Obrázky stránek

they are dishonored, in full for all claims against the acceptors, but without prejudice to his rights against others, and the acceptors release all claims against the bankrupt, the holder may prove against the bankrupt for the whole amount. (In re Baxter et al., 18 N. B. R. 497; 26 Pittsb. Leg. J. 140; Fed. Cas. 1120.)

Claims not provable.-The statutory liability of stockholders is not a provable claim (James, Adm'x, v. Atlantic Delaine Co., 11 N. B. R. 390; Fed. Cas. 7179); nor is a debt of a bankrupt contracted, either in whole or in part, in violation of a law of the state (In re Paddock, 6 N. B. R. 132; Fed. Cas. 10657); nor is a claim for rent which accrues after the filing of the petition in bankruptcy under a lease executed prior to such filing (In re May & Merwin, 9 N. B. R. 419; 7 Ben. 238; Fed. Cas. 9325); nor is a debt incurred by the loan of Confederate treasury notes (In re Milner, 1 N. B. R. 107); nor is a mere verdict in an action for a personal tort. (Black v. McClelland, 12 N. B. R. 481; 7 Chi. Leg. News, 420; 1 N. Y. Wkly. Dig. 174; Fed. Cas. 1462.) A broker who holds stock on a margin an unreasonable length of time after the buyer's bankruptcy, and then sells without notice at a loss, cannot prove for the balance. (In re Daniels, 13 N. B. R. 46; 6 Biss. 405; 1 N. Y. Wkly. Dig. 271; 8 Chi. Leg. News, 17; Fed. Cas. 3566.) A judgment obtained after the adjudication in bankruptcy creates a new debt that cannot be proved, the judgment being a merger. (In re Gallison et al., 5 N. B. R. 353; 2 Lowell, 72; Fed. Cas. 5203.) Costs of attachment proceedings pending when the petition in bankruptcy is filed are not to be reckoned among the provable debts of the debtor; nor will the costs be paid from the estate unless the proceedings are auxiliary to bankruptcy proceedings or otherwise beneficial to the estate. (In re Hatje, 12 N. B. R. 548; 6 Biss. 436; Fed. Cas. 6215.) Where a creditor holding a mortgage sells the mortgaged premises at auction for a small sum without notice to the assignee and without leave of court, he cannot prove for the balance or for any sum whatever. (In re Miller, 19 N. B. R. 78; 19 Alb. Law J. 40; 26 Pittsb. Leg. J. 175; Fed. Cas. 9555.) A lessee, under a lease which provides that, after a breach, the lessee shall remain liable for rent precisely as before, excepting such sums as are actually received for the use of the premises, cannot prove a claim for his liability under such lease in bankruptcy proceedings against a bankrupt to whom he has assigned the lease. (Ex parte Lake et al., 16 N. B. R. 497; 2 Lowell, 544; Fed. Cas. 7991.) Where a wife allows her husband to appropriate the income of her separato estate in support of the family, this does not create such a debt on his part as is provable against his estate. Aliter, where principal is used. (In re Jones, 9 N. B. R. 556; 6 Biss. 68; 6 Chi. Leg. News, 271; Fed. Cas. 7444.)

If there be no legal liability on the part of a bankrupt to pay a claim, notes given therefor are void for want of consideration. (In re Young, 15 N. B. R. 205; 1 Tex. Law J. 7; Fed. Cas. 18149.) A prior gift constitutes no legal consideration for a promissory note, and the claim of the holder is not provable. (In re Cornwall, 6 N. B. R. 305; 6 Amer. Law

Rev. 365; Fed. Cas. 3250.) Notes indorsed by a bankrupt cannot be proved against his estate by any one holding them without paying a valuable consideration therefor, or with notice that there was no consideration therefor, or in fraud of the bankrupt's estate. (In re Hook, 11 N. B. R. 282; Fed. Cas. 6672.) A holder of a note who has granted an extension of time to the maker cannot prove the note against the estate of a bankrupt indorser. (In re Granger & Sabin, 8 N. B. R. 30; Fed. Cas. 5684.) An indorser on a note which is protested after the maker's bankruptcy cannot prove his claim on a new note given in payment of the protested note against the estate of the bankrupt maker. (In re Montgomery, 3 N. B. R. 108; Fed. Cas. 9730.) One who, being liable as joint maker of a note, gives his individual note in payment of the joint note, it being accepted as such, discharges the old note, and it cannot be proved against the estate of the other joint maker. (In re Morrill, 8 N. B. R. 117; 2 Sawy. 356; Fed. Cas. 9821.) Where an indorser of a protested note has purchased the goods of a bankrupt, he is excluded from proving his debt as a claim against the estate of the bankrupt. (Cookingham et al. v. Morgan et al., 5 N. B. R. 16; 7 Blatchf. 480; Fed. Cas. 3183.) Where an indorser of the bankrupt's paper has become absolutely liable to the holders before the filing of the petition, by notice of dishonor, he cannot prove his claim. (In re Riker, 18 N. B. R. 393; Fed. Cas. 11833.) Where a ward recovers a judgment against her bankrupt guardian, after institution of proceedings in bankruptcy, the claim may not be proved without leave of the bankrupt court. (In re Maybin, 15 N. B. R. 468; Fed. Cas. 9337.)

Where claims draw interest, such interest will stop at the date of filing the petition in bankruptcy. (In re Broich et al., 15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1921.)

A landlord of premises rented by a bankrupt, but which with the goods are occupied by a marshal, should apply to the court to have them vacated if he wishes to re-rent, and should not make application for allowance of rent. (In re McGrath & Hunt, 5 N. B. R. 254; 5 Ben. 183; Fed. Cas. 8808.)

A railroad corporation is not liable for an injury caused by the negli gence of a special receiver or assignee while operating the road. (Metz, Adm'x, etc. v. Buffalo, Corry & Pittsburgh R. R. Co., 12 N. B. R. 559.)

7. Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instrument is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim. After the claim is allowed or disallowed, such instrument may be withdrawn by permission of the court, upon leaving a copy thereof on file with the claim.


[Act of 1857. SEC. 24. A bill of exchange, promissory note, or other instrument, used in evidence upon the proof of a claim, and left in court or deposited in the clerk's office, may be delivered, by the register or clerk having the custody thereof, to the person who used it, upon his filing a copy thereof, attested by the clerk of the court, who shall indorse upon it the name of the party against whose estate it has been proved, and the date and amount of any dividend declared thereon.]

The written instrument upon which the claim is founded. A creditor may withdraw the instrument, but not the proof of a debt. (In re Emison, 2 N. B. R. 179; 1 Chi. Leg. News, 342; Fed. Cas. 4459.) In proceedings against the estate of a deceased bankrupt, he is competent to prove the contract on which his claim is based. In re Merrill, 16 N. B. R. 35; 9 Ben. 165; 24 Pittsb. Leg. J. 205; Fed. Cas. 9466.) A promissory note in which the initials only of the first names of the parties appear, no evidence being offered as to the full Christian names, is not a sufficient basis for a claim. (In re Valentine, 12 N. B. R. 389; 4 Biss. 317; 1 N. Y. Wkly. Dig. 101; Fed. Cas. 16812.) A certificate of deposit proved as a claim is dishonored paper, and no longer has the qualities of a negotiable instrument. (In re Sime & Co., 12 N. B. R. 315; 3 Sawy. 305; Fed. Cas. 12861.)

c. Claims after being proved may, for the purpose of allowance, be filed by the claimants in the court where the proceedings are pending or before the referee if the case has been referred.

d. Claims which have been duly proved shall be allowed, upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest, or their consideration be continued for cause by the court upon its own motion.

[Act of 1867. SEO. 23.

The court shall allow all debts duly proved, and shall cause a list thereof to be made and certified by one of the registers;

[ocr errors]
[ocr errors]

The allowance or rejection of claims.- By the receipt and filing of proof of debt the court obtains jurisdiction of the claim and of the creditor presenting it, and then only does its revising power over such proof commence. The receiving and filing of a proof of debt concludes nothing, and the power still remains in the court to revise and correct, or reject altogether. (In re Merrick, 7 N. B. R. 459; Fed. Cas. 9463.) Where

written objections are filed by the assignee to a proof of debt and a hearing is had before the register, the matter may upon request be certified to the court. (In re Clark & Bininger, 6 N. B. R. 202; Fed. Cas. 2808.) The register has no power to expunge prima facie proofs of debt or to reject claims, nor has he the authority to refuse the votes of the claimants, nor to exclude them from the benefit of a dividend (In re Jaycox & Green, 7 N. B. R. 303; 7 West. Jur. 18; Fed. Cas. 7240); but he has power to pass upon the validity of the proof of claims, except when an issue of law or fact is raised or contested. (In re Bogert et al., 2 N. B. R. 139; 38 How. Pr. 111; 1 Chi. Leg. News, 211; Fed. Cas. 1598.) 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.) An existing adjudication in bankruptcy precludes all inquiry touching the existence or validity of the debt of a petitioning creditor. (In re Fallon, 2 N. B. R. 92; 1 Chi. Leg. News, 107; Fed. Cas. 4628.) No person by assigning an open account can substitute another person as creditor without the express consent of the debtor. (Rollins, Ass., v. Twitchell & Co., 14 N. B. R. 201; 2 Hask. 66; 5 Amer. Law Rec. 247; Fed. Cas. 12027.)

Upon making proof, all who have valid subsisting claims at the time the bankrupt proceedings commenced will be permitted to participate in the fund so long as there is anything to distribute. (In re Maybin, 15 N. B. R. 468; Fed. Cas. 9337.)

A claimant may present a claim arising from fraud and receive his dividend, but may not prosecute it until the question of discharge is determined, but thereafter, whether the petitioner be discharged or not, it remains a valid claim against him, recoverable in any proper form of suit. (Stokes & Leonard v. Mason, 12 N. B. R. 498.)

Interest may be paid on claims proven against the bankrupt's estate from the day of filing the petition, when there are sufficient funds in the hands of the assignee to do so. (In re Hagan. 10 N. B. R. 383; Fed. Cas. 5993; In re Bousfield & Poole Mfg. Co., 17 N. B. R. 153; Fed. Cas. 1704) Where, after the payment of all claims against a bankrupt bank at the amount computed to be due on the date of adjudication, a surplus remains, the creditors may be allowed interest from the date of adjudication to the payment of the dividends. (In re Bank of North Carolina, 12 N. B. R. 130; 1 N. Y. Weekly Dig. 127; Fed. Cas. 895; Wilson & Shafer v. Bank of North Carolina, 10 N. B. R. 289; Fed. Cas. 894) Claims for rent of the building in which goods of a bankrupt are kept pending sale, and the marshal's and auctioneer's fees, are allowable. (In re Peabody, 16 N. B. R. 243; 9 Chi. Leg. News, 243; Fed. Cas. 10866.)

An assignee under a state law will be allowed the amount of his disbursements made before a general assignment in bankruptcy under the Bankruptcy Act. (MacDonald, Ass., v. Moore et al., 15 N. B. R. 26; 8 Ben. 579; 1 Alb. N. C. 53; 23 Int. Rev. Rec. 25; 3 N. Y. Weekly Dig. 461; 24 Pittsb. Leg. J. 83; Fed. Cas. 8763.)

Where a person mortgages all his stock and fixtures to secure the mortgagee for all the liabilities he has assumed, and both become bankrupt, and the holders of the notes of the mortgagor indorsed by the mortgagee prove against both estates, the proceeds of the sale of the property should be divided pro rata among all the creditors of the mortgagor. (Ex parte Morris, 16 N. B. R. 572; 2 Lowell, 424; Fed. Cas. 9823.)

As a general rule, a sheriff's claim for costs in an attachment within four months before bankruptcy will not be allowed against the bankrupt estate (In re Jenks, 15 N. B. R. 301; Fed. Cas. 7276); nor is he entitled to fees and expenses for the attachment, levy, care and custody of property attached at the suit of creditors before bankruptcy, but upon which judgment is not rendered until thereafter. (In re Williams, 2 N. B. R. 79; 3 Amer. Law Rev. 374; 1 Amer. Law T. Rep. Bankr. 107, 113; Fed. Cas. 17705.)

Where a note is given for the insurance premium on a vessel which contains the provision that if the note be not paid at maturity the policy becomes void while it remains unpaid, and after the note becomes due the vessel strands, whereupon the note is paid, and then a gale destroys the vessel, a claim against the estate of the bankrupt insurance company for the amount of the premium will not be allowed. (Cardwell v. Insurance Co., 12 N. B. R. 253; 7 Chi. Leg. News, 282; Fed. Cas. 2396.) The claim of a holder of a fire insurance policy will not be allowed where he has not submitted to the company or its assignee proof of loss as required by the policy, nor made proof of debt in bankruptcy proceedings, nor commenced suit within a period after the loss occurred fixed by the policy. (In re Firemen's Insurance Co., 8 N. B. R. 123; 5 Chi. Leg. News, 265; Fed. Cas. 4796.)

Where a bankrupt receives property as security for indorsements and notes made by him for the benefit of the owner of the property, a holder of one of the notes is not entitled to a summary order directing payment of his claim out of the property. (Hurst v. Teft, Ass., 13 N. B. B. 108; 12 Blatchf. 217; Fed. Cas. 6939.)

The prevention of injury to the premises by not removing machinery is not a circumstance to be considered in determining the compensation to the landlord for the use of the premises by the assignee. (In re Breck & Schermerhorn, 12 N. B. R. 215; 8 Ben. 93; Fed. Cas. 1822.) Rent in arrears will not be paid in full as a preferred claim where no distress warrant has been issued under the state law prior to the petition in bankruptcy. (In re Butler, 6 N. B. R. 501; 19 Pittsb. Leg. T. 146; 3 Pittsb. Rep. 369; Fed. Cas. 2236.)

One creditor may not take part of a fund otherwise available for the payment of all creditors, and also be allowed to come in pari passu with other creditors in the remainder of the fund. This principle does not apply when that creditor obtains by his diligence something which did not form part of the fund. (In re Bugbee, 9 N. B. R. 258; Fed. Cas. 2115.)

« PředchozíPokračovat »