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involuntary petition or an application to set a composition aside or to revoke a discharge has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt; (5) "clerk" shall mean the clerk of a court of bankruptcy; (6)1"corporations" shall mean all bodies having any of the powers and privileges of private corporations not pos sessed by individuals or partnerships, and shall include limited or other partnership associations organized under laws making the capital subscribed alone responsible for the debts of the association; (7) "court" shall mean the court of bankruptcy in which the proceedings are pending, and may include the referee; (8) "courts of bankruptcy" shall include the district courts of the United States and of the Territories, the supreme court of the District of Columbia, and the United States court of the Indian Territory, and of Alaska; (9) "creditor" shall include anyone who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy; (10) "date of bankruptcy," or "time of bankruptcy," or 2" commencement of proceedings," or "bankruptcy," with reference to time, shall mean the date when the petition was filed; (11) 3" debt " shall include any debt, demand, or claim provable in bank
1 An insurance company is one of that class of corporations intended to be within the scope and provisions of the general bankruptcy law. (In re Merchants' Insurance Co., 6 N. B. R. 43; 3 Biss. 162; 20 Pittsb. Leg. J. 32; 4 Chi. Leg. News, 73; Fed. Cas. 9441.)
2 It is not the filing of every petition in bankruptcy that is deemed "a commencement of proceedings," but it is the filing of a petition upon which an order of adjudication may be made by the court (In re Rogers, 10 N. B. R. 444; 1 Cent. Law J. 470; Fed. Cas. 12003), either by a debtor in his own behalf, or by a creditor against a debtor, upon which an order shall be issued adjudicating the debtor a bankrupt. (In re Litchfield, 9 N. B. R. 506; 7 Ben. 259; Fed. Cas. 8385.)
3 The word "debt," as used in the bankrupt law, is synonymous with claim. (Stokes & Leonard v. Mason, 12 N. B. R. 498.) A speculative option, where the object of the parties is not a sale and delivery of the goods, but a settlement in money on differences - commonly called a "put "— is not a provable debt in bankruptcy. (In re Chandler, 9 N. B. R. 514; 13 Amer. Law Reg. (N. S.) 310; 6 Chi. Leg. News, 229; Fed. Cas.
ruptcy; (12) "discharge" shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted by this Act; (13) "document" shall include any book, deed, or instrument in writing; (14) "holiday" shall include Christmas, the Fourth of July, the Twenty-second of February, and any day appointed by the President of the United States or the Congress of the United States as a holiday or as a day of public fasting or thanksgiving; (15) a person shall be deemed1 insolvent
1 Traders and merchants have been held to be insolvent in the following cases: When they are unable to pay their debts as they become due in the ordinary course of business (Ecfort & Petring v. Greely, 6 N. B. R. 433; Fed. Cas. 4260; Toof v. Martin, 6 N. B. R. 49; 13 Wall. 40; Martin v. Toof et al, 4 N. B. R. 158; Fed. Cas. 9164; Stranahan v Gregory & Co., 4 N. B. R. 142; Fed. Cas. 13522; In re Lewis et al., 2 N. B. R. 145; In re Kingsbury et al., 3 N. B. R. 84; Fed. Cas. 7816; Merchants' National Bank of Hastings v. Truax, 1 N. B. R. 146; 1 Amer. Law T. Rep. Bankr. 73; Fed. Cas. 9451; Warren v. Bank, 7 N. B. R. 481; 10 Blatchf. 493; Fed. Cas. 17202; Jackson, Ass., v. McCulloch et al., 13 N. B. R. 283; 1 Woods, 433; 1 N. Y. Weekly Dig. 534; Fed. Cas. 7140; Sawyer et al. v. Turpin et al., 5 N. B. R. 339; 2 Lowell, 29; Fed. Cas. 12410), although the assets of a debtor may be largely in excess of his liabilities (In re Woods, 7 N. B. R. 126; 29 Leg. Int. 236; 20 Pittsb. Leg. J. 21; Fed. Cas. 17990); and it is no excuse that he might have paid them if time had been given for that purpose. (Webb, Ass., v. Sachs et al., 15 N. B. R. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Cas. 17325.) If his debts cannot be made in full out of his property by levy and sale on execution, he is insolvent within the primary and ordinary meaning of the word, and particularly in the sense in which it is used in the Bankrupt Act. (In re Wells, 3 N. B. R. 95; 2 Chi. Leg. News, 49; Fed. Cas. 17388; In re Oregon Bulletin, etc. Co., 13 N. B. R. 503; 1 Cin. Law J. 87; Fed. Cas.10559. But see Harrison v. McLaren, 10 N. B. R. 244; Fed. Cas. 6139.) A merchant who had transferred some of his assets as claimed, in fraud of creditors, and who held property enough so that, if it were advantageously disposed of, it might pay all his debts, but failed to pay a few small debts as they became due, was nevertheless held to be insolvent. (Ecfort & Petring v. Greely, 6 N. B. R. 433; 4 Chi. Leg. News, 209; Fed. Cas. 4260.) Where repeated demands for payment are met by promises to pay a debt at specified times, which are not kept, and where a creditor knows that debtor has other debts greater in amount than his own, he will be presumed to know that the debtor is insolvent, if in fact he is. (In re Armstrong, 16 N. B. R. 275; 9 Ben. 212; Fed. Cas. 539.) In
within the provisions of this Act whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts; (16) "judge❞ shail mean a judge of a court of bankruptcy, not including the referee; (17)" oath" shall include affirmation; (18) "officer" shall include clerk, marshal, receiver, referee, and trustee,
large commercial centers, a failure to meet payments as they become due is deemed insolvency, but in the country the custom of traders is generally different. A person should be held insolvent only when he fails to meet his debts according to the custom of the place of his business. (Hall, Ass., etc. v. Wager & Fales, 5 N. B. R. 181; 3 Biss. 28; 5 West. Jur. 538; 3 Chi. Leg. News, 401; Fed. Cas. 5951.) A banker who receives collateral security for the payment of a draft which he cashed on the preceding day has reasonable cause to believe that the drawer is insolvent. (Merchants' National Bank of Cincinnati v. Cook et al., Trustees, 16 N. B. R. 391; 95 U. S. 342.) The court may properly charge the jury, "That if the jury find that the quantity and value of the assets of the debtor had not materially diminished from the date when the judgment note was given till the day when he filed his petition in bankruptcy and the day when he was adjudged a bankrupt, they may find that he was insolvent when he gave the judgment note." (First Nat. Bank of Clarion v. Jones, Ass., 11 N. B. R. 381; 21 Wall 325.)
The words "insolvent " and "insolvency," used in the act of 1867, are not synonymous with the words "bankrupt " and "bankruptcy." The former words are less restricted. (In re Black et al., 1 N. B. R. 81; 2 Ben. 196; 1 Amer. Law T. Rep. Bankr. 39; Fel. Cas. 1457.) The term "insolvency," when applied to traders, does not mean an absolute inability of the debtor to pay his debts at some future time upon a settlement and winding up of his affairs, but a present inability to pay in the ordinary course of his business as men in trade usually do, although his inability be not so great as to compel him to stop business, and although he may be able to pay his debts at a future time upon the winding up of his concerns. It cannot be held that a debtor ceases to be insolvent because creditors have entered into an agreement to extend the time of payment of their debts. (Rison v. Knapp, 4 N. B. R. 111; Fed. Cas. 11861.)
1 The word "judge," mentioned in section 23 of the act of 1867, is construed to mean or include register. (In re Bininger & Clark, 9 N. B. R. 568; Fed. Cas. 1121.)
and the imposing of a duty upon or the forbidding of an act by any officer shall include his successor and any person authorized by law to perform the duties of such officer; (19) "persons" shall include corporations, except where otherwise specified, and officers, partnerships, and women, and when used with reference to the commission of acts which are herein forbidden shall include persons who are participants in the forbidden acts, and the agents, officers, and members of the board of directors or trustees, or other similar controlling bodies of corporations; (20) 2 "petition” shall mean a paper filed in a court of bankruptcy or with a clerk or deputy clerk by a debtor praying for the benefits of this Act, or by creditors alleging the commission of an act of bankruptcy by a debtor therein named; (21) "referee" shall mean the referee who has jurisdiction of the case or to whom the case has been referred, or anyone acting in his stead; (22) "conceal" shall include secrete, falsify, and mutilate; (23) "secured creditor" shall include a creditor who has security for his debt upon the property of the bankrupt of a nature to be assignable under this Act, or who owns such a debt for which some indorser, surety, or other persons secondarily liable for the bankrupt has such security upon the bankrupt's assets; (24) "States" shall include the Territories, the Indian Territory, Alaska, and the District of Columbia; (25) "transfer" shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security; (26) "trustee " shall include all of the trustees of an estate; (27) "wage
In the absence of any statute definition to that effect, the word "person" should be construed to include a corporation, unless it appears that it was used in a more limited sense. (In re Oregon Publishing, etc. Co., 13 N. B. R. 199; 10 Amer. Law Rev. 380; 8 Chi. Leg. News, 81; Fed. Cas. 10588; In re Cal. Pac. R. R. Co., 11 N. B. R. 193; 3 Sawy. 240; 2 Cent. Law J. 79; Fed. Cas. 2315.)
? A petition in bankruptcy is an action or suit. (In re Comstock, etc. Co., 10 N. B. R. 451; 6 Chi. Leg. News, 413; 22 Pittsb. Leg. J. 25; Fed. Cas. 3077.)
earner" shall mean an individual who works for wages, salary, or hire, at a rate of compensation not exceeding one thousand five hundred dollars per year; (28) words importing the masculine gender may be applied to and include corporations, partnerships, and women; (29) words importing the plural number may be applied to and mean only a single person or thing; (30) words importing the singular number may be applied to and mean several persons or things.
[Act of 1867. SEO. 38. And be it further enacted, That the filing of a petition for adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor; upon which an order may be issued by the court, or by a register in the manner provided in section four, shall be deemed and taken to be the commencement of proceedings in bankruptcy under this act;
SEC. 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 "aflirmation."
For contents of petition under Act of 1867, see sec. 4, Title III,