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Sec. 56. Voters at meetings of creditors.-a. Creditors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as herein otherwise provided.
[Act of 1867. SEO. 23. . And any creditor may act at all meetings by his duly constituted attorney the same as though personally present.]
While this section does not in so many words provide for representation at creditors' meetings otherwise than in the person of the creditor, yet in view of the fact that the term "creditor" comprehends any one who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney or proxy (sec. 1-9), it is clear that the law-makers intended to sanction a mode of representation through a duly authorized agent, attorney or proxy. This is further borne out by the fact that a penalty is provided for any person presenting under oath any false claim for proof against the estate of a bankrupt, or using any such claim in composition, personally or by agent, proxy or attorney, or as agent, proxy or attorney. (Sec. 29, b, 3.) By General Orders IV it is provided that a party may appear and conduct the proceedings by an attorney.
The time and place for holding meetings is fixed by section 55.
Election of trustee.- Where an assignee offered certain creditors to pay their claims in full in consideration of their giving him power of attorney to vote for them at election of assignee, the court held that the election should be disregarded and the official assignee be appointed. (In re Haas & Samson, 8 N. B. R. 189; Fed. Cas. 5884.) At the first meeting of creditors, fifty creditors, representing about $1,000 of claims, voted for J. C. for assignee, and twenty creditors, representing about $10,000, voted for N. C., whereupon the register stated that as there was no choice made it would be his duty to appoint the assignee, and he accordingly appointed J. C. The court held that the duty of appointing the assignee devolved upon the judge of the bankruptcy court, and that any creditor had the right to object to the appointment being made by the register. (In re Pearson, 2 N. B. R. 151; 2 Amer. Law T. Rep. Bankr. 66; Fed. Cas. 10878.) A creditor cannot change his vote on the ground of his own mistake in voting after the meeting of creditors has adjourned, and thereby give the register power to appoint the assignee; but such creditor may explain his mistake, or make any other objection to the choice of the assignee to the court before which the subject of the approval of the assignee will be heard and determined. (In re Scheiffer et al., 2 N. B. R. 179; 1 Chi. Leg. News, 261; Fed. Cas. 12445.) See also APPOINTMENT OF TRUSTEES, Sec. 44.
Postponement of proof of claim as affecting election of trustee.— The postponement of a proof of claim by a register in bankruptcy affects no right of the creditor except the right to vote for assignee. (In re Lake Superior Ship Canal, Railroad and Iron Co., 7 N. B. R. 376; Fed. Cas. 7997.) Proofs of claim filed after election for an assignee in bankruptcy will not entitle claimant to vote thereon to change the result of an election appealed from. (In re Lake Superior Ship Canal, Railroad and Iron Co., 7 N. B. R. 376; Fed. Cas. 7997.) Debts proved before election of assignee and sold and assigned after proof must be voted upon by owner and not original creditor, the owner being entitled to one vote; and debts proved and filed with the register may be postponed for investigation before the assignee, and not allowed to be voted upon for assignee. (In re Frank, 5 N. B. R. 194; 5 Ben. 164; Fed. Cas. 5050.) Where the officers of a bankrupt corporation present large claims, the register in bankruptcy should postpone the proof of such claims until after the election of assignee. The vote for assignee must be taken at the earliest practicable moment. Creditors who have proved their claims may, if they choose, postpone such action until others have proved, but they are not compelled to do so. So, if proofs of claims are postponed, such creditors are not entitled to vote. They may, however, have the proceedings certified to the court, and, if the register's rulings were erroneous, the court will set aside the result of the vote and refer the matter back for a new vote, unless it appears that the vote of the complaining creditor would not change the result. (In re Lake Superior Ship Canal, Railroad and Iron Co., 7 N. B. R. 376; Fed. Cas. 7997.)
Power of attorney to appear for voter.- A power of attorney authorizing a person to appear for a creditor is not required to be acknowledged (In re Powell, 2 N. B. R. 17; Fed. Cas. 11354); but it has been held that an attorney cannot act for a creditor at meetings held in the course of proceedings in bankruptcy, unless authorized to do so by power of attorney properly acknowledged. (In re Christley, 10 N. B. R. 268; Fed. Cas. 2702.) A power of attorney executed by one member of a firm, on behalf of the firm, authorizing a person to cast the vote of the firm for assignee at the first meeting of creditors, is valid. (In re Barrett, 2 N. B. R. 165; 2 Hughes, 444; 1 Chi. Leg. News, 202; 2 Amer. Law T. Rep. 182; 11 Int. Rev Rec. 21; 1 Amer. Law T. Rep. Bankr. 144; Fed. Cas. 1043.)
A power of attorney, in accordance with the proper form, in which the concluding words are: "and with like power to attend and vote at any other meeting or meetings of creditors, or sitting or sittings of the court, which may be holden therein, for any of the purposes aforesaid, or for the declaration of dividend, or for any other purpose, in my interest whatever," does not authorize the filing of an opposition to the bank. rupt's discharge by the attorney to whom the letter is given. (Creditors v. Williams, 4 N. B. R. 187; Fed. Cas. 3379.)
Proof of claim necessary to qualify voter.- Until he has proven his claim, a creditor has no right to be heard in bankruptcy proceedings or
in any other character (In re Brisco, 2 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 1886); and creditors inhibited from proving their debts will be excluded from voting for an assignee. (In re Stevens, 4 N. B. R. 122; Fed. Cas. 13391.) Only creditors who prove their claims are entitled to engage in or take part in the proceedings at a composition. (In re Keller et al., 18 N. B. R. 331; Fed. Cas. 7654. See also In re Mathews et al., 17 N. B. R. 225; Fed. Cas. 9274.)
Powers of general creditors.-The general creditors have no power to act except to vote on the selection of an assignee and on the subject of dividends. (In re Campbell et al., 17 N. B. R. 4; 3 Hughes, 276; Fed. Cas. 2348.) So when at a meeting of creditors for election of assignee one creditor refused to sign after voting, and another's vote was rejected on the ground of having voted corruptly, and three votes were taken before a majority was secured, the court held, first, that a creditor has a right to change his mind after voting; second, that a corrupt vote should be rejected; and third, the result not being affected by such rejection, a new selection should not be ordered. (In re Pfromm, 8 N. B. R. 357; Fed. Cas. 11061.) Efforts of bankrupt's friends to buy his debts and stop. proceedings in bankruptcy do not constitute fraud upon Bankrupt Act, and constitute no reason for not voting upon the debts for election of assignee. (In re Frank, 5 N. B. R. 194; 5 Ben. 164; Fed. Cas. 5050.)
Testimony as to voter's qualification.— A register is not authorized to hear testimony as to a creditor's right to vote for assignee, without special order of the court. (In re Noble, 3 N. B. R. 25; 3 Ben. 332; Fed. Cas. 10282.) As a very general rule, the register should demand the same degree of proof, before admitting a creditor to vote for assignee, as is requisite in a trial at law or a hearing in equity. Exceptional cases, if free from all suspicion, might authorize his deviation from such rule. (In re Northern Iron Co., 14 N. B. R. 356; Fed. Cas. 10322; R. S. 5083.)
Partnership - Choosing an assignee.- Creditors who have proved a debt against a partner of a firm in bankruptcy have no right to participate in the election of the assignee for the firm, who must be chosen by the creditors of the firm only. (In re Phelps, 1 N. B. R. 139; 2 Amer. Law T. Rep. Bankr. 25; Fed. Cas. 11071.) In a separate adjudication against a bankrupt who is or has been a member of a firm, the separate creditors are entitled to vote for assignee (In re Falkner, 16 N. B. R. 503; Fed. Cas. 4624); and in case of the separate bankruptcy of one member of a firm, a joint creditor is entitled to prove his joint debt and vote for assignee. (In re Webb, 16 N. B. R. 258; 4 Sawy. 326; 10 Chi. Leg. News, 27; 5 N. Y. Wkly. Dig. 174; Fed. Cas. 17317.) A joint creditor can prove under a separate bankruptcy, though not to compete in the separate assets, and may vote for assignee (Wilkins v. Davis, 15 N. B. R. 60; 2 Lowell, 511; Fed. Cas. 17664); but a special partner has no right to vote in composition proceedings of the firm. (In re Henry, 17 N. B. R. 463; 9 Ben. 449; Fed. Cas. 6370.)
Voting at first meeting-Composition.— At the first meeting a creditor represented himself and filed proof of claim. He was not present at the last session when the vote was taken on a resolution of composition. The court held that he was to be counted as voting against the resolution unless he clearly indicated his intention to withdraw (In re Richmond et al., 18 N. B. R. 302; Fed. Cas. 11798); so if a creditor fails to act on a composition his non-action is equivalent to a vote against what the debtor wants (In re Lissberger, 18 N. B. R. 230; Fed. Cas. 8384); and after a composition was accepted at the creditors' meeting, objection was taken to the vote of one of the creditors. It was held that the objection was too late. (In re Block et al., 18 N. B. R. 328; Fed. Cas. 1551.) Where a debtor deceives his creditors into a vote on a composition which they would not have given had they known the facts, the court will interfere and withhold assent to the composition, even if there is only one dissenting creditor (In re Keiler, 18 N. B. R. 36; 10 Chi. Leg. News, 299; Fed. Cas. 7648); and when a party is aggrieved by ruling on his application for opportunity to prove his right to vote, the court may re-open the meeting and adjourn it, and provide for the determination of questions of the right to vote before the final vote is taken. (In re Spencer, 18 N. B. R. 199; Fed. Cas. 13229.) It must appear that wrong has been done to the minority creditors by the vote of the majority on a composition before the court will interfere. (In re Wronkow et al., 18 N. B. R. 81; 26 Pittsb. Leg. J. 2; Fed. Cas. 18105.)
b. Creditors holding claims which are secured or have priority shall not, in respect to such claims, be entitled to vote at creditors' meetings, nor shall such claims be counted in computing either the number of creditors or the amount of their claims, unless the amounts of such claims exceed the values of such securities or priorities, and then only for such
[Act of 1867. SEC. 18. . . No person who has received any preference contrary to the provisions of this act shall vote for or be eligible as assignee.
The claims of secured creditors and those who have priority may be allowed to enable such creditors to participate in the proceedings at creditors' meetings held prior to the determination of the value of their securities or priorities. (Sec. 57, e.)
Secured creditors.- None but unsecured creditors should be heard at the hearing for ratification of the composition for which notice was given (In re Scott, Collins & Co., 15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12519); and a secured creditor may vote for assignee on so much of
his debt as is unsecured, where the security applies to a specific portion of his debt. (In re Parkes et al., 10 N. B. R. 82; Fed. Cas. 10754. See also In re Bolton, 1 N. B. R. 83; 2 Ben. 189; 1 Am. Law T. Rep. Bankr. 120; Fed. Cas. 1614. Contra, In re Stillwell, 7 N. B. R. 226; 11 Am. Law Reg. (N. S.) 706; Fed. Cas. 13448.)
Disqualified by fraud.— One who has received a preference in fraud of the Bankrupt Act cannot vote for assignee, and can surrender his preference to the assignee so as to prove his claim against the bankrupt's estate (In re Parham et al., 17 N. B. R. 300; Fed. Cas. 10712); and where certain creditors have received preferences, or their claims have been purchased with money belonging to bankrupt, the proof of such claims will be postponed until after the election of assignee, and their votes for assignee will be rejected (In re Hermann et al., 3 N. B. R. 153; Fed. Cas. 6425; see In re Chamberlain et al., 3 N. B. R. 173; Fed. Cas. 2574); but a creditor who has bought a debt with intent to prevent the adoption of a resolution for composition may vote upon it at the meeting for composition, if he have no fraudulent motive. (Ex parte Morris, 12 N. B. R. 170.)
Sec. 57. Proof and allowance of claims.-a. Proof of claims shall consist of a statement under oath, in writing, signed by a creditor setting forth the claim, the consideration therefor, and whether any, and, if so what, securities are held therefor, and whether any, and, if so what, payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor.
[Act of 1867. SEC. 22. That all proofs of debts against the estate of the bankrupt, by or in behalf of creditors residing within the judicial district where the proceedings in bankruptcy are pending, shall be made before one of the registers of the court in said district, and by or in behalf of non-resident debtors before any register in bankruptcy in the judicial district where such creditors or either of them reside, or before any commissioner of the circuit court authorized to administer oaths in any district. To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing on oath or solemn affirmation before the proper register or Commissioner setting forth the demand, the consideration thereof (Here follows requirement as to contents of oath.)
Such oath or solemn affirmation shall be made by the claimant, testifying of his own knowledge, unless he is absent from the United States or prevented by some other good cause from testifying, in which cases the demand may be verified in like manner by the attorney or authorized agent of the