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that such a proceeding was in conflict with the bankrupt law in regard to property which passes to the assignee in bankruptcy, and that the prisoner must be discharged.

V. Proceedings for a receiver as affected by bankrupt law.

sion of bankruptcy against him, such debtor | but the collection of the creditor's judgment; and shall be entitled to relief under such laws for the relief of insolvent debtors. It appears in this case that the United States court held in regard to the same matter that if a debtor be imprisoned for three months, and no commission is sued out by his creditors, he may apply for the benefit of the insolvent law, and if a commission is not sued out in six months he may have full benefit of the insolvent laws. But if a commission is sued out within six months before the act of bankruptcy it precludes state relief. The case does not show what was the final result or relief granted.

But where proceedings in bankruptcy were pending under the bankrupt act of 1867, and the debtor was arrested under Pa. act July 12, 1842, and gave bond to apply to the court of common pleas for the benefit of the insolvent law, the dismissal of his application because of pending bankrupt proceedings was a good defense to an action on the bond. Hubert v. Horter (1876) 81 Pa. 39.

A bond given under the Insolvent act is avoided by a discharge in bankruptcy.

A bond to avoid arrest and to apply to be discharged as an insolvent under Pa. act July 14, 1842, is avoided where, pending the hearing, the debtor is adjudged a bankrupt, as the adjudication, under the bankrupt act of March 2, 1867, suspended the operation of the state insolvent laws. Barber v. Rodgers (1872) 71 Pa. 362. The court said that it was unnecessary to determine whether from the time the bankrupt act of Congress March 2, 1867. went into effect, the insolvent laws of the state were ipso facto suspended, because it was very clear that this result followed as soon as a person was adjudged a bankrupt, November 23, 1867. In this case the court said that the debtor was liable under U. S. Rev. Stat. § 44, providing punishment upon conviction of fraudulent bankruptcy, and that he could not be subject to a double punishment for the same offense, and that the laws of the United States, being paramount in authority, supersede those of the state. In Scully v. Kirkpatrick (1875) 79 Pa. 324, 21 Am. Rep. 62, it was said that Barber v. Rodgers was not a case of a debt fraudulently contracted.

And an insolvent bond given January 11, 1843, to appear on March 21 and file a petition for the benefit of Pa. insolvent laws, was avoided, where on the 18th of March the debtor applied for the benefit of the bankrupt law, and was discharged on the 27th of August. This was a good defense. Nesbit v. Greaves (1843) 6 Watts & S. 120. In this case the court said that the proceedings in bankruptcy were commenced before any proceedings in the state court for the benefit of the insolvent law, so the assignee under the bankrupt law became entitled to all the assets leaving nothing to be assigned under the insolvent law.

In Gregg v. Hilsen (1877) 12 Phila. 348, it was said that a bond given to take the benefit of the Pennsylvania insolvent law is substantially complied with if the obligor is declared a bankrupt. But in this case it was said that a debtor is not privileged from arrest after the refusal of a discharge in bankruptcy on the ground of fraud.

In Coodwin v. Sharkey (1868) 5 Abb. Pr. N. S. 64, where a debtor was arrested under N. Y. insolvent law April 26, 1831, commonly known as the "Stillwell Act," for fraudulent disposition of real estate, and before the warrant was issued he had applied for a discharge under the bankrupt act and had been adjudicated a bankrupt, it was held that a civil proceeding under this act was not the punishment of the debtor

In STATE, STROHL, V. KING COUNTY SUPER. CT. it was held that in the absence of bankrupt proceedings a state court may appoint a receiver for a corporation, under Wash. Code Proc. 325, subd. 5, 2 Ballinger's C. & S. § 5456, 2 Hill's Code, § 326, authorizing the appointment of receivers for insolvent corporations, and that the state court improperly sustained a plea to the jurisdiction in an action brought by a receiver, and wrongfully held that a receiver's powers cease on the passage of the bankrupt laws. There are but few cases directly in point. That of Chandler v. Siddle (1874) 10 Nat. Bankr. Reg. 236, not cited in this case, is directly in point and sustains it. There are a great many analogous authorities as to the effect of a bankrupt law upon deeds of assignment, the two principal cases being Boese v. King (1883) 108 U. S. 379, 27 L. ed. 760, and Mayer v. Hellman (1875) 91 U. S. 496, 23 L. ed. 377, 13 Nat. Bankr. Reg. 440. See subd. II.

The case of Re Empire Metallic Bedstead Co. (1899) 1 Nat. Bankr. News. 386, Reversing 1 Nat. Bankr. News, 301. might be construed as sustaining STATE, STROHL, V. KING COUNTY SUPER. CT. as it held that an application of an insolvent corporation for a dissolution and for a receiver is not an act of bankruptcy under the laws of 1898; but that is another question, and one that may be said to be somewhat in doubt.

In none of the cases on this subject, unless it be in Re Shoemaker (1868) 4 Biss. 245. is the question discussed, as to whether or not the appointment of a receiver for a partnership or corporation is an act of bankruptcy where insolvency is denied.

Under the act of 1898, after making an assignment which is declared to be an act of bankruptcy, the assignor cannot resist bankrupt proceedings by showing that he was solvent.

The bankrupt act does not ipso facto prevent a receiver of a state court from prosecuting a suit against a shareholder. Chandler V. Siddle (1874) 10 Nat. Bankr. Reg. 236.

The weight of authority appears to be that the appointment of a receiver in a state court will authorize an adjudication in bankruptcy, when the debtor is insolvent, and that the Federal court will generally take possession of the assets and administer the same in that court, although in some cases they have refused an adjudication in bankruptcy. But lapse of time in attempting to place the control of the estate in the Federal court may prevent such court from interfering with the distribution of property.

The appointment of a receiver for an insolvent in a state court authorizes bankruptcy proceedings. Hardy v. Bininger, 4 Nat. Bankr. Reg. 262, S. C., Re Bininger (1870) 7 Blatchf. 262, Affirming Hardy v. Clark, 3 Nat. Bankr. Reg. 385 Re New Amsterdam F. Ins. Co. (1873) 6 Ben. 368: Re Washington Marine Ins. Co. (1868) 2 Ben. 292, 2 Nat. Bankr. Reg. 648: Re Merchants' Ins. Co. (1871) 6 Nat. Bankr. Reg. 43, 3 Biss. 162; Mather v. Coe (1899) 92 Fed. Rep. 333.

An insolvent partnership firm suffering a receiver to be appointed will be adjudged a bankrupt. Hardy v. Bininger, 4 Nat. Bankr. Reg. 262, S. C., Re Bininger (1870) 7 Batchf. 262.

Affirming Hardy v. Clark, 3 Nat. Bankr. Reg. (1876) 13 Nat. Bankr. Reg. 118; Re National 385.

A dissolution of an insolvent corporation and the appointment of a receiver will authorize bankrupt proceedings if commenced within six months after the dissolution of the corporation. Re New Amsterdam F. Ins. Co. (1873) 6 Ben. 368.

In this case it was said that the views in Thornhill v. Bank of Louisiana (1870) 1 Woods, 1. 5 Nat. Bankr. Reg. 367, and (1870) 3 Nat. Bankr. Reg. 435 (see infra), will not be adopted until they are approved by the circuit court of this district.

A decree of involuntary bankruptcy will be granted where a corporation was dissolved and a receiver appointed at the instance of the attorney general in the state court. Re Washington Marine Ins. Co. (1868) 2 Ben. 292, 2 Nat. Bankr. Reg. 648. This was on the ground that the company suffered its property to be taken on legal process with intent to defeat the operation of the bankrupt act of 1867. This case does not show whether the company was insolvent or not.

L. Ins. Co. (1874) 6 Biss. 35; Re Noonan (1873) 3 Biss. 491; Thornhill v. Bank of Louisiana (1870) 1 Woods, 1, 5 Nat. Bankr. Reg. 367, Affirming (1870) 3 Nat. Bankr. Reg. 435. A proceeding in bankruptcy against an insolvent insurance company may be maintained, notwithstanding a decree in the state court appointing a receiver to collect its assets and pay debts declared "that the said corporation be and the same is hereby dissolved" under Mass. Gen. Stat. chap. 58, § 6, providing for a dissolution of an insolvent corporation, as the operation of a state law regulating the distribution of an insolvent debtor corporation is suspended by the Federal bankrupt act. Re Independent Ins. Co. (1872) Holmes, 103, 6 Nat. Bankr. Reg. 260, Affirming 2 Low. Dec. 97, 6 Nat. Bankr. Reg. 169. In this case the court said: "The sooner it is understood that now, when a uniform law of bankruptcy is in operation under the authority conferred upon Congress by the Constitution of the United States, no power exists to wrest from the jurisdiction of the courts in bankruptcy the assets of such bankrupt individuals and corporations as are within the scope of the provisions of the bankrupt act, the more will the beneficent provisions of that act be felt and ap

The appointment of a receiver for an insolvent corporation, by a state court, will not prevent the bankrupt court taking jurisdiction in proceedings for involuntary bankruptcy. Re Safe Deposit & Sav. Inst. (1872) 7 Nat. Bankr. Reg. 392.

The appointment of a receiver by a state court, to take charge of property of an insolvent corporation, is an attempt to defeat the bankrupt law of 1867, § 39, cl. 8. prohibiting "tak-preciated." ing on legal process." Re Merchants' Ins. Co. (1871) 3 Biss. 162, 6 Nat. Bankr. Reg. 43. In this case the court said that a state could not defeat the operation of any bankrupt law by providing that an insolvent corporation should be wound up in state courts, and, if insolvency exists, a person or corporation is within the provisions of the bankrupt law, and Federal courts have exclusive jurisdiction of the propety, and the corporation will be adjudged bankrupt on petition of the creditors.

The procuring of an appointment of a receiver by an insolvent partnership firm under the insolvent laws of Ohio will authorize steps to be taken to hold assets pending adjudication in bankruptcy. Mather v. Coe (1899) 92 Fed. Rep. 333. In this case it is held to be a procuring or suffering their property to be transferred to a receiver, under the insolvent laws of Ohio, which gives preferences to certain creditors for labor, and therefore is a disposition which is an act of bankruptcy, under bankrupt law 1898, § 3, subsec. 2.

But in a suit against a corporation for involuntary bankruptcy, where it was charged that a corporation consented to the appointment of a receiver of its property, and thereby did procure and suffer its property to be taken on legal process, an adjudication was refused where it was not shown that the corporation assented to the proceeding in the state court, although its insolvency was admitted. Re Safe Deposit & Sav. Inst. (1872) 7 Nat. Bankr. Reg. 392.

And in Re Empire Metallic Bedstead Co. (1899) 1 Nat. Bankr. News, 386, Reversing 1 Nat. Bankr. News, 301, it was held that under the bankrupt act of 1898 an application of an insolvent corporation for a dissolution is not an act of bankruptcy. In this case the referee held that the bankrupt act of 1898, providing that an assignment for creditors is an act of bankruptcy, should be construed to mean also or the appointment of a receiver" is an act of bankruptcy; but the district court refused to follow his interpretation.

The appointment of a receiver by a state court will not prevent subsequent bankrupt proceedings in the Federal court. Re Independent Ins. Co. (1872) Holmes, 103, 6 Nat. Bankr. Reg. 260, Affirming 2 Low. Dec. 97, 6 Nat. Bankr. Reg. 169; Re Safe Deposit & Sav. Inst. (1872) 7 Nat. Bankr. Reg. 392; Re Green Pond R. Co.

That a state court had appointed a receiver for an insolvent corporation will not prevent subsequent proceedings in bankruptcy. Re Green Pond R. Co. (1876) 13 Nat. Bankr. Reg. 118. In this case the court said that N. J. Nixon, Dig. 402, act February 16, 1829,-"An Act to Prevent Frauds by Incorporated Companies," under which the receiver was appointed,-was in effect a bankrupt act, and was superseded by the bankrupt act of 1867.

The appointment of a receiver to take charge of the assets of a corporation will not prevent bankrupt proceedings, where no order for distribution has been made in the state court, under U. S. Rev. Stat. 1874, § 5123, providing that when a proceeding is had to wind up the af fairs of a corporation, any order made by the state court for a distribution of assets shall be valid. notwithstanding bankrupt proceedings. Re National L. Ins. Co. (1874) 6 Biss. 35.

One member of a firm may file a petition in bankruptcy for himself and for the firm, although in prior proceedings a receiver has been appointed in the state court. Re Noonan (1873) 3 Biss. 491.

Commissioners of an insolvent bank, appointed under La. act March 14, 1842, providing for dissolution of banks and for distribution of assets, have no standing in a bankrupt court to object to an adjudication in bankruptcy, as the Louisiana law is a bankrupt or an insolvent act and so held by the state courts, and was suspended by the taking effect of the bankrupt act June 1, 1867, so that thereafter the state courts had no jurisdiction to proceed under it, and all the proceedings against a bank under the state act are null and void. Thornhill v. Bank of Louisiana (1870) 1 Woods, 1, 5 Nat. Bankr. Reg. 367, Affirming (1870) 3 Nat. Bankr. Reg. 435.

The Federal court in bankrupt proceedings will take charge of the assets, and in some cases an injunction was granted by the Federal court against interfering with the same, although a receiver had previously been appointed in the state court.

Where a state court issues an order to show cause why a receiver of a corporation shall not be appointed, but makes no order for a distribution of assets, and the next day a petition in involuntary bankruptcy is filed and an adjudication in bankruptcy had before a receiver is appointed, the jurisdiction of the state court is at an end. Watson v. Citizens' Sav. Bank (1874) 11 Nat. Bankr. Reg. 161. In this case it was held that act of Congress February 13, 1873, providing that when proceedings are had to wind up the affairs of a corporation in the state courts, and to divide its assets ratably among its creditors, prior to proceedings in bankruptcy having been commenced, any order made in the state courts for distribution while such state court shall remain actually or constructively in control of the assets shall be deemed valid, applies only to such orders relating to ratable distributions as the state court may have passed prior to the commencement of proceedings of adjudication under the bankrupt law.

Where proceedings for a receiver of a bank to administer its assets for the creditors were pending in the state court, and the bank filed a petition in bankruptcy in the Federal court, the latter court ordered the surrender of all the assets to the register in bankruptcy, and issued an injunction to restrain the prosecution of the action by the complainant in the state court. Re Citizens' Sav. Bank (1873) 9 Nat. Bankr. Reg. 152.

And where a receiver in a state court was appointed for an insolvent corporation November 13, and involuntary bankrupt proceedings were had December 23, the Federal court enjoined the receiver from taking charge of the property. Platt v. Archer (1872) 9 Blatchf. 559.

In this case the court said that no doctrine can be admitted which would place it in the power of a state or in the courts of a state, to render nugatory the operation of the bankrupt act in respect to such corporations as are subject to it, and the court held that a decree dissolving the corporation after service in the bankrupt case and before return should be disregarded.

Where a receiver was appointed for a corporation in a supplementary proceeding, and afterwards a decree in involuntary bankruptcy was had, and then the receivership extended to all the bankrupt's property, the assignee in bankruptcy is entitled to all the assets at the time of filing bankrupt proceedings. Smith v. Buchanan (1871) 8 Blatchf. 153, 4 Nat. Bankr. Reg. 397, Affirmed in Buchanan V. Smith (1872) 16 Wall. 277, 21 L. ed. 280.

This was upon the ground that as the creditors, in proceedings against the corporation, had reason to believe that the corporation was insolvent in neglecting to pay its debts, and that as the corporation in neglecting to take steps contemplated by the bankrupt law was acting in fraud of the law itself, the apparent lien of the judgment creditors would be set aside at the instance of the assignee in bankruptcy.

within four months before the filing of the petition against them in bankruptcy, did "procure or suffer" their property to be seized on execution with a view to give a preference to creditors.

Where one member of a partnership firm obtains the appointment of a receiver in a state court, and the other members subsequently apply for an adjudication in bankruptcy for the firm, the Federal court will grant an injunction against the partner proceeding further in the state court and to preserve the assets. Re Hathorn (1875) 2 Woods, 73. In this case the court said that this was not a case where a creditor was seeking to enforce his claim in the state court, but was an action by a partner against whose firm bankrupt proceedings were pending.

The Federal court enjoined a receiver and creditors from proceeding in the state court to pursue assets, where an assignment made some ten years prior to bankrupt proceedings was held void by the state court. Sedgwick v. Menck (1868) 1 Nat. Bankr. Reg. 425.

But in some cases the Federal courts have refused to interfere with the assets in the hands of a receiver appointed in prior proceedings in the state court. In some of these cases lapse of time prevented an interference.

The bankrupt court will not interfere with the possession of property in the hands of a receiver appointed in a state court in prior proceedings, unless the title of the receiver is impeached under the bankrupt act. Alden V. Boston, H. & E. R. Co. (1871) 5 Nat. Bankr. Reg. 230.

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And an injunction was refused in the Federal court where the petition in bankruptcy was insufficient and was dismissed, although it was claimed that the appointment of a receiver of partnership assets was an act of bankruptcy. Re Keiler (1878) 18 Nat. Bankr. Reg. 10. this case the court said: "I must decline, therefore, to entertain any question concerning, or to express any opinion upon, the alleged improper, unjust, and oppressive acts of the state court, or to permit the alleged existence of such facts to control in any way the action of the court, even in a matter of discretion, if such it is, upon which I am called to act." The petition in bankruptcy lacked the requisite number of petitioners.

And where a receiver of a partnership was appointed in 1896, the Federal court in bankrupt proceedings under the act of 1898 refused to interfere. Re Price (1899) 92 Fed. Rep. 987, 1 Am. Bankr. Rep. 606.

The bankrupt court will not interfere with funds obtained by a receiver four months prior to bankrupt proceedings. Re Meyers (1899) 1 Nat. Bankr. News, 293.

words

In this case it was said that the "state insolvency laws" in the bankrupt act of 1898 refer to those special statutes passed by the various states which are in effect bankrupt laws of local application, such as insolvency laws of Massachusetts and N. Y. Code of Civ. Proc. §§ 2149, 2157, and that "they may include general assignment laws such as N. Y. act 1877, though that may be doubted."

A receiver under a mortgage foreclosure in a state court cannot be dispossessed by subsequent bankrupt proceedings. Davis v. Alabama & F. R. Co. (1873) 1 Woods, 661.

In Buchanan v. Smith (1872) 16 Wall. 277, 21 L. ed. 280, Affirming Smith v. Buchanan (1871) 8 Blatchf. 153, 4 Nat. Bankr. Reg. 397, it was held that N. Y. Code, §§ 292, 294, under which the appointment of a receiver was made, had no application whatever to corporations, and that the proceedings thereunder were void, and that judgment creditors must proceed in the state court, under N. Y. Sess. act 1825, p. And in some cases the state courts have re449, Rev. Stat. 463, providing for the sequestra-fused to order the assets turned over to an astion of property and effects of corporations for signee in subsequent bankrupt proceedings. the benefit of creditors. The Federal court held Appleton v. Bowles (1874) 9 Nat. Bankr. Reg. that the judgment under which a receiver was 354. appointed and under which the defendant claimed Я lien was void on the ground that the company,

The state court will not on a mere motion order a receiver on a creditor's bill to turn over

the assets to an assignee appointed in subsequent proceedings in bankruptcy. Freeman v. Fort (1874) 14 Nat. Bankr. Reg. 46. The court said that the bankrupt court has exclusive jurisdiction in administering the assets of a bankrupt whenever it deems it proper, and may enjoin creditors from proceeding against assets, but until it shall have done so the state court will not surrender its jurisdiction.

In Watkins v. Pinkney (1842) 3 Edw. Ch. 533, it was held that where a receiver has been appointed in a creditor's suit, the subsequent application for the benefit of the bankrupt act by the debtor will not protect him from an attachment in refusing to deliver his property to the receiver. Where a receiver of a corporation is appointed at the instance of creditors, and is administering the assets for the benefit of all creditors, the state court will not turn over the property to an assignee in subsequent bankruptcy proceedings at the instance of some of the creditors. Myer v. Crystal Lake Pickling & Preserving Works (1875) 14 Nat. Bankr. Reg. 9. In this case the court said that the Federal cases which show an interference by a Federal court with a receiver appointed in prior proceedings are those where a receiver has been appointed under a state insolvent law that is superseded by the bankrupt act. After the assignment of the debtor's property to a receiver, his title is superior to that of an assignee in bankruptcy appointed in subsequent proceedings, and his release of a debt will be binding. Roberts v. Albany & W. S. R. Co. (1857) 25 Barb. 662.

In Clark v. Bininger (1870) 3 Nat. Bankr. Reg. 318, an assignee in bankruptcy interfering with assets in the hands of a receiver under a prior appointment of a state court was held guilty of contempt. In this case the action was commenced November 19 in the state court, and a receiver was appointed and took possession, and on December 11 bankruptcy proceedings were instituted and an adjudication had December 22.

The court said that under the bankrupt act of 1867 the Federal court had no authority conferred to interfere with process or proceedings in the state court, and that the bankrupt act expressly preserved all liens existing at the commencement of proceedings in bankruptcy; that the partner had a lien on the assets for the payment of debts and surplus to him; that only transfers and assignments in preference or in fraud of creditors were denounced by the bankrupt law of 1867; and that nothing in that act excluded jurisdiction of other tribunals from a just distribution of the debtor's property except in bankruptcy cases.

In Re Clark (1870) 3 Nat. Bankr. Reg. 524, the Federal court declined to interfere, saying: "It does not appear that this court has such superior jurisdiction in the premises, or such supervisory control over the state court in respect to the property in question, as to authorize it to take away from the state court the possession of such property, or to enjoin the receiver from further interfering with such property." And in Re Bininger (1870) 7 Blatchf. 159, the United States circuit court refused to grant a writ of prohibition to the state court to prevent further proceedings.

In Re Platt (1877) 10 Jones & S. 513, 52 How. Pr. 468, the state court refused an assignee in bankruptcy leave to sue a receiver appointed by such court.

A receiver in a state court cannot claim that a previous assignment is void, where the receiver does not institute a suit until after proceedings in bankruptcy are had. Olney v. Tanner (1882) 10 Fed. Rep. 101.

The appointment of a receiver at the instance of a partner on the ground that his copartner

is wasting the property will not prevent the plaintiff in that action from subsequently obtaining his discharge in bankruptcy. Re Shoemaker (1868) 4 Biss. 245. In this case the court said: "It may be that the appointment of a receiver by a court of equity vests the title to the property in dispute in him temporarily. But it seems to me an error to suppose that, even if done at the instance of a failing partner, it would be such a fraudulent transfer of his property as is contemplated and provided by the bankrupt act. If, in June, 1867, Shoemaker found that his partner was wasting their partnership property, it was perfectly lawful for him to apply to a state court for redress, whether at that time he was insolvent or not. In doing so, the best way to put a stop to that waste would probably be to put the property into the hands of a receiver. Such a course would be likely to contribute to his own advantage and to the security of his creditors. And to argue that in doing so he committed a fraud, either on his creditors or on the bankrupt act, appears to me to be most unreasonable."

VI. Effect of creditor's bill or supplementary proceedings as against bankrupt proceedings.

No lien can be acquired by creditor's bill or supplementary proceedings in the state court after proceedings in bankruptcy are instituted. Supplementary proceedings after a petition in involuntary bankruptcy is filed are void. Buchanan v. Smith (1872) 16 Wall. 277, 21 L. ed. 280.

And after adjudication in bankruptcy a creditor's bill cannot create any lien as against an assignee in bankruptcy. Winters V. Claitor (1877) 54 Miss. 341, 18 Nat. Bankr. Reg. 533.

In Re Allen (1842) 1 N. Y. Legal Obs. 115, it was said that in Re Thayer, June 22, 1842, MS., it was held that a lien could not be acquired by a creditor's bill as against prior bankrupt proceedings.

Under the bankrupt act of 1898, the bankrupt court will enjoin prior supplementary proceedings in the state court if attacked in time. Re De Long (1898) 1 Am. Bankr. Rep. 66.

So, supplementary proceedings begun within four months prior to bankruptcy proceedings will be stayed by the Federal court. Re Kletchka (1899) 92 Fed. Rep. 901.

Under bankrupt act July 1, 1898, § 70, subd. e, providing that the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, an injunction will be granted against an action to set aside a fraudulent conveyance begun July 30, 1898, and a supplementary proceeding where the debtor was examined prior to July 1, and proceedings adjourned to September 24, 1898.

The referee beld that the bankrupt act of 1898, § 11, providing that suits upon a claim for which a discharge would be a release shall be stayed, authorized an injunction. Re Adams (1898) 1 Am. Bankr. Rep. 94.

assets.

Where no lien is acquired in supplementary proceedings or by a creditor's bill in the state court, the assignee in bankruptcy in subsequent be entitled to the proceedings will Olney v. Tanner (1883) 18 Fed. Rep. 636: Re Smith (1842) Fed. Cas. 12.997; Re Allen (1842) 1 N. Y. Legal Obs. 115; Trow v. Lovett (1877) 122 Mass. 571.

A lien of a creditor's bill to vacate certain deeds on property secured by the creditor under attachment proceedings must yield to bankrupt proceedings instituted pending the attachment, under the bankrupt act of 1867, as that avoided all attachments within that time. Hatfield V Moller (1880) 4 Fed. Rep. 717.

A judgment creditor has no lien by supplementary proceedings upon choses in action as against subsequent proceedings in bankruptcy where no receiver is appointed by the state court. Re Wheeler (1878) 18 Nat. Bankr. Reg. 385.

Where supplementary proceedings were had in the state court prior to filing a petition in bankruptcy, but no appointment of a receiver was made, or any order, as required by N. Y. Code of Procedure, § 298, providing that the receiver shall be vested with property and effects of the judgment debtor from the time of the filing and recording of the order, the Federal court will restrain the from creditor further prosecution of the supplementary proceedings in the state court. Re Nolan (1876) 8 Ben. 559.

As against an assignee in bankruptcy a credItor had no lien under a bill filed January 23, 1899, where the lien of the judgment under which the proceedings were had was within four months of the time when the bankrupt act of 1898 took effect in such cases. Re Fellerath (1899) 2 Am. Bankr. Rep. 40.

And no lien is acquired by a creditor's bill filed February, 1842, where a receiver was appointed April 25, and a petition in bankruptcy was filed February 16, and decree April 30. Ex parte Waddell (1842) 1 N. Y. Legal Obs. 53. In this case the Federal court declined to make an order for the receiver to turn the assets over

to the assignee in bankruptcy on the ground that he had a complete remedy in the

state court.

In Storm v. Waddell (1845) 2 Sandf. Ch. 494, the court declined to follow this decision.

Delay by an assignee in bankruptcy in asserting his claim to assets may prejudice his rights as against creditor's bills.

So, the failure for three years of an assignee in bankruptcy to sue for assets recovered by creditors in a suit for all creditors to set aside a sale will prevent an injunction against proceedings in the state court. Re Pitts (1881) 9 Fed. Rep. 542.

And where a creditor's bill was pending, and a decree of bankruptcy rendered, and the creditors obtained a decree, an injunction was refused by the bankrupt court after the assignee in bankruptcy had for two years delayed taking Smith v. Gordon (1843) 2 N. Y.

any action. Legal Obs. 325.

If a creditor files his claim in bankruptcy without asserting a lien obtained by creditor's bill, his lien, as against the assignee in bankruptcy, is lost. Stewart v. Isidor (1868) 1 Nat. Bankr. Reg. 485.

But a lien acquired by creditor's bill is not affected by subsequent proceedings in bankruptcy. Kimberling v. Hartly (1880) 1 Fed. Rep. 571; Johnson v. Rogers (1876) 15 Nat. Bankr. Reg. 1; House v. Swanson (1871) 7 Heisk. 32; Cowan v. Dunn (1878) 1 Lea, 68; Re Allen (1842) 1 N. Y. Legal Obs. 115; Storm v. Waddell (1845) 2 Sandf. Ch. 494; Clarke v. Rist (1844) 3 McLean, 494.

In this latter case it was said that when a state tribunal has rightfully taken jurisdiction of the cause, though having some connection with an estate in bankruptcy, it affords no sufficient reason for its withdrawal from that jurisdiction that a Federal court might have taken cognizance of it.

Under N. C. Ordinance, June 23, 1866, § 18, providing that any creditor attempted to be defrauded may maintain a creditor's bill before judgment at law, a lien obtained thereby is not affected by subsequent proceedings in bankruptcy. Carr v. Fearington (1869) 63 N. C. 560.

In Storm v. Waddell (1845) 2 Sandf. Ch. 494, it was said that in the United States courts within New York state there are conflicting the question as to whether the decisions on creditor obtains a lien by his suit.

It was also said that in Smith v. Bleecker. MS. (1845), a plea of a bankrupt's discharge and assignments in a creditor's suit was overruled where the proceedings in bankruptcy preceded by a few days the filing of the bill, holding that the decree in bankruptcy took effect from its entry, and not from the time of filing the petition.

Supplementary proceedings under N. Y. Code Civ. Proc. § 2464, providing for a receiver, are a substitute for a creditor's bill, and not a proceeding commenced under a state insolvent law, and the ue obtained in 1897 by a receiver setting aside a transfer will not be affected by Re Meyers subsequent bankrupt proceedings. (1899) 1 Nat. Bankr. News, 293.

In McCallum House Furnishing Co. v. Wehe (1899) 1 Nat. Bankr. News, 267, where the debtor was cited in a proceeding under Wis. Rev. Stat. § 4096, providing for an examination of a party in aid of a prosecution or defense, it was held that the bankrupt act did not prohibit the state court from trying cases where claims sounding in tort were brought before (The report of this case does not show them. whether the effect of this proceeding is like a creditor's bill or not.)

Proceedings in bankruptcy supersede proceedings on a creditor's bill, subject to all liens, and the judgment creditor will be enjoined from Re Whipple proceeding in the state court. (1876) 13 Nat. Bankr. Reg. 373, 6 Biss. 516.

An order to show cause why a debtor should not be punished for contempt in supplementary proceedings, made prior to bankrupt proceedings, will not be enjoined by the Federal court. Re Hill (1868) 2 Nat. Bankr. Reg. 140.

An order made for an examination of a debtor in supplementary proceedings is a "legal process" within the meaning of bankrupt act 1867, § 39, authorizing bankrupt proceedings where the debtor shall conceal himself to avoid service of process in an action for the recovery of a debt or demand provable under the act. Brock v. Hoppock (1868) 2 Nat. Bankr. Reg. 7. VII. Effect of an assignment for creditors on the right to a discharge in bankruptcy.

Some cases hold that a preferential assignment for creditors will prevent a discharge. Other cases hold that an assignment is of itself an intent to defeat the law and will prevent a There is some conflict, however. discharge. most of the cases contra turning on the date of the taking effect of the act of 1841.

A preferential assignment for creditors made after January 1, 1841, will prevent a discharge in bankruptcy. Aspinwall's Case (1843) 1 Clark (Pa.) 526.

This was held to be contrary to the bankrupt act of 1841, § 2, prohibiting the discharge of a petitioner who has, by assignment or otherwise, after January 1, 1841, or at any other time, in contemplation of the passage of a bankrupt law, given or secured any preference to one creditor over another without the assent of a majority in interest of the creditors who In this case, al- have not been so preferred.

And a lien acquired by creditor's bill more than six months prior to bankrupt proceedings will not be disturbed, and is superior to the claim of the assignee in bankruptcy. Pool v. Ragland (1876) 57 Ala. 414.

though the assignee in bankruptcy was a party, It seems that he made no claim to the assets.

The bankrupt act of 1841, 5 Stat. at L. 442, chap. 9, § 2, proviso 2, providing "in case it

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