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preference. (Phelps v. Sterns and Same v. Dudley, 4 N. B. R. 7; Fed. Cas. 11080.) One who, having reasonable cause to believe that his debtor is insolvent, receives from him an assignment of his account against a third party which the creditor collects, or goods to be applied to part payment of the debt, receives a fraudulent preference. (In re Kingsbury et al., 3 N. B. B. 84; Fed. Cas. 7816.) One knowing a debtor to be insolvent, but who recovers judgment against him and causes execution to be issued and levy made, under which the personal property of the debtor is sold by the sheriff, accepts a preference, and may not prove his debt, and the proceeds of the sale may be ordered to be delivered to the assignee. (In re Davidson, 3 N. B. R. 106; 4 Ben. 10; Fed. Cas. 3599.) When an insolvent debtor confesses a judgment and procures and suffers his property to be taken on legal process, with intent to give a preference, the creditor by his agent knowing at the time that the debtor is insolvent, such creditor is not permitted to prove his debt when the debtor is adjudged a bankrupt within a specified time of the giving of the preference, on the petition of the creditor. (In re Walton, 4 N. B. R. 154; 2 Amer. Law T. 121; 1 Amer. Law T. Rep. Bankr. 102; Fed. Cas. 17130.)

A creditor who has accepted a conveyance the effect of which is to defeat or delay the operation of the Bankrupt Act will be excluded from participation in the election of an assignee, and proof of his claim will be postponed until after the assignee is chosen; but creditors who have only assented to such transaction after its consummation will not be deprived of their right to vote. (In re Chamberlain & Chamberlain, 3 N. B. R. 173; Fed. Cas. 2574.)

A preference will not bar the proof of a debt unless it was given and received by the parties to such debt. (In re Comstock & Co., 12 N. B. R. 110; 3 Sawy. 320; Fed. Cas. 3079.)

A creditor having obtained a preference in violation of the bankrupt law cannot prove his debt after the assignee has recovered the preference. (In re Stein, 16 N. B. R. 569; Fed. Cas. 13352.)

Where one transfers property to another, who knew of the former's insolvency, in payment of a pre-existing debt, and the former at the time has no title to the property so transferred, but the latter is ignorant of the fact, he is not precluded from proving his debt in full, not having received a preference. (In re Bousfield & Poole Mfg. Co., 16 N. B. R. 489; Fed. Cas. 1703.)

Surrender of preference.- Where a preference is knowingly received by a creditor, he is debarred from proving the debt thereby sought to be secured unless, previous to suit brought by the assignee to set aside the preference, he surrenders the same. (In re Leland et al., 9 N. B. R. 209; 7 Ben. 156; Fed. Cas. 8230; In re Scott & McCarty, 4 N. B. R. 139; Fed. Cas. 12518; In re Montgomery, 3 N. B. R. 97; Fed. Cas. 9728. For contra, see In re Currier, 13 N. B. R. 68; 2 Lowell, 436; Fed. Cas. 3492.)

The prohibition of the creditor to prove his debt applies to cases where he has refused upon demand to surrender his preference and compelled the assignee by suit to recover the money or property claimed, and held by him in fraud of the provisions of the act. He may surrender his preference and prove his debt before a recovery against him by judgment, but after a recovery he is not permitted to prove. (In re Hunt et al., 5 N. B. R. 433; Fed. Cas. 6882.) Repayment of a preference to a debtor cannot take the place of a surrender to the assignee. (In re Currier, 13 N. B. R. 68; 2 Lowell, 436; Fed. Cas. 3492.)

A full surrender of a fraudulent preference by a creditor is a complete condonation of that offense in either voluntary or involuntary proceedings. (In re Stephens, 6 N. B. R. 533; Fed. Cas. 13365; In re Leland et al., 9 N. B. R. 209; 7 Ben. 156; Fed. Cas. 8230.)

A creditor who obtained a preference by taking goods from a debtor, and who pays a judgment obtained by the assignee in bankruptcy against them for the value of the goods, may prove his claim against the estate, there being no actual fraud, and the payment being a surrender of the preference. (In re Newcomer, 18 N. B. R. 85; 10 Chi. Leg. News, 347; 26 Pittsb. Leg. T. 3; Fed. Cas. 10148.) If the assignee accept the amount received by a preferred creditor after he has put in his proof, and the creditor has put in proof before the special examiner to whom the action has been referred, and dismisses his suit upon payment of costs, this constitutes a surrender, and such creditor may prove his debt. (In re Riorden, 14 N. B. R. 332; Fed. Cas. 11852.) If the preferred creditor surrender his preference before the entry of the judgment, but after the opinion is given, where the debt is tried before the court, he may prove his debt where there is only constructive fraud, but he may be required to pay the expenses of the assignee. But ordinarily, in respect to the right to prove a claim, it makes no difference whether a transfer claimed to be a preference is constructively fraudulent. (Burr v. Hopkins, Ass., 12 N. B. R. 211; 6 Biss. 345; 7 Chi. Leg. News, 266; Fed. Cas. 2192.) A creditor who resists a suit by the assignee to recover an alleged fraudulent preference cannot prove his claim, where he is defeated in the action, though he pays the judgment recovered against him therein, such payment not being a surrender. (In re Richter's Estate, 4 N. B. R. 67; 3 Chi. Leg. News, 33; Fed. Cas. 11803; In re Cramer, 13 N. B. R. 225; 8 Chi. Leg. News, 106; Fed. Cas. 3345; In re Tonkin et al., 4 N. B. R. 13; 3 Amer. Law T. 221; 1 Amer. Law T. Rep. Bankr. 232; Fed. Cas. 14094; In re Lee, 14 N. B. R. 89; 23 Pittsb. Leg. 196; Fed. Cas. 8179.)

An open running account for merchandise sold, consisting of various items of charges and credits on which is credited the amount at which property is purchased by way of fraudulent preference, leaving a balance which is proved against the bankrupt's estate, is but a single debt or claim, and by reason of such preference the creditor is not entitled to any dividend on any part thereof. (In re Richter's Estate, 4 N. B. R. 67;

3 Chi. Leg. News, 33; Fed. Cas. 11803.) But if a preferred creditor has two separate claims and receives a preference on one of them alone, he may prove the other (In re Lee, 14 N. B. R. 89; 23 Pittsb. Leg. J. 196; Fed. Cas. 8179; In re Richter's Estate, 4 N. B. R. 67; 3 Chi. Leg. News, 33; Fed. Cas. 11803; In re Arnold, 2 N. B. R. 61; Fed. Cas. 551); or if he has separate claims against the estate of a bankrupt for which he has received preferences, some of which he surrenders, he may prove claims, the security for which he has surrendered. (In re Holland, 8 N. B. R. 190; Fed. Cas. 6604.)

A creditor who is secured by a deed of trust in the nature of a preference, but who disclaims any interest thereunder, may prove his claims unsecured. (In re Saunders, 13 N. B. R. 164; 2 Lowell, 444; Fed. Cas. 12371.)

On the hearing of a petition in involuntary bankruptcy, when the debtor defendant declines to appear and defend in form, but is personally present, the court will hear a suggestion from any creditor, though it be one who is charged with receiving a fraudulent preference, that an insufficient number of creditors have joined in the petition. But in de termining whether a sufficient number of creditors have joined in a petition in involuntary bankruptcy, where it is proved that a preferred creditor had reasonable cause to believe the debtor insolvent, the court will throw out of the computation the claim of the creditor so preferred, at least as to a moiety of its amount. (Clinton et al. v. Mayo, 12 N. B. R. 39; Fed. Cas. 2899.) The provision which prevents a creditor, in case of actual fraud, from proving more than a moiety of his debt applies only where there has been a recovery. (In re Riorden, 14 N. B. R. 332; Fed. Cas. 11852.)

The amount collected by a foreign creditor under his execution levied after the adjudication in bankruptcy must be accounted for to the assignee, and proof be made and dividend taken upon the original debt, without regard to the subsequent judgment thereon. (In re Bugbee, 9 N. B. R. 258; Fed. Cas. 2115.)

A register has power to postpone the proof of a claim where there are doubts as to its validity, in.view of the receipt of a fraudulent preference. (In re Stevens, 4 N. B. R. 122; Fed. Cas. 13391.)

h. The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance.

Value of securities held by creditors.-The security that must be liquidated before the creditor can prove his debt in bankruptcy proceedings must be upon property, real or personal, of the bankrupt that may be surrendered to the assignee. A claim secured by the guaranty of a third person may be proved as if unsecured. (In re Anderson, 12 N. B. R. 502; 7 Biss. 233; Fed. Cas. 350. For contra, see In re Bigelow et al, 1 N. B. R. 186; 2 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1396.) Permission to sell securities conceded to be the property of the bankrupt will not be granted a creditor until his right to do so is shown. (In re Bigelow et al., 1 N. B. R. 186; 2 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1396.) He cannot sell securities to satisfy his debt before the appointment of the assignee. (In re Grinnell & Co., 9 N. B. R. 29; 7 Ben. 42; 21 Pittsb. Leg. J. 82; Fed. Cas. 5830.) Where the value thereof is agreed upon between the assignee and a creditor, and after such valuation new facts are developed to show it to have been erroneous, the court will order a new valuation to be made where justice will be manifestly furthered. (In re Newland, 9 N. B. R. 62; 7 Ben. 63; Fed. Cas. 10171.) The value of a security cannot be ascertained by the creditor's sending it to an auctioneer and having it advertised and sold at auction. (In re Hunt, 17 N. B. R. 205; 35 Leg. Int. 71; Fed. Cas. 6884.) If he has had it appraised and received a dividend on the difference between his claim and the appraised value, he can maintain an action on the security. (Streeper v. McKee, 17 N. B. R. 419.) He may prove his debt for the bal ance which may remain after deducting the value of the property held by him as security, to be ascertained by agreement between him and the assignee or by a sale under the direction of the court. (Stewart v. Isidor et al., 1 N. B. R. 129; In re Stewart, 1 N. B. R. 42; 1 Amer. Law T. Rep. Bankr. 16; 15 Pittsb. Leg. J. 222; Fed. Cas. 13418.) Where the security is reduced to money, the assignee is entitled to any surplus over and above the amount necessary to liquidate the debt. (In re Newland, 9 N. B. R. 62; 7 Ben. 63; Fed. Cas. 10171.) If the debtor, though insolvent, acquiesce in a sale of stocks by a secured creditor, his assignee is bound by such acquiescence, although the stocks are sacrificed; but he is not bound by the bankrupt's ratification of a sale made after the commencement of the proceedings in bankruptcy. (Sparhawk et al. v. Drexel et al., 12 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13204) A creditor whose claim consists of notes and drafts for which he has no security, and a debt secured by mortgages, may be admitted as a creditor only for that part of his claim which is unsecured, and the indebtedness for which he has security must rest in abeyance until the value of the securities is ascertained. (In re Hanna, 7 N. B. R. 502; 5 Ben. 5; Fed. Cas. 6027.) Where he has a general lien, and the debtor, on receiving an advance or other accommodation from him, deposits with him a particular security to meet such advance or to cover such accommodation, the security is subject not only to a particular lien for the advance or

liability, but also to a general lien. (Sparhawk et al. v. Drexel et al., 12 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13204.)

A creditor who, at the time of the bankruptcy, has in hand goods or chattels of the bankrupt with a power of sale, or choses in action with a power of collection, may sell the goods or collect the claims and set them off against the debt the bankrupt owes him; and this, although the power to sell or to collect would have been revocable by the bankrupt before his bankruptcy, or he may retain the surplus by way of set-off on another claim which he holds against the bankrupt. (Ex parte Whiting, 14 N. B. R. 307; 2 Lowell, 472; Fed. Cas. 17573.)

A policy of insurance as a security is not "a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt to the creditor from the bankrupt;" but, nevertheless, the creditor must credit on the debt the present value of the security. (In re Newland, 7 N. B. R. 477; 6 Ben. 342; Fed. Cas. 10170.)

An application upon the part of a national bank for an order directing a sale by the bank of certain stocks belonging to a bankrupt, and which the bank claims to hold as security for the indebtedness of the bankrupt to the bank, will be denied. (In re Bigelow et al., 1 N. B. R. 186; 2 Ben. 480; 1 Amer. Law T. Rep. Bankr. 95; Fed. Cas. 1396.)

¿. Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.

The subrogation of another to the rights of the creditor.-A party is entitled to be subrogated to the rights of the creditor, without any agreement to that effect, where he has been compelled to pay the debt of a bankrupt in order to protect his own rights. (Whithed et al. v. Pillsbury et al., 13 N. B. R. 241; Fed. Cas. 17572.) A creditor is entitled to the benefit of the indemnity held by the surety, and can seek in equity to be subrogated to his rights, reach the security, and satisfy his debt. (In re Stewart, 1 N. B. R. 42; 1 Amer. Law T. Rep. Bankr. 16; 15 Pittsb. Leg. J. 222; Fed. Cas. 13818.) Sureties, indorsers and persons liable for the bankrupt are authorized to prove the debt for which they are liable when not proven by the creditor, or without first paying it, and such debts being provable are released by the discharge. (In re Perkins et al., 10 N. B. R. 529; 7 Chi. Leg. News, 9; 10 Alb. Law J. 247; 20 Int. Rev. Rec. 135; 1 Cent. Law J. 507; 22 Pittsb. Leg. J. 43; Fed. Cas. 10983.)

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