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edge of the insolvency of the bank and of the assignment to the assignee, takes a transfer of a draft issued by the bank which has been protested for non-payment, he may set off the draft against the claim of the assignee on his note. (Shryock and Rhodes, Assignees, v. Bashore, 13 N. B. R. 481; Fed. Cas. 12820.)
Stock liability.-A stockholder who was indebted to an insolvent corporation for unpaid shares, which had been nominally paid, the money being immediately taken back as a loan, filed his bill to have set off against his indebtedness a debt due him by the corporation. It was held that such unpaid subscription was a trust fund and could not be set off (Sawyer et al. v. Hoag et al., 9 N. B. R. 145; 17 Wall. 610); and where creditors of an insolvent corporation are stockholders they will not be permitted to deduct the amount of their claims from their proportions of the unpaid capital; yet deductions may be made, perhaps, from the assignee's demands, equal to their estimated dividends. (Wilbur, Ass., v. Stockholders, 18 N. B. R. 178; 13 Phila. 479; 35 Leg. Int. 346; 26 Pittsb. Leg. J. 15; Fed. Cas. 17636.)
Bank deposits.— A bankrupt who is liable to a bank for notes on some of which he is principal and others on which he is indorser may set off an amount on deposit to his credit, against his aggregate debt, not including any notes upon which he is surety, unless the principals are insolvent (Ex parte Howard Nat. Bank, 16 N. B. R. 420; 2 Lowell, 487; Fed. Cas. 6764; City of Harrisburg v. Sherlock, 16 N. B. R. 62); and a bank has the right, under the bankrupt law, to set off the amount of a protested draft against the deposit of an insolvent debtor (In re Petrie et al., 7 N. B. R. 332; 5 Ben. 110; Fed. Cas. 11040); and also where securities are deposited with a bank to secure a particular note of one of its stockholders, who also owes it other notes, and the debtor becomes bankrupt, the bank can apply the securities to the other notes. (In re Peebles, 13 N. B. R. 149; 2 Hughes, 394; Fed. Cas. 10902.)
Unliquidated damages. Unliquidated damages growing out of any contract, when assessed, are provable debts, and may be set up by way of defense to show that no demand is due to petitioner entitling it to have defendant declared a bankrupt. (In re Osage Valley & S. Kan. R. R. Co., 9 N. B. R. 281; 1 Cent. Law J. 33; Fed. Cas. 10592.) A bankrupt employed convicts from a state under contract by the terms of which the state was to keep them under good discipline and at diligent labor. It was held that damage sustained by failure of the state to perform these stipulations should be deducted from contract price in estimating the amount due the state (In re Southwestern Car Co., 19 N. B. R. 404; Fed. Cas. 13192); and also where the set-off is founded in a duty which the plaintiff owes the defendant, the wrongful act can be waived and a set-off is proper. (McCabe, Ass., v. Winship, 17 N. B. R. 113; Fed. Cas. 8668.)
Collateral. A person holding stock of the bankrupt as collateral for a debt overdue at the commencement of proceedings may, if he has
power to sell the stock, retain the surplus by way of setting off on another claim which he holds against the bankrupt; and a promise to return collateral upon payment of a debt does not bar a set-off, unless the property has been intrusted to the agent for a particular purpose inconsistent with such application of the surplus, so that this would be a breach of trust; and also a creditor who, at the time of the bankruptcy, has in his hands 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. (Ex parte Whiting. In re Dow et al., 14 N. B. R. 307; 2 Lowell, 472; Fed. Cas. 17573.)
Personal service.- Assignee brought action to foreclose a mortgage given by K. to bankrupts. K. pleaded as a set-off amount due him from bankrupt for personal services. It was held that K. could set off any demand in his favor which is the subject of set-off (Von Sachs, Ass., etc. v. Kretz et al., 19 N. B. R. 63); and where an employee was in the habit of receiving and paying out money for his employer, the employee may set off such money as is in his hands at the time of the bankruptcy of his employer against his salary due. (Ex parte Pollard, 17 N. B. R. 228; 2 Lowell, 411; Fed. Cas. 11252.) An assignee under a general assignment is entitled to set off the amount allowed him for his services against the claim of the assignee in bankruptcy, although his claim therefor was rejected in proceedings before the register. (In re Catlin, Ass., v. Foster, 3 N. B. R. 134; 1 Sawy. 37; 3 Amer. Law T. 134; 1 Amer. Law T. Rep. Bankr. 192; Fed. Cas. 2519.)
Preferences.- Where a creditor, a bank, collects money due the bankrupt and gives the same to the sheriff, who applies it on the bank's judg ment, the case of set-off does not arise, but it is a fraudulent preference, and the money can be recovered. (Traders' Nat. Bank v. Campbell, 6 N. B. R. 353; 14 Wall. 87.) A debtor delivered goods to the workmen of one of his creditors, upon the creditor's credit, with the understanding that they would be paid for. The creditor applied the goods to the payment of a debt due from the debtor. It was held that there was no preference. (Rice et al. v. Grafton Mills, 13 N. B. R. 209.)
Neglect to prove. In making proof of claim, a creditor did not show that the bankrupt held an unsatisfied claim against him. Assignee brought suit on the claim, and he pleaded the amount allowed on his proof as a set-off. It was held that he was not entitled to such set-off (Russell, Ass., etc. v. Owen, 15 N. B. R. 322); and a creditor who receives a composition from his debtor, with full knowledge of the facts, is not entitled to have a set-off enforced which he neglected to assert when the composition was made. (Hunt v. Holmes, 16 N. B. R. 101; Fed. Cas. 6890.) A debtor who accepts a transfer of a note of the bankrupt, without any stipulation as to the terms of the transfer, cannot set it off against his own debt to the bankrupt. (In re Lane, 13 N. B. R. 43; 2 Lowell, 305; 1 N. Y. Wkly. Dig. 296; Fed. Cas. 8043.)
Feme covert.-A wife received sums of money which she deposited with her husband for safe-keeping, a portion of which she subsequently withdrew. It was held that she was entitled to prove claim as a general creditor of her husband in bankruptcy proceedings, and the same could not be offset by previous reasonable gifts, nor of an insurance policy on the husband's life for the benefit of the wife and their children (In re Bigelow et al., 2 N. B. R. 170; 2 Ben. 198; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 1398); and a debt contracted during coverture by a feme covert, who, though actually engaged in trade, has not complied with the requirements of the statutes, is available by her to defeat a debt which was the basis of involuntary bankruptcy proceedings. (In re Slichter, 2 N. B. R. 107; Fed. Cas. 12943.)
b. A set-off or counter-claim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the petition, or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent, or had committed an act of bankruptcy.
[Act of 1867. SEC. 20.
That no set-off shall be allowed in favor of any debtor to the bankrupt of a claim purchased by or transferred to him after the filing of the petition.]
Creditors cannot purchase worthless claims or such as are worth but a percentage of their face value and use them as a set-off or counterclaim to pay off the amounts due the bankrupt's estate. To make a setoff or counter-claim valid, it must be provable against the estate or must have been purchased by or transferred to the creditor four months or more prior to the filing of the petition. If a creditor has been preferred, and afterwards in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor's estate, the amount of such new credit remaining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which otherwise would be recovered from him. (Sec. 60, c.)
Not allowed when not provable claim.- Where a note is subject to set-off for an amount greater than the amount of the note, it is not a provable debt (In re Ford et al., 18 N. B. R. 426; Fed. Cas. 4932); nor can a joint claim, a debt due to several joint creditors, be set off against a debt due by one of them to the bankrupt. (Gray v. Rolle, 9 N. B. R. 337; 18 Wall. 629.) A chose in action is not negotiable, and does not become a mutual debt or credit in the hands of the assignee of such debt or
credit so as to be a matter of set-off. (Rollins, Ass., v. Twitchell & Co., 14 N. B. R. 201; 2 Hask. 66; 5 Amer. Law Rec. 247; Fed. Cas. 12027.)
Corporations.- A stockholder who is also a policy-holder of a bankrupt insurance company cannot set off a claim for loss by fire against his unpaid stock subscription; neither can the treasurer of such company set off a claim for loss against an amount due the company as treasurer (Scammon v. Kimball, 8 N. B. R. 337; 18 Int. Rev. Rec. 118; 4 Chi. Leg. News, 284; Fed. Cas. 12435; also 13 N. B. R. 445; 92 U. S. 362); but where the holder of policies of insurance in a bankrupt company had money of the company deposited with him, it was held that he could set off the amount due on the policies against the claim for the deposits. (Scammon v. Kimball, Ass., 13 N. B. R. 445; 92 U. S. 362.) A banking society for ten years had not conducted its business as a bank, but for seven years had pursued a policy of liquidation by set-off. The deposits became a commodity like stocks, and were not paid, but simply represented by checks, which were good as set-offs in favor of debtors of the society. It was held that as these papers did not represent money, were not payable at sight, and limited in negotiability, they were evidences of assignment of choses in action; and that parties selling these papers were not responsible to an assignee of the society for the face value of the papers (Harmanson, Ass., v. Bain et al., 15 N. B. R. 173; 1 Hughes, 188; Fed. Cas. 6072); also the assignee of an insolvent bank cannot accept in payment of debts due the bank a protested draft drawn by such bank upon another bank and sold to the debtor. (Bashore et al. v. Rhoads et al., 16 N. B. R. 72.)
A creditor of a bankrupt who, with knowledge of the circumstances, enters into a new agreement by which he is to act as the agent of the bankrupt in the sale of his goods, treating the same as a special account and turning over the cash received therefor, cannot set off his old debt against an amount due from him on the new account. (In re Troy Woolen Co., 8 N. B. R. 412; Fed. Cas. 14203.)
Not allowed when purchased in view of bankruptcy.- The act of 1867 differed from the present in forbidding the allowance of a counterclaim only in case of claims purchased by or transferred to a debtor after the filing of the petition.
A debtor to a bankrupt's estate will not be aided by a court to set off notes of the bankrupt, bought on a speculation of the probable dividends against his debt to the estate. (Hunt v. Holmes et al., 16 N. B. R. 101; Fed. Cas. 6890.) A claim against the bankrupt cannot be set off against an indebtedness for goods purchased from the assignee; but a claim against the bankrupt's estate may be set off against an indebtedness for goods purchased from the assignee. (Moran et al. v. Bogert, 14 N. B. R. 393.) An assignee of a bankrupt who has a large deposit with a bank, which bought up claims against the bankrupt's estate to set off against such deposit, who has knowledge of all the facts and does not disclose them, nor dispute such claims for set-off, does not perform his duty and should be removed. (In re Perkins, 8 N. B. R. 56; 5 Biss. 254; Fed. Cas. 10982)
Sec. 69. Possession of property.-a. A judge may, upon satisfactory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained. Such property shall be released, if such bankrupt shall give bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to turn over such property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such petition.
[Act of 1867. SEC. 25. That when it appears to the satisfaction of the court that the estate of the debtor, or any part thereof, is of a perishable nature, or liable to deteriorate in value, the court may order the same to be sold, in such manner as may be deemed most expedient, under the direction of the messenger or assignee, as the case may be, who shall hold the funds received in place of the estate disposed of.
SEC. 40. If it shall appear that there is probable cause for believing that the debtor is about to leave the district, or to remove or conceal his goods and chattels or his evidence of property, or make any fraudulent conveyance or disposition thereof, the court may issue a warrant to the marshal of the district and forthwith to take possession provisionally of all the property and effects of the debtor, and safely keep the same until the further order of the court.
Whenever a petition is filed for the purpose of having a person adjudged a bankrupt, and at the same time an application is made to take charge of and hold the property, the petitioner must give a bond with at least two good and sufficient sureties who shall reside within the ju