Lapas attēli
PDF
ePub

der 35 (ante, § 9614). In re Loughney
(D. C. 1914) 218 Fed. 980.

A clerk of a federal district and cir-
cuit court is entitled to his statu-
tory per diem compensation for days
on which he refers to the referee in
bankruptcy voluntary petitions in bank-
ruptcy filed during the absence of the
judge from the district, though with-
out written orders to open the court
for that or any other purpose. U. S.
V. Marvin (1909) 29 Sup. Ct. 297,
298, 212 U. S. 275, 53 L. Ed. 510.

If a per diem can be allowed a clerk in equity and admiralty cases when a judge is not present, it should likewise be allowed in a bankruptcy court. Owen v. U. S. (1906) 41 Ct. Cl. 69.

Section 1657, ante, which abolishes the clerk's supervision fee where it is

sought to review a final order or decree on writ of error or appeal, held to apply to a petition to revise in bankruptcy proceedings. In re Burr Mfg. Co. (C. C. A. 1914) 215 Fed. 898.

2. Accounts and claims of marshals.Marshals must present vouchers for the items charged in their accounts, or produce satisfactory reasons for the absence of such vouchers. In re Comstock (D. C. 1874) 9 N. B. R. 88, Fed. Cas. No. 3,075. The claim of the marshal for expenditures must be supported by his own oath as to their amount and the necessity for them. In re Hellmar (D. C. 1877) Fed. Cas. No. 6,342. Such affidavit is not conclusive so as to preclude any further inquiry into the items charged. In re Pace (D. C. 1878) Fed. Cas. No. 10,640.

§ 9637. (Act July 1, 1898, c. 541, § 53.) Duties of Attorney-Gen

eral.

Duties of Attorney-General.—a The Attorney-General shall annually lay before Congress statistical tables showing for the whole country, and by States, the number of cases during the year of voluntary and involuntary bankruptcy; the amount of the property of the estates; the dividends paid and the expenses of administering such estates; and such other like information as he may deem important. (30 Stat. 559.)

§ 9638. (Act July 1, 1898, c. 541, § 54.) Statistics of bankruptcy proceedings.

Statistics of Bankruptcy Proceedings.-a Officers shall furnish in writing and transmit by mail such information as is within their knowledge, and as may be shown by the records and papers in their possession, to the Attorney-General, for statistical purposes, within ten days after being requested by him to do so. (30 Stat. 559.)

[blocks in formation]

§ 9639. (Act July 1, 1898, c. 541, § 55.) Meetings of creditors. Meetings of Creditors.-a The court shall cause the first meeting of the creditors of a bankrupt to be held, not less than ten nor more than thirty days after the adjudication, at the county seat of the county in which the bankrupt has had his principal place of business, resided, or had his domicile; or if that place would be manifestly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, the court shall fix a place for the meeting which is the most convenient for parties in interest. If such meeting should by any mischance not be held within such time, the court shall fix the date, as soon as may be thereafter, when it shall be held.

b At the first meeting of creditors the judge or referee shall preside, and, before proceeding with the other business, may allow or disallow

[ocr errors]

the claims of creditors there presented, and may publicly examine the bankrupt or cause him to be examined at the instance of any creditor.

c The creditors shall at each meeting take such steps as may be pertinent and necessary for the promotion of the best interests of the estate and the enforcement of this Act.

d A meeting of creditors, subsequent to the first one, may be held at any time and place when all of the creditors who have secured the allowance of their claims sign a written consent to hold a meeting at such time and place.

e The court shall call a meeting of creditors whenever one-fourth or more in number of those who have proven their claims shall file a written request to that effect; if such request is signed by a majority of such creditors, which number represents a majority in amount of such claims, and contains a request for such meeting to be held at a designated place, the court shall call such meeting at such place within thirty days after the date of the filing of the request.

f Whenever the affairs of the estate are ready to be closed a final meeting of creditors shall be ordered. (30 Stat. 559, 560.)

Notes of

1. Meetings of creditors.-A creditors' meeting should not be held on a public holiday, but the fact that it was so held will not be cause for setting aside the proceedings taken at that meeting where it appears that no one was injured thereby. In re McGlynn (D. C. 1872) Fed. Cas. No. 8,804.

In the absence of any specific provisions of law, the conduct of a creditors' meeting is properly guided by the rules and usages of parliamentary bodies. In re Merchants' Ins. Co. (D. C. 1874) Fed. Cas. No. 9,442.

Where objections to a claim are filed on the ground that the claimant has received a preference, he should not be permitted to take any part in the creditors' meeting until the matter has been heard and determined. Columbia Iron Works (D. C. 1904) 142 Fed. 234, 14 Am. Bankr. Rep. 526.

In re

If there were irregularities in the calling of the first meeting or in the notices to creditors, or if, for any other cause affecting the common interest of all in the estate, it seems to the referee proper to adjourn the meeting to a future fixed day, he has power to do

So.

In re Cheney (D. C. 1879) 19 N. B. R. 16, Fed. Cas. No. 2,637; In re Devlin (D. C. 1867) Fed. Cas. No. 3,841. But in order to take this action, the referee must himself be present at the meeting. If he is prevented from attending, he cannot adjourn the meeting by letter. In that case, the meeting wholly fails and a new meeting must be called. In re Dickinson (D. C. 1878) 18 N. B. R. 514, Fed. Cas. No. 3,895.

2. Representation by attorney or proxy. Where a letter of attorney, to represent and act for the principal at a creditors' meeting in bankruptcy, is given to two or more persons jointly, its authority cannot be exercised by one of the attorneys alone. In

Decisions

Phelps (D. C. 1868) 1 N. B. R. 525,
Fed. Cas. No. 11,071. If one of the
joint proxies is disqualified, because he
is the bankrupt's attorney, neither of
them can vote under the power of at-
torney at a creditors' meeting.
In re
Columbia Iron Works (D. C. 1904) 142
Fed. 234, 14 Am. Bankr. Rep. 526.

A letter of attorney merely empow-
ering the agent to attend and vote at
meetings of creditors will not author-
ize him to file opposition to the bank-
rupt's application for discharge. Cred-
itors v. Williams (C. C. 1870) 4 N. B.
R. 579, Fed. Cas. No. 3,379.

Where an attorney sought to represent certain creditors upon an appointment by their general attorney, who was himself constituted and approved prior to the passage of the bankruptcy law, by a power of attorney authorizing him to sign the creditors' names to any paper writing, proper or necessary to collect or receive debts due, with power of substitution, held, that the authority of the special attorney was sufficient. In re Knoepfel (D. C. 1867) Fed. Cas. No. 7,892.

An attorney at law, who is a member of the bar of the particular court, need not produce a written and acknowledged authority in order to represent his client at creditors' meetings in bankruptcy, in respect to such acts as fall within the ordinary scope of an attorney's duties and employment. In re Scott (D. C. 1876) 15 N. B. R. 73, Fed. Cas. No. 12,519; In re Hill (D. C. 1867) Fed. Cas. No. 6.481.

3. Participation of creditors in proceedings.-The rights of creditors, as parties to the proceeding in bankruptcy, arise and accrue only upon proof of their claims. In re Jones (D. C. 1868) 2 N. B. R. 59, Fed. Cas. No. 7,447; In re Brisco (D. C. 1869) 2 N. B. R. 226, Fed. Cas. No. 1,886.

re

[blocks in formation]

self to the jurisdiction of the court by proving his debt, and is thereafter bound to obey all the orders of the court touching his claim, and the court can, in case he disobeys its orders, deprive him of all the benefit of the act, and can reject and expunge his claim. In re Kyler (D. C. 1868) Fed. Cas. No. 7,956.

If no trustee has yet been appointed, any creditor may petition the court to enjoin another creditor from proceeding with a pending suit, or enforcing a voidable lien or attachment against the bankrupt, and injunction may issue on such petition. In re Carrier (D. C. 1892) 51 Fed. 900.

Any creditor may object to the allowance of another creditor's claim, and if it is allowed, the objecting creditor may move the court to direct the trustee to appeal, or to allow him to appeal in the name of the trustee. Chatfield v. O'Dwyer (C. C. A. 1900) 101 Fed. 797, 4 Am. Bankr. Rep. 313.

If the trustee sells property of the bankrupt for a grossly inadequate price, himself discouraging competition, and refuses to have the sale set aside, a dissatisfied creditor may take action in that behalf. In re Groves (1900) 2 Nat. Bankr. News, 466.

While the trustee is the one in whom the title to the bankrupt's property is vested, and therefore the proper person to bring all necessary actions for its recovery, yet the creditors are interested in having the assets brought in and realized upon, and the trustee cannot complain of the institution by creditors of suits to recover assets which

he, the trustee, might intentionally or unintentionally permit to escape. Davis v. W. F. Vandiver & Co. (1905) 143 Ala. 202, 38 South. 850.

4. Furnishing indemnity for expenses. Where creditors of an estate desire the trustee to bring suit to set aside alleged preferences or fraudulent conveyances, or otherwise to recover property alleged to belong to the bankrupt, they may be required to guaranty to the trustee all the probable costs and expenses likely to be incurred in the prosecution of such suit, if there are no funds of the estate to pay such expenses, or if the money in hand is not more than enough for the creditors having priority, or if the wish of those creditors is opposed by the trustee himself or by a considerable body of other creditors. In re Barrett (D. C. 1904) 132 Fed. 362, 12 Am. Bankr. Rep. 626; In re Barnes (D. C. 1883) 18 Fed. 158; In re Griffith, 1 Nat. Bankr. News, 546; In re Hughes (D. C. 1868) 1 N. B. R. 226, Fed. Cas. No. 6,841; In re Sawyer (D. C. 1877) 16 N. B. R. 460, Fed. Cas. No. 12,396; In re McNamara (1900) 2 Nat. Bankr. News, 341. But though a trustee in bankruptcy is not required to litigate every question called to his notice by creditors, however frivolous or apparently lacking in support, yet he cannot, by requiring indemnity in every instance against costs and expenses, cast the risk of a controversy respecting alleged preferences, etc., on the particular creditor requesting him to undertake it. In re Baird (D. C. 1902) 112 Fed. 960, 7 Am. Bankr. Rep. 448.

§ 9640. (Act July 1, 1898, c. 541, § 56.) Voters at meetings of creditors.

Voters at Meetings of Creditors.-a Creditors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as herein otherwise provided. b Creditors holding claims which are secured or have priority shall not, in respect to such claims, be entitled to vote at creditors' meetings, nor shall such claims be counted in computing either the number of creditors or the amount of their claims, unless the amounts of such claims exceed the values of such securities or priorities, and then only for such excess. (30 Stat. 560.)

[blocks in formation]

Notes of Decisions

7. Pledgees, assignees, and holders of collateral.

8. Holders of notes.

9. Effect of additional security or claim against third person.

10. Voting at creditors' meetings.

I. GENERAL CREDITORS.

1. Right to vote in general.—A creditor who holds a voidable preference has a provable claim, in the sense that formal written proof of it may be made and filed, but it is a claim on which he cannot be allowed to vote until he has surrendered his preference. Stevens v. Nave-McCord Mercantile Co. (C. C. A. 1906) 150 Fed. 71, 17 Am. Bankr. Rep. 609.

Where, after a decision by the referee between two parties as to the right to. vote upon a claim, the person aggrieved

Schedule B. (6)

Books, Papers, Deeds, and Writings Relating to Bankrupt's Business and Estate. The following is a true list of all books, papers, deeds, and writings relating to my trade, business, dealings, estate, and effects, or any part thereof, which, at the date of this petition, are in my possession or under my custody and control, or which are in the possession or custody of any person in trust for me, or for my use, benefit, or advantage; and also of all others which have been heretofore, at any time, in my possession, or under my custody or control, and which are now held by the parties whose names are hereinafter set forth, with the reason for their custody of the same.

[blocks in formation]

On this the person mentioned in and who subscribed to the foregoing schedule, and who, being by me first duly sworn, did declare the said schedule to be a statement of all his estate, both real and personal, in accordance with the acts of congress relating to bankruptcy.

day of — A. D. 18-, before me personally came

(11400)

[Official character.]

of a corporation provide that it shall have a lien on the stock of any shareholder for his indebtedness to the corporation, and an indebted stockholder becomes bankrupt, the corporation is a secured creditor. In re Morrison (D. C. 1873) 10 N. B. R. 105, Fed. Cas. No. 9,839. Taxes, particularly those assessed by municipalities, may or may not attach to real property as liens, according to the local law, and upon this will depend the position of the state or municipality as a secured or unsecured creditor. In re Harvey (D. C. 1903) 122 Fed. 745, 10 Am. Bankr. Rep. 567.

When property or securities are delivered to a creditor, it may be the intention and understanding of the parties that a payment and discharge of the debt shall be effected, rather than the creation of a lien, and in the former case, the creditor cannot present himself in the guise of a secured creditor, though he may have been disappointed in the value of the property turned over to him. In re Black Diamond Copper Min. Co. (1908) 11 Ariz. 415, 95 Pac. 117.

It is not permissible for the bankrupt himself, after receiving his discharge, to purchase and take an assignment to himself of debts against his own estate in bankruptcy secured by liens, and collect the same for his own use out of assets in the hands of his trustee, to the exclusion of subsequent lien holders. His purchase of his own debt operates to extinguish the debt, and this rule is not affected by the fact of his having been discharged, because the discharge does not destroy or extinguish the debt, though it bars the remedy for its recovery. In re Burton (D. C. 1888) 29 Fed. 637.

5. Mortgagees.-The holder of a mortgage on real or personal property of a bankrupt is a secured creditor within the meaning of this section. Krugmeier v. Hackett (1907) 134 Wis. 57, 113 N. W. 1103. Bondholders of a bankrupt corporation are not precluded from proving their debts as secured because of their omission to record the deed of trust securing the bonds. In re Charles Town Light & Power Co. (D. C. 1912) 199 Fed. 846, 29 Am. Bankr. Rep. 721. The holder of a mortgage on the bankrupt's property is a secured creditor although the mortgage was not made by the bankrupt himself, but by his predecessor in the title. McKay v. Hamill (C. C. A. 1911) 185 Fed. 11, 26 Am. Bankr. Rep. 164. See In re Altenheim (D. C. 1867) 1 N. B. R. 85, Fed. Cas. No. 268.

It is immaterial that the mortgage covers after-acquired property as well as that in possession at the time. Barnard v. Norwich & W. R. Co. (C. C. 1876) 14 N. B. R. 469, Fed. Cas. No. 1,007. See In re Baker (D. C. 1875) Fed. Cas. No. 762. The joint

note of a husband and wife secured by a deed of trust on the wife's property should be allowed as a secured claim against the estate of the husband in bankruptcy, although the wife may have died leaving heirs. In re Hartel (D. C. 1873) 7 N. B. R. 559, Fed. Cas. No. 6,157.

A creditor holding a mortgage on exempt property of the bankrupt is not entitled to receive a dividend on his entire claim, and resort to the security only to satisfy an unpaid balance. In re Lantzenheimer (D. C. 1903) 124 Fed. 716, 10 Am. Bankr. Rep. 720. One holding a mortgage on the exempt homestead of the bankrupt is a secured creditor. Fenley v. Poor (1903) 121 Fed. 739, 58 C. C. A. 21, 10 Am. Bankr. Rep. 377. CONTRA, In re Bailey (D. C. 1910) 176 Fed. 990, 24 Am. Bankr. Rep. 201.

An equitable lien on land, in the nature of a mortgage, is a security within the meaning of the act. In re Peasley (D. C. 1905) 137 Fed. 190, 14 Am. .Bankr. Rep. 496. Where money is loaned or advanced under an agreement that it is to be used to discharge an incumbrance on the borrower's property, and the lender is to have a first lien to secure its repayment, and the money is so used, the lender may be subrogated to the rights of the incumbrancer whose debt was paid, against the borrower's trustee in bankruptcy. In re Lee (C. C. A. 1910) 182 Fed. 579, 25 Am. Bankr. Rep. 436; Dewey v. Kelton (D. C. 1878) 18 N. B. R. 217, Fed. Cas. No. 3,850.

6. Judgment

creditors.-Ownership

of a judgment against the bankrupt will constitute the creditor a "secured creditor," within the meaning of the act, provided there is property of the bankrupt upon which the judgment may attach, or has attached, as a lien. In re Cale (D. C. 1910) 182 Fed. 439, 25 Am. Bankr. Rep. 367; Guardians of Poor v. Ovens, L. R. 8 Ex. 37. See American Woolen Co. v. Maaget (1912) 86 Conn. 234, 85 Atl. 583. But not so if the law of the state confines the lien of judgments to real property and the estate of the particular bankrupt consists wholly of personalty. In re Erwin (D. C. 1870) 3 N. B. R. 580, Fed. Cas. No. 4.524.

Where the creditor claims the rights of a secured creditor by virtue of an alleged judgment lien on the property of the estate, the burden is on him to show that he has done everything required by statute to make his judgment attach as a lien. In re Wood (D. C. 1899) 95 Fed. 946, 2 Am. Bankr. Rep. 695. Where, by the local law, a lien is acquired on property only by the levy of an execution upon it, the fact that a creditor has procured and docketed a judgment against the bankrupt, or has caused a writ to be issued, thereon, will not make him a secured

« iepriekšējāTurpināt »