Obrázky stránek

burden than the ratable portion of interest in the assets sought to be recovered should be placed upon the general creditors; and, if they were for the benefit of the latter, the circumstances might be such as would require those applying to defray the expenses in the first instance to be refunded, on recovery, out of proceeds. (Freelander & Gerson v. Holloman et al., 9 N. B. R. 331; Fed. Cas. 5081.)

The courts have declined to allow costs or attorneys' fees where a debtor made an assignment and subsequently, within six months, was declared a bankrupt. (In re Cohn, 6 N. B. R. 379; Fed. Cas. 2966.) And where a mere general allowance was made in a decree annulling a voluntary assignment for creditors, of the reasonable charges and expenses of the voluntary assignee, it will not include expenses of a proposed account in the state court. (Burkholder et al. v. Stump, 4 N. B. R. 191; 8 Phila. 172; Fed. Cas. 2165.) Costs and commissions stipulated to be paid on foreclosure of a mortgage will not be allowed when the proceedings to foreclose are invalid. (In re Devore, 16 N. B. R. 56; 24 Pittsb. Leg. J. 180, 187; Fed. Cas. 3847.)

It has been held that an assignee may be allowed to charge for court fees in drafting order of composition, publishing notice of appointment, advertising and posting hand-bills, recording assignment, stationery and postage, and for his legal commissions. (In re Davenport, 3 N. B. R. 18; In re Pegues, 3 N. B. R. 9; In re Tully, 3 N. B. R. 19; 2 Amer. Law T. 136; Fed. Cas. 3597.) An assignee, clerk of the bankrupt's attorney, who is charged with mismanagement, and whose removal is asked for by the creditors, will be removed, but he will be protected against costs where it appears that he acted in entire good faith. (In re Mallory, 4 N. B. R. 38; Fed. Cas. 8990.) Where a bill of complaint has been filed by an assignee without sufficient cause, but the circumstances are not so clear as to require any imputation of his good faith in the prosecution of the suit, the costs will be paid out of the estate in the hands of the assignee. (Coxe v. Hale, 8 N. B. R. 562; 21 Pittsb. Leg. J. 77; Fed. Cas. 3310.) A mortgagee in possession being entitled to retain all property upon which his mortgage was valid, on a sale of such property by order of the district court in bankruptcy should only be charged with the reasonable expenses of the sale of such property and not with any portion of the costs in bankruptcy. (In re Eldridge, 4 N. B. R. 162; Fed. Cas. 4330.) The costs upon the petition for a discharge of involuntary bankrupts, the hearing, etc., must be paid out of the funds in the assignee's hands. (in re Olds, 4 N. B. R. 37; Fed. Cas. 10181.)

(19) Transfer of cases.- Where petitions are filed against the same person, or against different members of a partnership in different courts of bankruptcy, each of which has jurisdiction, the cases shall be transferred, by order of the court relinquishing juris liction, to and be consolidated by the court which can proceed with the same for the greatest convenience of the parties in interest. (Sec. 82.)



Sec. 3. Acts of bankruptcy.-a. Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground.

[Act of 1867. SEO. 39. And be it further enacted, That any person residing and owing debts as aforesaid, who, after the passage of this act, shall depart from the State, district, or Territory of which he is an inhabitant, with intent to defraud his creditors, or, being absent, shall, with such intent, remain absent; or shall conceal himself to avoid the service of legal process in any action for the recovery of a debt or demand provable under this act; or shall conceal or remove any of his property to avoid its being attached, taken, or sequestered on legal process; or shall make any assignment, sale, conveyance, or transfer of his estate, property, rights, or credits, either within the United States or elsewhere, with intent to delay, defraud or hinder his creditors; or who has been arrested and held in custody under or by virtue of mesne process or execution, issued out of any court of any State, district, or Territory, within which such debtor resides or has property founded upon a demand in its nature

provable against a bankrupt's estate under this act, and for a sum exceeding one hundred dollars, and such process is remaining in force and not discharged by payment, or in any other manner provided by the law of such State, district, or Territory applicable thereto, for a period of seven days; or has been actually imprisoned for more than seven days in a civil action, founded on contract, for the sum of one hundred dollars or upwards; or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money or other property, estate, rights, or credits, or give any warrant to confess judgment; or procure or suffer his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, by such disposition of his property, to defeat or delay the operation of this act; or who, being a banker, merchant or trader, has fraudulently stopped or suspended and not resumed payment of his commercial paper, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy. . .]

[ocr errors]

Acts of bankruptcy. They may, in general, be considered under two classes, i. e., those resulting from insolvency, and those which are dishonest or fraudulent. If of the latter class, and accruing within four months prior to the filing of the petition, they may be avoided, if it is to the interest of the estate, and the beneficiary of such fraudulent acts will be compelled to disgorge any property so acquired, if tangible and accessible. (Sec. 67.) A preference given within four months before the filing of the petition, or afterwards, but before the adjudication, where the beneficiary had reasonable cause to believe that it was intended to give a preference, is voidable (sec. 60), and the lien created while insolvent, or in fraud within four months of the filing of the peti tion, will be dissolved. (Sec. 67.) The word "conceal" is defined to include secrete, falsify and mutilate. (Sec. 1-22.)

Section 3 of the law of 1898 defines five acts of bankruptcy. The first three definitions of such acts follow closely the definitions given in section 39 of the act of 1867. The fourth and fifth definitions have no counterpart in the act of 1867. The law of 1867 specified two acts of bankruptcy which are omitted from the present statute, namely, the arrest and holding in custody of a debtor, under process of execution, for a period of seven days; and the fraudulent suspension of payment of commercial paper by a banker, merchant or trader for a period of fourteen days.

Conveyances and transfers constituting acts of bankruptcy.-The word "transfer" includes sale and every other and different mode of disposition of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift or security. (Sec. 1-25.) If a debtor intends by his act to delay, hinder or defraud his creditors, or to give a preference to any of them, or to defeat or delay the operation of the Bankrupt Act, he commits an act of bankruptcy, however innocent the act of the preferred creditor or the person to whom the transfer is made. (In re Drummond, 1 N. B. R. 10; 1 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 4093.) The conveyance of his property affords a very violent presumption of a fraudulent intent so far as existing creditors are concerned. (In re Alexander, 4 N. B. R. 45; 18 Pittsb. Leg. J. 81; 3 Amer. Law T. 280; 1 Amer. Law T. Rep. Bankr. 238; Fed. Cas. 161.)

The following have been held to be acts of bankruptcy and void: A purchaser who buys goods, intending, at the time of the purchase, not to pay for them (In re Alsberg, 16 N. B. R. 116; Fed. Cas. 261); a debtor who has assigned for the benefit of his creditors, and retains, through the agency of the assignee, a portion of the estate, and converts to his own use an amount greater than he would be entitled to hold under the exemption laws (Farrin v. Crawford et al., 2 N. B. R. 181; 7 Chi. Leg. News, 342; Fed. Cas. 4686); transfers made to defeat the operation of the law so far as they stand in the way of enforcing its provisions, where the proceedings are instituted within the time prescribed (Stevenson et al. v. McLaren et al., 14 N. B. R. 403; Beattie v. Gardner et al., 4 N. B. R. 106; Fed. Cas. 1195; In re Cowles, 1 N. B. R. 42; 1 West. Jur. 367; Fed. Cas. 3297); any act the effect of which is to evade the provisions of the act (Webb, Ass., v. Sachs et al., 15 N. B. R. 168; 4 Sawy. 158; 9 Chi. Leg. News, 156; Fed. Cas. 17325); conveyances not made in the usual and ordinary course of business of debtors. (Reson v. Knapp, 4 N. B. R. 114; Fed. Cas. 11861; Babbitt v. Walbran & Co., 4 N. B. R. 30; 2 Chi. Leg. News, 285; Fed. Cas. 694.)

In determining whether a transaction is made in the usual and ordinary course of business, the question is not whether such transactions are usual in the general conduct of business throughout the community, but whether they are according to the usual course of business of the particular person whose conveyance is in question. (Reson v. Knapp, 4 N. B. R. 114; Fed. Cas. 11861.) Payments, sales or transfers of any character, declared void by the bankrupt law, are only void against persons claiming under proceedings in bankruptcy or in course of administration of a bankrupt's estate in a court of bankruptcy. (Berryman v. Allen, 15 N. B. R. 113.) An assignment, though voidable at the suit of the assignee, is not void. (Sparhawk et al. v. Drexel et al., 12 N. B. R. 450; Weekly Notes Cas. 560; Fed. Cas. 13204.)

Chattel mortgage.— A chattel mortgage is a disposition of property out of the ordinary course of business. (United States v. Bayer, 13 N. B.

R. 88; Fed. Cas. 14548.) A fraudulent chattel mortgage on a bankrupt's stock of goods to secure an alleged debt, made with intent to delay, hinder or defraud creditors, is an act of bankruptcy (In re McKibben, 12 N. B. R. 97; Fed. Cas. 8859); and so is a chattel mortgage which permits the mortgagor to dispose of the goods in due course of trade, without reference to the good faith of the mortgage debt, or the intentions of the mortgagor as to fraud (In re Foster, 18 N. B. R. 64; 10 Chi. Leg. News, 315; Fed. Cas. 4964); a bill of sale of personalty in which there is no change in possession of the property, the first owner taking back a writing in the nature of a lease. (In re Gurney, 15 N. B. R. 373; 7 Biss. 414; 9 Chi. Leg. News, 255; 4 Law & Eq. Rep. 28; Fed. Cas. 5873.)

Sale of goods.—The transaction is void against creditors where household furniture in a dwelling inhabited by the owner and another person is transferred to such other person by a bill of sale without any other circumstances to indicate actual possession (Allen v. Massey, 4 N. B. R. 75; 2 Chi. Leg. News, 309; Fed. Cas. 231); also a conveyance absolute upon its face, by which the grantor, in failing circumstances, secretly reserves the right to possess for a limited period under a parol agreement as part of the consideration (Lukins v. Aird, 2 N. B. R. 27; 24 Wall (U. S.) 78); also a sale of a stock of goods in gross, not made in the usual and ordinary course of business of the debtor, who is a retail dealer and merchant. (In re Deane & Garret, 2 N. B. R. 29; 15 Pittsb. Leg. J. 581, 583; Fed. Cas. 3700.) In an action by the assignee to recover for goods sold by the bankrupt shortly before commencement of bankruptcy proceedings, the burden is on the plaintiff to show a guilty collusion to defraud creditors, (Dickinson v. Adams, 17 N. B. R. 380; 4 Sawy. 257; Fed. Cas. 3896.) Where a bankrupt sells his entire stock below cost, and the purchaser resells it at an advance, the last purchaser being informed at the time of the circumstances of the first purchase, both sales are void as to the assignee. (Abraham and Daniel Walbrun v. Babbitt, Ass., 9 N. B. R. 1; 16 Wall. 577.) A purchaser of goods who assumes debts of the vendor as part consideration, and sells them leaving the debts unpaid, which the vendor is compelled to discharge, commits an act of bankruptcy, and is liable to the vendor for the amount of the debts assumed. (In re Phelps v. Clasen, 3 N. B. R. 22; Woolw. 204; 2 West. Jur. 221; Fed. Cas. 11074.)

Transfer by deed. A deed not at first fraudulent may become so by being concealed, as by its concealment persons may be induced to give credit to the grantor. (Barker v. Smith et al., 12 N. B. R. 474; 2 Woods, 87; 2 Amer. Law T. Rep. (N. S.) 386.) The date of the execution and delivery of deeds, and not the date named therein, is the time from which to reckon the six months within which a petition in bankruptcy is to be filed, where the deed is intended to defraud creditors. (In re Rooney, 6 N. B. R. 163; Fed. Cas. 12032.)

Conveyance to wife or children.- A voluntary conveyance made by a person not indebted at the time, in favor of his wife or children, can

« PředchozíPokračovat »