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or liquidate it as secured by him, that the court may be fully informed how to dispose of the assets of the bankrupt so as to do equity between all the creditors. (In re Winn, 1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17876.) A mortgagee must prove his debt in the bankruptcy court as a secured claim, before he is entitled to apply to such court for leave to foreclose his mortgage in another court. (In re Sabin, 9 N. B. R. 383; Fed. Cas. 12193.)

Where there are two classes of creditors having a common debtor who has several funds, and one class of creditors can resort to all the funds and the other to but part, the former take payment out of the fund to which they can resort exclusively; if the former resort to the fund common to both classes, to the loss of the latter, the latter are entitled to be substituted, to the extent of the deprivation to which they have been subjected, in the place of the former. (In re Foot et al, 12 N. B. R. 337; 8 Ben. 228; 1 N. Y. Wkly. Dig. 76; Fed. Cas. 4906.) Joint and separate estates are considered as distinct estates. A joint creditor having security on the separate estate may prove against the joint es tate without relinquishing his security, or may prove his whole claim against both estates and receive a dividend for each, but so as not to receive more than the full amount of his debt from both sources. (In re Howard et al., 4 N. B. R. 185; Fed. Cas. 6750.) A creditor from whom the bankrupt has, with another, purchased land, giving in payment promissory notes on which there are sureties, secured by a deed of trust by the debtor and his joint purchaser to a third person, the deed providing that if any note be not paid the land will be sold by the trustee and the proceeds given the creditor, the latter is a secured creditor, and the land will be directed to be sold. (In re Stewart, 1 N. B. R. 42; 1 Amer. Law T. Rep. Bankr. 16; 15 Pittsb. Leg. J. 222; Fed. Cas. 13418.) All subsisting heirs are fully protected, but all their creditors must prove their demands and enforce their liens through the bankruptcy court. (Davis v. Anderson, 6 N. B. R. 146; Fed. Cas. 3623.) If, through negligence of the creditors, the surety has been discharged, or if he has lost his lien, the creditors have no equity. They must work out their equity, and apply their security so as to prove against either estate for the deficiency. (Ex parte Morris, 16 N. B. R. 572; 2 Lowell, 424; Fed. Cas. 9823.)

Where an attachment is dissolved by proceedings in bankruptcy, the costs that accrued under the attachment prior to the filing of the bankrupt's petition are not a valid lien upon the property in controversy. If incurred at defendant's request, however, they might be. (In re Preston, 6 N. B. R. 545; Fed. Cas. 11394.)

A bank should prove its demand for a debt due as secured by stock, and by leave of court have it sold, the proceeds to be applied to payment of the debt, and prove as a creditor of the estate for any balance that may remain. (In re Morrison, 10 N. B. R. 105; 6 Chi. Leg. News, 110; Fed. Cas. 9839.)

A mechanic's lien which derives its existence wholly from a state statute, and the continuation of which is dependent upon the commencement of suit within a prescribed period, is not preserved when no suit is commenced in the state court and no step taken in the bankruptcy court equivalent to such suit within the time limited by the statute, although the proceedings in bankruptcy are commenced within that period. A lien claimant can, as an equivalent for commencing a suit in a state court, prove or assert his lien in the bankruptcy proceedings within the time limited by the statute creating the lien. (In re William Brunquest, 14 N. B. R. 529; 7 Biss. 208; Fed. Cas. 2055.)

Claims held to be unsecured.— A personal claim of indebtedness against a bankrupt's estate does not constitute a lien upon property of the estate in the hands of one making such claim. (Sedgwick, Ass., v. Casey, 4 N. B. R. 161; 4 Ben. 562; Fed. Cas. 12610; In re P. H. Krogman, 5 N. B. R. 116; Fed. Cas. 7936.) The fact that the sureties on a bond are indemnified by a mortgage does not render a claim on the bond a secured claim. (In re Lloyd, 15 N. B. R. 257; 5 Amer. Law Rec. 679; 15 Alb. Law J. 293; 24 Pittsb. Leg. J. 113; Fed. Cas. 8429.) A consignor whose property is sold prior to the bankruptcy and the proceeds mingled with the general assets has no lien or specific claim against the estate and can only share it with the other creditors. (In re Coan & Ten Broeke Carriage Mfg. Co., 12 N. B. R. 203; 6 Biss. 315; 7 Chi. Leg. News, 260; Fed. Cas. 2915.) This is also true of a bailor who allows the bailee to mix the property with his own property so that they cannot be distinguished. (Adams v. Meyers, 8 N. B. R. 214; 1 Sawy. 306; Fed. Cas. 62.)

A creditor seizing property by attachment issued from a state court, within four months prior to the beginning of bankruptcy proceedings, is not a secured creditor. (In re Broich et al., 15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1921.)

Where a consignment of goods is made under a special contract in which the consignee gives his acceptance for their value, payable partly at sight and partly at a future day, and agrees to account for the whole price, to guarantee the sales and to receive a commission, with other stipulations making him primarily liable for the price of the goods, and he becomes bankrupt, the claim is merely a part of the general claims, and is not of a fiduciary character. (Ex parte Flannagans, 12 N. B. R. 230; 2 Hughes, 264; 14 Amer. Law Reg. (N. S.) 688; 4 Amer. Law Rec. 304; Fed. Cas. 4855; In re Coan & Ten Broeke Carriage Mfg. Co., 12 N. B. R. 203; 6 Biss. 315; 7 Chi. Leg. News, 260; Fed. Cas. 2915.)

Where persons place money in the hands of another to be invested in trust for their benefit and he fails to do so, but uses it in his speculations and afterwards becomes bankrupt so that the property does not remain in specie, the cestuis que trust must come in pari passu with the other creditors and prove against the trustee's estate for the amount due them. (In re Faneway, 4 N. B. R. 26; Ungewitter v. Von Sachs,

Ass., 3 N. B. R. 178; 4 Ben. 167; 1 Amer. Law T. Rep. Bankr. 224; 3 Amer. Law T. Rep. Bankr. 195; Fed. Cas. 14343.)

A depositor whose specie deposit has been appropriated by the depositee, a bankrupt, is not entitled to have the debt paid in full out of general assets, but can only share pro rata with other creditors. (In re King, 9 N. B. R. 140; In re Hosie, 7 N. B. R. 601; 5 Leg. Op. 89; Fed. Cas. 6711.)

See also subdivision e under this section.

Claims provable.— A claim for spirituous liquors sold and delivered in the original imported packages may be proved in a state where the sale of such liquors is prohibited by law (In re Town et al.. 8 N. B. R. 38; Fed. Cas. 14111; In re Murray, 3 N. B. R. 187; 1 Hask. 267; Fed. Cas. 9954); there may also be proved a claim by an employee for damages for a breach of contract caused by the filing of a voluntary petition in bankruptcy by his employer (Ex parte Pollard, 17 N. B. R. 228; 2 Lowell, 411; Fed. Cas. 11252); or a loss, before final dividend, occurring upon a policy issued by a bankrupt fire insurance company (In re American Plate Glass & Fire Ins. Co., 12 N. B. R. 56; Fed. Cas. 314); or a claim if it originated in contract, even though induced by fraud and prosecuted in an action for damages, although the fraud may have to be proved to entitle the plaintiff to recover (In re Schwarz, 15 N. B. R. 330; 14 Blatch. 196; 52 How. Pr. 513; 15 Alb. Law J. 350; Fed. Cas. 12502); or a judgment in an action in tort, recovered before the petition is filed (Howland v. Carson, 16 N. B. R. 372); or a set-off which a defendant fails to prove in a suit brought by one who before trial becomes bankrupt and judgment is rendered against him (In re Safe Deposit & Savings Inst.. 18 N. B. R. 493); or accrued interest (Sloan v. Lewis, 12 N. B. R. 173; 22 Wall. 150); or a claim for the purchase price of goods which were left in a vendor's warehouse and marked with vendee's mark and there destroyed by fire (Ex parte Safford et al., 15 N. B. R. 564; 2 Lowell, 563; 15 Alb. Law J. 328; 24 Pittsb. Leg. J. 159; Fed. Cas. 12212); or a debt may be proved against the estate of a principal debtor, notwithstanding a joint judgment has been recovered therefor against the principal debtor and his surety. (In re Kitsinger et al., 19 N. B. R. 152; Fed. Cas. 7861.) A joint indebtedness may be proved and set off against the estate of either of the joint debtors who may become bankrupt, without reference to the fact that it may be subject to be marshaled. (Gray v. Rollo, 9 N. B. R. 337; 18 Wall. 629.) An insurance company which re-insures its policies in another company is entitled, upon the bankruptcy of the latter, to prove the policies re-insured in full, without reference to the amount it paid the holders. (In re Republic Ins. Co., 8 N. B. R. 197; 3 Ins. Law J. 390; 5 Chi. Leg. News, 385; Fed. Cas. 11705.) A debt on which a judgment is recovered after adjudication in an action before a justice of the peace, commenced prior to the filing of the debtor's petition, is not so merged in the judgment as to prevent its proof (In re

Vickery, 3 N. B. R. 171; Fed. Cas. 16930); but the costs which accrue subsequent to filing the petition do not constitute a claim or debt existing at that time and should be excluded. (In re Crawford, 3 N. B. R. 171; 3 Amer. Law T. 169; 1 Amer. Law T. Rep. Bankr. 210; Fed. Cas. 3363.)

A wife who deposits money with her husband and receives portions thereof, leaving a balance due at the time of her husband's bankruptcy, may prove such balance as a general creditor, and her debt may not be offset by the value of reasonable gifts from the husband, or of an insurance policy on his life for the benefit of herself and the children. (In re Bigelow et al., 2 N. B. R. 170; 3 Ben. 198; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 1398; In re E. G. Blandin, 5 N. B. R. 39; 1 Lowell, 543; Fed. Cas. 1527.)

(In re Bowne & Fed. Cas. 1741.) use of a railroad

If a note taken for rent be not paid at maturity, the landlord is entitled to all his remedies for the security or collection of his claim, in the same manner as if the note had never been given. Ten Eyck, 12 N. B. R. 529; 1 N. Y. Wkly. Dig. 100; Where premises under a lease are condemned to the company, and damages are paid by the company to the tenant upon the basis that his obligation to pay rent during the remainder of the term will continue, the landlord, on the bankruptcy of the tenant, will be allowed to prove the amount of the unpaid instalments of rent, at their value at the time of bankruptcy. (In re Clancy, 10 N. B. R. 215; Fed. Cas. 2782.) Where a creditor demands payment in full in advance as a condition of consenting to sign a composition, and is held liable to repay the amount to the assignee and does so, he may prove his original claim upon failure of a composition. (Brookmire & Rankin v. Bean, Ass., 12 N. B. R. 217; 3 Dill. 136; 2 Cent. Law J. 265; Fed. Cas. 1942.)

Attorneys of a voluntary bankrupt are not entitled to payment from the assets as preferred creditors for their services in preparing the petition and schedules, but may prove their debt in the usual manner. (In re Gies, 12 N. B. R. 179; 7 Chi. Leg. News, 379; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 5407.)

A railroad company whose charter provides for the forfeiture to the company of stock upon which an assessment remains unpaid may make proof against a bankrupt stockholder of the amount previously ascertained to be due for the assessment. (Gibson et al. v. Lewis, 11 N. B. R. 247; 11 Phila. 476; 32 Leg. Int. 22; Fed. Cas. 5398.)

The claim may be proved as if unsecured where a person, afterward becoming bankrupt, in order to secure goods upon credit procures a guaranty to a certain amount and goods to a larger amount are furnished. (In re Anderson, 12 N. B. R. 502; 7 Biss. 233; Fed. Cas. 350.)

Although a discharge in bankruptcy is a complete bar to a suit on a claim provable under the bankrupt law, the dismissal of the suit does not prejudice proceedings on it under that law. (Humble v. Carson, 6 N. B. R. 84.)

An agreement made by a creditor and a third party in reference to the prosecution of a claim, although it would be held champertous if either party to it were setting it up as the foundation of a suit or a defense, will not prevent the creditor from proving the claim in bankruptcy, if it be otherwise valid. (In re Lathrop et al, 3 N. B. R. 105; 3 Ben. 490; Fed. Cas. 8103.)

Proof of commercial paper.- Commercial paper, acquired in good faith before maturity, may be proved by the indorsee, upon showing a valuable consideration paid by him. (In re Lake Superior Ship Canal, Railroad and Iron Co., 10 N. B. R. 76; Fed. Cas. 7998.) Where it is not clearly shown that notes made by a bankrupt are accommodation paper, they may be proved; but those indorsed by the bankrupt should be proved only for the amounts the holders actually paid for them, with lawful interest. (In re Many et al., 17 N. B. R. 514; Fed. Cas. 9054.) The holder of an accommodation note is entitled to prove it in full, against the party for whose accommodation it was given, notwithstanding he has received a part of it from the maker (Ex parte Harris et al., 16 N. B. R. 432; 2 Lowell, 568; Fed. Cas. 6109); and the holder of a promissory note who has received a sum of money from an indorser in discharge of the latter's liability may nevertheless prove it in full against the estate of the bankrupt promisor, paying over to the indorser the excess of the sum due the holder. (Ex parte Talcott, 9 N. B. R. 502; 2 Lowell, 320; Fed. Cas. 13184; In re Ellerhorst & Co., 5 N. B. R. 144; 6 Amer. Law Rev. 162; Fed. Cas. 4381.) So long as both payments do not exceed the face of the note, payments made by the maker after the note has been proved against an indorser will not affect the amount due from the estate. (In re Weeks, 13 N. B. R. 263; 8 Ben. 265; Fed. Cas. 17349.) An indorser or drawer may prove on the note or bill, if he has taken it up, at any time before the final dividend. (Ex parte Talcott, 9 N. B. R. 502; 2 Lowell, 320; Fed. Cas. 13184.) A creditor who holds a debt against a bankrupt, whose liability arises from his accommodation indorsement of bills of exchange, to secure the payment of which the drawers and acceptors have given collateral security, may prove his debt as if unsecured. (In re Dunkerson & Co., 12 N. B. R. 413; 4 Biss. 253; Fed. Cas. 4157.) Where a composition is effected and approved by the court, and the debtor gives his notes to one of his creditors in renewal of notes held before the composition, and makes payment from time to time, and the debtor again becomes bankrupt, and the creditor proves the new notes, there is sufficient consideration for the claim. (In re Merriman's Estate, 18 N. B. R. 411; 44 Conn. 587; 26 Pittsb. Leg. J. 120; Fed. Cas. 9179.) Proof of a note payable “in current money of the state" in which it is made is, if not otherwise open to objection, allowable. (In re Whittaker. 4 N. B. R. 41; Fed. Cas. 17598.) Where drafts drawn by a bankrupt are accepted against consignments of merchandise which the bankrupt agreed to make but failed, and the holder receives fifty per cent. of the amount due on them, after

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