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marshal might be directed to restore turn the papers into court. Hughes'
the vessel to the petitioners, from Case,

whom he had taken her:

Held, That, the suit having been 11. An assignee must make his return,
discontinued, the court had no longer Form No. 35, when requested by the
any possession of the vessel, or juris- bankrupt, when he has not received
diction of the suit, or power to grant or paid any money for the estate,
the relief prayed for. The Propeller even though he has reason to expect
Jack Jewelt,

353 that he shall thereafter receive money
on that account.

7. Where a libel was filed against a ves-

sel to recover advances made in a for- 12. Where an assignee examines a bank.
eign port, on the request of her master, rupt, under the twenty-sixth section
for the purpose of paying off a bot- of the Bankruptcy Act, the assignee
tomry bond, and on the return of the must

pay the register's fees, whether
process no owner appeared for her, he has assets of the bankrupt or not.
but a mortgagee appeared, and, on his If the examination is the bene-
consent, the vessel was sold under a fit of creditors, the expenses of it
venditioni vzponas, and the proceeds must be advanced or secured, under
paid into court, and thereupon the the twenty-eighth section of the Act,
mortgagee filed a claim and answer, by the creditors.
not only joining issue with the allega- If the examination is one of the
tions of the libel, but setting up his steps preliminary to the bankrupt's
claim as mortgagee, and praying that discharge, the expenses must be ad-
his claim be paid out of the proceeds, vanced or secured by the bankrupt.
which were insufficient to satisfy both These expenses do not include any

compensation to the assignee. Pro.
Held, That the proceeding had vision may be made for securing such
been made one to effect the proper compensation to him.

distribution of the proceeds of a ves-
sel, already condemned and sold at 13. Where one member of a firm alone
the suit of the libellant, and it was, filed his petition in bankruptcy, in-
therefore, subject to the considera- dividually and as a member of the
tions which control Courts of Admi. firm, and the register adjudged him a
ralty in the distribution of money in bankrupt individually and as a mem-
the registry. The Bark Acme, 386 ber of the firm, and also adjudged the

firm a bankrupt :
See CHARTER Party, 3.

Held, That this latter action of the
Costs, 4.

register was erroneous. In such a
LIEN, 1, 8.

case, notice of the filing of the peti-

tion must be given to those members

of the firm who have not joined in it,
8. Before a creditor can, under the or assented to it, as if the proceed-

twenty-sixth section of that Act, ap- ings were involuntary against the
ply for an order to examine the bank. firmLewis's Case,

rupt, he must prove his claim ; but,
under the twenty-second section, a 14. Where, afterward, the other member
creditor who has tendered proof of a of the firm presented a petition praying
debt, which has not been allowed, that both of them might be adjudged
may also apply for such examination. bankrupts, and that he might have
Ray's Case,

53 leave to join in the first petition :

Held, That this petition might be
9. No order of court is necessary to taken as expressing the assent of the

authorize the assignee to sell unen- petitioner to the petition of the other
cumbered assets of the bankrupt. partner, and to validate the adjudica,
White & May's Case,

85 tion of bankruptcy against the firm;'

That it was not necessary for him
10. If a creditor opposes a bankrupt's to otherwise join in the first petition.

discharge, the register must make a The proceedings as to his individual
certificate of his proceedings, and re- creditors would be had under his pe-
tition, and the proceedings as to the of the act, several months having
individual creditors of the other elapsed since the proofs of the cred-
partner, and as to the creditors of itors' debts, and no reason for requir-
the firm, would take place under the ing a new examination being shown:
first petition.

id. Held, That the application must be

denied. Isidor & Blumenthal's Case,
15. Applications by assignees in bank-

ruptcy to settle controversies under
the seventeenth section of the Bank- 20. Where a witness, called for examin-
ruptcy Act, or to sell property under ation under the twenty-sixth section
the twenty-fifth section, must be made of the Bankruptcy Act, objected to
to the court, and not to a register. being examined, on the ground that
Graves' Case,

100 there was no authority to examine a

witness under the Act unless there
16. It is incumbent upon registers in no was a question in controversy to be

manner to interfere with or influence. settled by testimony, and not until
directly or indirectly, the choice of after the examination of the bankrupt
an assignee by creditors. Smitli's himself, but, without insisting on the

113 objection, submitted to an examina-

tion, and the register certified the
The policy of the Bankruptcy Act is to question, involved in his objection, to

give to the creditors, in the first in- the court:
stance, a free, deliberate, unbiased, Held, That the objection was frivo-
choice of the assignee.

id, lous;

That, after the witness had waived
17. Where creditors applied to have bis objection, there was no question to

the proceedings sent before another question to be certified, and the regis-
register than the one to whom the ter should have refused to give a cer-
case had been referred, on the ground tificate. Fredenberg's Case, 133
that the register had interfered in
choice of an assignee, the court 21. Where specifications of objection to
granted the application, without, how- a bankrupt's discharge state that he
ever, questioning the motives of the

has placed his property in the hands,
register in what he had done, but be- of his wife, and withbeld his books,
cause the creditors, who had made

papers, and documents, they will be
affidavits in support of the applica- held too general, unless they are in.
cation, and their attorney, ought not tended to apply to all his property
to be compelled by the court, after and all his books, papers, and docu-
all that had transpired, to continue ments.
the proceedings before the register in A general charge of fraud against

the Act is too vague. Hill's Case,

18. Where creditors, who had proved

their debts, served on the register a no- After specifications of objection are
tice protesting against the proof of any filed, further proof may be taken, if
claims against the estate by certain desired, by a reference to the register.
other creditors, and requesting to be
notified if any such claims were
tendered for proof:

The issues to be tried in such case are
Held, That they had the right to the allegations in the specifications;
serve such a notice.

id. and, where the bankrupt has taken

the oath required by section twenty-
19. Where the bankrupts were examined nine of the Act, the burden of proof

by the assignees, and creditors filed is on the creditor to show that the
specifications of opposition, wbich the bankrupt has forfeited his title to a
court held irregular in form, and al- discharge.

lowed them time to file new ones, and
in the interim they applied for an 22. Specifications of objections to a dis-
order that the bankrupts attend and
be examined under section twenty-six

charge must not be vague and general.
If they are such, they furnish no


ground for refusing a discharge. Held, That the register should have
Son's Case,

153 granted his petition. The bankrupt

had prayed to be discharged from all
23. The pendency of an examination of his debts, and could not be discharged

the bankrupt is good cause for an ad- from the debts of the firm until the
journment of the proceedings, on the partner was brought in. Little's Case,
order to show cause why the bankrupt

should not be discharged. Thompson's

166 28. A creditor, who has a security for

his debt, may prove his claim for the
24. Creditors who desire to oppose a overplus, without abandoning the

bankrupt's discharge must prove their security, but must set forth the value
claims. Levy's Case,

169 of the security, and may vote, on the

choice of an assignee, upon such over-
25. Where a bankrupt was arrested in

plus. Bolton's Case,

an action in a State court on allega-
tions of fraud in contracting the debt, 29. Where a corporation was organized
to recover which the action was

under the laws of the State of New
brought, and gave bail, and applied

York, and, in a proceeding instituted
to this court, on affidavits denying the by the Attorney-General of the State,
allegations of fraud, for an order dis- and restraining the company and its
charging him from arrest, and dis-

officers from exercising any of its cor-
charging the bail:

porate powers, was declared insolvent,
Held, That the court was competent

and an order dissolving it and appoint-
to give him the relief sought, provided

ing a receiver was made by the Su-
his arrest was founded on a debt from preme Court of the State, and the re-
which his discharge in bankruptcy

ceiver took possession of the property
would release him.

of the company, and thereupon a peti-
That the court must inquire into

tion in involuntary bankruptcy was
that question of fact, and decide it on

this application. Glaser's Case, 180

Held, That the service of the order

to show cause must be made by publi
26. A Bankruptcy Court; in determin- cation;

ing the question whether the arrest of That the company had suffered its
a bankrupt is founded on a debt or property to be taken on legal process,
claim from which his discharge would

with intent to defeat the operation of
not release him, as provided by the the Bankruptcy Act. The Washington
twenty-sixth section of the Bank- Marine Ins. Co.'s Case,

ruptcy Act, can look only at the papers
which were before the State Court, as 30. Where specifications of objection to
the foundation of the arrest. Kimball's a bankrupt's discharge had been filed,


and the creditors then moved for leave

to take testimony, which motion was
27. Where a bankrupt filed his petition, opposed, on the ground that the ground

in which there was no allusion to the of objection alleged was an assignment
fact that he was a member of a firm, made by the firm, of which the bank-
although the schedule showed debts rupt was then a member, before the
contracted by him as member of a passage of the Bankruptcy Act, and
firm, and that there were credits due consequently not within the meaning of
to said firm, and he was adjudicated a

the twenty-ninth section of the Act :
bankrupt, and an assignee was duly

Held, Ibat the specifications not
chosen by the creditors, and the only alleged such assignment, and that
bankrupt then presented a petition to

it was fraudulent, but also alleged that
the register, stating that he was a the property had remained in the pos-
member of a firm, and asking leave to session of some of the assignors ever
amend his petition and schedules so since the assignment, and that this was
as to allow the other member of the done with the knowledge and assent of
firm to be joined with him, so that he the bankrupt;
might be discharged from the debts

That the court would not, on such a
of the firm, which the register refused: motion, pass upon the question whether

VOL. II .-38

such a state of facts, if proved, would they thereafter resided there upon
amount to a fraud under the twenty- some property belonging to his wife,
ninth section of the Act;

while he engaged as a clerk with his
That leave to take evidence would successors in business, and continued
be granted. Moort's Case, 325 so till the filing of his petition in bank-

ruptcy, two years after:
31. Where specifications of objection to Held, That his petition was prop.

a bankrupt's discharge had been filed, erly filed in the Southern District of
which were too vague to be triable, New York. Belcher's Case, 468
and no application was made to amend
them, and a discharge was granted, 35. Where creditors were required to
and the creditor, about a month after- show cause on a certain day, why a
ward, applied, on petition, to have the bankrupt should not be discharged,
discharge set aside, and for leave to and on that day creditors appeared,
file amended specifications:

and the proceedings on the order were
Held, That the creditor was charge- adjourned till a subsequent day:
able with laches. McIntire's Case, Held, That the ten days, within


which specifications of objections to

the discharge were to be filed, dated
32. Where a bankrupt filed a petition from the adjourned day. Tallman's
in bankruptcy in the Southern Dis- Case,

trict of New York, not averring any
place of residence, and, on his ex- 36. Where creditors opposed the dis.
amination, it appeared that he re- charge of a bankrupt, on the ground
sided with his father, in New Jersey, that he had procured the assent of cer-
and had done so since he came from tain creditors to his discharge by a
Chicago, four years previous; that he pecuniary obligation, and the evidence
had been engaged in looking after a showed that he had paid to the coun-
private matter, with a view to return- sel for those creditors, their fees, for
ing to Chicago, and that, for about six services rendered in the matter,
months back, he had been keeping amounting to $20, but it also appeared
books for a firm in New York city, that those creditors had announced
and, thereupon, the register declined that they would not oppose the dis-
to make an adjudication of bankruptcy, charge, before any thing whatever
as having no jurisdiction of the case; was said about his paying their coun-

Held, That the register's decision sel fees, and that such payment was
was correct. Magie's Case, 369 not made a condition of their with.

drawing further opposition :
33. Where a bankrupt did not reside in Held, That the burden of proof was

the Soutlrern District of New York upon the opposing creditors, and the
during the next six months preceding proof did not sustain the specification.
the filing of his petition, but, before Mawson's Case,

his insolvency, had been in business
in New York city, and had, during 37. Where a creditor, who resided out of
the whole of the said six months, car- the district, had proved his debt in the
ried on business in New York city as proceedings, and an order was made
the agent and attorney of his brother, that he appear before the register and
in buying and selling merchandise, be examined touching his debt:
keeping an office for that purpose with Held, That, in case of his disobedi.
his brother's name upon the sign: ence, the court could strike out his

Held, That the petition in bank- claim;
ruptcy was properly filed in the South- That, if he could not personally at-
ern District of New York. Baily's tend, to be examined in the district,


without hardship, the court would

provide for his being examined before
34. Where a merchant, who had resided a register in the district of his resi-
in New York city for more than dence. Kyler's Case,

twenty years, failed in business, sold
his residence in that city, and re- 38. Where an execution had been issued
moved his family to New Jersey, and on a judgment against a bankrupt, and

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a levy made under it, and thereupon, bankruptcy alleged that the bankrupt
on the filing of a petition in bank- had concealed himself to avoid the
ruptcy by the judgment debtor, an in- service of legal process, &c., as pro-
junction was issued restraining pro- vided in the thirty-ninth section of the
ceedings on the execution, and there- Bankruptcy Act, and the debtor de-
after a motion was made to dissolve manded a trial by jury:
the injunction, on which the bankrupt Held, That, on such trial, notwith-
produced affidavits to show that he standing the provisions of the forty-
had no interest whatever in the prop-

first section of the Bankruptcy Act,
erty levied on:

the creditor was called upon to prove
Held, That, as the assignee, though the facts alleged in his petition. Hop-
notified of the proceedings, had taken pock's Case,

no steps to acquire possession of the
property, and as it did not appear 42. An order for the examination of the
that the proceedings of the creditor debtor in proceedingssupplemental
under the execution would affect any to execution, under $ 292 of the New
one who was entitled to the protection York Code, is "legal process," within
of the court under the Bankruptcy the meaning of the thirty-ninth sec-
Act, the injunction would be dissolved. tion of the Bankruptcy Act. id,
Olcott's Case,


43. Where, in bankruptcy proceedings,
39. Where an order was obtained for a creditor, claiming to hold collaterals

the examination of a bankrupt and his as security for an indebtedness of the
wife, proceedings on which order were bankrupts, applied for an order to sell
adjourned several times, during which the same, under the twentieth section
time the bankrupt filed a petition for of the Bankruptcy Act, which was op-
discharge, and obtained an order to posed by the assignee in bankruptcy,
show cause, but nothing was done on on the ground that the creditor had
the return day of that order, but ob. not proved his debt, as required by
jections were afterward filed, and the twenty-second section of the Act:
thereupon, on the day to which the Held, That the creditor could sub-
examination had been adjourned, the stantiate his claim against the bank-
bankrupt objected to being examined rupts, so far as to comply with the re-
on the ground that he had applied for quirements of the twenty-second sec-
his discharge, and the time to file ob- tion, without previously ascertaining
jections to the discharge had expired: the value of the securities which he

Held, That the adjournment, with-
out day, of the proceedings under the That, as the creditor's right to hold
petition for discharge, terminated the collaterals was dependent upon
those proceedings, unless a new order his ability to show himself to be a
was issued;

creditor, no permission to sell the col-
That the objections to the discharge laterals could be granted until his
might stand as properly filed;

right to sell them was shown, as re-
That the time to examine witnesses quired by the twenty-second section of
had not expired;

the Act. Bigelow's Case,

That the time to file objections
should be kept open by adjournments 44. Where, previous to the passage of
of any order to show cause, until a full the Bankruptcy Act, an attachment
opportunity for the examination of the bad been issued out of the Supreme
bankrupt and his wife, and other wit- Court of the State of New York against
nesses, had been given. Seckendorf's the property of H., who made a mo-

462 tion to set aside the attachment,

which was denied, and he appealed
40. Copartnership debts may be proved from the order denying his motion to

in proceedings instituted by a single the general term of the court, but the
partner, on an individual petition, plaintiffs in the suit in the mean time
whether there are any assets of the co- proceeded to judgment and execution,
partnership or not. Frear's Case, 467 under which funds levied on under the

attachment had been paidto the sher-
41. Where a petition in involuntary iff, and by him paid to the judgment



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