Obrázky stránek
PDF
ePub

be paid counsel for services. (Maybin v. Raymond, Ass., 15 N. B. R. 353; 4 Amer. Law T. Rep. (N. S.) 21; Fed. Cas. 9338.) Where it appears that a bankrupt's wife has property which it is not shown she received from third parties, and where the bankrupt carries on business as the agent of his wife, he will be required to pay over to the assignee a deficit in his assets (In re Peltasohn et al., 16 N. B. R. 265; 4 Dill. 107; 10 Chi. Leg. News, 9; Fed. Cas. 10912); and for the purpose of sustaining an action to set aside a transfer of property as fraudulent against creditors, an assignee is deemed to represent the creditors, and may impeach the transfer notwithstanding it may be held valid against the bankrupt. (Allen v. Massey, 4 N. B. R. 75; 2 Chi. Leg. News, 309; Fed. Cas. 231; Thurmond v. Andrews and Wife, 13 N. B. R. 157.)

It is the duty of the assignee to recover from general assignees any assets which the creditors could have recovered. (Aiken v. Edrington et al., 15 N. B. R. 271; Fed. Cas. 111.)

A creditor, upon refusal of assignee, brought an action in his own name against the assignee, bankrupt, and others to reach property fraudulently concealed by the bankrupt. It was held that the remedy was by petition to compel the assignee to act. (Glenny v. Langdon, 19 N. B. R. 24; 98 U. S. 20.)

See ACTIONS BY TRUSTEES, ante, p. 110.

Assets of corporations.—Stockholders in an insurance company had paid in twenty per cent. and given notes for balance. Thirty-five per cent. remained unpaid at the time the company became bankrupt. The defendants purchased policies, procured adjustment by the company, taking certificates of loss for the amounts, which certificates they surrendered to the treasurer at par in payment of their stock-notes. Suit being brought by assignee, judgment was accorded him. (Jenkins, Ass, v. Armour et al., 14 N. B. R. 276; 6 Biss. 312; 8 Chi. Leg. News, 267; 22 Int. Rev. Rec. 169; Fed. Cas. 7260.) A purchaser of stock, which is only transferable on the books of the company, is liable for assessment levied by the assignee of the company, although such transfer had not been made. The provision requiring the transfers to be upon the books is for the benefit of the company and it can waive it (Upton v. Burnham, 8 N. B. R. 22; 3 Biss. 431; Fed. Cas. 16798); and where a court in which a corporation was declared bankrupt directed an assessment on the unpaid stock of said bankrupt, it was held that such assessment was conclusive. (Michener v. Payson, Ass., 13 N. B. R. 49; 1 N. Y. Wkly. Dig. 272; 2 Wkly. Notes Cas. 339; 8 Chi. Leg. News, 17; 23 Pittsb. Leg., J. 38; Fed. Cas. 9524.) The assignee has all the authority of a receiver to collect demands, and under the order of the court an assessment may be made on unpaid shares. Myers, Ass., v. Seeley et al., 10 N. B. R. 411; 1 Cent. Law J. 451; Fed. Cas. 9994.) The assignee brought suit on a premium note. The defendant set up that the note was taken by the company in Indiana and that the company had not complied with the laws of that state respecting foreign

corporations. It was held that the defense was sufficient. (Lamb, Ass., v. Lamb, 13 N. B. R. 17; 6 Biss. 420; 7 Chi. Leg. News, 411; 21 Int. Rev. Rec. 317; 1 N. Y. Wkly. Dig. 318; Fed. Cas. 8018.)

Shall collect, etc., generally.- An assignee who redeems pledges is subrogated to the rights of the pledgee until, from the proceeds of the pledges, the fund is made good. (McLean et al. v. Cadwalader, 15 N. B. R. 383.) An assignee cannot maintain trover where conversion was consummated before he had a right to possession. (Jones v. Miller, Ass., 17 N. B. R. 316; 1 N. J. 113; Fed. Cas. 7482.) Property held in trust by a bankrupt does not pass to assignee, but if his trust be coupled with an interest the assignee is vested with such interest. (Walker, Ass., v. Seigel et al., 12 N. B. R. 394; 2 Cent. Law J. 508; Fed. Cas. 17085.) The title of an assignee who was before assignee under a deed of assignment relates back to execution of the deed; and all his acts after he received the assets, not inconsistent with his duty as assignee in bankruptcy, will be approved (In re Walker, 18 N. B. R. 56; Fed. Cas. 17063); also where an assignee filed a petition in respect to property in which he was not interested, he was obliged to pay the costs himself. (In re Preston, 6 N. B. R. 545; Fed. Cas. 11394.)

Closing of estates, mortgages. An assignee who desires to test the validity of a mortgage should proceed in equity (In re New York Kerosene Oil Co., 3 N. B. R. 31; Fed. Cas. 10206); and it is his duty to contest the validity of a mortgage by which one creditor has obtained a prefer ence over the others. (In re Metzger, 2 N. B. R. 114; 1 Chi. Leg. News, 163; 2 Amer. Law T. Rep. Bankr. 53; Fed. Cas. 9510.) The defense of usury can be pleaded by the assignee so long as any part of the debt for which usury was paid, or agreed to be paid, remains unpaid. (In re Prescott, 9 N. B. B. 385; 5 Biss. 523; 6 Chi. Leg. News, 151; Fed. Cas. 11389). Unless it be for the benefit of the estate to discharge a mortgage, or to sell the property subject to the mortgage, so as to realize a sum of money free from the mortgage, it is unnecessary for the assignee to take any proceedings. (In re Lambert, 2 N. B. R. 138; 1 Chi. Leg. News, 210; Fed. Cas. 8026.)

Leases. Without an order of court, and without ascertaining whether the assets are sufficient to discharge the expenses of administration, the assignee cannot pay a claim for occupation of premises (In re Hoagland, 18 N. B. R. 530; Fed. Cas. 6515); and until an assignee accepts a lease he does not become liable for rent accruing after adjudication. (In re Ten Eyck et al., 7 N. B. R. 26; Fed. Cas. 13829.) A bankrupt tenant's liabil ity for rent ceases on the day of adjudication, and where the assignee ocupies the premises after that time he is responsible; but if the occupation is for the benefit of the estate he will be allowed credit for the amount so paid out. (In re Webb & Co., 6 N. B. R. 302; Fed. Cas. 17315.) An assignee, unless restrained by the terms of the lease, may adopt or reject a lease, as he finds most beneficial for the creditors, and can take

a reasonable time for decision (In re Laurie et al., 4 N. B. R. 7); but unless it will benefit the creditors, an assignee is not bound to take leasehold estate belonging to bankrupt. (White v. Griffing, 18 N. B. R. 399.) The assignee, if not in funds from the estate to a sufficient extent to defray the expenses for the execution of his trust, may require that funds for that purpose shall be advanced to him before he proceeds. (In re Hughes, 1 N. B. R. 9; 1 Amer. Law T. Rep. Bankr. 45; Fed. Cas. 6841.)

Liens.-The assignee may, if to the interest of the estate, discharge the incumbrance, or he may agree with the creditors as to value of the property, or it may be ascertained by sale under direction of court, when the creditor shall prove only for the balance, if any (Reed v. Bullington, 11 N. B. R. 408); but after the filing of petition no lien can be acquired upon the property of the bankrupt by proceedings in the state court; and an assignee is not bound to go into a state court to defend such a suit (Stuart v. Hines, 6 N. B. R. 418); and where, under an agreement of the execution creditor, the property levied on passes into the possession of the assignee without prejudice to such prior lien, the assignee and the register should, if the execution creditor asks it, expedite the proceedings for decision. (In re Hafer et al., 1 N. B. R. 163; 6 Phila. 474; 25 Leg. Int. 164; Fed. Cas. 5897.)

Fraud or mistake.- Where an assignee applies to the court for directions, and a reference is ordered to obtain information, and the assignee fails to attend, but acts independently, he will be held to the strictest account. (In re Schapter, 9 N. B. R. 324; Fed. Cas. 12438.) An assignee, directed by the court to sell certain goods, received an offer which was higher than one for which he had promised to sell. He refused to entertain this higher price. It was held that he should have rejected first when higher price was offered (In re Ryan & Griffin, 6 N. B. R. 235; Fed. Cas. 12182); and if an assignee knows or believes that a creditor has fraudulently proved a debt, and refuses to contest it, any creditor who has proved his debt may obtain the annulment of such fraudulent proof (First Nat. Bank of Troy v. Cooper et al., 9 N. B. R. 529; 20 Wall 171); also an assignee cannot attack the trust he assumed to execute and defend. (Johnson, Ass., v. Rogers et al., 15 N. B. R. 1; 5 Amer. Law Rec. 536; 14 Alb. Law J. 427; Fed. Cas. 7408.)

Closing up estate generally.-The assignee of a bankrupt who has received pay for an article is estopped to deny that an article of the kind contracted for, in the possession of the bankrupt, is the one paid for (Ex parte Rockford, Rock Island & St. Louis R. R. Co., 3 N. B. R. 12; 1 Lowell, 345; 2 Amer. Law T. 105; 1 Chi. Leg. News, 337; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 11978); but where the trustee has proved claim for a note against the estate of the payee, and where the holder has not, on the faith thereof, changed his position in regard to the note, the trustee is not estopped from disputing the claim. (In re Dodge et al, 17 N. B. R. 504; 9 Ben. 480; Fed. Cas. 3948.) A provision in a deed

empowering the cestui que trust to appoint new trustee upon the failure of original trustee to act does not authorize the assignee of the cestui que trust to appoint a new trustee. (Clark et al. v. Wilson et al., 16 N. B. R. 356.)

Shall furnish information.- An assignee having failed to give a certificate containing the names and residences of creditors who have proved their claims, in order that the bankrupt might move for discharge, application was made to the register to compel the assignee to perform this duty. It was held that register can compel assignee to sign said certificate. (In re Blaisdell, 6 N. B. R. 78; 5 Ben. 420; 42 How. Pr. 274; Fed. Cas. 1488.)

Shall make to creditors detailed statement of administration.Application was made for relief from action of trustee in allowing counsel fees alleged to be excessive. It was held that such matter was within the discretion of trustee, and in absence of bad faith he would not be interfered with. (In re Baxter et al., 19 N. B. R. 295; Fed. Cas. 1122.)

Shall make final report and account.-On certificate from register it was held that trustee can be called to account by petition to court setting forth grounds (In re Hicks et al., 19 N. B. R. 449; Fed. Cas. 6457); but on petition to court to pass on items of assignee's account, reported favorably by the register on reference by court, it was held that it would not, but that a meeting of creditors must be called to act thereon (In re Hubbel et al., 9 N. B. R. 523; 19 Int. Rev. Rec. 150; Fed. Cas. 6820); and creditors are not bound to object to assignee's account save at a meeting called pursuant to the provisions of the act. (In re Clark, 9 N. B. R. 67; Fed. Cas. 2810.) A creditor has a right to call for investigation into the conduct of the assignee in selling bankrupt's property, even after the latter's account has been approved. (In re Peabody, 16 N. B. R. 243; 9 Chi. Leg. News, 243; Fed. Cas. 10866.)

Shall pay dividends.-It was held, under the act of 1867, that money in the hands of assignee after payment of creditors who have proven their claims must be distributed among such creditors as are named in the bankrupt's list, although they have failed to make proof of claims (In re James, 2 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 7175); for an assignee is an agent, standing in the shoes of the bankrupt, with power to do what the bankrupt ought to have done, namely, pay the debts out of assets. (Starkweather v. Cleveland Ins. Co., 4 N. B. R. 110; 3 Chi. Leg. News, 77; 28 Leg. Int. 36; 10 Amer. Law Reg. (N. S.) 333; 5 Amer. Law Rev. 578; Fed. Cas. 13308.) The distribution of the assets of a bankrupt cannot be interfered with by garnishment or process of state court. (In re Bridgman, 2 N. B. R. 84; 1 Chi. Leg. News, 103; Fed. Cas. 1867.)

See also DECLARATION AND PAYMENT OF DIVIDENDS, sec. 65. Shall make report; amendment.- An assignee is not required to make an amendment to his report where it is not shown to be proper or that the interest of the bankrupt will be protected by making it, or in

jured by not. (In re Kingon, 3 N. B. R. 446; 36 How. Pr. 392; Fed. Cas. 7815.)

Shall set apart exemptions.-It was held under the former act that a rule requiring assignees to report within twenty days after receiving the articles set off to the bankrupt as exemptions is to be strictly observed, but it is to receive such construction as to prevent injustice. Where the property has not come into possession of the assignee, and a question as to his right to it is pending, the time should be computed from the final decision of the court. (In re Shields, 1 N. B. R. 170; 15 Pittsb. Leg. J. (O. S.) 391; Fed. Cas. 12785.) A schedule of property set aside for the bankrupt was prepared by the register. It was held that it was the duty of the assignee to set aside property to be exempted without interference of the register. (In re Peabody, 16 N. B. R. 243; 9 Chi. Leg. News, 243; Fed. Cas. 10866.) The title to property set apart as exempt, when exemption is unauthorized by law, remains in the assignee, and no exception need be taken to the report making such unauthorized exemption; but accounts may be excepted to for omission therefrom of the value thereof. (In re Gainey, 2 N. B. R. 163; Fed. Cas. 5181.) The only relation sustained by an assignee to a bankrupt is to set aside the exempt property; in other respects he is the agent of the law for the benefit of creditors (Aiken v. Edrington, Sr., et al., 15 N. B. R. 271; Fed. Cas. 111); and an assignee represents the rights of creditors as well as the rights of the bankrupt. (In re Wynne, 4 N. B. R. 5; 2 Amer. Law T. Rep. Bankr. 116; Fed. Cas. 18117.) An assignee cannot make an allowance from the general fund of money in lieu of articles sold under distress for rent which would have been exempt. (In re Lawson, 2 N. B. R. 19; Fed. Cas. 8149.)

Assignee's duties generally.- A trustee cannot purchase at a sale where he as trustee sells (Lockett v. Hoge, 9 N. B. R. 167; Fed. Cas. 8444); nor can an assignee's solicitor bid at the assignee's sale. (Citizens' Bank v. Ober, 13 N. B. R. 328; 1 Woods, 80; Fed. Cas. 2731.) When an assignee has accepted appointment and given bonds, his neglect to take into his own custody the deed of assignment and have the same recorded is no ground for withholding a discharge. (In re Pierson, 10 N. B. R. 107; Fed. Cas. 11153.) If the assignee has any power over a subject, it must be found in the bankrupt law itself. (Dutcher, Ass., v. Bank, 11 N. B. R. 457; 12 Blatchf. 435; Fed. Cas. 4203.) He is an officer of the court, and is strictly limited to powers conferred by the act and orders of the court. (In re Ryan & Griffin, 6 N. B. R. 235; Fed. Cas. 12182.)

Trustees have no judicial authority, and where such is needed they must resort to it, as the bankrupt would have been compelled to do, if no proceedings had been instituted. (In re Darby, 4 N. B. R. 98; 18 Pittsb. Leg. J. 154; Fed. Cas. 3570.)

b. Whenever three trustees have been appointed for an estate, the concurrence of at least two of them shall be nec

« PředchozíPokračovat »