Obrázky stránek
PDF
ePub

CHAPTER II.

CREATION OF COURTS OF BANKRUPTCY AND THEIR JURISDICTION.

§ 2. That the courts of bankruptcy as hereinbefore defined, viz., the district courts of the United States in the several States, the supreme court of the District of Columbia, the district courts of the several Territories, and the United States courts in the Indian Territory and the District of Alaska, are hereby made courts of bankruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with 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 they are now or may be hereafter held, to

(1.) Adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States but have property within their jurisdictions, or who have been adjudged bankrupts by courts of competent jurisdiction without the United States and have property within their jurisdictions;

(2.) Allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates;

(3.) Appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified;

(4.) Arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act, in accordance with the laws of procedure of the United States. now in force, or such as may be hereafter enacted, regulating trials for the alleged violation of laws of the United States;

(5.) Authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, if necessary in the best interests of the estates;

(6.) Bring in and substitute additional persons or parties in proceedings in bankruptcy when necessary for the complete determination of a matter in controversy;

(7.) Cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided;

(8.) Close estates, whenever it appears that they have been fully administered, by approving the final accounts and discharging the trustees, and reopen them whenever it appears they were closed before being fully administered;

(9.) Confirm or reject compositions between debtors and their creditors, and set aside compositions and reinstate the cases;

(10.) Consider and confirm, modify or overrule, or return, with instructions for further proceedings, records and findings certified to them by referees;

(11.) Determine all claims of bankrupts to their exemptions;

(12.) Discharge or refuse to discharge bankrupts and set aside discharges and reinstate the cases;

(13.) Enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment; (14.) Extradite bankrupts from their respective districts to other districts;

(15.) Make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act;

(16.) Punish persons for contempt committed before referees;

(17.) Pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, appoint trustees, and upon complaints of creditors, remove trustees for cause upon hearings and after notices to them;

(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; and

(19.) Transfer cases to other courts of bankruptcy.

Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.

Residence and Place of Business.

To justify a petitioner in commencing proceedings in a district other than that in which he resided, under the Act of 1841, it was necessary that he should have a fixed and notorious employment in such district. In re Kinsman, 1 N. Y. Leg. Obs. 309; 14 Fed. Cas. 643 (1843).

A debtor must reside within the United States to give the court jurisdiction of voluntary or involuntary proceedings in bankruptcy. In re Burton et al., 9 Ben. 324; 4 Fed. Cas. 863.

The bankrupt had carried on business in New York for two months prior to the proceedings, and for the same two months in Massachusetts. It was held that the district court of New York had jurisdiction of his petition. In re Foster, 3 Ben. 386; 9 Fed. Cas. 521.

Residence in different states is not necessary to give jurisdiction to a court of bankruptcy over a suit by the assignee, eyen though the defendant is not a party to the proceedings in bankruptcy. Atkinson v. Purdy, Crabbe, 551; 2 Fed. Cas. 112 (1844).

A petition is properly filed in the district where the bankrupt had been carrying on business for six months previous, notwithstanding it was not his place of residence. In re Bailey, 2 Ben. 437; 2 Fed. Cas. 392.

A petitioner in New York failed to allege residence in his petition, and it appeared on the examination that he lived with his father in New Jersey, and kept books for a firm in New York City. The register refused an adjudication for the want of jurisdiction, and his action was approved by the court. In re Magie, 2 Ben. 369; 16 Fed. Cas. 406.

The petition showed on its face that the bankrupt resided out of the district. Nearly a year afterward, the petitioner sought to have the petition amended so as to show that the alleged bankrupt in fact resided within the district. The application was denied. In re Freudenfels, 9 Fed. Cas. 810.

The bankrupts appeared in involuntary proceedings, and a decree of adjudication was entered with their consent. Subsequently, a creditor who had not joined in the petition moved to dismiss the proceedings, and in that behalf showed that the bankrupts had never resided or carried on business in the state where the proceedings were commenced. It was held that the court was without jurisdiction, and that the proceedings must be vacated. Fogarty v. Garrity, 1 Saw. 233; 9 Fed. Cas. 330.

A debtor against whom involuntary proceedings were commenced on the 21st of January, 1868, had not carried on business anywhere during the six months previous. From May 1, 1867, to December 7 of the same year, he resided in Boston, and from that time until the commencement of proceedings, at New York. The proceedings were commenced in New York, and an adjudication had by default; but the question of residence having been raised upon the discharge, it was held that the court had no jurisdiction. In re Leighton, 4 Ben. 457; 15 Fed. Cas. 265.

The bankrupt had resided in New Jersey for more than six months before the filing of his petition, but had a desk in New York where he kept his books and papers, and was engaged in closing up the affairs of a former partnership of which he had been a member. He was not engaged in any other business. The district court for the southern district of New York held that it had no jurisdiction over his petition. In re Little, 3 Ben. 25; 15 Fed. Cas. 599.

A railroad company was chartered both in Massachusetts and Connecticut. Proceedings in bankruptcy were commenced in the former state and

an adjudication entered. After the filing of the petition, but before the adjudication, another creditor commenced proceedings in Connecticut. The petitioner in the proceedings in Massachusetts made an application to the district court in Connecticut asking leave to appear and defend against the petition in that state. The district court denied the application, but the circuit court decided that it should have been entertained, and that whether the company was to be regarded as one corporation or two corporations, the court in Massachusetts should have been allowed to exercise the jurisdiction which it had acquired. In re Boston H. & E. R. Co., 9 Blatchf. 101, 409; 3 Fed. Cas. 951.

A merchant, who had resided and done business in New York for twenty years, failed, and thereupon sold his residence in New York and removed with his family to New Jersey. Two years later, during which time he had been engaged as a clerk in New York, he filed his petition in bankruptcy in the southern district of New York. It was held under the Act of 1867 that the petition was properly filed in that district. In re Belcher, 2 Ben. 468; 3 Fed. Cas. 79.

A creditor residing in one state proved his debt in proceedings in bankruptcy in another state. Thereafter he was ordered to appear before the register to be examined respecting his claim, which he failed to do. Held, that he was subject to the jurisdiction of the court by reason of his having proved his claim without respect to his residence; but that if he could not attend personally without hardship, the court would order his examination before a register at his place of residence. In re Kyler, 2 Ben. 414; 14 Fed. Cas. 887.

A debtor who was born in Boston, and had lived there the greater part of his life, was domiciled for some time in California; then went abroad for eleven months, and thereafter returned to Boston. Within two months after his return, he filed a petition in bankruptcy in the district of Massachusetts. The court held that his residence in that state was resumed in a legal sense when he left California without intending to return, and for the purpose of resuming his residence at Boston. In re Walker, 1 Low. 237; 29 Fed. Cas. 1.

W. removed to Montana with a stock of goods, leaving his family at St. Louis. He remained in Montana for ten months with the exception of a business trip to his former home, and then returned to St. Louis. Two months later, a petition in bankruptcy was filed against him in the eastern district of Missouri. The court held that Montana was his place of residence during the six months preceding the filing of the petition. In re Watson, 4 N. B. R. 613; 29 Fed. Cas. 422.

An assignee in bankruptcy can only recover property by a proceeding in another district by a plenary suit, and the defendant must be an inhabitant of, or to be found in the latter district, at the time of serving the writ, to give the district court jurisdiction. Shainwald v. Lewis, 5 Fed. Rep. 510.

A debtor residing in Massachusetts was arrested for debt in New Brunswick. He gave bail, and later surrendered himself and was im

prisoned. Later, he filed his petition in bankruptcy in Massachusetts, and thereafter was charged in execution under the proceedings in New Brunswick. Judge Lowell held that this was not an arrest “ during the pendency of the proceedings in bankruptcy " under the Act of 1867, as the charge in execution related back to the surrender; also that as both the debtor and the creditor were residents of Massachusetts, the court of bankruptcy might enjoin the creditor from proceeding in the arrest. Hazleton v. Valentine, 1 Low. 270; 11 Fed. Cas. 942.

A conflict between rival claims to funds in the hands of the assignee in bankruptcy was held to be determinable in a suit in the district court, although both claimants were residents of the same state, the suit being considered as auxiliary to the original proceedings in bankruptcy, and, therefore, within the jurisdiction of the court. In re Sabin, 18 N. B. R. 154; 21 Fed. Cas. 120 (1878).

Residence, etc., of Partnerships.

Under the Act of 1841 petitions could be filed in the district where the bankrupt resided, or in that in which he had his place of business. Any member of a firm could commence proceedings in the district of his residence, or where the firm carried on its business; but the court that first acquired jurisdiction had exclusive jurisdiction over all the partners and their property, joint and separate. Ex parte Hall, 5 Law Rep. 269; 11 Fed. Cas. 196 (1842).

An adjudication in bankruptcy was entered against a firm on the petition of one partner. The other partners resided outside of the district, and had no place of business within it. The court vacated the adjudication for want of jurisdiction, except as to the petitioning partner. In re Martin, 6 Ben. 20; 16 Fed. Cas. 875.

In proceedings of involuntary bankruptcy against a firm, the petition set up that the three partners had resided in the district for the previous six months. On the application for a discharge, it was shown in opposition that one of them had not resided in the district for that period. Held, that the court could not grant a discharge to any of them. In re Beal, 9 Ben. 223; 2 Fed. Cas. 1119.

The petitioners were copartners, and at the time the debts were contracted were doing business in the state of New York, but one of them resided in the eastern district of New York, and was not engaged in business when the petition was filed. The petition was filed in the southern district of New York. Held, that the partner residing in the eastern district of New York must file his petition in that district. In re Pritchard et al., 1 N. B. R. 297; 19 Fed. Cas. 1242.

A petition in involuntary bankruptcy against a firm was filed in the southern district of Ohio. It appeared that while one of the partners lived in that district, the only place of business of the firm was in Michigan. Held, that the petition could only be filed in the latter district. Cameron v. Canieo, 9 N. B. R. 527; 4 Fed. Cas. 1128.

« PředchozíPokračovat »