignment to effect transfer, § 1009, p. 561. Bankrupt as Beneficiary on Life of Another, § 1018, p. 568. Cash Surrender Value and Redemption of policy, § 1014, p. 564. Cash Surrender Value not expressly provided for in policy, § 1016, p. 566. Change of Beneficiary, policies containing right to change beneficiary pass, § 1007, p. 560. Death of Bankrupt before Redemption accomplished, § 1017, p. 567. Endowment Policies, bankrupt's interest in, passes to trustee, § 1006, p. 5"9. Exempt by State law do not pass, § 1003, p. 557. Interests in, what pass to trustee, § 1002, p. 556. May not compel third party interested to accept paid-up policy nor to apply for cash surrender value, § 1010, p. 562. Paj^able Absolutely to third person do not, pass, § 1004, p. 558. Payable to Bankrupt, his Estate or Personal representatives, pass to trust''e, § 1005, p. 558. ge;ner.\Iv index. 2187 LIFE INSURANCE POLICIES AS ASSETS— Continued. Payable Conditionallj-, the conditional interest passes, § lOOG, p. 559. Payable Contingently or Partly to bankrupt's estate, the contingent )r partial interest passes, § 1006, p. 559. Pay Premiums, whether trustee to, § 1013, p. 563. Only Policies having Cash Surrender Value Redeemable, § 1015, p. 564 Redemptich of, by Paying or Securing Cash Surrender Value, § 1014, p. 564. Cash Surrender Value not Expressly provided for, what are rights of redemption, § 1016, p. 566. Only Policies having Cash Surrender Value Redeemable, § 1015, p. 564. Tontine Policies, bankrupt's interest in passes to trustee, § 1006, p. 559. Trustee not to Wait for Maturity, but to sell interest for present worth, § 1011, p. 562. LIMITATION See "Statute of Limitations." LIMITATION OF ACTIONS By and Against Trustees, § 1789, p. 1083. Not Barred by expiration of State limitation after bankruptcy and before end of two years, § 1791, p. 1083. Nondiscovery of Fraud as tolling bar, § 1793, p. 1084. Reopening of estate not "suit" within limitation of § 11 (d), § 2307, p. 1403. State Limitations prevail, § 1792, p. 1083. No suit to recover property after Two Years from Closing of Estate. § 1790, p. 1083. LIMITATION OF YEAR FOR FILING CLAIM See "Year's Limitation for Filing Claims." LIQUIDATED DAMAGES STIPULATED IN CONTRACT, § 708. p. 420. "LIQUIDATION" OF CLAIMS By litigation, § 714, p. 428. Stockholders' Liability, § 714, p. 428. Maintaining" Pending Suit in Personam to effect, § 1647, p. 1013. See "Unliquidated Claims." LIQUOR LICENSES See "Licenses." LIST OF CREDITORS Sec "Schedules." LITIGATION Liquidation by, § 714, p. 428. Stockholder's Liability, § 714, p. 428. LIVERYMEN'S LIENS, § 1157, p. 683; § 1885, p. 1180 n. LIVERY STABLE CORPORATION See "Involuntary Bankruptcy." LIVE STOCK DEALER Exempt from Involuntary Bankruptcj', § 48, p. 61. 2188 GENERAI, INDEX. LOAN ^la.de for specific purpose, return of not a preference, § 1286, p. 758. LOCAL LAW See "State Law." MAINTAINING STATUS QUO FOR FILING BANKRUPTCY PETI- TION, § 402, p. 262. MAJORITY To Act at Creditor' IMeetings, what requisite, § 581, p. 350; § 868, p. 497. To Accept Composition, what requisite, § 2361, p. 1432. MALICIOUS PROSECUTION For wrongful seizure before adjudication, § 354, p. 237. MALICIOUS PROSECUTION OF BANKRUPTCY PETITION, § 24, p. 39 n. MANDAMUS .Mandate enforced by, § 3012, p. i743. MANIFEST ERROR Judgment on facts not disturbed except for, § 3009, p. 1741. Referee's order and finding presumed correct, unless, § 2861, p. 1670. "MANUAL 'WORK AND LABOR" Property not exempt as to, § 1035, p. 587. MANUFACTURING CORPORATIONS Subject to involuntary bankruptcy, § 90, p. 86. Bridge manufacturing and building corporations, when subject to bank- ruptcy, § 90, p. 86. Definition of Manufacturing, § 84, p. 83. Manufacturing distinguished from Constructing, § 84, p. 83. Ore Smelting corporations are, § 90, p. 86. Paper making corporations are, § 90, p. 86. Quarrying corporations, when are, § 90, p. 87. Shipbuilding corporations are, § 90, p. 86. MANUFACTURING ESTABLISHMENTS Priorities for furnishing supplies and materials to, § 2205, p. 1357. MARITAL RIGHT Property belonging to bankrupt by, passes to trustee, § 998, p. 556. MARRIED WOMEN Not subject to Involuntary Bankruptcy, § 52, p. 63. MARSHAL Actual or Constructive Possession by, constitutes "Custodia Legis," § 1807, p. 1101. Compensation and Expenses of on "Seizure," § 358, p. 240; § 2132, p. 1310. Fees of, § 2129, p. 1310. Fees of for service on order to show cause, § 2131, p. 1310. GENERA!, INDEX. 2189 MARSHAL— Continued. Way require Indemnity in advance, § 2021, p. 1257; § 2130, p. 1310. May tile Petition to Sell, § 1941, p. 1211. Possession by, gives jurisdiction to bankruptcy court, § 1796, p. 1089; § 1807, p. 1101. Suits in Personam Against, for Wrongful Seizure not restrained, § 1911, p. 1192. MARSHALING Of partnership and firm debts and assets, see "Distribution — In Partner- ship Bankruptcies." MARSHALING LIENS ON PROPERTY IN CUSTODY OF BANK- RUPTCY COURT Consent of Lienholder not necessary, § 1886, p. 1181; § 1966, p. 1225; § 1979, p. 1228. Incidental Power to Compel Execution of Papers by third parties, § 1887, p. 1181. Jurisdiction to marshal liens, § 1706, p. 1053; § 1885, p. 1177. Building Contracts, § 1885, p. 1178 n. Chattel mortgages, § 1885, p. 1178 n. Compelling resort to other security, § 1885, p. 1179 n. Deed given by way of security, § 1885, p. 1180 n. Judgments, § 1885, p. 1180 n. Landlord's lien, § 1885, p. 1179 n. Liquor license, § 1885, p. 1179 n. Liverymen's lien, § 1885, p. 1180 n. Mechanics' liens, § 1885, p. 1178 n. Mortgages and other liens, § 1885, p. 1179 n. Rent of mortgaged premises accruing after adjudication, § 1185, p. 1180 n. Subcontractors' liens, § 1885, p. 1178 n. Notice on Nonresidents, if court has actual possession, § 1891, p. 1183. Pleading and Practice, § 1894, p. 1184. See also, "Pleading and Practice in Marshaling Liens." Mere possession of res and service of notice insufficient to render judgment in personam, § 1892, p. 1183. Not "Proceedings in bankruptcy proper" but "controversies," § 2878, p. 1689. Referee has jurisdiction, § 531, p. 330; § 1888, p. 1181. Reasonable Notice to Lienors or other parties in interest requisite, § 1889, p. 1182. Reviewable by petition to revise, § 2937, p. 1716. Rights of Priority under State Statutes as related to marshaling of liens on property, § 1898, p. 1186. Where Rights under State Statutes Dependent on Resort to Special rem- edies, § 1897, p. 1186. Whether are strictly "Summary" proceedings, § 1895, p. 1184. "Surrender of Preference" on Distinct Transaction not to be required as prerequisite to validity of Lien which itself is not a Preference, § 1428, p. 846; § 1899, p. 1187. "Ten days notice by mail" insufficient; "Order to Show Cause" proper method, § 1890, p. 1183. 2190 GENERAL INDEX. MARSHALING LIENS ON PROPERTY IN CUSTODY OF BANKRUPTCY COURT— Continued. Third Parties may Intervene, § 1893, p. 1184. Validity, what Law governs, § 1S96, p. 1184. Validity, priority, etc., of liens, appealable as "controversies," § 2923, p. 1712. MATERIALITY "False oath" must have been mater-al, § 2532, p. 1526. "False statement in writing" must have been material to bar discharge, § 2560, p. 1542. MATURING FUTURE INSTALLMENTS Bankruptc}- operating by contract to mature future- installments, § 675, p. 412. MAXIMS "Equality is equity," § 1462, p. 868. "Filing of petition a caveat, attachment and injunction," § 1215, § 718. MEANING AND IDEA OF BANKRUPTCY LAW See "Nature of Bankruptcy Act" and "History of Bankruptcy Law." MEANING OF TERMS Commonly accepted and popular meaning given to classes of Corporations subject to bankruptcy, § 82, p. 81. MECHANICS' LIENS Consent to Payment of Fund into bankruptcy court, § 1164, p. 685. Failure to Perfect Lien in Statutory form invalidates, § 1162, p. 684. Are not "Liens Obtained by Legal Proceedings" or "Preferences," § 1155, p. 681. Marshaling of, § 1885, p. 1178 n. Owner Owing on Building Contract, subject to liens, "adverse claimant," § 1682, p. 1035. Where Perfecting of lien Dependent on Legal Proceedings, bankruptcy may dispense with same, § 1163, p. 685. Trustee takes title subject to, § 1154, p. 680. Valid though Aflfidavit or "Stop Notice" not filed till after bankruptcy of owner, § 1161, p. 684; § 1255, p. 741. Without Consent, State court proper Forum, where Contractor or Sub- contractor bankrupt, § 1165, p. 685; § 1682, p. 1035. MEETINGS OF CREDITORS First meeting, § 591, p. 353; § 592, p. 354; § 593, p. 354. Appointment of trustee at, § 862, p. 496. Bankrupt may be examined at, § 593, p. 354. Claims to be allowed at, § 593, p. 354. Place of holding, § 592, p. 354. Referee or Judge to preside, § 593, p. 354. Time of holding, § 591, p. 353. May be adjourned, § 590, p. 353. Assignee of a large number of creditors to be counted only as one cred- itor, § 574, p. 348 n. How creditors pass upon matters at meetings, § 572, p. 347. Only "Creditors" to vote, § 573, p. 348. GENER-VIv INDEX, 2191 MEETINGS OF CREDITORS— Continued. Creditors not to vote whose claims not Allowed, § 575, p. 318. Creditors holding voidable preferences, may not vote until surrender, § 578, p. 349. Creditors holding Liens by 'Legal Proceedings, Xullihed by § 67 (f), may not vote until surrender, § 579, p. 349. Creditors not Present, ^ot to vote, § 582, p. 350. Who are "Creditors," § 573, p. 348. jMajority required, majority both in Number and x\mount of Allowed claims Present, § 581, p. 350; § 868, p. 497. Meetings to be held in conformity with Notices, § 589, p. 353. Notice to be given of, § 565, p. 343; § 2288, p. 1398; § 2289, p. 1398. For Other Participation than Voting, claim need not be allowed, § 580, p. 349. Priority creditors to vote onlj^ for Deficit, § 576, p. 349. Preliminary Estimate of values for voting purposes, § 577, p. 349. Proxy or Attorney, creditor may act by and be considered present, § 583, p. 350. Powers of Attorney for Corporations and Partnerships to contain oath of official capacity, § 587, p. 353. Receiver in Stockholder's Liability Suit a creditor of bankrupt stockholder, § 573, p. 348 n. Secured creditors to vote only on Deficit, § 576, p. 349. Several Claims assigned to one person, but one vote, § 574, p. 348. Special Meeting for presentation of Offer of Composition, § 2358, p. 1431. Notice of, § 2358, p. 1431. Valuable feature of modern bankruptcy law, § 571, p. 345. Written Power of Attorney requisite to vote at, § 584, p. 351. Written Power of Attorney not requisite for attorney at law in other mat- ters than voting, § 585, p. 352. MEMBERSHIP IN STOCK EXCHANGES, ETC., AND LICENSES, ETC. Subject to Contingency of Election or of Approval of Public authorities, yet pass to trustee, § 968, p. 542. "Transferable" only by Peculiar and Unusual means, yet may pass to trus- tee, § 969, p. 542. When pass to trustee, § 967, p. 540. MERCANTILE AGENCY False Representations to, property obtained b}% obligation excepted from discharge, § 2752, p. 1619. "False Statements in Writing" to, when bar to discharge, § 2565, p. 1543. Not "Printing" nor "Publishing" Corporations, § 92, p. 87. MERCANTILE AGENCY CORPORATIONS See "Involuntarj- Bankruptc}-." MERCANTILE AGENCY REPORTS Annual Subscription to, claims for, § 809, p. 471. MERCANTILE PURSUITS See "Traders and Trading." MERCHANDISE When it passes to trustee, § 1001, p. 556. 2192 GENERAL INDEX. MERGER Judgment not such merger, as prevents inquiry into original fraudulent or fiduciary liability, § 2749, p. 1618; § 2790, p. 1633. Even though tort waived and judgment be on quasi contract, § 2750, p. 1518. MILEAGE See "Witness Fees and ^lileage." MINING CORPORATIONS Subject to Bankruptcy, § 93, p. 87. Mining inckides Quarrj^ing Corporations, § 93, p. 87. MISAPPROPRIATION While officer or in fiduciary capacity, not discharged, § 2783, p. 1628. MISCONDUCT OF TRUSTEE, AT SALES IN BANKRUPTCY, § 1954, p. 1217.. MISJOINDER OF OBJECTIONS TO CLAIM, § 832, p. 482. MISREPRESENTATION Reclaiming of goods bought upon, § 1879, p. 11-65. MISTAKES Clerical, Disregarded on review, § 3011, p. 1742. Honest, even of law, excuses apparent concealment of assets, § 2490, p. 1504. MONEYS Duty of trustee to deposit in depository, § 909, p. 519. "MONEY HAD AND RECEIVED" Trustee may sue State court's officer for, where lien by legal proceedings nullified by bankruptcy, § 1476, p. 878. MORTGAGE Assumption of by Bankrupt, § 1148, p. 678. By bankrupt to Raise Money to go ihto bankruptcy, § 1504, p. 900. See "Chattel Mortgages." Enforcement of not barred by debtor's discharge, § 2668, p. 1587. To cover Future Advances good, though made within four months, § 1223, p. 725. Included in term "Transfer," § 1332, p. 780. Ordering Cancellation of, on Tender of Amount Due, on petition to re- deem, § 1826, p. 1121. Transfer Absolute in form, but mortgage in fact, § 1200, p. 698. Trustee bound by bankrupt's, § 1145., p. 676; § 1147, p. 677. . When passes to trustee, § 1001, p. 556. Withheld from Record, when void in bankruptcy, § 1222, p. 723. MORTGAGED PREMISES Exemptions claimed in, § 1056, p. 605. See "Leasehold." See "Rent." Rent of, on Marshaling Liens, § 1885, p. 1180 n. Taxes on to be paid by trustee though only one benefited be mortgagee, § 2147, p. 1323. . GENERAI, INDEX. 2193 I MORTGAGEE In Actual Possession "Adverse Claimant," § 167o, p. 1033. See "Chattel Mortgagee." In Possession under mortgage for benefit of creditors is Adverse Claim- ant, § 1668, p. 1032. Summary Jurisdiction, whether anj' over mortgage in possession, on tender of amount due, § 1S2G, p. 1121. MOTION To dismiss claim for failure to make prima facie case, § 835, p. 482. To involuntary petition, § 334, p. 228. MOTIVE Creditor's motive in objecting, immaterial, § 822, p. 476. MULTIFARIOUSNESS Allegation for provisional seizure not to be made in petition itself, § 338, p. 232. Allegation for injunction not to be made in petition, § 361, p. 243. Injunction prayed for in bankruptcy petition, is, § 250, p. 190; § 361, p. 243. Involuntary petition not to be multifarious, § 250, p. 189. Joining Assignee or Receiver with bankrupt in petition, is, § 250, p. 190. Provisional Seizure of property, prayed for in involuntary petition, is, § 250, p. 190; § 338, p. 232. MUNICIPALITY Claims of, for priority, § 2189, p. 1345. MUTUAL DEBTS See "Set-Off and Counterclaim." NATURAL PERSON Any Person Owing Debts May be Voluntary bankrupt, § 37, p. 55. Wage Earners and Fanners excluded from Involuntary Bankruptcy, § 46, p. 59. When ]May be Thrown Involuntarily Into Bankruptcy, § 45, p. 58. NATURE OF BANKRUPTCY ACT Contemplates Celerity of Procedure, § 23, p. 38. Economy of Administration Intended, § 24, p. 39; Introd. (m), p. 14. Not Intended to Cover all Cases of Insolvency, § 21, p. 37. Not to be too Summary, § 23, p. 39. Present Law brings Courts Close to Suitors, § 24, p. 39 n. Also, Introd. (m), p. 14. Remediable and to be fairly construed, § 22, p. 37. Early English Acts, Introd. (h), p. 9. Meaning and Idea of Bankruptcy Law of Today, Infrod. (n), pp. 15, 16, 17. Modern- Bankruptcy Law not Criminal Statute, Introd. (c), p. 2. See "Object of Bankruptcy Law." At Time of American Revolution, Introd. 0), P- 10. NATURE OF BANKKRUPTCY PROCEEDINGS All Persons Bound thereby, § 19, f). 36. Are Proceedings in Equity, § 20, p. 37. Are Proceedings in Rem, also in Personam, § 18, p. 34. Not a mere Civil Suit, § 24, p. 39 n. 2 Rem B— 63 2194 GENERAL INDEX. "NECESSARIES" Property iKjt Exempt as to, § 1035, p. 587. NE EXEAT Writ of, § 373, p. 246. NEGLIGENCE Judgment for, whether Dischargeable, § 2754, p. 1620. Of Landlord, damages for, pass to tenant's trustee, § 1019, p. 568 n. NEGOTIABILITY UNIMPAIRED BY BANKRUPTCY, § 794, p. 464. "NEW CREDIT" See "Set-Off of New Credit by Preferred Creditors." NEW PROMISE Waiving Discharge by, see "Discharge — Revival of Discharged Debts." "NO ASSETS" Dispensing with trustee where no assets exist and no creditors present, § 871, p. 498. NONCONSENTING PARTNER Not made Parfy, no Adjudication on Voluntary Partnership Petition, § 6*8, p. 73. Partnership petition filed by one partner where others do not join, § 71, p. 74. Treated as voluntary as to creditors, involuntary as to nonconsenting partners, § 72, p. 74. NONDISCHARGEABLE DEBTS See "Discharge — Debts Excepted from." NONRESIDENT Service on, when suit is in U. S. District Court, § 1755, p. 1073. Notice on, if court have Actual Possession, § 1891, p. 1183. Notice served outside district on, not sufficient to confer summary juris- diction to make inquiries as to whether "adverse claimants," § 1866, p. 1162. NONRESIDENT DEBTOR Adjudged bankrupt When, § 32, p. 52. NOTARY PUBLIC Certification of Official Character, none rccjuisite, § 614, p. 365. See "Oaths and Acknowledgments." NOTE Allowability of, see "Commercial Paper." Discounting of Bankrupt's, not Preference, § 1287, p. 758. For Future Rent not Provable, § 660, p. 402. For Future Rent Provable if Negotiable and in hands of Innocent Holders or taken as payment, § 661, p. 40:jj Giving of, not Preference, but Paying of is, § 1283, p. 757. Payment of by bankrupt, where Discounted by Creditor, preference, § 1285, p. 758. GENERAL INDEX. 2195 NOTE— Continued. Paj-ment of, by sureties and Endorsers of bankrupt, not preferences, § 1288, p. 759. Paj'ment of, by ]\Iaker, where discounted by bankrupt, where preference, § 1289, p. 759. Proofs of Claim must state whether Note given, § 601, p. 357. Taking of does not Waive Priority, § 2135, p. 1317. ^^'aiving Xote and Proving on Original Consideration, § 602, p. 358 n. NOTICE On Appeal, § 2960, p. 1725. Of Application for Injunction, State Court Officers must have, § 2700, p. 1601. Of application for Receiver, § 381, p. 251. To bankrupt to File Petition for Discharge, referee need not give, § 2428, p. 1467. On Bankrupt in Summary Proceedings, § 23, p. 39; § 1838, p. 1130. None to Bankrupt nor Witness of Application for General Examination, § 1533, p. 916. Court or Officer seeking to enforce lien by legal proceedings must have notice, though lien absolutely void, § 1470, p. 874. To creditor. Cures Defective Scheduling, § 2777, p. 1627. No particular form of notice requisite, § 2778, p. 1627. Due process of Law Whether notice to creditors by mail is, § 12, p. 28. Duty of referee to give, § 510, p. 322. Of Hearing for Injunction, § 363, p. 243. To Lienholders requisite on Marshaling Liens and Selling "Free and Clear," § 1889, p. 1182; § 1980, p. 1229. To Nonjoining Partner, where partner files petition, § 72, p. 77. On Nonresidents, if Court has Actual Possession, § 1890, p. 1183. To Officer is notice to corporation Creditor, § 114, p. 109. Order of Referee to Recite what, if any, given, § 562, p. 340; § 1983, p. 1230 "Order to Show Cause" proper method on Marshaling Liens, and on Sell- ing "Free and Clear," § 1890. p. 1183; § 1982, p. 1229. To Original Claimant, where claim Assigned after proof, § 743, p. 442. Of Petition for Reclamation to be served on trustee, § 1876, p. 116-". Of Petition for Restraining order to be given, unless for good cause dis- pensed with, § 1921, p. 1196. To President, notice to Bank, § 114, p. 109. Reasonable, requisite for Summary Order on Bank-upts and other, 3 183S, p. 1130. Requisite before Removal of Trustee, § 944, p. 525. Service of, where Bankrupt Supplies* List of Creditors claiming more than twelve, § 209, p. 171. Service of Outside District not sufficient to confer jurisdictiori to make inquiry whether "Adverse Claimant," § 1866, p. 1162. Service of, and mere possession of res insufficient to render judgment in personam, § 1892, p. 1183. "Ten Days Notice by Mail" insufficient on Lienholders, on ^larshaling of Liens for sale "free and clear," § 1890, p. 1183; § 1981, p. 1229. 2196 GENERAI. INDEX. NOTICE— Continued. To Trustee Of Fraud in Procuring Discharge is notice to all creditors, § 2816, p. 1648. To Witness proper where Second Examination sought, § 1534, p. 917. On Writ of Error and on Petition to Review, requisite, § 2945, p. 1721; § 2946, p. 1721; § 2958, p. 1725. NOTICES TO CREDITORS Of Abandonment, whether requisite, § 934, p. 524. To All Scheduled creditors and to All Filing Claims, § 567, p. 343. Creditors entitled to onlj^ such as Statute prescribes, § 19, p. 37. Contents of, § 2290, p. 1398. Of Declaration of dividend requisite, § 23S9, p. 1398. Of Discharge, ten daj^s notice bj^ mail, 'requisite, § 2431, p. 1469. On Dismissal of Involuntary Petition, § 419, p. 269. Of Examination of Bankrupt requisite, § 1535, p. 917; § 565, p. 342. Of final meeting, § 2296, p. 1401; § 2288, p. 1398. To be Given by Referee, § 569, p. 344. In Individual Bankruptcj^ must Mention Firm Debts, if Discharge there- from sought, § 2798, p. 1641. By Mail, "Ten days notice," § 565, p. 342; § 566, p. 343; § 1938, p. 1209. ^Meetings to be held in Conformity with, § 589, p. 353. Of Meeting to Consider Offer of Composition, § 2358, p. 1431. Xot Necessary to Binding Efifect of Adjudication, § 19, p. 36. Not Necessary to Binding Effect of Subsequent Proceedings in Adminis- tration of Estate, § 19., p. 36. None for Examination of other Witnesses, § 1536, p. 917. None requisite where Bankrupt Witness upon issues in Controversy be- tween parties, § 1544, p. 921; § 1545, p. 922; § 1546, p. 922. Not requisite for Sale of Perishable property, § 1938, p. 1209; § 1942, p. 1212. Not Requisite for Allowance of Attorney's Fees, § 2053, p. 1275. None on Dismissal After hearing Merits, § 420, p. 271. By Publication, § 568, p. 344. Of all Proposed Sales, § 1938, p. 1209. By Publication, of Discharge, § 2432, p. 1470. Personal Notice of Discharge, not Essential to Bind, § 19, p. 37. Reinstatement of Involuntary Petition on Dismissal without, § 421, p. 271. Requisite on Petition to Redeem, § 1869. p. 1162. To State Object, Time and Place, § 570, p. 344. Where Schedules give No Address, § ^431, p. 1469 n. Ten days notice for Confirmation of Composition, § 2371, p. 1436. Valuable Feature of act, § 564, p. 342; § 1938, p. 1210. Of what matters must ten days dne notice be given to all creditors, § 565, 342; § 928, p. 523; § 1535, p. 917; § 1869; p. 1162; § 1938, p. 1209: § 2288, p. 1398; § 2289, p. 1398; § 2296, p. 1401; § 2358, p. 1431; § 2371, p. 1436; § 2431. p. 1409. "NOTORIOUS POSSESSION" Either Record or Notorious Possession suffices, § 186, p. 153. "Four months" to date from, in act of bankruptc}', § 185. p. 152. Onlj- such requisite as Property Susceptible of, § 187, p. 154. GENERAL IXDKX. 2197 NOVATION, § 1885, p. nSO n. NUMBER Of Petitioning Creditors, see "Parties in Involuntary Proceedings." Of Trustees To be either One or Three, not merely two, § 874, p. 500. Concurrence of Two requisite, where there are three, § 876, p. 500. Whether maj' be subsequent!}' increased, § 875, p. 500. "NUNC PRO TUNC" ORDERS Granting Extension of Time to file Petition for Discharge, § 242G, p. 1465. OATH See "Discharge — Opposition to — Grounds of — 'False Oath.'" See "Verification." OATHS AND ACKNOWLEDGMENTS Who may take, § 588, p. 353; § 614, p. 365. OATH OF OFFICE Of Referee, § 503, p. 320. OBEDIENCE Duty of bankrupt to obey all lawful orders, § 458, p. 303. OBJECT OF BANKRUPTCY LAW, §17, p. 31. Evil against which Directed, Introd. (g), p. 5; Introd. (n), pp. 15. 16, 17. Modern Bankruptcy Law not Criminal Statute, Introd. (c), p. 2. Release of Debts not ]\Iain nor Essential Idea, Introd. (a), p. 1. See "Nature of Bankruptcy Law." Also, see "History." OBJECTIONS TO CLAIMS Creditors and trustee bound bj- bankrupt's contracts and acts, § 783, p. 462. Evidence on, see "Witnesses." Jurisdiction as to, § 818, p. 475. Pleadings and procedure on Deposition for proof of debt, prima facie case for claimant, § 844, p. 484. Creditor to be given due notice of objections of claims, § 839, p. 484. Notice by referee and may be by mail, § 840, p. 484. Jury Trial not to be had, § 849, p. 489. Variance between claim and proof, § 850, p. 489. Trustee's attorney not to act as claimant's attorney, § 851, p. 490. Objections for lack of form and provability not necessarily in writ- ing, § 830, p. 480. Objections for substance, properly in writing, § 831, p. 481. Several Claims not to be objected to in one pleading, § 832, p. 482. Misjoinder of objections to claims, § 832, p. 482. Objections to be Specific, § 833, p. 482. Amendment of objections permissible, § 834, p. 482. Overruling trustee's motion to dismiss claim for failure to make prima facie case, § 835, p. 482. Trustee entitled to all objections bankrupt might have urged, but not limited to such, § 782, p. 461. 2198 GENERAL IXDEX. OBJECTIONS TO CLAIMS— Continued. Who may object On trustee's refusal he may be ordered to object, § 826, p. 479. On trustee's refusal, creditor or bankrupt may be permitted to ob- ject, § 826, p. 479. If creditor proceeds, should use trustee's name, § 827, p. ,479. See "Using Trustee's Name." Though but one creditor in position to object, yet trustee may object, § 828, p. 480. Creditor holding special defense, yet may not object in his own name,' § 829, p. 480. Parties in interest, § 818, p. 475. Before election of trustee, either bankrupt or creditor is a proper party to object, § 819, p. 475. Others may not object, § 820, p. 476. Receiver may not object, § 821, p. 476. Creditor's motive in objecting immaterial, § 822, p. 476. After trustee elected, all objections to be by him or in his name, § 824, p. 477. Creditor may not have re-examination of his own claim, after disallow- ance, § 825, p. 478. Witnesses, see "Witnesses." OBLIGATION Renunciation of, operating as breach of Continuing Contract, § 690, p. 417. OBLIGATIONS OF CONTRACT Not "Impaired" by clause "f of § 67 nullifying liens by legal proceedings, § 1465, p. 871. OBSTRUCTIVE SUITS Brought after bankruptcy court acquires custody, enjoined, § 1805, p. 1100. "OBTAINING PROPERTY ON CREDIT" As bar to discharge, § 2556, p. 1539; § 2557, p. 1440; § 2558, p. 1540; § 2559, p. 1541; § 2560, p. 1542; § 2561, p. 1542; § 2562, p. 1542; § 2563, p. 1542; § 2564, p. 1542; § 2565, p. 1543; § 2566, p. 1543; § 2567, p. 1544; § 2568, p. 1544; § 2569, p. 1544; § 2570, p. 1544. See "Discharge — Opposition to — Grounds of — False Statement in Writ- ing to Obtain Property on Credit." OBTAINING PROPERTY ON FALSE PRETENSES Liabilities for not discharged, § 2746, p. 1616. OCCUPATION See "Use and Occupation." "OFFENSES" AGAINST THE BANKRUPTCY ACT See "Crimes against the Bankrupt Act.'' OFFER Of Composition, see "Composition — Procedure on." GENERAL INDEX. 2199 OFFICER Fraud, Embezzlement or defalcation by, not discharged, § 2783, p. 1628; § 2784, p. 1629. Private Corporation's officer, Fraud, embezzlement or defalcation bj-, whether excepted from Discharge, § 2787, p. 1631. OFFICER OF CORPORATION Acting as Assignee, no Estoppel of Corporation creditor by, § 225, p. 178. Authority of, to file petition, in behalf of corporation, § 219, p. 175. The "Bankrupt" when, § 1527, p. 914; § 1821, p. 1118. Xot the '"Bankrupt," for purposes of indictment for concealment of assets, § 2326, p. 1412. Excluded in' determining whether total creditors less than twelve, § 200, p. 164. '/ General Examination of, § 1527, p. 914. Indictment of for False Oath, § 2325, p. 1412. May be Petitioning Creditor, § 215, p. 174. Notice to President, notice to creditor bank, § 114, p. 109. Schedules to be prepared by, § 480, p. 309. Witness fees of, § 1527, p. 914; § 2126, p. 1309. OFFICERS OF COURT See "Sheriff." OFFICIAL FORMS AND ORDERS IN BANKRUPTCY, § 25, p. 40. Advance Interpretations as to Procedure, § 26, p. 40; § 1048, p. 602. Attorneys' fees, whether allowed where official forms adequate, § 2058, p. 1280. Directory, merely, § 26, p. 41. Followed, § 26, p. 40. See "Forms." Involuntary Petition, official form of, to be adhered to as closely as facts permit, § 259, p. 194. Xot to Override Statute, § 26, p. 40. Prescribed and Amended from time to time by Supreme Court, § 25, p. 40. Where Silent, equity rules followed, § 1932, p. 1208. OFFICIAL ORDERS See "General Orders in Bankruptcy." OFFSETS , Claims not proved within j^ear, nevertheless available as, § 733, p. 439. See "Set-Ofif and Counterclaim." OMITTED CREDITORS After Discharge too Late to Amend Schedules to include, § 2782, p. 1628. OMITTED PARTIES Made Parties on .\ppeal, § 2837, p. 1657. OMITTING ASSETS FROM SCHEDULES See "Discharge — Opposition to — Grounds of — 'Concealment of Assets,' and 'False Oath.' " Instances of, § 2521, p. 1518 n; § 2541, p. 1528 n; § 2541, p. 1529 n; § 2541, p. 1530 n. 2200 GENERAi, inde:x. OMITTING CREDITORS FROM SCHEDULES "False Oath,'' when, § 2542, p. 1531. OPEN ACCOUNTS See '"Accounts." OPERATION OF LAW Composition Releases Debts by, § 2350, p. 1427. Title Vests in trustee by, § 1112, p. 635. "OPINION" Insufficient on Appeal, though may be "Looked To," § 2957, p. 1725; § 3008, p. 1740. Insufficient on Review, unless specialh' made part of the record, § 2840, p. 1660; § 2956, p. 1724. Of lower court may be "looked to," § 2957, p. 1725; § 3008, p. 1740. Xo review of, § 2840, p. 1660. "OPPOSITE PARTY" Taking Deposition of, § 1549, p. 926. Calling of as Witness, whether bound bj^ his testimon}-, § 1549, p. 926. OPPOSITION TO DISCHARGE See "Discharge — Opposition to." ORDER Approving or Disapproving Trustee's report of Exempted property res judicata elsewhere, § 1088, p. 615. To Assign Life Insurance Policy, § 19, p. 36. . "Closing of Estates" by, § 2298, p. 1401. Of Distribution In Composition, § 2393, p. 3 446. Of Dividends, § 2^4, p. 1396. Exceptions to, § 2293, p. 1399. Examination of bankrupt at first meeting, order for not requisite, § 1538, p. 918. Exception to, requisite, else no review, § 2842, p. 1661. "Final," else not appealable, § 2890, p. 1697; § 2922, p. 1712. Final, requisite, else no review, § 2841, p. 1660. t General Examination, order for requisite, § 1537, p. 918; § 1539, p. 918. Interlocutory, no review of, § 2841, p. 1660. Of Referee Disapproval of Election of Trustee, order to be entered, § 894, p. 510. In General, § 561, p. 340. Notice, Appearance and Hearing to be recited, § 562, p. 340; § 1983, p. 1230. Referee may Vacate or Modify, § 563, p. 340. Referee's, must be certified on review, § 2852, p. 1664. By Referee requisite, else No Review, § 2840, p. 1559. Refusal to obey, as bar to discharge, § 2580, p. 1548. Of Sale Requisite, § 1931, p. 1208. ge:ni;r.\l index. 2201 ORDER— Continued. Should provide for Transfer of Rights to Proceeds, § 1970, p. 1226. Should Show Notice and to Whom Given, § 1983, p. 1230. For Summarj'- Surrender of Assets, see ''Summary Orders on Bankrupts and Others." ORDER OF ALLOWANCE Prima facie case for claimant, on petition for re-examination, § 843, p. 484. ORDER OF ALLOWANCE OR DISALLOWANCE Res Judicata, § 791, p. 463. ORD^R ON BANKRUPT To execute assignments and other papers, § 1115, p. 636. To assign interest in insurance policy, § 19, p. 36; § 1009, p. 561; § 1115, p. 636 n. To transfer license, § 1115, p. 637 n. See '"Sumniar}- Orders on. Bankrupts and Others." ORDER OF COURT Disbursements of trustee to be onlj^ on, § 911, p. 519. "ORDER TO SHOW CAUSE" Proper method of Notice to Lienholders in Marshaling liens, a.mi in Sell- ing "Free and Clear," § 1890, p. 1183; § 1982, p. 1229. ORDER OF SURRENDER See "SnmmarA^ Orders on Bankrupts and Others." ORDERS IN BANKRUPTCY See '"General Orders in Bankruptc}'." ORE SMELTING CORPORATIONS See "Manufacturing Corporations." ORIGIN OF BANKRUPTCY LAW See "History." See "Nature of Bankruptcy Law." See "Object of Bankruptcy Law." OSTENSIBLE PARTNER Adjudication of .partnership in name of, § 62, p. 68. "OTHER CASES" Appeals to Supreme Court, in '"Controversies," where would have juris- diction in "other cases," § 3016, p. 1745. Refer to cases covered by act creating Circuit Court of Appeals, § 3017, p. 1745. OWNER Owing on building contract, subject to liens, is "adverse claimant," § 1682, p. 1035. OWNERSHIP Change of, of Petitioning Creditor's claim, § 238, p. 185. 2202 GENERAL INDEX. "OWING" Not necessary to be Due nor Damages Liquidated, § 673, p. 410. See "Claims Xot Owing at Time of Filing Bankruptcy Petition." "OWING BUT NOT YET DUE" How such debt is set forth in proof of claim, § 599, p. 357. Such debts included in bankrupt's liabilities, in determining insolvency, § 1365, p. 794. PAID-UP POLICY May not compel third party interested to accept a paid-up policy, § 1019, p. 562. PAPER MAKING CORPORATIONS See "Manufacturing Corporations." PAPERS Relating to bankrupt's property pass to trustee, § 955, p. 536. If not so relating, do not pass, § 957, p. 536. PARENTAL RIGHT Property belonging to bankrupt by, passes to trustee, § 998, p. 556. PARTIES IN INVOLUNTARY PROCEEDINGS Actual connivance at act essential to estoppel, § 223, p. 177. Actual connivance at or express assent to -general assignment as estoppel, § 224, p. 178. Authority of corporate officer to file petition, § 219, p. 175. Assisting to procure involuntary adjudication, apportionment of attorneys' fees, § 2066, p. 1283. Bankrupt to Supply List of Creditors, if he cl?ims averment of less than twelve to be erroneous, § 208, p. 171. Change of Ownership of petitioning creditor's claims. § 238, p. 185. Creditors may join and plead separately, § 211, p. 172. * Creditors may join although sufficient alreridy petitioning, § 211, p. 172. Corporation creditor not estopped by officer acting as assignee, § 225, p. 178. Creditor's claim not to be split up to obtain jurisdictional number, § 204, p. 167. Creditors assenting to General Assignment, § 200, p. 164 n; § 22-1, p. 178. Creditors holding provable claims and only such competent, § 227, p. 179. Claims arising after filing of petition insufficient, § 229, p. 179. Contingent claims insufficient, § 230, p. 179. Attaching creditors, and other creditors obtaining liens by legal pro- ceedings, § 234, p. 183. Preferred creditors competent, § 233, p. 182. Sureties' claims, § 231, p. 179. Unliquidated claims sufficient if provable, § 232, p. ISO. Date of Adjudication determines whether requisite number have joined. § 201, p. 165. Date of Filing Petition determines how many must join, § 202, p. 165. Directors and Officers excluded, § 200, p. 3 64. Diflferent claims purchased in by one creditor lose separate identity, § 203, p. 166. GENERAL INDEX. 2203 PARTIES IN INVOLUNTARY PROCEEDINGS— Continued. No Dismissal except on Merits, if any creditor willing to take up contest, § 212, p. 172. Disqualification of part of petitioning creditors, § 273, p. 18.5. No election of remedies because of previous attack on preferences in State Court, § 226, p. 178. Employees and Relatives excluded, § 199, p. 164. Erroneous averment of less than tvirelve, § 207, p. 170. Estoppel of creditors by Connivance, § 221, p. 175. Fraudulently preferred creditors under law of 18G7, not counted in, § 200, p. 164 n. How many creditors and to what amount must join as petitioners, § 197, p. 163. Intervening of creditors to resist adjudication, see "Intervening of Cred- itors — To Resist Adjudication." -^Joining of Additional creditors, § 210, p. 172. Mere proving of claims under general assignment or receivership no es- toppel, § 222, p. 176. Claims of Petitioners must be provable at time of filing petition, § 228, p. 179. Only creditors at Time of Commission of act, competent petitioners, § 214, p. 173. Officers and Directors competent petitioners, § 215, p. 174. Only creditors who might have been petitioners to be counted, § 206, p. 170. Payment or Assignment of claim after filing petition, ineffectual to change number who must join, § 202, p. 165. Preferred creditors Xo be counted in if necessary, § 205, p. 167. Pref^erred creditors to be excluded if they defeat jurisdiction, § 205, p. 167. Partnership creditors competent to petition against individual partner, § 217, p. 175. Partnership as petitioning creditor in firm name, § 218, p. 175. Relatives, Competent Petitioners, § 215, p. 174. -^ Requirements as to number of creditors, etc., whether jurisdictional, § 198, p. 163. Service of Notice, where averment of less than twelve erroneous and bank- rupt supplies list. § 209, p. 171. Solicitation by bankrupt to file involuntary petition not improper, § 216, p. 174. Solicitation by creditors not to resist adjudication, not improper, § 216, p. 174. Secured creditors competent to extent of deficit, § 220, p. 175. Small Claims on current accounts of groceries, etc., § 200, p. 164 n. -Time of Joining of additional Creditors, § 213, p. 172. Validity of Petitioning Creditors claim may be disputed, § 235, p. 183. Withdrawal of petitioning creditors, § 236, p. 184. PARTNER Conversion by, whether discharged, § 2785, p. 1629. Imputed Acts of Bankruptcy by, § 171, p. 144. "Written Admissions" by, as acts of bankruptcy, § 169, p. 143. PARTNERSHIP Act of bankruptcy, none requisite in petition by one partner even where not all join, § 73, p. 77. 2204 GENERAL INDEX. PARTNERSHIP— Continued. Actual Partnership, alone, subject to bankruptcy, § 63, p. 68; § 2239, p. 1370. Adjudication of in Firm name, § 61, p. 67. Adjudication of, without Adjudication of Individual Members, § 61, p. 67. Adjudication in Firm name, nonbankrupt partner's estate brought in though •farmer or wage earner, § 65, p. 72. Adjudication of member requisite to avoid liens by legal proceedings on member's individual property, § 1461, p. 867. Adjudication of member requisite to avoid preferential transfers of mem- ber's individual property, § 1393, p. 821 n. Administrator of deceased partner in possession of firm assets "Adverse claimant," § 1671, p. 1032. "Before Final Settlement," Subject to bankruptcy, § 57, p. 64. Burden of Proof of existence of rests on Petitioning Creditors, § 63, p. 69. "By holding out," not within Act, § 63, p. 68; § 2239, p. 1370. Creditors may not intervene against a partnership petition filed by one partner, § 76, p. 78. Death of Partner, winding up of insolvent partnership on account of. not act of bankruptcy, § 159, p. 137. Debts cf Secret partner's claim not, § 2247, p. 1372. Assumed by partner, provable against individual estate, § 2264, p. 1386. Are "provable" against individual member, § 2237, p. 1368. Individual debts provable against, § 2237, p. 1368. Obligation signed by firm name prima facie allowable as firm debt, § 2240, p. 1370. Individual debt assumed by firm, § 2241, p. 1370; § 2242, p. 1371. Loan to enable partner to furnish contributory share not firm debt, § 2243. p. 1371. i\Iere joint obligations, not amounting to partnership debts, § 2244, p. 1371. Parol evidence to show obligations to be firm debts, § 2245, p. 1372. Partnership released by creditor's acceptance of individual obligation, § 2246, p. 1372. During Continuance of Partnership, subject to bankruptcy, § 57, p. 64. As "Entities" § 59, p. 65. "Final Settlement" of, when, § 58, p. 65. Where firm alone adjudicated Individual estates brought in, § 65, p. 71; § 2231, p. 1365. Consent not necessary, § 2232, p. 1366. Partnership trustee, trustee also of individual estates, § 2233, p. 1366. Separate accounts to be kept and joint expenses apportioned, .§ 2234, p. 1367. Firm and Individual Estates See "Distribution — In Partnership Bankruptcies." Individual IMembers Joinable with, in either voluntary or involuntary pro- ceedings, § 64, p. 69. Individual petition not amendable to include, § 69, p. 73. Insanity or Death of one partner. Jurisdiction not defeated, § 97, p. 93. Insolvency of individual partners to be alleged in involuntary partnership petitions, § 247, p. 189. Insolvent, not, unless all Partners insolvent, § 1348, p. 789. Insolvent, when, § 60, p. 67; § 1348, p. 789. GENERAI, INDKX. 2205 PARTNERSHIP— Continued. Xotice to Xunjoining- partners where partner files petition, § 72, p. 77. Whether partner may lile ordinary involuntary petition, § 75, p. 78. In partnership bankruptcies only partnership creditors to vote for trus- tee, § 866, p. 497. Partnership creditors competent to petition against individual partners, § 217, p. 175. As Petitioning Creditor in firm name, § 218, p. 175. Petition by one partner where remaining partner does not join, § 71, p. 74. Powers of Attorney for, to contain Oath of official capacity, § 587, p. 353. IMay be a Private Banker, § 79, p. 79. Property of Originally individual property becoming firm propertj', § 2235, p. 1367; § 2236, p. 1367. Secret or Silent partners on discovery brought in, § 70, p. 74. Selling of Partnership Shares , Where one partner in insolvent firm sells out to other who thereafter becomes bankrupt, § 2269, p. 1387. If firm creditors assent to assumption, they become individual cred- itors, § 2270, p. 1388. W^here sale made to enable remaining partner to claim exemptions, § 2271, p. 1389. Retiring partner surety for remaining partner, § 2272, p. 1390. Retiring partner entitled to subrogation to debts he pays, § 2272, p. 1390. Retiring partner's claim for purchase price of share, § 2273, p. 1391. Whether preferential transfer by partnership voidable where remaining partner alone in bankruptcy, § 2274, p. 1391. Where one partner of insolvent firm sells out to other and himself be- comes bankrupt, § 2275, p. 1391. Where partnership interest transferred to third person, partner be- coming bankrupt, § 2276, p. 1392. Subject to Involuntary Bankruptcy, § 56, p. 64. Suits for Dissolution of, when not superseded by bankruptcy, § 1590, p. 963. Taxes of, in individual bankruptcy, § 2151, p. 1329. Though nonbankrupt partner be wage earner or farmer, yet his estate brought in, § 65, p. 72. i\Ia3' be Voluntary bankrupt, § 39, p. 56. PARTNERSHIP BANKRUPTCY Act of one partner bars iirm discharge when, § 2793, p. 1633. Discharge of Individual in None unless individual adjudication, § 2422. p. 1465. Discharge of individunl partner, where firm and other partners not dis- charged, § 2805, p. 1643. Where firm alone adjudicated Depletion of individual estate of partner, not preference, § 1291, p. 759. Lien by Legal Proceedings on individual member's property, not nul- lified, unless individual adjudged bankrupt, § 146,1, p. 867; § 2266, p. 1386. No individual discharge of member, in. unless individually adjudged bank- rupt, § 279S, p. 1633. 2206 GENERAL INDEX. PARTNERSHIP BANKRUPTCY— Continued. Marshaling of firm and individual estates \Miether "proceedings in " bankruptc}' proper" or "controversies," § 2867, p. 1683; § 2879, p. 1689. Partnership entitled to discharge, § 2791, p. 1633. Preference by individual member, not preference in, where member nor adjudged bankrupt, § 1291, p. 759. PARTNERSHIP DEBTS In Individual bankruptcy, see "Discharge — Of Partnership Debts in indi- vidual Bankruptc}^ of a Member." PARTNERSHIP AND INDIVIDUAL DEBTS IN PARTNERSHIP AND INDIVIDUAL BANKRUPTCIES Partnership creditors competent as petitioning creditors against Individual partner, § 217, p. 175. PARTNERSHIP AND INDIVIDUAL ESTATES See "Partnership Bankruptcy." See "Individual Bankruptcy." See "Distribution — In Partnership Bankruptcy." See "Distribution — In Individual Bankruptcy." PARTNERSHIP PETITION Alleged but not real partner in involuntary partnership petition, whether "Adverse Claimants" subject to Summary Seizures of property, § 1669, p. 1032. Defenses available to Nonjoining Partner Insolvency available, § 74, p. 77. Jury on Issue of Insolvency available, § 74, p. 77. Not all defenses are available, § 74, p. 77. Service of process where filed b}^ one partner, § 310, p. 220. PARTIES On Appeal and Error • See "Appeal and Error — Parties on." PARTITION Whether Trustee may maintain proceedings for, § 1711, p. 1056. PART PAYMENT On account, insufficient to revive debt, § 2716, p. 1606. PARTY See "Opposite Part}-." "PARTY IN INTEREST" Only, competent to petition for Setting Aside of Composition, § 2404, p. 1452. Creditor who has failed to prove claim within year, included, § 2808, p. 1645. Discharge, party in interest maj- move to revoke, § 2807, p. 1645. Discharge, to oppose must be party in interest, § 2459, p. 14SS. ]\Iust have been creditor at time of bankruptcy, § 2809, p. 1645. GENERAL INDEX. 2207 "PARTY IN INTEREST"— Continued. Xeed not have proved nor have "provable claim," § 2461, p. 1488. Pecuniary interest requisite to oppose discharge, § 2460, p. 1488. Purchaser of discharged claim not, § 2810, p. 1645. Where simultaneous bankruptcy proceedings pending, § 297, p. 215. PATENTS Pass to trustee, § 958, p. 536. Pending Applications for do not pass to trustee, § 959, p. 537. PAYMENT Petitioning Creditor's Claim, Payment of inefifectual to diminish number requisite for joining in petition, § 202, p. 165. Recognition, Enforcement and Changes in Law^ as to Paj-ment not a Del- egation of Legislative Power, § 11, p. 27. Trustee may Plead, § 1202, p. 698. PAY-ROLL Subrogation of persons advancing money to meet, § 2184, p. 1344. Whether to compete with workmen's own labor claims, § 2279, p. 1393.' PENAL FINES Judgments for, not provable, § 683, p. 414. PENALTY Infliction of, for taking benefit of act prohibited, § 474, p. 306. Refusal of discharge is not a, § 2465, p. 1489. PENDING SUITS BY AND AGAINST BANKRUPT Against bankrupt, § 1639, p. 1010. Sta}' oi, -see "Discharge — Staying Suits against Bankrupt to Permit Interposition of." Subrogation of trustee to' creditor's lien, where lien preserved, § 1639, p. 1010. By Bankrupt, § 1640, p. 1011. Substitution of Trustee, § 1640, p. 1011. See, also, "Pending Suits by and against Bankrupt — Intervening of Trustee in." Intervening and Substitution of Trustee in Defendant not released by failure of trustee to assume prosecution, § 1644, p. 1011. Does not Oust State Court, § 1596, p. 964. Where Lien by Legal Proceedings Nullified by Bankruptcy, § 1471, p. 874. Manner of Intervention, § 1649, p. 1015. Not usually proper, except where property involved, § 1646, p. 1012. Only Suits on rights passing to trustee, authorized, § 1643, p. 1011. Ordering trustee to apply for leave to defend, § 1645, p. 1012. Preliminary^ Order of Approval Proper, § 899, p. 516; § 1641, p. 1011. Probability of Success should appear, § 1642, p. 1011. State Courts will administer bankruptcy law, § 1597, p. 964. State Court governed by State law, and Judicial Policy, in granting or refusing application, § 1648, p. 1013. 2208 GE;NE:RAr, index. | PENDING SUITS BY AND AGAINST BANKRUPT— Continued. Stay of Pending suit, § IGJl, p. 1015. Intervening in Suits in personam, § 1647, p. 1013. Trustee not confined to rights accorded by State Law, § 1597, p. 964. Trustee bound as any otiier litigant, on intervention, § 1650, p. 1015. PERCENTAGE See "Greater Percentage." PERISHABLE ASSETS Receivers may sell, § 386, p. 254. Sale of, may be Without Notice, § 1942, p. 1212. "PERISHABILITY" Meaning of, § 1944, p. 1212. "PERMIT" Meaning of Term as Act of Bankruptcj-, § 107, p. 105. PERSONAL INJURIES Judgments for, provable, § 680, p. 413. Payments or other transfers of claims for, not preferences, § 1309, p. 767. Rights of Action for, do not pass, § 1020, p. 569. PERSONS SECONDARILY LIABLE See "Sureties and Guarantors." PERSONAL SKILL OR CONFIDENCE Uncompleted contracts involving, do not pass to trustee, § 994, p. 554; § 1021, p. 570. "PERSONAM" Judgment in See "Judgment in Personam." PETITION For adjudication, see "Bankruptcj^ Petition." For Confirmation of composition, § 2363, p. 1434. For Discharge, see "Discharge — Petition for." See "Involuntary Petition." See "Voluntary Petition." For Redeeming from Liens, § 1869, p. 1162. For Reclamation, Surrender or Redelivery, § 1876, p. 1164. For Restraining Order To be Filed in bankruptcy proceedings themselves, § 1919, p. 1195. Notice to be given, § 1921, p. 1196. Notice dispensed with for good cause, § 1921, p. 1196. Requisite, to obtain restraining order, § 1919, p. 1195. To be verified, § 1920, p. 1196. For Review "Allowance" of not requisite, § 2947, p. 1722. Delay, when excusable, § 2995, p. 1737; § 2996, p. 1737. Dismissed for laches, § 2994, p. 1736. Filing of requisite, § 2947, p. 1722. GENERAL INDEX. 2209 PETITIONS— Continued. Issue on which erroneous order made, how far to be set forth in, § 2949, p. 1722. No Express time for, § 2993, p. 1736. Order Complained of to be set forth in, § 2948, p. 1722. Procedure on, § 2946, p. 1721. For Review of Referee's Order Requisite, § 2846, p. 1662. Errors Complained of to be set forth, § 2847, p. 1662. New facts may not be set up changing case, § 2848, p. 1662. Should pray for review of referee's Order, § 2849, p. 1663. Time limited for filing, § 2851, p. 1663. To be Filed with Referee, § 2850, p. 1663. For Revocation of Discharge, § 2822, p. 1649. To Sell, § 1931, p. 1207. See "Sale in B*ankruptcy." To Set Aside Composition, § 2406, p. 1453. For Summary Order on Bankrupts and Others, § 1837, p. 1129. PETITIONING CREDITORS Adjudication not res adjudicata as to amount or A'alidity of claim of, § 447, p. 291; § 790, p. 463. Attorneys' fees of, see "Attorneys' Fees in Bankruptcy Proceedings — Peti- tioning Creditors' Attorneys' Fees."' Burden of Proof of partnership rests on. § 63, p. 69. Costs and Expenses of Receivership taxable against, § 398, p. 259. Dismissal of Involuntary Petition, none, if any petitioning creditor objects, § 422, p. 271. How many must join, etc., see "Parties in Involuntary Proceedings." Returning Preliminary Deposit to, § 2015, p. 1252; § 2023, p. 1257. Schedules to be prepared by, if bankrupt fails to file same, § 478, p. 309. "PIECE WORKERS" Entitled to Priority, § 2175, p. 1340. PLEADINGS All pleadings of fact to be verified, § 26, p. 41 n. Specifications in opposition to discharge are, § 2583, p. 1549. PLEADINGS BEFORE REFEREE See "Referee in Bankruptcy." See "Summary Orders on Bankrupts and Others." See "Marshaling of Liens." See "Sales in Bankruptcy." PLEADING AND PRACTICE All essential facts of jurisdiction and cause to be pleaded, § 239, p. 185. Allegations in mere w^ords of statute, § 255, p. 191; § 2608, p. 1558. Alternative or disjunctive allegations improper, § 256, p. 192; § 2609, p. 1561. Argumentative pleading, § 2603, p. 1555. "Certainty of Indictment," when to be pleaded with, § 2G05, p. 1558. Confirmation of composition, in code states, pleadable as "discharge duly made," § 2349, p. 1427. 2 Rem B— 64 2210 GENERAI, INDDX. PLEADING AND PRACTICE— Continued. On Discharge, see "Discharge — Pleading and Proof of." Evidence not to be pleaded, § 254, p. 191; § 2606, p. 1558. Exemptions — contests as to — what pleadings necessary, § 1083, p. 614. Facts, not legal conclusions nor evidence, to be pleaded, § 252, p. 191; § 254, p. 191; § 2607, p. 1558. Facts not to be alleged argumentatively, § 253, p. 191. Facts to be set forth definitely and certainly, § 257, p. 192. Indefiniteness, § 257, p. 192; § 2603, p. 1555; § 2604, p. 1557. Joinder Of acts of bankruptcy, § 249, p. 189. Of grounds of opposition to discharge, § 2599, p. 1554. Of objections to claims, § 832, p. 482. Legal Conclusions not to be pleaded, § 252, p. 191; § 1767, p. 1075; § 2607, p. 1558; § 2608, p. 1558. See "Marshaling of Liens." In Marshaling of Liens upon Property in Custody of Bankruptcy Court Form of setting up lien, § 1894, p. 1184; § 1985, p. 1230. Where rights under state statute dependent on resort to special reme- dies, § 1897, p. 1186. Rights of priority under State statutes as related to marshaling of liens on property, § 1898, p. 1186. "Surrender of Preference" on distinct transaction not to be required as prerequisite to validity of lien which itself is not a, preference, § 1899, p. 1187. Multifariousness in petition, § 250, p. 189. On Opposition to Discharge, see "Discharge — Opposition to — Specifica- tions." Petition in bankruptcy a pleading, and to conform to usual rules, § 251, p. 191. Pleadings in bankruptcy to be according to usual rules, § 239, p. 185. In Plenary Actions against adverse Claimants Nature of, § 1725, p. 1063. Receivers may be appointed, § 1726, p. 1063. Writs of injunction issuable, § 1727, p. 1064. Retransfer or surrender of choses in action may be ordered, § 1728', p. 1064. Trustee not confined to suits in equit}^, and in proper case may sue at law for recovery of property or its value, § 1729, p. 1064. Should sue at law unless remedy inadequate, § 1730, p. 1064. To Set Aside Fraudulent Transfers Petition to show inadequacy of assets, § 1731, p. 1064. Return of execution unsatisfied, not always prerequisite, § '1732, p. 1065. Insolvency not necessary where actual intent to defraud proved, § 1733, p. 1067. "Insolvency" here means inadequacy of _ assets, not mere inability to pay "in due course," § 1734, p. 1067. Allowance of claim, subrogation and reimbursement of transferee on setting aside constructively fraudulent transfer, § 1734J/2, p. 1067. Pleadings to show trustee's representative capacity, § 1735, p. 1068. GEXERAL INDEX. 2211 PLEADING AND PRACTICE— Continued. Trustee presumed to represent creditors and to be authorized to act, though no claims proved, § 1736, p. 1068. Tender of actual consideration paid, not necessary, § 1737, p. 1069. Whether transfer voidable only as to some creditors, nevertheless, avoided as to all, § 1738, p. 1069. Charging same transaction in alternative, fraudulent or preferential, not inconsistent, § 1739, p. 1069. All matters proper in creditor's bill, proper here, § 1740, p. 1070. Both bankrupt and transferee in fraudulent transfer proper par- ties, though bankrupt and intermediate transferee not necessary, § 1741, p. 1070. Several acts committed with common design, joinable, § 1742, p. 1070. Property to be shown to belong to estate, § 1743, p. 1070. Fraiidulent intent to be alleged and proved, § 1744, p. 1071. Fraud, a question of fact, § 1745, p. 1071. Burden of proof, § 1746, p. 1071. Schedules and general examination of bankrupt inadmissible against transferee, § 1747, p. 1071. Appraisal in bankruptcy inadmissible against transferee, § 1748, p. 1071. Declarations of transferrer after transfer, § 1749, p. 1071. Failure to produce important and accessible evidence, presumption of fraud, § 1750, p. 1072. Existence of other creditors at time of transfer to be shown, im- less, § 1751, p. 1072. Collateral attack on collusive receiverships, § 1752, p. 1072. Suing in U. S. District Court, suit follows usual course, § 1753, p. 1072. Allegation of Diverse Citizenship not requisite, § 1754, p. 1073. Service on nonresidents when suit in U. S. District Court, § 1755, p. 1073. Security for costs and injunction bond when suit in U. S. District Court, § 1756, p. 1073. Answering under Oath requiring testimony to overcome, § 1757, p. 1073. If suit in U. S. District Court, part}' not to impeach own witness, § 1758, p. 1073. State statutes permitting cross-examination of adverse party, etc., not followed in U. S. Court, § 1759, p. 1073. Where trustee sues in State Court, suit follows usual course and I-virtics have usual rights, there, § 1760, p. 1074. To Set Aside and Recover Preferences Representative capacity of trustee to be alleged, § 1761, p. 1074. Trustee presumed to represent creditors and to be authorized to act though no claims proved, § 1736, p. 1068. See, also, "Pleadings and Practice, in Plenary Actions against Ad- verse Claimants to Set Aside Fraudulent Transfers." Each element of preference to be alleged and proved, § 1762, p. 1074. Insolvency at time of transfer, § 1763, p. 1075. Reasonable Cause of Belief, § 1764, p. 1075. 2212 GENERAL INDEX. PLEADING AND PRACTICE— Continued. Effect of transfer to give greater percentage of debt, § 1765, p. 1075. Antecedent Debt, § 1766, p. 1075. Facts, not evidence, nor legal conclusions, to be pleaded, § 1767, p. 1075. Burden of proof of each element on trustee, § 1768, p. 1076. Demand not requisite, § 1769, p. 1076. Nor tender back, § 1770, p. 1076. Procedure on Summary petitions against bankrupts and other, § 1831, p. 1126. Revivor of Debt by New Promise, how to be pleaded, § 2728, p. 1608.- In Selling Free from Liens See "Sales in Bankruptcy — Selling Free from Liens." Separately stating each ground of opposition to discharge, § 2600, p. 1554. See "Summary Orders on Bankrupts and Others." See "Summary Proceedings." Ultimate facts to be pleaded not evidence, § 254, p. 191. What are "Summary Process" and "Summary Proceedings," § 1832, p. 1J26. PLEDGE Actual, but voidable sale, disguised as, § 1228, p. 726. Of Life Insurance Policy, interest of bankrupt passes to trustee, § 1006, p. 560. Included in term "transfer," § 1332, p. 780. Sale by pledgee not enjoined unless fraud or oppression exists, § 1913, p. 1192. Setting apart or delivery sufficient to pass title, § 1146, p. 676. Surplus of collateral applied by pledgee on other claim, when preference, § 1298, p. 763. PLEDGEE Sale by, not restrained, unless fraud or oppression exists, § 1913, p. 1192. PLENARY ACTION Adverse Claimants in possession, entitled to, § 1796, p. 1089. Debtors of bankrupt entitled to, § 1796, p. 1089. Referee no Jurisdiction to Enterlain, § 545, p. 333; § 1695, p. 1094. PLENARY ACTION BY TRUSTEE Against Adverse Claimant Nature of, § 1725, p. 1063. Receivers appointed, § 1726, p. 1063. Retransfer or Surrender of Ch'oses in Action ordered in, § 1728, p. 1064. Writs of Injunction and Sequestration issuable in, § 1727, p. 1064. In State Courts To recover assets transferred contrary to Bankruptcy Act, presents "Federal Question," reviewable by Supreme Court, § 3026, p. 1749. Before Amendment of 1903 not to be brought in bankruptcy court, § 1653, p. 1023. Defendant's Offset exceeding trustee's claim, no Judgment against Trustee for Fxcess, § 1187, p. 694. GEXERAI, INDEX. 2213 PLENARY ACTION BY TRUSTEE— Continued. To Recover Preferential and Fraudulent Transfers, may be brought in Bankruptcy Court, § 1688, p. 1039; § 1690, p. 1041; § 1723, p. 1062. To Recover Debts not to be brought in bankruptcy court, § 1694, p. 1043. Not Confined to Suits in Equity, and in proper case may sue at law for recovery of property or its value, § 1729, p. 1064. Should sue at law unless remedy inadequate, § 1730, p. 1064. Suing in U. S. District Court, suit follows usual course, § 1753, p. 1072. Allegation of diverse citizenship not requisite, § 1754, p. 1073. Service on Nonresidents when suit in U. S. District Court, § 1755, p. 1073. Security for costs and injunction bond when suit in U. S. District Court, § 1756, p. 1073. Answering under oath requiring testimony to overcome, § 1757, p. 1073. If suit in U. S. District Court, party not to impeach own witness, § 1758, p. 1073. State statutes permitting cross-examination of adverse party, etc., not fol- lowed, § 1759, p. 1073. Trustee suing in State Court, suit follows usual course and parties have usual rights there, § 1760, p. 1074. Limitation of, see "Limitation of Actions." "Controversies," and not "Bankruptcy Proceedings" Proper, § 2874, p. 1686. In U. S. District Court, Appealable, as "controversy," § 2927, p. 1714. Limitation of, § 1789, p. 1083. PLENARY JURISDICTION OF BANKRUPTCY COURT None over adverse claimants before amendment of 1903, § 1653, p. 1023. Tn certain cases conferred by the amendment of 1903, § 1688, p. 1039. See "Plenary Action by Trustee against Adverse Claimant." POSSESSION Constructive, "Custodia legis," § 1807, p. 1107. Of Exempt property, see "Exemptions — Jurisdiction over." Of Res, test of summary Jurisdiction, § 1796, p. 1088; § 1807, p. 1101. Taking of After-acquired property. § 1238, p. 735. Curing lack of Record, § 1236, p. 734, § 1384. p. 812. Whether Lien Begins at Date of, or Reverts, determined by State law, § 1237, p. 735. Preferences as Affected by, within four months, under unfiled mort- gages, or mortgages covering after-acquired propert}^ § 1384, p. 812. POSTPONING Allowance oi claims. § 816, p. 475; § 864, p. 496. Election of trustee, § 863, p. 496. None of discharge hearing to await outcome of fraudulent conveyance suit, § 2656, p. 1578. POVERTY AFFIDAVITS, § 287, p. 206. "False oath" in, § 2528, p. 1524. Showing Demanded in addition to, § 288, p. 206. "POWERS" Exercisable for bankrupt's own benefit pass to trustee, § 960, p. 537. Not Exercisable for bankrupt's benefit do not pass, § 961, p. 537, 2214 CliNlJKAI, INDliX. POWER OF ATTORNEY Creditor may act by, § 583, p. 350. For Corporations and Partnerships to contain oath of official capacity, § 587, p. 353. Written, requisite to vote, § 584, p. 351. Written, not requisite for attorney at law in other matters than voting, § 585, p.. 352. PRACTICE BEFORE REFEREE See "Referee in Bankruptcy." See "Pleading and Practice." PRAYER Involuntary petition must contain prayer for adjudication, § 276, p. 202. PRAYER FOR REVERSAL Record on appeal must show, § 2970, p. 1729. "PRECEDING SIX MONTHS OR GREATER PORTION THEREOF" Defined, § 34, p. 54. PRE-EXISTING DEBT Creditor's claim must be, as preference, § 123, p. 111. PREFERENCES As act of Bankruptcy, see "Acts of Bankruptcy — Preferences as." Artisans' liens are not, § 1158, p. 683. Assignment as act of bankruptcy need not work preference, § 149, p. 129. Definition of, § 1276, p. 754. "Preferences," "voidable preferences" and "preferences" that are "acts of bankruptcy," to be distinguished, § 1277, p. 755; § 1383, p. 812; § 1394, p. 821. Elements of — Appropriaticn of Assets and Depletion of Insolvent Fund Implied, § 1278, p. 756. Entirely fictitious transactions, § 1279, p. 756. Performance of labor in payment of debt, § 1280, p. 757. Liens given within four months in fulfillment of promise made before, § 1281, p. 757. No preference by "judgment" unless judgment operates to create lien or otherwise to appropriate property, § 1282, p. 757. Giving of check or note not preference, but paying of it is, § 1283, p. 757. Payment actually made not to be applied to evade preference statute,. § 1284, p. 758. Payment by bankrv^pt of own note discounted by creditor, a preference, § 1285, p. 758. Return of Loan made for specific purpose, not preference, § 12S6, p. 758. Discounting of bankrupt's note, not preference, § 1287, p. 758. Transfers of or liens on property that might have been claimed exempt but not claimed, § 1293, p. 700. Property transferred to be such as otherwise would have belonged to estate. § 1294, p. 760. Mere exchanges of property, changes in form and transfers based on- present consideration, not preferences, § 1295, p. 760. GENERAI. INDEX. 2215 PREFERENCES— Continued. Xct result- after becoming insolvent and within four months, the test, § 1296, p. 761. Deposits in Bank subject to check, § 1297, p. 762. Surplus of Collateral Applied by Pledgee on other claims, § 1298, p. 763. Any kind of property may be subject to preferences, § 1299, p. 763. Any method of depleting assets, sufficient: indirect preferences, § 1300, p. 763. Purchaser from bankrupt using purchase price to pay ofif preferential liens, § 1301, p. 764. Return of goods to seller where no right of rescission exists, prefer- ence, § 1302, p. 764. Transfers to indemnify sureties and other indirect preferences, § 1303, p. 764. Creditor selling claim to effect preference, by purchaser using claim to offset purchase price, § 1181, p. 692; § 1303, p. 764 n. Elements of — Application on Claim of a Creditor Implies application upon a creditor's claim, § 1304, p. 766. If claim fraudulent or fictitious, transfer not preference, § 1305, p. 766. Paying off liens on exempt property — when not preference, § 1306, p. 766. Return of Goods to seller where right of rescission exists, not prefer- ence, § 1307, p. 766. One benefited must hold provable claim, else not preference, § 1308, p. 767. Payments or other transfers on claims for personal injury, etc., not preferences, § 1309, p. 767. Payments or other transfers enuring to benefit of sureties, endorsers, etc., of bankrupt, even before principal's default or before payment by sureties — preferences, § 1310, p. 767. Payment or other- transfer to present owner of claim, preference to both present owner and also to transferrer, if transferrer remains bound as surety or endorser, § 1311, p. 767. Partner selling out to remaining partner, not preference to individual creditor, § 1312, p. 769. When stock broker's customer becomes "creditor," § 1313, p. 769. Elements of — Antecedent Debt Creditor's claim must have been pre-existing debt, § 1314, p. 770. Cash transactions not preferences, § 1315, p. 773. Bona Fide Sales, whether for cash or on credit, not preferences, § 1316, p. 773. Payment of current rent, not preference, § 1317, p. 773. Payment of interest in advance not preference, § 1318, p. 774. Present transfers to secure future advances, not preferences, § 1319, p. 774. Mere Exchanges of Property or Security, not preferences, § 1320, p. 774. But if new securities exceed value of old, preference arises, § 1321, p. 775. If securities remain same but indebtedness secured mcreased by ante- cedent debts, preference as to antecedent indebtedness, § 1322, p. 776. 2216 ge;ne;rai, index. PREFERENCES— Continued. If securities and debt both increased but increase of debt be for present consideration no preference arises, § 1323, p. 776. Withdrawal of old security and substitution of new must be contempo- raneous, § 1324, p. 776. Payment of secured debt, thereby releasing securities, § 1325, p. 776. Liens or other transfers, partly on present consideration, partly on past, not wholly void but valid pro tanto, § 1326, p. 777. Protection of Liens Given on Presently Passing Consideration, etc., § 1327, p. 777. Elements of — "Transfer," or "procuring" or "suffering" of judgment Requisite, § 1328, p. 777. Voluntary Action of Debtor Requisite to Preference by way of "Transfer," § 1329, p. 778. Definition of "transfer," § 1330, p. 779. Payments of Money "transfers," § 1331, p. 779. "Transfer" includes, also, pledge, mortgage, gift, security, etc., § 1332, p. 780. Performance of labor, not "transfer," § 1333, p. 781. When "transfer" consummated, where recording "required," § 1334, p. 782. "Procuring or Suffering" judgment, § 1335, p. 782. Warrants of attorney to confess judgment, continuing consents, § 1336, p. 783. Debtor's Voluntary Action not Implied in Cases of Preferences by way of Judgments, § 1337, p. 783. Payment of Proceeds of Execution Sale to Creditor Sufficient without debtor's Voluntary Action, § 1338, p. 784. Elements of — Debtor's Intent to Apply on Debt Intent of debtor to apply on debt requisite, § 1339, p. 784. Intent to apply on debt distinguished from intent to prefer, § 1340, p. 784. Bankrupt's deposit in bank, where no understanding for application on debt, not preference, § 1341, p. 784. Elements of — Insolvency Insolvency of Debtor requisite, § 1342, p. 785. Definition of Insolvency under present Act, § 1343, p. 786. Property fraudulently disposed of, not to be counted as assets, § 1344, p. 787. But equity of redemption counted, if fraudulent conveyance be by way of security, § 1345, p^. 788. Property preferentially conveyed as security not to be excluded, § 134G, p. 788. Exempt property counted, § 1347, p. 788. Partnership not insolvent, unless all partners insolvent, § 1348, p. 789. Property to be taken at "fair valuation," § 1349, p. 789. "Fair Valuation" not value at sacrifice sale, § 1350, p. 789. Market value, as "fair valuation," § 1351, p. 789. "Fair valuation" where bankrupt is a "going concern" is not "scrap" nor "Wrecker's" Value, § 1352, p. 790. "Fair valuation" of choses in action and intangible property, § 1353, p. 790. GENERAL I^TDEX. 2217 PREFERENCES— Continued. Admissions of Insolvenc}'' bj^ Bankrupt not Competent against cred- itor, § 1354, p. 791. Bankrupt's Books admissible, § 1355, p. 791. Schedules inadmissible against preferred creditor, § 1356, p. 791. Inventory and • Appraisement in Bankruptcj', whether Admissible, § 1357, p. 791. Whether sale by receiver in State Court or bj- trustee in bankruptcy, competent, § 1358, p. 792. Referee's allowance of claims, whether admissible, § 1359, p. 792. Admissions of Agent, as to Insolvency of Principal, § 1364, p. 793. Return of Execution unsatisfied, whether prima facie proof of insol- vency, § 1361, p. 793. Adju'lication of Bankruptcj'- as Res x\djudicata on Question o^ In- solvency, § 1362, p. 793. Ordinary Rules Apply in proof of insolvency, § 1363, p. 793. Date of Insolvency and "fair Valuation," Date immediatel}' preceding Transfer, § 1364, p. 793. Debts owing but not yet due included in Bankrupt's liabilities, § 1365, p. 794. Whether contingent liabilities counted in determining insolvencj", § 136G, p. 794. Elements of — "Within four months" > Must be obtained "within four months," § 1367, p. 794. Preferences obtained before four months, not voidable, § 1368, p 794. Nature of limitation, § 1369, p. 795. Agreements fpr liens not effective until within four months, voidable, § 1370, p. 795. "After-acquired property" taken possession of bj^ mortgagee within four months, § 1371, p. 800. Equitable liens not requiring to be recorded, good, § 1372, p. 800. State law governs as to time agreements for liens, and taking of possession or recording take effect as liens or other transfers, § 1373, p. 802. Mere exchanges of property of equal value within four months, not preferences, § 1374, p. 802. Four months — how computed; § 1379, p. 803. Preferences made before bankruptcy act passed, voidable, § 1376, p. 803. Preferences made after filing petition if before adjudication, § 1377, p. 803. After adjudication, no preference, § 1378, p. 803- Preferences as affected by recording, § 1379, p. 803. Where recording, etc., not "required," preference dates from actual transfer, § 1380, p. 808. Whether, where not "required" preference dates from taking of no- torious and exclusive, etc., possession, § 1381, p. 808. Where "required" only as to bona fide purchasers and encumbrancers, § 1382, p. 810. Where State law does not "require" recording, but merely "permits" it, § 1383, p. 810. Preferences as afifected by taking possession within four months under unfiled mortgages or mortgages covering after-acquired property, § 1384, p. 812. 2218 GENERAL INDEX. PREFERENCES— Continued. Elements of — "Greater Percentage" Alust give creditor greater percentage than others of same class, § 1385, p. 815. If no net decrease of indebtedness during four months, no preference,. § 1-386, p. 816.' Who are in "same class," § 1387, p. 816. Preferences among priority creditors, § 1388, p. 819. Actual receipt of like percentage by other creditors not essential to exoneration from charge of preference, if enough left, § 1389, p. 819. Modes of proving this element, § 1390, p. 820. Transfers not -necessarily to creditor nor agent if benefit accrues ta creditor, § 1391, p. 820. But either actual receipt or actual benefit requisite, § 1392, p. 820. Elements of — "Reasonable Cause of Belief" Creditor must have had reasonable cause to believe preference in- tended, else preference not recoverable, § 1395, p. 822. Existence of Reasonable cause, cjuestion of fact, § 1396, p. 823. Preferential transfer not necessarily fraudulent, § 1397, p. 825. Creditor need not actually know, nor actually believe, § 1398, p. 826. Sufficient if circumstances such as to raise inference of belief on creditor's part, § 1399, p. 826. Cause for belief not simply that preference given, but intended, § 1400, p. 828. Beb'ef of existence of intent may be presumed, § 1401, p. 828. Reasonable cause for belief of insolvency requisite, § 1402, p. 830. Also of all other elements of preference, § 1403, p. 830. Reasonable cause for belief preference Intended involves reasonable cause for belief debtor knew his insolvency, § 1404, p. 831. Whether intent of bankrupt to prefer need be shown, § 1405, p. 832. At any rate existence of actual intent to prefer, proved by circum- stantial evidence, or by presumptions, § 1406, p. 834. Mere cause to suspect debtor's insolvency not enough, § 1407, p. 834. Mere giving of unusual security insufficient, § 1408, p. 835. Mere nonpayment of claim long past due, or frequent duns or broken promises, not sufficient, § 1409, p. 835. Failure to investigate no excuse where facts sufficient to put on in- quiry, § 1410, p. 836. Cause for belief not necessarily that of person receiving — maj' be that of person benefitted, § 1411, p. 837. Agent's knowledge imputed to principal, § 1412, p. 838. Except when agent acting for his own interest, § 1413, p. 838. Whether public corporations chargeable with "reasonable cause for believing," § 1414, p. 838. Exemptions, whether allowed out of preferences recovered from creditors. § 1095, p. 619. Indirect Creditor selling claim to effect, by purchaser using claim as oflf-set to purchase price, § 1181, p. 692. See "Preferences — First Element." Any method of depleting assets, sufficient to constitute preference, § 1300, p. 763. By Individual partner not voided by bankruptcy of firm, § 2265, p. 1386. GENERAL INDEX. 2219 PREFERENCES— Continued. "Innocent" preferences, before amendment of 1903, § 1426, p. 845. Off-sets to, § 1427, p. 846 n. Landlords' lien is not a preference, § 1160, p. 683. Liverymen's lien is not, § 1158, p. 683. " Lien by Legal Proceedings need not create, in order to be nullified under § 67 "f, ' § 1431, p. 848. By Legal Proceedings not Vacated, etc., as Act of Bankruptcy, see "Acts of Bankruptcy — Preference by Legal Proceedings Not Vacated." Mechanic's lien is not, § 1155, p. 681. Must have been created by legal proceedings in third act of bankruptcy, § 139, p. 122. Partner selling out to remaining partner, whether preference to individual creditor, § 1312, p. 769. By Partnership, not voidable by bankruptcy of partner, § 2268, p. 1387. By Partnership, after dissolution of firm, where remaining partner alone * bankrupt. § 2274, p. 1391. Requisite to perpetrate third act of bankruptcy, § 138, p. 120. Subcontractor's lien is not, § 1156, p. 682. Supplies, statutory liens for, are not, § 1159, p. 683. Surrender of See "Surrender of Preferences." Is Theoretical Basis of Nullification of Lien by Legal proceedings, § 1462, p. 868. Trustee's failure to contest allowance of claim, bar to suit to recover preference, § 792, p. 464. • Vacating of, ineffectual in third act of bankruptcy, unless "five days be- fore sale," § 140, p. 122. Voidable preference not available as offset in favor of preferred creditor, § 1179, p. 690. PREFERENCES VOIDABLE UNDER GENERAL EQUITY PRINCI- PLES, THOUGH NOT UNDER BANKRUPTCY ACT, § 774, p. 459. PREFERENTIAL TRANSFERS Distinguished from fraudulent, § 1221, p. 723; § 1305, p. 766; § 1397, p. 825; § 2496, p. 1505. Suits to set aside, appealable, § 2921, p. 1712. Suits to set aside may be brought in bankruptcy court, § 1688, p. 1039; § 1690, p. 1041; § 1723, p. 1062. Voidable under Special State statutes, when available in bankrupt c\-, § 1269, p. 748. "PREFERRED CLAIM" Distinguished from Secured Claim, § 750, p. 446. PREFERRED CREDITORS Allowability of Claims of Xot Surrendered until Adverse Ruling of referee when presented for allowance, yet allowable, § 771, p. 458. Not Voluntarily Surrendered but only on Litigation, yet allowable, § 770, p. 456. Order of Disallowance to fix time for Surrender and Allowance, § 772, p. 458. 2220 GENERAL INDEX. PREFERRED CREDITORS— Continued. Preference Surrendered, claim Allowable, § 769, p. 456. "Surrender of preference" prerequisite to allowance, § 768, p. 456. Surrender not requisite to Validity of Different Lien on marshaling liens for sale, § 773, p. 459; § 1428, p. 846; § 1899, p. 1187. Surrender requisite only when allowance to share in dividends sought, § 773, p. 459; § 1428, p. 846; § 1899, p. 1187. Surrender where preference not void under act but under general equity principles, § 774, p. 459. Allowability of claims of fraudulent or preferential transferees after setting aside transfers, § 775, p. 459. Preference may not be used as offset, § 1179, p. 690. Competent to join as Petitioning Creditors, § 233, p. 182. Counted in if necessary to sustain jurisdiction, § 205, p. 167. Excluded if they defeat jurisdiction, § 205, p. 167. Right of, to Offset New Credit, § 1416, p. 839. See "Set-Off of New Credit by Preferred Creditor." Vote only if they Surrender Preferences, § 578, p. 349. PRELIMINARY DETERMINATION OF VALUES FOR VOTING PUR- POSES, § 763, p. 454; § 577, p. 349. PREMATURE ADJUDICATION ON BANKRUPT'S CONSENT, § 427, p. 274. PREMISES OF BANKRUPT See "Leasehold." Also, see "Trustee, Right to Occupy Premises." PREMIUM Whether trustee to pay, on bankrupt's life insurance, § 1013, p. 563. PREPARATION OF SCHEDULES A DUTY OF THE BANKRUPT, § 461, p. 303. PREPAYING BANKRUPT'S ATTORNEY See "Attorneys' Fees in Bankruptcy Proceedings — Bankrupts' Attorneys' Fees." "PRESENT CONSIDERATION" Partly on, and partly on past, preference only as to latter, § 1326, p. 777. Protection of Liens given on, § 1327, p. 777; § 1506, p. 901. PRESENT POSSESSION Proof of, requisite to warrant summary order on bankrupt to surrender as- sets, § 1845, p. 1142. Agents and court officers not subject to summary orders as to disburse- ments already made, § 1846, p. 1145. No interest to be added in summary order to surrender, § 1847, p. 1145. Whether must be possession at time of filing summary petition or of granting order, § 1848, p. 1145. Circumstantial evidence sufficient, § 1849, p. 1146. Presumption of continued possession, § 1850, p. 1146; § 1852, p. 1151. GENERAI, INDEX. 2221 PRESENT POSSESSION— Continued. Rejecting improbable explanations of disappearance of assets, § 1851, p. 1149. Statements to commercial agencies of assets, whether to be taken as conclusive admissions against baakrupts, of their existence, § 1852, p. 1151 n. PRESERVATION OF ESTATE See "Costs and Expenses of Administration." PRESERVATION OF EVIDENCE Duty of referee as to, § 515, p. 322. PRESERVATION OF LIEN FOR BENEFIT OF ESTATE Liens by legal proceedings nullified by bankruptcy, may be preserved for benefit of estate, § 1489, p. 885; § 16;;9, p. 1010. Costs of Court remain lien, § 1490, p. 888; § 2018, p. 1255. Not preserved, is void as to other lienholders on same property, § 1492, p. 890. Order of preservation requisite, § 1491, p. 889. Order of Subrogation necessary, § 1489, p. 888. Subrogation of trustee to creditor's lien in pending suit against bank- rupt, § 1639, p. 1010. PRESUMPTIONS Against Fraud, § 111, p. 107. Of Fact May shift against bankrupt and compel rebuttal, § 2636, p. 1571. Intent to prefer, proof of, aided by, § 132, p. 115. Knowledge of own insolvent condition presumed, § 132, p. 117. Rebuttable presumption, § 132, p. 117. Taking unusual steps, § 132, p. 117. Failure to take usual steps, § 132, p. 117. Presumed to know natural and probable results, § 132, p. 115. Transfer of all or large part of property, presumes intent to prefer, § 132, p. 115. Paying some creditors in full and failure to pay others, § 132, p. 116. Sufficient Equity left, no intent to prefer presumed, § 132, p. 116. Presumption of intent as affected by amount of transfer, § 132, p. 116. Paying small sums in usual course of business, § 132, p. 116. Intent, Proof of, aided by, § 110, p. 107. Natural and Probable Consequences of Act raise* § 112, p. 107. Present Possession, proof of, aided by, § 1850, p. 1146; § 1852, p. 1151. Continued possession presumed, when property traced and shortage unexplained, § 1850, p. 1146. None of continued possession, if circumstances raise counter presump- tion, § 1852, p. 1151. "Reasonable Cause of Belief," proof of, aided by presumptions, § 1401, p. 828. PREVIOUS DISCHARGE WJTHIN SIX YEARS As bar to discharge, see "Discharge — Opposition to — Grounds of — Previous Discharge within Six Years." 2222 ge;ni;ra]:v index. PRINCIPAL PLACE OF BUSINESS See "Residence." Actual Place of Business Governs, § 35, p. 54. "PRINCIPALLY -ENGAGED" In Manufacturing, Trading, etc., applicable only to corporations, not to Natural Persons, § 46, p. 59. PRINTING AND PUBLISHING CORPORATIONS Mercantile Agencies are not, § 92, p. 87. Subject to Bankruptcy, § 92, p. 87. PRIORITIES Of Costs and Expenses of Administration, see "Costs and Expenses of Ad- ministration." In Distribution, see "Distribution." Recognition of Diverse Exemption Laws and Priority Laws not Lack of Uniformity, § 5, p. 22. 'Recognition, Enforcement and Changes in Law as to Priorities not a Dele- gation of Legislative Power, § 11, p. 27. Under State statute, in marshaling of liens on property in custody of bank- ruptcy court, § 1898, p. 1186. PRIORITIES UNDER STATE AND FEDERAL LAW In Distribution of bankruptcy assets, § 2187, p. 1345. Municipality as priority claimant, § 2189, p. 1345. Priority given to "any person" by United States law preserved, § 2190, p. 1346. Recognized, § 2187, p. 1345; § 2179, p. 1341; § 2181, p. 1342. State and Federal governments as priority claimants, § 2189, p. 1345. Government Contracts, § 2191, p. 1346. No proof of claim requisite by government to secure priority, § 2192, p. 1346. Years limitation for proving claims not applicable to government, § 2193, p. 1346. State Law priorities adopted where claimants not in classes already covered by express bankruptcy priorities, § 2194, p. 1346. State priorities to laborers, where different from bankruptcy priorities, § 2195, p. 1347. Whether state priorities in cases of assignments, receiverships, etc., preserved when custody superseded by bankruptcy, § 2196, p. 1347. Whether State priorities dependent on resort to particular remedies, such as insolvency or state bankruptcy proceedings, to be recognized, § 2197, p. 1349. Rule adopting State priorities, not to override, § 67 "f" annulling "legal" liens, § 2198, p. 1351. Claimant must comply with all regulations and pre-requisites of State priority, § 2199, p. 1352. Whether, where bankruptcy prevents, compliance will be dispensed with, or levy permitted and discharge stayed to enable perfecting of priority, § 2200, p. 1353. Trustee cannot perfect priority claims, § 2201, p. 1353. Relative precedence among State priorities preserved, § 2202, p. 1353. CENERAI, INDEX. 2223 PRIORITIES UNDER STATE AND FEDERAL LAW— Continued. Where both State law and Bankrupt Act give priority to same class^ bankrupt act. excludes State law, § 2203, p. 1354. Landlord's priorities, § 2204, p. 1356. Priorities for furnishing supplies and materials for manufacturing es- tablishments; fiduciary debts as guardian; community property of husband and wife, etc., § 2205, p. 1357. In Marshaling of Liens on Property in custody of Bankruptcy Court, § 1898, p. 1186. Recognized in bankruptcy, § 2179, p. 1341; § 2181, p. 1342; § 2187, p. 1345. PRIORITY Not Appealable, under § 25 (a), § 2900, p. 1702. Unless incident to disputed debt, § 2901, p. 1702. Debts excepted from discharge, not, on that account entitled to, § 2744, p. 1616. Distinguished from "Hen," § 2188, p. 1345. See "Distribution." Mere Judgment not entitled to, as such, § 2137, p. 1318. Of liens Appealable as "controversy," § 2923, p. 1712. Whether questions in, are "Proceedings in Bankruptcy proper" or "Controversies," § 2869, p. 1683; § 2870, p. 1684; § 2871, p. 1684; § 2875, p. 1687; § 2877, p. 1689; § 2878, p. 1689. Not Lost because claim also a secured debt, § 2136, p. 1318. Not Lost by taking judgment or note nor by assignment, § 2135, p. 1317; § 2182, p. 1342; § 2183, p. 1342. Order of, in bankruptcy distribution, prescribed by act, § 2134, p. 1317. See "Priorities." PRIORITY CLAIMS Deposit on Composition must cover, § 2365, p. 1434. Dividends on, § 2140, p. 1319. Proof of, § 607. p. 361; § 2138, p. 1318; § 2185, p. 1344. Referee may Order payment of, § 536, p. 331. PRIORITY CREDITORS Preferences among, § 1388, p. 819. Vote only for Deficit, § 576, p. 349. PRIVATE BANKER Corporation cannot be, § 79, p. 79. Partnership may be, § 79, p. 79. Subject to involuntarj' bankruptc}', § 79, p. 79. PRIVATE HOSPITAL CORPORATIONS See "Involuntary Bankruptc}-." PRIVATE SALE For "Good Cause" shown, sales may be private, § 1948, p. 1214. PRIVILEGE See ."Incriminating Questions." See "Protection of Bankrupt from Use of Testimony." 2224 GENERAIv INDBX. PRIVILEGE OF BANKRUPT FROM ARREST See "Protection of Bankrupt from Arrest." PRIVILEGED COMMUNICATIONS Respected in bankruptcy, § 1566, p. 9-il; § 1759, p. 1074 n. Preliminary examination to determine whether, § 1566, p. 941. PROCEDURE ON ALLOWANCE OF CLAIMS See "Allowance of Claims — Procedure on." PROCEEDINGS IN AID OF EXECUTION Bankruptcy court may stay, § 2702, p. 1601. "PROCEEDINGS IN BANKRUPTCY" See "Appeal and Error." See "Appeal and Error — Appeals to Circuit Court of Appeals — In Bank- ruptcy Proceedings Proper." . Distinguished from "controversies" arising in bankruptcy, § 1685, p. 1036. Plenary suits by trustees are not, § 1691, p. 1042. PROCEEDINGS IN PERSONAM Bankruptcy Proceedings are in Personam as well as in Rem, § 18, p. 34. PROCEEDINGS IN REM Bankruptcy Proceedings are, § 18, p. 34. "PROCEEDS" Claiming exemptions in, where property still in specie, § 1057, p. 605. Claiming, may authorize trustee to sell exemptions with remainder as en- tirety, § 1065, p. 608. PROCESS Bankrupt's waiver of improper service, § 313, p. 221. Delay in serving subpoena, § 311, p. 220. Manner of service, § 312, p. 220. Provisions as to service apply to partnership petitions iiled by one partner, § 310, p. 220. Provisions as to service directory, not mandatory, § 309, p. 220. To be under Seal and Tested, § 1537, p. 918. Service of, upon involuntary petition, § 307, p. 219. "PROCURING" Of Judgment, as preference, § 1335, p. 782. PRODUCING BOOKS AND APPEARING FOR EXAMINATION AT TRIAL Burden of Proof of insolvency not shifted by debtor's failure in, in receiver- ship as act of bankruptcy, § 154, p. 133. Debtor to Appear and Produce books at trial, to afford discovery, § 179, p. 150. Destruction or loss of Adequate Books, no excuse, § 180, p. 150. Failure to keep adequate books no excuse,. § 180, p. 150. Whether requirement of, applies to receiverships as acts of bankruptcy, § 181, p. 151. GENERAIv INDEX. 222d PRODUCTION OF BOOKS, PAPERS AND DOCUMENTS BY WITNESS Enforceable, § 1548, p. 9:-'(J. • Privilege as to Incriminating evidence, § 15G0, p. 937; § 1561, p. 9;58. Does not authorize refusal altogether to produce documents, § 15G0, p. 937. To be claimed when book or document about to be inspected, § 1561, p. 938. ,To be claimed by witness himself, § 1561, p. 938. Not waived by voluntary bankruptcy, § 1562, p. 939. Refusal of order for, whether appealable, § 2890, p. 1698^ PROMISE Waiving discharge bj' New, § 2717, p. 1606. "PROOF" And "Allowance" diflferent terms, § 595, p. 356. Degree of On summary orders, must be "clear," "convincing,'' "satisfactory" or "beyond a reasonable doubt," § 1842, p. 1137. Of Intent to Prefer, see "Intent, to Prefer." See, also, "Presumptions." PROOF OF CLAIM Account to be Itemized, § 604, p. 360. Amendment of After expiration of j^ear permissible, § 622, p. 367. Amendable, § 617, p. 366. Based on an original proof filed, § 618, p. 366. Changing Legal Nature of cause of action, § 619, p. 367. Conditions imposed, § 620, p. 367. Refused, § 621, p. 367. Assigned claims, § 608, p. 361; § 609, p. 361; § 610, p. 362. Assigned before bankruptcy, § 608, p. 361; § 740, p. 441. Assigned after bankruptcy but before proof, § 609, p. 361; § 741, p. 441. Assigned after proof, § 610, p. 362; § 742, p. 442. Assignees' or Receivers' Compensation and Expenses, on surrender of assets, § 1623, p. 988. Assignment of Claim, see "Assignment of Claims." Caption and Title, § 596, p. 356. "Claim" to be set forth and alleged to be "justly owing,'' § 597, p. 357. Consideration to be stated, § 603, p. 359. Debts Owing but not yet due, § 599, p. 357. Due date and interest, § 598, p. 357. Deposition for proof of claim prima facie case for claimant, § 844, p. 484. Instrument in writing given, original to be attached, § 602, p. 358. Judgments must be "Proved" as well as other claims, § 676, p. 412 n. Transcript of judgment need not be attached, § 602, p. 358. Alust state whether judgment taken, § 600, p. 357. Must State whether note given, § 601, p. 357. By person contingently or secondarily liable, § 611, p. 362. Creditor not obliged to prove claim against bankrupt principal, even on surety's demand, § 612, p. 363; § 1515, p. 904. 2 Rem B— 65 2226 GENERAL INDEX. PROOF OF CLAIM— Continued. Right of surety or indorser to prove creditor's claim against bankrupt principal, § 1516, p. 904. Creditor entitled to prove against both principal and surety u-here both bankrupt, § 1519, p. 904. Creditor not/ obliged to lend written instrument to surety, § 612, p. 363; § 1517, p. 904. Unless surety ofifers to indemnify creditor against expense, § 1518, p. 904. Priority claims, § 607, p. 361; § 3138, p. 1318; § 2185, p. 1344. For Priority, requisite, except for taxes, § 2138, p. 1318. Also Except for Government Claims, § 2192, p. 1346. Proving Secured Debt as unsecured, whether waiver or not, § 766, p. 455. To be in name of Real Party in Interest, § 605, p. 360. Not "^Requisite for government, § 2192, p. 1346. Secured Claims, § 606, p. 360. Signature, and verification, § 614, p. 364. Several claims by same creditor, § 615, p. 365. Single claim not to be split, § 616, p. 365. Taxes need not be proved in form of other debts, § 702, p. 423; § 2161, p. 1334. Unliquidated, original proof not necessarily formal, § 716, p. 428. What is, § 594, p. 355. Withdrawal of, § 623, p. 368. Attorney at Law competent to withdraw without written power, § § 624, p. 368. Power of amendment not to be distorted to let in dilatory creditors after expiration of year, who have withdrawn proofs of claim, § 736, p. 440. PROPER PARTIES TO OBJECT TO CLAIMS See "Objections to Claims, Who INIay Object." PROPERTY FRAUDULENTLY CONVEYED, PASSES TO TRUSTEE, § 962, p. 538. 'property Fraudulently transferred, see "Fraudulent Transfers." Held on Secret Trust, see "Secret Trust." PROPERTY PASSING AND NOT PASSING TO TRUSTEE Kinds of Property Bonds, see "Bonds." Copyrights and Trademarks, see "Copyrights and Trademarks." Child's property, see "Property Belonging to Bankrupt by Marital or Parental Right." Commercial Paper, see "Commercial Paper." Contracts involving personal skill and confidence, see "Contracts In- volving Personal Skill and Confidence." Concealed Property, see "Concealed Property." Conditional Sale, property sold on, see "Property Sold on Conditional Sale." Curtesy, see "Curtesy, Estates by." Distinct scope to each class, § 952, p. 535. GENERAL INDEX. 2227 PROPERTY PASSING AND NOT PASSING TO TRUSTEE— Continued. Documents, sec "Documents." Dower, see "Dower." , Expectancies and possibilities of acquiring property, see "Expectancies and Possibilities of Acquiring Property," etc. Encumbered Property, see "Encumbered Property." — Exempt property, see "Exemptions." Fixtures, see "Fixtures." Inchoat" Interests, see "Inchoate Interests." Inchoate Interests do not pass, § 971, p. 5-44. Interests in wife's property, see "Property Belonging to Bankrupt by Marital or Parental Right." Inalienable property, see "Spendthrift Trusts and Restriction on Alienation." Life Insurance Policies, see "Life Insurance Policies as Assets." Leasehold, see "Leasehold." License, see "Memberships in Stock Exchanges, Licenses, etc." Local law determines whether particular property within classifica- tion, § 953, p. 535. Membership in Stock Exchanges and Clubs, see "Memberships in Stock Exchanges," etc. Merchandise, see "Merchandise." Mortgages, see "Mortgages." Property rights must exist in bankrupt, § 970, p. 543. Property held in trust for bankrupt, see "Property Held in Trust for Bankrupt." Property held in trust by bankrupt, see "Property Held in Trust by Bankrupt." Property Fraudulently Conveyed, see "Property Fraudulently Con- veyed." Powers, see "Powers." Patents, see "Patents." See "Property Transferable or Capable of Subjection by Legal Proc- ess.'' Rights of Actions on contracts, see "Rights of Action on Contracts, etc." Rights of Action for Injury to Property, see "Rights of Action for Injury to Property." Reversionary interests, see "Vested Interests." Unpaid Stock subscriptions, see "Unpaid Stock Subscriptions." Unscheduled Property, see "Unscheduled Property." Vested Interests, see "Vested Interests." Vested Interests pass, § 972, p. 544. Stocks, see "Stocks." PROPERTY TRANSFERABLE OR CAPABLE OF SUBJECTION BY LEGAL PROCESS Passes to trustee, § 9G3, p. 538. If capable either of transfer or of being levied on, passes, § 964, p. 539. If transferable "by any means," or leviable upon, it passes, § 965, p. 539. If not transferable by any means or leviable upon, does not pass. § 965, p. 539. 2228 GENERAL INDEX. . ^ PROTECTION Of bona fide holders and purchasers, see "Bona Fide Holders or Pur- chasers."- PROTECTION OF BANKRUPT See ''Discharge — Staying Suits against Bankrupt to Permit Interposition of." PROTECTION OF BANKRUPT FROM ARREST, § 463, p. 303. Arrest before Bankruptcy, Protection equally available, § 465, p. 304. Arrest for' Contempt for failure to pay Alimony, § 46i), p. 305 n. Arrest on process from Federal Court, § 471, p. 306. Arrest from other courts, whether within protection, § 469, p. 305. "Bankrupt" for purposes of protection, as long as any proceedings pend- ing, § 473, p. 306. If Debt Dischargeable protected — otherwise not, § 464, p. 304. Duty of court to protect, § 466, p. 30o. Habeas Corpus available to effect protection, § 472, p. 306. Injunction available to effect protection, § 472, p. 306. May be arrested upon criminal charge, § 467, p. 305. No exemption from arrest by bankruptcy court itself, § 468, p. 305. While Peiforming Statutorjr duties, protected, whether debt dischargeable or not, S 470, p. 305. While in Attendance on bankruptcy court, protected whether debt dis- chargeable or not, § 470, p. 305. Whether Conditions may be imposed on granting protection, § 466, p. 305 n. PROTECTION OF BANKRUPT FROM USE OF TESTIMONY Applies only to Federal prosecution, § 1557, p. 932. Criminal Proceedings, applies only to, § 1556, p. 931. General Examination of Bankrupt may be used in Opposition to Dis- charge, § 1557, p. 932. Production of Books, etc., protection applies to, § 1557, p. 932; § 1558, p. 933. PROTECTION OF LIENS WHICH ARE NOT IN CONTRAVENTION OF ACT Statutory Provision as to, § 1500, p. 895. Is Converse of Avoidance of Liens opposed to bankruptcy act, § 1501, p. 897'. Chattel ]\Iortgages and Conditional Sales contract, Withheld from Rec- ord for time, but filed before Bankruptcy, § 1508, p. 901. Chattel mortgages covering Future Acquired property, § 1509, p. 902. Lien within four months Valid 'f other essentials exist, § 1502, p. 898. Lien protected unless both parties guilty, § 1503, p. 898. What constitutes "good faith," § 1504, p. 899. Protected unless given or accepted in contemplation of bankruptcy or in fraud of act, § 1505, p. 900. "Present Consideration" essential to protection, § 1506, p. 901. "Recording," when essential to protection, § 1507, p. 901.- PROTECTION OF LIENS GIVEN ON PRESENTLY PASSING CON- SIDERATION, § 1327, p. 777. See, also, "Protection of Liens which are not in Contravention of Act." GENERAL INDEX. 2229 PROVABILITY Distinguished from Allowability, § G32, p. 375; § 745, p. 445. Distinguished from "Validity," § 630, p. 374. Not dependent on Dischargeability, § 633, p. 376. Not dependent on right to share in dividends, in any particular order of Priority, § 634, p. 376. PROVABLE CLAIM OR DEBT "Allowable," only if a, § 746, p. 445. Creditors holding, and only such, competent as petitioning creditors, § 227, p. 179. Discharge cf All are discharged, save those excepted by statute, § 2731, p. 1610. Breach of Promise of Marriage, § 2739, p. 1614. If Capable of being "proved" debt discharged, whether actually proved or not, § 2732, p. 1612. Claims rrot provable, not discharged, § 2731, p. 1610. Claims Not Owing at date of petition, § 2735, p. 1613. Contingent claims, § 2736, p. 1613. Costs, § 2737, p. 1614; § 2738, p. 1614. See "Discharge — What Obligations Are Discharged." Stockholders liability, § 2742, p. 1616. Sureties, § 2741, p. 1615. Tort Claims, § 2733, p. 1613. Unliquidated claims, § 2734, p. 1613. Distinguished from Secured Claim, § 749, p. 446. Nondischargeable debts may share in dividends, § 2670, p. 1589. Offset and Counterclaim must be a, § 1177, p. 689. Partner's claim for share of profits is not, as against the partnership, § 235, p. 183 n. Not every Provable Claim necessarily allowable, § 747, p. 445. May be "Provable" though "Unliquidated," § 704, p. 423. Taxes, whether are, § 2745, p. 1616. See, also, "Taxes." "Unliquidated Claims" do not enlarge classes of provable debts, § 705, p. 424. Accounts, see "Open Accounts and Contracts Express or Implied." Claims reduced to judgment after bankruptcy petition filed and before discharge, see "Provable Debts Reduced to Judgment after Bankruptcy but before Discharge." Claims ex delicto, see "Claims Ex Delicto." Contingent claims, see "Contingent Claims." Claims not owing, see "Claims Not Owing at Time of Filing Bankruptcy Petition." Contracts, express or implied, see "Open Accounts and Contracts Ex- press or Implied." Contracts of Sale, see "Contracts of Sale" and "Sale, Contracts of." Contracts of Employment, see "Contracts of Employment; and Employ- ments, Contracts of." Continuing Contracts, see "Continuing Contract." Costs, see "Claims for Costs." "Debt," § 626, p. 372. 'Demands" and "Claims," not technically "debts," nevertheless included, § G27, p. 372. 2230 GENERAL INDEX, PROVABLE CLAIM OR DEBT— Continued. Depends on Status at Time of Filing Bankruptcy Petition, § 629, p. 374. Employments, see "Contracts of Employment." Judgments, see "Judgments and Written Instruments." Only such are provable claims as Statute Declares, § 625, p. 371. Partnership debts are Provable debts against each member individually, § 2237, p. 1368; § 2796, p. 1637. See "Distribution — In Partnership Bankruptcy." ."Provability" and "Allowability" different terms, § 632, p. 375. "Provability" and "Validity" different terms, § 630, p. 374. "Provability" not dependent on "dischargeability," § 633, p. 376. Provability not dependent on right to share in dividends in any particu- lar order of priority, § 634, p. 376. "Reduced to Judgment after Bankruptcy but before Discharge" Does not enlarge time for proving claim nor confer lien, § 700, p. 423. Judgment itself valid as res adjudicata, § 699, p. 423. Object — to prevent effect of merger, § 696, p. 421. « Original obligation must have been provable, § 697, p. 422. Original debt, not the judgment itself to be proved, § 698, p. 422. Provable, § 695, p. 420. Rent Claims, see "Claims for Rent." Surety's Claims, see "Claims of Surety." Sale, see "Contracts of Sale." Unliquidated Claims, see "Unliquidated Claims." Voluntary Bankrupt Must Owe, § 41, p. 57. What is, § 628, p. 373. Whether a "Debt," "Claim" or "Demand" Dependent on State Law, § 631, p. 375. Written Instruments, see "Judgments and Written Instruments." "PROVING" Means filing, when unliquidated claims referred to, § 720, p. 434. PROVING ON ORIGINAL CONSIDERATION AND WAIVING NOTE, § 602, p. 358 n. PROVISIONAL ALLOWANCE Improper, and allowance res adjudicata notwithstanding, § 793, p. 464; § 812,, p. 473. None for voting purposes, § 865, p. 496. Preliminary determination of value of securities for voting purposes, § 763, p. 454. PROVISIONAL REMEDIES See "Arrest and Detention of Bankrupt." Creditors' Plenary Suits against Adverse Claimants before trustee appointed, § 1712, p. 1056. Not in Bankruptcy Court, § 1716, p. 1058. Nor after trustee elected, § 1718, p. 1060. Provisional seizure of property, § 335, p. 230. See "Provisional Seizure of Property." Remedies of creditors during pendency of petition, § 335, p. 230. See "Receivers." See "Restraining Orders and Injunctions." GENERAL INDEX. 2231 PROVISIONAL SEIZURE OF PROPERTY Affidavit and bond, § 336, p. 231. Affidavit must be made, § 339, p. 232. Affidavit to be specific, § 340, p. 232. - Allegations for provisional seizure not to be made in petition, § 338, p. 232; § 250, p. 190. Allowance only to respondent at time of bond given, § 350, p. 236. Bond to be given, § 341, p. 233. Bond need not be signed by petitioners, § 343, p. 233. Costs, Expenses, Counsel fees and Damages confined to those incident to seizure, § 349, p. 235. Compensation and expenses of marshal on seizure, § 358, p. 240. Malicious Prosecution for wrongful seizure, § 354, p. 237. Neither Affidavit or bond can be waived by bankrupt, § 342, p. 233. No second recovery under another section, § 351, p. 236. No "seizure," no counsel fees, expenses nor damages, § 352, p. 236. Only damages for "seizure," not for instituting bankruptcy proceedings, § 353, p. 237. Officer making seizure, to determine ownership at own risk, § 357, p. 240. On dismissal property to be returned without deduction for care, § 347, p. 234. Property claimed Adversely not to be seized, § 355, p. 237. Property in actual possession of bankrupt, though claimed bj^ another, seizable, § 356, p. 239. Premium on bond, § 345, p. 234. Referee, in absence of Judge, to issue orders, § 337, p. 232; § 525, p. 328. Receiver may be appointed to make seizure, § 346, p. 234; § 390, p. 256. Respondent allowed expenses, counsel fees and damages on dismissal, § 348. p. 234. Subsequent respondent may move for new bond, § 350, p. 236. Surety Company's bond sufficient, § 344, p. 233. Warrant of Seizure, see "Forms." PROXY Creditor may act bjs § 583, p. 350. For Corporations and Partnerships to contain oath of official capacitj', § 587, p. 353. Written power of attorney requisite, § 584, p. 351. PUBLICATION Notice by, § 568, p. 344. Of Petition for discharge, § 2432, p. 1470. Service by, § 308, p. 219. PUBLIC CORPORATIONS Whether chargeable with "Reasonable Cause for Belief," § 1414, p. 838. PUBLIC MONEYS Deposited with bankrupt banks, § 806, p. 470. PURCHASER At Sales in Bankruptcy Whether Entitled to set aside Preferential encumbrances on properti' purchased, § 1415, p. 838. 2232 GENERAL IXDEX. PURCHASER— Continued. Lienholder as, applying lien on price, § 1997, p. 1236. Lienholder as, commissions of trustee and referee, how computed, § 2105, p. 1300. No jurisdiction of suit brought by, § 2000, p. 1237. Remedies against, § 1999, p. 1236. Stifling of competition at sales, § 1954, p. 1218. Subject to Summary Jurisdiction, § 1804, p. 1100; § 1962, p. 1221. PURPOSES OF BANKRUPTCY LAW See "Object of Bankruptcy Law." QUALIFIED STAY Where levj^ sought on exempt property which is not exempt as to particular creditor levying, § 2711, p. 1605. Where judgment necessary to perfect rights against suretj^ or property, § 2712, p. 1605. QUALIFYING OF TRUSTEES, § 877, p. 500. QUARRYING CORPORATIONS See "Manufacturing Corporations." QUASI CONTRACT Judgment on, where tort waived Original character of debt, as to dischargeability still maj^ be inquired into, § 2750, p. 1618. QUASI PUBLIC CORPORATIONS Xot subject to involuntary bankruptc}', § 89, p. 86. , QUESTION Refusal to answer, as bar to discharge, § 2580, p. 1548; § 2581, p. 1548. On review, to be stated clearly and distinctly, § 2858, p. 1669. RAILROAD CORPORATION See "Involuntary Bankruptcy'." REAL ESTATE Certificate to be filed with Recorder where any real estate among assets, § 920, p. 522. Generally considered in bankrupt's possession, giving summary jurisdiction "to bankruptcy court, § 1809, p. 1109. Sales of at Public Auction, where to be held, and how advertised, § 1939, p. 1210. Unrecorded mortgages of, § 1248, p. 740. REAL ESTATE CORPORATIONS See "Involuntary Bankruptcy." REAL PARTY IN INTEREST Claims to be proved in name of, § 605, p. 360. REAPPRAISAL, § 19301/,, p 12O6. REASONABLE ATTORNEYS' FEES See "Attorneys' Fees in Bankruptcy Proceedings." GENERAI, INDEX. 2233 "REASONABLE CAUSE FOR BELIEF" AJjudication on yround of preference not binding on issue of, § 446, p. 290; § 1777, p. 1078. Allegation of in trustee's Petition to Recover Preference, requisite, § 1764, p. 1075. See "Preference." Not Requisite to nullify liens by Legal proceedings within four months, § 14;!4, p. 848. REBATES Trustee entitled to rebates to which bankrupt entitled, § 120;}, p. 698. RECEIVER May be appointed in plenarjr suit by trustee against Adverse Claimants, § 1726, p. 1063. RECEIVER IN BANKRUPTCY Actual or Constructive possession by, constitutes "Custodia Legis," § 1807, p. 1101. Application for appointment of. Notice of, § 381, p. 251. Appointment of Jurisdiction, § 377, p. 247. By Referee before Adjudication, § 379, p. 250. By Referee after Reference, § 380, p. 251. Any time before Appointment of trustee, § 378, p. 250. Attorneys' fees of, § 2041, p. 1264. See "Attorneys' Fees in Bankruptcy Proceedings." Auditing of Account of, Referee's Duty, § 518, p. 323. Bankrupt as Quasi Trustee for Creditors before Receiver appointed, § 383, p. 252. Bond, § 382, p. 251. ■Costs and expenses of in administration of estate, § 2014, p. 1250; § 2033, p. 1261. Auctioneer. § 2037, p. 1263. Expense of conducting business, § 388, p. 255; § 2036, p. 1262. Not ifecessary to pay expenses out of pocket first, and then be al- lowed reimbursement, § 2039, p. 1263. Premium on bond, § 2038, p. 1263. Rent for use and occupation, § 2034, p. 1261; § 203o, p. 1262. Costs and expenses of litigation, § 2040, p. 1264. Costs and expenses of, taxable against petitioning creditors, § 398, p. 259. Ground for Appointment, only one, "Absolute necessity for preservation of estate," § 384, p. 252. Fees of, § 2118, p. 1306. Maximum Allowance not to exceed trustee's. § 2119, p. 1306. Occupies Premises Free, for any period for which landlord holds provable claim, § 992, p. 552. Possession by, gives jurisdiction to bankruptcj- court, § 1796, p. 1089. Powers and Functions of Borrowing Money, § 389, p. 255. Continuing of Business by, § 387, p. 255. Damages for receiver's Breach of Contract, § 388, p. 255 n. Defendant in Plenary Suits by Third parties, § 1778, p. 1079. 2234 GENERAL INDEX. RECEIVER IN BANKRUPTCV— Continued. Effect of Dismissal of bankruptcy petition on receivership, § 397, p. 258. Execution against, § 1785, p. 1081. Expense of Continuing Business, § 388, p. 255; § 2036, p. 1262. Filing of Petition to Sell by, § 1941, p. 1211. "For a Limited Period," § 387, p. 255. In General, § 385, p. 252. General Examination of Bankrupt or witnesses by, § 1529, p. 914. Going into other District than that of appointment, § 395, p. 257; | 1708, p. 1055; § 1709, p. 1055. Made Party where State court has custody of Res, § 1779, p. 1079. Orders by bankruptcy court to gay Judgments against, out of funds of estate, § 1786, p. 1081. Petition for Injunction by, § 368, p. 244. Plenary Suits to Recover Property, whether ma}- maintain, § 393, p. , 256; § 1717, p. 1058. Receiver's Certificates, § 389, p. 255. Not to Seize property held Adversely, § 391, p. 256. Security for costs and bond for Injunction by, § 396, p. 258. Seizure by, instead of by marshal, § 346, p. 234; § 390, p. 256. Selling Perishable Assets, § 386, p. 254. Sued without Leave of bankruptcy court, § 1783, p. 1081. Sued not in Official capacity, but merely as individual, § 1784, p. 1081. Sued in Personam for Conversion or Trespass for Wrongful Seizure, § 1780, p.'l079; § 1814, p. 1112. Suit for Money Judgment for Debt, none by receiver, § 394, p. 257; § 1717, p. 1058. Suits in Personam against, when enjoined, § 1781, p. 1080; § 1782, p. 1080; § 1911, p. 1192. Surrender of property not held Adversely, compelled by, § 392, p. 256. Not Proper Party to Object to Claims, § 821, p. 476. Referee may appoint, § 529, p. 330. RECEIVER IN STATE COURT As Candidate for Trustee, § 889, p. 508. Compensation and expenses of, when receivership superseded by bankruptcy, see "Assignments and Receiverships Superseded by Bankruptcy." Costs and expenses of, in "preservation of estate" subsequent to filing pe- tition, § 2014, p. 1250. Lien of, for compensation and expenses, when receivership superseded, see "Assignments and Receiverships Superseded by Bankruptcy." Also, see "Conflict of Jurisdiction — Second Exception." Summary Jurisdiction over Order on not to require Surrender of more than in his hands, § 1830, p. 1125. Receivership Superseded, not Adverse Claimant, § 1827, p. 1122. Subj'ect to Summary order, after receivership superseded by bank- ruptcy, § 1829, p. 1125. None to compel Surrender by, until adjudication, § 1461, p. 867; ? 1828, p. 1124. GKNKRAL INDEX. 2235 RECEIVERSHIPS As acts of ■ bankruptc}', see "Acts of Bankruptc}^ — Assignments and Re- ceiverships, as." Operating to create "Liens by Legal Proceedings," § 1446, p. 855. Superseding of custody of receiver by bankruptcj- court, see "Assignments and Receiverships Superseded by Bankruptcy." RECEIVERSHIPS AND TRUSTEESHIPS As Acts of Bankruptcy "Applied for" by Debtor Debtor must have applied therefor, § 152, p. 132. Insolvency at Time of Application requisite, § 153, p. 132. Insolvency must be according to Bankruptcy Definition, § 15."!. p. 132. Burden of Proof of Insolvency not shifted by debtor's failure to Produce Books and Appear for Examination at Trial, § 154. p. 133. "Because of insolvency," § 155, p. 133. Actual Insolvency not requisite, § 155, p. 133. "Insolvency" alleged need not be insolvency accord'ng to bank- ruptcy definition, § 156, p. 133. "Insolvency" must be Ground for receivership in State Lav,- and appointment based on that ground, § 157, p. 133. Ground of receivership as being Insolvency provable only by rec- ord, imless record silent, § 158, p. 134. Receiver, but not on ground, of Insolvenry, not this act of bank- ruptcy, § 159, p. 136. Receivership to Wind up Insolvent Pirliiership on Death of Part- ner, § 159, p. 136. In General, § 144, p. 126; § 145, p. 128; § 151, p. 132. Fraud not Implied, § 144, p. 126. Receivership not considered "Equivalent" of General Assignment, § 150, p. 130. Trusteeships "Appointment" of trustee need not nece.^sr^rily be by a Court. § 160, p. 138. RECKLESS REPRESENTATIONS Obtaining Property by false and, excepted from discharge, § 2753, p. 1619. RECLAMATION, SURRENDER OR REDELIVERY Commingling of Trust Funds or Trust Property, § 1884, p. 117.',. Converted Property or its traced proceeds, rechii^iiatle, § 1882. p. IICS. Costs and Expenses taxable, § 2010, p. 1246. Goods Bought under Misrepresentations or while grossly insolvent, re- clamation of, § 1879, p. 1165. Goods Stopped in Transitu, § 1881, p. 1168. Ordering Trustee to Surrender property to Rightful Owner, § 1872, p. 1163; § 1873, p. 1163. Petitions for, § 1876, p. 1164. Property left for Repairs, Storage or Other Bailment, reclamation of, § 1877, p. 1165. Property Bought on Conditional Sale, reclamation of, § 1878, p. 1165. 2236 GENERAL INDEX. RECLAMATION, SURRENDER OR* REDELIVERY— Continued. Reclaiming part still in trustee's hands, Proving Claim for balance, § 1880, p. 1168. Referee has Jurisdiction, § 1874, p. 1164. Replevin Suits against Trustee or Receiver not maintainable, § 1875, p. 1164. "Tracing Trust Funds," § 1883, p. 1169. RECONSIDERATION OF CLAIMS See "Re-Examination of Claim." Also, see "Allowances of Claim." RECORD Of Adjudication Existence of Jurisdictional Facts need not appear on Face of Record, § 30, p. 51 n; § 437, p. 279. Imports Jurisdiction, § 437, p. 279. But if Lack of Jurisdictional Facts affirmatively appears on Face, Decree void, § 30, p. 51 n. On Appeal Assignment of errors, Prayer for reversal and Citation, must be shown, § 2970, p. 1729. Complete Record to be made, § 2962, p. 1726. Not to be Contradicted, § 2967, p. 1727. May not be Explained or Extended by evidence dehors, § 2967, p. 1727. Imports verity, § 2967, p. 1727. Need certify only so much as suiificient to exhibit error, § 2963, p. 1726. Parties may Stipulate as to what is necessary, § 2964, p. 1727; § 2965, p. 1727; § 2966, p. 1727. To be Printed, § 2975, p. 1731. Remedies for Incomplete transcript, § 2968, p. 1728. Must be Stipulated or Certified, that it is complete record of all neces- sary, § 2966, p. 1727. Sufficient if contains all on which District court acted, if not all on which referee acted, § 2974, p. 1730. Supplementing facts shown on record, § 2967, p. 1728 n. To Supreme Court, § 3023, p. 1748. Time of Perfecting appellate proceedings to appear, § 2972, p. 1730; § 2983, p. 1733. Duty of Referee to Keep, Perfect and Transmit record, § 513, p. 322. Duty of Referee to make up, § 511, p. 322. Of Referee, Certifying to, § 2299, p. 1401. Of Referee to show Notice and to whom given, § 1983, p. 1230. On Review No "Bill of Exceptions," § 2954, p. 1724. Findings of Fact, § 2955, p. 1724. Insufficiency of Grounds for Order to Appear from, § 2952, p. 1723. Issues of Law, to be presented by, clearly and distinctly, § 2951, p. 1723. "Opinion" of District Court, insufficient. § 2956, p. 1724. Of Referee's Orders Certificates to appear, § 2852, p. 1665. Remedies for Incomplete Record, § 2856, p. 1667. GENERAL INDEX. 2237 RECORD— Continued. Order Complained of, to be set forth in, § 2950, p. 1723. Testimony and other Evidence, whether to appear therein, § 29.53, p. 1724. Transmission of referee's record and files, on closing estate, § 2299, p. 1401. RECORDER Filing of Certifica^te with, where real estate among assets, § 920, p. 522. RECORDING Agreement to Insure Operating as Equitable Assignment, § 1253, p. 740. Chattel Alortages or Conditional Sales made in state where recording not '"required" but Contemplating Delivery where "Required," § 1247, p. 739. "Creditor Armed with Process must exist," else transfer not void for lack of record, § 1233, p. 733. Defective Refiling of Chattel Mortgage, § 1240, p. 736. Disguised. Conditional Sales Void for Want of, § 1246, p. 739. Equitable Liens upon Property alreadj' Pledged, § 1252, p. 740. Equitable Liens not "Requiring" record, § 1372, p. 800. Equitable sequestrations insufficient under State law to avoid unrecorded instruments, likewise Bankruptcy Insufficient, § 1235, p. 734. Essential to Protection of lien given within four months, where "required, to impart notice," § 1507, p. 901. "Four :Months" to Date from, § 185, p. 152; § 1367, p. 794. Lack of, where Damage or other Additional Conditions also requisite to avoid transfer, § 1234, p. 734. Liens void as to "creditors" for want of, void as to trustee, § 1229, p. 731. Lien on Both Real and Personal propertj% § 1256, p. 741. Meaning of "Required," § 1232, p. 733. I\Iechanic's and Subcontractor's Lien not recorded nor filed till after bank- ruptcy, § 1255, p. 741. Permitting Levy after bankruptcy in order to "Arm with Process" against unfiled instruments, § 12.39, p. 735. Preferences as Affected by, § 1379, p. 803; § 1380, p. 808; § 1381, p. 808. "Required" Only as to Bona Fide Purchasers and Encumbrancers, what, § 1382, p. 810. Not "Required," not void for nonrecord, § 1243, p. 738. Not "Required" whether preference Dates from taking of Notorious and Exclusive, etc., possession, § 1381, p. 808. Not "Required," but merely "Permitted," § 1383, p. 810. Not "Required," Preference Dates from Actual Transfer, § 1380, p. 808. Taking of Possession Curing Lack of, § 1236, p. 734; § 1384, p. 812. Taking of possession within four months under unfiled Mortgages, § 1236, p. 734; § 1384, p. 812. When "Transfer" Consumated, where recording necessary, § 1334, p. 782. Unfiled or unrecorded chattel mortgages void, § 1230, p. 732. Unrecorded or Unfiled Conditional Sales Contracts void, § 1241, p. 736. Unrecorded Real Estate Mortgages, § 1248, p. 740. Unrecorded Sales of Personalty, § 1249, p. 740. RECORDS IN BANKRUPTCY, § 560, p. 339. Of Referee, to show Notice and to Whom given, § 1983, p. 1230; § 562, p. 340. 2238 GENERAI, INDEX, RECOVERY Either property or its value recoverable, where fraudulently transferred, § 1226, p. 726. REDEEMING FROM LIENS Adverse Claimants in Possession, Jurisdiction over not to be acquired under Guise of Petition to Redeem, § 1871, p. 1163. Cancellation, Assignment or Release, whether Jurisdiction to order exists, on tender of undisputed amount due, § 1826, p. 1121; § 1870, p. 1163. Jurisdiction, § 1868, p. 1126. Procedure, § 1869, p. 1162. Petition to Redeem and Notice, § 1869, p. 1162. Trustee may redeem, § 937, p. 525; § 1197, p. 697. REDELIVERY Petition for order on trustee to redeliver property to third parties, § 1876, p. 1164. See "Reclamation, Surrender or Redelivery." REDEMPTION Of Life Insurance Policies, see "Life Insurance Policies as Assets." Of property from liens, see "Redeeming from Liens." RE-ENTRY Clause of in lease, gives no lien on sale of leasehold, § 992, p. 552 n. RE-EXAMINATION OF CLAIMS Allegations of Petition to be Specific, § 837, p. 483. Claimant must present himself for examination, § 846, p. 488. Nonresident creditor exempt from service of summons while in at- tendance on re-examination of hi« claim, § 846, p. 488 n. Creditor to File Answer, § 841, p. 484. Creditor may not have re-examination of his own claim after disallowance, § 825, p. 478. "Good Cause" to be shown, § 838, p. 483. Jurisdiction, § 811, p. 473; § 817, p. 475. Jury Trial not available, § 849, p. 489. None after closing of estate, § 861, p. 493. Notice on creditor requisite, § 839, p. 484. Notice by referee, and may be by Mail, § 840, p. 484. Though but One Creditor in position to object, yet trustee may object, § 828, p. 480. Original Order of Allowance, Prima Facie case, for creditor, § 843, p. 484. Petition for, requisite, § 836, p. 482. Place for Examination of Claimant, § 847, p. 489. Reimbursement of nonresident Claimant for Expenses in Attendance on, § 828, p. 489. Reconsideration refused for Trustee's Laches, § 842, p. 484. Special Defense, Creditor holding, yet may not have re-examination in his own name, § 829, p. 483. Sufficiency of Petition for, tested in the usual way, § 837, p. 483. After Trustee elected, to be by him or in his Name, § 824, p. 472. Trustee refusing to petition for, may be ordered, § 826, p. 479. GENERAL INDEX. 2239 RE-EXAMINATION OF CLAIMS— Continued. Trustee refusing, creditor or bankrupt permitted to re-examine, § 826, p. 479. Using Trustee's Name — Where trustee himself refuses, § 827, p. 479. See, also, "Using Trustee's Xame." Trustee's Attorney not to act as claimant's attorney, § 851, p. 490. "Variance between Claim and Proof, § 850, p. 489. Witnesses, see "Witnesses." Evidence, see "Witnesses." REFEREE IN BANKRUPTCY Application to Vacate Adjudication to be to Judge, not referee, § 430, p. 276. Contempt before What constitutes, § 2334, p. 1417. Referee no power to commit, § 2235, p. 1418. To Certify facts to judge, § 2336, p. 1418. Making of certificate of, is judicial act, not ministerial dut}-, § 2337, p. 1418. Review of Refusal to certif}-, § 2342, p. 1419. Duties of, § 506, p. 321. To Audit Trustee's accounts, § 517, p. 323; § 2291, p. 1398. To Audit Receiver's accounts, § 518, p. 323; § 2291, p. 1398. To Cause Schedules to be prepared where bankrupt derelict, § 512, p. 322. To Declare Dividends and to prepare dividend sheets, § 507, p. 321. To Examine Schedules, § 508, p. 321. To Furnish Information, § 509, p. 321. To Get Papers from clerk, § 516, p. 323. To Give Notice to Creditors, § 510, p. 322; § 564, p. 342. Certificate on Review, whether to be prepared by Referee, § 2853, p." 1665. To Keep, Perfect and Transmit records, § 513, p. 322. To [Make Up Records and Findings for Review, § 511, p. 322. To Preserve evidence, § 515, p. 322. To Transmit to clerk papers on tile, § 514, p. 322; § 2299, p. 1401. Need not notify bankrupt to file petition for discharge, § 2428, p. 1467. To Transmit Petition and Certificate on Review, § 2859, p. 1669. Expenses of Entitled to remibursement, § 2028, p. 1259. Not covered by "statutory compensation," § 2029, p. 1259. What are proper, § 2030, p. 1259. No reimbursement of, where expenses not required by act or rule, § 2031. p. 1260. Method of apportioning to various cases, § 2032, p. 1261. Fees of, § 2102, p. 1299. No additional compensation, § 2117, p. 1305. Commissions, § 2103, p. 1299. Computed on disbursements to creditors, § 2103, p. 1299. Computed oi| Disbursements to priority and secured creditors, § 2104, p. 1300. Composition Cases, commissions in, § 2106, p. 1300. 2240 GENER^^L INDEX. REFEREE IN BANKRUPTCY— Continued. Sales free from Liens, how commissions computed, § 1996, p. 1236. Sales Free from Liens, commissions when lienholder is purchaser, § 2105, p. 1300. "Twenty-five cents for each claim tiled," part of referee's "Compensa- tion," § 2107, p. 1301. In General Reference to § 520, p. 324. Judge may Dispense with referee and retain charge himself, § 519, p. 323. Reference after adjudication, § 521, p. 324. Reference before adjudication, § 521, p. 324. General Reference, § 521, p. 324. Special Reference, § 521, p. 324. Reference to another referee, § 522, p. 324. Hearings before Competency of Witnesses governed by U. S. Statutes, not by State Statutes, § 551, p. 335. ' Evidence to be ruled on and admitted or excluded by, § 552, p. 335; § 1554, p. 928. Evidence to be heard by, § 553, p. 337. Governed by U. S. Equity Rules, where act and rules silent, § 550, p. 335. Proceedings before referee Summary, § 548, p. 333. Bft not on plane of depositions before notaries, § 549, p. 334. Nor of hearings before masters in chancery, § 549, p. 334. See "Witnesses and Evidence." Impeaching of own Order by, not Permissible, § 1773, p. 1077. Indemnity in Advance, may be required by, § 2021, p. 1257. « "Interested," forbidden to act where, § 504, p. 321. Jurisdiction of Li Absence of Judge may Issue Warrant for Seizure of property-, § 337, p. 232; § 525, p. 328. Appointment of Receiver by, before adjudication, § 379, p. 250. Appointment of Receiver by, after reference, § 380, p. 251. Confirmation of Composition, Referee has no jurisdiction, § 2373, p. 1436. Costs, may be taxed by, § 535, p. 331; § ]995, p. 1234; § 2002, p. 1244. Divested by Confirmation of Composition, § 2391, p. 1445. Distribution ordered by Referee, § 536, p. 331. None to enjoin court or court officer, § 2701, p. 1601. Payment of Priority claims may be ordered by Referee, § 536, p. 331. Sale before adjudication, in judge's absence may be ordered by Referee, § 534, p. 331; § 1946, p. 1214. Special Master on Composition matters, § 2374, p. 1437. Surrender of Property to Rightful owner, may be ordered by Referee, § 1874, p. 1164. Witnesses may be ordered by Referee, to appear for examination, § 537, p. 332. Orders of, § 561, p. 340. . , Order to recite Notice, Appearance and Hearing, § 562, p. 340. Orders of. Res Judicata, § 1771, p. 1076; § 1772, p. 1077. GENERAL INDEX. 2241 REFEREE IN BANKRUPTCY— Continued. Pleadings and Practice before See '"Marshaling of Liens." See "Reclamation, Surrender and Redelivery." See "Restraining Orders and Injunctions."' See "Sales in Bankruptcy— Selling Property Free from Liens." See "Summary Orders on Bankrupts and Others." Practicing in Bankruptcy by forbidden, § 505, p. 321. Purchasing of bankrupt's assets by, forbidden, § 505, p. 321. Records and Files of, § 560, p. 339. Review of referee's orders, see "Appeal and Error — Review of Referee's- Orders." Summary Orders of, set aside only for Alanifest Error, § 1854, p. 1153. Vacating and Modifj^ing of Orders and Findings of, § 563, p. 340. REFERENCE To referee, § 520, p. 324. After adjudication, § 521, p. 324. Before adjudication, § 521, p. 324. General, § 521, p. 324. Special, § 521, p. 324. To another referee, § 522, p. 324. REFUSAL Of Discharge, see "Discharge — Second Petition for." Also, see "Dis- charge — Res Judicata.'' REFUSAL TO ANSWER QUESTION As bar to Discharge, § 2580, p. 1548; § 2581, p. 1548. REFUSAL TO OBEY COURT'S ORDER As bar to Discharge, § 2580, p. 1548. See "Discharge — Opposition to — Grounds of — 'Refusal to Answer Ques- tion.' " REHEARING After Disallowance, creditor may have, though not a "re-e.xamination,'' § 825, p. 478. Where mere Pretense to Revive Right of Appeal, § 859, p. 492. Review of Referee's order refusing, § 850, p. 489. REIMBURSEMENT Of .\ttorncys' Fees Paid by bankrupt in Advance, none, § 2024, p. 1258. Of Bankrupt Care of E.xempt property, none for, § 1092, p. 617; § 2025, p. 1258. Bankrupt Voluntarily Removing Residence after adjudication, no reim- bursement of, § 1578, p. 945. Of Creditors through whose efforts Concealed Assets recovered, § 1713, p. 1057; § 2015. p. 1252; § 2016, p. 1253; § 2018. p. 1255. Must have resulted to benefit the estate, else no reimbursement, § 1714, p. 1057. Property must have been "transferred" or "Concealed" by "bankrupt," else no reimbursement, § 1715, p. 1058. 2 Rem B— 66 2242 GENERAL INDEX. REIMBURSEMENT— Continued. Trustee to be given first opportunity, § 2017, p. 1253. None for Contesting Unjust Claims Before Election of Trustee, § 201S, p. 1254; § 2057, p. 1279. Of Expenses Advanced, § 2022, p. 1257. To Follow Order of Priority of Expenses themselves, § 2026, p. 1258. Of Fraudulent Transferee On Setting Aside Constructively fraudulent transfer, § 1734>^, p. 1067. Of Nonresident Claimant Ordered to appear on re-examination of Claim, entitled to, § 848, p. 489. Of Original Deposit, none except to petitioning creditors, § 2023, p. 1257. Of Referee See "Referee in Bankruptc}- — Expenses of." REJECTION OF CLAIMS See "Allovifance of Claims." RELATIVES Allowability of claims of, § 797, p. 465. Child's claim, allowability of, § 799, p. 467. Close Scrutiny, Rule of prevails as to claims of relatives, § 800, p. 467. DeaUngs between Near, to be scrutinized with care, § 556, p. 338. Disbursements to, on Eve of Insolvency upon alleged debts omitted from previous statements of financial condition, § 2521, p. 1518 n. Excluded in determining Number of Creditors to join in petition, § 199, p. 164. Husband's xA.dmissions while acting as "manager" for wife, § 559, p. 339. Parent's claim, § 799, p. 467. Petitioning Creditors, relatives may be, § 215, p. 174. Votes Cast by, for Trustee, § 888, p. 508. Wife's claim, allowability of, § 798, p. 466. RELEASE FROM DEBTS See "Discharge." REMAINING PARTNER See "Partnership — Selling of Partner's Share." REMANDING For Further Testimony before referee, § 2863, p. 1673. REMEDIES For Incomplete Transcript on Appeal, § 2968, p. 1728. REMOVAL Of Referee, § 499, p. 319. . REMOVAL ANt) DEATH Of Trustee See "Trustee, Removal and Death of." , "REMOVED" AND "REMOVAL" Meaning of Terms as Acts of Bankruptcj-, § 107, p. 105. Forcible Seizure by Creditor not Fraudulent Removal by Bankrupt, § 109. p. 107. GENERAL INDEX. 2243 RENT Accruing on Exempt property after adjudication is also exempt, § 1047, p. 595 n. Of Bankrupt's Mortgaged Premises, uncollected or accruing after bank- ruptcy, § 993, p. 553; § 1885, p. 1180 n. For Care of Exempt property pending setting ofif, § 1093, p. 617. Payment of Current rent not Preference, § 1317, p. 773. Whether Tcustee Bound to pay rent stipulated or only for use and Occu- pation of premises, § 985, p. 549; § 2034, p. 1261. RENUNCIATION Of Obligation operating as Breach of Continuing Contract, § G90, p. 417. REOPENING OF ESTATE Application for To be to Judge, § 2308, p. 1403. No Formality requisite in, § 2309, p. 1403. Xot to be Indefinite: should be verified and show assets unadminis- tered or other lack of "full" administration, § 2310, p. 1403. Not a "suit" within meaning of § 11 (d) limiting "suits" to two years, § 2307, p. 1403. Duty of court to reopen on proper showing, § 2302, p. 1402. Effect of Bar of Statute of Limitations, whether lifted, if estate reopened after two years, § 1791, p. 1083 n. See "Closing of Estate." Year's Limitation for Proof of claims not tolled bj', § 2315, p. 1405. Jurisdiction, § 2300, p. 1401. Lack of "Full" administration, what is, § 2304, p. 1402. Matter of sound discretion, § 2303, p. 1402. Only One Ground for— lack of full administration, § 2301, p. 1402. Procedure subsequent to Trustee elected anew and administration to proceed in usual manner, § 2314, p. 1404. Reasonable Time, reopening must be within: Laches will bar, § 2306, p. 1403. Time Limited, none for application to reopen, § 2305, p. 1402. Who may Apply for Only Creditors who have proved or maj^ prove claims, competent, § 2311, p. 1404. Who may Oppose, § 2312, p. 1404. Whether third party who has interests in property competent, § 2313, p. 1404. REPAIRS Reclaiming of Propertj' left with bankrupt for, § 1877, p. 1165. REPEAL Of Former United States Bankruptcy Laws, causes for, Introd. (k), p. 12; Introd. (1), p. 12; Introd. (m), p. 13. 2244 GENERAL INDEX. REPLEVIN From Court Officer Where Lien b}' Legal proceeding Xullified by bankruptcy, § 1475, p. 878. Seizure on, made first by State court, replevin not Abated, § 1585, p. 958. Substitution of Trustee for bankrupt in pending replevin, § 16-16, p. 1012. Trustee or Receiver, no replevin from, § 1875, p. 1164. Unfounded replevin actions, whether create "liens by legal proceedings," § 1443, p. 853. REPORT See "Accounts and Reports." See "Trustee in Bankruptcy." Of receiver, see "Accounts." Also, see '"Receiver." Of sale, free from liens, § 19.86, p. 1230. Of Trustee Of Exempted Property, § 1074, p. 611. Bankrupt may except to, § 1081, p. 613. Burden, of proof on bankrupt, if exceptions amount to general de- nial, § 1086, p. 615. Creditors may except to, § 1081, p. 613. Creditors must file exceptions within thirty days, § 1082, p. 613. To be Itemized with estimated values, § 1075, p. 611. Pleadings, what are necessary, on exception to, § 1083, p. 614. Verification of exceptions, whether requisite, § 1084, p. 614. Who may except to, § 1081, p. 613. Approval of, ,§ 2288, p. 1398. Auditing of, § 2291, p. 1398. Exceptions to, § 2293, p. 1399; § 2294, p. 1399. Final report, § 2295, p. 1400; § 2296, p. 1401; § 2297, p. 1401. Form of, § 2285, p. 1397. Notice of, § 2288, p. 1398. Review of order approving, § 2287, p. 1398. When to be made, § 2285, p. 1397; § 2297, p. 1401. REPORTING OF FRAUDS A Duty of the bankrupt, § 459, p. 303. "REQUIRED" Meaning of, § 1232, p. 733. Unrecorded lien not void where Recording not "Required," § 1243, p. 738. See "Recording." RES Possession of. Test of Summary Jurisdiction of bankruptcy court, § 1796, p. 1088; § 1807, p. 1101. Possession of, and service of notice, insufficient to render Judgment in Personam, § 1892, p. 1183. RESALE After Refusal to Confirm sale, § 1961, p. 1221. RESCISSION FOR FRAUD Right of, unaffected by bankruptcy, § 1169, p. 687; § 1817, p. 1114. Reclamation of goods by seller, upon, § 1879, p. 1165. Reclamation where goods bought when "Grossly Insolvent," § 1879, p. 1165. GEXERAL INDEX. 2245 RESIDENCE Bankrupt voluntarily Removing, after adjudication, not entitled to Reim- bursement, § 1578, p. 945. Estoppel to Deny, § 33, p. 54 n. Residence of one Partner sufficient to confer Jurisdiction over Partner- ship, § 36, p. 55. RESIDENCE, DOMICILE OR PRINCIPAL PLACE OF BUSINESS All Three Qualifications not Coincidentl}- requisite, § 33, p. 52. Jurisdictional, § 31, p. 52. Lack of, Sufficient, not Bar to Discharge, § 2477, p. 1495. Limitation as to, § 31, p. 52. Residence and Domicile Distinguished, § 33, p. 52 n. Voluntarj- Petition to show, § 191, p. 158. RES JUDICATA Adjudication of Bankruptcy as, see "Adjudication of Bankruptcj-, as Res Judicata." Ad-judicat-on as to Fraud on Discharge, not, in suit by trustee, § 1774, p. 1077. As to Claims Adjudication not, as to Petitioning Creditors' Claims, § 790, p. 463; § 1359, p. 792. Allowance or Disallowance of claim is, § 791, p. 463; § 1771, p. 1076; § 2655, p. 1578. Binding in allowance of claims, § 789, p. 463. "Provisional" Allowance improper, § 793, p. 464. Referee's order determining validity and priority of liens is, § 1772. p. 1077. Referee not to impeach own order, § 1773, p. 1077. Trustee's Failure to Contest Allowance of Claim bar to suit to recover preference, § 792, p. 464. Decision of State Board of Assessment as to taxes, whether is, § 2158, p. 1332. Erroneous Judgment notwithstanding Discharge dulj^ pleaded and proved is, until reversed, § 2687, p. 1596. Fraudulent Conveyance suit. Decree in, whether res judicata on Discharge, § 2655, p. 1577. Former Refusal of Discharge, res judicata as to old debts, § 2575, p. 1547. Judgment, whose Lien null under § 67 (f) nevertheless is, § 778, p. 460; § 1449, p. 858. Judgment of state Court as to Exemptions in same fund, is, § 1087, p. 615. Judgment on Provable debt after bankruptcy and before Discharge, as, § 699, p. 423. Order approving or disapproving trustee's report of exempted property, res judicata elsewhere, § 1086, p. 615. Refusal of Discharge for Concealment, whether is, on Summary Order for Surrender. § 1845, p. 1142 n. Refusal of Former Discharge as Is res judicata as to all claims then provable, § 2666, p. 1587; § 2680, p. 1594. ' Debts in Subsequent Bankruptcy partly same, partly new, whether, ^ 2438, p. 1474. ' 2246 GEXERAI, INDEX. RES JUDICATA— Continued. Dismissal or Failure to File Petition for discharge, in effect a judg- ment refusing discharge, § 2436, p. 1470. No bar to Subsequent Bankruptcy Petitions nor adjudications, § 2441, p. 1477; § 2579, p. 1548. Second petition for discharge not maintainable, § 2437, p. 1471. Under State Insolvency Proceedings, is not, § 2681, p. 1594; § 2440, p. 1477. Under Former Bankruptcy Act, is not, § 2439, p. 1476. Refusal of Summary Order to Surrender Assets, not, in plenary action, § 1775, p. 1077. RESTRAINING ORDERS AND INJUNCTIONS Ancillary Injunction, none in aid of bankruptcy proceedings in another District, § 1912, p. 1192. Adverse Claimants restrained until Appropriate Action can be taken, § § 1905, p. 1190. Adverse Claimants restrained from Interfering with assets in custody of bankruptcy court, § 1906, p. 1190. Adverse Claimants restrained by orders issuable in bankruptcy proceed- ings, § 365, p. 243; § 1654, p. 1028. Assignees and Receivers in State courts enjoined, § 1610, p. 978. Adverse Claimants in possession restrained, § 365, p. 243; § 1654, p. 1028. Before bankruptcy petition filed, no injunction to preserve Status Quo, § 360, p. 242; § 1917, p. 1194. Bankrupt restrained, § 364, p. 243. Bankruptcy petition "caveat to all the world" and "attachment and in- junction," § 1916, p. 1194. Bond and Damages on bond, § 370, p. 245. Comity requires Resort First to State Court, except in exigencj^, § 362, p. 243; § 1904, p. 1190. Court Proceedings Restrained until trustee elected and appropriate action taken, §1598, p. 964; § 1636, p. 1009; § 1907, p. 1191. Court Proceedings enjoined where property in custodj'- of bankruptcy Court sought to be seized or levied on, § 1908, p. 1191; § 1805, p. 1100. Court Officers in Possession, restrained, § 366, p. 244. Courts or Court Officers, referee no jurisdiction to restrain, § 1918, p. 1195. >See "Discharge — Staying Suits against Bankrupt to Permit Interposition of." Enable Trustee to Intervene in Pending suit, § 1598, p. 964; § 1636, p. 1009; § 1907, p. 1191. Error in holding claim Dischargeable, no warrant for 'disobedience of stay, § 2693, p. 1598. Exempt Property, Qualified Stay where Levy sought on Exempt property Not Exempt as to Particular 'M^reditor levying, § 2446, p. 1478; § 2711, p. 1605. Filing of petition to be in bankruptcy proceedings themselves, § 1919, p. 1195. Interference with Trustee's Custody of Exempt property enjoined, § 1028, p. 577. Issued in Case itself, but no part of bankruptcy petition, § 361, p. 243; § 365, p. 243; § 1654, p. 1028. Jurisdiction to issue, § 359, p. 240; § 1901, p. 1187; § 1918, p. 1195. GENERAL INDEX. 2247 RESTRAINING ORDERS AND INJUNCTIONS— Continued. Jurisdiction to issue before adjudication, § 359, p. 240. Jurisdiction of Referee to issue, § 527, p. 329; § 528, p. 330; § 1918, p. 1195. Legal Action requisite to Fix Liability of Sureties, whether enjoined, § ' 1914, p. 1193; § 2712, p. 1605; § 2446, p. 1478. Legal Proceedings Not Nullified by bankruptcy, and State Court prior in Custody, injunction refused, § 1909, p. 119i. Levy on Exempt Property after same set apart, not restrained, § 1915, p. 1194. Levy on Exempt property, whether may be restrained for other pur- poses than to interpose discharge, § 1910, p. 1191. Levy Not Made Within Four months, not enjoined, § 1903, p. 1190. Liens by Legal Proceedings Nullified by bankruptcy, injunctions may be issued to aid bankruptcy court to obtain possession, § 1474, p. 877; § 1902, p. 1189. Notice of, § 363, p. 243; § 1921, p. 1196. Obstructive Suits brought after bankruptcy court acquires custody, re- strained, § 1805, p. 1100; § 1908, p. 1191. Out of District of Issuance ineffectual,' § 367, p. 244. Petition for, requisite, § 1919, p. 1195. Pledgee's Sale not enjoined, unless Fraud or Oppression exists, § 761, p. 451; § 1913, p. 1192. Prayer for, none to be in petition for adjudication, else multifarious, § 250, p. 190. To Prevent Trustee in bankruptcy Interfering with others' rightful cus- tody, § 1900, p. 1187. Qualified Stay where levy sought on exempt property not exempt as to particular creditor levying, § 2711, p. 1605; § 2446, p. 1478. Qualified Stay where judgment necessary to perfect rights against surety or property, § 648, p. 389; § 1524, p.»908; § 1914, p. 1193; § 2446, p. 1478; § 2712, p. 1605. Qualified Stay, where legal action necessary to perfect rights against Stockholder,, on Liability, § 1914, p. 1193. Referee may issue, § 527, p. 329; § 1918, p. 1195. Referee may not restrain courts or officers, § 528, p. 330^ § 1918, p. 1193. Reviewable by Petition to Revise, § 2937, p. 1716 n. Sale or Distribution under Levy made within four months, enjoined, § 1902, p. 1189; § 1474, p. 877. Secured Creditors restrained, § 365, p. 243, § 760, p. 451. Suits in Personam against Receiver, Trustee or Marshal for Wrongful Seizure not restrained, § 1911, p. 1192. Suits in State Court, Bankruptcy Court may Stay, § 2700, p. 1601. Sureties, Qualified Stay of suit where Judgment necessary to Perfect Rights against surety or property, § 648, p. 389; § 1524, p. 908; § 1914. p. 1193; § 2446, p. 1478; § 2712, p. 1605. Verification of Petition for, § 369, p. 245; § 1920, p. 1196. Who may petition for, § 368, p. 244. Bankrupt, § 368, p. 244. Creditors, § 368, p. 244. Receiver, § 368, p. 244. RESTRICTIONS ON ALIENATION Whether property passes, § 975, p. 546. 2248 GENERAL INDEX, RESULTING TRUST Concealment of propertj' held on, § 2510, p. 1510. Property held by bankrupt as trustee of, does not pass, § 974, p. 546. Propert}' held by another for bankrupt on, passes, § 973, p. 546. "RESULTS ACHIEVED" Element in Fixing Attorneys' Fees, § 2047, p. 1268. RETAINER FEE No place in bankruptcy costs, § 2050, p. 1274. RETIRING PARTNER See "Partnership — Selling of Partnership Share." RETROACTIVE LAW Amendment of 1903 Alay apply where acts committed before 1903, § 2552, p. 1538; § 255S, p. 1540; § 2576, p. 1547. Discharge not refused for acts committed before enactment of law, § 2482, p. 1499. "False Oath" in bankruptcy proceedings under law of 1867, no bar to dis- charge, § 2532, p. 1526. "False Statement in Writing" before Amendment of 1903, whereby prop- erty obtained on credit, sufficient as bar if proceedings instituted after amendment, § 2558, p. 1540. Right of discharge governed by law at time of instituting bankruptcy pro- ceedings, § 2483, p. 1501. RETURN OF GOODS TO SELLER Right of Rescission not existing, is a preference, § 1302, p. 764. Right of Rescission existing, not a preference, § 1307, p. 766. REVIEV/ See "Appeal and Error." Duty of referee to make up records and findings for, § 511, p. 322. 'Of Findings of Arbitrators, § 925, p. 523. Petition for, under, § 24 (b) Exemption Matters, petition for Review and not appeal is proper remedy, § 1110, p. 634. Exemption matters, no review, unless trustee appointed, § 1111, p. 634. Petition for When proper, and when appeal proper, § 2880, p. 1689; § 2883, p. 1693; § 2884, p. 1694; § 2885, p. 1695; § 2886, p. 1695; § 2887, p. 1695; § 2888, p. 1696. In "Proceedings in Bankruptcy Proper." See "Appeal and Error — Appeals to Circuit Court of Appeals — In Bankruptcy Proceedings Proper." Of Referee's Order Refusing to reopen hearing, § 860, p. 493. REVIEW IN SUPREME COURT From Courts of Bankruptcy Certiorari, § 3024, p. 1748; § 3025, p. 1749. Petition for review, § 3024, p. 1748. Writ of Error, § 3024, p. 1748. From State Supreme Court When Federal question presented, § 3026, p. 1749. GENERAI, INDEX. 2249 REVIVAL OF DISCHARGED DEBT See "Discharge— Revival of Discharged Debt." REVIVING LOST RIGHT OF APPEAL, § 2990, p. 1735; § 2991, p. 1735. REVOCATION OF COMPOSITION See "Composition — Setting Aside of." RIGHTFUL OWNER Trustee ordered to Surrender to, § 1872, p. 1163. RIGHTS OF ACTION On Contracts Pass to trustee, § 1019, p. 568. Personal Services Involving Trust and Confidence, contracts for do not Pciss, § 1021, p. 570. For Injury to Property Pass to trustee, § 1019, p. 568. Tort for Injury to Person does not pass, § 1020, p. 569. RIGHT OF CONTRIBUTION Existence of, though no Firm Debts or Assets, exist is sufficient to confer jurisdiction to adjudge partnership bankrupt, § 58, p. 65. SALE By Assignee, where . assignment subsequently superseded by bankruptcy, § 1613, p. 980. For Cash or on Credit, not a preference, § 1316, p. 773. By Insolvent Corporations, § 1734, p. 1067 n. Of Life Insurance Policj^ § 1011, p. 562. Pledgee's Sale not Restrained, unless Fraud or Oppression exists, § 1913, p. 1192. As Provided for by the First English Bankruptcy Act, 34 Henry VIII, Introd. (g), p. 6. Restraining sale under Levy, § 1902, p. 1189; § 1903, p. 1190. See "Sales in Bankruptcy." Trustee bound by bankrupt's, § 1145, p. 676. Bankrupt's Contracts of Purchase or, § 1147, p. 677. Setting Apart or Delivery Sufficient to pass title, § 1146, p. 676. Trustee may urge facts do not constitute, § 1206, p. 698. SALES TO BANKRUPT WHEN "GROSSLY INSOLVENT" Reclaiming of the goods sold, § 1879, p. 1165. SALES IN BANKRUPTCY Bankrupt may be bidder, § 1955, p. 1218. Before adjudication judge alone to order sale, unless unable to Act, § 1946, p. 1214. Before Adjudication referee may order, in Judge's Absence or Disability, § 534, p. 331. Bids both in Bulk and parcels, with Acceptance of greater Aggregate, § 1936, p. 1209. Bid of Less than Seventy-five per cent, may be accepted, § 1956, p. 1219. "Caveat Emptor," § 1959, p. 1220. Cash, whether Sale to be for, § 1935, p. 1209. 2250 GENERAL INDEX. SALES IN BANKRUPTCY— Continued. Discretion of Court greater than in other sales, § 1951, p. 121G. Discretion in approving or setting aside sale, not revised, except for abuse, § 1960, p. 1231. Equity Rules Followed where Act, Forms and Orders silent, § 1932, p. 1208. Formal Approval not always essential to confirmation, § 1958, p. 1220. "Free from Liens" Consent of Lienholder's Attorney to appearance, § 1980, p. 1229 n. Commissions of Referee and Trustee on, § 2105, p. 1300; § 2112, p. 1302. Costs and Expenses taxable, § 1995, p. 1234. Costs and Expenses first deducted and liens paid out of remainder, § 1992, p. 1233. Each Fund to bear its own expenses and costs, § 1990, p. 1233. Expenses of Preservation and Sale paid out of particular fund in- volved, § 1989, p. 1232. Failure to Object to Sale without Separation waives lienholder's rights to proceeds, where lien only on part, § 1987, p. 1232. Free from Some liens, subject to others, § 1969, p. 1225. If Foreclosure necessary. Parties relegated to State Court, § 1972, p. 1227. Form for notice, none established, § 1981, p. 1229. General Costs of Administration not chargeable, § 1993, p. 1233. How Lienholder to Set up Lien, § 1985^ p. 1230. Inchoate Dower Outstanding, § 1973, p. 1227. Jurisdiction, § 1965, p. 1223; § 1975, p. 1228. Lienholder as Purchaser may Apply Lien on Price, except as to su- perior Liens, § 1997, p. 1236. Lienholder's Consent not necessary, § 1966, p. 1225. Lienholder who desires to bid Objecting, no sale ordered until Valid- ity, etc., determined, § 1968, p. 1225. Notice to Lienholders requisite, § 1980, p. 1229. "Order to Show Cause," approved Form of Notice, § 1982, p. 1229. Proportionate part not to be charged against each lien, § 1991, p. 1233. Reasonable prospect of Surplus must appear, or Lienholder's request requisite, § 1971, p. 1226. Referee may order sale free from liens, § 533, p. 331; § 1975, p. 1228. Record of referee to show Notice and to whom given, § 1983, p. 1230. Reviewable by petition to revise, § 2937, p. 1716. Taking Additional Evidence, after sale, to fix proportions of fund, § 1988, p. 1232. Transferring Liens to Proceeds, § 1965, p. 1223. Transfer of Liens to Proceeds, to be provided for in order, § 1970, p. 1226. Trustee may sell "free from Liens," § 939, p. 525. Trustee's Attorney's fees and expenses benefiting entire fund charge- able, but not for services in litigating liens, § 1994, p. 1234. Before Validity or Priority of Liens determined, § 1967, p. 1225. Wife Consenting to sale free from Dower, § 1974, p. 1227. For "Good Cause" shown may be at Private Sale, § 1948, p. 1214. "Gross Inadequacy" sufficient to refuse confirmation, § 1952, p. 1216. Inherent Power to refuse Confirmation of or to Set Aside, even where not expressly ordered "subject to approval," § 1957, p. 1219. GENERAL INDEX. 2251 SALES IN BANKRUPTCY— Continued. i\Iere Inadequacy, or merely a Better Offer, insufficient to refuse confir- mation, § 1952, p. 121G. Misconduct of Trustee, § 1954, p. 1317. Notice (ten days) by mail to all creditors requisite, § 1938, p. 1209; § 565, p. 343. Petition to sell, who may file; Trustee, Receiver, Marshal, Bankrupt, § 1941, p. 1211. Perishable Property sold Without Notice, § 1942, p. 1212. "Perishability," meaning of, § 1944, p. 1212. Pendency of Composition suspends, § 1941, p. 1211 n; § 2348, p. 1425. Petition and Order requisite, § 1931, p. 1207. Proceedings in Bankruptcy proper, not "Controversies," § 2876, p. 1688. Private Sales of Real Estate or Personal property. Advertised and con- ducted as court directs, § 1940, p. 1210. Public Auction of Real estate to be, also, on Four Weeks Advertisement, and at county courthouse or on premises, § 1939, p. 1210. Public Auction, Sales to be at, unless expressly authorized at private sale, § "l947, p. 1214. Real Question not about Order of Sale nor Claim, but about Lien or title itself, is not a question in "Proceedings in Bankruptcy Proper," § 2877, p. 1689. Remedies against Purchaser, § 1999, p. 1236. Referee may order, § 532, p. 331. Referee orders sales after Reference, § 1945, p. 1214. Resale, § 1961, p. 1221. Reviewable by petition to review, § 2937, p. 1716. Sales before Adjudication, § 534, p. 331; § 1943, p. 1212. Sales subject to Approval and to be for Seventy-five per cent., § 1949, p. 1215. Separate Accounts of each fund to be kept, § 1986, p. 1230. Stifling of Competition at, § 1954, p. 1217. Special Orders as to ^Manner of Sale, § 1933, p. 1208. Surnmary Power to compel Purchaser to complete sale, § 1962, p. 1221. Suit b}^ third Party against Purchaser, Bankruptcy Court no jurisdiction to Entertain, § 2000, p. 1237. "Subject to Liens" Jurisdiction, § 1963, p. 1223. Not mentioned to be otherwise, sale will be subject to liens, § 1964, p. 1223. Trustee may sell, subject to, § 938, p. 525. Trustee's Deed or Bill of sale, § 1998, p. 1236. See "Forms." Trustee's Discretion ordinarily of controlling weight in fixing details, but creditors, and even bankrupt may be heard, § 1937, p. 1209. Trustee's Sale, a Judicial Sale, § 1950, p. 1215. Unfairness towards Bidders at, § 1954, p. 1217. "SALES OF MERCHANDISE IN BULK" Whether bankrupt entitled to exemptions out of unpaid purchase price, until creditors paid, § 1036, p. 590. SALESMAN Traveling, entitled to priority, § 2170, p. 1338. 2252 GENERAL INDEX. •'SAME CLASS" Who are in, § 1387, p. 816. "SATISFACTORY PROOF" Of Assignment of claims already proved, § 744, p. 442. Requisite upon summary orders upon bankrupt, § 1842, p. 1137. "SATISFYING" EVIDENCE When necessary on Discharge, § 2639, p. 1572. SEAL OF COURT All process, summons and subpoenas to be under, § 1537, p. 918 n. SECOND ACT OF BANKRUPTCY Preferences, § 117, p. 109. See "Acts of Bankruptcy — Preferences." "SECONDARILY LIABLE" Proof of Claim by person contingently or secondarily liable, § 611, p. 362. See "Sureties and Guarantors." SECONDARY LIABILITY Discharge of principal does not afifect, § 2671, p. 1589. SECRET OR SILENT PARTNER On Discovery brought in, § 70, p. 74. Claim of, not debt against partnership, § 2247, p. 1372. "SECRET TRUST" Concealment of property held on, § 2510, p. 1510; § 2511, p. 1511; § 2512, p. 1513; § 2513, p. 1514. Property held on recoverable by trustee, § 1216, p. 719. SCHEDULES Abbreviations to be avoided, § 486, p. 311; § 2764, p. 1624. Addresses, None Given in. Discharge not granted unless Showing of Due Diligence made, § 2431, p. 1469 n. After adjudication Voluntary and Involuntary' proceedings alike, except as to time of filing schedules, § 476, p. 308. Amendment of, allowed, § 492, p. 313. Assets, schedule of, § 477, p. 308. Actual Knovi^ledge by Creditor, cures defective scheduling, § 2777, p. 1627. Xo particular form of notice requisite, § 2778, p. 1627. Agent's knowledge imputable to principal, § 2779, p. 1627. Notice' not sufficient unless in time for creditdr to avail himself of benefits of law, § 2780, p. 1627. Attorneys' fees out of estate for preparing, § 2082,^ p. 1288. . Bankrupt Failing to File Duty of Referee to cause; Schedules to be prepared where Bankrupt Derelict, § 512, p. 322. Petitioning Creditors or Referee to prepare, when, § 478, p. 309. Ditto Marks to be avoided, § 486, p. 311; § 2765, p. 1624. Duty of bankrupt to file, § 477, p. 308. Duty of referee to examine, and require amendment of, § 479, p. 309; § 508, p. 321. GENERAL INDEX. 2253 SCHEDULES— Continued. "Due Scheduling," what constitutes Address unknown, § 2774, p. 1626. All Addresses unknown, § 2776, p. 1627. Abbreviations, § 486, p. 311; § 2764, p. 1624. Where Claim Assigned, and No Notice of Assignment given, § 2768, p. 1625. Debts intentionally scheduled in name of original payee, when held by third person, § 2767, p. 1625. Dependent on facts of particular case, § 2762, p. 1623. Ditto Marks, § 486, p. 311; § 2765, p. 1624. Idem Sonans, § 2772, p. 1626. Initials, § 2763, p. 1623. ' Innocent Mistake, § 2773, p. 1626. Partnership debts in individual bankruptcy of partner, § 2766, p. 1624. Reasonable Diligence in ascertaining correct address, § 2775, p. 1626. Stockholder's liability, § 2769, p. 1625. Street number, § 2770, p. 1G26. As Evidence, § 494, p. 313 n; § 1747, p. 1071; § 2323, p. 1412. As Evidence, not to be used before grand Jury, § 2323, p. 1412. Exempt Property to be Scheduled among Assets as well as under Claim, § 490, p. 312. Exemption Claim, schedule of, § 477, p. 308; § 1050, p. 603; § 1051, p. 603; § 1049, p. 603; § 1052, p. 603. Filed with petition in Voluntary cases, § 481, p. 309; § 190, p. 157. Filed Within Ten Days after Adjudication, in Involuntary cases, § 482, p. 309; § 190, p. 157. Importance of, in bankruptcy, § 483, p. 309. Liabilities, schedule of, § 477, p. 308. Names and Addresses of Creditors to be given, § 489, p. 312. Notation to be made against each item, § 485, p. 311. Officer of Corporation to prepare, § 480, p. 309. Omitting property from, when "False Oath," § 2541, p. 1528. Omitting creditors from, when "False Oath," § 2542, p. 1531. Omitted Creditors added by amendment, § 493, p. 313. Omitted Creditors not to be added by amendment after discharge, § 2722, p. 1628. Omitted Creditors not to be added after expiration of year for filing claims, § 494, p. 313. Requirements of, in general, § 484, p. 310. See "Schedules— Due Scheduling, What Constitutes." Scheduling does not Revive Debts barred by Statute of limitation, § 787, p. 462. Scheduling by bankrupt not Essential to passing of title, § 1113, p. 635. Signature to, § 497, p. 311. Verification of, § 497, p. 311; § 488, p. 312. SCHEME OF COMPOSITION Candidate for trustee interested in, incompetent, § 891, p. 509. SCOPE OF BANKRUPTCY LAW See "Objects of Bankruptcy Law." See "Nature of Bankruptcy Law." 2254 GENERAL INDEX. SECTIONS OF BANKRUPTCY ACT REFERRED TO Sec "Bankruptcy Act-Sections Construed or Referred tc." SECURED CLAIMS Allowability of Accommodation notes of third parties given as collateral not to be deducted, § 752. p. 4-16. Determination of value of securities, § Toy, p. 450. Creditor entitled to pursue method of determining value of securities stipulated in contract, § 760, p. 451; § 1913, p. 1192. Unless oppressively or unfairly exerdsed, § 761, p. 453; § 1913, p. 1192. Which of remaining four methods of determining value of securities, left to court's discretion, § 762, p. 454. Preliminary determination of value of securities for voting purposes, § 763, p. 434. No judgment in bankruptcy proceedings against claimant, for excess of security, § 764, p. 454. Withdrawing claims tiled as unsecured and tiling as secured, § 765, p. 454. Proof of secured debt as unsecured, when waiver and when not, § 766, p. *55. ^ Security surrendered, claim allowed without deduction, § 767, p. 455. Meaning of "Secured" claims. § 74S. p. 445. Secured distinguished from Pro\-able claim. § 749, p. 446. Distinguished from "preferred" claims, § 750, p. 446. Allowable only after Deduction of securities. § 751, p. 446. See "Deduction of Securities." Notes of third parties endorsed by bankrupt as collateral deducted, § 752, p. 446. No double proof on original proof and on endorsement of collateral, § 733, p. 44T. Orders on Third parties by bankrupt Deducted, § 754. p. 447. Securities on exempt property- deducted, § 755, p. 447. WTiether holder of Waiver of Exemption note, a "secured" creditor, § 755, p. 447 n. No deduction where securities not on bankrupt's property, | 756» p. 445. Creditor's secret renewal of securities in own name. witJtout bankrupt's knowledge, security still "bankrupt's property." § 75'6v p- 449 rr. Xo deduction for amounts paid by surety, § 757, p. 450'. Xo deduction for property of principal held as security, by creditor ■where surety bankrupt. § 75S, p^ 450. Deposit in Composition coses, whether to* CoTrer Deficit o>m Unifiled secured claims, § 2367. p. 1434. Xote containing Waiver of Exemptions, whether is a "■secured ■ -Tafm; '^ § 1034. p. 5S7 n. Proof of. § 606s p. 360l Remedies cf Creditors holding. Unimpaired d-uring pendency of pertttioQ, I H29> p. 643. Year's Limitation for F fling applies tov as to deficit, | T2S, p. 43T. GENERAL IXDEX, 2255 SECURED CREDITORS Selling of Securities' by, not enjoined, § 1913, p. 1192. Vote only for Deficit, § 576, p. 349. "Adverse Claimants," -nhen, § 1679, p. 1034. Competent as Petitioning Creditors to extent of Deficit, § 220, p. 175. In Composition cases participate to amount of Deficit, § 2395, p. 144S. SECURED DEBT Payment of, therebj- Releasing Securities of Equal Value, no Preference, § 1325, p. 776. SECURITIES Exchange of, of equal value, not preference, § 1320, p. 774. But if Xew Securities exceed value of old, preference arises, § 1321. p. 775. If securities remain same but indebtedness be increased by antecedent debts, preference as to antecedent indebtedness arises, § 1322, p. 77fi. If securities and debt both increase, but increase of debt be for present consideration, no preference arises. § 1323, p. 776. Withdrawal of old security and substitution of new must be con- temporaneous, § 1324. p. 776. Exhaustion of Tax not such secured claim as requires, § 2163, p. 1335. Included in term "Transfer," § 1332, p. 780. Payment of Secured debt, thereby releasing Securities of equal value, no preference, § 1325, p. 776. See. also, "Secured Creditor." SECURITY FOR COSTS By Receiver. § 396. p. 25S. In U. S. District court, § 1756, p. 1073. In State court, § 1760, p. 1074. SEDUCTION Judgment for, when Discharged, § 2754, p. 1620. Liabilities for, when not Discharged, § 2760, p. 1621. SEIZURE See "Provisional Seizure of Property'." SEIZURE OF ASSETS Prov'ded for in First English Bankruptcy Act, 34 Henry VIII, Introd. (g). p. 6. SELECTING EXEMPTIONS Bankrupt maj- select in kind regardless of impairing remainder, § 1044, p. 594. See "Exemptions — Claiming of." SELLING FREE FROM LIENS See "Sales in Bankruptcj- — Free from Liens." SEPARATE FINDINGS OF FACT AND LAW Vacating of Discharge, where requested but not made, § 2S18, p. 1649. 2256 GEXERAL INDEX. SERVANTS See "Wages — Of Workmen, Clerks and Servants." SERVICE Of Process In General, § 1537, p. 918. On Nonresident, in tj. S. District Court, § 1755, p. 1073. Of Subpoena In General, § 1537, p. 918. Whether proceedings have been instituted "Within Four ]^Ionths" period ■ is not determined by, § 188, p. 154. Of Summons In General, § 1537, p. 918. Nonresident Creditor Exempt from, while in Attendance on Re-Exam- ination of his claim, § 846, p. 488 n; § 1570, p. 942 n. SET-OFF AND COUNTERCLAIM Appealability of rejection or allowance of, § 2910, p. 1705. Burden of Proof of Propriety of, on debtor, § 1183, p. 693. Claim not proved within year, nevertheless available as, § 1178, p. 690. Contingently Owing, set-ofif and counterclaim may be, § 1174, p. 683. Need not be Due if Owing, § 1173, p. 688. Excess of, presentable as Claim against estate, § 1187, p. 694. Which Governs, law of State, United States, or of Forum, § 1171, p. 688. General Deposits in Bank available to bank as, if not applied by bankrupt on bank's claim, § 1180, p. 691. Indirect Preference bi' Creditor Selling Claim and Purchaser using it as offset to purchase price of goods bought from bankrupt, § 1181, p. 692. No Judgment against trustee for Excess of, § 1187, p. 694. No Judgment in bankruptcy proceedings against Offsetting claimant where estate's claim exceeds claimants, § 1188, p. 694. ]\Iutual Demands must have existed before bankruptcy, § 1172, p. 688. Mutual debts to be between Same Parties, in Same Capacity, § 1176, p. 689. Must be Provable Debt, § 1177, p. 689. Purchased with Knowledge of Insolvency or to use as offset, not allowable, § 1182, p. 692. Right of. Unimpaired by bankruptcj^, § 1170, p. 687. Right of under § 68 distinguished from preferred creditor's right to set oflf new credit, § 1417, p. 840. Separate Debt not to be offset against joint debt, § 1175, p. 689. Special Deposit by Tenant with landlord, how to be applied on subsequent bankruptcy, § 1186, p. 694 n. Stockholding Creditor may not offset against Unpaid Subscriptions, § 1186, p. 693. Supervening Insolvency Destroying right of, § 1184, p. 693. Supervening Insolvency Creating right of, § 1186, p. 694. Trustee entitled to all set-offs and counterclaims of bankrupt, § 1203, p. 698. Voidable Preference not available as, § 1179, p. 690. "SET-OFF OF NEW CREDIT BY PREFERRED CREDITOR" Basis of Right, § 1418, p. 840. Distinct Transactions with same creditor within four months, not severed, § 1421, p. 842. gi;neraIv index. 225? "SET-OFF OF NEW CREDIT BY PREFERRED CREDITOR"— Continued Entire Transaction Occurring within Four months and after insolvencj-, no Preference, § 1420, p. 842. "Good Faith" in acquiring offset requisite, § 1424, p. 845. Goods Purchased by Subsequent credit must go to enrich estate, § 1423,. p. 844. Net Result, as to Enrichment of Estate after insolvency, test, § 1419, p. 841. Payments upon Purchases on Subsequent Credit are not themselves pref- erences, § 1425, p. 845. Right of, t; 1416, p. 839. Right of distinguished from Ofifset under § 68, § 1417, p. 840. Subsequent Credit, to extent of any Security given, not to be Ofifset, § 1422, p. 844. SETTING APART OF EXEMPTIONS See "Exemptions, Setting Apart of." SETTING ASIDE FRAUDULENT OR PREFERENTIAL TRANSFERS IN STATE COURT Allowability of Claims of Transferee, on, § 775, p. 459. Dividing fund on, solely among "subsequent" creditors, § 2221, p. 1362. SETTLEMENT BETWEEN BANKRUPT AND DEBTORS In other than in statutory manner of composition, § 2357, p. 1430. SEVERAL CLAIMS BY SAME CREDITOR Xeed not be in one proof, § 615, p. 365. Better practice to include all in one proof, § 615, p. 365. SEVERING DISTINCT TRANSACTIONS Efifect of, in cases of preferences, § 1421, p. 842. SHARES OF STOCK Claims for conversion of, by bankrupt broker, § 804, p. 470 n. SHERIFF "Adverse Claimant" until Adjudication, § 1662, p. 1030; § 1828, p. 1124. "Adverse Claimant" where he has already paid over proceeds to execution creditor, § 1477, p. 878. Costs and Expenses of, in "Preservation of Estate" subsequent to filing petition. § 2014, p. 1250. Where Lien by Legal Proceedings Nullified by Bankruptcy "Adverse Claimant," where he has already paid over proceeds to execu- tion creditor, § 1477, p. 878. Liable if pays over proceeds of, after bankruptcy petition liled, § 1484, p. 883. Need not be kept in possession, § 14SS, p. 885. No right to retain Creditors' Costs nor to retain Property until costs paid, § 1486, p. 885. Order may not require surrender of more than is in officer's hands, § 1830, p. 1125. Paying over Proceeds of Lien by Legal Proceedings before filing of bankruptcy petition, protected, § 1483, p. 883. 2 Rem B-67 2258 GENERAI, INDEX. SHERIFF— Continued. Replevin from, § 1475, p. 878. Suit against for Money Had and Received, § 147G, p. 878. Summary Order upon, to Surrender assets, § 1474, p. 877; § 1829, p. 1125. Procedure on obtaining surrender of assets from, § 1860, p. 1158. If application be to State court, procedure follows that of such court, § 1861, p. 1158. If application be to Bankruptcy court, procedure follows ordinary rules as to Summary Orders on Bankrupts and Others, § 1862, p. 1158. Proceeds of Execution sale in hands of, where levy made before four months, whether subject to summary order, § 1816, p. 1114; § 1827, p. 1122 n. Referee no jurisdiction to enjoin, § 2701, p. 1601. SHIP BUILDING CORPORATIONS See "Manufacturing Corporations." SIGNATURE To Involuntary Petition requisite, § 276, p. 202. To Proof of Claim, requisite, § 614, p. 364. To Specifications in Opposition to Discharge requisite, § 2593, p. 1552. To Schedules requisite, § 487, p. 311. To Voluntary Petition requisite, § 194, p. 159. SIMULTANEOUS APPEAL AND PETITION FOR REVIEW, § 2918, p. 1709. "SIX MONTHS OR GREATER PORTION THEREOF" Defined, § 34, p. 54. SOLICITATION By Bankrupt, to File Involuntary Petition, not improper, § 216, p. 174. By Bankrupt, not to file Involuntary Petition not improper, § 216, p. 175. Of Claims, not Illegal, § 885, p. 504. By Creditors, not to Resist Petition, not improper, § 216, p. 174. Of Ofifice of. Trustee, No Disqualification of candidate, § 885, p. 504. SOLVENCY As Defense to Involuntary Petition Complete Defense to Fraudulent Transfer, Removal, etc., as act of bankruptcy, § 116, p. 109; § 177, p. 148. . Date of Solvency, date of Petition, § 176, p. 148. No Defense to Assignment as act of bankruptcy, § 147, p. 128. No Defense to "Written Admission" as act of bankruptcy, § 170, p. 143. SPECIAL MASTER Abuse of Power of Appointment of, § 24, p. 39 n. Compensation of, on discharge, § 2660, p. 1578. Findings of Fact by, not reversed except for Clear Error, § 2634, p. 1569. Hearings before, on Discharge, § 2628, p. 1567. Whether to exclude improper evidence, § 2629, p. 1567. Motions and demurrers, § 2627, p. 1567. Whose duty to bring on hearing before, § 2628, p. 1567 n. GENERAL INDEX. 2259 SPECIAL MASTER— Continued. Reserving decision as to admissibility of evidence, § 2629, p. 1568 n. Findings of fact as well as evidence, § 2630, p. 1569. Conclusions of law, § 2631, p. 1569. Exceptions to report and findings of, § 2632, p. 1569. Court presumed to have investigated case on merits, on master's re- port, § 2633, p. 1569. Judge may refer issues to, § 2625, p. 1566. Opposition to Discharge may be referred to, see "Discharge — Opposition to." Petition for Adjudication may be referred to, see "Adjudication of Bank- ruptcy." Report and Findings of, § 2632, p. 1569. Revocation of Discharge may be referred to, § 2S21, p. 1649. SPECIAL STATUTES Peculiar rights or remedies given to creditors by Simple Contract creditors in some States Competent to set aside fraud- ulent Conveyance, § 1265, p. 745 n. Intermediate Creditors' rights where chattel mortgage withheld from record, § 1265, p. 745 n. Rights as between subsequent and general creditors where mortgage, voidable only as to subsequent creditors, is set aside, § 1265, p. 745 n. All mortgages within three months of failure by State Statute pre- sumptively fraudulent unless rebutted by proof of present real con- sideration, § 1265, p. 745 n. Trustee succeeds to, § 1265, p. 745. Statutory provision that property consigned to factor or Agent who does not designate his capacity, goes to all creditors on Insolvency, § 1265, p. 745 n. Conditional Sales wholly void, § 1265, p. 745 n. Spendthrift Trusts, § 1265, p. 745 n. Vitiation of Execution levy by using it as mere security, § 1265, p. 746 n. Preferentral Transfer, § 1265, p. 746 n. Void as to creditors, meaning in one State "Judgment" creditors, not necessarily "Levying" creditors, § 1265, p. 746 n. No evasion permitted of Statute requiring recording within six months of execution, by keeping renewals off record, § 1265, p. 746 n. "Warehouse" receipts — insufficient "warehousing" where merely space in bankrupt's own warehouse rented, § 1265, p. 746 n. SPECIFICATIONS IN OPPOSITION TO COMPOSITION Form and allegations of, similar to discharge, § 2380, p. 1440. Ten days lime after appearance, for filing, § 2379, p. 1440. SPECIFICATIONS Of opposition to discharge, see "Discharge — Opposition to — Specifications." "SPENDTHRIFT TRUST" Beneficial Interest of bankrupt in, whether it passes to trustee, § 975, p. 546. Trustee of, is an "Adverse Claimant," § 1672, p. 1032. 2260 GENERAI, INDEX. SPLITTING CASE None on Appeal, § 2903, p. 1703. SPLITTING CLAIM To Obtain Jurisdictional Xumber improper, § 204, p. 167. Single claim not to be split, § 616, p. 365. STATE BANKRUPTCY AND STATE INSOLVENCY LAWS AND PRO- CEEDINGS Basis of Supersedence of, § 1626, p. 990. Bankruptcy and Insolvency laws, and General Assignment laws, dis- tinguished, § 1632, p. 1004. Ipso Facto Suspended, § 1629, p. 996. Simply held in abeyance, § 1631, p. 1003. Superseded by Bankruptcy Act, § 1625, p. 988. Suspended during existence of Federal bankruptcy Act, as to all classes subjected to latter, § 1628, p. 993. Xot Suspended nor Inoperative as to classes not covered by Federal Act, § 1630, p 998. STATE COURTS Administei" bankruptcy law, § 1597, p. 964. Trustee, intervening in pending suit, not coniined to rights accorded by State law, § 1597, p. 964. Congress May Constitutionally Impose Enforcement of Bankruptcy Laws on, § 14, p. 29. Custody of. Preserved in Part, and in Part Superseded, § 1587, p. 962. Governed by State law and Judicial Policy in granting or refusing substitu- tion or intervening of trustee, § 1648, p. 1013. Jurisdiction of, in bankruptcy matters, § 1687, p. 1038. Jurisdiction of, see "Conflict of Jurisdiction." Obtaining Leave from Bankruptcy court, not prerequisite to suing in, § 1722, p. 1061. Restraining of proceedings in. Until Trustee Elected and appropriate ac- tion can be taken, § 1907, p. 1191. Restraining of proceedings in, where property in custody of bankruptcy court sought to be seized, § 908, p. 1191. Trustee's Intervention in, does not Oust State court, § 1596, p. 964; § 1648, p. 1014. Trustee may sue in, § 1721, p. 1061. STATE LAW "Arming with Process," where not requisite by. not requisite in bankruptcy, § 1210, p. 708. Whether an "Assignment Law" or "Bankruptcy Law," or "Insolvency Law" determined by, § 1632, p. 1007; § 1633, p. 1007. As Construed by Highest State Tribunal, governs exemptions, § 1042, p. 593. "Creditor" same as in, so far as concerns necessity of "arming with proc- ess, § 1209, p. 706. Of Domicile governs as to Exemptions, § 1038, p. 591. Determines effectiveness of transaction to accomplish transfer of title, § 1139, p. 666; § 1275, p. 754. GENERAL INDEX. 2261 STATE LAW— Continued. Governing exemptions and priorities not lack of "uniformity," § 6, p. 22. Judicial Notice of, § 781, p. 461. Kind and Amount of Property Exempt governed by, § 1040, p. 5&2. Marshaling of Liens governed by, § 1896, p. 1184. Nature of lien, Time it takes efifect, Abandonment, etc., Determined b}*, § 1459, p. 865. Nature of Title passing determined by, § 1275, p. 754. Whether Particular Propertj'^ is of a Kind that Passes to trustee, deter- mined by, § 95;], p. 535. Person Entitled to Exemptions, governed by, § 1040, p. 592. Priorities under, see "Priorities under State and Federal Law." Time Title Passes, determined by, § 1139, p. 666. Time that Agreements for Liens take efifect as Liens, determined bj^ § 1373, p. 802. Time that the Taking of Possession or Recording, takes efifect as "Trans- fer," determined by, § 1373, p. 802. Trustee entitled to all objections bankrupt might urge, but not limited to . such, § 782, p. 461. Trustee's Application to Intervene in State Court governed by, § 1648, p. 1013. Trustee's Title, whether analogous to Receiver's or Assignee's under, § 1211, p. 709. Validity of Claims and of Title to Property Determined by, § 780, p. 461; § 1140, p. 667. As Interpreted by Highest Tribunal, § 780, p. 461; § 1140, p. 669. Whether a "Debt," "Claim" or "Demand" dependent on, § 631, p. 375. Whether "license," "penalty" or "Tax" determined by, § 2154, p. 1330. Whether Lien Begins at Date of Taking Possession of After-acquired prop- erty, or Reverts, determined by, § 1237, p. 735. Liquor License, whether it passes to trustee, determined by, § 967, p. 541. STATEMENT TO COMMERCIAL AGENCY Whether Conclusive Admission of Existence of Assets, § 1852, p. 1151 n. STATUS OF DEBTOR • As "Bankrupt" established by Adjudication, § 452, p. 301. STATUS OF PROPERTY AFTER FILING OF PETITION See "Title of Trustee — Status of Property after Filing of Petition." STATUTE Allegations in mere words of, insufficient pleading, § 255, p. 191. STATUTE OF FRAUDS Trustee may urge, § 1194, p. 696. STATUTE OF LIMITATIONS Creditor Interposing, § 786, p. 462. Defense to Allowance of Claim, § 784, p. 462. Revocat'on of Discharge, to be applied for within year after discharge granted, § 2824, p. 1650. Scheduling does not Revive outlawed debts, § 787, p. 462. What statute of limitations governs, § 788, p. 463. Trustee's Right and Duty to interpose, § 785, p. 462; § 1193, p. 696. 2262 GENERAL INDEX. STATUTORY CONSTRUCTION Amendment of 1903 simply declaratory of existing law in certain parts, § 2756, p. 1620; § 2758, p. 1621. Bankrupt Act excludes State law, where both give priority to same class, § 2203, p. 1354. Former Decisons of Courts presumed in view, § 2787, p. 1631. Liberal toward Bankrupt as to Discharge, § 2467, p. 1490. Provisions as to Composition, strictly construed, § 2356, p. 1430. When language Clear and Unambiguous, § 22, p. 38. STATUTORY DUTIES Of referee, see "Referee in Bankruptcy, Duties of." STATUTORY LIENS FOR SUPPLIES, § 1159, p. 683. STATUTORY PREREQUISITES FOR CLAIMING EXEMPTIONS, § 1041, p. 593 n; § 1047, p. 595 n; § 1048, p. 600. STATUTORY REMEDIES Avoiding of Fraudulent or Preferential Transfers under State Law, whether Available to trustee in bankruptcy, § 1269, p. 748. Maintaining Statutory suits, to perfect Special rights for benefit of all, § 1267, p. 747. Priorities given by State law, under Assignments or Receiverships, whether Available on marshaling liens in bankruptcy, § 1898, p. 1186. Priority of liens under State statutes as related to their marshaling in bank- ruptcy, § 1898, p. 1186. Rights given to creditors by State Statute where Dependent on resort to Special Remedies, § 1897, p. 1186. Trustee Succeeds thereto, when, § 1265, p. 745. STATUTORY SUITS Under State law to set aside Preferential or Fraudulent Transfers, create "liens by legal proceedings" nullified by bankruptcy, § 1441, p. 851. STAY Of Execution Of Referee's Order on review, § 2860, p. 1669. STAY OF INVOLUNTARY PETITION To Ascertain Propriety of Adjudication on Voluntarj-, § 303, p. 217. Several Petitions Simultaneously Pending, § 295, p. 213. STAY OF SUITS Where for Benefit of Estate rather than of bankrupt, see "Restraining Orders and Injunctions." To permit interposition of Discharge, see "Discharge — Staying Suits against Bankrupt to Permit Interposition of." Refusal of . Permitting creditors to maintain suit to fix Liability on Surety, § 048, p. 389; § 1524, p. 908; § 1914, p. 1193; § 2246, p. 1478; § 2712, p. 1605. Permitting creditor to maintain suit to Perfect Priority claim, § 2200, p. 1353. Permitting Legal Action to Fix Stockholder's Liability, § 1914, p. 1193. GENERA!, INDEX. 2263 STAYING DISCHARGE To permit creditor to perfect rights against surety or exempt property, § 2446, p. 1478. STENOGRAPHER Compensation of, § 1579, p. 945; § 2007, p. 1245. Employment of, § 1579, p. 945; § 2006, p. 1245. STIFLING OF COMPETITION, § 1954, p. 1217. STIPULATION As to what is necessary on appeal, § 2965, p. 1727. STOCKS W4ien pass to trustee, § 1001, p. 556. STOCKBROKERS Claims by customers against bankrupt stockholders, § 804, p. 470. When customer of becomes "creditor," § 1313, p. 769. Conversions by, whether discharged, § 2785, p. 1629. STOCKBROKERAGE CORPORATIONS Sfc "Involuntary Bankruptcy." "STOCK EXCHANGE" Xot Contesting Sale of bankrupt's Seat, not "adverse claimant," § 1674, p. 1033; § 1822, p. 1120. Seats in, Pass to Trustee, when, § 967, p. 540. Subject to Contingency of Election, yet may pass, § 968, p. 542. Transferable only by Peculiar and Unusual means, yet may pass, § 969, p. 542. STOCKHOLDER Bankrupt stockholder, who to be scheduled as creditor upon double liability, § 494, p. 313 n. Assent of, whether requisite to "Written Admissions, etc.," as acts of bank- ruptcy, § 167, p. 141. STOCKHOLDER'S DOUBLE LIABILITY Who to be scheduled as creditor of bankrupt stockholder, § 494, p. 313 n; § 2769, p. 16. Xot an Asset of bankrupt corporation, § 978, p. 548. STOCKHOLDER'S LIABILITY Discharge of, § 2742, p. 1616. Legal Action requisite to Fix, whether injunction granted against, § 1914, p. 1193. Liquidated and Proved, § 709, p. 427. How Scheduled, § 2769, p. 1625. Corporate creditors may be scheduled, § 2769, p. 1625. Receiver may be scheduled, § 2769, p. 1625. Jnpaid Subscription, trustee to prosecute pending suit for, § 1644, p. 1012. 2264 GENERAL INDEX, STOPPAGE IN TRANSITU Reclaiming Goods, stopped in transitu, § 1881, p. 1168. ' Right of, unimpaired by buj^er's bankruptcj^ § 1168, p. 686. STORAGE For Care of Exempt property pending setting off, § 1093, p. 617. Reclaiming of property left with bankrupt for, § 1877, p. 1165. "STRENUOUSNESS OF OPPOSITION" Element in fixing Attorney's Fees, § 2047, p. 1268. STRIKING FROM FILES Claims presented after Expiration of Year stricken from files, § 724, p. 437. STRUCTURAL WORKS COMPANIES See "Involuntary Bankruptc}'." SUBCONTRACTOR'S CLAIM AGAINST HEAD CONTRACTOR, § 235, p. 183 n. SUBCONTRACTORS AND CONTRACTORS, § 672, p. 409; § 1884, p. 1176 n. SUBCONTRACTORS' LIENS See "Mechanics' Liens." See "Title of Trustee — As Successor to Bankrupt's^ Title and Rights." "SUBJECT OF BANKRUPTCIES" Dealing with One Part Only of Subject, § 10, p. 26. Law Established Must Be on Subject of Bankruptcy, § 2, p. 1. Operating on Others than Traders not Outside of Subject, § 8, p. 23. "Subject of Bankruptcies" not Necessarily Entire nor Confined to Original Subject, § 7, p. 23; § 30, p. 51. Voluntary Bankruptcies not Outside of Subject, § 9, p. 25. As Affected by Exception of Wage Earners and Farmers in Bankruptcj' Act, § 30, p. 51. SUBJECT MATTER Limitations as to Residence, also as to Occupation, affect Jurisdiction of Subject flatter, § 30, p. 51. SUBJECTING OF DIVIDENDS Garnishment proceedings stayed until dividend ascertained, § 1646, p. 1013. SUBJECTING EXEMPT PROPERTY While in trustee's hands By Equitable Action in State Court, § 1106, p. 632. By Permitting Levy of Attachment, or Execution, § 1107, p. 633. By ordering Surrender to Sherifif holding writ, § 1107, p. 633. After Set Apart By Levying Direct Execution, § 1108, p. 633. SUBLETTING Covenants of forfeiture for, not violated by bankruptcy, § 987, p. 550. SUBMISSION TO EXAMINATION A Duty of the bankrupt, § 462, p. 303. GI^XERAL INDEX. 2265 SUBPCENA ^te "Commencement of Proceedings." Contempt for disobedience of, § 1576, p. 944. Date of filing petition, not issuance nor service of subpoena controls, § 188, p. 154. Delay in serving, on involuntary petition, § 311, p. 220. Examination of Witness, subpoena for, § 1537, p. 918. See "Service — Of Subpoena." To be under Seal and Tested by Clerk, § 1537, p. 918 n. SUBROGATION Of Assignee of Claim Assigned after Bankruptcy, § 2277, p. 1392; § 610, p. 362; § 741, p. 441. "Equitable" Subrogation By agreement with bankrupt or creditor, § 2278, p. 1392. To workmen's priority claims, whether to compete with workmen's own later claims, § 2279, p. 1393. Of interested party, paying to preserve assets, § 2281, p. 1395. Mere volunteers not entitled to, § 2282, p. 1396. None of trustee to liens on exempt property paid off on eve of bank- ruptcy, § 2283, p. 1396. Of Fraudulent Transferee On Setting Aside Constructively Fraudulent Transfer, § 1734^4, p. 1067. Lien Preserved for Benefit of Estate, subrogation of trustee thereto, § 1639, p. 1010. See also, "Liens by Legal Proceedings Nullified by Bankruptcy — Preservation of Lien for Benefit of Estate." Pay rolls, subrogation of persons advancing Money to meet, § 2184, p. 1344. Of Retiring Partner To Firm Debts he Pays, § 2272, p. 1390. Of Surety Creditor's Claim against maker's estate, surety subrogated to, § 1522, p. 905. Tax Lien, sul^rogation to, § 2149, p. 1327. SUBSCRIPTION To Mercantile Agency Reports, § 809, p. 471. See "Unpaid Stock Subscriptions." SUBSEQUENT CREDITORS Rights as between subsequent and general creditors where mortgage, void- able only as to .subsequent creditors, is set aside, § 1265, p. 745 n. Transfers to Defraud, Voidable by trustee, § 1225, p. 725. SUBSTITUTION. Of Trustee in Pending Suit, § 1640, p. 1011. Preliminary order of approval proper, § 899, p. 516; § 1641, p. 1011. Probability of success should appear, § 1G42, p. 1011. Only suits on rights passing to trustee authorized, | 1043, p. 1011. Defendant not released by failure of trustee to assume prosecution, § 1644, p. 1011. Ordering trustee to apply for leave to defend, § 1645, p. 1012. Not usually proper except where property involved, § 1645, p. 1012. 2266 GENERAL INDEX. SUBSTITUTION— Continued. Where Suit is in Personam, § 1647, p. 1013. State court governed by State law and judicial policy^ in granting or refusing application, § 1648, p. 1013. Trustee bound as any other litigant on substitution. § 16.50, p. 1015. ^Manner of substitution, § 1649, p. 1015. Stay of pending suit to permit substitution, § 1651, p. 1015. "SUFFERING" • Judgment, as preference, § 1335, p. 782. SUITS Proceedings other than "Suits" Stayed, § 2694, p. 1598. SUITS "IN PERSONAM" Against Trustees and Receivers, § 1814, p. 1112. Against Trustee, Receiver or Marshal not restrained, § 1911, p. 1192. Intervening of trustee in pending, § 1647, p. 1013. SUITS Staying of See "Discharge — Staying of suits against bankrupt to permit interposi- tion of."' See "Restraining Orders and Injunctions." See "Staj^ — of Suits." SUMMARY OF EVIDENCE Certified on Review, § 2855, p. 1666. Requisite on review of referee's order, § 2852, p. 1664. SUMMARY JURISDICTION All Action to be taken in bankruptcy court, § 1798, p. 1098. Adjudication in Bankruptcy "ipso facto" Passing bankrupt's property into Custodia Legis, § 1808, p. 1108. • Adverse claimants, injunctions on are issuable in bankruptcy proceedings, § 365, p. 243; § 1654, p. 1028. Over Adverse Claimants in possession not to be acquired under guise of petition to Redeem, § 1871, p. 1163. "Adverse Claimants," no Summary Jurisdiction exists over, § 1652, p. 1019. Over Agents of bankrupt, see "Summary Orders on Bankrupts and Others." Assignee of Bankrupt's Future Wages, no summary jurisdiction exists over, § 1678, p. 1034. Once Attaching, Complete for all purposes, § 1797, p. 1092. Bailee in Possession, when subject to, § 1673, p. 1033. Bankruptcy court permitting controversies over property in its possession to be carried on elsewhere, § 1813, p. 1111. Bankrupt required to Execute Assignment to Effect transfer of Insurance policy. § 19, p. 36; § 1009, p. 561; § 1115, p. 636 n. Over Bankrupts, see "Summary Orders on Bankrupts and Others." Bankrupt's Attorney within, § 2099, p. 1298. Beneficial Interest must exist in trustee, else no summarj' Jurisdiction exists, § 1817, p. 1114. Over Court Officer, where lien by legal proceedings nullified by bank- ruptcy, § 1472, p. 876; § 1474, p. 877. GENERAL INDEX, 2267 SUMMARY JURISDICTION— Continued. "Custodia Legis" and "Assumption of Jurisdiction," what constitutes, § 1807, p. 1101. Debtors of bankrupt, no summary jurisdiction over, § 1680, p. 1034; § 1796, p. 1089. Disbursements already made, no summary order on assignee or receiver as to, § 1612, p. 979; § 1830, p. 1125; § 1846, p. 1145. Employer of Bankrupt, no summary jurisdiction exists over, § 1679, p. 1034; § 1683, p. 1035. Exempt Property, Court will not necessarily order Surrender of, § 1029, p. 578. Foreclosure suits, where bankruptcy court already has custody, § 1806, p. 1101. Landlord's Forcible Detainer suits not maintainable, § 1799, p. 1098. Obstructive suits brought after bankruptcy court acquires custody, § 1805, p. 1100. To Order Trustee to Surrender Possession to Rightful Owner, § 1872, p. 1163. See, also, "Reclamation, Surrender or Redelivery." Persons in Possession, where property surrendered by Trustee, not subject to summary order, § 1803, p. 1100. Over Persons Not Adverse Claimants, see "Summary Orders on Bank- rupts and Others." Possession of Res, Test of, § 1796, p. 1088. Proceeds of lien by legal proceedings already Paid over to Execution cred- itor no jurisdiction exists to compel surrender from Court Officer, § 1477, p. 878; § 1830, p. 1125. Property recoverable by summary order, § 1601, p. 966. Property Taken out of Custody, etc., after bankruptcy, summarily ordered returned, § 1800, p. 1099. Property voluntarily Surrendered by bankruptcy receiver recoverable, § 1801, p. 1099. Whether recovery be plenary or summary, § 1802, p. 1100. Purchasers at Sales by trustees or receivers subject to, § 1804, p. 1100; § 1962, p. 1221. Real Estate generally considered in bankrupt's possession, § 1809, p. 1109. Receiver may compel Surrender of Property not held adversely, § 392, p. 256. Rights of Action in Personam, not property "in possession" of bankrupt, § 1810, p. 1109. Separate Plenary Action in State court or in U. S. Circuit Court, none maintainable where property in custody of bankruptcy court, § 1812, p. 1110. Suits in Personam against Trustees and Receivers, see "Trustee in Bank- ruptcy — Suits against." Where Summary Jurisdiction exists, whether Plenary Jurisdiction also exists, § 1690, p. 1042 n. . None to compel Surrender, in cases of Liens by legal proceedings until Adjudication of bankruptcy, § 1461, p. 86J. Third Party, Interested, not to be compelled summarily to accept paid up policy, § 1010, p. 562. Third Party Interested not to be compelled to apply for Cash Surrender Value of policj% § 1010, p. 562. 2268 CKXEKAL iXDKx. SUMMARY JURISDICTION— Continued. To prevent Trustee Interfering with Others' Rightful Custody, § 1900, p. 1187. To require Receivers and Assignees to surrender assets, § 1611, p. 978; § 1822, p. 1120. Trustee within summary jurisdiction of bankruptcy Court, § 904, p. 518; § 1872, p. 1163. Whether action to be in bankruptcy proceedings themselves, or separate plenary action maintainable in U. S. District Court, § 1811, p. 1109. Once Attaching, Complete for all purposes, § 1797, p. 1092; § 1798, p. 1098. To Issue Restraining Orders and Injunctions, see "Restraining Orders and Injunctions." May Marshal liens and sell personal property in trustee's actual custody although in another State, § 1706, p. 1053. To Marshal Liens on property in its custody See "Marshaling of Liens on Property' in Custody of Bankruptcy Court." Property in Actual Possession of bankrupt, though Claimed by another, Seizable Summarily, § 356, p. 239. SUMMARY ORDERS See "Lien by Legal Proceedings Nullified by Bankruptcy — Order of Sur- render." ' See "Marshaling of Liens on Property in Custody of Bankruptcy Court." See "Reclamation, Surrender or Redelivery." See "Res Judicata." See "Voluntary Surrender of Custody by Bankruptcy Court." SUMMARY ORDERS ON BANKRUPTS AND OTHERS Ancillary Jurisdiction, none in bankruptcy court of another district to make Summary Order, § 1867, p. 1162. Not Appealable, as "Claims," § 2908, p. 1705. Appealable as "controversies," § 2924, p. 1713. On Assignee of Bankrupt, § 65, p. 71 n; § 1822, p. 1120. On Bank holding Deposit, § 1822, p. 1119. Bankrupt ordered to execute Necessary Papers, § 1115, p. 636; § 1835, p. 1128. Bankrupt's Sworn Denial of Present Possession, not conclusive, § 1843, p. 1140. Beneficial Interest in trustee must exist, § 1817, p. 1114. Circumstantial Evidence sufficient, § 1849, p. 1146. "Clear," "Certain," "Convincing," or "Satisfactory" proof, or proof "Beyond Reasonable Doubt," requisite, § 1842, p. 1137. Contempt for Disobedience of summary orders, § 1856, p. 1154. On Corporation Agent of bankrupt, § 1823, p. 1120. Court Officers holding under Nullified Legal proceedings subject to sum- mary order, § 1829, p. 1125. Courts proceed with Great Caution in granting summary orders, § 1840, p. 1134. Custodians and Court Officers in possession under nullified legal proceed- ings, not "Adverse Claimants," § 1827, p. 1122. Disbursements Already Made, summary order Avill not lie for, § 1477, p. 878; § 1612, p. 979; § 1830, p. 1125; § 1846, p. 1145. Due Hearing requisite, § 1839, p. 1132. GE)NERAL INDEX. 2269 SUMMARY ORDERS ON BANKRUPTS AND OTHERS— Continued. Evidence on Contempt for disobedience of, to be "Beyond Reasonable Doubt," § 1859, p. 1157; § 2340, p. 1419. Filing of Petition to Redeem from Undisputed Liens, whether it gives sum- mary jurisdiction to order surrender on tender of amount due, § 182(5, p. 1121; § 1870, p. 1163. Almost Incontestible Evidence requisite to overcome Bankrupt's Sworn Denial of Concealed Assets, § 1844, p. 1141. Interest not to be included, § 1847, p. 1145. Jurisdiction, § 1815, p. 1113; § 1819, p. 1115. Lienholder in possession after Satisfaction of lien, § 1825, p. 1121. Until Liens Nullified, custodians and court officers are "Adverse Claim- ants," not subject to, § 1828, p. 1124. On Nonbankrupt Partner and his Assignee, § 65, p. 71 n; § 2935 p. 1715. Opportunity must be given to defend on Contempt, § 1858, p. 1156; § 2341, p. 1419. Order of surrender Before Adjudication, § 1818, p. 1\14. Order of surrender Before Appointment of trustee, § 1818, p. 1114. Order to Describe Property — Orders to Pay "Value" of Goods, Alternative Orders, etc., § 1853, p. 1152. Orders may not require Surrender of more than is in possession, § 1477, p. 878; § 1612, p. 979; § 1830. p. 1125; § 1846, p 1145. Orders on Court officers and Custodians, if application therefor be to Bank- ruptcy Court, procedure follows ordinary rules as to summary orders on bankrupts and agents, § 1862, p. 1158. Orders on court Officers and Custodians, if application therefor be to State Court whose officer in control, procedure follows that of such court, § 1861, p. 1158. Outstanding Claims by Third Parties on property in hands of bankrupt or agent does not divest summary jurisdiction, § 1816, p. 1113. Part adversely held, part as agent, or not under claim of beneficial interest, § 1820, p. 1117. See "Pleading and Practice — Procedure on Summary Petitions against Bankrupts and Others." Possession, whether requisite at Time of Filing Summary Petition or at time of Granting Order, § 1848, p. 1145. Preliminary Inquiry to Ascertain whether Summary Jurisdiction Exists Jurisdiction to Determine Facts requisite to Summary Jurisdiction, § 1863, p. 1158. Examine only Far enough on Preliminary Inquirj^ as to Jurisdiction, to ascertain if facts alleged in good faith and if true would constitute "Adverse" party, § 1864, p. 1159. Not Concluded by pleadings on preliminary inquiry, § 1865, p. 1161. Notice served outside district not sufficient to confer jurisdiction to make Inquiry as to sunimar}- Jurisdiction, § 1866, p. 1162. Present Possession or Control must be proved, § 1845, p. 1142. No Presumption of Continued possession if Circumstances raise Counter Presumption, § 1852, p. 1151. Presumption of Continued Possession when property Once Traced and Shortage Unexplained, § 1850, p. 1146. Procedure on, in general, § 1831, p. 1126. As to Property Obtained from Custody of Bankruptcy Court after Bank- ruptcy Property Taken Out of custody after bankruptcy, § 1800, p. 1099. 2270 GENERAL INDEX. SUMMARY ORDERS ON BANKRUPTS AND OTHERS— Continued. Property Voluntaril}^ Surrendered by Bankruptcy Receiver, Summary Order lies, § 1801, p. 1099. Property Voluntarily Surrendered by trustee, no Summarj^ Order will lie, § 1803, p. 1100. Punishment for disobedience of summary order is Not Imprisonment for Debt, § 1841, p. 1135. Reasonable Notice on respondent requisite, § 1838, p. 1130. Re-examination (on Contempt) of Evidence on which order for Surrender based, § 1857, p. 1155. Referee has Jurisdiction to make Summary order, § 1836, p. 1128. Refusal of Discharge, whether Res Judicata as to Concealment, § 18-45, p. 1142 n. Rejecting Improbable Explanations, § 1851, p. 1149. Reviewable by petition to review, § 1855, p. 1153; § 2935, p. 1715; § 2938, p. 1716. Whether "Review" or "Appeal," § 1855, p. 1153; § 2908, p. 1705; § 2935, p. 1715; § 2938, p. 1716. Review of summary orders^ — set aside only for Manifest Error, § 1854, p. 1153. Right of Trial by Jury Not Violated thereby, § 1834, p. 1128. Summary Orders on Agents and others not claiming adverse interests, in general, § 1822, p. 1118. Summary Orders on Bankrupt, § 1819, p. 1115 No matter in what capacity bankrupt holds, § 1820, p. 1117. Officers of bankrupt corporation subject to, § 1821, p. 1118. Summary Orders on Court Officers and Custodians, § 1822, p. 1118; § 1860, p. 1158. Summary orders to Surrender Assets Not New Function, § 1833, p. 1127. Trustee's long delay in filing petition for, § 1845, p. 1142 n. What is "Summary Process," § 1832, p. 1126. On Wife, § 1822, p. 1119. Written Petition for, requisite, § 1837, p. 1129. SUMMARY ORDERS ON NONBANKRUPT PARTNER AND OTHERS HOLDING UNDER HIM" Reviewable by petition to review, § 2935, p. 1715. Summary Orders on Assignee of Nonbankrupt Partner, § 65, p. 71 n. SUMMARY ORDER ON TRUSTEE OR RECEIVER Appealable as "controversy," § 2925, p. 1713. Jurisdiction to make, § 1872, p. 1163. See "Reclamation, Surrender or Redelivery." Preventing his interference with others' rightful custodj^ § 1900, p. 1187. SUMMARY PETITION AGAINST BANKRUPTS AND OTHERS See "Summarj' Orders on Bankrupts and Others." See "Pleading and Practice — Procedure on Summary Orders, etc." "SUMMARY PROCEEDINGS" Bankrupt ordered to execute necessary papers, § 1835, p. 1128. See "Conflict of Jurisdiction." In general, § 1831, p. 1126. Proceedings before Referee, are, § 548, p. 333. GENERAL IXDEX. 2271 "SUMMARY PROCEEDINGS"— Continued. Right of trial by jury not violated thereby, § 1834, p. 1128. Not to be so Summary as to deprive of Fundamental Right, § 23, p. 39. Notice and Reasonable time to Prepare to be Given, § 23, p. 39; § 183S, p. 1130. See '"Summary Jurisdiction." See "Summarj^ Orders on Bankrupts and Others." Summary orders to surrender assets not new function, § 1833, p. 1127. What is "Summary Process," § 1832, p. 1126. SUMMARY PROCESS What is, see "Summary Proceedings." See "Summarj' Orders on Bankrupt's and Others." SUITS See "Creditors' Bills." See "Conflict of Jurisdiction." See "Discharge — Stay of Suits to Permit Interposition of." See "Forcible Detainer." See "Foreclosure." See "Plenary Actions by Trustee." See "Replevin." See "Restraining Orders and Injunctions." SUPERSEDING OF CUSTODY OF ASSIGNEES AND RECEIVERS See "Assignments and Receiverships Superseded by Bankruptcy." SUPERSEDING OF STATE COURT See "Conflict of Jurisdiction." SUPERVISING COMMITTEE Creditors not to elect, § 900, p. 516. SUPPLEMENTARY PROCEEDINGS Bankruptcy court may stay, § 2702, p. 1601. Supplementing Facts Supplementing Facts Shown on Record, § 2967, p. 1728 n. Supplies Priorities for furnishing, to Manufacturing establishment, § 2205, p. 1357. SUPPORT OF CHILD OR WIFE Judgments for, nut provable, § 683, p. 414. Liabilities for, not discharged, § 2757, p. 1621. Liabilities to third parties not excepted, § 2759, p. 1621. SUPREME COURT'S ORDERS IN BANKRUPTCY Si^e "General Orders in Bankruptcj'.'' SURETIES AND GUARANTORS For Bankrupt Adverse Claimants, when, § 1655, p. 1029. Claims of, against bankrupt principal Discharged, § 2741, p. 1615. Cosurety's claim for contribution for payment after bankruptcy, § 640. o. 390. 2272 GENERAL IXDEX. SURETIES AND GUARANTORS— Continued. Creditor not obliged to prove claim against principal even on surety's demand, § 612, p. 363; § 1515, p. 904. Creditor Refusing to let surety have Written Instrument to attach to proof, surety not released, § 1517, p. 904. Unless Surety offers to indemnify' creditor against expense, § 151S, p. 904. Are Creditors before Default and from Date of Signing, § G44, p. 384. For "Faithful Discharge of DutA^" where no Default until after peti- tion Filed, not provable claim, § 647, p. 389. For Future Rent Not Released by tenant's bankruptcy', § 662, p. 403. Impliedlj^ Excepted by Statute from rules that Contingent Claims not Provable, § 642, p. 383. Obtaining of Judgment Prerequisite to Liability on bond, § 648, p. 389; § 1524, p. 908; § 1914, p. 1193; § 2446, p. 1478; § 2712, p. 1605. Pajang principal's debt after principal's bankruptcy, § 645, p. 386. Principal's Liability not Allowable in favor of Creditor, not allowable in favor of surety, § 646, p. 388. Payments enuring to benefit of, when preferences, § 1310, p. 767. Payment to present owner of claim, preference both to him and also to transferrer, if transferrer remains bound as surety, § 1311, p. 767. Payments by are not preferences, § 1288, p. 759. Transfers by bankrupt to Indemnify, may be Indirect Preferences, § 1303, p. 764. Subrogation of, to creditors' rights, § 2280, p. 1395. Proofs of Claim by, § 611, p. 362. Petitioning Creditors, whether sureties and Guarantors ma}- lie, § 231, p. 179. Not Released by Principal's Discharge, § 2671, p. 1589. Retiring Partner Subrogated to Firm Debts he pays, § 2272, p. 1390. Rights of creditors against But bankrupt estate not to pay two dividends on same claim, § 1520, p. 904. Creditor receiving dividends out of maker's estate first, may prove only for unpaid balance against surety, § 1521, p. 905. Creditor receiving dividends out of surety's Estate first, surety entitled to subrogation to creditor's claim against maker's estate in proportion to dividend paid to surety, § 1522, p. 905. Discharge of bankrupt principal equivalent to return of execution unsatisfied, § 1523, p. 906. Staying discharge and permitting creditor to take judgment to fix liability on surety, § 1524, p. 906. Refusing to enjoin where legal action requisite to fix liability on, § 1914, p. 1193. Subrogation of creditors to indemnity given sureties, § 22§0, p. 139. J. Not impaired by adjudication nor discharge, § 1510, p. 902. Applies to secondary liability on obligation itself, not to sureties in court proceedings, § 1511, p. 902. Attachment and appeal bonds released if liability dependent on judgment, § 1511, p. 902. Creditors entitled to all remedies against sureties, § 1512, p. 903. GENERAL INDEX. 2273 SURETIES AND GUARANTORS— Conlinued. Rights and defenses of sureties of bankrupt not affected, § 1513, p. 903. In general, § 1510, p. 902. Right to retain indemnity given at signing, unaffected, § 1514, p. 903. No duty on creditor to prove claim against bankrupt principal, § 1515, p. 904; § 612, p. 363. Right of surety or endorser to prove creditor's claim against bank- rupt principal, § 1516, p. 904. Where creditor refuses to let surety have written instrument to attach to proof, surety not released, § 1517, p. 904. Unless surety offers to indemnify creditor against expense, § 1518, p. 904. Creditor entitled to prove against both principal and surety where both bankrupt, § 1519, p. 904. Right- of, to Prove Creditor's Claim against bankrupt principal, § 1516, p. 904. Subrogated, on payment, pro tanto, to Creditor's Dividend, § 613, p. 364. Qualified Stay of Suit, where Judgment necessary to Perfect rights against, § 648, p. 389; § 1524, p. 908; § 1914, p. 1193; § 2446, p. 1478; § 2712, p. 1G05; § 2713, p. 1605. Staying discharge to permit creditor to perfect rights against See "Discharge — Staying of Suits against Bankrupt to permit' Inter- position of." See "Restraining Orders and Injunctions — Qualified Stay." SURETY Bankrupt r.s, his contract of suretyship a provable debt, § 643, p. 383. SURRENDER Of Discharge Xo Voluntary Surrender of Discharge by bankrupt, § 2445, p. 1477. Of Lien by Legal proceedings before Claim allowable, § 779, p. 461. Petition for order on trustee to surrender property to third Party See "Reclamation, Surrender or Redeliver}' — Petition for." Of Preference Appealability of disallowance of claim because preference not sur- rendered, § 2909, p. 1705. Order of Disallowance to fix time for Surrender and allowance, § 772, p. 458. Preference on Distinct Transaction, surrender of not prerequisite to Validity of Lien, Itself not Preference, in ^Marshaling of Liens, § 773, p. 459; § 1428, p. 846; § 1899, p. 1187. See "Preferred Creditors — Allowability of Claims of." Prerequisite to allowance of Claim and sharing in dividends, § 708, p. 456; § 1427, p. 846; § 2223, p. 1363. Preference surrendered, claim "allowable," § 769, p. 456. Preference Not Surrendered until Adverse ruling, yet claim allowable, . § 771, p. 458. Where Preference not voidable under act, but under general equity principles, § 774, p. 449; § 2222, p. 1363. 2 Rem B— 68 2274 GE;Ni;RAi, index. SURRENDER— Continued. Requisite only when allowance to share in dividend sought, § 773, p. 459. Not Voluntarily Surrendered but only on Litigation, yet allowable, § 770, p. 456. Not requisite to Validity of Different Lien on marshaling liens for sale, § 773, p. 459; § 1428, p. 846; § 1899, p. 1187. Of Security Claim allowed without Deduction upon, § 767, p. 455. TAKING BENEFIT OF ACT Infliction of penalty or forfeiture for, prohibited, § 474, p. 306. TAKING OF POSSESSION Of After-Acquired Property See "Possession — Taking of."' See "Recording." Curing lack of Record See "Possession — Taking of." See "Preferences." See "Recording." TAXES Assessed Before Bankruptcy but not Payable until after adjudication, § 2142, p. 1321. Assigned taxes sufficient for petitioning creditors' claims, § 235, p. 183 n. Back Taxes, omitted, to be paid by trustee, § 2143, p. 1321. Bankruptcy Court, forum as to Amount and Legality of, § 2157, p. 1332. Costs of Administration, prior to taxes, § 2141, p. 1321. Decision of State Board of Assessment not "Res Judicata" in bankruptcy, § 2158, p. 1332. Delinquent Penalties and Interest, § 2144, p. 1321. Not Discharged, § 2745, p. 1616. Exempt Property, taxes on, to be paid, § 2146, p. 1323. Failure to pursue Statutory Appeal or Abatement, not fatal, § 2159, p. 1332. Firm Taxes in Individual Bankruptcies, § 2151, p. 1329. "Franchise tax," § 2156, p. 1331. Funds in hands of trustee taxable, where taxable if similarly sequestrated by State Legal Proceedings, § 2152, p. 1329. Includes Assessment for Local Improvements, § 2153, p. 1330. Nature of, whether "License," "Penalty" or "Tax," Determined by State Law, when, § 2154, p. 1330; § 2155, p. 1330. Must be Owing by bankrupt and assessed against him, § 2150, p. 1328. To be Paid whether property on which levied comes into trustee's hands or not, § 2145, p. 1322. Paid Out of General Fund though only one benefited is Aiortgagee, pur- chaser, etc., § 2147, p. 1323. Priority belongs solely to State, Municipality, etc., § 2148, p. 1325. Priority of, on Distribution, § 2141, p. 1319. No Priority to one who has paid tax, or holds tax title, § 2148, p. 1325. "Proof," formal "Proof" not required, § 702, p. 423; § 2161, p. 1334. Not such "Secured" claim as requires "Exhaustion of Security," § 2163, p. 1335. GENEPL\Iv INDEX. 2275 TAXES— Continued. "Subrogation" to tax* lien sometimes proper, § 2149, p. 1327. Trustee to search out taxes, § 703, p. 423; § 2161, p. 1334. Whether a "Debt," § 701, p. 423; § 2160, p. 1333; § 2745, p. 1616. Whether are "Provable" Claims, § 701, p. 423; § 2160, p. 1333; § 2745, p. 1616. Year's limitation not applicable to, § 730, p. 438; § 2162, p. 1334. TAX TITLE Holder of, whether entitled to Priority, § 2148, p. 1325. TELEPHONE COMPANIES See "Involuntar}- Bankruptcy." "TEN DAYS NQTICE BY MAIL" See "Notice" and "Xotices to Creditors."^ TENDER Of Actual Consideration Paid Xot Necessary in Fraudulent Transfer Suit, § 1737, p. 1069. Not requisite in trustee's suit to recover Preference, § 1769, p. 1076. Of Amount Due On Undisputed lien gives Summary Jurisdiction to order Cancella- tion, Assignment or Release, on petition to Redeem, § 1826, p. 1121; § 1870, p. 1163. See, also, "Redeeming from Liens." See, also, "Summary Jurisdiction." See, also, "Summarj^ Orders on Bankrupts and Others." TERM OF COURT Amendment of Discharge Decree after, § 2802, p. 1642. No "Terms of Court" in bankruptcy, § 431, p. 276; § 858, pp. 491, 492. Vacating of Adjudication "After Term," § 431, p. 276. TERM OF OFFICE Of referee, § 498, p. 319. THEATRICAL CORPORATION See "Involuntar}- Bankruptcy." THEORY OF BANKRUPTCY LAW See "Nature of Bankruptcy Law." See "Objects of Bankruptcy Law." See "History of Bankruptcy Law." See "Subject of Bankruptcies." THIRD ACT OF BANKRUPTCY Preference by Legal Proceedings See "Acts of Bankruptcy — Preferences by Legal Proceedings Not Va- cated within Five Days." TICKET AGENT Conversion by, whether Discharged, § 2785, p. 1629. 2276 GEXERAL INDEX. TIME FOR APPEAL To Circuit Court of Appeals, § 2981, p. 1732. To Supreme Court When Motion for Rehearing filed, § 3022, p. 1748. Within thirty days, § 3022, p. 1748. TIME For Appeal and Error Date of Entering order or judgment, not of actual rendition, fixes date, § 2984, p. 1733. Date of entering order overruling motion for rehearing, fixes date, § 2988, p. 1735. Of claiming Exemptions fixed by Act itself, § 1048, p. 595. Element in fixing Attorne3^s' Fees, § 2047, p. 1268. For Filing of Petition W^ithin Four ^Months of act of bankruptcy, else act not available, § 182/ p. 152. TIME FOR REVIEW ,Six months, § 2997, p. 1737. In "Bankruptcy Proceedings" proper, § 2999, p. 1737. TITLE To Cop3-rights passes to trustee, § 958, p. 536. To Documents, etc., passes to trustee, § 956, p. 536. To Exempt property does not pass to trustee, § 1024, p. 572. To Fraudulently Transferred Property passes to trustee, § 962, p. 538. To Patents passes to trustee, § 958, p. 536. To Powers, which the bankrupt might exercise for own benefit, passes l!o trustee, § 960, p. 537. To Trademarks passes to trustee, § 958, p. 536. Trustee gets title as of Date of Adjudication, § 99, p. 96. TITLE TO PROPERTY Not Affected by Discharge, § 2668, p. 1587. TITLE OF TRUSTEE General Discussion and Complete Statement of trustee's title and rights, § 1137, p. 662. How Vests in trustee By Operation of law, § 1112, p. 635. Scheduling by bankrupt not essential to passing of title, § 1113, p. 635. Concealed Property does not revest in bankrupt on closing of estate, § 1113, p. 636 n. Property in Foreign countries requires Assignment by bankrupt, § 1114, p. 636. Bankrupt compelled to Execute Assignments, to aid passing of title, § 19, p. 36; § 1009, p. 561; § 1115, p. 636. Local Law Determines Effectiveness of transaction, to accomplish "'Trans- fer" of title, § 1139, p. 666. Local Law determines Time Title passes, § 1139, p. 666. Local Law governs Validity of title, § 1140, p. 667. GENERAL INDEX. 2277 TITLE OF TRUSTEE— Continued. Peculiar Title and Rights of Trustee, Conferred by the bankruptcy act it- self, § 1271, p. 749; § 1273, p. 750. Cases under this subject must have arisen since passage of act, § 1272, p. 750. History and origin of provisions avoiding preferences, and liens by legal proceedings, § 1273, p. 750. • "Trust fund" theoretical basis of peculiar titles conferred by bank- ruptcy act, § 1274, p. 751. Efficiency of facts to create passing of title, and nature of title passing, determined by state law, § 1275, p. 754. Voidable preferences, see "Preferences." Liens by legal proceedings, nullified by bankruptcy, see "Liens by Legal Proceedings Nullified by Bankruptcy." Fraudulent transfers within four months, see "Fraudulent Transfers within Four Months." Section 70a to be Construed with Cognate sections, § 1138, p. 663. Status of property acquired during pendency of petition Vests, if proceeds of property transferable or seizable at time of filing, § 1132, p. 644. Does not vest, if property independently acquired or bought on credit, § 1132, p. 644. Evils of old law vesting title as of date of filing petition, § 1133, p. 644. Bona fide* transactions on present consideration not affected, § 1134, p. 646. Acquired by gift or inheritance, does not pass to trustee, § 1135, p. 647. Bought on credit does not pass, § 1135, p. 647. Property purchased with proceeds of property which was in existence at time of filing petition, whether passes to trustee, § 1136, p. 649. Status of property acquired after adjudication Title does not pass, § 1130, p. 643. After-acquired property transferable at date of bankruptcy passes, though incident to property not passing to trustee, § 1131, p. 644. Liens by Legal Proceedings cannot be acquired after adjudication, § 1125, p. 642. Preference can not be acquired after adjudication, § 1378, p. 803. Status of property after filing of petition, and before adjudication Title does not vest until trustee's qualification, § 1120, p. 640. Before trustee's qualification, title is in bankrupt, § 1120, p. 640. Bankrupt Quasi Trustee until receiver or trustee appointed, § 383, p. 252; § 1121, p. 640. See also, "Title, When Vests in Trustee." Destruction of Property meanwhile, § 1122, p. 641. Institution of Suits by bankrupt meanwhile, § 1122, p. 641. Liens given in meantime, whether subject to creditors right, § 1124, p. 641. Liens by Legal Proceedings can not be acquired after adjudication, § 1125, p. 642. Liens by Legal Proceedings acquired between filing of petition and ad- judication, § 1126, p. 642; § 1452, p. 861; § 1453, p. 862. Bankrupt retains Dominion and power of disposal before adjudication unless receiver or marshal takes possession or injunction issues, § 1128, p. 643. 2278 GENERAL INDEX. TITLE OF TRUSTEE— Continued. Remedies of creditors holding Securities meantime Unimpaired, § 1129, p. 643. Preferences after filing petition and before adjudication possible, § 1377, p. 803. Summary order on bankrupt to Surrender property, § 1818, p. 1114. Sales before Adjudication, § 1943, p. 1212. As successor to bankrupt's title and rights, § 1144, p. 672. Bound by bankrupt's sales, mortgages, deliveries, bailments, contracts and equitable liens, § 1145, p. 676. Thus, as to Setting Apart or Delivery Sufficient to Pass Title to Goods Sold, Pledged or in Process of Manufacture; and "Warehousing," § 1146, p. 676. Bankrupt's Contracts of Purchase or Sale, and His Alortgages, § 1147, p. 677. Bankrupt's assumption of mortgage, § 1148, p. 678. Estoppels against bankrupt, good against trustee, § 1149, p. 678. Specific contractual rights, § 1150, p. 678. Equitable lien, § 1150, p. 678. Forfeiture clauses, rent, etc., § 1151, p. 680. Fixtures, § 1152, p. 680. Disregarding note and suing on original consideration, § 1153, p. 680. Mechanic's and subcontractors' liens, § 1154, p. 680. Landlords' liens, § 1154, p. 680. Mechanics' liens, etc., are not liens obtained by legal proceedings or preferences, § 1155, p. 681. Subcontractors' liens, § 1156, p. 682; § 1154, p. 680. Liverymen's liens, § 1157, p. 683. Artisans' liens, § 1158, p. 683. May urge Transfer Absolute in Form, but mortgage in fact, § 1200, p. 698. May plead Waiver, § 1201, p. 698. May plead payment, accord and satisfaction, etc., § 1202, p. 698. Trustee entitled to all offsets, rebates, etc., of Bankrupt, § 1203, p. 698. May plead Bankrupt's lack of capacity, § 1204, p. 698. May urge articles not fixtures, § 1205, p. 698. May urge Facts Constitute Sale, § 1206, p. 698. Right of stoppage in transitu unimpaired, § 1168, p. 686. Right to rescind for fraud unaffected, § 1169, p. 687. Right to set oflf and counterclaim unimpaired, § 1170, p. 687. See, also, "Set-ofif and Counterclaim." Application of payments, § 1189, p. 694. Creditor's right to make application in absence of debtor's instructions, § 1190, p. 695. Application to be as equity requires, in absence of directions, § 1191, p. 695. Application of securities to be made in accordance with contract, § 1191, p. 695 n. Trustee succeeds to bankrupt's defenses and rights, § 1192, p. 695. May interpose Bar of Statute of Limitations, § 1193, p. 696. May urge statute of frauds, § 1194; p. 696. May plead illegality, § 1195, p. 696. May plead usury, § 1196, p. 696. GENERAL INDEX. 2279 TITLE OF TRUSTEE— Continued. May redeem Mortgaged Property, § 1197, p. 697. May recover property misapplied to Agent's Private debt, § 1198, p. 697. May defend that chattel mortgage does not cover specific after-acquired property or is void for indefiniteness or for failure to comply witli statutory requirements, § 1199, p. 697. Statutory liens for supplies, § 1159, p. 683. Landlord's lien or priority for rent, § 1160, p. 683. Mechanics' liens, etc., valid though affidavit to stop notice not filed till after bankruptcy of owner, etc., § 1161, p. 684. Failure to perfect lien in statutory form invalidates, § 1163, p. 684. Where perfecting dependent on lien by legal proceedings, bankruptcy may dispense with same, § 1163, p. 685. Inchoate dower right unimpaired by bankruptcy, § 1166, p. 686. Widow's and children's allowances, when trustee takes title subject thereto, § 1167, p. 686. In tracing trust funds, trustee stands in bankrupt's shoes, § 1884, p. 1177. Trustee entitled to all objections to claims bankrupt might have urged, but not limited to such, § 782, p. 461. Creditors and trustee bound by bankrupt's contracts and acts, § 783, p. 462. As successor to creditors' title and rights Trustee succeeds to rights of creditors, § 1207, p. 609. But creditors' title taken by trustee, generally, that only of some ex- isting creditor "armed with process," § 1208, p. 704. Accepted doctrine, bankruptcy not an "equitable levy," § 1214, p. 714. Maxim that "filing of petition a caveat, attachment and injunction," § 1215, p. 718. Fraudulent transfers and property held on secret trust recoverable § 1216, p. 719. See "Fraudulent Transfers." Alleged "consignments," "leases," "agencies," "pledges," "bailments, where really sales, § 1228, p. 726. Liens void as to creditors for want of record, void as to trustee, § 1229 p. 731. Liens invalid under State law for other reasons than lack of record void as against trustee, § 1257, p. 741. Chattel mortgages with power of sale, when void, § 1258, p. 741. Not void if agreement to apply exists, though agreement disregarded § 1259, p. 743. Mere remaining in possession and selling, without reservation of power of sale, § 1260, p. 743. Power of sale not reserved in express terms, § 1261, p. 743. Whether power of sale mortgage void only as to goods sold, or void in toto, § 1262, p. 743. Conditional sales contracts with power of sale, § 1263, p. 744. Mortgages on after-acquired property, § 1264, p. 745. Whether lien begins at date of taking possession or reverts is to be de- termined by State law, § 1237, p. 735. As to after-acquired property, § 1238, p. 735. Permitting creditors to levy after bankruptcy, in order to "arm with process," § 1239, p. 735. Defective refiling of chattel mortgage, § 1240, p. 736. 2280 GENERAI. INDEX. TITLE OF TRUSTEE— Continued. Unrecorded or unfiled conditional sales contracts, void, § 1241, p. 736. Provided there exists a creditor "armed with process," § 1242, p. 736, Not void where filing or recording not required, § 1243, p. 738. Unrecorded or unfiled chattel mortgages, void, § 1230, p. 732. Unfiled -chattel mortgages not void, where -filing or recording not re- quired, § 1231, p. 732. Meaning of "required," § 1232, p. 733. As to necessity of actual levy or "arming with process," § 1233, p. 733. Not void for simple non-record where damage to creditors, etc., also requisite by State law, § 1234, p. 734. Nor where mere equitable sequestrations by receivers, assignees, etc., insufficient, § 1235, p. 734. Taking of possession curing lack of record, § 12o6, p. 734. Peculiar rights or remedies of creditors given by special state statutes, trustee succeeds thereto, § 1265, p. 745. How, where special rights dependent on special remedies, not available because of bankruptcy, § 1266, p. 746. Maintaining statutory suits, to perfect special rights, § 1267, p. 747. Maintaining statutory suits to perfect special rights where bankruptcy court not in custody of property involved, § 1268, p. 748. Fraudulent or preferential transfers by State law, inuring to benefit of all creditors, whether so inure in bankruptcy, § 1269, p. 748. Prior general assignment, whether effective to avoid liens recorded be- fore bankruptcy, but not until after assignment, § 1270, p. 749. Creditor same as in State law so far as concerns "arming with Proc- ess," § 1209, p. 706. Where "arming with process" not requisite by State law, not requisite in bankruptcy, § 1210, p. 708. Discussion of rejected doctrines as to creditors' title taken, § 121], p. 709; § 1212, p. 709; § 1212, p. 713. As to property not in custody, whether analogous to receiver's or as- signees', § 1211, p. 709. Bankruptcy operating as "equitable levy," § 1212, p. 709. Bankruptcy operating as equitable levy precisely as other equitable levies operate in same state, § 1213, p. 713. Distinction between conditional sales as mere retentions of title and chattel mortgages as "transfers," § 1244, p. 738. Disguised conditional sales void for want of record, § 1246, p. 739. Chattel mortgages or conditional sales made in state where recording not required, but contemplating delivery where required, § 1247, p. 739. Unrecorded real estate mortgages, § 1248, p. 740. Unrecorded sales of personalty, where property still in seller's hands, § 1249, p. 740. Owner's lien on material left on premises by bankrupt contractor, § 1251, p. 740. Equitable liens on property already pledged and in pledgee's hands, § 1252, p. 740. Agreement to insure operating as equitable assignment, § 1253, p. 740. Liens absolutely void, void also in bankruptcy, § 1254, p. 741. Mechanic's and sub-contractor's liens not filed until after bankruptcv, § 1255, p. 741. GENERAL INDEX. 2281 TITLE OF TRUSTEE— Continued. Recording, where lien both on real and personal property, § 1256, p. 741. Though but one creditor in position to object to claim, yet trustee m::y object, § 828, p. 480. Trustee gets more than bankrupt's title and rights, § 1138, p. 663. When Vests in trustee Upon Appointment, but Relates back to adjudication, § 1116, p. 638. Date of Cleavage of title, date of adjudication, § 1117, p. 639. Contractual Relations not dissolved, § 1118, p. 639. "TONTINE" POLICIES Bankrupt's Interest in passes to trustee, § 972, p. 545; § 1006, p. 559. "TOOLS AND IMPLEMENTS" Exempt, what are, § 1047, p. 594 n. TORTS Judgments for, provable, though torts themselves not provable, § 680, p. 413. See "Rights of Action — for Injuries to Property.'' Also, "for Injuries to Person." TORT CLAIMS See "Claims Ex Delicto." "TRACING TRUST FUNDS" See "Trust Fund — Tracing of."' "TRADERS" Jurisdiction in Bankruptcy Originally Confined to, § 30, p. 51. Also, Introd. ^ c:^ vVi-'^J.iMV '^(^^O-fllYI-iO' OSANGEIiJV