Obrázky stránek
PDF
ePub

by such a court.

That the general law, if availed of, is para-
The inconvenience and confusion which

mount, all admit.
would arise if the supreme authority were supposed to be
dormant until called into action in a particular case, is forcibly
shown in several able opinions.1

[ocr errors]

§ 10. Assignment Laws of State. As to the assignment laws of certain of the States, some distinctions are to be noted. If they are mere systems of insolvency, they will be suspended; as the assignment law of Massachusetts of 1836 was impliedly repealed by the insolvent law of 1838.2 But the common-law power of assignment remains to an insolvent debtor as against attaching or levying creditors, and can only be avoided by a trustee in bankruptcy, duly appointed within the time required by the statutes. It follows that a law which merely aids and regulates such assignments is not wholly suspended; though such parts of it as are inconsistent with the paramount law, such as a forced discharge, will be.1

There are statutes in several States which require that when an assignment of a debtor's whole property is made, for the benefit of some of his creditors, it shall inure to the benefit of all. Whether such a law is suspended would seem to depend upon whether it is merely a regulation of the right of assignment, or a system of bankruptcy applied to a particular class of cases.

§ 11. Corporations; Partnerships. - Notwithstanding many dicta of great weight, it must be conceded that the States, which create corporations, have the power to deal with their dissolution. Thus, as it were incidentally, they retain authority to wind up corporations which are actually insolvent; not because they are insolvent, but because, being insolvent, the State can insist that they shall not continue to impose on the

1 Griswold v. Pratt, 9 Met. 16, at 20, per Dewey, J.; Tobin v. Trump, 7 Phila. 123, per Thayer, J.

2 Wyles v. Beals, 1 Gray, 233. See Chamberlain v. Perkins, 51 N. H. 336; Rowe v. Page, 54 N. H. 190.

3 Infra, § 85.

Mayer v. Hellman, 91 U. S. 496;

Boese v. King, 108 U. S. 379; Cook v.
Rogers, 31 Mich. 391; Maltbie v.
Hotchkiss, 38 Conn. 80; Hawkins's
Appeal, 34 Conn. 548; Beck v. Parker,
65 Penn. St. 262; Proctor's Trs. v.
Wadesworth, 3 B. Mon. 401.

6 Morawetz, 2d ed., §§ 1047, 1048.

public. But a statute of a State which applies only to insolvent corporations, like one of the laws of Massachusetts,2 would be suspended as to such corporations as are subject to the law of Congress. Upon the general subject it may be noted that the statute of Massachusetts was never held to supersede the jurisdiction of the courts of that State to wind up insolvent corporations.

Similar considerations apply, to a certain extent, to partnerships. Before the court of bankruptcy has acted, the State court must have power to interpose in certain cases of disputes between partners, notwithstanding the firm and the partners may be found to be insolvent.

§ 12. Acts otherwise valid may be Acts of Bankruptcy.It must not be forgotten that acts done under a valid State law may yet be acts of bankruptcy, which will authorize creditors to petition for adjudication. This is the necessary result of the proposition, which is established by authorities cited in a later part of this work, that conveyances perfectly valid between the parties, and not fraudulent in the ordinary sense, are yet constructively fraudulent when assailed within a certain time, if they interfere with the operation of the system established by the bankrupt law. It follows that certain decisions are unsound which hold that because a law regulating assignments is not suspended, trustees in bankruptcy appointed under a petition filed within the time required for setting aside technical frauds cannot avoid them.5

Equally unsound are the decisions that an assignment by the debtor to the creditor to escape imprisonment, as required by a poor debtor law, is not a preference.

-

§ 13. At what Time Suspension takes effect. The bankrupt laws have usually provided that they should not go into full operation, so as to be available for proceedings by or

[blocks in formation]

2 Pub. Sts. Mass., c. 157, §§ 127 to 194, 15 N. Y. Supr. Ct. R. 516; Haas

136 inc.

v. O'Brien, 66 N. Y. 597.

[ocr errors]

against the subjects of them, until a certain time after their enactment. This is done to give opportunity for the appointment of the necessary officers and other preparations for the effectual working of the act. It is settled that the State laws are not suspended until the general law can be actually availed of. If it were not so, there would be a period during which no remedy could be had in cases of bankruptcy; and, of course, cases duly begun under the law of the State may be proceeded with and finished after the general law has become effectual.1 § 14. Meaning of Suspension. The suspension of the laws of the State means merely that their operation is interfered with by the paramount authority of the act of Congress. They continue to govern the rights of debtors and creditors within the State, subject to the condition subsequent, that the bankrupt law shall be repealed; and so of a State law passed while the bankrupt law is in force. Upon such repeal, the law of the State at once becomes operative, without further legislation; and a debtor may be proceeded against under the State law, or a discharge under that law may be defeated, for acts done during the existence of a general bankrupt law. So an attachment may be dissolved or a contract discharged when the suspended law revives, though, if it were a wholly new law, antecedent debts and liens could not be affected by it consistently with the Constitution of the United States.2

1 Judd v. Ives, 4 Met. 401; Day v. Bardwell, 97 Mass. 246; Re Horton, 5 Law Reporter, 462, Fed. Cas. No. 6708; Meekins v. Creditors, 19 La. An. 497 and cases; Martin v. Berry, 37 Cal. 208; Chamberlain v. Perkins, 51 N. H. 336. [These decisions have no application to the act of 1898, which contains a clause, absent from the former acts, providing that "Proceedings commenced under State insolvency laws before the passage of this act shall not be affected by it." This denies by impli

cation the validity of all proceedings under State laws begun after the passage of the act. Parmenter Mfg. Co. v. Hamilton, 51 N. E. Rep. 529 (Supreme Court, Mass.).]

2 Atkins v. Spear, 8 Met. 490; Lothrop v. Highland Foundry, 128 Mass. 120; Damon's Appeal, 70 Maine, 153; Baldwin v. Buswell, 52 Vt. 57; Ward v. Proctor, 7 Met. 318; Austin v. Caverly, 10 Met. 332; Orr v. Lisso, 33 La. An. 476; Tua v. Carriere, 117 U. S. 201.

CHAPTER II.

PERSONS SUBJECT TO BANKRUPTCY.

§ 15. Married Women. - Persons who cannot contract debts. are of course not within the scope of the act. Married women, until their disabilities were removed by comparatively recent statutes, could not, in general, be made bankrupt, as, for instance, for debts contracted before marriage;1 though if a married woman survived her husband such debts, if still subsisting, were sufficient for the purposes of a petition. Until corrected by statute, it was held that a married woman, imprisoned on execution with her husband, could not take the benefit of the insolvent law. In this state of the law a practice grew up of discharging the wife on motion in the court from which the execution issued, unless she had separate property which she might devote to the payment of the debt.*

If, by usage or statute, a married woman may contract debts as if she were sole, she may become or be made a bankrupt; as, for instance, a feme covert, trading according to the custom of London,5 now extended by statute in England to every married woman carrying on a trade separately from her husband, or one who is to be treated as a feme sole by reason of a judicial separation, her husband's desertion, or his being a convict.7

1 Ex parte Mear, 2 Bro. C. C. 266. 2 Woodman v.Chapman, 1 Camp.189; Shattock v. Shattock, L. R. 2 Eq. 182.

8 Ex parte Deacon, 5 B. & A. 759. See 7 Geo. IV., c. 57, § 72; 1 & 2 Vict., c. 110, § 101.

Chalk v. Deacon, 6 Moore, 128; Benyon v. Jones, 15 M. & W. 566.

5 Ex parte Carrington, 1 Atk. 206; Lavie v. Phillips, 3 Burr. 1776, 1 W. Bl. 570; Com. Dig., Bankrupt, A.

• Married Women's Property Act, 1882 (45 & 46 Vict., c. 75, § 1 (5); Re Edwards, 2 Manson, 182; Re Dagnall (1896), 2 Q. B. 407. See Re Helsby, 1 Manson, 12.

7 Ex parte Franks, 7 Bing. 762; Re Lyons, 2 Sawyer, 524, Fed. Cas. No. 8649; Re Ruddell, 2 Lowell, 124, Fed. Cas. No. 12,109.

In many of the United States married women have been relieved of all disabilities and made liable to all the obligations of single women. In these States they are subject to any bankrupt law of the State, or of the United States, which may be in force.1

In England it has been held that a married woman who is not personally liable to execution, although her separate property may be so liable, cannot be made a bankrupt. The result that one or a few creditors may thereby secure their whole debts, in preference, is regretted, but held irremediable.2

In this country this precise point has not been adjudged. The intimations are that the existence of separate property may be a sufficient ground for proceedings, upon due allegation.3 There seems no valid objection to a limited bankruptcy; for when a married woman is bankrupt, only her separate property can be taken by her creditors; and there are limited bankruptcies of aliens and foreign corporations. If a married woman dies insolvent, her separate property becomes equitable assets, to be divided pro rata among her creditors.4

§ 16. Infants. It is said that an infant who owes debts of a sufficient amount for necessaries, or upon judgment for tort, may be bankrupt.5 Generally speaking, an infant who does not owe such debts cannot be the subject of a petition, voluntary or involuntary. In England the Chancellor formerly would

1 Re Kinkead, 3 Biss. 405, Fed. Cas. No. 7824; Re Collins, 3 Biss. 415, Fed. Cas. No. 3006; Graham v. Stark, 3 N. B. R. 357, Fed. Cas. No. 5676; Binney v. Globe Bank, 150 Mass. 574; Act of 1898, c. 1 (28).

2 See Ex parte Holland, L. R. 9 Ch. 307; Ex parte Jones, 12 Ch. D. 484; Johnson v. Gallagher, 30 L. J. Ch. 298, and 3 De G. F. & J. 494. In the Law Journal the decision appealed from is given in a note. Re Gardiner, 20 Q. B. D. 249; Scott v. Morley, 20 Q. B. D. 120, 132; Becket v. Tasker, 19 Q. B. D. 7; Pelton v. Harrison (1891), 2 Q. B. 422; Re Lynes (1893),

2 Q. B. 113; Re Hewett (1895), 1 Q. B. 328, disapproving dictum of Lindley, J., in Holtby v. Hodgson, 24 Q. B. D. 103, 108.

8 See Re Slichter, 2 N. B. R. 336, Fed. Cas. No. 12,943; Re Goodman, 5 Biss. 401, Fed. Cas. No. 5540.

Thompson v. Bennett, 6 Ch. D. 739. [A married woman cannot be made bankrupt for acts of bankruptcy committed while single. Re A Debtor, 5 Manson, 122.]

6 Willis, 6. See Re Smedley, 10 L. T. N..s. 432.

Rex v. Cole, 1 Ld. Raym. 443, 12 Mod. 243; Ex parte Sydebotham, 1

« PředchozíPokračovat »