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 TREATISE ON THE UW

BANKRUPTCY AND INSOLVENCY.

I

:- ' V r V ■ ■A

BY

FRANCIS gJLLIAEB,
AUTHOR OP THE LAW OF TORTS, ETC.

EMBBACING THE BABTKBUPT ACT OF 1867.

PHILADELPHIA:
J. B. LIPPINCOTT & 00.
LONDON : TETJBNER AND CO.
1867.
 rdz
It fz-
Entered, according to the Act of Congress, in the year 1867, by
FRANCIS BILLIARD,
In the Clerk's Office of the District Court for the District of Massachusetts.
 PREFACE TO THE SECOND EDITION.

The present issue of the following work contains

no change from the former one, with the exception
of the new Bankrupt Law, which will be found at
the close of the volume. The old United States Acts,
and the Massachusetts Insolvent Law, are still re-
tained. In two points of view these latter statutes,
though now obsolete or superseded, may be regarded
as still of great importance. Whenever, as is very
often done, their respective provisions are substan-
tially re-enacted, the old and the new laws should stand
in juxtaposition, in order that this identity may show
the application of former judicial decisions to the latter
as well as the former. And, on the other hand, when,
with a general similarity, there are points of difference,
however apparently minute, there should be the same
opportunity of comparison, for the purpose of meeting
any questions which may arise as to the authority of
(i)
U PREFACE TO THE SECOND EDITION.

cases which are predicated upon the precise phraseology

of the repealed statutes.
The design and scope of the work are fully set forth
in the original preface, which is hereto subjoined.
F. H.
April, 1867.
 PR'EFACE.

Bankruptcy and Insolvency, though depending

wholly on the statutory law, and liable to be at any
time not only changed and modified, but entirely abro-
gated, bya simple alteration or repeal of the legislation
which created them, are, notwithstanding, important
topics of permanent jurisprudence, and furnish abund-
ant material for an elementary treatise or tex1>book.
While, in the legislation of England and America, a
series of acts is found i^on these subjects, with great
diversity of detailed provisions, and a large proportion
of them now obsolete; yet through the whole there
runs an unbroken thread of policy and purpose, which
renders the system, however often changed by positive
enactment, virtually one, and perpetuates the authority
of judicial decisions, even when nominally predicated
upon particular statutes which have long ceased to
exist. It is indeed within the limits of possibility,
as has been already suggested, that the whole system
of bankruptcy and insolvency may be exploded; in
(iii)
 PREFACE.

which event, of course, the entire body of bankrupt

and insolvent law, whether legislative or judicial, falls
to the ground. But, in a commercial age and nation,
there is little reason to apprehend, that the two great

purposes of this law, the equal distribution of a debtor's

property among his creditors, and the discharge of an
honest debtor, after such distribution, from his debts,
will fail to be recognized, with perhaps occasional in-
tervals and exceptions, as among the most imperative
demands of National or State legislation. Whenever
such legislation occurs, there is now on record a volu-
minous body of English and American decisions, made
in construction of former statutes, of which distribu-
tion and discharge were the paramount objects, and
substantially applicable to any new enactment i7i pari
materid, however they may differ in detail from acts
long since repealed. Indeed judicial decisions rather
supply than construe the words of statutes. They
constitute the complement for those innumerable open-
ings, which the necessary brevity of every legislative
act, and the unavoidable imperfection of language,
must leave in all positive enactments, for dispute
and interpretation. Accordingly it will be found, by
any reader of the present work, that the rules and
principles, which the author has attempted to deduce
from English and American cases, rarely depend upon
the precise phraseology of any particular statute, unless,
 PRBFACB. V

indeed, it is so vital to the system itself as to be vir-

tually repeated in all of them ; but are alike applicable
to the successive bankrupt acts of England, to the two,
now repealed, acts of the United States, and to those
insolvent laws of particular States, which, with a few
exceptions necessarily incident to State legislation, in
the absence of a national law, themselves constitute
systems of bankruptcy. And it may be added, that if,
as seems not improbable, for the relief of wide-spread
commercial embarrassment and prostration, and in re-
sponse to the very urgent popular demand. Congress
shall enact a new, and it is to be hoped permanent law
upon the subject; such law cannot, in the nature of
things, be expected to contain many provisions which
are not found in substance in some pre-existing statute,
and which have not therefore been construed by the
English and American courts. If the present work
should afford any aid in the preparation of such a
statute, by exhibiting in a connected form those numer-
ous decisions, found scattered in the reports, which affix
a prospective as well as historical meaning to legislative
terms, or supply applications which no legislative terms
can expressly reach; one of its objects will have been
attained. If, on the other hand, the national legislature
in its wisdom should postpone action upon the subject,
till questions of more engrossing interest shall be
brought to a final issue ; the present work, it is hoped,
VI PREFACE.

whenever that joyful time may arrive, will still be

found useful throughout the country; while in the
mean time it may serve to throw light upon those
State insolvent laws, which have been or may be
enacted, to supply the place of a national bankrupt
act.
Some of the leading bankrupt and insolvent statutes
will be found in an Appendix.
New Yoek, 1863.
 CONTENTS.

I'AWES

Table of Cases Cited xv-xxxiii

CHAPTER I.
Nature of Bankktjptct, etc . 1-17
1. Meaning of the terms banJcrupt and insolvent; analogy and distinc-
tion between them.
3. General purposes of bankrupt and insolvent laws,
5. Necessity and inefficiency of such laws.
6. When proceedings may be annulled.
9. English and American bankrupt acts.
13. Nature of a commission.
17. Constitutional questions in the United States.

CHAPTER II.
Acts op Bankruptcy and Insolvency .... 18-39
1. General rule. Bankruptcy consists in acts.
2. What are aats of bankruptcy.
3. EEFect of an act of bankruptcy upon subsequent dealings — relation.
4. Notice.
5. Whether bankruptcy is a crime.
6. The act constitutes bankruptcy.
8. Act of an agent.
9. A bankrupt cannot set up a prior act.
10. The act cannot be purged.
11. Concerted act.
12. Joint commission.
13. Intent to defraud.
14. Time of the act.
16. Place.
17. Absenting or keeping house.
(v!i)
Vlii CONTENTS.

21. Dental.
32. Departing.
38. Concealment of goods.
39. Imprisonment.
45. Failure to dissolve attachment.

CHAPTER III.

Who may be Bankrupts or Insolvents . . . 40-55

1. General remarks.
2. Trading, whether necessary; question of trading; how determined;
estoppd.
6. Miscellaneous occupations.
8. Whether selling the produce of labor is sufiBcient. Mechanics,
artificers, etc.
9. Innkeepers.
10. Ship-owners.
11. Drawing, etc. of bills.
12. Banking, etc.
13. Selling the produce of land.
15. Single acts of trading.
16. Allegation of the mode of trading.
17. Unlawful trading.
18. Trading in one's own right — executors, etc.
20. Time of trading.
21. Infants.
22. Married women. Provision for them in case of the bankruptcy of their
husbands.
25. Place of trading ; foreigners ; aliens.
27. Form of objecting that the party is not subject to bankruptcy.

CHAPTER IV.

Bankruptcy and Insolvency in case of Partnership . 56-80

1. General remarks.
2. Bankruptcy or insolvency of a partnership — form of proceeding.
6. Bankruptcy, etc. of one partner.
8. Bankruptcy dissolves a partnership. Effect on the right of the part-
ners to dispose of property, etc.
11. Mutual and relative rights of the assignee and the solvent partner.
14. Besidence — jurisdiction.
16. Joint and separate property. Change of title before bankruptcy-
transfer by one partner to the other.
 CONTENTS. IX

23. Joint and several commissiona — joint and several debts— form of peti-
tion— appropriation of assets — double proofs — election of proofs, etc.
31. Whether the partnership may prove against a partner.
32. Different firms consisting of the same members.
34. Choice of assignees, by whose vote.
36. Allowance.
37. Set-off.
38. Costs.
39. Discharge.
CHAPTER V.

Forms or Proceeding in Bankruptcy and Insolvency . 81-100

1. Regulated by statute.
2. The petition ; signature, oath, etc.
4. Notice to the debtor.
5. Proof of the petition.
6. Misnomer, etc.
8. Amendment.
9. Schedules of property and debts.
12. Warrant.
13. Clerk.
14. Meetings.
16. Decree or judgment.
17. Trial by jury.
18. Evidence.
30. Mutual bearing of proceedings in bankruptcy, etc. and actions at law
— right of election.
37. Parties.
CHAPTER VI.

Property op the Bankrupt or Insolvent — Messenger

— Assignment . 101-181
1. Messenger and provisional assignee.
5. Assignee.
6. Who may be.
7. Election.
8. Removal.
10. What property passes to the assignee.
11. Subject to equities; incomplete contracts, etc.
12. Trusts.
14. Possibilities — inheritance — devise.
15. Miscellaneous property — policies of insurance, patents, offices, etc.
19. Liens and incumbrances — equitable liens.
20. Sale, etc. for liens — statutory provisions.
K CONTENTS.

24. Bills, etc. held as security.

27. Lien, on whose property.
28. Lien by legal proceedings ; attachment, judgment, etc.
41. Lien by judgment.
42. Lien by execution.
43. Eights of assignee in case of fraud.
46. Property in the order and disposition of the bankrupt.
49. Leases.
59. Ghoses in action.
62. Claims for torts or wrongs.
64. • Foreign property.
73. Rights of the bankrupt or insolvent in his property; allowance, etc.
77. Time in connection with the assignment, the title of the assignee, etc.
84. Sale of property by assignees.
94. General responsibility of assignees.
100. Conflicting assignments — voluntary and ofiScial assignees.
103. Joint assignees.
107. Successive assignees.
112. Assignees and receivers.
116. Assignment by special order of court.

CHAPTER VII.

Debts in Bankruptcy, etc. — Petitioning Creditor . 182-193

1. Debts — importance of the subject.
2. Petitioning creditor.
4. Question of time.
6. Form of proof^strict.
7. Duties of the creditor.
8. Case of a former commission.
9. Bond of creditor.
11. Parties — husband and wife.
12. Infant.
13. Partners.
14. Foreign creditor.
15. Bankrupt and assignee.
16. Holder of bill of exchange.
17. Executors.
18. Mortgagees, etc.
19. Agent.
20. Sole creditor.
21. Amount of debt — interest, etc.
22. Limitation.
23. Claim must be complete.
24. Consideration.
 CONTENTS. XI

25. Equitable claim.

26. Liquidated.
27. Claim secured by mortgage.
28. Judgment, verdict, award, costs, execution.
30. Payment of the petitioner's debt.
31. Liability of petitioner for costs.
32. When a creditor is estopped from petitioning.

CHAPTER VIII.

Proof of Claims 194-226

1. Rights of proving creditors.

2. Connection betweeij proof and discharge.
3. Whether a special contract is provable — claim requiring a jury.
5. Time of the debt — future debts.
7. Consideration.
8. Illegality.
9. Who muat prove.
10. Mode of proof.
11. Creditor holding security.
12. Amount of debt.
13. Interest.
16. Contingent claims.
21. Surety.
22. Equitable claim.
23. Bonds.
24. Notes, etc.
27. Judgment, verdict, etc.
35. Torts.
36. Dividends.
41. Preferred claims.
48. Set-off.
51. Withdrawing and expunging of claims.
53. Appeal.

CHAPTER IX.

Discharge 227-821

1. Nature, history, and various kinds of discharge.

4. Application of statutes providing for a discharge to pending cases.
Discharges under National and State laws.
9. Discharge in case of previous batikrnptcjf, etc. j assent of creditorg.
XU CONTENTS.

10. Whether judicial or mimstenal ; matter of right or discretion ; form

of proceeding.
12. Necessity of a certificate.
13. Conclusiveness of the certificate ; question of jurisdiction ; notice ;
whether the record is to be offered in evidence.
18. How pleaded ; form of plea and replication ; notice of objections to
the discharge.
25. Fraud, as an answer to a plea of discharge.
26. Duty of creditors objecting to a discharge ; whether estopped by pre-
vious proceedings.
27. Specification of acts of fraud.
28. Concealment of property; insufficiency of schedule.
38. Concealment or misrepresentation as to debts.
39. Estoppel of creditor.
41. General character of the bankrupt.
44. Subsequent promise to pay.
58. Effect of a discharge upon a, judgment.
63. Costs.
64. Continuances of suit in case of bankruptcy, etc. Plea puis darrein
continuance.
69. Release from arrest and imprisonment ; stay or supersedeas of execu-
tion, etc.
74. What debts are discharged — provable debts.
76. Foreign debts ; effect of a discharge under a State law upon citizens
of other States, etc.
89. Debts due the State.
90. Fiduciary debts.
94. Necessaries.
97. Torts.
102. Unliquidated and contingent claims.
106. Eent
107. Surety.
108. Bail, and miscellaneous suretyship.
114. Claim of surety against the principal.
116. Assent of creditors.
123. Effect of statutes, in reference to the time of enactment and Vepeal.
132. Limitation.

CHAPTER X.
Preference ......... 322-361
1. General right of preferring.
3. Statutory provisions against it.
6. Construction of statutes.
7. Amount of property conveyed ; the whole or a part.
10. Whether the conveyance must be in contemplation of bankruptcy
etc.; meaning of the term.
 CONTEXTS. Xlll

16. Pre-existing indebtedness ; agreement for future security; sale in the

regular course of business.
20. Whether the conveyance must be voluntary; effect of pressure or
compulsion.
24. Questions of time in regard to preference.
26. Voluntary assignment for the benefit of creditors.
27. A preference is in general only voidable by proceedings in bank-
ruptcy, etc.
29. Evidence — presumption — burden of proof.
31. Preference by legal process.
34. Notice.
38. Preference by promise to pay a debt.
40. By payment.

CHAPTER XI.

JtJRISDIOTION 362-381

1. General — presumed, etc.

3. Interest — limited jurisdiction — in rem.
6. Change of jurisdiction.
7. Equity.
11. United States Courts ; Local Insolvency Courts ; State Courts —
respective and relative jurisdiction.
17. Commissioners.
24. Appeal, etc.

CHAPTER Xri.

Suits Relating to Bankruptcy, etc 382-405

1. General remarks.
2. Concurrent proceedings.
4 Suit by and against assignees.
19. Limitation.
21. Form of declaration.
23. Bond of assignee.
24. Costs.
27. Evidence in suit by assignee.
32. Suit by bankrupt.
35 Pleading.
46. Proceedings in equity.
47. Set-off.
50. Costs.
52. Evidence.
XIV CONTENTS.

CHAPTER XIII.

Supersedeas 406-414
1. General grounds for, and mode of superseding.
4. Effect.
6. By whom.
7. For what.
14. On whose application.
16. Miscellaneous points.

APPENDIX.

Statutes of Bankruptcy and Insolvency . . . 415

Index.
 TABLE OF CASES CITED.

Arden v. Watkins 110

A. Arnold v. Leonard
Abel V. Sutton 60
FAG£ 171, 172
V. Maynard 10, 334, 335986
Abell 69 412 Arrowsmith
Abraham v. Plestaro 155, 159 161 Artis 205
Adam 48, 75 Arundel
Adams 230 Ashby V. Steere 254, 336, 342, 346
Adams v. Beaman 75, 122 327 Ashley v. Robinson
350 Ashton 249, 190
349
V. Blodgett
V. Porter 402 Assignees, etc. v. Fendall 237
V. Storey Atkins V. Spear
Afflalo V. Fourdrinier 12 Atkinson 73
74
Agawam Bank v. Morris 201
73 Atkinson ■u. Jordan . 329, 333
Ainslie v. Wilson 315 v. The Farmer's, etc 322
V. Purdy
Akhurst v. Jackson 146 368
Alcock 71 Austin V. CaTerly
281
Alcott V. Avery 248 78 V. Denniford 4, 409
321
222 V. Slough 313
Aldrich v. Campbell
Aldridge ». Ireland 29,30 Aylett V. Harford 247
Aldritt V. Eittridge 385 Ayres v. Scribner 96, 214
Alexander
216
52 B.
Alexander v. Vaughan 167 230
Allen
Allen V. Hartley 25
V. Kilbre 63 Babcock 208, 210
Alsop V. Brown 265 Back V. Gooch 193
V. Price 206 303 Backwell's case 1049
Alsopp 216 Badcock
Ambrose v. Clendon 184 Badger
Ames V. Chew 112
127 Bailey 187
338
203
Bagaley v. Waters
V. Wentworth
Baglehole 48
Amphletts 121
Ancker v. Leery 329 Bailey v. Burtu
Anderson v. Anderson 219 V. Seal 291
280
V. Wheeler 292 Bailie v. Wallace 308
Anderton 406 Baillie v. Grant 26,48
Andrews v. Scotton 279 Baker
130 6, 119, 378
V. Southwiok Baker's case
Ansell V. Kobson 143 Baker V. v. Bidgway
Judges 278
Anstill V. Crawford 48
294 276
V. Vining 79
97
173
Anthony Bateman's
Antram v. Chace case 191 V. Wheaton 291
Appleby 69 Ball V. Bowdeu 322
Appling 365 ■1). Thompson 288
Arbouin Ballantine v. Haight
Arbouin v. Hanbury 342 70 Balme v. Hutton 336
344
(xy)
XVI TABLE OF CASES CITED.

Bamford Beaty v. Beaty 191

Bamford v. Baron 28, 33 Beokman v. Wilson
V, Burrell 197, 282 Beekwith 262
21 376
Banchor v. Fisk 288 Beers v. Haughton
Sandier 63 D. Rhea 375 289
83
207 137
212
Bangs V. Lincoln Beeston v. White
V. Strong 281 Belcher v. Campbell
297
V. Watson V. Gummow 20,395
22
Bank, etc. 1). Pritlie 342
70, 75, 199
Bank, etc. v. Horn 108 Belden v. Edwards 332 -125
275 45
297
388
V. Onion Bell ■u.
V. Hunt
Tuttle
Bank of Alexandria v. Herbert 135 V. Young
Missouri v. Pranciscus 282
Ftica V. Card Bellows
Westminster v . Whyte 241 Belton 90
112
Banks v. Greenleaf 288 Belton V. Hodges 48
Bannister v. Scott Bemis v. Smith 225
196, 301 155
Barber Benchley v. Chapin 172
Barclay 186 123
138, 139 Benedict v. Parmenter
68 Beniield v. Solomons 203
Barclay v. Carson 404, 392
V. Phelps Bennett 301
Benny
Barker's case 86, 207 Bennett v. Bartlett
Barker v. Goodair 3
63, 123 Benson 365
• V. Haskell 98, 275, 276
V. Mann 196 Bentley v. Flomer
Benson 150
Barnard v. Eaton 119 7572,73
V. Vaughan 30 Bentley v. Page 395
401
Earned 68 214
Berghaus ». Alter
Barnes v. Billingtou Bernasconi 46
25, 26, 33
V. Freeland Bernasconi v. Farebrother 327
V. Wilkinson 324
300 Berry V. GlengaU 29,46
Barnett 106 Berney v. Davison
Barrow 66, 185, 186 198
Barstow v. Adams Berry v. McLean 301
107, 392
Bartlett 317 Berthelon v. Betts 13 183
Bartlett v. Bramhall 176 Betton V. Allen 226 381
V. Decreet 158 161
352, 357, 358 Betts [Link]
Valentine 9, 155
113 269 291
Barton's, etc.
Barwis 48, 204, 205 V. Lockwood 299
Basarro Bigg
Bevan 7
68, 78
Bass 412 Bevan v. Nunn 225
346
Batchelor v. Vyse 23 Beverly, etc. v. Wilkinson 9, 72
Bate Bigelow t). Pritchard 132
Bateman 70, 78
197, 212
Bateman v. Bailey 30 Bigg 0. Spooner 32
Bates 388
49, 107 Biggs V.
V. Fellows
Cox 70
Bates V. Chapin 38 59
V. West 305 BiUiald
193 414
Bather Billings V. Waters 198
408
Bather Bingham v. Jordan 108
Batson Bingley v. Mallison 184
Bauerman 69 Birch
74
Baxter v. Pritchard 841 Birch V. Tillotson 171
Bayley v. Ballard 344 Bird V. Hampstead 150
V. Schofleld 29 V. Major 213
19
Beadles 83 V. Pierpoint 154
290
Beal V. Burchstead V. Sedgwick 167
58
Beale 410 Birkett
Beals V. Clark 165, 336, 350 Bisscll V. Post 392
Bean 379, 406, 412 Bittleston v. Timmis 221
Beardmore v. Shaw 185 Bivins v. Newcomb 294
 TABLE OF OASES CITED.
XVll
141
267
Blaokbourn v. Ogle Brandon v. Robinson
Blackman v. Green 288 ■ V, Sands 150
Blake v. Bigelow 241, 272 Blaynard v. Marshall 29i
V. Williams 159, 161
158 Brealey v. Andrew 359
Blakes Brearey v. Kemp 153
Blakey 13
82, 185, 187 Breneman 2, 4, 11, 323, 327
Blanchard v. Kussell Brenchley 75
V. Young
160 Brereton v. Hull
91, 363 252
Blane ». Drummond Brett 0. Levett 184
Blandford v. Foote 270, 278 Brewster v. Shelton 100
Bleasby v. Croasley 177 Brichta v. New York, etc.
33, 185 113
Blight V. Ashley Brickwood v. Miller 59
Blodgett V. Hildreth 24, 400
339 Bridges 226
Bloomer v. Darke 122 Brigham v. Coburn 390
Bloxham 243 V. Henderson 288
Blythe v. Johns Briggs V. Farkman 847
Boardman v. Deforest 175, 213 V. Stephens 133
Boas V. Hetzel 241 Brine 183
Bobyshall v. Oppeuheimer 308 Bristow V. Fiastman 177
Bold 406 Brix V. Braham 262
Bolton 68 Broadhurst 190
Bolton V. Williams 49
Bonbonus 66, 75, 107 Bromley v. Goodere ' 203
V. Munda;y 24, 25, 32
Bond 72 Broome 74
Bond V. Baldwin 161, 243, 372 Brook «. Chaplin 259
V. Gardiner 307 V. Wood 265
Bonsor 413 Brooks V. Thomas 353
Book 49 Brouwer v. Harbeck 357
Booth V. Clark 180 Brown 42, 409, 410, 412
Boorman v. Nash 207 Brown v. Brice 103
Borden v. Cuyler 71 V. Chapman 185
Borrodailes 73 V. CoUier 265
Bosler ». Kuhn 306 V. Cumming 403
Bostwick V. Dodge 278 .;. Lamb 5, 202, 203
Botcherby v. Lancaster 348 .;. Rebb 259
Botten 187 V. Thompson 259
Bottomley 193 V. The Branch Bank at
Botton V. Jager 361 Montgomery 277, 280
Botts V. Batton 249, 384 Brown's case 118, 256, 295
e. Lockwood 262 Browne 183
Bourdillon v. Dalton 142 Browne v. Carr 307, 316
Bourne 6, 26, 82, 409 V. Lee 204
Bourne v. Cabot 149 V. Ins. Co., etc. 404
Bouteflour v. Coates 244, 270 Bryant 36, 82, 213, 378, 411
Bowden 120, 122 Bryant v. Withers 184, 191
Bowditch V. Jackson 115 Bryar v. Willcooks 320
Bowers 411 Bryson v. Wylie 138
Bowie V. Jones 241, 242, 364 Buck V. Burlingame 79
Bowness 197 V. Sayles 3
Boyd V. Vanderkemp 281 Buckey v. SnoufFer 130
Boyle 134 Buckingham v. McLean 354
Boyle V. Turner 319 Buckland v. Newsom 186
Boynton v. Lenter ■ 38 Buckley v. Artcher 3
Bradbury 92, 93, 94 Buckner «. "Calcott 378
Bradley v. Miller 72 V. Caleste 76
Bradstreet 408 Buel V. Gordon 314
Braggiotti 80 Buffum V. Green 322
Bramwell v. Lucas 31 Buglehole 406
Branden v. Gowing 346 BuUen 409
Brandon 141 Bumford 18S
Brandon v. Pate 150IB Burbidge 83
xnu TABLE OF CASES CITED.

Burd V. Smith 188 322

Castelli
Burgess 414
Catskill Bank v. Hooper 80, 878
161
Cavalliere 62,199
72
Burk V. M'Laiu 408
Burn V. Carvellio Cawkwell
109 Cawthoru 89, 193
Burnaljy'a case 191
67 Cazenove v, Prevost 284
Burnside v. Brigham 258 Chadwick v. Starrett
V. Merrick 249, 311
Burrow 84 Chamberlain v. Hall 91
Burt V. Perkins 350 Chambers v. Bernasconi 202
162
Burton 66 V. Neal 249
Burwood V. Kant 43 Champion
193 68
Buschall V. Hogg 306 Champneys v. Lyle 221
Bush V. Cooper
Buss V. Gilbert 301 300 Chandler 175
85
Chaplin v. Shoot 43
Bussing V. Eice 103 Chapman ■V.
203 v. Forsyth
Ayery
Butcher v. Churchill 183 344 294, 296
■0. Easto 48, V. Lamphire
V. Forman 73
149 336 Chappell 183
31
302
Butler V. Breck 109,
V. Hildreth Chappie's case
352 Charles
■u. Morgan 98 Charrington v. Brown 192, 212
V. Purnell 42 Chase
114 354
V. Kichardson Cheesewright 84
Butterfell 104 213 Cheetham 379
Butts V. Bilke 409 414 Chemung, etc. v. Judson 366
Byess v. Southwell 183 Chenometh v. Hay 25
Byrne v. Walker 160 Che-valier
Chickering v. Raymond 200
149
Child 148
Chilton V. Cabiness 70
211
c. V. Whiffen
Cabot V. Boardman
Caines v. Brisban 201 Chippendale
Christie
v. Tomlinson
6, 72, 133, 370, 371, 380
342 162
Cake V. Lewis 308 Christie v. Winnington 54
21
168
Calender Chuck 64
Callowell V. Cluttehuck 198 Claffin 'v.V. Cl
Beach
ar
149 Clark V. Calvert k
Camack v. Bisquay 152
Cameron v. Smith 188 407
179
Campbell v. Hancock V. Gilbert
Canfield 99 V. Hatch
Cannan v. The South, etc. 413
27
21 V. Minot 165
168
47 290
Capper v. Desauges V. Potter 387
Garden Smith
V. Tipping 231
Carey v. Conrad 289
Carlton v. Leighton 112 Clarke
Carne v. Brice 164 Clarke V. v. Ray
Clarke 70, 203
412
Carney v. Dewing 13 V. Porter 813
Carpenter
Carpenter v. Thornton Clarkes 37, 363
73
135 189
Carr v. Hilton 112, 114, Clarkson 66
Carrington 389
49 Clason V. Morris 277
115
Carrington v. Holabird Cl eg
279 Claughton
g v. Leigh 70
Carson v. Osborn
379 263
408 Clavey v. Haley 22, 354, 355
Carter 74, Clayton v. Gosling 198, 210
Carter v. Sibley 13 199
V. Warne 142 Cleveland v. Boerum 170, 172, 389
Cartwright 187 386
Caryl v. Eussell 828 Cleverly
275
Clinton [Link] M'CuUoiigh
209
Case V. Belknap Clowes 80
260
66,70
406
Cashing Coates V. Blush
Castell Coburn v. Boston, etc.
75
 TABLE OP OASES OITED. XIX

Cook V. Goodfellow 322 Crabb

Crafts 37,42
Cockerell v. Owstin 213, 308 Craggs V. Mott 208, 313
249
Cooks 202, 211 102
Cookshot 209 320
Codwise v. Gelston 133, 352 Cranston Bank v. Baker
61 Craven v. Edmonson 218
59
Coe V. "Whitbeck
Colien V. Barrett 228, 365 Crawfoot
V. Cunuingham 191 Crawford v. Points 218
380
107
«. Gibbs Crellar
«. Patton 263
268 Cridland 94
Cohoon V. Morris , 316, 409
43
Crisp V. Pratt
Crispe
Coit V. Owen 404
175
Colby V. Coates Cromwell v. Comegys 9,404
67
298
Cole V. Davis 22, 24, 35 Crosby v. Crouch 342, 344
Coles V. Barrow 162 CrossleyV. Wentworth
Colkett V. Freeman 22, 24, 32, 177 34 201
CoUings Croswell v. AUis 333
Collins V. Forbes 418 Crouch V. Gridley 300
Collis V. Malin 45 Crowder v. Davies 3578
Colt V. Wilder 66 Crowninshield v. Kittredge
Combe v. Bruges Crowther 406
Comegys v. McCord 389
19
112 Crump V. Barne
V. Vasse 42, 235
55
Culhane
Commonwealth v. Farmers 83 Culver V. Calender 413
V. Hutchinson 294 Cummiugs v. Bailey 22, 28, 322
29
V. Lelar 169, 391
327 Cundall 98
Compton ». Bedford Cunningham v. Freetorn
Comstock 98, 214 Curteis v. Willis 27,28
Comstock ». Grout 278, 372
184 Curties 231
Conire v. Harris Curtis V. Barnum 130
Conklin v. Leuptin 403
122 V. Leavitt 341, 353
Connell 408 V. Slosson 278
Conway Gushing v. Arnold 366
21 207
74
Conway v. Nail
Cook Cutler V. Day
Cust 275
75, 126, 289
127 V. Middlesex
Cook ». Moffat
V. Rogers 342, 344 V. Taylor 253
Cooke 163 412, 418
Cutten
Cooper V. Chitty 21, 66, 384 D,
0. Henderson 108, 179, 390
Copeland 106
Copelaud v. Stephens 142
Copeman v. Gallant 64 Dally V. Smith 42
Dame v. Holdsworth 90
191
Coppendale v. Bridgen Darling
Corbet v. Poelnitz 3, 4936 Darent 105
Cornwell's, etc. 325, 346, 349 Davis .
Cossens 91 206, 381
Cothay v. Murray 184 Davis
Day V. Living 162
Cotton 49 V. Newton 147, 224
Cotton V. Daintry 48, 54 V. Reynolds
Shapley 229
332
V. James 24, 31
Courtivron v. Meunier 253 Davison v. Farmer
Cousins
193
409 83, 206
Coverly v. Morley Dayton v. Nichols 176
53
Covington v. Hogarth Deadriok v. Armour 57
243
390
Cowan 97, 366
382 Deal V. Harris
Deey
Dearborn v. Keith
Cowgill 364
Cowley V. Dunlop 313 Dechapeaurouge
185 Decoster v. Livermore 105, 389
106
Cox 40
Cox V. Austin 319 211
Coysgrave De Gols V. Ward 184
XX TABLE OF CASES CITED. 42

Demmon v. Boylston Bank 223 Dufaur

Den V. Wright 304, 396 Dufrene 23, 25, 26, 36
Denham's case 28 Dulaney 337,. 866
Dennia v. Sayles 88, 214 Dumas v. Hoffman 376
Denny v. Dana 8, 19, 336, 346, 352, 358 Duncan v. Darst 47, 138
Denston v. Morris 366 V. Sutton
Derry v. Mazarine 49 Dunkley v. Dunkley 314
61
883
De Tastett 105, 106, 120, 121 Dunn V. Sparks
De Tastett v. Carroll 59 265
Devas v, Venables 356 Dupuy V. Swart 174, 177
During's appeal
Devisme v. Martin 160 Dutton V. Freeman 100, 200
Dewdney 26, 188, 410 V. Morrison 58
Dexter v. Snow Dwinel v. Perley
!). Stewart 4, 359
117 136
Dey V, Lovett 220
Diamond 381
Dick 414
Dick V. Powell 294 £.
Dietus V. Fuss 326
Diinsdale 95 Earle 222
Dinsdale v. Eames 270, 288
273 Earnest v. Parke 333
Dinsmore v. Bradley Eastman v. Eveleth 217
Dixon V. Evans 184 V. Foster
Doane v. Russell 392
123 Eckersley V. Hillard m219
263
D'Obree
Dobson 261 Eokhardt v. Wilson 63
Dodge V. Sheldon 350 Eckstein v. Shoemaker 12
58, 348
Dodgson Eddie v. Davidson
Dodsworth v. Anderson 53
73
142 Eddy's case
Doe V. Andrews Eddy V. Ames 317
381
V. Ball 351 Edgar v. McArn 255
V, Bevan 141 Edmonson
397 Edmonson v. Parker
V. Bluck
■V. Bouloot 24 Edwards 105, 185,6,409
351 Edwards «. Coleman 25
V. Britain 135
V. Carter 141 ■u. Mitchell IB
V. Gillitt 342 V. Sumner 130
111
1^. Boe 120
XI. Smith 141 Eggington
Eicke V. Nokes
Doggett V. Emerson 276 Elderkin v. Elderkin 383
Dole V, Bodman 348 Elford ..
314 ElUott V. Clayton
V. Warren 163
Ellis 383
Donelly v. Corbett 17, 236
411 82
Donovan Ellis
Em V. Russell 47,74
Emer
lyy
Elton
Donovan v. Duff
Donthat 68,412
69
187, 192
24 408,
Dornford 2443 Enderby
Dorsey v. Maury 377 64
Doswell V. Impey 177 Englebert ». Blanjot 186
English 74
205
Douglas V. Brown
Dowman 198, 205 Enuis V. Halse
Downer v. Brackett 168, 195 Ensign v. Briggs 168
V. Rowell 247, 251 Evans ».v. Brown
Carey 38,66
162
Downes 120
859 265, 267
289
Downs V. Lewis V. Mann 390
Drake 406, 414 V. Sprigg
Manse
162
Drayton v. Dale 392
Dresser v. Broolcs 50
195, 245 Everett v. Backhouse 162
Drew V. Long V. Stone 133, 346, 351
Dubois 90, 199 Ev?rhard 277
Dudley v. Vaughan Ewing V. Peck

279
 TABLE OP CASES CITED. XXI
F. Frith 96
Frit(s V. Doe 319
Falconer v. Griffith 333, 357 Furey V. Carter
Frost 315
Fales V. Thompson 150 Fuller V. Hooper 216
Fall River, ^tc. v. Sturtevant 59
Farnum FurtresB v. Markle 313
Farrenden 189 71
230
71
Farrington v. Farrington 404 Fydell G.
Fawcett v. Fearne 21, 137
Fenelon ». Lonergan 355, 356
Fern v. Gushing 181
Fessenden v. Willey 291 GaleGang V. Vernon 398
Fetter v. Oirode . 272 Gales
Fidgeon v. Sharpe 329, 332, 334, Gallimore 1966
277 6
386, 842
Field V. Howland Gardener 6
Field's case 263 Gardiner
Pinchett v. Howe 192 Gardner
85 Gardner v. Clark 28, 406
89
176
Finney v. Cecil t>. Hooper
Fisher 84 V. Way 113
Fisher v. Boucher 28, 32 V. Nute
V. Currier 3, 17, 243 47
238
169, 237, 239270
V. Fobs Gardom 206
Fisk 1). Sarber 171 Garland
292
Fiske V. Foster Garnett 406
V. Hunt 108 126, 127, 264 367 Garnett v. Moule 414
82
Fitzgerald v. Alexander Garratt v. Biddulph 322
Flagg V. Tyler 123, 311 Garretson v. Brown
Fleming v. Hayne 265 Garwood 387
361
Fletcher 142
137 Gary v. Bates
Fletcher «. Manning Gates V. Campbell 239
11. Morey 108, 116 V. Mack
V. Neally Gedge
263 Geddes v. Mowat 80, 243
183
413
Flight
Flood 376 Geller
174, 148 122
183
Flood V. Finlay George v. Summers 280
Flourney v. Newton 164, 249 96 Gervis v. Woottou
Flower Gibbons v. Phillips 89, 332, 334, 344
Fogg V. Willoutt 168, 341
185 V. Wendover 133
Folks V. Scudder Gibbs V. Gibbs 89
413 132
Forth V. Thayer
20
Foster 183 Gibson V. King
9, 32, 124 66
171
Foster v. Goulding Gibson v. Boutts 327, 336, 342
V. Remiok 89,41090
Fowler v. Coster 209 V. Muskett 334
V. Kendall V. Thompson
V. Padget 22, 25, 32,310 34 Gilbert v. Hebard 46,23854
e. Treadwell 407
Gile 412
Fox V. Hanbury 35, 59, 63 Giles
V. Paine 360 Giles V. Powell 147
198
184
V. Woodruff 278 Gilham v. Locke
268
Francis v. Ogden Gill V. Oliver
Franks 50 V. Scriveus 97
116 Gillett V. Bippon
Frazer v. Hallowell 306
Freeman 66, 70, 81, 410 1Givens v. Bobbins 193
Freeman v. Warren 272 Glaister v. Hewer 188
French v. Howard 173 Glasgow V. Sands 178
V. Morse 301 Glassington v. Rawlins
25, 36
367
Freshney v. Carriok 139, 141 Glenn v. Boston 288
256 u. Fowler 293
Freydeburgh's
Frisbee case 86 V. Humphreys
1 C
xxu TABLE OF CASES CITED.

Glenn v, Karthees 178 Groom 164

Glossop 185 Groome v. Potts 122
Glover Grosvenor 96
117
191 36
144
Glyde Gudgen v. Bassett 29
Glyn 406
Gull 234
Goddard v. Vanderli«yden 172
314 Gulston
Goding Gunningham v. Laing
Godling V. Godling 198 248
Gupton V. Connor 187
Golden v. Prince 12 Guthrie 84
Goldsmid 68, 76 Guthrie v. Fisk , 251
Goodall 78
353
Goodhue v. Hitchcock 374
Gooding v. Oliyer H.
Goodman 123 27
Goodtitle v. North 216 147 Haddon v. Chambers 315
282, 297
Goodwin Hague
Goodwin v. Lightbody 146 63
•D. Stark 137
309 Hague V. Bolliston 359,
342
Haldemau v. Michael
Gordon v. East Hale 192
V. Wilkinson 36
335 Hale V. Allnutt 328 342
Gorham v. Stearns 218 V. Small 46
Gottschalk v. his Creditors 218 Hall 34, 62, 74, 78, 84, 188,
Gough 25 412
Gouthwaite 275 Hall V. Boardman 410 290
Goward v. Dunbar V. Gill
■V. Fowler 311
Grafton, etc. v. Bickford 364, 366 169
Graham 277 ■V. Sewall 27
192
396
84, 216
Graham v. Benton 339 V. SmaUwood
V. Chapman Haller v. Homer 103
V. Furber 139 140, 409
345 Hamber v. Hall
V. Grill Hamersly e. Lambert 28S
V. Pierson 277, 300 Hamilton v. Atherton
Grant 6, 111 118, 164 V. Chevalier 318
404
66 306
Grant v. Lyman 131, 132 Hamlin v. Hamlin 117
V. Mills 277 Hammond 234
Grave v. Bishop Hammond v. Hicks 887
28
Graves 185, 404
413 V. Rice
Graves v. Delaplaine V. Toulmin 196 301
Gray v. Bennett 4 108, 151
383 Hancock v. Entwisle 204
■1/. Coffin 346 Handy v. Carter 312
V. Schroeder Hankey v. Jones 46
Grazebrook Hankiu v. Bennett 204 804
Greaves 121
74 Hanson v. Paige 57
Green 183, 410 V. Stevenson 257, 143
Green s). Bicknell 196 Harcourt
Harding 6
i>. Bradfield 287
329 214
V. Sarmiento Harding v. Stevenson 64
295
200 Hardison
Greene
244 Hare 351
Greene v. Durfee
Greenough v. Whittemore 88 Hargreaves 75
Greenshields 80 Harlow v. Tufts 326 881
Greenway 188, 200 Harman 84
Harmer v. Davis 278,
Greenway v. Fisher 300
120 89
Greenwood Harmon v. Clark
Greenwood v. Churchill 348 V. Fisher 57, 64. 324
77
Gregory v. Mertin 409, 410 Harrington v. McNaughton 269,
184 31, 74,
Gresley
Gr ey v. Price 106 Harris
218
282
Griffiths 42, 191, 898
379 Harris v. Collins 889
Griswold v, McMillan V. Mandeville
V. Pratt 13, 15 Harrison 89, 211, 217
286
20, 42, 44, 46,
 ■TABLE OF OASES CITED. xxm

Harrison v. Sterry 63, 114, 128, 154, Hinton v. Hinton 47

161, 220 Hitchcock V. Sedgwick 53
Harrman v. Spottiswood 22 Hoag V. Hunt 155
Hart V. Strode 396 Hoane f . Conyton 89
V. White 192 Hobart v. Haskell 98, 274
Hartshorn v. Sloden 332, 342 Hodge 94
Harvey v. Crickett 59 Hodges V. Chace 299
V. Bamsbottom 31, 83 Hodgkinson 70, 82, 185, 199, 409, 410
Harwood 225 Hodgson 69, 117
Harwood v. Keys 6 Hodson 41, 406
Hassels v. Simpson 323, 327 Hoffendahl v. Evers 88, 184
Hassinger 90, 100, 324 Hofifman v. Foudrinier 206
Hastings v. Belknap 350 Hogan V. Hutton 54, 250
V. Fowler 106, 373, 390, 396 HMbrook v. Bassett 341
V. Wilson 143 V. Foss 271
Haswell v. Thorogood 274 «;. Jackson 88, 336
Hatten v. Speyer 298 Holderness v. Shaoklesels 63
Haviland v. Cook 410 Holding 184
Hawkes v. Dunn 102 Holding V. Impey 276, 300
V. Sands 33 Holland v. Palmer 358
Hawkins 105 V, Seaver 391
Hawkins v. Saunders 82 Hollingworth 239
Hawsou V. Paige 393 Holmes v. Bemsen. 154, 158, 161
Hawthorn 189 V. Wainewright 185
Haxton v. Corse 272 V. Woodworth 402
Hayden v. Palmer 229, 323 Holroyd v. Gwynue 22, 28
Hayllar v. Sherwood 897, 408 V. Whitehead 28
Hayman v. Pond 294 Hood 411
Haynes 78, 215 Hoo^ier 412
Hayton v. Wilkinson 308 Hooper v. Smith 21, 25
Haywood v. Chambers 358 Hope V. Booth 144
Heane v. Rogers 399, 412 V. Meek 183
Heath 92 Hopkins 406
Homing 413 Hopkins v. Banks 149
Henbest v. Brown 184 V. Ellis 35
Henderson 48, 67 Hopper V. Eiohmond 26
Hendricks ». Judah 307 Horn V. Baker 64
Herbert 46, 47, 109 V. Ion 249
Herbert v. Sager 397 Hornby 226, 412
Herndon v. Givens 265 Horner v. Speed 265
Hesham 75 Horrocks 84
Heskuyson v. Woodbridge 315 Horsey 73
Heslop 140 Horsley 83
Heslop V. Baker 139, 141, 167, 239 Hoskins v. Duperoy 184, 198
Hesse v. Steyenson 113 Houle V. Baxter 210
Hewlett J). Hewlett '90 Houston V. The City Bank, etc. 370
Hewson v. Heard 26 Hovill V. Lethwaite 111
Heywood v. Beed 336, 357 Howard v. Crowther 150
Hiokley v. Farmers, etc. 356 V. Jemmett 47, 200
Hicks V. Burfitt 193 Howe V. Lawrence 65, 70
■u. Hotchkiss 289 V. Sheppard 220
Higgins 89 Howell 191
Higgins V. McAdam 20, 36 Hoxtun v'. Corse 96
Highmore v. MoUoy 42, 44 Hubbard v. Smith 246
Hill 69, 70, 412 Hughes 99
Hill V. Cowdery 140 Hughes V. Gilman 32, 38, 84
Hill V. Harris 184 V. Morris 171 j 172, 174
Hilliard «. Allen 110 V. Oliver 299
Hines v. Ballard 242 Hull 367
Hinton 70 Humphries v. Blight 209
Hinton v. Acraman 204, 303 Humphreys 218
XXIV TABLE OF CASKS CITED.

181 Jones V. Brown 396

Humprey's case 277 V. Horsey 287
Humphreys v. Knight 286 384
Hunnewell v. Goodrich 119 V. Howland
Hunt 235 Jordan 335
Hunt «. Benson Joseph 8, 330 253
V. Mortimer 339, 842 Joseph v. Orme 3, 90 320
313
Hunter 64, 66, 75,154
89 96
74 Joseph Richardson 181
Hunter v. Potts Journeay v. Brown
V. United States 185
317
146, 221 V. Gardner
Huntseoker v. Bering 136
Hurst 349 Joy V. Cossart
V. Wager 183
177
Hurt V. Biggs Judd V. Flint
Husband 70, 72, 73 V. Gibbs 352
Hutohins v. Taylor V. Ives 16
334, 346
138
Hutchinson v. Reed V. Lawrence 114
Button V. Cooper 133 27
Button V. Crittwell 341 Judine v. Da'Cossen 53
V. Self 108 K.
Hyams v. Valentine 326
HylUard 189, 190
66
308
I. Kane ». Ingraham
V. Piloher
Kedie 266
392
296 Kelley v. Pike 216
Hsley V. Merriam
Ingalls Kellogg V. Schuyler
78 Kelly ■0. V. Holdship 388
Ingliss
Irving V. Grant ' 27, 53, 323
96 Smith 368
Ishester 211 Kelton V. Phillips 207
Kemp V. Hurry
V. Potter 298
258
J. Kennedy v. Strong
Kensington v. Inglis 187
96
Jaokman v. Nightingale 32 Kensington Bank v. Wilkinson
42
Jackson 64, 69, 104 118, 119, 187 Kenyon v. Worsley 263
Jackson v. Gamp 48 Kernet v. Cattlin 263
V. Chichester 402 Kerney v. Smith 113
V. Irwin 184, 193 Kettle 4). Hammond
Jaoohson v. Williams 47 Key V. Cook 184 348
James 107, 184 V. Flint 392
270 ■u. Goodwin
Jameson v. Camplsell K 'u. Shaw 225
V. Chesnut 174 i n g 184
■u. Eamer 34 Kimball v. Loring 30, 87
34
Janson 69 V. Morris
Jarrett v. Leonard 89 39, 82, 85, 94
Jeeks 413 King V. Dietz 206
Jelfs V. Ballard 409 V. Egginton 73 241
Jellis V. Mountford 247 V. Leith 36
198
Jenkins v. Stanley 186 B. Wcstendorf
Jenks V. Stebbins Kirby
242 Kingston v. Wharton 321
Jepson Kip V. Bank 266
Jewett V. Preston 170
78 92
V. Woodward 99 Kirk 111
Johns Kirkpatrick v. Tattersall 412
Johnson 104, 230, 75 Kitchen v. Bartoh
411 163
262
Johnson v. Ball 240, 400 Kittredge v. Warren
V. Pitzhugh 269, 271, 388 Knight 128
4). Smiley 173 Knowell 97.410
98
Johnston v. Woolf 23 Kohlman v. Wright
Jollet V. Depouthier 159 Krumbaar v. Burt 118
244
Jones 64, 71, 406 Kunzler v. Kohaus 11

,274
 TABLE OF OASES CITED. 137
XXV

L. Lingard v. Messiter 35
214
272
Lingnard v. Hibbertson
Labron v. Woram 275 Lingood
Labrooke 70 380
Lacey Lingwood v. Bade 200
104 Linton v. Stanton
Lackiugton v. Elliott 21 List's case
Lacy V. Rookett 386 401 Livermore v. Bagley
V. Woolcott V. Swasey 132
392
Laffert 257
59 Livingston ». Livingston 8, 35
Laforest Lizardi v. Cohen 200
283
Lamb v. Fries 158 Llewellyn
75 302
Lambert v. Slade 100
257 Lloyd V. Heathcote 31, 32
u. Smith Loan, etc. v. Capron
Lancaster, etc. 206 302 Lobb 264
Lanckton v. Woloott 121 Long
Lobb V. Stanley
Lane 42, 70, 72, 185 236 354 Loines v. Phillips 217
86, 309
70
Lane v. Haynes 386
Langmead v. Beard 276 Longford v. Ellis 215
Langston Longman 295
379 Lord 810
Lansing v. Prendegast 814
Laroche v. Wakeman 162 Loring v. Eager 78
Larssent v. Bibby 320 Lothrop V. Tilden
Lash V. Miller 247 252
389 Loughry v. McCullough 79,245
85
Lathrop v. Stewart Love V. Hill 166
Lavender 406 Lovett V. Cutler 395
Lavie v. Phillips Lowe 117
41 Loxley
9,49 Lowry v. Morrison 6, 217
365
Lawrence 73 216,
Law -
Lawson v. Kobinson 184 Lucas V. Morris 368
.,. Wright 483 Lummus v. Fairfield
Luther v. Deyo 8, 299
240
Laytou 69 Luton V. Bigg
Lazarus v. Waiihman 34 350
42
Leaf Lyall V. Miller
Leake v. Young 340 Lynbury v. Wrightman 265
Lecompte 205 Lyon V. Marshall 261
Ledbetter v. Salt
Lee 36 189 Maag
89 47
Lee V. Hart 340
358 M.
V. Kilburn 2
V. Phillips 275
V. Sangster 373 385 Mabry v. Herndon 294, 873
Leeke 200
410 Macarty v. Barrow 210
30 Macbirnie
Lees, etc. 51, 302
199
Lees V. Marton Mace V. Cadell 138
Leicestershire, etc. V. Wells
Leigh 412
72
207 Mack V. Proctor 138
Leland v. Marsh Maggot V. Mills 43
Le Roy v. Crowninshield 287
41 Maggs
Mair v. [Link]
Hunt 26, 320
Leslie 110
Lester v. Thompson 241 Mallory v. Snow 155
Lewes 191 Man V. Lowden 252
Lewis 54 411 Manahan v. Sammon 134, 366
Lewis V. Piercy 273 Mangam 84, 185
V. Shattuck 275 Mann v. Drost 213
Leworthy 410 V. Houghton 287
276
Liddell Mansfield v. Andrews
Like V. Home 412 Maples 246
70
309 Marcus V. Burnside
Lilley v. Torbet Marks v. Barker
Linkcer v. Ayeshford 138 258
383 223, 405
Lindsey v. Hunter Marlar 5,38
202
145 Marmelman v. Caen
i>. Limbert 283
XXVI TABLE OF CASES CITEDi

Marsh v. Putnam 290 Mendel 188, 385

106
Marshall 204 Menham v. Edmonson 160,
220 Mercer v. Wise 159, 412
Marshall v. Barclay
v. Barkworth 25 Mcrriam v. Richards 318
V. Lamb 323 V. Sewall 81 365
V. Rutton 49 Merrick , 83, 178
V. Sharland 223 Merrick's, etc. 24, 399
Marson v. Barber 185 Merrill v. Tamany 275
883
Martin 121 Merritt v. Arden
Martin v. Ballard 234
V. Drumm 216
325 Meymot V. Hughes 78, 42,352
92
151
Michell
Marwick 308
187 Middlebrook v. French 107,
Mascarnas 69 M ilbran 1876
Mason v. Benson 267 Miles V, Bawlyns 184
V. Kughart Millar 381
Masson 70, 73 213 Wills 25
208
Masterman 6 Mills V. Auriol 306
Mather 186 ■V. Bennett
199 159,
Matheson V. Elton 147, 30 3,
Matthews 231 V. Hughes 198, 44
87,
Mavor 26, 2871 Milmhurst 413
Milne v. Moneton
Mavor v. Pyne 184 Milnor v. Metz 41, 161
Maxim v. Morse 266
May V. Breed 15, 285, 286 288 Mims V. Lockett 1663
V. Dawson 86 Minchin 205
203
Maylin v. Eyloe 35 Mlnet
Mayo V. Archer Minot V. Brickett 238
387
41, 306
42 V. Thacher
Mayor v. Steward 368,
McAllister 87 Mires v. Smith 325
McAllister v. Richards 334 Mitchell 108, 357
199
V. Samuel 166 Mitchell V. Black
McAlpin V. Newell 263 V. Great Works, etc.
Mogg 2,
McArthur v. Chase 114 2
McCabe v. Corney 401 V. Winslow 347
369
McCauseland v. Waller 308 Mitford V. Mitford
McCormick v. Pickering 246
298 185
109
McCullough V. Caldwell Moggridge
MoDaniel v. King 62 Moline 151,
268
Moody V. Wright 375, 199
McDoland v. Ingraham
McDonald v. Hansen 173 Moon V. Raphael 211
393
277 Moore 171, 110
165
McDougald v. Reid 74. 75.
McEweu V. Gibbs 404 Moore v. Jones
McGennis V. Waller 190, 384
882,
412
308 307
McGlesney v. McLear Moran v. Hays 384
•^t

Mclntire v. Maynard 132 Mordecai v. La Rissey 83

McKenzie v. Garrison 325 Morewood v. Hollister 243
McKim V. Willis 293 Morley v. Brundi-ett 342
McLeod V. Kirkham Morgan V. Horsman 366,
86
283
McMenomy v. Murray 245, 410
346 Morris 336
V. Roosevelt 322, 336 287 413
McMillan v. McNeill 257 Morris v. Briggs
McNair v. Gilbert Morris' estate 295, 215
367
407 410
McNeil V, Colquhoon 161 Morrison v. Woolson
288 Morse V.
«. Hovey
Cloyes 9.
McNeilly v. Richardson 242
Mead v. Braham 4<),388
50 296
11
V. 363
Mear 99 303 V. Lowell
Presby
Mechanics' Bank v. 309 194
V. Capron
Hazard 276 189 V. Reed
318
Morton
Medlioot's case 186
Meed v. Nelson 201 Morton v. Austin 148
Meggott V. Mills 42 V. Richards 196

78
 TABLE OF CASES CITED.
272
o. XXVU

Mosby 0. Steele
Moser v. Newman
Moule 48
36
Moult Oakey v. Bennett 158, 308
159
Oakley v. Steddiford 184
Mower v. Kip Obbard v. Betham
Muir V. Schenok 183
149 O'Brien v. Currie 48
Mullikin v. Aughinbaugh 70
159 V. Dow 288
Mumford Ogden V. Cowley 403
Munk V. Clark 216
26.5
400 V. Harris 281
Murklow V. May 24,31 V. Jackson 161
v. St. John ■V. Saunders 324, 337
245 Ogilby 74
Murphy V. Richards
Murray 203 Olcott V. Lilly
Murray v. De Bottenham 283 Oliver 92 308, 309
V. Marsh 350, 411
389
395, 405 Oliver v. Smith
V. Murray 61, 63 Olyphant v. Atwood 159, 289 285, 286
V. Reeyes 193 O'Neil V. Glover 23, 36, 81, 82, 84,
V. Riggs 222, 403 188, 190
Muskett ti. Drummond 183 Onslow V. Corrie 148
142, 145
Mutrie 29, 58 Ontario Bank v. Mumford 220
Muzzy V. Whitney 244 Orford
206 Osborn v. Baxter 170
Myers 364
Osborne
29, 31
Osgood V. Fernald
Otis V. Gazlin 262, 207
263
Overseers v. Warren
300
Nash V. Bouth
Nash V. Drew 105
109 P.
Neale TO- 157
218
Neale v. Cottingham Paddy
Neate v. Ball 324
Nelson v. Chernell 409 187
V . Pierson 174 Page 69, 98, 102, 108, 190
Nesbit V. Greaves 108, Palmer 413
Newhall 803 Palmer v. Dayton
109, 299
169 184
26
Newhouse v. Commonwealth V. Morse 381
Newman 28
281 Parker ■u.
v. Manning
Crole 8
Newman v. Stretch
Newton V.v. Tr
Chantler 344 V. Muggridge 57
igg V. Norton
43, 47, 48, 54 V. Phillips 298, 301
Nias V. Adamson 59
Nichol V. Nichol 162
172 V. Ramsbottom
Nichols 406 Parkinson v. Scoville
Nichols V. Bellowes 151 Parry V. Goodwin
Parks 269, 290
278
78
NichoUs Parr
881 83
Nixon u. Young 263 122
Nobes V. Mountain 94 Parry v. Jones 114
Noble V. Johnson Partridge v. Hannum 392
Norcott 242
406 Patten v. EUingwood 263
Norcross 183, Paxton 123
58, 60
Norman v. Booth 184, 896 Payson v. Payson
Norris v. Goss Peabody v. Harmon
Northam 241
411 Peacock 91, 81
94
Peake 122, 123
Norton v. Boyd 871
Nowers V. Colman 277 Peaker 65,406
66
Nowlan 92 Pearce 100
Nunn 120 Pearsall v. M'Cartney
276 Peck V. Jenness 261, 385
329
129
Nunny v. Hall
Nutt Peel V. Ringgold
47, 414
 TABLE OF OASES CITED.

Price V. Ralston 191

138
Peele 82, 185
Pemberton 66 Prideaux 25
Pennell v. Roy 155 Pritohard v. Chandler
Penniman v. Cole 350, 351 Prosser 368
890
V. Freeman 397 Pressor v. Smith
Prowse
■,,. Meigs 287 Pugh 95, 413
257
V. Norton 248
880
People V. Abel 229 Pugh V. Hookham
V. Beheman 82, 368 Pulliam V. Christian 51
■o. Herkimer 293 Pulling V. Tucker 334, 336
V. Spalding 299 Purple V. Cooke
V. Strylcer 85, 99, 241, 260 Purviance v. Glenn 363, 364
V. Underwood 405 Purvis V. Robinson 251
People's,
Perkins [Link]. v. Paterson 325, 340, 342
Webster 343
Perley v. Dole 397
Perring v. Tucker 406
Perry v. Brown 132, 374 Quantock v. England 188
Pesoa V. Passmore 280
Quartermaine v. Bitterstone 140, 171
Pettee v. Coggeshall 353
Phillips V. Hopwood 26, 409 H,
V. Eussell 295
V. Sheriff 35 Raffey Q.
Phillpott V. Corden 409 609
Phoenix v. Ingraham 329, 330 132
Pierce v. Eaton 269 Ralston v. Bell
Pike V. Lowell 170 Ramsbottom v. Cator
V. McDonald 270 V. Duck 186
59
Pingree v. Comstook 323 Ramsey v. George 185
Pitkin V. Thompson 307 Rand v. Upham 89
254
Randall
Planters', etc. v. Conger 384 Randall v. Barton 147
Pleasants • 81 411
Randon v. Toby 213
Pleasants v. Meng 35 20
Plowden 75 Rank 288
Pooock V. Russell 193 Rashleigh
Poe V. Duck 287, -288, 289 Rathbone v. Blackford
Poland V. Glyn 322 Rawson 74
PoUitt V. Parsons 229 Rawson v. Haigh 81
222
Pollock V. Pratt 312 Raymond v. Johnson 397
Poole 408 Read
• Port V. Turtin 48 Reader 203
Porter v. Miller 363 Reed
Reed v. Gordon 72
■V. Porter 262, 265 ■a. Frederick 411
V. Walker 392, 393 266
242
Potts 23, 339, 361 V. Vaughn
Pouoher 215 Reed's case 22
408
242
Poulsou 66 Regina ■V.
v. Hill
Gordon 83 377
Powell 79, 217
Powell V. Knox 255, 258 V. Sands 395
Power V. HoUmau 390, 398 V. Scott 92
Powles V. Dilley 353 V. Sloggett 365
92
V. Hargreayes 219 Reid
Pratt 91 Reily ». Lamar 289
Pratt V. Babcook 272 Beapublioa v. Clarkson 72 241
V. Russell 264 Revere v. Newell 317
Prentice v. Richards 4, 296 Rex ■u.
V. Cole
Bullock 24, 87
412
Prentiss v. Kingsley 306 V. Page 31, 41148. 55
Prcsoott 123
V. Whalley
Preston 82, 49 102
Prewett v. Oaruthers 265 Reynard v. Robinson 342
Price 414 Reynolds
106
 TABLE OF CASES CITED. XXIX

Eioe 104 S.
122 69
Rice V. Dewy
V. Sims 89 Sackett v. Andress
V. Wallace Sadler 187
274
Richards v. Meriam 88, 316 Sadler v. Leigh
99, 376
47
V. Nixon 248, 275 Sadlier v. Fallen 247
375
Richardson Salters v. Tobias
Richardson v. Bradshaw 41,44
308 3
Sampson v. Burton 213
V. Mclntyre V. Clark
V. Wyman 201 Samuel Hopkins 267
376
Riddles v. Mitchell 308 Samuel v. Cravens
Ridley v. Gyde 342 Sanbourne 83
Ridout V. Brough 221
322 Sanders v. Smallwood 254
Riggs V. Murray 185 Sanderson v. Laforest
Rimene 297 V. Rowles 43
Rindge v. Breck Sands v. Codwise 136, 179, 352
32
Binglands v. Spaulding 272 Sanzmerez 294
159, 230
Robb V. Powers 280 Sarden v. Galewood
Roberts Sargent v. Fitzpatrick 221
107, 184
Roberts v. Albany 181
187 Saunders v. Boho 308
». Hardy V. Williams 397, 282
239 Say
Saunderson v. Gregg
■«. Morgan 36
V. Teasdale 25 Savage v. Marsh
Robertson v. Liddell 25, 34 Savory v. Stocking 306
292
Robinson Savytelle i>. Rollins 118
398
69, 74
95
Robinson v. Crowder 161
V. Richardson Sohmalding 199
V. Vale 212, 276, 299 Schofield
Scholey 105
83
V. Wadsworth 255
Robson V. Bolls 28 Sohonwald v. Capps 164
V. Calze 358 Schooling V. Lee 32,37
V. Jonassohn Schoudler v. Wace
Eoch 203 Scott 142
113
Bochford v. Hackman 2809 Scott V. Grant 395 272
Roden v. Jace V. Leather 396
Rogers 211 0. Thomas 288
342
Rogers v. Allen 158
187 Soribner v. Fisher
■V. James Scull V. Alter 65
■0. Western, etc. Seavey v. Stoughton
Seaman 331, 350 400
259, 268
Eolfe V. Caslou 313 103' 287
Roosevelt v. Mark 8, 265, 303, 314 Selby
Sebring v. Mersereau
Rose V. Hart 66, 70
221, 223 Seddon 78
V. Main 217 240
V. Rowcroft 183
183 287
Selfridge v. 225
Roseboom v. Mosher V. Gill
Lithgow
108, 170
Ross V. McJunkin 169 Sells V. Hubbell 384
Rowe Senior 54
Rowell 31 Sewell 377
329 Shadbolt 280
Eowlandson 66, 72, 73 83
Roxby Shaeffer v. Childs 172 128
Ruby V. Glenn 166
70 Shaffer v. M'Maken
Ruckman v. Gowell 246, 253, 279 Shakeshaft
Sharpe 75
Ruffin 64 98
Rufford 232 Shaw 104 32
106, 107 188
411
Shaw.w. Harvey
Rugan V. West 378, 395
V. Thompson 357
Rugeby v. Robinson 169, 373
Russell V. Williams 6
164, 220
Eutledge Shawhau v. Wherritt
Ryall V. Rowles 66
84 Shelton v. Codman
144 ... Walker 106
Ryerss v. Farwell 132
XXX TABLE OF CASES CITED. 37

Sheriff v. Buckner 85 Soames v. Watts 210

Sherman v. Barrett . 6, 86, 87 Sohier «. Loring
V. Reigart Solomon 73 120
112 280
Sherrill v. Hopkins Somers
Shirley v. Long 108 288
136 South, etc. V. Burnside
Shoemaker v. Keely 150 Soutten V. Soutten 307
302
Shore v. Edgell Sowley V. Jones 276
■ 72
Shuttleworth 186 263
307, 328
211 Sparrow
Siddiard Sparrow v. Caruthers
316 401
Sigourney v. Williams Spaulding v. Hood
Silk V. Oshorn ■u. Billing 174
49
162
22 Spencer v. Beebe
Sill V. Worswick
Sillitoe 288
131
Sprague v. Wheatland
Simpson 78 214 25
348 Springer v. Foster 384
Simpson v. Sikes V. Vanderpool 132
82, 183 75
Sinclair v. Smyth 372 147
Skaife v. Howard 392 Sprye v. Porter
St. Barhe
Skinner 218 Stacey v. Frederic 276
Slater 226 Stadgroon 43
75
Sleeper v. Miller 305 Staff 6
Sletor V. Oram Stafford v. Clarke 50
31
321 Stamp
Slidell V. McCrea 47, 189 Stammers 84
Sloan V. Apgar 172
Small V. Graves 260 Stance
V. Marwood 193 Stanton 378
231
V. Dudley 120,
322 Stanton v. Collier 388
Smallcombe v. Bruges V. Ellis 373
Smith 27, 53, 66, 68, 70, 74, 75, 83, 410 89 V. Smith
206, 226 , 273, 409, 265
186
Staples
Smith V. Bahcock 298
128 Stark V. Stinson
V. Brown State V. Bethune 254
V. Brownhead 6 185 V. Harris 220
V. Blackman 183 V. Sherman 320
397
■V. Shinn
V. Bennett 246 294
283 •«. Walsh
V. Buchanan 284
328
V. Carman 42
147 V. Ward 279
■u. Chandler V. Williams 371 384
V. Coffin 151 Stebbins v. Sherman 262
V. Currie 32 V. Wilson
V. Eaton 155 Stedman v. Martinnant 313
274
V. Gale 314 Steele 147 257
191
V. Gardiner 292 Steele v. Towne 6, 107
141
■u. Gordon Steene v. Aylesworth 405
V. Hill 162 Steiner 116
V. Hodson 224 224
324
188, 177 Steiner's appeal 80
V. Jamesons 84
Stephenson
V. Milles 385 Stetson V. Exchange, etc. 109 110
V. Moon 33 a. Gulliver 174
V. Oriel 59 V. Heyden 131
296 304
V. Randall Stevens v. Blanchard 245
361
165
V. Rogers V. Elizee
■b. Jackson
V. Saltzman 360 291
37.48
V. Sandilands 46 V. Norris 102
V. Smith 66 V. Palmer
K. Strickland 120 Stevenson
■a, Watson 64 167
185 Stevenson's case 191
Smithey v. Edmonson Stevenson v. Newnham
Smyth 122 Steward v. Green 271
Snelth V. Gale 315 Stewart v. Colwell 83
Sneyds 186 V.
V. Hargrove
Moody 114 348
252
Snow 864
 TABLE OF CASES CITED. XXXI

Stewart «. Reckleas 338, 265 880

Thayer v. Mann
V. Kioliman V. Smith 402
V. Union 25 The Commonwealth v. Lelar 169, 391
Stinemets v. Ainalie 353
807 Thelluson v. Smith 220
Stinson v. McMurray Thomas 184
369
398 203
Stoeyer v. Stoever Thomas v. Minot
Stokes 413 ■u. Pemberton
V. Rideing
Stone 390 390
Stone V. Boston 150 V. Striker lis
273
V. Parks 8 Thomason v. Frere 58
Stones 185
313 Thompson 75,
84, 91, 164
199
Storey v. Barns Thompson v.
■V. Councell
Freeman
Stoveld 104 V. Hervey 342
Stow V. Parks 246 74 400
294
49
Straehan v. Barton V. Hewitt 271
Streeter v. Sumner 361 V. Snow
148
216 ■u. Wiley
Thompson 57 39, 412
Strong V. White V.
Stroud Thorley 58, 63, 412
107
288 245, 401
Sturges D. Crowninshield 75
Sullivan v. Bridge 150 Thornton v. Dallas 409
V. Hieskill 16 V. Hargreaves 345
Summerset v. Jarvis Thwaites 84
399
358 Till V. Wilson 409
Sumner v. Brady
Surtees 105 106 Tindall 319
Sutton 189 191 Tindall i>. Hibberd 24, 205
Swaine v. De Mattoa 183 Todd
Swan V. Littlefield 346 Todd V. Maxfield 30
84, 276
213
Swanzy V. Stokes 89
49
Swayne v. Wallinger 18873 Tolemau v. Jones
Sydenbotham 48 Tomlinson v. Wilkes
413 Tompkins v. Bennett 225
Sylvester
Symons v. May 86 Toms V. Myton 184
Topham 187
Topham v. Chapman 276
161
T.
Tower v. Cameron 210
Towle V. Robison
Tailor v. Hertzag 170 Town V. Smith 187
132, 292
Talbert v. Melton 133 Treasure v. Jones
Talbot V. Jones 333 Treibert v. Burgess 413
Talcott V. Dudley 60 410
361
47 408 Trigmell
Tallis Troughton v. Giltey
Tanner 410 Trumbull v. Smith 260
Tappenden v. Burgess 348 Tucker v. Daly 116
Tarratt v. Austin 189 V. Oxley 68, 255, 379, 403
Tassett v. Carrott 59 Tudway v. Bowen 397
169, 230
Tattle V. Grimwood 320 Tnnno v. Bethune 217
116, 207
Taylor u. Edwards
Taylor v. Geary 78 161 Turner
V. Kinlock , 184
346 Turner v. Esselman 305
V. Mills 314 V. Gatewood 279
266 V. Mcllhany 117
V. Nixon
■V. Roberts 165 V. Richardson
142, 244
144
V. Wheeler 12 Twogood
V. Whitthorn 13 TT,
V. Williams 85
Teackle v. Gibson 104
Tebbetts 295 United States v. Clark 220
Tebbetts v. Pickering 239 288 V. Davis 295
303 V. Delaware, etc. 220
Temple v. Pullen
Terrell V. King
Evans
Texas 299 72, 220
220, 404
73
xxxu TABLE OP CASES CITED.

Usborne 66 Wells V. Brackett 368

Utley V. Smith , 332 V. Brander 166
198 300 V. Mace 315
Utterson v. Vernon 196
West 49
Westcott V. Hodges 312
Weston 66
385
V. 400 Wetherbee v. Martin
Vairin v. Edmonson Wheeler
297
42 Wheeler v. Bacon 71
Valentine v. Vaughan
221 37,39339
Valpy V. Sanders Wheelock v. Hastings
Vanderheyden v. De Paiba 211 V. Leonard 291
V. Mallory 50 311
117 193 Whistler
White
v. Webster 73
Van Epps v. Van Deusen 51 31, 82, 173
184
Vanhark v. Whitlock 319 White V. Foljambe 139
Vanher v. Disborough 111
177 V. Mullet
Van Valkenburgh v. Elmendorf Whitehead v. Mallory 11, 87, 393
Vasae v. Comegys 148 138
48
Viele V. Ogilvie 265 Whitelock's
Whitfield V. Brand
case
Whiting V. Gray 240
381
w. 232
Whitney V. v. Whiting
Crafts
293
Wade 306 V. Willard 352
Wadham v. Marlow 141 253 Whittenton, etc. v. Upton
239 80
Wagner v. Imbrie 179, Whittington 145, 406
Wainman 195 Whitwell V. Thompson 69
Wait 59 Wickes V. Strahan 122
Wakefield 410 Wilder v. Keeler 241
Walcott V. Hall 205 Wilkes V. Fry 73
Wales V. Lyon Wilkins v. Casey 146
251 258
Walker 75, 209 222 V. Manning
Walker v. Best 243, 134 274
V. Burrell 413 V. Warren 3,110
273
295
V. Edwards Willett V. Pringle
V Pilbeam 383 Williams 65,72
264
Wall V. Lakin 354 Williams v. Bugbee
Wallace v. Coil 291 V. Coggeshall 260, 294, 317,
341
261
V. Patterson
Walsh V. Ferrand ■V. Ellicott
374
103
Ward 291
96 V. Gibbes 164
Ward V. Morris 154 V. Miller 317
I/. Wilkinson 97
89 V. Bobbins 263, 264
Warder 267 o. Robinson 177
134
Wardmell v. Poster 273 V. Vermeule
V. Walsby
Warne v. Constant 165,
98,
Warner v. Bancroft 289 Williamson 90 185, 230, 414
V. Barker 409 Williamson v. Dickens 282, 294, 297
170
Warren v. Homestead 236, 232 Willis V. Bucher 9
Warwick V, Freeman 110
240 WiUock 327
Washburn v. Bump 395 69
Waterman v. Robinson 337 Wilson 44, 193, 411
Watson 71, 7!: ,97, 291 Wilson V. Day
Watson V. Bourne V. Norman
■u. Wace 406 J'. Whittaker 31, 320
35
Watts 107 Winch V. Keeley 209
Watts V. Thorpe 267
12 Winchester 47, 149
Way V. Sperry Windham v. Patterson 186
398
Wearing v. Ellis 176 Winingder v. Diffenderffer 91
307
242
Weber v. Samuel 26 Winslow V. Parkhurst
Webster Winsor
827
Wedge V. Newlyn 143 Winsor D. v. M'Lellan 108, 359
347
Welch V. Myers Kendall
 TABLE OF CASES CITED. xxxm
Winter v. Mousely 209 Wright V. Paton
Winwood 410 V. Simpson 210
"Witt V. Follett 229 12
Witter V. Latham 245 Wydown 26, 28, 32, 82
Wyles V. Beals 205.
Wolstonhome 27,29 IS, 348
Wood 31 Wyllie V. Wilkes
Wood V. Dodgson
V. Grundy 395
73 Yallop
305 Y.
Woodard v. Herbert
Woodbridge v. Swann 69 64
Woodbury v. Perkins Yonge
21.i, 270 Yate
YoungV. HoUingsworth 266
Woodhead 34
83
120, 189
Woodier's case 67
Woodman v. Saltonstall 492 Young V. Hockley
Keighly
Woodmason 314, 315
66
74
Woods V. Sanford 165 u. London, etc. 89
Woodward V. Timmins
■0. Ward 392
Wooldridge 350
232 328
V. Willing
Woolland v. Dean 216
105 383
WooUey V. Winter 301
WooUey v. Cobbe 308 V. Wright
■V. Smith 196 Younge 25,29
Wordell 203 73, 364
Worseley v. De Mattos 23, 24, 327
WWorth
ray V. Budd 26 Z.
409 Zarega
Wride 83 283
Wright 147 Zeigler v. King
Wright V. Fairfield 84 ZiegenfuBs's case 13
174
 THE LAW

BANKRUPTCY AND INSOLVENCY.

 THE LAW

BANKKUPTCY AND INSOLVENCY.

CHAPTER L

1. Meaning of the terms bankrupt 6. When proceedings may be an-

and iTuolvent; analogy and distinction nulled.
between them. 9. English and American bankrupt
3. General purposes of bankrupt acts.
and insolvent laws. 13. Nature of a commission.
5. Necessity and inefficiency of such 17. Constitutional questions in the
laws. United States.

§ 1. Bankrupt and Insolvent, like many other legal terms,

have both a technical and a popular signification. It may be
remarked, generally, that, when used as adjectives, they are to
be understood in the popular sense ; when used as substantives,
in the technical sense. To say that one is bankrupt or insolvent,
means that he has not property enough to pay his debts ; but to
say that one is a bankrupt or an insolvent, means that he is in a
legal, publicly recognized condition of bankruptcy or insolvency,
or has done some act, or has passed or is passing through some
legal process, by which his property is or will be surrendered,
and his debts are or are to be liquidated, {a) Strictly speaking,

(a) That the terras hankrwpt and insolvent are somewhat promiscuously
used by lexicographers, see Webster, McCuUoch, Ash, Johnson — " Bank-
rupt." In respect to the derivation of the word hankrwpt, high authorities
differ. Blackstone derives it from hancus or hanque, meaning table or
connter, and ritptus or broken. 2 Bl. Com. 472, n. Lord Coke, on the other
hand, defines the word as follows : "A sign or mark, as we say a cart-rout,
which is the sign or mark where the cart hath gone; bo, metaphorically, it
1
2 BANKRUPTCY AND INSOLVENCY. [CHAP. I.

it is not the proceedings in court that constitute bankruptcy ; but

it takes place in the course of a man's business, and the court or
jury are to ascertain whether the party was or was not a. bank-
rupt at a certain time.'
§ 2. It will be seen, however, that between bankruptcy and
insolvency, in the technical sense of the words, there is an estab-
lished distinction, which has given rise in this country to very
grave constitutional questions, connected with United States and
State laws upon these subjects. The term bankruptcy is said to
be applicable only to unfortunate traders, or persons who get
their livelihood by buying and selling for gain, and who do cer-
tain acts which afford evidence of an intention to avoid pay-
ment of their debts; and a bankrupt is defined as "a trader who
secretes himself, or does certain other acts, tending to defraud
his creditors."^ Insolvency — more especially as the term is used
in an insolvent law — means the condition of a person unable to
pay his debts as they fall due, or in the usual course of trade and
business, although his inability be not so great as to compel
him to stop business, and although he may be able to pay his
debts at a future time, upon the winding up of his concerns.' So
the word insolvency, occurring in an act relating to limited part-
nerships, signifies that the partnership has not sufficient property
or effects to pay all its debts.* So an assignment, by a debtor,
of all his estate, to pay his debts, is, as to the debtor, conclusive
evidence of his insolvency at the time ; and if, by such assign-
ment, a preference is given to one or many of his creditors, it is
a bar to his discharge.' (a) And insolvency may be inferred from
' Breneman, Crabbe, 456. Termes de '2 Kent, (9th Ed.) 496 and n. ; Thomp-
la Ley, [Bankrupt,) defines a bank- son v. Thompson, 4 Cush. 127;
rupt as a person who commits any Shore v. Lucas, 3 D. & R. 218; Lee
one of a long series of enumerated v. Kilburn, 3 Gray, 594.
acts of bankruptcy. * McAnhur v. Chase, 13 Gratt, (Va.,)
> 2 Bl. Com. B. 2, ch. 18, s. 8. 683.
6 Morewood ». HoUister, 2 Seld. 309.

is taken for him that hath wasted his estate and removed his hanque, so that
there is left but a mention thereof." 4 Inst. 277. See 2 Parsons on Contr.
577, n.
(a) Upon a reverse application of the same principle, if a petitioner for the
benefit of the insolvent laws has, within a recent period prior to his appli-
cation, represented himself on oath as being in solvent circumstances and
adequate as bail, the Court will expect from him clear and conclusive evi-
CHAP. I.] NATURE OF BANKRUPTCY, ETC. 8

circumstances. Thus A. purchased cabinet furniture of the plain-

tiff on credit ; soon after, he executed a chattel mortgage to the
defendant of all his stock in trade, including this furniture, to
secure the payment of a sum much larger than the price of the
furniture. A short time before the purchase, he had confessed
judgment in favor of B. and C. in a large amount, and, a short
time after, the sheriff returned several executions against him,
unsatisfied for want of property. Held, that from these circum-
stances itmight well be inferred that A, was insolvent at the
time of the purchase.' And a return on fi. fa. of no property is
of itself primd facie evidence of insolvency.^ So if a man lie in
prison two months, the law presumes insolvency, by relation, at
the time of the arrest.^ But, on the other hand, it is held that a
man may fairly carry on his trade, even where, if his assets were
realized, they would have been less than his debts. Such a course
may be likely to be beneficial to existing creditors, and may be
pursued without dishonesty, if he have a well-grounded expecta-
tion and reasonable hope of surmounting his difficulties.*
§ 3. The purposes of bankrupt and insolvent laws are thus
expressed by elementary writers and judges.
§ 4. Bankrupt and Insolvent Laws (a) are intended to secure
the application of the effects of the debtor to the payment of his
debts, and then to relieve him from the weight of them.' "Three
1 Buckley v. Artoher, 21 Barb. 585. * Dornford, 5 Eng. L. & Eq. 242.
2 Lawson v. Wright, 21 Geo. 242. ^2 Kent, 389.
' Coppendale v. Bridgen, Burr. 819.

dance of his existing insolvency, and will carefully scrutinize his case.
Benny's case, 1 Ashmead, 261.
But the fact that a petitioner justified as bail — which justification was
not authorized by the true state of his circumstances — will not in itself
induce the Court to reject his petition. If it should- manifestly appear that
the petitioner had wilfully and knowingly committed perjury in such case,
the Court will discharge him as an insolvent debtor, but will commit him
to answer before the appropriate criminal tribunal for his crime. Ibid.
(a) It is said they are positivi juris, and ought not to be extended.
Cooper, 143. They are to be construed liberally. Mims v. Lockett, 20
Geo. 474.
That suggestions in debate concerning the bankrupt law are entitled to
little weight, see Mitchell v. Great Works, etc., 2 Story, 653.
Successive insolvent statutes, being in pari materia, are to be construed
together. Jordan, 9 Met. 294 ; Buck v. Sayles, ibid. 461.
4 BANKRUPTCY AND INSOLVENCY. [CHAP. I.

great objects are manifest in the system of insolvent laws: First,

a distribution of all the insolvent's property; second, an equal
distribution of his property amongst all his creditors, when it is
insufficient to pay the whole; and third, to discharge an honest
debtor from all prior debts. We speak of the general policy; of
course the laws make some exceptions to the complete accom-
plishment of each of these objects."* And, with more special
reference to the duty of a person in an actual condition of insol-
vency, in regard to the law, and his liability to lose its benefits
by delaying the performance of this duty, it is said: "The plain
object and policy of the insolvent laws is to require a debtor, as
soon as he has reason to believe himself insolvent, and before he
has frittered away his property by schemes which appear plausi-
ble, to put himself and his assets at once into the hands of the
law, with a view to two objects: one is to make an equal distri-
bution among all his creditors; the. other, to pay every creditor
as large a part of his whole debt as the means of the debtor will
allow, under the direction and management of officers and agents,
who are capable of executing a trust, and responsible for the faith-
ful performance of their duties."^
§ 5. Both the neeeisity and the inefficaey of this class of laws
are illustrated by the language of statutes and of judges and
commentators. Thus the earliest statute (34 & 35 Hen. 8, c. 4)
describes the candidates for its provisions as "persons craftily ob-
taining into their hands great substance of other men's goods, who
suddenly flee to parts unknown or keep their houses, not minding
to pay or restore to their creditors their debts and duties, but at
their own will and pleasure consume the substance obtained by
credit of other men, for their own pleasure and delicate living,
against all reason, equity, and good conscience." So Lord Coke
says: "We have fetched as well the name as the wickedness of
bankrupts from foreign nations;" and that the first statute on the
subject was made "against strangers, viz. against Lombards, who,
after they had made obligations to their creditors, suddenly escaped
out of the realm without any agreement made with their creditors."*
1 Per Shaw, C. J., Prentice «. Richards, » Per Shaw, C. J., Fernald v. Gay, 12
8 Gray, 227, aco. Purple v. Cooke, Cusb. 597 ; aco. Smith's Merc. L.
4 ibid. 121 ; Gray i>. Bennett, 3 Met. 465-6.
525; Breneman, Crabbe, 456 ; Dex- '4 Inst. 277.
ter V. Snow, 12 Gush. 594^5; Aus-
tin 0. Caverly, 10 Met. 838.
CHAP. I.J NATURE OF BANKRUPTCY, ETC. 5

And with regard to the abuses of the bankrupt law itself, it is

hardly necessary to repeat the often-quoted remark : " The abuse
of the bankrupt law ia a disgrace to the country, and it would be
better at once to repeal all the statutes, than to suffer them to be
applied to such purposes. There was no mercy to the estate.
Nothing was less thought of than the object of the commission.
As they were frequently conducted in the country, they were
little more than stock in trade for the commissioners, the as-
signee, and the solicitor."^ (a) So Lord Hardwicke says: "The
new laws relating to bankrupts have turned the edge of commis-
sions of bankruptcy from being, as they were originally, remedial
to the creditor, and in the nature of punishments to the bankrupt,
whom they considered as an offender, to be the accidental occasion
of great frauds."^
§ 6. It will be seen hereafter, (see Fraud, Supersedeas, Dis-
charge, Preference,) that the effect of proceedings in bank-
ruptcy and insolvency may often be annulled for specific reasons,
relating to the party himself or other persons interested in the
case. We may in the present connection refer briefly to the
grounds, on which, under the English law, a commission may be
superseded, for having been perverted to other than its legitimate
purposes.
§ 7. It has been doubted, under statutes which authorized bank-
ruptcy proceedings only on application of creditors, whether such

1 Per Ld. Eldon, 6 Ves. 1. » gmith, Mont. Dig. 119.

(a) StiU stronger language is used in a recent case concerning "the wind-
ing-up act," (so called,) which relates to insolvent corporations : "It is to
be hoped that the legislature will take steps to prevent the recurrence of
conflicts and complications such as the proceedings before us exhibit and
portend — miserable conflicts, distressing complications, which it has itself
created — conflicts and complications characterized by the grave frivolity,
the costly uselessness, the sickening delay, in which chicane rejoices — con-
flicts and complications which, to a civilized people, are nationally discredit-
able, and in a govern^JI country ought not to be possible." Per Enight
Bruce, Marcus, 39 Bng. L. & Bq. 273.
In a late case under the Massachusetts insolvent law, where the question
of interest upon debts proved arose, it was said by the Court: "This is the
first case which has ever come before the court of a surplus under the insol-
vent law." Per Hubbard, J., Brown v. Lamb, 6 Met. 208.
6 BANKRUPTCY AND INSOLVENCY. [CHAP. I.

proceedings are avoided by being instituted through the agency

of the bankrupt himself.' (a)
§ 8. A commission is in general supersedable, if sued out by
one creditor in breach of good faith to the others.^ So if sued
out in order to force compliance with a pending arrangement;
being considered an abuse of process.* Or to dissolve a partner-
ship.* Or, by a landlord, to terminate a lease." Or to compel a
compromise or composition.* Or if taken out for the purpose of
defeating an action by the bankrupt against the petitioner, al-
though afterward pursued for the benefit of creditors.'^ But it
may be taken out to defeat a previous execution, unless by collu-
sion with the bankrupt.*
§ 9. In regard to the English bankrupt acts, which are numer-
ous, voluminous, and complicated, and of course have no binding
force in this country, it is unnecessary to state them in detail.
A simple reference to the leading statutes will be sufficient.(6)
The earliest (or one of the earliest) of these acts (St. 34 & 35
H. 8, c. 4) was not confined to traders, but embraced all persons.
The limitation to traders was first contained in a statute of Eliza-
beth. St. 6 Geo. 4, ch. 16, is said to have introduced the right
of a trader voluntarily to declare himself bankrupt.' And this
act repealed all prior laws.'" It was succeeded by the leading act,
2 Wm. 4, c. 56, which in its turn was followed by 12 & 13 Vict.,
c. 106, a long and elaborate statute, in which many of the former
provisions are retained and consolidated, with the addition of
1 See Shaw v. Williams, R. & M. 19 ; ' Haroourt, 2 Rose, 203 ; Masterman,
CFardener, 1 Rose, 377 ; Gang, 1 ibid. 444 ; Ayer, 2 Dea. & Chit. 67.
Mont. & Mac. 399; Grant, 1 Glyn See Baker, 1 Dea. & Chit. 533.
& J. 17; Staff, Buck, 249; Steele, 'Bourne, 2 Glyn & J. 137.
16 Vea. 161 ; Harwood v. Keys, 1 « Menham v. Edmonson. 1 B. & P. 369 ;
M. & Rob. 204. Gardener, 1 Rose, 377 ; Edmonson,
2 Lowe, 1 Glyn & J. 78. 7 Ves. 308 ; Arrowsmith, 14 Ves.
' Haroourt, 2 Rose, 203. 209; Bowes, 11 Ves. 541. See Smith
< Christie, 1 Mont. & Bl. 314; Browne, v. Brownhead, 7 T. R. 300.
1 Rose, 151; Milbran, 5 Madd. 1. 'Per Cowen, J., Eunzler v. Kohaus, 5
6 Gallimore, 2 Rose, 424. Hill, 1.
w Owen, 322.

(o) St. 1 & 2 Wm. 4, c. 56, s. 42, made such proceeding legal.
(6) Bankruptcy, though almost wholly the creature of positive statutes, is
sometimes traced back to ancient commercial practices in Venice, and the
principles upon which it is founded to the Roman law; and statutes are said
to be found as early as the reign of Edw. I., premonitory of the bankrupt
system.
CHAP. I.] NATURE OF BANKKUPTCY, ETC. 7

many others wholly new. This statute consists of two hundred

and seventy-eight sections, and is entitled "an act to amend and
consolidate the laws relating to bankrupts." It bears date Au-
gust 1,1849.
§ 10. Bankruptcy in England is said to be "an adversary proceed-
ing against a defaulting trader, upon doing certain acts, indicative of
present or' impending insolvency. These (bankrupt) laws provide,
generally, that, upon a trader's doing certain acts, considered
acts of bankruptcy, a creditor may apply for and obtain a com-
mission (a)(out of Chancery) under which the whole of the trader's
property is sequestered and taken into the custody of the law, to
be administered by ofiScers appointed for that purpose, the pro-
ceeds of which, with some slight exceptions, are appropriated to
the payment of all the bankrupt's debts, if sufficient therefor,
otherwise to pay them in equal proportions, as far as is sufficient
for that purpose. The same law further provides that, if the
bankrupt will honestly and faithfully co-operate in the proceed-
ing, if he will disclose all his property and effects, and aid the
officers appointed for that purpose by information and by all
means in his power, and do all the duties required of him in the
premises, he shall be absolved and discharged of all his debts, and
receive a certificate, as the authoritative evidence of his right to
such discharge."*
§ 11. The first bankrupt law in the United States was passed
April 4, 1800, expressly limited to the period of five years, and
1 Per Shaw, C. J., May v. Breed, 7 Cush. 28; 7 How. 627.

(a) "The commissioners are not a court of record." Per Grier, J., Shew-
han [Link], 7 How. 627.
The petitioning creditor's " first step must be to ascertain, by a search at
the Bankrupt Office, that no docket has been struck against the trader. His
next, to swear before a Master in Chancery to the [Link] his debt, and
his belief that the trader has become bankrupt, and execute a bond condi-
tioned for proving his debt, and the, act of bankruptcy, and for proceeding
on the fiat. When the affidavit and bond are delivered at the Bankrupt
Office, an entry is made in a book called the docket book, and the petition-
ing creditor is then said to have 'struck a docket' against the trader. We
now come to the fiat, which is substituted for a commission, by the Bank-
rupt Court act. This, when the above preliminaries have been complied
with, is, on the creditor's formal petition, granted to him by the Court of
Chancery." Smith's Merc. L.
8 BANKRUPTCY AND INSOLVENCY. [CHAP. I,

repealed December 19, 1803. The second act was passed in 1841,
and repealed (a) by an act which took effect March 3, 1843, after
liquidating debts estimated to amount to thirty millions of dollars.
§ 12. The act of 1800 consolidated the provisions of the Eng-
lish statutes ; therefore, English decisions were held applicable to
it.^ So, "though the late bankrupt law of the United States is
different, in its provisions, from the English statutes, in respect
to payments and transfers of property declared to be void, yet
the English decisions throw much light on the language of our
statute, which was probably in part framed by incorporating into
it the principles of those decisions."^ But it is also remarked:
"The decisions upon the English statutes, while they furnish
helps to enable us to arrive at just conclusions, do not constitute
legal precedents binding us in the construction of our own stat-
ute."' So it is said: "The English bankrupt laws are so different
from our insolvent system, that the decisions under the one do not
apply with much force to the other."*
§ 13. In regard to the precise nature of a commission of bank-
ruptcy inEngland, it is said the commission of bankrupt, which
arms the commissioners with all the power they are to exercise
over the bankrupt and his estate, is to be granted by the Lord
Chancellor, Lord Keeper, or Commissioners of the Great Seal, on
the application of creditors only ; and this is a matter not discre-
tionary, but to be granted de jure,' But proceedings in bank-
ruptcy are not proceedings in equity.^ "A bankrupt or insolvent
law, viewed as operating on the rights of creditors, is a system of
remedy. It takes out of the hands of the creditors the ordinary
remedial processes, and suspends the ordinary rights, which by
law belong to creditors, and substitutes, in their place, a new and
lEoosevelt v. Mark, 6 John. ch. 266; 'Per Hubbard, J., Brown v. Lamb, 6
Lummua v. Fairfield, 5 Mass. 249; Met. 209.
Livermore v. Bagley, 8 Mass. 511. * Per Shaw, C. J., Denny v. Dana, 2
"Per Hubbard, J., Jones v. Howland, Cush. 170.
8 Met. 383. SBao. Abr. (1832,) Bankrupt B.
' Crowder v. Davies, 3 Y. & J. 433.

(a) It is said : " If the statute was pernicious, or even wicked, it has paid
the penalty of its mischief by death." Per Oowen, J., Kunzler v. Kohaus,
5 Hill, 324.
This act was obligatory in all those States and Territories to which the
ordinance of 1787 extended, as well as to the others. Stone v. Parks, 1
Chandler, (Wis.,) 60.
CHAP. I.] NATURE OF BANKRUPTCY, ETC. 9

comprehensive remedy designed for the common benefit of all.

The rights with which the assignee is clothed, as the representa-
tive of creditors, are to render this great and common remedy
effectual.""
§ 14. Upon the same subject it is further said, a commission
is an execution, not an action.^ And Judge Story remarks : "A
commission and decree, declaring a man to be a bankrupt, has
been emphatically said to be a statute execution for all the cred-
itors."^ And, upon the ground that a commission is a statute
execution, the death of a party after being declared a bankrupt
does not abate it.^
§ 15. Lord Eldon, in two elaborate judgments, expressed his
opinion that a commission of bankruptcy was merely a substitu-
tion of the authority of the Lord Chancellor, enabling him to work
out the payment of those creditors who could, by legal or equita-
ble suit, have compelled payment.* But, in another case, he
expressed the opinion that a commission is not strictly an execu-
tion.^ (a)
§ 16. And it is to be further remarked, that "when the pro-
ceedings are instituted by the voluntary act of the bankrupt him-
self, they are uniformly regarded and treated, in the act, as done
for the benefit of the bankrupt."' So it is said: "The English
doctrine is that, the act of bankruptcy being voluntary, the prop-
erty of the bankrupt must be deemed to pass to the assignee with
the consent of the bankrupt."* But, in general, there is a marked
distinction between insolvency and bankruptcy, as being volun-
tary and involuntary modes of alienation.'
§ 17. As has been suggested, the distinction between bank-
» Per Curtis, J., Bettont). Valentine, 1 SDeiydney, 15 Ves. 498; Koffey, 19
Curt. (U. S.) 176. ibid. 498.
2 Crispe, 1 Atk. 133; per Aston, J. , Lavie « Brown, 1 Ves. & B. 60.
V. Phillips, 3 Burr. 1783; Cooper, 'Per Shaw, C. J., Morse v. Lowell, 7
130; Green, Bank. L. 9. Met. 155.
» Per Story, J., Foster, 2 Story, 142. 'Per Curtis, J., Betton v. Valentine, 1
* Cooke, 7; Backwell's case, 1 Vern. Curt. (U. S.) 177.
158. » Rochford v. Haokman, 10 Eng. L. &
Eq. 64. *

(o) With regard to the legal effect of proceedings upon the title to real
estate, the insolvent law of Pennsylvania, passed in 1799, does not extend
to estates tail, so as to make a conveyance executed according to that law
operate as a bar to such estate. Willis v. Bucher, 3 Wash. C. C. 369.
10 BANKRUPTCY AND INSOLVENCY. [CHAP. I.

ruptcy and insolvency has been made the ground of some consti-
tutional objections to the bankrupt act of the United States.
§ 18. It is to be observed in advance, that "the English bank-
rupt acts apply, for the most part, to cases of involuntary bank-
rupts, whereas the main purposes of ours" — meaning the act of
1841 — " are for the benefit of voluntary bankrupts."* In Sackett
V. Andross,^ Justice Bronson held the voluntary branch of the
bankrupt law unconstitutional, for the following reasons: 1. It
embraces all classes of debtors, instead of being confined to
traders. 2. It places the whole power in the hands of the debtor,
giving no means of coercion to the creditor. 3. It discharges
the debt without the consent of the creditor in any form, thus
violating the obligation of the contract. 4. In discharging prior
debts, it goes beyond the limits of the bankrupt power. It is
an assumption of judicial power by Congress — not a law, but a
sentence or judgment against creditors.
§ 19. But these objections had been long before anticipated,
and answered in advance by the Supreme Court of the United
States in the following remarks: "The line of partition between
them (bankrupt and insolvent laws) is not so distinctly marked as
to enable any person to say, with positive precision, what belongs
exclusively to the one and not to the other class of laws. But if
an act of Congress should discharge the person of the bankrupt,
and leave his future acquisitions liable to his creditors, we should
feel much hesitation in saying that this was an insolvent, not a
bankrupt act, and therefore unconstitutional. Another distinc-
tion has been stated, and has been uniformly observed. Insol-
vent laws operate at the instance of the imprisoned debtor —
bankrupt laws at the instance of a creditor. But should an act
of Congress authorize a commission of bankruptcy to issue on the
application of a debtor, a court would scarcely be warranted in
saying that the law was unconstitutional and the commission a
nullity."* Conformably with these views, in Klein's case,* the
Supreme Court of the United States, reversing the judgment of
the District Court in Missouri,' affirmed the constitutionality
of the bankrupt law. So it is held in the State Courts, that
1 Per Story, J., Arnold v. Maynard, 2 ' Per Marshall, C. J., Sturges v. Crown-
Story, 866. inshield, 4 Wheat. 19.
25 Hill, 828. *1 How. 277.
s 2 N. Y. Leg. Observ. 184.
CHAP. I.] NATURE OF BANKRUPTCY, ETC. 11

the voluntary branch of the act applies to debts created both

after and before its passage, and is constitutional.* And Judge
Dewey says, the voluntary feature of the bankrupt law "seems
to us to be no longer an open question. The act has been indi-
rectly sustained in all the courts of the United States."^
§ 20. Such decisions are justified upon the ground that "it
was undoubtedly in reference to the state of American legislation
on the subject, and not to the principles of the English bankrupt
law, that these provisions of the constitution, depriving the States
of the power to impair the validity of contracts, but giving to
Congress the power to do so by establishing uniform laws on the
subject of bankruptcy, were adopted."' Still, however, under the
bankrupt law of 1841 the cases of voluntary and involuntary
bankrupts are held to stand on very different grounds.* And in
regard to a State insolvent law, it is said : " One obvious difference
between a voluntary and an adversary application to the commis-
sioner is that, in the former, the debtor submits himself in the
outset to the jurisdiction of the commissioner, as an insolvent
under the law ; whereas, in the latter, the commissioner does not
obtain jurisdiction of his person, as an insolvent, till an adjudi?
cation that he is such, under the statute, and the issuing of a
warrant."*
§ 21. As has been stated, the act of 1841, unlike the old bank-
rupt law, was not confined to traders, and included cases of volun-
tary application. This increased the identity between bankrupt
and insolvent laws, and, except in name, and in reference to the
exclusive application of the latter to debts contracted after their
enactment, made them alike in their purposes and efiFects.
§ 22. One of the most elaborate and approved State insolvency
systems is that of Massachusetts. For nearly half a century after
the establishment of the Constitution of the United States, Massa-
chusetts had no insolvent law, owing, in part at least, to the prev-
alent impression that such a law, discharging debts, would be
unconstitutional. Other States took a different view of the sub.7
ject, and enacted statutes, really of bankruptcy, though assuming
the name of insolvent laws. The first general insolvent law of
1 Eunzler v. Kohaus, 5 Hill, 817. ^Breneman, Crabbe, 466.
' Thompson v. Alger, 12 Met. 442. 6 Per Shaw, C. J., Whitehead v. Mal-
' Per Walworth, Chr., Morse v. Hoyey, lory, 4 Gray, 183.
1 Barb. Ch. 405.
12 BANKEUPTCY AND INSOLVENCY. [CHAP. I.

New York was in 1784. In April, 1811, another insolvent law

was passed. (a) It was a voluntary process on the part of a debtor
imprisoned or prosecuted. No consent of the creditor was neces-
sary, and, on assignment of his property, he was discharged from
all his debts and contracts. It was repealed in 1812, and after-
wards bythe Supreme Court of the United States adjudged uncon-
stitutional.' InPennsylvania, also, a law was enacted in 1812
for the relief of insolvent debtors ; but, upon the ground that it
authorized the discharge of a contract, by the payment of a
smaller sum, or at a different time, or in a different manner,

than the parties agreed, and thus impaired its obligations, "by sub-
stituting for the contract of the parties a legislative contract to
which they never assented, it was held unconstitutional and void.*
But the act of March 26, 1814, releasing a debtor on the consent
in writing of a majority in number and value of his creditors, was
held constitutional as respects a dissenting creditor, whose con-
tract was made after the date of the act.^ (b)
§ 23. The important question has often arisen, whether and
how far the powers of the National and the State Governments
conflict with each other, in reference to bankrupt and insolvent
laws. An analogous question occurred in Massachusetts, with
regard to successive State laws, of very different character, con-
cerning insolvent debtors. It was there held, that St. 1836, c.
238, regulating the assignment and distribution of the property
of insolvent debtors, was repealed by the more general insolvent
law of 1838, c. 168, so far as it affected the same class of per-
sons, upon the ground that it could not have been the intention
of the legislature to have two distinct systems, operating upon the
same persons and property, and leaving it to the option of the
1 2 Kent, 391, n. ' Eckstein v. Shoemaker, 3 Whart. 15.
2 Golden v. Prince, 8 Wash. C. C. 313.

(a) This act, entitled "an act for the benefit of insolvent debtors and their
creditors," was held an insolvent, and not a bankrupt act. Adams v. Storey,
Paine, 79.
(6) The act of 1803, for the relief of insolvent debtors in the District of
Columbia, is a private act, of which the courts of the several States are not
bound to take notice, unless set forth in the pleading, or so much of it at
least as to enable the Court to decide whether the discharge is warranted by
the provisions of the act. Wright v. Paton, 10 Johns. 300.
CHAP. I.] NATURE OF BANKRUPTCY, ETC. 13

debtor to elect one or the other at his pleasure.' In respect to

the National and State laws, it was held in North Carolina, that
a State insolvent law may exist and operate with full vigor, until
the bankrupt law attaches itself upon the person or property of
the debtor, by proceedings instituted in bankruptcy; but that no
case of conflict could arise, until after the proceedings in bank-
ruptcy had reached that stage in which the debtor had been judi-
cially declared a bankrupt.'' (a) This has been called, at first
view, a plausible doctrine.^ But it is open to the objection that
its effespt would be to supersede proceedings once commenced, at
the will of the insolvent, making application under the bankrupt
law; whereas, "sound principle would require that, in all cases
where proceedings could be legally instituted, they should have
the legal capability of being perfected and closed under the State
law."* And in an early case in Massachusetts, the defence relied
upon was a discharge under the insolvent law of the State of New
York, The plaintiff insisted that the insolvent law of New York
was invalid, being repugnant to the Constitution of the United
States, authorizing Congress to establish a uniform bankrupt law.
This broad proposition was not sustained; but it was said that
the actual enactment of a bankrupt law would supersede State
laws, which in such case would become inconsistent with that
uniformity which it was the wish of the people to establish."
And it has been expressly decided in Massachusetts that, while
the United States bankrupt act of 1841 was in force, proceedings
against a debtor, under the insolvent law of the State, were un-
authorized and void, if the debtor and his property were subject
.to the operation of that bankrupt act, although no proceedings
under it were had against him.*
§ 24. The following remarks of the Court in MassachusettSj in
a late case, present a clear and concise view of what may now be
regarded as the settled law upon this subject: "In default, on
» Carter v. Sibley, 4 Met. 298; Wyles sPer Dewey, J., Griswold v. Pratt, 9
V. Beals, 1 Gray, 236; Edwards v. Met. 20.
Mitchell, ibid. 240. * Ibid.
2 Ziegenfuss's case, 2 Ired. 463. ^ Blanchard v. Russell, 13 Mass. 1.
» Griswold v. Pratt, 9 Met. 16.

(a) In New York, the assignment under the 17th section of the act of
1831 is not an insolvent law, and is not suspended by the act of Congress
Aug. 19, 1841. Berthelon v. Betts, 4 Hill, 577.
14 BANKRUPTCY AND INSOLVENCY. [CHAP, I,

the part of the National Government, to enact a bankrupt law,

many of the States had enacted insolvent laws of a very extended
character, directly discharging all debts of the insolvent, as well
those contracted previously as subsequently to the passage of
those laws. Th^ese State laws were apparently coextensive, in all
their purposes and effects, with a general bankrupt law. Under
this course of State legislation, cases frequently arose as to the
effect of a discharge under such insolvent laws, and questions as
to the validity of such laws came to be fully discussed before the
Supreme Court of the United States. The broad ground was
originally taken, that such State insolvent laws were, under all
circumstances, invalid, being in violation of the provisions of the
Constitution of the United States, authorizing Congress to establish
uniform laws on the subject of bankruptcy throughout .the United
States, and the further provision that no State should pass any law
impairing the obligation of contracts. The result of these judicial
inquiries and decisions was, as is well known, that it was held that
the power vested in Congress to enact a bankrupt law did not
supersede the right and authority of the several States to enact
insolvent laws, while the power remained dormant, and was not
called into exercise by any act of legislation of Congress upon the
subject; and that the mere existence of the power in the National
Government to act on the subject was not an absolute restriction
upon the powers of the several States to act in the matter, in the
absence of any existing bankrupt law ; holding, however, that the
other provision of the Constitution, already adverted to, that the
State should pass no law impairing the obligation of contracts,
would render invalid any State insolvent law, so far as it author-,
ized the granting of a discharge from liability for debts contracted
before the enactment of such State insolvent law. The great
question in the cases referred to was, whether the power, vested
in the National Government, to establish a uniform bankrupt law,
did not supersede all State legislation on the subject. The ques-
tion of the effect of the actual exercise of this power by the Con-
gress ofthe United States was only incidentally considered, as no
such act was in force, or had been, except for a very short period,
and that long previous. In these discussions and judicial opin-
ions, which were pronounced by the members of the Supreme
Court of the United States, it seems, however, to be assumed or
CHAP. I.] NATUKE OF BANKRUPTCY, ETC. 15

held as unquestioned, that if the authority conferred by the Con-

stitution toestablish such uniform bankrupt system was exercised
by Congress, and a bankrupt law was actually in force, all State
legislation on%he matter would be at once superseded ; certainly as
to all cases falling within the provisions of sach bankrupt law."'
§ 25. To these remarks may be added those of the same court
in a later case, of more general applicability to the whole consti-
tutional question connected with National and State laws.
§ 26. "A question has sometimes arisen, whether the obligation
of a contract, made in one country, to be performed in another,
arises from the force and eflFect of the municipal law, either of
the place of making Or that of performance ; or from that univer-
sal law of moral obligation, acknowledged by all men above the
condition of barbarism, and admitted and carried into effect by
the comity of all civilized nations. This may be a difficult and
delicate question, in expounding that clause in the Constitution
of the United States, which prohibits the respective States from
passing any laws impairing the obligation of contracts. The
construction of this clause may be affected by a consideration of
all the provisions of the Constitution, of the relative powers
intended to be vested in the United States, or reserved to the
several States, of the condition of the legislatures of the several
States, when they existed as British provinces, and by many
considerations not affecting the general question."^ (a)
§ 27. But the bankrupt act, which took effect February 1,
1842, did not supersede nor suspend proceedings commenced
against an insolvent debtor before that day, under the Massachu-
'[Link],
17. J., Griswold v. Pratt, 9 ''PerGush.
Shaw,
31. C. J., May v. Breed, 7

(a) In this case the learned Chief Justice remarks, that the leading case
of Blanchard v. Eussell (13 Mass. 1) has been sometimes overruled as to
the effect of an insolvency discharge, but the general principles advanced
have been repeatedly recognized as sound law. May v. Breed, 7 Gush. 33.
The Chief Justice also remarks, upon the case of Ogden v. Saunders,
(12 Wheat.) as "the leading and most elaborate case — most ably and fully
argued by eminent counsel ;— argued several times, not only with the keenest
legal discrimination, but with the closest,metaphysical acumen." lb. 39.
The case itself, of May v. Breed, 7 Cush. 15, from which these observa-
tions are taken, may well be noted as a most able and elaborate exposition
of the whole subject.
16 BANKRUPTCY AND INSOLVENCY. [CHAP, I.

setts insolvent law. (St. 1838, c. 163.) It was contended that,

as the insolvency proceedings had not reached the point of an
assignment, they were by this means superseded. But the Court
held, that not only does the assignment relate bafk to the first
publication of notice, but that the debtor is divested of his prop-
erty by virtue of the warrant to the messenger and the taking of
the property of the debtor into custody. It was said, that the
effect of suspending the insolvent law as to prior cases would be
to change the tribunal, to divest the messenger or assignee of his
rights, for the mere purpose of giving the same trust to others,
with new provisions respecting creditors, and without benefit to
either debtor or creditor, and with the certainty of lessening the
avails of the property by the increase of expenses consequent
upon such a change. And these views were held more especially
to control the case, inasmuch as no bankruptcy proceedings had
been actually commenced.^ So in Pennsylvania, a debtor made
a voluntary assignment of all his estate to the defendant, for
the benefit of certain creditors. Afterwards he applied for the
benefit of the insolvent laws of Pennsylvania, was discharged,
and the defendant appointed his assignee. Under these assign-
ments, the defendant obtained possession of and sold the property
of the debtor. The latter petitioned for the benefit of the bank-
rupt law, and was decreed a bankrupt. The plaintiflf was appointed
his assignee, and brought an action of trover to recover the value
of the property received under the voluntary assignment. Held,
that the plaintiff could not recover.^ And the enactment of a
national bankrupt law only suspends, but does not repeal or abro-
gate, an existing State insolvent law. Upon this subject it was
said in Massachusetts : " The insolvent law, during its suspension,
existed to many purposes. It was suspended only during the
existence of another system of paramount authority, designed for
the accomplishment of the same purpose. "When, therefore, the
operation of this suspending law ceased, the original act was rein-
stated inactive operation, and took effect from its original enact-

ment."'
§ 28. From what has already been said it abundantly appears,
that State insolvent laws are held to be consistent with that pro-
1 Judd ». Ives, 4 Met. 401. » Per Shaw, C. J., Ward v. Proctor, 7
iiSuUiTan i>. Hieskill, Crabbe, 525. Met. 321.
CHAP. I.] NATURE OF BANKRUPTCY, ETC. 17

vision of the Constitution which forbids the enactment of State

laws that impair the obligation of contracts, only in reference to
such contracts as are made after their enactment; and this upon
the ground that the law itself under these circumstances becomes
part of, or incorporated with, the contract. In an early and
leading case it was said, that, inasmuch as a knowledge of the
laws is imputed to every one who enters into contracts, no one
can complain of surprise or want of public faith in the appli-
cation of those laws.^ It should be added, however, that this
well-established distinction has not escaped some ingenious and
plausible criticism. In a late case in New York it was said:
"The notion that insolvent laws constitute a part of the agree-
ment of parties, under any circumstances, has been considered as
fallacious by judges of the court, in which the doctrine was
first broached.^ The permission by these laws accorded to a
debtor to absolve himself is an act of sovereignty, induced by
considerations of public expediency. It is the exercise of a power
not derived from or dependent upon contract, but beyond and in
hostility to it. If the insolvent law of South Carolina consti-
tuted a part of the undertaking of the defendant, so for the same
reason did the Constitution of the United States. The substance
of the contract of the parties would then be, that the maker
should pay the money specified in the note unless discharged by
some law of the place, by performance not in conflict with the
supreme law of the land. This would lead us through a circle
back to the question, whether annulling the contract without sat-
isfaction and against the will of the creditor, impaired its obliga-

tion."*
1 (In substance) per Johnson, J., Og- ' Per Gardiner, J., Donnelly ». Corbett,
den V. Saunders, 12 Wheat. 213. 3 Seld. 505.
25 Howard, 311. .
 CHAPTER II.

ACTS OF BANKRUPTCY AND INSOLVENCY.

1. General rule. Bankruptcy con- 11. Concerted act.

sists in acts. 12. Joint commission.
2. What are acts of bankruptcy. 13. Intent to defraud.
3. Effect of an act of bankruptcy 14. Time of the act.
upon subsequent dealings — relation. 16. Place.
4. Notice. 17. Absenting or keeping house.
5. Whether bankruptcy is a crime. 21. Denial.
6. The act constitutes bankruptcy. 32. Departing.
8. Act of an agent. 38. Concealment of goods.
9. A bankrupt cannot set up a prior 39. Imprisonment.
act. 45. Failure to dissolve attachment.
10. The act cannot he purged.

§ 1. It has been already stated that bankruptcy, in a legal and

technical sense, consists rather in the doing of some act, which
by express statute is made the foundation for legal proceedings
against the alleged bankrupt, than in the actual institution of
such proceedings. It becomes very important, therefore, to con-
sider particularly the subject of acts of hanhruptcy. The Eng-
lish statutes upon this point authorize bankruptcy proceedings for
a great variety of acts, indicative of insolvency or an intention
to defraud creditors ; and the decisions which have attempted to
construe and apply those statutes are proportionally numerous.
The English law, however, both statutory and judicial, proceeds
for the most part upon the theory that a bankrupt must be a
trader, and that proceedings are instituted not by, but against
him ; whereas it is the prevailing American system, that all per-
sons alike are subject to the bankrupt or insolvent law, and for
the most part bankruptcy or insolvency proceedings are com-
menced bythe voluntary application of the party himself. Still,
by way of analogy and illustration, at least, the English acts and
(18)
CHAP. II.] ACTS OB' BANKRUPTCY AND INSOLVENCr. 19

cases are very important; and a complete view of the subject of

bankruptcy requires that they be fully though summarily stated.
§ 2. Acts of bankruptcy are sometimes classified as 1, those
■which relate to the person of the trader, and are designed to
defeat the remedy against the person ; 2, those which relate to
disposal of property, and seem designed to keep it out of the
reach of creditors ; 3, those which relate merely to the state of
his circumstances or credit, and raise a presumption of insol-
vency, whether attended with fraud or not.^ Blackstone enumer-
ates the acts of bankruptcy of his day as follows. Later statutes
have of course greatly modified the English law upon this
subject, (a) and the American law depends wholly upon express
statutory provisions, which, with a general conformity, vary very
materially in details from the English acts. Departing the
realm; departing one's own house; keeping in one's own house;
procuring or suffering himself willingly to be arrested, outlawed, or
imprisoned without cause ; procuring attachment or sequestration ;
fraudulent conveyance; procuring protection from arrest; en-
deavoring bypetition or bill to compel creditors to take less than
the amount of their debts, or procrastinate the time of payment ;
lying in prison for two months upon arrest for debt; escaping
from prison; neglecting to pay a debt of ^£100 within two months
from service of process upon a trader having privilege of Parlia-
ment.^ (See p. 27, n.)
§ 3. It is the general rule, that the bankrupt cannot afi^eet his
estate by any proceedings subsequent to an act of bankruptcy,
though prior to the commission.^ It is said, "the English bank-
rupt law avoids all transactions, with some slight exceptions, after
an act of bankruptcy, though secret, and though considerable
time elapses before the issuing of a commission under it."* So it
is remarked by an English writer, " the trader who has committed
one of them is, from that time forth, a bankrupt; and if pro-
ceedings be not thereupon taken against him, it is only in conse-
1 Cullen's Bank. L. 30. < Per Shaw, C. J., Denny v. Dana, 2
2 2 Bl. Com. book 2, ch. 31. Cush. 170.
» Combe v. Bruges, 13 Price, 137.

(a) Whether a person who is brought within the law of bankruptcy by a

later statute can be made a bankrupt by acts provided for in an earlier one,
see Bird v. Major, Ld. Bay. 851.
20 BANKRUPTCY AND INSOLVENCY, [CHAP. 11.

quence of the ignorance, indisposition, or good nature of his

creditors."* But on the other hand it is said: "The relation back
to any antecedent period to make an act of bankruptcy is a case
strictissimi juris, and ought not to prevail, except where the words
of the statute, upon which that construction is to be found, are
clear and without doubt, "^ Thus an act of bankruptcy, by pro-
curing one's goods to be taken in execution, is not committed till
actual seizure. There is no relation.^ And under the United
States act of 1800, if commissioners of bankruptcy, in their
declaring a man a bankrupt, specified the day when he became
so, it was not conclusive as to the time, they having no authority
to decide it.*(a)
§ 4. It is in general provided, that parties dealing with a bank-
rupt shall not be prejudicially affected by an act of bankruptcy
on his part, either prior to or consisting in such dealing, without
notice of the character of the act. Thus a bankrupt, previously
to his bankruptcy, deposited timber with the defendants, who were
wharfingefs, to be kept on their wharf, and delivered on pay-
ment oi the wharfage. On the 7th of February, 1848, a fiat
issued against him, and the plaintiff was appointed oflScial assignee.
The bankrupt, after the fiat, sold the timber, and between Sep-
tember, 1848, and January, 1849, it was delivered to the pur-
1 Smith's Merc. L. 466. ' Belcher v. Gummow, 9 Ad. & Ell. N.
2 Higgins V. MoAdam, 3 Y. & Jerv. 873 ; Gibson v. King, Car. & M.
10. 462.
* Rathbone v. Blackford, 1 Caines, 588.

(a) A trader entered into a contract to deliver goods at a stated time at a

specified price. He performed part of the contract, but before the time or
times for the performance of the remainder he petitioned, under ? 211 and
subsequent sections of the bankrupt law consolidation act, 12 & 13 Vict,
c. 106, but, no arrangement being effected, he was adjudicated bankrupt on
that petition. In the account of debts filed, he inserted a sum as due from
him for loss on the unfulfilled parts of the contract. A proof was tendered
by the purchaser of the goods, for the amount (less than that specified by
the bankrupt) of the loss by reason of the non-delivery of the goods. One
of the commissioners allowed the proof for the sum claimed. Upon appeal,
it was held, that the original petition for arrangement created a valid act of
bankruptcy under ? 76 of the statute; that the bankruptcy did not reliite
back to the presentation of that petition; and that the admission of the
debt by the bankrupt in his account was evidence of a debt as against the
assignees, and the purchaser was entitled to prove for the amount he claimed.
Harrison, 39 Eng. Law & Eq. 313.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 21

chaser by the defendants, who had no notice of the bankruptcy.

In February, 1849, the other plaintiffs were appointed trade
assignees. In trover, held, that the defendants were not liable,
being protected by the 6 Geo. 4, c. 16, s. 84 ; that the issuing
of the fiat was not notice to all the world of its issuing, the fiat
not standing on the same footing as the old commission of bank-
ruptcy and
; that the words in the 84th section, " goods belonging
to any bankrupt," mean goods which belonged to the bankrupt
at the time they were deposited in the possession or custody of
the person delivering them, and which would have continued to
be his property unless an act of bankruptcy had occurred.' So
an execution against the goods of a bankrupt is valid, within the
12 & 13 Vict., c. 106, s. 133, when the sheriff executes the bill
of sale, notwithstanding it contains a clause of indemnity to the
sheriff by the execution creditor, and is not executed by the latter
until after he has had notice of an act of bankruptcy.^ But
though a levy is protected by the statutes, yet where one com-
mitted an act of bankruptcy by assigning his effects to a trustee,
and a creditor, without notice, levied upon them, and the trustee
then paid the execution, taking -an assignment of the goods from
the sheriff, it was held that the assignees in bankruptcy might
maintain trover against him.* And notice that one has executed
a deed of all his property for benefit of creditors is notice of an
act of bankruptcy.*
§ 5. An act of bankruptcy is sometimes spoken of as a crime.^
It is said : " The early bankrupt laws of England proceeded
upon an assumption which they maintain to this day ; it is, that
bankruptcy is a crime, and that he who is guilty of it may prop-
erly be proceeded against as a criminal."^ So Lord Mansfield
remarks: "An act of bankruptcy, in the eye of the law, is
considered as a crime ; but where is the crime of denying one's
self to another by previous consent and agreement ?"' So it is
said, "the bankrupt acts are Juris positivi ; no positive crime can
1 Cannan v. The South., etc., 14 Eng. 6 Hooper v. Smith, 1 Bl. R. 441.
L. & Eq. 334. « 2 Pars, on Contr. 583.
2 Christie v. Winnington, 18 Eng. L. & ' Hooper v. Smith, 1 Bl. B. 441. See
Eq. 529. Bamford v. Baron, 2 T. R. 595, n. ;
8 Fawcett v. Fearne, 6 Ad. & Ell., N. 20. Cooper v. Chitty, 1 Burr. 31.
^Lackington-!>. Elliott, 7 Man. & Gr.
588. See Conway v. Nail, 1 Man.
Gr. & So. 643.
22 BANKRUPTCY AND INSOLVENCT. [CHAP. 11.

be created by construction."' So Lord Kenyon remarks : " The

bankrupt in the old laws is called an ofiFender; but it is a prin-
ciple of natural justice and of our law, that actus non facit reum
nisi mens sit rea."^ And it is said by an approved elementary
writer: "In consequence of a principle which long obtained,
though now almost exploded, that bankruptcy was to be looked
on as a erime, and acts of hanhruptcy as criminal, it has been
frequently laid down that such acts are not to be multiplied by
any construction or implication."* For the same reason, among
others, it has been decided that an act of bankruptcy could not
be committed abroad. (See pp. 26-7.) But in later cases it is
said that an act of bankruptcy is no longer a crime,* and that "it
is long since the original view of bankruptcy, according to which
it was regarded as a crime, has become obsolete."' (a) So Lord
Loughborough remarks : " The law, upon the act of bankruptcy
being committed, vests his property upon a just consideration ;
not as a forfeiture, not on a supposition of a crime committed, not
as §a [Link]."*
As has been already remarked, acts of bankruptcy are
specific, and the creatures of positive law.'^ But when committed,
they constitute, and are not merely evidence of, bankruptcy or
insolvency. "A clear act of bankruptcy can in no case be ex-
plained."® Thus departure from a dwelling-house is itself an
act of bankruptcy ; therefore the length of absence is immaterial.'
And a party may be estopped to deny the truth of his own
declarations as proving an act of bankruptcy. Thus an absent-
1 Per Aston, J., Cooke, 113. ' Cole v. Davis, 1 Ld. Ray. 725 ; Gas. in
2 Fowler v. Padget, 7 T. R. 509. Cha. 42 ; Clayey v. Haley, Cow.
s Smith's Merc. L. 490. 429 ; Bull. N. P. 40 ; Harrman v.
*Cumming v. Bailey, 6 Bing. 871. See Spottiswood, Cooke, 126.
ch. 1. 8 Per BuUer, J., Colkett u. Freeman,
5 Per Lord Denman, C. J., Belcher v. 2 T. R. 59.
Gummow, 9 Ad. & Ell., N. 876. 'Holroyd v. Gwynne, 2 Taun. 176.
6 Sill V. Worswick, 1 H. Bl. 665.

(a) An indictment for not surrendering must allege an intent to defraud.

Eeg. V. Hill, 1 Car. & Ker. 168. I have been able to find no precedent of
an indictment for bankruptcy, as such, divested of any criminal element or
incident. But Blackstone says that the bankrupt, upon examination, is
bound, upon pain of death, to make a full discovery of all his estate. 2 Bl.
Com. Book 2, c. 31. And that fraud in general in bankruptcy proceedings
is a capital crime. lb., Book 4, c. 12, s. 3.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 23

ing which is shown to be fraudulent by the declarations of the

party is an act of bankruptcy, although the jury find that such
declarations were not made bond fide} So any of the fraudu-
lent acts enumerated in the Massachusetts insolvent law (St,
1844, c. 178, s. 9) furnish ground for proceedings in insolvency
against the debtor, without alleging or proving that he is insol-
vent.* These remarks, however, apply only to the legal eifect of
the act when potitively proved. In regard to the proof itself, as
in other cases, primd facie or circumstantial evidence is open to
explanation. Thus it is said: "A denial, by order of a trader, to
a creditor is not of itself an act of bankruptcy, but only evidence
of it, and therefore to be explained. If a man is sick, or if a man
lives three days in business and the rest of the week in the coun-
try, this explains a denial at any other house or lodging at any
other part of the town, saying, Go to the shop. On the other
hand, it is not necessary, in order to constitute a denial an act of
bankruptcy, that the bankrupt should have given orders to deny
any particular person by name ; if he gives orders to be denied
to everybody, it includes creditors, and is a keeping of the house."*
So evidence may be received, to show that a transfer of property
by indorsement merely was intended for the benefit of all the
creditors, and therefore not an act of bankruptcy.* And in
regard to this particular class of acts of bankruptcy. Lord Mans-
field remarked : " Of all the equivocal facts which can amount to
acts of bankruptcy, deeds are the most open to be explained by
a variety of circumstances."* So it seems, where one whose goods
have been seized quits his home, whether he did it for the purpose
of obtaining the means of payment, and whether he remains ab-
sent to avoid his creditors, are questions for the jury.*
§ 7. It has been sometimes held that a commission may be sup-
ported byproof of any antecedent act.' But, in general, either the
provisions of the statute or the rules of court require the particular
acts of bankruptcy intended to be relied on to be specially set
forth, and no other will be considered.* And, the legislature
having by positive laws declared what acts shall be considered as
1 Johnston v. Woolf, 2 Scott, 372. * Potts, Crabbe, 469.
2 0'Neil V. Glover, 5 Gray, 144; ace. ^ Worseley v. De Mattos, Burr. 484.
Smith's Merc. Law, 465-6. • Batohelor v. Vyse, 4 Moo. & So. 552.
"Per Lord Mansfield, Bound v. Hope, 'Dufrene, 1 Ves. & B. 51.
Coo. B. L. 94. 8 Potts, Crabbe, 469.
24 BANKEUPTCT AND INSOLVENCY. [CHAP. II.

criterions of insolvency or fraud whereon to ground a commis-

sion, (a)none other can be admitted by inference or analogy.'
§ 8. One cannot commit an act of bankruptcy by the conduct
of his agent, unknown to him.^
§ 9. A bankrupt cannot, either in law or equity, set up a prior
secret act of bankruptcy to invalidate his commission.* Nor will
such commission be invalidated by a prior act of bankruptcy,
though a sufficient debt then existed.*
§ 10. " Once a bankrupt, and always a bankrupt. "° A clear
act of bankruptcy cannot be purged or cancelled ; (6) -a doubtful
act may be.* Thus absconding, even for half an hour, is suffi-
cient.^ So, if a trader gives a general order to be denied, and
is denied to a creditor, this is a beginning to keep house, though he
immediately overtake the creditor and say that he was not afraid
of him, but of another creditor.* So an agreement by a creditor
who has received an unlawful preference, to surrender the prop-
erty received, and to share pro raid with other creditors, made
before commencement of insolvency proceedings, but not consum-
mated until afterwards, does not purge the illegality.'
§ 11. A concerted denial or other act of bankruptcy, or one
committed by collusion with any of the creditors, is held no legal
1 Cole V. Davies, 1 Ld. Ray. 725 ; Manning, 2 Esp. 597 ; Miles o.
Paclienliam o. Blan, Sel. Cas. in Rawlins, 4 Esp. 194.
Cha. 42. 6 2 Bl. Com. B. 2, o. 31.
2 Cotton V. James, M. & M. 273 ; 3 C. « Bromley v. Munday, Bull. N. P. 39 ;
& P. 505. Oolkett v. Freeman, 2 T. R. 59.
'Rex V. Bullock, 1 Taun. 71. 'Palm. 325, Colkett v. Freeman, 2 T.
■« Donovan v. Duff, 9 E. 21 ; Kennett R. 60.
■u. Duff, 2 Smith, 44. But see Doe ^jiuotiow v. May, 1 Taun. 479.
■0. Bouloot, 2 Esp. 595; Parker v. 'Blodgett «. Hildreth, 11 Cush. 311.
(a) Where the signature of the commissioner to the original summons,
shown to a trader on serving him with the summons, under the 78th section
of the bankrupt law consolidation act, was omitted in the copy of such sum-
mons left with him, it was held that this was not a personal service of the
summons upon the trader, within the meaning of the 80th section of the act,
and that his not appearing before the commissioner after such service did
not constitute an act of bankruptcy upon which an adjudication against him
could be founded. Tindall, 31 Eng. Law & Bq. 545.
(6) " Unless a man pays off or compounds with all his creditors, in which
case he becomes, as the phrase is, a new man." Hopkins v. Ellis, Salk. 110.
Lord Mansfield remarked, however : " I am sorry the phrase has crept into
use, because it confounds the idea which ought to be. annexed to it."
Worseley v. De Mattos, Burr. 484.
CHAP. 11.] ACTS OF BANKRUPTCY AND INSOLVENCY. 25

ground . for a commission.' (a) But though a trader deny him-

self for the express purpose of becoming bankrupt, this is ground
for a commission by a creditor not privy to it.*
§ 12. It is held that, in order to sustain a joint commission,
there must be separate acts of bankruptcy by each partner.*
Thus where one of several bankers, partners, who was the only
one that resided at the place where their banking-house was, and
was the only acting partner, shut the bank, absented himself
from it, and stopped payment, held not evidence of a bankruptcy
of all.* But where A. and B. were partners, A. residing in Man-
chester, B. in London, and B. left his home with no fraudulent
intent, and made a visit of a few days at Manchester, and both
A. and B. left the house of business at Manchester, to avoid
arrest, taking their books with them ; held an act of bankruptcy
in both.®
§ 13. It is in general expressly provided that acts of bank-
ruptcy must be done with intent to delay creditors, and this
intent, rather than the a'ctual result, is held to constitute the
essence of the act. Thus, if one depart with intent to delay his
creditors, this is bankruptcy, though no one is delayed;* while,
on the other hand, without such intent, actual delaying is insuffi-
cient.' Thus a trader went to his neighbor, and told him that he
expected to be arrested. While at the neighbor's, he was informed
that an officer was going toward his house, whereupon he hid in a
back room, requesting the neighbor to watch. On being told that
the officer had passed his house and left the street, he immediately
went home. No creditor was hereby or possibly could be delayed.
Held an act of bankruptcy.*
§ 14. There must be a valid, subsisting, and complete act of
bankruptcy when the commission is sued out.' But an act subse-
1 Barnes v. Billington, 1 Wash C. 29 ; ^ Spencer v. Billing, 3 Camp. 314.
Hooper v. Smith, W. Bl. 441 ; « Eobertson v. Liddell, 9 E. 487.
Bramley v. Mundee, Bull. N. P. 39 ; ' Fowler Padget, 7 T. R. 509.
Stewart?). [Link].N. P. 108; sChenometh v. Hay, 1 M. & S. 676.
Pleasants v. Meng, 1 Dall. 390. See Young v. Wright, 2 Marsh.
2 Roberts v. Teasdale, Peake, 27. 233 ; 6 Taun. 540.
3 Allen V. Hartley, 4 Doug. 20. "Glassington v. Rawlins, 4 Esp. 224;
* Mills V. Bennett, 2 M. & S. 556. 3 E. 407.

(a) See Marshall v. Barkworth, 4 B. & Ad. 508 ; Stewart v. Richman, 1

Esp. 108 ; Gouthwaite, 1 Rose, 87 ; Bourne, 16 Ves. 145 ; Roberts v. Teas-
dale, Peake, 27; Prosser v. Smith, Holt, 442; Edmonson, 7 Ves. 303;
Dufrene, 1 Ves. & B. 56.
26 BANKRUPTCY AND INSOLVENCY. CHAP. II.

quent to the striking of the docket, but previous to the sealing of

the commission, is sufficient.^ For this purpose the law notices a
fraction of a day, admitting evidence that the act, though on the
same day, was previous to the issuing, i.e. the awarding and seal-
ing of the commission." And the commission is valid, though the
act was so short a time prior to it, and at such a distance from
London, that notice of the act was impossible.^ (a) So it is held
that a docket struck without an act of bankruptcy, upon the belief
of a creditor that one had been committed, will support a com-
mission upon a subsequent act.* (6)
§ 15. The act may be committed after the trading has ceased;
if during the existence of a petitioning creditor's debt, contracted
while in trade.* So, where a person became indebted, and after-
wards became a trader, and committed an act of bankruptcy, the
debt still subsisting; held, the debt would support a commis-
sion.' An act committed before the passing of the statute is not
sufficient to support a commission.' But where a trader commit-
ted an act of bankruptcy, upon which a commission might issue
under then existing statutes, which statutes were repealed, and
the repealing statute afterwards repealed; held, a commission
might issue.* (c)
§ 16. In regard to place, it is held that the act must be com-
1 Dufrene, 1 Rose, 333 ; 1 Ves. & B. « Baillie v. Grant, 2 M. & So. 193.
51 ; Simpson v. Sikes, 6 M. & S. 312. ' Hewson v. Heard, 9 B. & C. 754, n. ;
2 Wyolown, 14 Ves. 80. Palmer v. Moore, ibid. 754, n. ;
' Hopper V. Richmond, 1 Stark. 607. Maggs v. Hunt, 12 Moo. 357. See
* Webster, 2 Glyn & J. 252. Surtees v. Ellison, 9 B. & C. 750;
^Dewdney, 15 Ves. 495; Bourne, 16 Worth v. Budd, 2 B. & Ad. 172.
ibid. 145. » Phillips v. Hopwood, 10 B. & C. 38.

(a) By St. 2 & 3 'Vict. c. 29, s. 1, an act of bankruptcy shall not affect
the validity of any transaction with the bankrupt, unless the other party had
notice of such act.
(6) On an application to supersede a commission and issue another, the
commission being prior to the act of bankruptcy, an affidavit was required
from the solicitor of his reason for taking out the commission ; pending
which, the time having expired, another creditor obtained a supersedeas
and a commission, under the apprehension of immediate extents. The bank-
ruptcy was afterwards declared under the first commission, upon prior acts;
but the latter commission was preferred. Mavor, 19 Ves. 539.
(c) Under the old United States bankrupt law, the act which constituted
a bankruptcy must have happened within six months before the commission
issued. Barnes v. Billington, 1 Wash. C. C. 29.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 27

mitted in England or Wales.* (See p. 22.) Thus, where one exe-

cuted adeed in India in trust for his creditors, Lord Kenyon re-
marked, that he "was not then in a situation in which the bank-
rupt laws of this country could have any operation either upon
him or upon his property."^ But a letter from a trader who has
gone abroad in the course of his trade, connected with circum-
stances inEngland, may be suflScient evidence of the act.^
§ 17. Among the prominent acts of bankruptcy, is absenting
one's self or keeping house, to delay creditors. (a) The language
of the English statutes is, "absent from his dwelling-house, or
otherwise absent himself." Under this act, it is held suflScient
for one to absent himself from any place with the intent, whether
a creditor is delayed or not.* So the house need not be literally
a dwelling-house. Thus it is sufficient if a miller keep within his
mill, or a church-warden within his church." So absence from one's
usual abode is sufficient, if he has no fixed place of residence.^
So two partners left their shop, telling the shopman that they
were going out to get some bills discounted, and directing him to
say that they were not in the way, or to make some excuse for
them if a creditor should call. On that and the next day a
creditor called, when they were both at home, and requested to
see either of them; when the shopman without authority denied
them. Held, sufficient evidence for the jury of an absentingJ
So a trader, having a counting-house in town and a dwelling-
house in the country, left the former, carrying his books, with
no intention of returning, and in fact never returned; slept a
few nights at his dwelling, and then finally left that also. Held,
the first act was an absenting himself, within the statute.' So,
1 Smith, Cow. 402. 'Cooper, 141; Stone, 124.
2Inglis8 V. Grant, 5 T. R. 534. ecom. Dig. Bankrupt, C. c. 1.
'Hague, 1 Rose, 150. 'Capper v. Desauges, 8 Moo. 4; Deffle
* Haller ». Homer, 1 C. & P. 108; Cam- v. Desauges, 8 Taun. 671.
bridge u. Auderdon, 1 ibid. 218 ; ' Judine v. Da CoBsen, 1 N. R. 34.
Curteis v. Willes, 4 D. & R. 224.

(a) Or concealing himself — sometimes called obscuring. Wolstonhome,

Hughes Abr. 315; Mont. 66.
Taking sanctuary was by the old statutes an act of bankruptcy, but abol-
ished by a later statute. CuUen's Bank. L. 39. So non-payment of a debt
to the amount of £100 within two months from a summons, by a trader
"having privilege of Parliament." But it is said, "for the honor of Par-
liament; there is no case upon the subject." Ibid. 61.
28 BANKRUPTCY AND INSOLVENCY. [CHAP. 11.

where one has no settled house or counting-house, but takes up

his temporary abode at an inn in the place where his business
carries him, it is an act of bankruptcy for him to leave the inn
with intent to defraud his creditors.^ So a country trader was
in the habit of occasionally visiting London, and staying a day or
two at the house of a friend, where he wrote letters, and ordered
goods to be sent to him. A creditor living in the same street, he
told his friend not to inform the creditor that he was in town,
because he would ask for money. Soon after, the creditor called
at the house on business, and the bankrupt went into a back
warehouse for ten or fifteen minutes to avoid him. Held, a be-
ginning to keep house.^ So an act of bankruptcy by beginning
to keep house may be by closing the doors, without change of
place or denial to creditors.^ So it is an act of bankruptcy in
bankers, being themselves within, to close the doors and win-
dows of the bank, and thus exclude their customers, and for that
purpose, and this, though neither of them live there.* So shut-
ting abanker's shop is an act of bankruptcy in a partner who
resides elsewhere." So, if one leave his house to avoid a creditor
without collusion, he is liable to a commission, though he subse-
quently reside with the petitioning creditor.^ Or if one leave his
house to avoid his creditors, though no creditor called in his
absence.^ Or if one leave his house, or avoid a particular place,
under the influence of an unfounded apprehension of his cred-
itors.* Or if one liable as a surety keep house for fear of arrest.'
Or if one leave his house to avoid irritation and harsh language
from his creditors, who were at the house.^" Or on account of
family dissensions, if he make no arrangements for carrying on
business in his absence, and foresee that his establishment must
be broken up and his creditors delayed; which result actually
ensues." So a trader under arrest escaped into another's house.
The officer pursued and inquired for him, but he was denied and

iHolroydw. Gwynne, 2 Taun. 176. SBamford, 15 Ves. 447; Newman v.

2 Curteis v. Willes, 4 D. & R. 224. Stretch, M. & M. 338 ; Robsoa v.
8 Gumming v. Bailey, 6 Bing. 863 ; 4 Rolls, 2 M. & Sc. 786 ; 9 Bing. 648.
M. & P. 36. » Denham's case. Stone, 188 ; Heyler
*Ibid. «. Hall, Palm. 825.
'Mavor, 19 Ves. 543. loyinoent v. Prater, 4 Taun. 603.
« Gardner, 1 Ves. & B. 45. n Holroyd v. Wliitehead, 3 Camp. 580.
' Hammond t). Hioks, 6 Esp. 189 ; Wy- But see Fisher v. Boucher, 10 B. &
down's case, 14 Ves. 86. C. 705.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 29

the door kept fast ; and he declared that this was done for fear of
other creditors. At dark, he returned to his house, ordered that
he should be denied to all callers, and remained nearly a month
in his bedroom. Held, an act of bankruptcy by absenting him-
self.' So one of three partners, bankers, left his house at Bath,
and went to London to raise funds ; but, not succeeding, he re-
mained there three days. Held, the jury were authorized to find
an absenting.^ So the alleged bankrupt collusively assigns his
house in town, stock, etc. to the plaintiff, and retires to Padding-
ton. The plaintiff takes possession and carries on the business,
concealing the bankrupt's residence from his creditors. Three
months afterwards a commission issues against the bankrupt,
under which the assignees take possession of the house, etc. ; and
the plaintiff brings trespass against them. Held, the facts were
evidence for the jury of an act of bankruptcy, in the party's
departing from his dwelling or otherwise absenting himself.* So
it is an act of bankruptcy, for one in the habit of frequenting the
exchange to collect news, to leave it on sight of a creditor, re-
questing friend
a to say he was not there. Or for the proprietor
of a theatre to go behind the scenes, to avoid an oflBcer, giving
orders to be denied.* So, if a debtor appoint a time and place to
meet and pay his creditors, a failure to keep such appointment is
presumptive evidence of an intent to delay creditors." But, on
the other hand, "if a trader leave his house, circumstances may
show that it was not for the purpose of absconding."* So the
departure of a man under embarrassed circumstances is strong
but not conclusive evidence of intention.' It is a question for
the jury.' So absenting one's self, except from the place of abode
or business, or to avoid a creditor, is not an act of bankruptcy.®
Nor for a trader to go abroad to look after his concerns, without
any fraudulent purpose, though his creditors are thereby delayed.'"
Though it would be otherwise, if another object was to avoid
arres*." So a trader, being informed by the attorney of the
1 Bayly v. Sohofield, 1 M. & S. 338<' ' Osborne, 2 Tea. & B. 177.
2 CummiDg v. Bailey, 6 Bing. 363. 8 Aldridge v. Ireland, 1 Tauu. 273, n.
8 Young V. Wright, 2 Marsh. 233 ; 6 » Bernaeooni o. Farebrother, 10 B. &
Taun. 540. C. 549.
* Gunmingham v. Laing, 2 Marsh. 236 ; " Warner v. Barber, Holt, 175; Mutrie,
6 Tann. 532. 5 Ves. 574.
5 Widger v. Browning, 9 D. & R. 306. " Ibid.
• Per Lord Mansfield, Worseley v. De-
mattos, 1 Burr. 467.
30 BANKRUPTCY AND INSOLVENCY. [CHAP. 11.

petitioning creditor that he had delivered to an officer a warrant

for his arrest, who was seeking for him, was advised by the attor-
ney to go to his office, in order that he might not be arrested in
the street, which he did, and stayed there some time. Held, not
an act of bankruptcy.^ So a mere failure to keep an appoint-
ment with a creditor is not an act of bankruptcy.^ Thus, if a
trader promise to meet a creditor at the office of his solicitors, in
order to give him security, but fail to do so, this is not an act of
bankruptcy, unless done with intent to delay the creditor.* So it
is not sufficient, that a sheriff who comes with an execution is
refused admittance after the party has left his house.* So a
trader left a message at his house for a creditor, who in his
absence had called for a debt, that he could spare no money and
would not pay him that day, and would go out of the way and
stay till dinner-time. Held, this evidence justified the jury in
finding that he did not absent himself to delay the creditor.* So
a trader left her dwelling-house and went to London, to induce a
creditor to withdraw his execution, and left word where she had
gone, but, not being successful, did not return to her dwelling.
Held, no act of bankruptcy.* So a trader, fearing an unpleasant
letter from a creditor, quit his house, desiring that the letter be
forwarded to him at a turnpike, and intending not to return if the
letter should be unfavorable — otherwise, to proceed with his busi-
ness. The letter being favorable, he went on in business. Held,
not an act of bankruptcy.'
§ 18. With regard to the evidence of absenting, etc. ; in an ac-
tion between an assignee and a creditor, a declaration by the
bankrupt, made at the time, of his motives for absenting himself
from his home, is competent evidence to prove an act of bank-
ruptcy;* though it is held otherwise, with declarations made
shortly after an absence.' So the declaration of a bankrupt, on
his return, that he had absented himself to avoid a writ, is suf-
ficient proof of an act of bankruptcy, without other proof of the
existence of such writ, or of the debt on which it was founded, or
1 Mills V. Elton, 8 Price, 142. * Barnard v. Vaughan, 8 T. R. 149.
» Key V. Shaw, 1 M. & So. 462 ; 8 Bing. See Schooling v. Lee, 3 Stark. 149.
820 ; Toleman v. Jones, 9 Moo. 24. » Vincent v. Prater, 4 Taun. 608.
See Lees v. Marton, 1 M. & R. 210. « Aldridge v. Ireland, 8 Doug. 397.
» Toleman v. Jones, 9 Moore, 24 ; Tucker ' Fisher v. Boucher, 10 B. & C. 705.
V. Jones, 2 Bing. 2. »Bateman ». Bailey, 5 T. R. 512.
» Lees V. Marton, 1 M. & Bob. 210.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 31

of the creditor of the bankrupt.* So where the act of bankruptcy

is an absconding to avoid arrest, general proof of the fact is suf-
ficient, without proof that writs were issued.'' (a)
§ 19. A trader, at the suggestion of his attorney, called a meet-
ing of his creditors at a certain time and place ; and on the morn-
ing of that day went to the attorney's office, and inquired of him
whether he could safely attend without arrest. The attorney
advised him to remain at the office till it should be ascertained
whether the creditors would agree to give him a safe conduct.
Accordingly, he remained at the office over two hours, to avoid
arrest, till the attorney returned from the meeting. Held, upon
the question whether the proceeding was an act of bankruptcy,
the above communication between the bankrupt and his attorney
was competent evidence.*
§ 20. It is not necessary that a creditor be actually delayed.^
§ 21. With regard to denial as an act of bankruptcy, (which
of course is closely connected with absenting,) an order to servants
to deny a party because he is busy is an act of bankruptcy,*
more especially an order to deny, accompanied by an act — as retir-
ing to an unusual part of the house.^ So where a creditor called
upon the bankrupt by appointment, and he left the room and did
not return, and his wife said he had gone out; held, sufficient to
warrant a jury in inferring that he left for the purpose of avoid-
ing his creditor.^ So, though a creditor call, not for his debt, but
for another purpose, yet, if the party deny himself, supposing
that the former is the object, it is an act of bankruptcy.^ Or
denial to a creditor who comes to buy goods, intending thus to
obtain payment.* Or a general order to be denied to all comers,
and a consequent denial to one.'" So where creditors call upon a
1 Newman u. Stretch, M. & M. 338. sFlgher v. Boucher, 10 B. & C. 705;
2 Wilson V. Norman, 1 Esp. 384. ace. Dudley v. Vaughan, 1 Camp.
s Bramwell v. Lucas, 4 D. & R. 367 ; 2 271 ; 9 E. 491 c.
B. & C. 745. ' Charrington v. Brown, 11 Moore, 341.
* Lloyd V. Heathcote, 5 Moo. 129 ; Har- s White, 3 Ves. & B. 129.
vey V. Ramsbottom, 2 D. & R. 142. » Harris, 2 Rose, 07.
6 Stafford v. Clarke, 1 C. & P. 27. " Lloyd v. Heathcote, 5 Moo. 129 ;
Mucklow V. May, 1 Taun. 479.

(a) Whether letters of and to the bankrupt are evidence; see Sanderson v.
Laforest, 1 0. & P. 46 ; Kawson v. Haigh, 9 Moo. 217 ; Cotton v. James, M.
& M. 273. As to the general mode of proof of acts of bankruptcy, see Eex
V. Bullock, 2 Leach C. C. 996 ; 1 Taun. 71 ; Osborne, 2 Ves. & B. 177; Wood,
1 Rose, 298 ; Rowe, 2 Rose, 339.
32 BANKRUPTCY AND INSOLVENCY. [CHAP. II.

party for money, and he is not denied to them, but sees them, and
pretends to go out for money, but does not endeavor to get it, nor
return, this is an act of bankruptcy,'
§ 22. But an order to deny is not sufficient, without actual de-
nial.^ So if a trader, apprehending arrest, direct his servant to
deny him in case a- particular officer call, but he does not call,
this is no evidence of a beginning to keep house.^ And subsequent
approval of a denial not previously ordered is not sufficient.* Nor
a denial, if the debt is payable in futuro.^ Nor if the creditor
merely asks payment, but not to see the party.* Nor where one
directs his servant to deny him to any one who should call while
he was dining or engaged in business, which is accordingly done.'
Nor, in such case, where the trader knew of the coming of a
particular creditor.'
§ 23. There must be a denial with an intent to defraud or
hinder the creditor. Keeping house with such intent is not
enough.' And there must be a purpose to avoid a creditor.
Thus a party was arrested, and released on a promise to give
bail. To the officer calling for that purpose, he was repeatedly
denied. Held, no evidence of an act of bankruptcy, the purpose
being notj to avoid a creditor, but to escape giving bail.'" So it is
not an act of bankruptcy for one to cause himself to be denied
to a creditor who calls for payment on Sunday, though by the
debtor's appointment." Nor a denial at a late hour, after retiring
to rest.'^
§ 24. It has been made a question whether the denial must be
to the creditor personally. In practice this is treated as unne-
cessary.*' Denial to a tax-collector is sufficient." Or a collector
of church and highway rates.'* But denial to a sheriff has been
held not an act of bankruptcy, unless he went to serve process
1 Bigg V. Spooner, 2 Eap. 651. « Garnett ». Moule, 5 T. R. 575 ; Jaok-
2 Fisher v. Boucher, 10 B. & C. 705 ; man v. Nightingale, Bull N. P. 49.
Wydown's case, 14 Ves. 86; Jack- i" Schooling v. Lee, 3 Stark. 149. See
man v. Nightingale, Bull N. P. 40; Barnard ti. Vaughan, 8 T. R. 149.
Fowler «. Paget, 7 T. R. 515; Haw- " Preston, 2 Ves. and B. 311.
kins V. Saunders, Cooke, 96. 12 Hughes «. Gilman, 10 Moo. 480.
° Ibid. 13 Bramley v. Mundee, Bull. N. P. 39 ;
« Foster, 1 Rose, 60. Colkett v. Freeman, 2 T. R. 59 ;
s 6 Vin. Abr. 61. ' Jackman v. Nightingale, Bull. N. P.
6 Dudleys). Vaugh«,n, 1 Camp. 271. 89, 40; Esp. Dig. 554; Garret v.
' Shew «. Thompson, Holt, 159. Moule, 5 T. R. 575.
8 Smith V. Currie, 3 Camp. 349. " Sanderson v. Laforest, 1 C. & P. 46.
"Lloyd V. Heatheote, 5 Moo. 129.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 33

on the debtor.^ Nor a debtor's concealing himself or being

denied to his creditors, unless a service was thereby prevented.^
§ 25. With regard to the immediate agents or servants of the
creditor, denial to a clerk of a creditor, who merely asks to
see the party, but not for money, is suflScient, if the clerk, to the
knowledge of the party, called for money.' So, if a trader denies
himself to one who desires he may be told that a designated bill
is dishonored, and he therefore wishes to see him, it is sufficient,
without further proof of his being a creditor, if the party so con-
sidered him.* So is a denial to a servant, calling for a debt by
direction of the acknowledged agent of the creditor, and by
appointment of the debtor.' So an aged member of a banking
firm was arrested at his dwelling-house, several miles distant from
the place of business, for a partnership debt. The officer having
been induced to retire under the promise to give bail, he reproved
his servants for admitting the officeis, and forbade their admitting
any stranger, saying he was afraid of another arrest. The next
day the servants ascertained from the windows who applied for
admission, before opening the door, and the outer gate of the
house was kept locked, and the party removed to another room
to avoid being seen by a caller, whom he supposed to be a cred-
itor. Held, though no creditor was denied, there was an act of
bankruptcy on the latter day.*
§ 26. If one of the trader's family deny him in his hearing,
and with intent to delay he remain quiet, this is an act of bank-
ruptcy.'
§ 27. The place of denial is immaterial.' Though the party
is always accessible at his place of business in London.'
§ 28. When the order to deny is on one day, and the denial on
another, the act of bankruptcy is on the latter.'"
§ 29. On the morning of the day when a bill matured, the
debtor was denied to the holder by his express order, but before
five o'clock it was paid. By custom, a party has the whole day
1 Barnes v. Billington, 1 Wash. C. 29 ; « Harvey v. Bamsbottom, 2 D. & R
4 Day, 81, n. 142.
2 Ibid. ' Smith v. Moon, M.. & M. 458.
' Hughes V. Grilman, 10 Moo. 480. ^Park v. Prosser, 1 C. & P. 176.
* Bleasby v. Crossley, 8 Bing. 430. » Ibid.
5 Bamford, 15 Ves. 449. «> Hawkes v. Sands, 3 Doug. 429.
3
34 BANKRUPTCY AND INSOLVENCY. [CHAP. 11.

till that hour in which to pay a bill. Held, a complete act of

bankruptcy.*
§ 30. In case of an alleged keeping house, denial is usually
shown, not as proof of delaying, but to explain the equivocal act
of the party, as done with intent to delay.''
§ 31. The question, whether the denial was tO a creditor, is for
the jury.* If a witness testify that several persons called whom
he believed to be creditors, this is evidence for the jury.* So a
trader directed his servant to say, if any creditors called, that he
was not at home. He was accordingly denied, but was at the
time ill, in bed. Held, it was a question for the jury, whether
this was a beginning to keep house, and they were justified in
finding that it was.* So a trader, having been denied to a creditor
calling for money, was soon after seen peeping over the shoulder
of his wife. At another time, seeing a creditor coming, he retired
behind a partition at the back of his shop, and his wife, coming
forward, said he was not at home. Held, it was a question for
the jury whether he had committed an act of bankruptcy.* So,
if a trader is denied to a creditor's clerk, at his shop, after it is
closed for the evening, though at an earlier hour than usual, it is
a question for the jury whether the denial was made on account of
the time, or for the purpose of delaying the creditor.^
§ 32. Another act of bankruptcy is departing. It was for-
merly held, that if one depart, and creditors are actually delayed,
this is no act of bankruptcy, unless such was the intent.' It is
otherwise by later decisions.' But the former doctrine is now
revived in the leading case of Fowler v. Padget,*" where it is held
that the later cases are decided on other grounds.
§ 33. But the intent may always be explained by evidence.
The absence, etc. is not an act of bankruptcy, but only evidence
of one." The prevailing rule is, that if delay of creditors is the
necessary consequence of the act done, the statutes apply; as in
the old cases where one fled for the murder of his wife ; ojr went

1 Colkett V. Freeman, 2 T. K. 59 ; Wood « Hall, 1 Atk. 201 : Worsely ■e. Demat-

V. Thwaites, 8 Esp. 245. tos, 1 Burr. 484.
2 Robertson v. Liddell, 9 E. 487. » Woodier's case. Bull. N. P. 39 ;
» Jameson v. Earner, 1 Eap. 881. Raikes v. Porreau, Cooke, 95 ; Ver-
* IWd. non », Hankey, ibid. 123.
5 Lazarus v. Waithman, 5 Moo. 813. '"V T. R. 609.
• Key V. Shaw, 8 Bing. 320. " Ub. supra.
' Hughes V. Oilman, 10 Moo. 480.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 35

abroad at the instigation of a young lady whom he courted; or

absconded to Calais, on account of an impending prosecution for
perjury. But absconding to avoid an excommunicato capiendo,
is held not an act of bankruptcy. And the departure must be
voluntary. Thus the acts do not apply where one is taken away
under an arrest.' Though if one is arrested, gives his word to
the bailiff to put in bail, and then absconds or keeps within to
avoid the consequence, this is an act of bankruptcy.^ And if
one absconds to avoid arrest, it need not be shown that any writ
had issued.*
§ 34. Where the absconding is doubtful, if the party go beyond
sea, and trade, as this negatives the purpose of concealment, he is
not a bankrupt. Otherwise if the first act is clear,*
§ 35. Absconding, accompanied by misrepresentation made to
a creditor by the party's desire, is bankruptcy.* But where a
merchant went to his estate at Barbadoes, with the knowledge of
his creditors, seeing them daily and remitting to them ; held, he
should not be made a bankrupt for having five years before denied
himself to such creditors.*
§ 36. It has been doubted whether a party's flying to his own
State to avoid arrest, is an act of bankruptcy.'^
§ 37. A distinction is made between absconding to avoid per-
formance of a duty and payment of a debt. Thus if it be to
avoid an attachment for non-performance of an award, this is not
sufficient.*
§ 38. Under the English law, concealment of goods has been
held not to be bankruptcy.' In the earlier statute of the United
States, this was expressly included among acts of bankruptcy. The
concealment of goods, as distinct from a fraudulent conveyance of
them, must have been not constructive, but actual, and by the
party himself or his procurement, while they continued to be in
his intention his own goods.'" But any act of a debtor, by which
his true title and ownership of property are kept from the view
of his creditors, if made with the intent to prevent its being
1 Phillips o. Sheriff, etc. Esp. Dig. 555. 6 Gulston, 1 Atk. 193.
But see Majlin v. Eyloe, 1 Str. 809. ' Pleasants v. Meng, 1 Dall. 390.
2 Barnes, 160. SLing^ood „_ gade, 1 Atk. 196; Co-
' Wilson V. Norman, 1 Esp. Rep. 334. myns' Dig. Bankrupt C. c. 1.
* Hopkins v. Ellis, 1 Salk. 110; Colket »Cole v. Davis, 1 Ld. Ray. 725.
V. Freeman, 2 T. R. 59. i" Livermore v. Bagley, 3 Mass. 487.
5 Ibid.; Fox v. Hanbury, Cow. 448.
 36 BANKRUPTCY AND INSOLVENCY. [CHAP. II.

attached or taken on legal process, is a concealment within the

meaning of the Massachusetts insolvent law, (St. 1844, c. 179,
s. 9.)i
§ 39. Imprisonment is another act of bankruptcy. A debtor
mnst have been both arrested, and imprisoned for two months or
more.^ It was formerly held, that the act only relates to the
last day of imprisonment.* But the prevailing doctrine is, that
lying in prison relates back to the time of arrest and first im-
prisonment.* And the day of arrest is to be included.' So also
the whole of the day. But a particular hour may be taken into
account, for the purpose of showing a valid act done by the bank-
rupt, prior to the act of bankruptcy, or for all purposes con-
nected with a right as to his property.* So, where the sheriff
took possession upon an execution, and afterwards, on the same
day, the party surrendered in discharge of bail, and then lay in
prison two months; held, the Court would notice the fraction
of a day.' Therefore, the sheriff having entered before the sur-
render, the assignees could not recover.*
§ 40. To constitute a lying in prison twenty-one days, the first
and last days must be included.' But, under the whole statute,
. a commission cannot be sued out till the expiration of two months.'"
Hence, if a commission is sued out within the two months, it can-
not be sustained by his lying in prison for the remainder of that
time."
§ 41. A commission will lie upon a debt, for which a judgment
was recovered pending the two months' imprisonment. It would
be otherwise with a bond, which would be void by relation to the
commencement of the imprisonment.'^
§ 42. Under a similar enactment in the United States bank-
rupt law, if a party were imprisoned three months, the bank-
ruptcy was at the end of two months, and the creditors had only
one month to petition, after which the act of bankruptcy ceased

1 0'Neil V. Glover, 5 Gray, 144. 6 Glassington v. Rawlins, 3 E. 409.

»Nehus». Pugh, 1 Mur. 149. e gaundersou v. Gregg, 3 Stark. 72;
8 Moser v. Newman, 6 Bing. 656 ; Hig- Saddler v. Leigh, 4 Camp. 185.
gins ». v. MoAdam,
Tucker Barrow, 3 3C. Y.& P.
& 85.
J. 1 ; 8' Thomas
ibid. v. Desanges, 2 B. & A. 58'6.
<King V. Leith, 2 T. 11. 141 ; Coppen- 9 Higgins v. McAdam, 3 Y. & J. 1.
dale V. Bridges, 2 Burr. 814; 0u- w Gordon v. Wilkinson, 8 T. K. 507.
frene, 1 Ves. &. B. 51 ; Lee, i Ves. " Glassington v. Rawlins, 3 B. 407.
280. " Bryant, 1 Ves. & B. 261.
CHAP. II.] ACTS OP BANKRUPTCY AND INSOLVENCY. 37

to operate. Hence the debtor might petition under a State

law.^
§ 43. Lying in prison for a certain time means actual, uninter-
rupted imprisonment for the whole time.^ Hence if the party
goes at large and is then reimprisoned, the bankruptcy occurs at
the date of the second confinement.'
§ 44. Where one is imprisoned on a criminal process, which is
discharged, though without personal notice to him, and then re-
mains in confinement two months for a debt, this is an act of
bankruptcy.* So a party was arrested, but on account of illness
was sufi"ered to remain a few days in his own house, in custody of
the officer's follower, who was not named in the warrant, but kept
the key of the house, and was then remanded to jail, where he
continued for the remainder of two months. Held, a case of
bankruptcy.* So imprisonment is an act of bankruptcy, though
the party have the benefit of the day rules.' So a debtor was
taken in execution under a judgment, and, being in ill health,
remained in custody in his own house for four days, at the end of
which time he was taken to the county jail under the judgnlent,
and also under a coroner's warrant which had been issued against
him, in the mean time, on a criminal charge. He continued in
jail for more than twenty-one days, under both the judgment and
the warrant. Held, that he had thereby committed an act of
bankruptcy.^ But where a trader, being arrested, was released
on undertaking to execute a bail-bond, but failed to do it; held,
not an act of bankruptcy.*
§ 45. In this country, more especially under the insolvent law
of Massachusetts, failure to dissolve an attachment is ground for
insolvency proceedings.' (a) It has been doubted whether an at-
1 Clarke v. Bay, 1 Har. & J. 326. s Stevens v. Jackson, 1 Marsh. 469.
2 Barnard v. Palmer, 1 Camp, 509. « Soames v. Watts, 2 C. & P. 400.
' Ibid. ' Crabb, 39 Eng. L. & Eq. 397.
* Bex V. Page, 3 Moore, 656 ; 7 Price, 8 Schooling v. Lee, 3 Stark. 149.
616. 'See Wheeler v. Bacon, 4 Gray, 550.

(o) A banking company stopped payment, and a petition to wind up its

affairs was presented and answered under St. 11 & 12 Vict. c. 45. A cred-
itor afterwards filed an affidavit of debt, and served the secretary with a writ
of summons under ? 7 of St. 7 & 8 Vict. c. 111. The company was then
dissolved, under a provision in the deed of settlement. Subsequently, the
order to wind up was made absolute ; an interim manager was appointed ;
38 BANKRUPTCY AND INSOLVENCY. [CHAP. II.

taching creditor can himself petition on the ground of the attach-

ment.* So it is said, a petition cannot be maintained, on the
ground that the maker of a note has failed to dissolve an attach-
ment, byan indorser who pays it after the expiration of the time
provided by law for such dissolution.^ So where a defendant is
defaulted by consent before the expiration of the time limited for
dissolving an attachment, the Court will not delay judgment at
the instance of a creditor, that he may have opportunity to com-
mence insolvency proceedings.' So when a debtor does not dis-
solve an attachment within fourteen days from the return day of
the writ, or before the last day of the return term, if the court
rises within fourteen days, the right of a creditor to institute pro-
ceedings ininsolvency against him, under stat. 138, c. 163, s. 19,
accrues at the expiration of the time fixed for the dissolution of
the attachment, and such proceedings cannot be instituted more
than ninety days after the expiration of that time, although the
action in which the attachment is made is continued one term,
because of the debtor's absence from the State.'' So an attach-
ment, after the dissolution of partnership, of real estate conveyed
to the members of the firm, though bought with partnership funds,
in an action upon a note signed by the partners individually, one
as principal and the other as surety, and given after dissolution,
is no ground for insolvency proceedings against the partnership.*
So on a writ against 0. and A., the officer's return was: "I
have attached all the right, title, and interest the within named
C. & A. have in and to any real estate in the towns of W. and A.,
1 Dennis v. Saylea, 11 Met. 237. » Boynton v. Senter, 4 Law Rep. 229.
2 HofiFendahl v. Evers, S. J. C. Middle- * Bates v. Chapin, 8 Cush. 99.
Bex ; Cutl. Ins. L. 3d ed. 95. ^ Ensign v. Briggs, 1 Gray, 329.

and the proceedings under the winding up were registered as a lis pendens.
At the expiration of a calendar month from the service of the writ of sum-
mons, the company was adjudicated bankrupt, and an official assignee was
appointed. Ultimately, an official manager was appointed by the Court of
Chancery. A creditor petitioned to annul the adjudication, which was dis-
missed byone of the commissioners. Held, upon appeal of the creditor, that
the non-payment of the debt for which the writ of summons was issued con-
stituted avalid act of bankruptcy, notwithstanding the previous petition to
wind up, and the appointment afterwards of an interim and official manager;
and that the adjudication could not be disturbed. Marcus, 39 Eng. Law
& Eq. 264.
CHAP. II.] ACTS OF BANKRUPTCY AND INSOLVENCY. 39

and in the County of B." This attachment was not dissolved,

and a creditor of A. petitioned for proceedings in insolvency
against A. Held, that this was not such an attachment of A.'s
estate as authorized proceedings against him under stat. 1838,
c. 163, s. 19. The Court remarked: "The attachment should
be so distinctly set out on the process, that the magistrate can
determine the alleged existence of the fact by inspection of the
return. It does not appear that any actual, attachment of any
real estate was made by the ofiScer, or if there was, whether it
was of the joint estate of Carpenter & Arnold, or the separate
estate of one or the other, or of which of them. It is indefinite
and uncertain. It is the cast of a net at a venture, and is made
without hazard. The Judge of Probate or Master in Chancery
is not required to examine the recordls of the county, nor to.
inquire aliunde, as to the debtor's interest in the estate, in order
to ascertain whether a possible attachment may prove to have
been valid."* But in a later case, where the officer returned an
attachment of "all the right, title, and interest the within named
defendants have in right or in equity in any real estate within the
towns of H. and C, and also in all or in any real estate within
the towns, etc., and also in all or in any real estate within the
county, etc., and all the right and title of either of them in the
same," and the debtors were proved to own real estate felling
within this description; the Court remarked that, but for the
former decision, they should be inclined to sustain the petition,
but gave no decided opinion, the case turning upon other points.^
And failure to dissolve an attachment by the trustee process is
ground for insolvency.* So where mortgaged personal property is
■attached, and demand made by the mortgagee upon the creditor
for his debt, after which another creditor attaches, and the first
attachment is dissolved by the failure to pay the mortgage debt,
as provided by law; if the second attachment is not reasonably
dissolved, either by bond or by demand of the mortgage debt,
such attachment is sufficient ground for insolvency proceedings.^
' Per Hubbard, J., Dennis v. Sayles, 11 ' Kimball v. Morris, 2 Met. 573.
Met. 236. * Wlieeler v. Bacon, 4 Gray, 650.
3 Tliompson v. Snow, 4 Cush. 121.
 CHAPTER III.

WHO MAT BE BANKEUPTS OR INSOLVENTS.

1. General remarks. 16. Allegation of the modeoi trading.

2. Trading, whethernecesaary; ques- 17. Unlawful trading.
tion of trading ; how determined; estop- 18. Trading in one's own right — ex-
ecutors, etc.
6. Miscellaneous occupations.
pel. 20. Time of trading.
8. Whether selling the produce of 21. Infants.
labor is sufScient. Mechanics, arti- 22. Married women. ProTision for
ficers, etc. them in case of the bankruptcy of their
9. Innkeepers. husbands.
10. Ship-owners. 25. Place of trading; foreigners;
11. Drawing, etc. of bills. aliens.
12. Banking, etc. 27. Form of objecting that the party
13. Selling the produce of land. is not subject to bankruptcy.
15. Single acts of trading.

§ 1. We now proceed to inquire, what persons may be bank-

rupts or insolvents, both with reference to occupation and also to
mere personal circumstances or conditions. It will be seen that
most of the distinctions upon this subject apply exclusively to
bankruptcy in the original English sense of the word; being a
process instituted by creditors against the debtor, or in invitum,
and not a voluntary movement for relief on the part of the debtor
himself.
§ 2. As has already been remarked, (p. 18,) bankruptcy in
England applies only to unfortunate traders, {a) or persons who
get their livelihood by buying and selling for gain, and who do
certain acts which afford evidence of an intention to avoid pay-
ment of their debts.* St. 21 and Jac. 1, ch. 19, s. 2, is said to
be the leading statute as to the description of the trading neces-
sary to constitute a bankrupt.^
1 2 Bl. Comm. 285, 471, 476 ; 2 Kent, ' Port v. Turton, 2 Wils. 169 ; Cooper,
889. See Coysgrave, 1 Atk. 192; 120.
Coop. B. L. 122.

(a) For the reasons of this distinction, see ch. 3, s. 14.

(40)
GHAP. III.] WHO MAY BE BANKRUPTS, ETC. 41

§ 3. It has been sometimes held, that the question whether a

particular occupation constitutes trading within the meaning of
the bankrupt law is a question of usage, to be settled in part at
least by the opinion of experts. Thus, upon the issue, whether
the drawing and redrawing of bills of exchange constituted such
a trading as is within the statutes of bankruptcy, the evidence of
considerable merchants in the City of London was taken, and
Lord Chief Justice Lee instructed the jury, that it was not so
much a point of law as a fact, to be determined by them on the
usage and opinion of merchants ; and that if they paid any credit
to the merchants who had been examined, and were men of char-
acter, this was a trading.*
§ 4. A creditor is sometimes estopped to deny that the bank-
rupt is a trader.^ So also the bankrupt himself is sometimes
estopped, as where a man, not a trader, fraudulently contracted
a debt, representing himself to the creditor to be one, and sub-
sequently became a trader, and the debt was proved under his
bankruptcy.*
§ 5. The prevailing statutory phrase, in reference to employ-
ment, isseeking his living. And it was once held, that trading
must be the principal means of living, in order to justify bank-
ruptcy proceedings.* But it is otherwise by later decisions. It
is said, in a leading case: "I do not now consider the question of
law to be governed by the quantum of the trading ; but I take
the rule to be this, that where it is a man's common or ordinary
mode of dealing, or where if any stranger, who applies, may be
supplied with the commodity in which the other professes to deal,
and it is not sold as a favor to any particular person, there the
person so selling is subject to the bankrupt laws."*
§ 6. We now proceed to state some of the particular occupa-
tions, in regard to which this question has been raised, with a
summary view of the general reasons upon which the distinctions
to be found in the cases have been founded, {a)
§ 7. It is held that a schoolmaster cannot be a bankrupt, though,
1 Richardson v. Bradshaw, 1 Atk. 129. ^ Mayo v. Archer, 1 Str. 513; 8 Mod.
2 Mitchell ; 1 De Gex, 257 ; Lawrence, 47.
ibid. 269; Hodson, 374. *Per Ashhurst, J., Patman». Vaughan,
3 Leslie, 39 Eng. L. & Eq. 120. 1 T. R. 572.

(a) The occupations which authorize bankruptcy proceedings are enumer-

ated in detail in the 65th section of the statute 12 & 13 Vict.
42 BANKRUPTCY AND INSOtyBNCY. [CHAP. III.

as such, he buys and sells.' Nor a victualler of the navy, who

keeps a large boarding-house ; nor the king's butler or steward,
or those of inns of court, or sutlers of armies.^ But one may be
a bankrupt, though he is a peer.' Lord Hard wick e said, that a
commission of bankruptcy had been taken out against a peer, an
earl of Suffolk, for trading in wines ; and though there might be
some powers that the commissioners of bankrupts could not exer-
cise against a peer, yet notwithstanding this he might be liable to
a commission of bankruptcy, if he would trade; and so might a
member of the House of Commons.* So a barrister may be a
bankrupt ;° or an attorney;* or an exciseman;^ or officer in the
army f or physician ;' or clergyman.'"
§ 8. In general, the bankrupt law does not apply to the sale
of the produce of labor only, because this is not buying and sell-
ing, and no credit is necessary ; as in case of an agriculturist or
mechanic of any kind." But it is otherwise where the artificer
buys his materials, as a tailor, baker, brewer, goldsmith, shoe-
maker, etc.'^ So a surgeon, who dispenses and is paid for medi-
cines administered to his own patients, is an apothecary within
the meaning of the bankrupt laws, and liable, as such, to become
bankrupt.'* It is said: "The principle of the old cases is, that
the parties do not buy and sell; for, though they buy, they do
not sell in the same form. 'The effect of the distinction was found
to be too large, as it would apply to a great many trades. The
principle, therefore, received another application; and now, if a
man buys raw materials, and varies the form ever so much, it will
be a trading. But there is another ground upon which it is more
uncertain, where he vends the produce of his own estate, because
that is not a buying."" Thus, in an action for slander, the plain-
tiff alleged that he got great sums of money by buying of timber
and materials, and by building of houses, and that the defendant,
1 Meggott Mills, Ld. Ray. 287 ; Valeu- » Lane, Greene, B. L. 14.
tine Vaughan, Peake, N. P. 76. i" Meymot, 1 Atk. 196; Hankey o.
2 8 Keble, 451 ; Skin. 292 ; 1 Show. Jones, Cowp. 745.
270. " Crump o. Barne, Cro. Car. 81 ; Luton
3 Meymot, 1 Atk. 201. v. Bigg, Skin. 292.
* 1 Atk. 201 ; aoo. GrifSths, 21 Eng. L. " Kerney «. Smith, Ld. Bay. 741 ; gtan-
& Eq. 127. ton v. Smith, ibid. 1480 ; Mayo v.
6 Mayo V. Archer, 1 Str. 514. Archer, 1 Str. 513 ; Dally v. Smith, 4
« Brown, 2 Ves. 68. See Dufaur, 18 Burr. 2148.
Eng. L. & Eq. 560. "Crabb, 39 Eng. L. & Eq. 397.
' Highmore v. Molloy, 1 Atk. 206. " Per Ld. Chan., Harrison, 1 Brown,
8 Butler !). Purnell, 1 Atk. 214. 173.
CHAP. III.] WHO MAY BE BANKRUPTS, ETC. 43

having discourse of him and of his trade, spoke these words: "He
is broken and run away, and will never return again." The Court
were divided. The Chief Justice remarked : " The credit which
the defendant hath in the world may be a means to support his
skill; for he may not have an opportunity to show his workman-
ship without those materials for which he is entrusted."'
§ 9. An innkeeper is generally held not liable to be a bank-
rupt. Various reasons are assigned for this, which illustrate the
general principle on the subject. Because inns are of necessity
and under the inspection of the public, and the keeper cannot
refuse to lodge travellers. They are subject to justices of the
peace, both as to location and management, and liable to indict-
ment. A judge of assize may set a price upon their goods, or
they may be indicted for extortion. The innkeeper is only com-
munis hospitator.^ So also, it is said, an innholder doth not get
his living by selling ; for, although he buy provision to be spent
in his house, he doth not properly sell it, but utters it at such
rates as he thinks reasonable gains, and the guests do not take it
at a certain price, but they may have it, or refuse it, if they will.*
His buying and selling is not as a trader, because only incident
to the use of furniture and rooms. He buys to sell in the housed
But it is otherwise if the innkeeper, etc. buy and sell out of the
regular line of business.^
§ 10. The bankrupt law does not apply to one who merely owns
a share in a ship without freighting it, any more than one having
a share in a hackney coach, or letting horses to hire.* Nor to one
who freights a ship, if he gets less than is due on the bottom for
repairs.' It was said, somewhat sarcastically: "As a ship-owner
merely, a man can never be subject to the bankrupt laws. Per-
sons of the highest rank in the country have shares in East India
ships. If this is to prevail, half the House of Lords, including
the bishops, would be liable. Upon this evidence, also, if there
was a single kit of sturgeon directed to Mr. Homes, that would
be within the affidavit."*
1 Chapman v. Lamphire, 3 Mod. 155 ; ^ Newton v. Trigg, 3 Mod. 327.
Kirne ». Smith, Ld. Ray. 741. euewton v. Trigg, 3 Mod. 329; Comb.
2 Newton v. Trigg, 3 Mod. 327 ; 3 Lev. 182 ; Maggot v. Mills, 1 Ld. Ray.
809. 287.
3 Crisp V. Pratt, Cro. Oar. 548. » 1 Sid. 411. But see Stadgroon, 1
« Newton v. Trigg, 1 Salk. 110; Sander- Ves. 163.
son V. Rowles, 4 Burr. 2067 ; Busch- s Per Ld. Chanc, 4 Ves. 168.
all V. Hogg, 3 Wils. 146 ; Bartholo-
mey v. Sherwood, 1 T. R. 572.
44 BANKRUPTCY AND INSOLVENCY. [CHAP. III.

§ 11. The drawing and redrawing UUb, etc. for one's own ac-
commodation, without any commission or profit, is not a trading
within the bankrupt law. Otherwise, where the drawing, etc. is
a matter of trade and business, as in case of a money broker or
banker,^ Lord Mansfield says : " Suppose a person in Yorkshire,
with a large estate, has occasion for money to pay a debt or mort-
gage or any other security in the City of London. He draws on
his banker for it, and to repay him, tells the banker to draw on
him by bills. Would that be a drawing and redrawing, so as to
constitute a trading within the meaning of the bankrupt law?
Certainly not. But take it the other way : that a person has the
case of other people, to the amount of many hundred thousands of
pounds, and the benefit of the exchange arising from the remit-
tance of it. That is merchandizing."''
§ 12. Nor does the law apply to a pawnhroher or banker.^
Nor is it material whether the hanker keep a shop.*
§ 13. As has been suggested, the bankrupt law does not apply
to one who trades in the produce of his own lands; as in case of
one who makes bricks on his land for his own use, and sells the
surplus ; or manufactures for sale alum, salt, or cider, or sells
coal. Though it is otherwise, if he buys and sells similar articles.'
And where the produce of the land is merely the raw material of
a manufacture, and used as such, and not according to the usual
mode of enjoying the land, the party may be bankrupt.* As in
case of a renter of brick ground to make bricks, this being a kind
of trade, and the materials purchased.^ So the word drover, as
used in conjunction mih farmer and grazier in the statute, means
not only those who drive cattle for others, or a factor who buys
and sells them for others, but likewise one who bought cattle for
himself at one market or fair and sold them at another.^ But
where a man farming two hundred and seventy-one acres kept
cows, never more than six, and regularly sold milk, and sometimes
butter, his intention in keeping the cows being to sell milk; and,
if he had not done so, the keeping of so many would have been
lEichardson ». Bradshaw, 1 Atk. 128; 6 Mayo Archer, 1 Str. 513; Port v.
Hankey v. Jones, Cowp. 746. Turton, 2 Wlla. 169 ; Harrison, 1
2 Per Ld. Mansfield, Hankey v. Jones, Bro. Ch. 173; Cooper, 124-5.
Cowp. 745. 6 Parker v. Wells, 1 T. R. 34.
8 Highmore v. Molloy, 1 Atk. 206. ' Cooper, 125.
* Wilson, 1 Atk. 218. 8 Mills
N. [Link], Willes, 588; Bull.
CHAP. III.] WHO MAT BE BANKRUPTS, ETC. 45

unprofitable, though it would not have been bad farming if he

had kept no cows; but cows, to the extent he kept them, were the
most profitable stock : held he was not a trader, under the name
of "cowkeeper," within the bankrupt laws.^
§ 14. The somewhat fine distinctions upon this particular point
which run through the cases are illustrated in the remarks of
English judges, as follows. It is said, in reference to the statutory
expression, "using trade of merchandise or seeking his living by
buying and selling:" " By buying and selling what ? Surely not
by buying an interest in land and selling the profits thereof.
This can never come within the idea of using the trade of mer-
chandise; or getting a living by buying and selling in the sense of
the legislature. From the idea we have of merchandise, the line
may be drawn between the landowner and the merchant. One
would wonder there could ever have been any doubt about a
farmer ; for, if every buyer and seller was liable to be a bank-
rupt, many of the first persons in the kingdom might be liable to
be so. Whatever the owner of land in fee may do, surely he
who rents it may do the same ; if the former may be a buyer and
seller, and not be liable to be a bankrupt, why may not the farmer
be so also? His tilling the land, husbandry, and stock on his
farm are known to everybody ; yet he seeks his living by buying
and selling."" So it is said: " Though a mine be an inheritance,
yet it may be severed from the inheritance by the grant now made ;
but it is certainly an interest in the land ; if it is not so, how is
it to be considered or received ? There is no doubt but an eject-
ment will lie of it, that a fine may be levied of it, and that a will
of it requires three witnesses ; things annexed to the land while
standing and inherent in it, as trees, lead, coals, etc., while they
are so, are real estate and inheritable, but as soon as severed they
are personal estate ; while a coal mine is undug, it is part of the
inheritance. The case of a brickmaker is very different: the
earth is manufactured and turned into quite another thing ; but
coals carried to market are the same as they are found in the
earth."* So Lord Loughborough remarks: "I take the term
trading to be essential to the description of a bankrupt, and that
the bankrupt laws are framed only for the convenience of trade,
1 Bell ». Young, 29 Bng. Law & Eq. » Port v. Turton, 2 Wils. 169.
237. See Collis v. Malin, Cro. Car. « Ibid.
282 : Sir W. Jones, 304.
46 BANKRUPTCY AND INSOLVENCY. [CHAP. III.

and that no person who cannot be said to carry on trade is the

subject of these laws, otherwise than by special provision. A
trader gains, as Lord Camden says, an extensive credit upon an
uncertain and invisible capital ; that credit will be in proportion
to the extent of his dealings, and can be measured by nothing
else ; his real means are not visible, and from the very nature of
his trade he is liable to unforeseen losses by the failure of those
persons to whom he is obliged to give credit, and with whose credit
he is interwoven. In his behalf, the law in these statutes of bank-
ruptcy relieves him, in consequence of his large engagements, on a
fair distribution of what he has ; and on the behalf of the creditors,
they permit them to have an immediate execution in the first in-
stance, and force him to produce his accounts, and then make an
equal distribution of his effects. But with respect to those persons
whose principal business is not buying and selling, but only bring-
ing to market the produce of the lands, they are in a difierent
situation from the trader ; their capital is open, it is permanent,
it is limited, and their dealings are necessarily confined ; their
credit rests upon their own endeavors and industry, and can rarely
be involved with the credit of other persons ; they are, therefore,
not entitled to relief from all their engagements, and to those
benefits which, for the sake of commerce, are given to persons to
carry on trade."* And in this case the difficulty is pointed out,
of determining, in various cases of artificers, etc., whether they
trade.
§ 15. A single act of buying and selling is not sufficient ; but
there must be a regular practice.'' Though the extent or import-
ance ofthe dealing is immaterial.^ Thus a contract to victual a fleet
does not make a trader, " for so the king's butler or steward, or
any other officer, might be a trader."*
§ 16. The particular species of trading need not be set forth
in the commission.' So the word " banker " was considered descrip-
tive of the person only, and it was held that the commission
might be supported by proof of other trading.^ So " dealer and
1 1 Bro. 178. 6 Bernasooni v. Farebrother, 10 B. & C.
' Hankey v. Jones, Cowp. 750. 549.
» Harrison, 1 Bro. Ch. 177 ; Patman v. « Bernasooni v. Glengall, 1 M. & K.
Vaughan, 1 T. R. 573. 826; aoo. Smith v. Sandilands, Gow,
* Gibson v. Thompson, 3 Keb. 451. 171 ; Hale2 ti. Small,
Herbert, Ves. & B.4 899.
Moore, 415 :
CHAP. Ill,] WHO MAT BE BANKEUPTS, ETC. 47

chapman" is a sufficient description of trading.' But a fraudu-

lent misdescription of the trading is ground for staying the cer-
tificate.^
§ 17. A trader may be a bankrupt, though his trading be un-
lawful, as in case of smuggling. So in the case of Meymot,^
where a clergyman was said to have been in partnership with a
potter; the Lord Chancellor said he would not supersede the
commission because a man has the hardiness, in a court of justice,
to say, I have been guilty of a breach of one law, and therefore
release me from the breach of another. The statute of 21 Hen. 8
is rather in the nature of a prohibition, and a prohibition will not
exempt him from being a bankrupt; for if a man, with his eyes
open, will break the law, that does not make void the contract.
The case was held to differ from that of usury, where the lender
takes advantage of the borrower's need; whereas here only the
borrower violates the law, and the lender may be ignorant of his
profession. Ordered that the commission proceed, but not to
prejudice any action at law.*
§ 18. One must be a trader in Ms own ripht. An e^ecutot, as
such, cannot be a bankrupt.* Thus an executor, merely dispos-
ing of the stock of the testator, who was a trader, or the executor
of a wine-cooper, who merely buys wines to refine the stock left
by the testator. Otherwise if he buy wines himself and sell them
to the customers entire.^ And under a commission against an
executor, the goods of the testator are not liable to the assignees.^
So a trustee, factor, or agent is not liable.* Though a trustee
dispose of the goods for the benefit of the trust.' Nor is one
liable, though a trustee for his own wife.'" And an assignee takes
trust property, subject to all equitable liens. He stands in place
of the bankrupt." (See chap, vi.)
§ 19. Upon the ground that the trading must be personal, the
1 Herbert, 2 Ves. & B. 399. 'Howard v. Jemmett, 3 Burr. 1369:
2 Tanner, 1 Mont. & B. 391. Llewellyn, Cooke, 180.
8 1 Atk. 197. 8 Dumas, 1 Atk. 282 ; Suee t/. Presoott,
*Ibid. ibid. 245; Small v. Oudley, 2 P.
5 Newton «. Trigg, 3 Mod. 328; Ellis, Wms. 429; Winch v. Keeley, 1 T.
1 Atk. 101; Nutt, ibid. 102. R. 619; Wilkina v. Casey, 7 ibid.
6 Nutt, 1 Atk. 102. See Viner v. Ca- 870 ; Garden, 12 Jur. 391.
dell,3Esp.88; Garland, 10 Ves. 110; 'Nutt, 1 Atk. 102.
Bicbardson, 3 Madd. 138 ; Maag, '» Cooke, 257.
1 Ashmead, 97; CuUen's Bank. L. " Hinton.j;, Hinton, 2 Ves. 633; Taylor
21. V. Wheeler, 2 Vern. 564; Jacobson
r. Williams, 1 P. Wms. 382.
48 BANKRUPTCY AND INSOLVENCY. [CHAP. III.

law does not apply to a land jobber.' Nor a dealer in bank stock
or other government securities.^
§ 20. It has been sometimes held that the bankrupt must have
been a trader at the time the debt was contracted.' That the
selling of merchandise, the effects of former trading, was not
sufficient ; but the party must live by buying and selling.* But
the later rule is otherwise." " For men cannot take notice when
another withdraws his trade, or when he commands his factors
beyond sea to deal no further for him; but they, seeing great
quantities of goods and merchandise in his hands, are apt to trust
him." And it is now held, that the debt may be contracted before
one began to trade ;^ and the act of bankruptcy may be after he
ceases to trade.' So when all the material acts took place while
the bankrupt carried on that trade in respect of which he was
declared a bankrupt; those acts are to be considered "conduct as
a trade" within the meaning of the statute. And acts done in
that trade before the bankrupt law came into operation are within
the intention of the statute, and may be taken into consideration
on the question of the grant of the certificate.*
§ 21. In England, an infant is held not liable to bankruptcy.
Holt, C. J., says: "Though the debts of an infant are only void-
able by him at his election, yet no man can be a bankrupt for
debts which he is not obliged to pay."' The commission is
held void, not merely voidable.'" And the rule applies, though the
act of bankruptcy occur after the infant comes of age.'' Thus,
in a case of partnership between three persons, one of whom was
an infant, a joint commission against the other two was super-
seded. There should be separate commissions.'^ (a) But it is
1 Port V. Turton, 2 Wila. 169. » Rex v. Cole, Ld. Ray. 443; 12 Mod.
2 Colt Netterville, 2 P. Wms. 308. See 243; aoo. Sydebotham, 1 Atk. 146;
Hernamanii. Barber, 25 Eng. L. & O'Brien «. Ourrie, 3 C. & P. 283;
Eq. 357; Bailey, 27 ib. 190. Adam, 1 Ves. & B. 494; SteTens v.
8 Newton «. Trigg, 3 Mod. 327. Jackson, 4 Camp. 164; Moule, 14
* Cotton V. Daintry, 1 Ventr. 29. Ves. 603.
6 Anthony
166. Bateman's case, 1 Ventr. i»Belton
& Sc. v.
[Link], 9 Bing. 865; 2 M.
6 Butcher v. Easto, 1 Doug. 293. " Whitelook's case. Gas. temp. King,
' Baillie v. Grant, 9 Bing. 121 ; Doe v. 46; Sydebotham, 1 Atk. 146, 201.
Lawrence, Peake, 64. "Henderson, 4 Ves. 163; Lay ton, 6
8 Dornford, 5 Eng. Law & Eq. 242. Vea. 440; Barwis, 6 Ves. 601.

(a) Where a person who has been adjudicated bankrupt does not show cause
against the validity of the adjudication before the commissioner, within the
CHAP. III.] WHO MAY BE BANKRUPTS, BTC. 49

held otherwise, -where the infant has held himself out, and for
some time traded, as an adult. In such case the commission will
not be superseded on his application, but he will be left to his
action.^ And in the United States it is decided, that an infant
may avail himself of the bankrupt law, and the proceedings may
be in his own name.^ Though it has been doubted whether an
infant may be declared an insolvent on his own petition.'
§ 22. A feme sole trader, under the custom of London, may be
a bankrupt, and her separate property thus administered.* Thus
the case of Lavie v. Phillips* was trover by the assignees of a
feme sole trader in London, against the assignees of her husband,
who became bankrupt prior to the bankruptcy of the wife. Lord
Mansfield says: "It is for the benefit of the wife that she should
be liable to a commission ; because, otherwise she would be liable
to perpetual imprisonment. It is also for the benefit of the cred-
itors, who cannot, by reason of this custom, come at the husband.
As to the danger to the wife, from the coercion of her husband,
she would never be liable to the guilt of a capital offence, where
she was under an invincible necessity." So a married woman
living apart from her husband on a separate maintenance, and
credited on her own account,* is held liable to bankruptcy ; though
a pension at will is not sufficient.' So a married woman may be
a bankrupt, whose husband is civiliter mortuus; or compelled to
reside abroad as an alien enemy;* or transported;' or absent from
banishment or abjuration.'" So the wife of a convict sentenced
1 Watson V. Watson, 16 Ves. 265; Bates, « Todd ». Stokes, 1 Ld. Ray. 444 ; Bol-
2 M. D. & D. 337. ton v. Williams, 2 Ves. 145; Corbet
2 Book, 3 McL. 317. v. Poelnitz, 1 T. R. 5. But see
'Cotton, 6 Law Eep. 546; 2 Pars, on Marshall v. Rutton, Cooper, 130;
Con. 614, n. Reston, Green's B. L. 8.
*Carrington, 1 Atk. 206; Lavie v, Phil- ' Thompson v. Hervey, 4 Burr. 2177.
lips, 3 Burr. 1783; 1 W. Bl. 570. See 8 Derry v. Mazarine, 1 Ld. Ray. 147.
Mear, 2 Bro. 266. 'Sparrow v. Caruthers, 2 Bl. R. 1197.
S3 Burr. 1783. ' i»Lady Belknap & Weylaud, 1 Co. Lit.
132b, 133a; 1 Ld. Ray. 147.

period prescribed by section 104 of the statute 12 & 13 Vict. c. 106, or com-
mence "an action, suit, or other proceeding to dispute or annul the fiat,"
etc., within the period prescribed by section 233, the court will not annul
the adjudication, on a petition of the bankrupt, notwithstanding that at the
time of the adjudication the bankrupt was under twenty-one years of age,
there being no exception in the 223d section of the statute respecting infants.
West, 19 Bng. Law & Bq. 483.
4
50 BANKRUPTCY AND INSOLVENCY. [CHAP. Ill

to transportation may be a trader and bankrupt, though he is

only on board the hulks, and she has occasional intercourse with
him.^ But if an unmarried woman trader commit an act of
bankruptcy, and then marry and live with her husband, she can-
not be made a bankrupt, as her husband becomes liable for her
debts.^ And, on the other hand, a creditor to whom a debt is
due, contracted by a married woman before her coverture, may,
,in case of the bankruptcy of her husband, prove his debt and
share in the distribution of the bankrupt's estate. And such
bankruptcy, although it extinguishes the debt as to him, and sus-
pends the legal remedy as to her during the coverture, does not
afford any ground for proceedings in equity to charge her sep-
arate estate.^ (a)
§ 23. Under some circumstances, a mere trust in favor of a
married woman will not exempt the property from the claim of
the assignee of the husband, who becomes a bankrupt. Thus a
testator gave a sum of money to trustees, on trust to pay the in-
come to his wife for life, and then to divide the capital between
his three daughters. One of the daughters, who was married,
died, 5ind her husband became bankrupt, and died before the
tenant for life. When the tenant for life died, a bill was filed by
the assignees of the husband against the defendant, who was the
administrator of both husband and wife, claiming a third of the
money. Held, the husband was absolutely entitled in right of
his wife to the reversionary interest expectant upon the death of
the tenant for life, although that interest was not reduced into
possession; and the assignees had the same right to receive the
money as the husband would have had.* But where an insolvent
trader, about to be married, of which insolvency the intended
wife was ignorant, entered into a covenant with trustees to pay
them a moderate sum of money, the interest to be paid to the
wife's appointment, and, in default, to the intended wife for Ufe
1 Franks, 7 Bing. 762 ; 1 Moo. & So. 1. * Drew «. Long, 21 Eng. Law & Eq.
2 Hears, Cooke, 44; 2 Bro. 266. 389.
' Vanderheyden
452. v. Mallory, 1 Comst.

(a) Whether a lunatic may be a bankrupt, see Stamp, 1 De Gex, 345 ;

13 Ves. 590. Whether one attainted is subject to the bankrupt law, see
Ramsay v. McDonald, 1 W. Bl. 30 j 1 Wils. 217.
CHAP. III.] WHO MAY BE BANKRUPTS, ETC. 51

for her separate use, then to the husband for life, and the capital
to be in trust for the survivor absolutely; and property of the
wife was also agreed to be settled upon the same trust; and the
husband became bankrupt: held, the settlement was good as
against the assignees, and that the trustees were entitled to prove
for the amount due.^
§ 24. And it is to be further remarked, that " the assignees in
bankruptcy or insolvency of the husband are bound to make a
settlement upon the wife out of her choses in action, and equit-
able interests assigned to them, whether they are absolute interests
or life interests only in her, in the same way, and to the same ex-
tent, and under the same circumstances, as he would be bound to
make one ; for it is a general principle, that such assignees take
the property, subject to all the equities which affect the bankrupt
or insolvent. Such assignees also take the property, subject to
the wife's right of survivorship, in case the husband dies before
the assignees have reduced her choses in action and equitable
interests into possession."^ Hence the assignee takes the choses
in action of the wife, subject to her equitable claim thereon for
the support of herself and her infant children, if she has no
other sufficient means; provided she asserts her claim, or insti-
tutes a suit in equity to recover such, estate, before the assignee
takes possession.' Thus, in a recent English case, where there
had been no settlement, and the wife of a bankrupt was left in
reduced circumstances, with eleven children, two-thirds of a fund
in court were directed to be settled on them.* And it is said
there is no rule of law or practice against the court decreeing the
whole residue of a wife's fortune to be settled upon the wife and
her children, but it is a matter purely in the discretion of the
court. Accordingly, where the husband had received a large
portion of his wife's fortune, and subsequently deserted her, the
whole residue was decreed, against the husband's assignees in
bankruptcy, to be settled upon the wife and children, although
by a post-nuptial settlement a considerable portion of her fortune
had been thus settled."
§ 25. The question has been much agitated, whether a person

1 MacBirnie, 13 Eng. Law & Eq. 479. * Pugh, 12 Eng. Law & Eq. 850.
^2 Story, Eq. s 1411. See chap. vi. s Dunkley v. Dunkley, 13 Eng. Law &
' Van Epps v. Van Deusen, 4 Paige, 64. Eq. 318.
52 BANKRUPTCY AND INSOLVENCY. [CHAP. III.

must have traded in England in order to be subject to the bank-

rupt law. The cases have been chiefly those of trading in Scot-
land, Ireland, or the colonies and plantations. Lord Mansfield
remarks:' "The circumstance of a trader being a natural-born
subject, or a foreigner, makes no difference. The last section of
Stat. 21 Jac. 1, c. 19, expressly declares, that 'strangers, as well
as natural-born subjects and denizens, shall be subject to the
bankrupt laws;' and therefore it puts that point out of the case.
But it still leaves the question, whether both natives and for-
eigners must not be traders in England. I own, when the gen-
eral question was started at the trial, I felt great objections, upon
principles of justice, to the idea of a foreigner, occasionally com-
ing here, being subject to the bankrupt laws. Whoever gives
credit, gives it upon the property a man has in the country where
the credit is given. I was also struck with the very inconvenient
consequences that might arise in different parts of our dominions
if a trader might come over here, behind the back of his credit-
ors, hurry through a commission, and obtain his certificate before
his creditors abroad could even know the commission had issued.
On the other hand, it appeared there was a locality in the de-
scription ofthe acts of bankruptcy, and that the trader, whether
a native or foreigner, must, be in England when he commits an
act of bankruptcy. Therefore I determined not to give any
binding opinion at nisi prius. I never doubted but that many
such commissions have issued, and that many persons have come
from Ireland and the plantations on purpose to get commissions
taken out against themselves. I recommended it therefore to the
counsel to search for cases decided upon the point. That search
has been made, and several authorities have been produced. I
am confirmed in every objection that arose in my mind upon gen-
eral principles, by what Lord Hardwicke says, (in ex parte Wil-
liamson,Atk.
1 82;) but if in the year 1750 he did not think
the matter entire, I think it is not so now. However it may stand
upon principles, I think we are bound by the authorities." So,
in Dodsworth v. Anderson,'' it is said: "Though it be found that
the bankrupt bought and sold but once in England, it is not
necessary that he should do so ; for many merchants do only buy
beyond sea, and sell there; it is trading that makes a man capable
' Alexander ». Vaughan, Cowp. 398. a 1 Ld. Ray. 375.
 53
CHAP. III.] WHO MAY BE BANKRUPTS, ETC.

of being a bankrupt, and it is plain that Grice did trade in [to]

England." So, in ex parte Smith,^ the bankrupt had neither
resided nor traded in England, but came over on purpose to get
the commission taken out. Although Lord Hardwicke regarded
the commission as fraudulent, he remarked as follows: "If the
act of bankruptcy had been committed abroad, to be sure no com-
mission ought to go against him for that act. The affidavits speak
only of his trading to England, while he resided at Barbadoes.
If this point had not been determined in Sedgwick's case, I
should have doubted of it; but that case is in point, and must
govern this. However, I will suspend the allowance of the cer-
tificate till the creditors abroad have an opportunity to send over
proof of their debts. "(a)
§ 26. Under the insolvent law of Massachusetts the question
has arisen, whether an alien could be an insolvent debtor. It was
argued that he cannot, because he cannot hold real estate, and
the statute authorizes the commissioner to assign real and personal
estate. Also, that the United States courts have jurisdiction
where an alien is a party, and the statutory provision that an
attachment shall be dissolved by insolvency could not, in such
case, be complied with. But these objections were overruled, and
the petition sustained.^ But in the same State it is held, that
proceedings on the application of a creditor cannot be enforced
against a debtor, who is not a resident in the commonwealth when
such application is made. Thus several creditors attached prop-
erty of their debtor, and he thereupon removed from the common-
wealth, carrying with him all his property which was not attached,
and became a resident in another State before the term of the
court to which the writs were returnable. He never again resided
within the commonwealth, nor did he dissolve the attachments on
1 Chanc. Dec. 25, 1737; Mont. Dig. 119. « Judd v. Lawrence, 1 Cush. 531.

(a) See Bird v. Sedgwick, 1 Salk. 110; Inglis v. Grant, 5 T. E. 530;

Dodsworth v. Anderson, 1 Ld. Ray. 375 ; Hitchcox v. Sedgwick, 2 Vern.
162 ; Smith, Oow. 402 ; Cow. 398. The Isle of Man is not within the United
Kingdom ; and therefore a person residing there at the time of an adjudica-
tion of bankruptcy against him has three months within which he may con-
test the validity of the fiat or petition for adjudication, under 5 & 6 Vict,
c. 122, sec. 24, or 12 & 13 Vict. c. 106, sec. 233. Davison v. Parmer, 4 Eng.
Law & Eq. 391.
54 BANKRUPTCY AND INSOLVENCY. [CHAP. III.

or before the last day of the term. On an application made by

other creditors within ninety days of the end of the term, a
master in chancery issued a warrant, and assignees were after-
wards chosen. Held, the master' had no jurisdiction of the case,
and the proceedings before him did not dissolve the attachments.
The grounds of decision were, that the statute expressly speaks of
persons residing in the commonwealth and in the county where
proceedings are instituted. It also contemplates the power of
compelling his attendance before the magistrate. But the court
distinctly repudiates the inference from their decision, that it
would apply to the case of a debtor's removing after a voluntary
petition, the effect of which would be to vest jurisdiction in the
magistrate.^ (a)
§ 27. We shall hereafter consider specially the subject of super-
seding bankruptcy and insolvency proceedings. (See Superse-
deas; also chap. 1.) It may here be remarked, in general, that
in England the Chancellor would stop the commission against one
not properly subject to it.^ So where one is not subject to bank-
ruptcy, an action of trespass lies against the assignee for entering
his house.* And the question of trading, as a ground of bank-
ruptcy, often arises in trover or trespass between the assignees
and a third person."* So the question of occupation has been
raised in an action of trespass by the bankrupt against a pur-
chaser from the assignee.' And the question, what occupation is
1 Claflin V. Beach, 4 Met. 392. * Cotton v. Daintry, 1 Ventr. 29 ; Sid.
2 Lewis, 2 Rose, 59. 411; Gibson ii. Thompson, 3 Keb.
« Perkin v. Procter, 2 Wils. 383. 451.
6 Newton
149. v. Trigg, 3 Mod. 327 ; Carth.

(a) The Maryland acts of 1704 and 1753 provided for the case of a trader,
living out of the province, becoming bankrupt while holding property in the
province, and secured a preference in the payment of debts contracted in
the province on the credit of goods imported therein. Ward v. Morris, 4
Har. & M'Hen. 330. To entitle a debtor to the benefit of the insolvent laws
in New .Jersey, it is not necessary that he should be a resident in the State
at the time of his imprisonment. Hogan v. Hutton, 1 Spencer, 82. In Penn-
sylvania ilies
t upon a petitioner for the benefit of the insolvent laws, who
has been absent from the State prior to filing his petition, to show that when
he left he went with a clear intention of returning; and if the intent be
doubtful, the letter of the law will prevail, and the petition must be dis-
missed. Case of Senior, 2 Ashmead, 118.
CHAP. III.] WHO MAY BB BANKKUPTS, ETC. 65

necessary to bring a person within the statutes of bankruptcy,

has sometimes arisen in actions for slander. As in a case^ where
the plaintiff was a shoemaker, and the defendant had called him
a bankrupt rogue; and it was held that the action might be main-
tained, because a shoemaker lives by his credit in buying leather,
and selling it again in shoes, etc., and not upon his manual labor
only, as laborers and husbandmen do. So the question, whether
a party was liable to bankruptcy, arose on an indictment for not
giving an account of his effects.*
§ 28. The general subject of the parties to bankruptcy and
insolvency proceedings leads to a consideration, in this aspect, of
partnership, which will accordingly be treated in the next chapter.
1 Crumpe v. Barne, Cro. Car. 31. ^Eex v. Cole, Ld. Ray. 443; 12 Mod.
243,
 CHAPTER IV.

'BANKRUPTCY AND INSOLVENCY IN CASE OP PARTNERSHIP.

1. General remarks. 23. Joint and general commissions —

2. Bankruptcy or insolvency of a joint and several debts — form of peti-
partnership — -form of proceeding. tion— appropriation of assets — double
6. Bankruptcy, etc. of one partner. proofs — election of proofs, etc.
8. Bankruptcy dissolves a partner- 31. Whether the partnership may
ship. Effect on the right of the part- prove against a partner.
ners to dispose of property, etc. 32. Different firms consisting of the
11. Mutual and relative rights of same members.
the assignee and the solvent partner. 34. Choice of assignees, by whose
14. Residence— jurisdiction. Tote.
16. Joint and separate property. 36.
37. Allowance.
Change of title before bankruptcy — Set-oflf.
transfer by one partner to the other. 38. Costs.
39. Discharge.

§ 1.' The important relation of partnersMp, as connected with

bankruptcy and insolvency, has given rise to numerous and com-
plicated questions ; more especially in England, where (as we have
seen) one essential of bankruptcy is trading, which, in a majority
of cases involving any large amount of property, is carried on by
two or more persons as partners. The distinctions between a
joint bankruptcy of the firm and the separate bankruptcy of a
member; the proof of debts and appropriation of property, as
between joint creditors on the one hand and separate creditors
on the other ; the change of property, previous to the bankruptcy,
from joint to separate ; the right of a solvent partner to prove
against an insolvent one ; and many other similar questions, have
made bankruptcy a very leading title in the voluminous law of
partnership.
§ 2. The insolvency of a partnership of course involves that of
all the members ; because the private property of such members
is liable for the partnership debts. Hence where a partnership,
as such, seeks to avail itself of an insolvent law, the petition must
(56)
CHAP. IV.] PARTNERSHIP. 57

allege the individual insolvency of all the partners ; and, for want
of such allegation, the proceedings will be vacated ; nor, on appli-
cation to vacate them, will proof be received of the partnership's
insolvency. But such requisition is complied with by the aver-
ment, that the partners are indebted to the amount made necessary
by the statute, "which they are unable to pay in full." So the
warrant is sufficient, if it direct the messenger to take possession
of all the property "of the said insolvent debtors." And after
an assignment by the magistrate of all the property of the part-
nership and of the individual partners, the failure of the messenger
to take possession of the separate property is no ground to set
aside the proceedings.^ So, if one partner becomes an insolvent
upon his own petition, setting forth that he is individually and as
a partner insolvent, and an assignment is accordingly made of his
separate estate and of his interest in the joint estate after payment
of the debts of the firm ; he cannot afterwards institute proceed-
ings in insolvency against the firm on a petition alleging the
insolvency of the partnership, unless he allege also that the
partners are individually insolvent.^
§ 3. Insolvency proceedings against a partnership are not
avoided as to the partners by including other persons. But the
Court, on application of such persons, will vacate the proceedings
as to them.'
§ 4. It is not absolutely necessary that partners should join in
the same petition, in order to bring the partnership within the
operation of the insolvent law. Where partners institute distinct
proceedings in insolvency, each surrendering all his joint and
separate property, and the same assignees are chosen ; they must
administer the estate of the firm. Nor is it necessary that the
firm be expressly declared insolvent.' And it is often provided
by express statute, that a petition or application of one member
shall be a sufficient foundation for proceedings against the firm.
Thus, under the insolvent law of Massachusetts, (St. 1838, c. 163,)
a warrant might be issued against the estate of a partnership and
the separate estates of all the partners, on the petition of one of
1 Hanson v. Paige, 3 Gray, 239 ; Par- * Dearborn v. Keith, 5 Gush. 224.
ker V. Phillips, 2 Gush. 175. But 8 Hanson v. Paige, 3 Gray, 239.
see Pierce o. Stockwell, 11 Gush. * Harmon ». Clark, 18 Gray, 114.
236. See also Thompson v. Thomp-
son, 4 Gush. 127; Dearborn v.
Keith, 5 Gush. 224.
58 BANKRUPTCY AND INSOLVENCY. [CHAP. IVi

them, even after dissolution of the partnership, and without notice

to the others ; though the magistrate might in his discretion order
such notice. The remedy of the partners not notified, if aggrieved,
was by application to the Supreme Court to vacate the proceed-
ings.»(a)
§ 5. But while the partnership, including all its members, may
be bankrupt or insolvent, one member may be so, and the others
remain solvent. And the legal effect of this difference in their
relative condition constitutes a very important topic of inquiry.
§ 6. Only the partner who commits an act of bankruptcy is
bankrupt.^ (6) And while a fraudulent conveyance by the firm is
an act of bankruptcy of all f such a conveyance by joint deed,
executed by only one partner, is not held an act of bankruptcy
in either.*
§ 7. A partner may be a bankrupt, though he has retired from
trade, if he has left stock or capital in it, and draws a share of
the profits, not as mere interest. So silent and dormant partners.*
But there must be proof of the sale or disposal of the joint
stock.'
§ 8. An act of bankruptcy on the part of a partner, and more
especially a decree against him, independent of statute, dissolves
the partnership, and the bankrupt can no longer dispose of the
property.' Nor bind his assignee or the other partner ; as, for
example, by indorsing a bill.'(c)
1 Thompson v. Thompson, i Cush. 127. ' 2 Keb. 487 ; Newton v. Trigg, 1
2 Mutrie, 5 Ves. 576. See Spencer v. Salk. 110.
Billing, 3 Camp. 312. ' Story, Partn. ss. 339, 340 ; 8 Kent,
'Eckhardt v. Wilson, 8 T. E. 140; 58, 59 ; Nororosa, Law Eep. July—
Uutton V. Morrison, 17 Ves. 200. 42, p. 124— Maine U. S. Court.
* Button V. Morrison, 17 Ves. 200. » Thomason v. Frere, 10 B. 418.
6 Palm. 325; Raynard v. Chase, 1
Burr. 6.

(a) By a subsequent statute — 1856, c. 284, s. 37 — such notice was made

necessary.
(&) As to the form of petition in case of the bankruptcy of one partner,
it is held that a petitioning member of a solvent firm need only state in his
schedule his interest in the partnership property, and the proportion thereof,
not the particulars of the effects. Norcross, Law Eep., July — 42, p. 124 —
Maine U. S. Court.
(c) Where one partner, without the consent of the others, indorses a note
of the firm for the purpose of raising money to pay his private debt, a bank
taking such note through its cashier, who has notice of the facts, cannot
CHAP. IV.] PAKTNBRSHIP. 59

§ 9. On the other hand, the acts of a solvent partner in dis-

posing of the property, and more especially if for payment of
dehts, are valid, notwithstanding a previous act of bankruptcy on
the part of the other partner, even though known to the former
and to the creditor receiving payment, unless a fraudulent prefer-
ence isintended.* Hence, in case of the separate bankruptcy of
a partner, his assignee cannot recover a moiety of the money sub-
sequently paid by the other partner on partnership account.^ It
is said : " If several persons enter into partnership, either for a
definite or an indefinite time, each partner is at liberty to employ
the joint funds in payment of the partnership debts ; and each
has a lien on those funds for his own indemnity, limited to their
being applied to the payment of partnership debts. When one
of several partners becomes bankrupt, he puts himself by that
act out of the partnership, and ceases to have any further control
over the partnership property ; the whole of his rights pass to his
assignees. But this does not prevent the remaining partners from
exercising the control which rests with them over the partnership
property, to take care that it is duly applied in liquidation of the
partnership debts."'
§ 10. But the principle that a solvent partner may validly
dispose of the partnership property does not apply, if the facts
furnish reasonable evidence of a fraudulent preference.* Nor
does the principle apply to the execution of deeds. Even if both
join in a deed, only a moiety of the estate passes." So the deposit
of a lease is held to pass only a moiety.* So, after bankruptcy
' Fox V. Hanbury,
V. Crickett, 5 [Link].
& 8. 445
336 ;; Harvey
Parker ' Per
5 [Link], J^., Harvey v. Crickett,
& S. 886.
V. Muggridge,. 2 Story, R. 346 ; * Bamsbottom v. Buck, 1 Mont. Part.
Woodbridge v. Swann, 4 B. & Ad. 135 App. See Biggs v. Fellows, 8
633; Robinson, 1 Mont. & A. 18; B. & C. 402.
Smith 1). Oriel, 1 E. 368. See De ^ ghep. Touch. 71. But see 2 & 3 Vict.
Tastett V. Carroll, 1 Stark. 85 ; Wait, o. 29.
1 Jac. & W. 605. 8 Whitwell v. Thompson, 1 Esp. 70.
2 Harjvey v. Crickett, 5 M. & S. 336 ;
Smith V. Oriel, 1 E. 363.

prove the note against the firm. Fall River, etc. v. Stnrtevant, 12 Gush. 372.
By St. 6 Geo. 4, c. 16, s. 82, all payments to a bankrupt are protected,
if made without notice of the act of bankruptcy. See also Sts. 2 Vict., c.
11, s. 12 ; 2 & 3 Vict. c. 29, s. 1 ; Craven v. Edmonson, 6 Bing. 734 ; Lacy
V. Woolcott, 2 D. & B. 458. As to an execution against the firm after bank-
ruptcy ofa partner, see Story, Partn. s. 340; Brickwood v. Miller, 3 Mer. 279.
60 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

of one partner, the other cannot draw or negotiate a bill or note

in the firm name, without the indorsement of the assignee.'
§ 11. As has been suggested, in case of the bankruptcy of one
partner, the assignee is not in general entitled to possession, but
only to an account from the solvent member, and a share of the
surplus after payment of debts. Though, where there is danger
of waste, the Court may order an injunction, or that the assignee
take the administration upon himself.^ Or, it seems, in some
cases, may enjoin both parties from disposing of the property.'
More especially, the assignee in bankruptcy of a dormant partner
is not entitled to possession of the partnership property, as against
attaching creditors of the firm.* It is said: "The general rule in
bankruptcy is that, in cases of partnership, where one partner
becomes bankrupt, his assignee can take only that part of the
partnership assets which would belong to the bankrupt, after pay-
ment of all the partnership debts; and that the solvent partners
have a lien upon the partnership assets for all the partnership
debts, and also for their own shares thereof, before the separate
creditors of the bankrupt partner can come in and take anything.
It is true that, in such cases, it may often, from the necessity of the
case, and for the purpose of ascertaining the partnership assets
and debts, and adjusting and settling the same, and making a
final settlement and distribution of the surplus, be indispensable,
that the District Court, as a court of equity, should take into its
own hands the exclusive management and administration of all
the partnership assets, and inhibit the other partners from inter-
meddling therewith. But this it will do with caution, and solely
for the purposes above stated. And so far from thereby dis-
placing any of the rights, liens, and equities of the other part-
ners, itstudiously seeks to maintain and protect them.' '
§ 12. But, on the other hand, where assignees, under a sepa-
rate commission, have got possession of the partnership funds, the
solvent partner cannot call them out of their hands, or compel
them, or partnership debtors who have settled with them, to ac-
count. The solvent partner is entitled to his share of the sur-

1 Abel V. Sutton, 8 Esp. 108 ; Ramsbot- s Story, Partn. s. 841 and n.

torn !). Lewis, 1 Camp. 179. See * Talcott v. Dudley, 4 Scam. 427.
Ramsbottom v. Gator, 1 Stark. 228. 6 Per Story, J., Parker v. Muggridge,
2 Norcross, Law Rep. July— 42, p. 124 2 Story, 347.
—Maine U. S. Ct.
CHAP. IV.] PARTNERSHIP. 61

plus, after payment of the partnership debts. They hold those

funds by an equal title in law, with him, as tenants in common,
and by a superior equitable title, as trustees, charged with the
payment of both the joint and separate debts.^ In a leading case
upon this subject, the Court say: "It is admitted, in all the
cases, that the assignees of a bankrupt partner, and the remain-
ing solvent partner, are tenants in common in respect to the
partnership funds; and, like all tenants in common, one party
cannot call the joint property out of the hands of the other.
There is no such case. They are entitled equally to the pos-
session in law. Trover will not lie for one against the other.
It has also been held, that the solvent partner and the assignees
of the bankrupt cannot sue alone, and that they must unite in
actions at law."^ So where the assignees of a bankrupt partner
brought a suit in equity to recover partnership property, to which
the solvent partner, who was made party to the suit, demurred,
on the ground that the assignees were not entitled to the joint
property; but the demurrer was overruled, and an account, with
consent of parties, taken before the master, and finally settled ;
held, the solvent partner could not, in a collateral suit, question
the right of the assignees to the property, though the decree re-
served to the solvent partner a right to question their claim.'
§ 13. It is said that, in case of separate bankruptcy, actions
must be brought jointly by the other partner and the bankrupt.*
But the distinction is made, that the assignee of a bankrupt part-
ner is a necessary party to a suit in equity to recover a debt due
to the firm at the time of the bankruptcy, where the assignee has
a beneficial interest in the partnership effects, as trustee for the
separate creditors of the bankrupt.^ While, on the other hand,
where the bankrupt is discharged from his debts, and it distinctly
appears that the copartnership is insolvent, so that the assignee
has no interest in the effects of the firm, but that the solvent part-
ners must necessarily apply all the partnership property to the
payment of the debts of the firm, and where this is distinctly
stated in the bill ; the assignee need not be made a party.^
§ 14. Important questions of jurisdiction arise, more especially
1 Murray v. Murray, 5 John. Ch. 60, 78. « CoUyer, 3d Am. ed. 732.
2 PerJohn.
Kent,[Link].,
[Link] v. Murray, 5 e Ibid. v. Whitbeok, 11 Paige, 42.
"^Coe
' Murray v. Murray, 5 John. Ch. 60.
62 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

in consequence of the independent authority of the courts in the

different States of this country, connected with the residence of
partners, who, or a part of whom, become bankrupt or insolvent.
Upon this point it was held, under the late bankrupt law, that
either partner might be declared a bankrupt in the district where
he resided or where the partnership was established. But the
court first acquiring jurisdiction had exclusive jurisdiction over
all the partners and all their property, joint and several.^
§ 15. Under the insolvent law of Massachusetts, a process in
insolvency may be instituted by a creditor, under Stat. 1838,
c. 163, s. 19, and Stat. 1844, c. 178, s. 13, against a partnership,
one of the members of which has resided in the State within a
year, (the period fixed by the statute,) but has removed there-
from ;although no one of the other partners is, or ever has been,
resident within the State.'' But a creditor, who brings an action
in New York against two persons as partners doing business there,
one of whom resides in this State, and is not served with process,
and recovers a judgment there against both, which, by the stat-
utes of that State, is binding upon the person served and upon
the joint property, cannot afterwards prove the debt against the
estate of the absent defendant in proceedings under the insol-
vent laws of Massachusetts, commenced before the action was
brought in New York,, whether the two defendants in that action
were partners or not.* It is said : " Where a partnership has been
carried on in another State, of which some one inhabitant of this
commonwealth is a member, and such inhabitant becomes insol-
vent, the courts of this State have no jurisdiction over the joint
estate of such debtor in another State, nor over the person nor
persons of the other joint debtor or debtors. The joint property
of such foreign partnership forms no part of the funds to be ap-
plied to the payment of any debts in this commonwealth. The
rule, founded in principles of equity, as well as expediency and
practical utility, of making joint assets liable to joint debts, and
separate property to separate debts, could not be applied. To
allow such creditor of a foreign firm to come in competition with

iHall, Law Eep., Oct.— 42, p. 269— sCatsldll Bank v. Hooper, 6 Gray,
Mass. U. S. Ct. 574. ^ ' '
' McDaniel v. King, 6 Gush. 469.
CHAP. IV.] PARTNERSHIP. 63

the separate creditors, in the distrihution of the separate property

of the partner, would be inequitable."'
§ 16. As we have already seen, under a joint bankruptcy both
joint and separate property passes.'' While, in general, under a
separate bankruptcy all the separate property, and also the bank-
rupt's interest in the joint property, pass.' Subject, however, to
the important qualification, that it is often expressly provided by
statute, that bankruptcy or insolvency proceedings against the
partnership may be instituted by one partner. Thus, under the
insolvent law of Massachusetts, (St. 1838, c. 163, s. 21,) one
partner, even after the dissolution of the partnership, may com-
mence proceedings in insolvency by his sole petition, and not
only the property of the firm, but also the separate property of
his late partners, will pass.^
§ 17. As has been suggested, the assignee of a bankrupt part-
ner becomes a tenant in common with the other partner. It seems
to result from this relation, that, on the one hand, the solvent part-
ner cannot take the property from the assignee if he has posses-
sion of it ;* but, on the other hand, the assignee of one partner
has no claim to the partnership property till he pays what is due
from the bankrupt to the firm.* And, except under special cir-
cumstances, the separate assignee of a partner cannot sell or
require the sale of the joint property, but will be restrained from
selling it by injunction, more especially if the solvent partner is
able and willing to account for the bankrupt's share, and indem-
nify against the joint creditors.^(a)
§ 18, It will be seen that, in the settlement of bankrupt and
insolvent estates, the appropriation of the property, or marshall-
ing of the assets, is for the most part determined by the nature
iPer Dewey, J., Trustees, etc. v. * Thompson w. Thompson, 4 Cush. 127.
Hooper, 5 Gray, 583. 'Fox v. Hanbury, Cowp. 445; Smith
2 Cooke, 2 P. Wms. 500; Bandier, 1 «. Slokes, IE. 363; Murray [Link]-
Atk. 98; Hague u. RoUeston, 4 ray, 5 John. Ch. 60.
Burr. 2174. OHolderness v. Shacklesels, 8 B. & C.
'Horsey, 3 P. Wms. 23; Eddie v. 612.
Davidson, Doug. 627; Barker v. 'Allen o. Kilbre, 4 Madd. 464. See
Croodair, 11 Ves. 85; Harrison v. Figes, 1 Glyn & J. 122; Montgom-
Sterry, 6 Cranch, 289. ery, ibid. 338.

(a) As to the right of an assignee to carry on the trade with the solvent
partner, see 15 Ves. 228.
64 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

of such property as joint or several. The latter question there-

fore becomes very important.
§ 19. For the most part, joint and separate property is easily
distinguishable. But many very important questions have arisen,
more especially where only one partner becomes bankrupt, grow-
ing out of an alleged transfer or change of property from joint
to several, or the reverse. Upon this point it is held, that if, upon
dissolution between A. and B., partnership property is left with
A., for the purpose of paying debts and winding up the business,
upon A.'s subsequent bankruptcy it is treated as joint property.'
So partnership property, conveyed upon dissolution to one part-
ner, who agrees to hold it and convey one half to the other after
paying the debts, is to be applied, in case of the insolvency of
both, to the partnership debts. Though the legal title vests in
the purchaser, the agreement fixes a trust on the property for the
benefit of the seller. The transfer does not convert the joint into
separate estate, except as subject to this equity. And the right
to enforce the trust devolves, in insolvency, upon the joint cred-
itors; and the assignees, in stating their accounts, are bound to
carry the amount received by them for the sale of this property
to the credit of the joint estate.^ So, upon the ground that the
purchaser is a trustee for the firm, the English statute relating to
property in the order and disposition of a bankrupt does not
apply to this case f though the statute is held applicable, where
one of the firm is but a dormant partner.*
§ 20. But a bond fide sale, for valuable consideration, by one
partner to another, of all the partnership effects, is valid, and
vests the sole title in the latter, although the firm and both
partners are at the time insolvent,(a) more especially if they have
1 Story, Partn. s. 372; CoUyer, (3d « Harmon u. Clark, 13 Gray, 114.
Am. ed.) s. 882; Hare, 2 Mont. s Winch «. Keely, 1 T. R. 619; Cope-
& H. 478; Hunter, 2 Rose, 382; man d. Gallant, 1 P. Wms. 314.
Jackson, 1 Ves. 131; Burn, 1 Jao. *Enderby, 2 B. & C. 389; Smith v.
& W. 378; Jones, 4 M. & S. 450; Watson, 2 B. & C. 401. See Chuck,
Yallop, 15 Ves. 60; Houghton, 17 8 Bing. 470.
Ves. 262; Horn v. Baker, 9 E. 215;
Parry, 5 Ves. 575; Ruffiu, 6 Ves.
119 n. a; Fell, 10 Ves. 347.

(a) A. B. and 0. being partners, on the dissolution of the partnership a

new partnership was formed between A. and B., who assumed to pay the
debts of the old firm. A. and B. assigned their effects for the benefit of their
CHAP. IV.] PARTNERSHIP. 65

no knowledge of sucli insolvency;^ and it has been sometimes

held, that even this knowledge would not avoid the transfer.^
It is said: "The mere fact of the transfer of the property
does not in any way affect the rights of the joint creditors.
During the continuance of the partnership, and before the
institution of proceeding in insolvency, the creditors of the firm
have no specific claim or lien, and, strictly speaking, no equity as
against the effects of the partnership. The joint property, after
its transfer to one of the copartners, is equally within the reach
of legal process by the creditors of the firm as if it had remained
the property of the partnership. — It is undoubtedly true, in the
absence of any special agreement between copartners, as to the
application of the partnership effects after dissolution, that a
retiring partner retains a lien upon them to the extent of enforc-
ing their application to the payment of the joint debts,, and that
creditors, though they have no lien on the property in their own
right, are allowed in equity to assert a quasi lien by administer-
ing the equities between the partners themselves. But it is
equally well settled that a retiring partner may relinquish this
lien, in which case he has no equity through which the creditors
of the firm can work out their own. By the transfer of the joint
property to his copartner, and taking his personal contract and
security for the payment of the joint debts, he discharges his lien
and substitutes therefor the agreement of his copartner, to which
he can alone look for his remedy in case he is called on to pay
the debts of the firm. The creditors in such case cannot rest
upon the equity of the outgoing partner."* So, in general, no
instrument of assignment is necessary to change joint into sepa-
rate property. Delivery, accompanied by. notice of dissolution,
is sufficient.*(a) But in order to a perfect assignment
* of ckoses
1 Howe V. Lawrence, 9 Gush. 553. ' Per Bigelow, J., 9 Gush. 556-8
2Peake, 1 Madd. 346. * Williams, U Ves. 3.

creditors under the insolvent law. Held, that the owner of a debt against
the old firm was not entitled to a dividend upon the estate of the new firm.
Scull V. Alter, 1 Harr. 147.
(a) And the converse of this rule has been applied in reference to the
change of separate into partnership property. Thus A., carrying on busi-
ness as a grocer, and entitled to some stock in trade and furniture on the
premises, took B. and C. into partnership with him in April, and the business
was carried on by the partnership until August, when they became bank-
5
66 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

in action, notice to the debtors is also necessary;^ and public

notice is not sufiScient.^ Nor will an incomplete and executory
contract have the effect of an actual assignment.^
§ 21. If a partnership creditor accept the remaining partner
as his sole debtor, and the latter afterwards become bankrupt,
such creditor will have all the rights of a separate creditor.*
Though not if such acceptance is subsequent to the bankruptcy.*
So, where goods were sold to A., one of the firm of A. and B.,
which afterwards became bankrupt, and were paid for by a joint
note, a receipt being given as for money paid, but not expressing
the mode of payment; held, a claim for goods sold might be
maintained as a separate debt against A.*
§ 22. Meal estate purchased by one partner, though with part-
nership funds, in case of bankruptcy is treated as his separate
property, if such was the agreement between the partners.^ So
a conveyance of real estate to all the members of a partnership,
though purchased with partnership property, and used for part-
nership purposes, vests the title in them as tenants in common;
and failure to dissolve an attachment of such property, more
especially in an action upon a note signed by the partners indi-
vidually, isno ground for insolvency proceedings against the
firm.* But under the Massachusetts insolvent law the assignees
of an insolvent debtor, who is the surviving partner of a firm,
are entitled to all the real estate of the partners which was pur-
1 Ryall V. Bowles, 1 Ves. 367 ; Jones * Thompson v. Perciyal, 5 B. & Ad.
V. Gibbons, 9 Ves 410 ; Burton, 1 925.
Glyn&J. 207; Usborne, ibid. 858. ^ Freeman, Buck. 471.
aUsborne, 1 Glyn & J. 358; Burton, «Seddon, 2 Cox, 49, aoc. Lotb, 7 Vea.
ibid. 207. 592; Hay, 15 ibid. 4. See Story,
«Kowlandson, 1 Rose, 416; Barrow, 2 Partn. 370; Colt v. Wilder, 1 Edw.
ibid. 252 ; Story, Partn. s. 402 ; 484 ; Clowes, 2 Bro. 595 ; Bonbonus,
Wheeler, Buck, 25. See Young v. 8 Ves. 546; Kedie, 2 Dea. & C.
Keighly, 15 Ves. 568; Gibson, 2 321; Hunter, 1 Atk. 223.
Mont. & A. 4; Clarkson, 4 Dea. & ' Smith v. Smith, 5 Ves. 189; Smith, 3
Ch. 56; Peake, IMadd. 346; Grant Madd. 63.
V. Mills, 2 Ves. & B. 306; Pember- s Ensign „. Briggs, 6 Gray, 329.
ton, 2 Mont. & A. 548.

rupt. B. antJ C. did not pay anything to A., or bring any money into the
concern, and no deed of transfer of the property, and no articles of part-
nership, had been executed. After the partnership A. ordered goods in the
name of the firm. Held, the stock in trade on the premises at the time
of the bankruptcy was partnership property, but the furniture was the sep-
arate property of A. Owen, 7 Eng. Law & Eq. Eep. 305.
CHAP. IV.] PARTNERSHIP. 67

chased with the partnership funds, for the partnership business,

and may maintain a bill in equity against the administrator,
widow, and heirs of the deceased partner, to compel a trans-
fer to such assignees of his moiety of such real estate, that it
may be disposed of by them for the benefit of the creditors of
the firm, who may prove their demands against the surviving in-
solvent partner.^
§ 23. In regard to the form of eommisaion in case of partner-
ship, itwas formerly the practice to take out a joint commission
and separate commissions at the same time. But it seems now to
be settled, that a joint commission and separate commissions can-
not subsist together; because, all the efiects of the bankrupt
vesting in the assignees under the first commission, there is
nothing to pass under a second, or upon which that can operate
till he has obtained a certificate under the first.^ As has been
already intimated, the nature of the property, in case of partner-
ship, as joint or separate, determines its appropriation in the first
instance to the joint or separate debts. Joint creditors, however,
have a claim against the separate estate, subject only to the prior
claim of the separate creditors. For this reason, in England, it
is held that a commission or fiat may issue against one partner
for a joint debt, being in the nature of an execution, not of an
action.^(a) And the rights of the petitioning creditor, as distin-
guished from others, in case of a joint petition, have sometimes
been very liberally construed. The case of a joint creditor suing
out a separate commission is held to be difierent, in respect to
the right of proving against the separate estate, from that of
' Burnside v. Merrick, 4 Met. 537. ' Crispe, 1 Atk. 33; Murray v. Murray,
sCuUen's Bank. L. 451-2. 5 John. Ch. 73. *

(a) On the other hand, it is sometimes held that a joint commission must
include all the partners, because it is an action. Allen v. Hartley, Co. B. L.
5 ; Cullen's B. L. 452.
So that if one of three partners is an infant, so that there cannot be a
commission against all, there cannot be a joint one against the other two.
Henderson, 4 Ves. 163.
It is very well remarked, in reference to the question whether a commis-
sion isan action or an execution, " the analogy in either respect, perhaps
fails in more instances than it applies." Cullen's Bank. L. 460.
A commission against A., describing him as partner of B., is a separate
commission. Woodmason, 1 Cox, 308.
68 BANKRUPTCY AND INSOLVENCY. [CIIAP. IV.

Other joint creditors. The former is allowed to come in upon the

separate estate with the separate creditors, upon the equitahle
ground, that by taking out the commission he is precluded from
suing at law, and, having done so for the benefit of the separate
creditors, they cannot object to his having the benefit of it for
his own debt ; while other joint creditors are in the position of a
person having two funds, whom a court of equity will not allow
to resort to one fund to the prejudice of those who had no other.*
But, in regard to the creditors generally, it is held, that, if the
joint creditors assume the joint debts, they may prove against the
separate estate.'' And in this country, under the bankrupt law
of 1800, a joint debt might be proved under a separate commis-
sion, and a full dividend received. Equity alone could restrain
the joint creditor from receiving his full dividend, until the joint
eflfects were exhausted .^ So, under the same law, the assignees of
one of two partners, both of whom were bankrupts, might dis-
tribute the whole partnership fund; for after a separate commis-
sion ajoint one could not issue, and vice vend.* So under the in-
solvent law of Massachusetts, when the property of one, who has
been a member of a partnership that is dissolved, is assigned under
the insolvent law, the creditors of such partnership may prove
their claims against him, and an account is to be kept, distinguish-
ing between his separate and joint debts, which are so proved.'
§ 24. Without reference to the joint or separate form of the
commission or petition, it is the general rule, as already stated,
in appropriating the property to the debts, that "the joint estate
is applied to the joint debts, the separate to the separate debts,
and the surplus of each reciprocally to the creditors remaining
on the other.""' And the rules upon this subject, it is said, "are
woven into the system of the bankrupt laws."'(a) Of course they
1 Elton, 3 Ves. 238. But Bee Bolton, 2 * Murray v. Murray, 5 Johns Ch. 60.
Kose, 389 ; Barned, 1 Glyn & J. » Barclay v. Phelps, 4 Met. 897.
309; Smith, 1 ibid. 256; Poulson, 1 «Per Lord Loughborough, Elton, 3
De Gex, 79. Ves. 242.
2 Chandler, 9 Ves. 35; Tait, 16 ibid. 'Per Turner, L. J., Goldsmid, 39 Eng.
193 ; Basarro, 1 Rose, 266 Law & Eq. 117.
' Tucker v. Oxley, 5 Crauch, 84.

(a) Formerly, separate creditors were allowed by special order, (the com-
missioners having no general authority for the purpose,) to prove under a
joint commission. Cullen's Bank. L. 461.
Both classes of creditors may prove, for the purpose of assenting or dis-
senting to the certificate. Ibid. 4.59. See s. 25.
CHAP. IV.] PARTNERSHIP. 69

do not apply where there is no joint estate. But the amount of

such estate is immaterial, and the manner in which it was ac-
quired; unless it is substantially worthless, as where it is incum-
bered for more than its value. In one case it was held that the
rule applies, although separate creditors purchased worthless joint
property for the purpose of creating a joint fund.*
§ 25. It is to be observed, however, that the now prevailing
rule upon this point has been subject to much fluctuation, and
sometimes strongly disapproved.^ In the case of Murray v. Mur-
ray,^ Chancellor Kent elaborately traces the course of the English
equity decisions upon the respective rights of individual and part-
nership creditors, in case of bankruptcy. He remarks, that in the
time of Lord Hardwicke joint creditors might come in and prove
under a separate commission against one partner for the purpose
of acting upon the question of discharge, but not of receiving
dividends with the separate creditors. Lord Hardwicke held,
also, that a separate commission might issue against one partner
for a joint debt. Lord Eldon thought there was a difiBculty in
this course in respect to the other partners. Lord Thurlow
allowed joint creditors to take dividends upon the separate estate,
holding a commission to be an execution for all the creditors.
Lord Loughborough restored the principle, though not the entire
practice, of Lord Hardwicke. He directed the assignees, under
a separate commission, to take an account of the joint estate, and
applying that to the joint debts, to ascertain the shares of the
residue belonging to the bankrupt and the solvent partners. The
joint creditor was allowed to prove and receive such surplus,
beyond the amount of the separate debts, as he would be entitled
to if there were two commissions. Lord Eldon pursued the rule
and practice of Lord Loughborough.
§26. But, on the other hand, where an insolvency statute
adopts in terms the general rule, it is not only rigidly applied,,
conformably to the practice in England, but the exception to the
rule already stated is held to be impliedly abrogated. It is said :
•Leaf, 1 Dea. 176; Appleby, 2 ibid. ^See Hodgson, 2 Bro. 5; Page, ibid.
482; Hill, 2 N. R. 191 a ; Marwick, 119; Elton, 3 Ves. 240; Abell, 4
8 Law Rep. 169, U. S. Ct. Maine. ibid. 837; Story, Partn. s. 377;
See Janson, 3 Madd. 229; Sadler, Jackson, 1 Ves. 131.
15 Ves. 52 ; Bauerman, 3 Dea. 476 ; » 5 John. Ch. 72.
Wniock, 2 Rose, 392 ; Somerset., etc.
.*. Minot, 10 Cush. 596.
70 BANKRUPTCY AND INSOLVENCY. [CHAP, IV.

" The statute recognizes no such exception. The rule is direct

and peremptory. This provision was reported and enacted with
a full knowledge of the exceptions. The rule may sometimes
operate harshly ; but it is definite, clear, and easily applied. The
exceptions to it are artificial and refined, leading to nice and subtle
distinctions, and sometimes operating with great inequality and
injustice. Under such circumstances, we are unwilling to adopt
it into our jurisprudence."^ So in another case in the same court,
it is said that the general rule " has become part of our written
code, and as such, as respects this commonwealth, overrides all
questions of expediency or the fitness of things. It takes the
subject in its general bearings, looking at it as a whole, and pre-
scribes a uniform rule for all cases. "^ (In this case, however,
some doubt was expressed whether the exception to the rule is
wholly abrogated.)
§ 27. It is the prevailing rule, in England, that a creditor can-
not prove against the joint and separate estate of the same per-
son.' And the rule of election applies, in case of a bill drawn by a
partner upon the firm, or vice versd, and accepted ; if the holder
had notice of the partnership ; and the weight of authority seems
to be, that want of notice would make no difierence.* But it does
not apply, where the partnership is subdivided into distinct firms.'
And where a creditor of a firm takes a joint and several bond
from them, and afterwards a bill indorsed to him by the firm, in
part satisfaction, and proves the bill in bankruptcy against the
acceptor, he has a right to prove under the bond, and may proceed
against either the joint or separate estate. So where a joint cred-
itor takes as collateral security a draft from a solvent partner, or
a separate bill, he may prove either according to the original or
the substituted debt. And the same rule applies where a separate
creditor takes a joint bill or note." So under the insolvent law of
iPer Bigelow, J., Howe v. Lawrence, Bevan, 10 Ves. 107; Clarke, 1 De
9 Gush. 559-60. Gex, 153; Wood, ibid. 134; Clarkes,
'Per Dewey, J., Somerset, etc. v. 2 Jones & Lat. 212; Lane, 1 De
Minot, 10 Cush. 597. Gex, 300; Arbouin, ibid. 359.
' Story, Partu. s. 388; Masson, 1 Rose, < Bigg, 2 Rose, 371; Bank, etc. 1 Rose,
159;Liddel, 2ibid. 34; Bank, etc. 82.
ibid. 82; Husband, 2 Glyn & J. 8 CoUyer, s. 944.
4; Moult, Mont. 337 i Chevalier, 1 SHodgkinson, Coop. 101; Roxby, 1
Mont. & A. 845 ; Hinton, 1 De Mont. Parln. 203 ; Seddon, 2 Cox,
Gex, 550. See Labrooke, 1 Glyn 49 ; Lobb, 7 Ves. 692. See Clowes,
& J. 81; Bate, 3 Dea. 858; Smith, 2 Bro. 595; Freeman, Buck, 471.
1 ibid. 385 ; Hill, 8 Mont. & A. 1 76 ;
CHAP. IV.] PARTNERSHIP. 71

Massachusetts, where partners gave a note on partnership account,

signed with their individual names, to a person to whom the exist-
ence of the partnership was known, who indorsed and transferred
the note, without informing the indorsee of the partnership ; and
one of the partners afterwards went into insolvency, but without
any property of the firm being assigned to his assignee ; it was held,
upon proof of the partnership, that the note was a partnership
note, provable as such against the insolvent by the indorsee, who
would be entitled to a dividend thereon out of any surplus remain-
ing after paying the separate debts of the insolvent.^ But, on
the other hand, where two partners signed a note in this form as
sureties, and their joint and separate estates were assigned in in-
solvency, the note was held provable against their separate estates.^
So in case of a dormant partnership, and bankruptcy of the nom-
inal debtor, a creditor without notice may prove either against
the joint or separate estate.* So allowance of proof in insolvency,
against the estate of a partnership, of a bill of exchange drawn
upon them by one of the partners, will not prevent its subsequent
proof, before any part of it has been paid, against the separate
estate of that partner.* So a bill drawn by a firm and indorsed
by one member is provable against the estates of both.* But
where such bill is taken up at maturity by a third person for the
honor of the drawers, it ceases to be negotiable, and he can prove
only for money paid against the drawers.* So where a creditor
brought an action against one of three joint debtors, two of whc^m
were out of the jurisdiction ; obtained judgment, and afterwards
issued a fiat of bankruptcy against this debtor; and distinct
accounts were directed to be kept of the joint estate of the three
debtors ; held, upon agreeing- to abandon or withdraw the proof
made against the separate estate, he might make such proof as he
would be entitled to make if the action had not been brought and
the judgment had not been obtained.'
§ 28. The following somewhat nice distinctions, however, seem
well established by the weight of authority.
§ 29. If a joint and several security is given for a partnership
1 Agawam Bank v. Morris, 4 Cush. 99. ' Farnum, 6 Law Rep. 21 ; Borden v.
2 Weston, VI Met. 1. Cuyler, 10 Cush. 476.
s Watson, 19 Ves. 459; Matthews, 3 « 10 Cush. 476.
Ves. & B. 125. ' Jones, 5 Eng. Law & Eq. Rep. 240.
* Fuller V. Hooper, 3 Gray, 334.
72 BANKRUPTCY AND INSOLVENCY, [CHAP. IV.

debt by a firm, some members of which have become bankrupt,

the creditor may treat the debtors either as joint or several. He
may sue all, in which case the bankrupts may set up their bank-
ruptcy, and execution be had against the rest, or he may prove
his debt against the bankrupts, and bring a separate action against
each of the others. But after proving the claim against the
bankrupt, he cannot bring a joint action against him and the
other partner.* And the rule seems well settled, though in some
cases seriously questioned, that where all the partners are bank-
rupt, a creditor holding both the joint and several security of the
members must elect to prove between the joint and separate
estate.^ So if a partner gives a separate security for a joint debt
and becomes individually bankrupt, the creditor may have an
order of sale, and prove for the balance against the joint estate.'
So if a partnership verbally assume a debt of one of the firm,
the creditor may prove against the joint estate.* So, on the other
hand, in case of a joint commission, if the joint creditors resort
to the dormant partner's separate estate, the separate creditors
have a lien upon the surplus of the joint estate in the same pro-
portion.'(a) But a debt due from a partnership established in
another State cannot, under the insolvent laws of Massachusetts,
be proved against the estate of one of the partners who resides
in Massachusetts, in competition with his separate creditors.*
And where a bankrupt was formerly a member of several firms,
against which there was a decree ; held, the fund in court, derived
wholly from his separate estate, belonged exclusively to the sep-
arate creditors.'^
§ 30. A joint and separate creditor may postpone his election
till the amounts of the respective dividends are ascertained, or he
may prove against both estates and elect at the dividend.* And
1 Bradley v. Miller, 1 Rose, 273 ; Read, » Leicestershire, etc. 1 De Gex, 202.
ibid. 460. *Lane, 10 Jur. 382.
sGow, Partn. 286-7; Story, Partn. s. 5Reid, 2 Rose, 84.
384. See Bond, 1 Atk. 98; Row- sCatskill, etc. v. Hooper, 5 Gray, 584.
landson, 3 P. Wms. 495 ; Christie, ' Williams, Law Rep. Jan.— 43, p. 402.
Mont & B. 352; Beyan,9 Ves. 223; « Bond, 1 Atk. 98; Benlley, 2 Cox,
Siddiard, 2 Mont. & A. 87. 218; Husband, 2 Glyn & J. 4.

(a) A partnership, becoming insolvent, executed an assignment of their

joint and several property. One of the partners was indebted to the United
States. Held, that the United States had no right of preference over the
joint creditors of the partnership, to be paid out of the partnership fund.
United States v. Evans, Orabbe, 60.
CHAP. IV.] PABTNEKSHIP. 73

in some instances he lias been allowed, after receiving a dividend,

to refund, and claim from the other estate.' But this cannot be
done where the effect would be to disarrange the settlement of the
estates, as by changing a previous dividend or impairing the force
of a certificate already signed."
§ 81. It is the prevailing rule in England that, in case of sep-
arate bankruptcy, the other partners may proye their claims
against the bankrupt, even for contribution to the joint debts ;
more especially if there be an express covenant of indemnity.
Hence these claims are barred by a certificate.' They stand in
the position of a surety who has paid the debt.* Where there are
no joint debts, a solvent partner may prove against the bankrupt,
in competition with his other creditors.* And generally, if upon the
bankruptcy of a partner the joint creditors are all fully paid from
the joint estate, the solvent partner may be paid a balance due
him out of the bankrupt's share of the partnership estate, and
prove the deficiency against the separate estate, not disturbing
previous dividends.* And, therefore, though he fail to do so, will
be barred by a discharge.'' Nor will knowledge of the remaining
partner's insolvency prevent the proof.* So solvent partners may
prove pari passu with separate creditors, though the partnership
debts be paid after the bankruptcy.' Lord Eldon says, (in a lead-
ing case :) "All the partnership creditors have been paid ; and
although they have been paid after the bankruptcy, yet the efiect
is the same : the proof will not be in competition with them. In
every fair and equitable understanding of the respective situations
of the parties, are not the solvent partners to be considered as
his separate creditors ? In bankruptcy the administration of the
estate is both legal and equitable. Prior -to the bankruptcy the
solvent partners might have filed their bill to compel the bank-
1 Whistler v. Webster, 2 Ves. 371 ; han, 2 Str. 1143 ; Butcher v. For-
Rowlandson, 2 P. Wms. 205 ; Mas- man, 6 Hill, 583 ; Parker v. Rama-
son, 1 Rose, 159; Swanzy, Buck, bottom, 8 B. & C. 257.
7; Law, 3 Dea. 541. *Afflalo v. Fourdrinier, 6 Bing. 309.
^Bentley, 13 Ves. 70; Borrodailes, 1 ^Dodgson, Mont. & McA. 445.
Mont. Partn. 129 App. ; Solomon, 1 « Terrell, Buck, 345 ; Story, Partn. s
Glyn & J. 25; Husband, 5 Madd 407; Parker v. Ramsbottom, 3 B.
421. But see Atkinson, 1 Mont & C. 257.
Partn. 207. ' Wgrod v. Dodgson, 2 Rose, 47.
sWood V. Dodgson, 2 M. & S. 195 8 Carpenter, Mont. & McA. 1.
Afflalo V. Fourdrinier, 6 Bing. 306 « King,
B. 81.17 Ves. 115 j Younge, 3 Ves. &
Horsey, 8 P. Wms. 23; Twiss v.
Massey, 1 Atk. 67 ; Wickes v. Stra-
74 BANKR0PTOY AND INSOLVENCY. [CHAP. IV.

rupt to pay that money which he had so misapplied ; and how is

that equity shaken hy the bankruptcy ? Although the two solvent
partners, impeded by the technical form of legal proceedings,
could not have maintained an action against the bankrupt, yet
undoubtedly, upon equitable principles, the bankrupt was a trustee
for and accountable to them ; and a court of equity would have
taken care to modify its equitable remedy, unshackled by the
formal impediments of law." And more especially a solvent
partner is allowed to prove his claim, where money or property
has been fraudulently abstracted from one estate to benefit the
other.* As where it is done in violation of an express or implied
agreement, and without the previous knowledge or consent or
subsequent approval of the other party f which consent will be
implied, however, from the fact of one partner's putting another
in absolute possession of the partnership funds, and leaving him
the sole management of the business.* And the question of implied
acquiescence may depend upon the state of the books, as showing
or not showing a misappropriation of the funds.* But, in general,
the solvent partner can receive nothing till the partnership cred-
itors are paid in full, being himself liable for the partnership
debts.' And the firm debts must have been satisfied, not merely
an indemnity given against them.* Two persons shall not stand
upon the proceedings in respect of the same debt ; and if the in-
demnity have not expunged from the proceedings, to all substantial
purposes, the name of the original creditor, then the person giving
indemnity does not come within the meaning of the act, as a
surety or person liable paying the debt, or paying part in dis-
charge, or making an engagement which is accepted in discharge
of the debt.'
§ 32, Where there are distinct firms carrying on separate trades,
but consisting in part of the same members, and one firm becomes

1 Harris, 2 Vea. & B. 213 ; Emly, 1 « St. Geo. 4, c. 16, s. 52 ; Ogilby, 2

Rose, 64. Rose, 177; Sioveld, 1 Glyn & J.
'Ibid. Oust, Cooke, Bank. L. 506. 303; Moore, 2 ibid. 166; Ellis, ibid.
» Batson, Cooke, 505. See Assignees, 312. But see Young, 3 Ves. & B.
etc. V. Fendall, 1 Ves. 166. 33; Grazebrook, 2 Dea. & C. 186;
* Young, 3 Ves. & B. 31 ; Smith, 1 Hall, 3 Dea. 125; Broome, 1 Rose,
Gljn & J. 74; Hunt -o. Benson, 2 71.
Humph. 459. » Per Ld. Eldon, Moore, 2 Glyn & J.
s Story, Partu. ss. 390, 406 ; Rawson, 166. Ace. Carter, 2 Glyn & J.
Jac. 277 ; Robinson, 4 Dea. & C. 233. (In both cases overruling the
499. decision of Sir John Leach.)
CHAP. IV.] PARTNERSHIP. 75

bankrupt, the other may prove against it ; certainly, unless the

two are jointly liable for debts.^ And where the same parties
constitute several firms, which respectively accept, draw, or in-
dorse bills, on which the other firm is liable in another capacity,
a creditor, without notice, may prove against each estate. (a) But,
in order to allow proof where there is a sub-partnership, the trades
must be distinct, not necessarily in hind, but in operation ; it must
not be merely the case of one partnership, arranging different
concerns belonging to them all in different ways for the benefit of
the several parts; or in other words, one establishment a mere
branch of the other.^ And in a late English case the rule as to
double proof seems to be left in great uncertainty. The facts of
that case were as follows. D. and Y. carried on business in Liver-
pool, in partnership as "D., Y. & Company." D. and Y. and a
third person also carried on business in Pernambuco, in partner-
ship as "D., Y. & Company." The two firms were separate and
distinct, and the third partner in the Pernambuco trade had not
any interest in the Liverpool business. The Pernambuco house
drew bills upon, and they were accepted by, the Liverpool house
bond fide and in the ordinary course of business, and two of such
bills came into the hands of G. and K., honestly, in the due course
of trade. The English firm became bankrupts, and afterwards the
Pernambuco firm entered into a concordata with their creditors,
' Adams, 1 Rose, 305 ; Thompson, 3 Ves. 413 ; Johns, Cooke, Bank. L.
Dea. &C. 612. And see Hesham, 1 510; Castell, 2 Gljn & J. 124;
Rose, 146; Cook, Mont. 228. Stroud, ibid. 127; Sillitoe, 1 Glyn
zShakeahaft, 6 Ves. 123, 743; Har- & J. 374; Cook, Mont. 228; Brench-
greaves, 1 Cox, 440 ; St. Barbe, 11 ley, 2 Glyn & J. 127.

(a) Laforest, Cooke, Bankr. L. 261; Story, Partn. s. 388; Benson, ibid.
263 ; Adam, 2 Eose, 36. Whether the same rule applies to a creditor with
notice, see Eden, Bank. L. 1 82 ; Walker, 1 Bose, 441 ; Bank., etc. 2 ibid. 83 ;
Bonbonus, 8 Ves. 546; Story, Partn. s. 388.
The phrase, "proof cannot be mounted upon proof," was applied, where
A., one partner of a firm, remained solvent, and proved against the sepa-
rate estates of the others, B. & C, for the respective sums they were bound
to contribute to the partnership debts. The question has arisen, B.'s estate
being insufficient to pay his share of the debts, whether A. can come against
O.'s estate for his proportion of the deficiency, in addition to the original
share already proved against 0. See Watson, Buck, 449; Smith, ibid. 492,
that this cannot be done. Contra, Hunter, Buck, 552; Moore, 2 Glyn & J.
172 ; Plowden, 3 Mont. & A. 402.
76 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

under which they vested property in trustees for the benefit of

their creditors. G. and K. received a dividend under the concor-
data out of the assets vested in the trustees of the Pernambuco
firm, as drawers of the bills. They subsequently attempted to
prove against the Liverpool firm as acceptors of the bills, but one
of the commissioners decided that there was no right to double
proof, and, upon appeal, the decision was affirmed. [Lord Justice
Turner agreeing with the commissioner. Lord Justice Knight
Bruce dissenting.] The former learned Judge remarks: "In
some of the cases in which there has been an aggregate firm, and
a distinct trade has been carried on by some or one of the mem-
bers of the firm, creditors to whom both the aggregate firm and
the minor firm, or the individual partner carrying on the distinct
trade, have been liable, have been admitted to prove against the
estates, both of the aggregate firm and of the minor firm or indi-
vidual partner carrying on the distinct trade. In others of those
cases, such creditors have not been permitted' to prove against both
estates, but have been compelled to elect against which they would
prove. The double proofs having thus been admitted in some
cases and rejected in others, we might well expect that the cases,
when examined, would present some marked and clear distinction
which would guide us in determining the present case, but unfor-
I
tunately have not found it to be so. It is, I think, reasonably
clear, that in the early cases the double proof was admitted only
in cases where the creditor had been ignorant of the connection.
But, then, in Ux parte Moult, and from that case downwards,
the question whether the creditor had notice, seems to have been
treated as of no importance ; and, whether there has been notice
or not, the double proof has been rejected. '"(a)
iGoldsmid, 39 Eng. L. & Eq. 106, 117.

(a) Where three firms, having each a distinct name, keeping separate
books and doing a separate business, consist of the same persons, and upon
the bankruptcy of one firm its claim against one of the others, also bank-
rupt, issold by the assignee and by the purchaser proved against the debtor
firm, he cannot afterwards proceed by suit for the debt against either of the
partners. For, although the three firms may be regarded as distinct, so far
as to settle the claims of the creditors of each, and to render a debt due from
one firm to another assets for the creditors of the latter, yet there could in
fact be no debt that could pass to a purchaser to make him a creditor of
the debtor firm, since all were bankrupt. Buckner v. Caloote, 28 Miss. 432.
CHAP. IV.] PARTNERSHIP. 7T

§ 33. Under the explicit provisions of the Massachusetts insol-

vent law as to the proof of debts and application of property
in case of partnership, the general rule, which allows proof by
the firm against a bankrupt member, has been distinctly rejected.
It is said: "We are aware that in the English courts there have
been cases where, under the peculiar equities of the case, the
courts of equity have allowed a demand or debt for goods sold
by a firm to one partner, to carry on his separate business, to be
allowed as against his separate estate. There has been, however,
great fluctuation in the opinions of the English chancellors on this
subject, and it is at this moment somewhat uncertain to what ex-
tent this exception to the general rule is allowed. Any exception
of this kind is full of embarrassment and diflSculty. Among other
difficulties are those as to the computation of the whole amount of
debts upon which fifty per cent, is to be calculated, in reference
to the discharge of the debtor, and in determining who are the
creditors to assent to the discharge. Can Horace Gray, of the
firm of Horace Gray & Company, assent efi"ectually to the dis-
charge of the same Horace Gray from all his private debts ? Can
Horace Gray and his copartner be legally creditors of Horace
Gray in any proper sense that will allow them to prosecute claims
against Horace Gray?"^ So where partnership property, mort-
gaged bythe firm to secure a joint and several note signed by
them individually for money which was applied to the separate
use of one, is applied by the assignees of the partnership to the
payment of that note, being taken by the mortgagee, who does
not prove any claim; the partnership estate is not entitled in insol-
vency to any contribution from his estate. The appropriation of
the partnership estate is not made by the assignees, nor is it the
result of the operation of the insolvent laws, but the legitimate
consequence of carrying out a valid act of the insolvents, done
before their ifisolvency.^ And in the same State the Court as
distinctly reject the theory, that a remaining partner, by the
insolvent's having assumed a partnership debt, becomes a mere
surety for such debt, and in that capacity may prove against the
insolvent. Thus, Johnson & Morton, partners, agreed orally with
Johnson, that Morton should sell out to Daniels, the new firm
1 Per Dewey, J., Somerset, etc. v. Mi- ^ Harmon v. Clark, 13 Gray, 114.
not, 10 Cu3h. 598-9.
78 BANKRUPTCY AND INSOLVENCY. [CHAP. IV.

taking all the property and paying all the debts of the old, and
indemnifying Morton from the latter. Upon the subsequent in-
solvency of the new firm, a creditor of the old one proved his
claim against Johnson, but afterwards withdrew it, notifying
Morton that he looked to him for payment; and Morton accord-
ingly paid the claim. Held, Morton had no provable claim
against the firm, the contract above stated not creating either a
present and absolute, or future and contingent debt, nor coming
under that provision of the insolvent law which allows a surety to
prove his claim against the principal; because Morton was paying
his own and not another's debt.^
§ 34. Joint creditors, unless expressly authorized by statute or
bt/ a special order, cannot vote or interfere in the choice of as-
signees under a separate commission.^ But a joint creditor being
the petitioning creditor is not within the rule.* And an order
was made for joint creditors to vote under a separate commission,
where the petitioning creditor, who was a joint creditor, and whose
debt overbalanced the separate debts, consented.* And the Court
will in some cases appoint persons in the nature of assignees, to
take care of the interest of the joint creditors, and to use the
name of the assignees upon indemnifying them.°
§ 35. As will be seen by reference to the Appendix, this sub-
ject is expressly regulated by statute in the United States, and
the English rules are therefore inapplicable. In Massachusetts,
the general provision is, that the assignees shall be elected by the
partnership creditors exclusively. But it is said to have been
recently decided that, upon the insolvency of a partner, after dis-
solution, owing private and partnership debts, which are proved,
both classes of creditors may vote for the assignee.^
§ 36. Independently of statute, in England, the bankrupt's
allowance is, in case of partners, divided between them in the
proportion in which their respective eifects had 'contributed to
the payment of the debts.' If one partner only obtained his cer-
tificate, no allowance is given to him, as it is considered that the

1 Morton v. Richards, 13 Gray, 15. * Taylor, 18 Ves. 284 ; 2 Rose, 442.

^Alcook. 11 Ves. 603: Longman, 18 Contra, Simpson, 1 Mer. 88.
Ves. 71 ; Haynes, 1 Rose, 321; Jep- « Basarrow, 1 Rose, 266; Mills, 8 Ves.
son, 19 Ves. 225. & B. 139; 2 Rose, 68.
' Hall, 9 Ves. 349. « Seavey, Cutl. Ins. L. 3d ed. 88.
' Bate, 1 Bro. C. C. 452.
CHAP. IV.J PARTNERSHIP. 79

allowance is only jointly claimable.' And the bankrupt is not

entitled to allowance, unless a sufficient dividend is paid upon
both the joint and the separate estate.^ But in Massachusetts,
under an insolvent law which makes the discharge and allowance
dependent upon the percentage on the debts paid out of the
assets, in case of proceedings against a partnership, a partner,
whose separate estate pays fifty-five per cent, on the debts proved
against it, is entitled to a discharge from his separate debts, and
to an allowance of five per cent, on the net produce of his separate
estate, although the joint estate of the partnership does not pay
fifty per cent, of the debts proved against it.^
§ 37. In general, there can be no set-off between joint and
separate debts.*(a)
§ 38. Where one member of a firm became a bankrupt, but no
decree was entered against the firm ; and the funds paid into court
by the assignee were derived from the separate and joint estates;
held, the costs should be apportioned upon the relative amounts
of those funds.* But where an attachment of the property of one
partner for a partnership debt is dissolved by his insolvency, the
costs of the attachment shall be paid before payment of the pri-
vate debts, or any marshalling of assets, being in the nature of a
lien, for expenses incurred in receiving the property for the insol-
vent estate.^
§ 89. A discharge of an insolvent debtor from "all debts
founded on any contract made by him," obtained under proceed-
ings in insolvency instituted by him in his individual capacity and
also as member of a late firm, discharges him from his liability
for the debts of such firm.^
§ 40. It is no sufficient reason for delaying the grant of a cer-
tificate under a separate fiat, that during the further proceedings
under a joint fiat against the bankrupt and others, matters may
.1 Powell, 2 Rose, 449 ; 1 Madd. 68. 5 ingalls, Law Rep., Jan.— 4.3, p. 401—
2 Goodall, 2 Glyn & J. 281. Mass. U. S. Ct.
8 Baker's case, 8 Cush. 109. « Buck v. Burlingame, 13 Gray, 307.
*Collyer, s. 1010. ' Lothrop v. Tiltlen, 8 Cush. 376.

(a) Under the old bankrupt law of the United States, a joint debt might
be set off against the separate claim of the assignee of one of the partners;
though such offset could not have been made at law, independent of the
bankrupt law. Tucker v. Oxley, 5 Oranch. 34.
80 BANKRUPTCY AND INSOLVENCY. [cHAP. IV.

be disclosed that may render it proper to refuse this certificate,

or grant it with modifications.^ Nor, that an action is pending,
to try whether two out of three other persons, against whom and
the bankrupt a joint fiat has been issued, are legally bankrupts.^
§ 41. If the discharge in insolvency of two partners is subse-
quently annulled as to one of them, a partnership debt, which has
been proved against the firm, may be proved as a several debt
against him, on his becoming a second time insolvent.^(a)
1 Braggiotti, 19 Eng. L. & Eq. 491. ^ GateB v. Mack, 5 Gush. 613.
2 Castelli, 19 Eng. L. & Eq. 492.

(a) Corporations — a species of partnership — are often made subject to

bankrupt and insolvent laws. The provisions relating to them, however, are
always very specific, and have given rise to few decided cases. In general, no
discharge is granted to a bankrupt or insolvent corporation. And it is held
that an insolvent corporation is still liable for the balance of a debt after
deducting the dividend. Ooburn v. Boston, etc. 10 Gray; Cut!. Ins. L. 112.
It is held in Pennsylvania, that money received by the sequestrator of an
incorporated company is to be distributed among all the creditors of the
corporation, according to the rules established in case of insolvency of indi-
viduals. Steiner's Appeal, 27 Penn. 313.
A manufacturing corporation cannot be & partner with individuals. Such
connection being attempted, and insolvency proceedings instituted on petition
of the individual partner, embracing both private and corporate property,
the Supreme Court superseded the proceedings on application of the com-
pany. Whittenton, etc. v. Upton, 10 Gray; Cutl. Ins. L. 103.
A shareholder in a joint-stock company became bankrupt, and his as-
signees were made contributories, but disclaimed. The Master included the
bankrupt in the list, as a contributory personally liable for any demand or
call made subsequent to the fiat. Held, that the bankruptcy dissolved the
bankrupt's connection with the company from that time, his shares not being
shares in any property, but merely partnership shares; and therefore the
Master was wrong in considering that his liability continued. Greenshields,
11 Eng. L. & Eq. 240.
A. fiat issued against the plaintiff, on the 20th of July, 1849, upon a debt
due from a banking company in which he was a member, to the petitioning
creditor, without any judgment having been obtained against the public,
officer of the company, and a warrant of seizure in the ordinary form was
issued to the messenger, dated the 30th of July. The creditors' assignee
was appointed August 21. The 12 & 13 Vict. c. 106, came into operation
October 11, and on the 18th of October a seizure of the plaintiff's goods
was made by the messenger under the said warrant. Held, that the fiat
was invalid, and either the petitioning creditor or the messenger was liable
in trover for the wrongful seizure, but the Court declined to determine which
of the two was liable, as it was not required by the case submitted for their
opinion. Davison v. Farmer, 4 Eng. L. & Eq. 391.
 CHAPTER T.

FORMS OF PROCEEDING IN BANKRUPTCY AND INSOLVENCY.

1. Regulated by statute. 13. Clerk.

2. The petition; Bignature, oath, 14. Meetings.
etc. 16. Decree or judgment.
4. Notice to the debtor. 17. Trial by jury.
5. Proof of the petition. 18. Evidence.
6. Misnomer, etc. 30. Mutual bearing of proceedings
8. Amendment. in bankruptcy, etc. and actions at law
9. Schedules of property and debts. — right of election.
12. Warrant. 37. Parties.

§ 1. The form and course of proceedings in bankruptcy and

insolvency are of course precisely regulated by the statutes which
authorize such proceedings, and in order to their validity must
substantially conform to these requisitions. Many questions
arise, however, upon points which the statutes, do not in terms
regulate and decide.
§ 2. It is in general provided that the petition, with which the
proceedings are commenced, (a) shall be signed. And the want
of an authorized signature to the petition of a creditor under the
insolvent laws is ground for setting aside the proceedings.' But
it is held, that the petition may be signed by one member of a
firm in the firm name;^ or signed and sworn to by the attorney
of the petitioning creditor.'
§ 3. The oath of the petitioner is also generally required.
Thus in England St. 6 Geo. 4, c. 16, s. 13 requires the peti-
tioning creditor to make an afiidavit of his debt, before a com-
mission issues. But this statute is held to be merely directory.
1 Merriam v. Sewall, 8 Gray, 316. « O'Neil V. Glover, 5 Gray, 144.
" Pleasants, v. Meng, 1 Dall. 389.

(a) As to what in law commences the proceedings, see Freeman, 1 Ves. &
B., 34; Paxton, 1.5 Ves. 462.
(81)
82 BANKRUPTCY AND INSOLVENCY. [CHAP. T.

and not necessary to the validity of a commission. '(a) So, as to •

the form of the oath, where partners petition, one of them may
make the affidavit.^ So one of several assignees of a bankrupt.^
So an affidavit, that the facts stated in a petition for a warrant
in insolvency against a debtor are true, according to the best
knowledge and belief of the party making it, is sufficient to jus-
tify the issuing of a warrant.* So it is no objection to the com-
mission, that the affidavit omitted to state a judgment recovered
for the debt.'' So, in New York, the oath administered to the
debtor, to make true answers to all questions put to him touching
his application for a discharge in the matter pending, is sufficient
in form under the statute.^ But a docket is not to be struck
without a solid ground of belief that an act of bankruptcy has
been committed.^ And the affidavit should not be made before
the solicitor of the creditor;' though he be a solvent partner of
the bankrupt.' And of two dockets, the one not thus sworn to
will be preferred.'" So an affidavit made in Ireland was held
insufficient.'*
§ 4. Under the original insolvent law of Massachusetts, upon
the petition of a creditor, a warrant might issue without notice to
the debtor, such notice not being expressly required by the stat-
ute.'^ The Court remark, in reference to an objection made to
the validity of proceedings for want of notice, "the object of
authorizing the preliminary proceedings seems to have been to
provide, in the first place, for a sequestration of the property of
the debtor, upon an ex parte application of a creditor, and in
this respect does not essentially differ from proceedings by writ
of injunction, issued for the purpose of preserving the property
in its present state and position until a hearing can be had. A
> Simpson v. Sikes, 6 M. & S. 311 ; ' Bourne, 16 Vea. 145.
Wydown, 14 Vea. 80. s Elford, 2 Gljn & J. 65 ; White, 1
2Peele, Buck, 457; Hodgkinson, 19 Mont. & Mao. 214: 1 Glyn & J.
Vea. 291. 197.
3 Blakey, 1 Glyn & J. 197. » Ibid.
* O'Neil V. Glover, 5 Gray, 144. loi Mont. 187.
5 Bryant, 1 Ves. & B. 211; Bryant « " Ibid.
Withera, 2 M. & S. 123. 12 Kimball v. Morria, 2 Met. 573.
8 People V. Belirman, Hill & Denio, 81.

(a) In New York the affidavit of the defendant indorsed upon the petition
is sufficient if it follows the statute, without saying anything in particular
concerning the account of creditors. People v. Behrman, Hill & D. 81.
 CHAP, v.] FORMS OF PROCEEDING. 83

■ notice to the debtor, previous to the appointment of the messen-

ger, would furnish great facilities for withdrawing the property
and placing it beyond the reach of legal process. "'(a)
§ 5. The facts stated in a creditor's petition must be proved by
legal and competent evidence ; and it seems that taking the testi-
mony of a material witness without oath or afiSrmation is ground
for setting aside the proceedings.^
§ 6. Misdescription will not avoid the commission, if the party
is well known as described.' And "in reply to an alleged misno-
mer, it may be averred that the party is as well known by the
name by which he is described, as by a certain other name by
which he was also known."* Thus a commission against a per-
son named Knox, by the name of Wicks, under which he had
traded and become indebted, was sustained against a subsequent
fiat under his true name.°
§ 7. The bankrupt must be described as of the place where he
is chiefly and generally known as a trader. It is not enough to
state his last place of trading.^ But "the city of London," in-
stead of "the county of Middlesex," is not a [Link] variance.'^
So, in the adjudication and proceedings, the bankrupts were
described as of C. Lane, in the city, colonial brokers, and of W.
Lane, in the county of Middlesex, distillers. In the advertise-
ment of the bankruptcy, in the Gazette, the description was
identical, except that W. Lane was said to be in the county of
Essex. Held, that the misdescription was immaterial.'
iPerBewey, J., Kimball u. Morris, 2 Gex, 99 ; Burbidge, 10 Jur. 156;
Met. 680-81. See Com. v. Farmers, 1 De Gex, 256; Wall v. Jarrott, 3
etc. 21 Pick. 542. Ired. 42.
2 Merriam v. Sewall, 8 Gray, 316. 6 Shadbolt, 1 Mont, 89 ; Parry, 2 Glyn
3 Horsley, 2 Madd. 11 ; Wride, 2 Glyn & J. 225 ; Beadles, ibid. 243 ; Day,
& J. 99. 1 Mont. & Mac. 208 ; Beckwith, 1
* Per Dewey, J., Hubbard v. Smith, 4 Glyn & J. 20.
Gray, 74. ' Smith, 1 Glyn & J. 256.
5 Sambourne, 2 Dea. & Chit. 22. See * Regina v. Gordon, 33 Eng. Law &
Schofield, 2 Rose, 246; Stevenson's Eq. 556.
case, 19 Ves. 277 ; Woodhead, 1 De

(a) The form of notice required by law must be strictly complied with.
Thus iu South Carolina notice to creditors under the insolvent debtors' act
must, in all cases, be published for three months in a gazette, unless a dif-
ferent mode of publication be authorized by a special order of the court ;
and notice by the clerk, without such order, posted on the court-house, will
not be sufficient. Mordecai v. La Bissey, 1 Bichardson, 192.
84 BANKRUPTCY AND INSOLVENCY. [CHAP. V.

§ 8. A fiat may be amended, where no proceedings have taken

place under it.' So a commission may be resealed and amended
to correct a mistake in a name, if not opened.^ So, under the
insolvent law of Massachusetts, it seems a commissioner may
allow an amendment of a creditor's petition, by which the debt
originally relied on shall be more precisely and fully set forth.'
So a creditor's petition, which alleges that the debtor, within
sixty days, and with intent to defraud the petitioner, "has con-
cealed his property or some part thereof, to prevent its being
attached or taken on legal process," is not so defective as to
require the proceedings in insolvency to be quashed, after the
petitioning creditor, by order of the commissioner, has filed a
specification of the particular acts of concealment relied on.* So,
where the creditor was wrongly described in the petition and com-
mission, but the docket papers were correct; an amendment was
ordered after the commission had been prosecuted.^ So, where
one of the bankrupts died before the adjudication under a joint
fiat ; held, the fiat should be amended by omitting his name.* So,
in case of an incorrect statement of the indebtedness, a supple-
mental aflBdavit may be filed without new bonds.' But, on the
other hand, it is held, that a fiat cannot be altered or amended
after it is opened;* nor the description of the bankrupt be
altered.' So it is held, that the Lord Chancellor has no jurisdic-
tion to order amendment of a fiat.'" The court of review may
order the fiat to be taken off the file, to be amended by the
>chancellor, if he see fit. The court cannot amend it, having
^nothing to amend by." So, if an affidavit upon which a commis-
sion has issued is erroneous, it cannot be corrected, but a new
■docket must be struck.'^
§ 9. In regard to the usual requisition that the debtor furnish
a schedule of his property and debts, it is held that a statute
which requires this to be done applies to involuntary as well as
1 Graham, 1 Dea. & Chit. 458. 8 Todd, 1 Mont. 455 ; Thwaites, 13
2 Cheesewright, 18 Vea. 480 ; Burrow, Vcs. 825. See Fisher, 10 Ves. 190 ;
10 ibid. 286; Harman, 2 Glj'n & Slepiienson, Mont. 116; HorroclES,
J- 25. 1 Glyn & J. 368 ; Cheesewright, 18
"Merriamti. Sewall, 8 Gray, 316. Ves. 480; Stammers, 1 Mont. &
*0'Neil V. Glover, 5 Gray, 144. Mac. 290.
6 Guthrie, 1 Glyn & J. 245. 9 Thompson, 9 Ves.207.
6 Hall, 1 De Gex, 332. lo Wright, 1 Dea. & Chit. 547.
' Mangham, 1 Glyn & J. 365. n Walker, 1 Dea. & Chit. 381.
12 Kutledge, 2 Rose, 869.
CHAP, v.] FORMS OP PROCEEDING. 85

voluntary proceedings.* But a recital in the record, that the

debtor furnished such schedules, is primd facie evidence of the
fact.^ And if the specification of the cause and consideration of
the debts is such as to fairly apprise the creditors of the general
ground of indebtedness, so as to give them a clue to inquiry, it
is sufficient.'(a) So, where the act requires the debtor, applying
for a discharge, to furnish an account of creditors, but does not
prescribe any particular form ; if the account be full and intelli-
gible itis sufficient, without giving the residence of the creditor,
the nature of the debt, consideration, etc.^ And in insolvent
proceedings, if the judge or commissioner decides, that the
requisites of the statute with regard to the schedule of the debtor
have been complied with, any question as to the sufficiency of the
schedule is barred by the decision.* But where, to an action by
the indorsee of a promissory note for £1000, made by the defend-
ant, payable to John Jackson Lee, the defendant pleaded his dis-
charge under the insolvent debtors' act, (1 and 2 Vict. c. 110,)
and gave in evidence his schedule, in which James Jackson Lee
was described as creditor, on a bond for £1000, but the plaintiff's
name was not mentioned in the schedule, and it was proved that
the defendant had at one time known, but had forgotten, that the
plaintiff was the holder of the note in question; held, that this
was not a full and true description of the debt sued for, so as to
satisfy the 69th and 75th sections." So bills of exchange, drawn
by the defendant in India, were purchased there for the plaintiff,
Moses Symons, who resided in England, and were indorsed and
transmitted to him in this country. The defendant afterwards
petitioned the insolvent court in India, and in his schedule de-
1 Kimball v. Morris, 2 Met. 573. = People v. Stryker, 24 Barb. 649.
'Lothrop V. Tilden, 8 Cush. 375. « Finney v. Cecil, 37 Eng. Law & Eq.
» Taylor v. Williams, 20 Johns. 21. 379.
* People V. Behrman, Hill & Denio, 81.

(a) The schedule of property surrendered by an insolvent debtor, under

the laws of Kentucky, need not state on what execution it was surrendered.
Sheriff v. Buckner, 1 Litt. 126.
Where the land of an insolvent debtor, who was discharged under the
Maryland insolvent law of 1774, was sold and conveyed by the sheriff, the
sale was held good, although the schedule transmitted by the justices to the
clerk of the county was not signed by the insolvent or the justices. Chaplin
V. Shoot, 3 Har. & McHen. 350.
 86 BANKRUPTCT AND INSOLVENCY. [CHAP. V.

scribed the plaintiflf's debt thus : " Creditor, A. M. Symons, for

the following bills of exchange (describing them) drawn by us
upon Messrs. R., I. & Co., in favor of Moses Symons." A per-
son named A. M. Symons resided in Calcutta, but was not shown
to be connected with the bills in question. Held, that the de-
scription inthe schedule was insufficient within the meaning of
the 11 Vict. c. 21, s. 6, sched. C, the insolvent act, (India,) and,
therefore, that the defendant was still liable on the bills.^
§ 10. Under the insolvent laws of North Carolina it was con-
sidered no objection to granting a discharge, that the schedule was
amended before the oath was administered ; and it was not held to
be necessary to file the evidences of debt in the defendant's pos-
session at the time of filing the schedule, but any time before the
oath was administered was held to be sufficient.^ More especially
an insolvent debtor may amend his schedule, upon showing satis-
factorily to the Court that the omission therein arose from igno-
rance, mistake, inadvertence, or from inability at the time it was
filed to make it more perfect. But the amendment must be made
instanter, so as not to cause delay. \a) And in bankruptcy the
Court will be very cautious in allowing amendment of the schedule
of property. It will not be allowed, unless it appears that the error
occurred inadvertently and bond fide; nor then, but on payment
of costs.* And, as we have seen, it must be shown by affidavit,
or otherwise, to the satisfaction of the Court, that the omission to
insert the property omitted in the schedule arose from ignorance,
inadvertence, or mistake. And the debtor will not be permitted
to amend, if it will create surprise or delay to the other party.*
§ 11. An insolvent cannot /aisi/^ his own schedule.* So where
an applicant for the benefit of the insolvent law delivered to the
Court a schedule of his property, but no books of account, and
there was evidence that he had acted as a merchant, and pur-
chased large quantities of merchandise, not accounted for in his
1 Symons v. May, 6 Eng. Law & Eq. * Frisbee, Law Rep., April— 42, p. 483
Rep. 541. _N. y.
2 MoLeod V. Kirkham, 11 Ired. 509. s Sherman v. Barrett, 1 MoMul. 147.
» May V. Dawson, 12 Geo. 118. « Barker's case, 1 Browne, 298.

(a) In Ohio, between the filing and final hearing of the petition of an insol-
vent debtor, his inventory may be enlarged or diminished at his pleasure.
Loines v. Phillips, 4 Ham. 172.
CHAP, v.] FORMS OF PROCEEDING. 87

schedule; it was held, that he must show by his books, or by

satisfactory evidence, that the property had been taken from him
in a course of fair dealing, or that he never did assume the char-
acter of a merchant.^ So an insolvent will not be permitted to
discontinue or withSraw his application, after a suggestion charg-
ing his schedule with fraud has been filed.'*
§ 12. In Massachusetts, an insolvency warrant, from a master
in chancery to the messenger, without a seal, is void; and a new
warrant upon a second petition may accordingly be issued. A
formal and separate proceeding to set aside the warrant seems
necessary, only where the master is unwilling to regard the case
as a nullity, and to begin de novo ; or where the defect occurs in a
later stage of the proceedings, and doubts exist whether it is im-
portant enough to make the whole proceeding void, or only the
bad part void or voidable. In such case, the debts set out in the
second petition, to the amount of $200, are presumed to be the
same referred to in the first; the one being a substitute for the
other, and not an additional petition for a new case.'
§ 13. It is no defence to a writ of entry to recover land claimed
by the demandant, under a deed from an assignee in insolvency,
that the clerk, by whom all the proceedings in insolvency were
recorded, was appointed on the day of the filing of the creditor's
petition on which the proceedings were founded, and months be-
fore the adjudication of insolvency, and issuing of the warrant.*
§ 14. In Massachusetts, under the statute of 1838, c. 163, claims
against an insolvent debtor are not required to be proved at one of
the first three or four meetings of the creditors, but may be proved
at any regular meeting of them.° So the provision of the insolvent
law, that the second meeting should be held within three months
after the date of the warrant, was held merely directory; and an
omission to call it in that time did not render other proceedings void.
Though the magistrate might not have power to call such meeting
after a year, the Supreme Court would have that power.' But,
in reference to the provision for a third meeting of creditors, it is
said : " This right is sometimes of much importance to creditors ;
they may be prevented from attending the earlier meetings by
1 McAllister, Charlt. 222. * Whithead v. Mallory, 4 Gray, 180.
2 Sherman v. Barrett, 1 MeMul. 147. * Minot v. Thacher, 7 Met. 848.
'Perry, etc. v. Brown, 2 Woodb. & ° Kimball ». Loring, Law Rep., May —
Min. 449, 458. 48, p. 34.
88 BANKRUPTCY AND INSOLVENCY. [CIIAP. V.

misinformation, accident, want of preparation to substantiate their

claims, or other contingencies; and as the first dividend is to be
declared at the third meeting, nothing is lost by the delay, except
the right of voting for an assignee."*
§ 15. Under St. 1838, c. 163, the second meeting might be
adjourned, and any business transacted at the adjourned meet-
ings which would have been lawful at the original 'meeting.^ But
the adjournment of an insolvency meeting must be to a time and
place certainly designated in the order therefor and in the record
of the order, and not to a time and place then uncertain, and to
be made certain only by the happening of some future event.
Therefore an adjournment of the second meeting to "the time
and place of holding the third meeting" is illegal; and a certifi-
cate of discharge granted at the adjourned meeting is invalid.*
§ 16. It is not necessary to the validity of proceedings in in-
solvency, instituted on the petition of the debtor, that there should
be a formal adjudication by the magistrate, before issuing the
warrant, of the debtor's inability to pay all his debts, of his will-
ingness to assign all his property for the benefit of his creditors,
or of the fact that the debts due from him amount to the sum
required by the statute. The petition is evidence of all the facts
stated in it, except the indebtedness. This may be proved by
any evidence which satisfies the magistrate; and the issuing of
the warrant, with its statements and recitals, implies an adjudi-
cation of his satisfaction. The petition is conclusive upon the
insolvent and those claiming under him; and any third party
prejudiced by the proceeding may petition the Supreme Court
for redress. So where a judge of probate, after receiving and
hearing a petition of a creditor for a warrant against an insolvent
debtor, pursuant to a statute of Massachusetts of 1833, c. 163,
s. 19, refused to issue such warrant, because "it did not satisfac-
torily appear that there was, nor that there was not, one hundred
dollars due" from the debtor to the petitioner; held, this was an
adjudication that it did not appear, to the satisfaction of the
judge, that such sum was due from the alleged debtor to the
petitioner.* The case is distinguished from those of summary
'Per Forbes, J., Sanderson «. Taylor, ' Greenough </. Whittemore, 8 Gray,
1 Cush. 88. ' 193.
2 Rioe V. Wallace, 7 Met. 481. * Holbrook v. Barton,
Jackson,6 Met.
7 Cush.
Randall v. 518. 136;
CHAP, v.] FORMS OF PROCEEDING. 89

criminal convictions before justices, where there is no trial by

jury ; and from those regulated by express statutes, as the bas-
tard or highway acts, (a) And for the same reasons the statute
does not require that the magistrate should make a record of his
proceedings on the petition where it is not sustained. His duty
is performed by filing the petition.*
§ 17. It is often expressly provided, that there may be a trial
hy jury upon the application of any party interested in bank-
ruptcy and insolvency proceedings ; and, in general, a liberal
construction seems to be given to a provision of this nature.*
But under the bankrupt law of 1841, where an application for
the benefit of the law was dismissed, a demand for a trial by jury
must be made at the same term.'
§ 18. In regard to the evidence in bankruptcy and insolvency
proceedings, numerous cases are found in the English reports,
which are of little practical value in the United States. (J) A
few points, however, require to be noticed.
1 Randall v. Barton, 6 Met. 518. » Hunter, 3 McL. 297. See Rice ». •
» See Foster v. Remick, 5 Law Rep. 406. Sims, 3 Hill, S. C. 5.

(a) The adjudging and declaring a party to be a bankrupt is said to be

merely discretionary and for caution, the statutes having nowhere directed
the commissioners to do it, and it not being ultimately binding upon anybody.
CuUen's Bank. L. 77.
(6) Whether the admissions and declarations of the bankrupt, oral or writ-
ten, prior and subsequent to the act of bankruptcy or the commission, are
evidence to prove or disprove the debt of a petitioning creditor; see Lloyd v.
Heathcote, 5 Moore, 129 ; Hoane v. Conyton, 4 Taun. 560 ; Dowton v. Cross,
1 Bsp. 168 ; Watts v. Thorpe, 1 Camp. 376 ; Jarrett v. Leonard, 2 M. & S.
265; Smallcombe v. Bruges, McClel. 45.
As to the testimony or declarations of the petitioning and other creditors ;
see Ledbetter v. Salt, 4 Bing. 623; Harmer v. Davis, 1 Moore, 300; Gervis
V. Wootton, etc. 5 M. & S. 76 ; Gibbons v. Phillips, 7 B. & C. 529; Dowden
V. Powle, 4 Camp. 38; Young v. London, etc. 6 Bsp. 121; Tomlinson v.
Wilkes, 5 Moore, 172 ; Ward v. Wilkinson, 4 B. & A. 410.
As to evidence and attendance of witnesses before commissioners; see
Harrison, 2 Glyn & J. 135; Higgins, 11 Yes. 8; Cawkwell, 19 Yes. 233;
Lund, 6 Yes. 781; Gardner, 1 Yes. & B. 74.
It is said that, in all cases, the other creditors are entitled to the oath of the
party in interest, and to the benefit and protection derivable from his exam-
ination ;and either of them may have any question of this kind determined
by a jury. 2 Pars, on Contr. 669.
The oath of the party really interested, as well as the legal and nominal
90 BANKRUPTCY AND INSOLVENCY. [CHAP. V.

§ 19. In favor of a bankrupt or insolvent, the exception to the

general rule of evidence seems well established, that a person, dis-
qualified as a witness on account of the, commission of crime, may
be examined upon his application as an insolvent debtor.'
§ 20. The allegations in a creditor's petition, under the insol-
vent laws of Massachusetts, though made on oath, as required by
the statute of 1844, c. 178, s. 9, are not to be received as evi-
dence, on the hearing of the petition, unless the debtor fail to
appear, which is perhaps in the nature of a default; nor can the
debtor be called upon to testify, without his consent, on the pre-
liminary question, whether he shall be adjudged an insolvent.^
But in bankruptcy the oath of the petitioning creditor has been
held to be ordinarily sufficient proof of the debt, though liable to
be overcome by other proofs.'
§ 21. An insolvent debtor, when he renders a schedule of his
property and debts, is presumed to tell the truth, and not to com-
mit perjury.^ So the statement exhibited under oath, by a peti-
tioner for the benefit of the insolvent laws, is taken to be primd
facie correct ; and the burden of proving it to be erroneous lies
upon the opposing creditors, who can show it, from the examination
of the petitioner himself, by other evidence, or in both modes;
they having the right to examine the petitioner in the first in-
stance, and then to exhibit other testimony to contradict him.*
§ 22. Upon the examination of a creditor respecting his claim,
it is said to have been decided in Massachusetts, that the debtor
may be excluded from the meeting.' So a commissioner may re-
fuse to allow a creditor, examined before him vivd voce upon oath
as to a claim offered for proof against the estate of an insolvent
debtor, to consult with counsel as to his answers; and the deci-
sion of the commissioner cannot be revised by the Supreme Court
1 6 Halst. 93. See 1 Greenl. on Ev. s. 874. * Hewlett v. Hewlett, 4 Edw. Ch. 7.
2 Jordan, 9 Met. 292. 6 Hassinger, 2 Ashm. 287.
' Foster v. Remick, Law Rep. Jan. — ^Darling, Cutl. Ins. L. (3d ed.) 35.
43, p. 406— N. Y. C. C.

owner, is usually required, as in case of trustee and cestui, guardian and

ward, assignee and insolvent. Dubois, 1 Oox, 310; Belton, 1 Atk. 251;
Cooke, 153.
Where the petitioner swore positively to a debt, and was contradicted by
the bankrupt, there being no other evidence, an issue was ordered, at the
trial of which both parties were to be examined. Williamson, Buck, 546.
CHAP, v.] FORMS OF PROCEEDING. 91

upon a summary petition, unless, perhaps, in a matter essentially

affecting the rights of one of the parties.^ So it is within the
discretion of a commissioner of insolvency, to allow the examina-
tion of an insolvent debtor before him, upon all matters relating
to the disposal of the debtor's estate, under St. 1838, c. 163, 6,
to be conducted by a single creditor who is not the assignee.^
But the refusal to allow an examination of the debtor by a cred-
itor will not invalidate the discharge. The creditor's remedy, if
any, is by petition to the Supreme Court.*
§ 23. In an examination of the debtor, he is entitled to have
counsel present to consult with him respecting oral or written
answers.*
§ 24. An insolvent is bound to attend any meeting of creditors
at which the law requires him to be present, without previous
payment of his fees for such attendance.*
§ 25. The question has been much agitated, how far a bank-
rupt or insolvent is exempted from answering questions, the
answers to which may tend to convict him of a criminal offence.
Lord Eldon remarks, in a leading case: "It is one of the most
sacred principles in the law of this country, that no man can be
called on to criminate himself, if he choose to object to it; but I
have always understood that proposition to admit of a qualifica-
tion with respect to the jurisdiction in bankruptcy, because a
bankrupt cannot refuse to discover his estate and effects, and the
particulars relating to them, though in the course of giving in-
formation tohis creditors or assignees of what his property con-
sists, that information may tend to show he has property which
he has not got according to law; as in the case of smuggling,
and the case of a clergyman carrying on a farm, and the case of
persons having the possession of gunpowder in unlicensed places."^
And another English judge lays down the following distinctions:
"You could not ask a man whether he had not robbed another of
a sum of money; because if he had so robbed, the money would
not be the property of the assignees, but of the party robbed; it
would be, in fact, no discovery of the estate of the bankrupt.
But I can see no objection to this question, (unless it might be re-
iPeabody v. Harmon, 3 Gray, 113. ^ Thompson, 7 Law Kep. 159.
2 Chamberlain v. Hall, 8 Gray, 250. « Per Lord Eldon, Cossens, Buck's Cas.
'Blanchard v. Young, 11 Cush. 841. 531 ; Archb. Bank. 277.
* Winsor, 8 Law Eep. 514.
92 BANKRUPTCY AND INSOLVENCY. [CHAP. V,

garded as a chain in evidence to convict the party of rohhery,)

namely, had you not on such a day, and at such a place, ,£100?
and according to the answer you might then interrogate what he
had done with it."^ And in late English cases it is held, that a
bankrupt upon an examination, under section 117 of the bank-
rupt law consolidation act, 12 & 13 Vict. c. 106, is bound to
answer all questions touching matters relating to his trade, deal-
ings, or estate, or which may tend to disclose any secret grant,
conveyance, or concealment of his lands, tenements, goods, money,
or debts, although his answers may criminate himself; and such
answers may afterwards be given in evidence against him upon a
criminal charge,^ Also, that where a bankrupt was examined
before a commissioner in bankruptcy, touching a matter not re-
lating to his trade, dealings, or estate, and did not rufuse to
answer on the ground that the answer would tend to criminate
him, but answered without any objection; his answers were volun-
tary, and his examination was admissible against him on a subse-
quent criminal charge; though it was doubted whether, if the
examination had been confined to matters relating to his trade,
dealings, or estate, such examination would not have been com-
pulsory and inadmissible.' So a bankrupt is bound to disclose to
the commissioners all the circumstances relating to his property,
though, such disclosure may tend to prove an act of bankruptcy.*
So, on the examination of a bankrupt, he is bound to answer as
to matters necessarily within his knowledge, and which must,
more or less, be in his recollection; as, for instance, the disposal
of his money, and the drawing of bills, notes, or checks; and it
is not sufiicient for him to answer, as to such matters, that he
does not recollect, if he gives no reason for his want of recollec-
tion, nor any information by which the court can pursue the in-
vestigation. And this applies as to questions upon minute points,
or even to matters of intention or motive, if they are necessary
to the investigation ; and an answer may be direct and full, which
is not satisfactory because not reasonable."
iPer Erskine, C. J., Heath, 2 Dea. & ^Regina v. Scott, 36 Eng. Law & Eq.
Ch. 214. See Oliver, 2 Ves. & B. t)44.
244 ; Pratt, 1 Glyn & J. 58 ; Mey- » Regina v. Sloggett, 36 Eng. Law &
mot, 1 Atk. 200; Nowlan, 11 VeB. Eq. G20.
514. See also, somewhat contra, * Pratt, 1 Glyn & J. 58.
Kirby, 1 Mont. & MoA. 229. s Bradbury, 25 Eng. Law & Eq. 252.
CHAP, v.] FORMS OP PROCEEDING. 93

§ 26. Questions often arise,in reference to the commitment of

bankrupts or insolvents, for refusing to comply with the order of
the magistrate relative to their testifying, or doing some other
act essential to the regular course of the proceedings; involving
more especially the form of the warrant of commitment. The
rule is laid down, that on an application by a bankrupt who has been
committed for not answering fully, the Court will look to the
whole of the examination set out in the warrant; and the proper
course is, therefore, to set out therein so much as is necessary to
show the relevancy and materiality of the questions, for not an-
swering which he is committed, especially if they are such' as per
se might appear unimportant. And if, on looking to the whole of
what is set out, the Court see that the question was material, and
the answer was a mere denial of all recollection, without any reason
or explanation, it will not be deemed full and satisfactory.^ Thus
where a warrant of commissioners, after setting out the issuing of
the commission, and the adjudication, etc., stated, as the ground
of commitment, that, the bankrupt being brought before them,
and they having proposed to administer an oath to him, he refused
to be sworn, or to give an account of his property; held, that
such warrant was legal, and that it was not necessary in it to set
out any specific question, for this was a refusal to answer all pos-
sible questions. Also, that after the issuing of a habeas corpus,
and before the return of it, the commissioners may, if necessary,
make a fresh warrant, stating more fully the cause for detaining
the bankrupt in custody, and that such warrant may, by words of
reference, incorporate the formal parts of the first warrant.
Also, that if both warrants are defective in form, the Court will,
if a substantial cause of commitment appear, recommit the bank-
rupt ex officio. But that a commitment of the bankrupt, by a jus-
tice of the peace, under 6 Geo. 2, c. 30,' s. 14, "until he should be
discharged by due course of law," was bad.^ So, where a bank-
rupt refused to be sworn until his attorney arrived; held, a war-
rant, stating generally the refusal of the bankrupt to be sworn,
was sufficient, without assigning the reason for such refusal. Also,
that the warrant, committing him until such time as he should
submit himself to the commissioners, and full answer make to the
questions which might be put to him by virtue of the said com-
1 Bradbury, 25 Eng. Law & Eq. 282. z Page, 1 B. & A. 568.
94 BANKRUPTCY AND INSOLVENCY. [CHAP. V.

mission, sufficiently pursued the tei-ms of the oath to be taken by

the bankrupt, by virtue of the 16th section of the St. 5 Geo. 2,
c. 30, as it must be intended that the questions would be legal
questions. Also, that where the bankrupt was committed to New-
gate under a judge's warrant, granted on the certificate of the
commissioners for not appearing to their summons, and was after-
wards brought before them by warrant, to make a disclosure of
his estate, and he refused to be sworn and examined as ta such
estate, the commissioners might commit him under the 14th sec-
tion of that statute ; as, when he was brought before them, the
warrant and authority of the judge were at an end and determ-
ined.* So, where the answer on which the bankrupt was commit-
ted was, that he could not recollect how he came to draw a certain
check in a certain name ; and the Court, from the whole examina-
tion as set out in the warrant, perceived that the substance of
the inquiry was, how he had disposed of the money, and that the
name inserted in the check, and the object of inserting it, were
material on that point: it was held that the commitment was
valid.^
§ 27. Under the insolvent law of Massachusetts, the magistrate
may issue a warrant to arrest and commit a debtor, not discharged,
for disobeying an order to attend a third meeting, produce a
schedule of debts, and submit to examination. But a petition for
a mandamus for such warrant must allege that the facts required
to be set forth in the original petition, if an involuntary one,
appeared to the judge to be true.' And it seems a magistrate
has no power to imprison for contempt a creditor who refuses to
answer questions concerning his claim against the estate of an
insolvent debtor.*
§ 28. In regard to the production of hooks and papers, where
the commissioners refused to proceed in the bankrupt's examina-
tion, unless he produced his books, etc., which were in the office
of a master of the court of chancery in Ireland, or copies of
them; an order was made, declaring that such books, or copies of
them, must, if required, be produced at the expense of the
estate.'
• Nobes V. Mountain, 7 Moore, 89 ; 3 * Peabody v. Harmon, 3 Gray 113.
B. & B. 233. 6 Cridland, 2 Rose, 164 ; 3 Ves. & B.
2 Bradbury, 25 Eng. Law & Eq. 252. 103. See Hodge, 1 Ashmead, 63.
» Kimball v. Morris, 2 Met. 578.
CHAP, v.] FORMS OF PROCEEDING. 95

§ 29. Somewhat in the nature of a warrant of commitment

against the debtor himself, is the process often provided by statute
against third persons suspected of secreting from the assignees
and creditors property of the debtor. Thus a statute of Massa-
chusetts (St. 1856, c. 284, s. 36) provided that a judge of insol-
vency, on application of the messenger or assignee, might issue a
warrant to search for property of the debtor suspected to be con-
cealed in the premises of a third person. This act was held
unconstitutional, under the 14th article of the Declaration of
Rights, which provides against unreasonable searches and seiz-
ures ;upon the grounds, that the search-warrant in question had
no relation to any alleged crime or public prosecution, but was to
be used exclusively in mere civil proceedings ; and also that the
property was not to be seized, nor the party to be summoned
before any tribunal to vindicate his title.'(a)
§ 30. Questions often arise, in reference to the mutual bearing
upon each other, in determining the rights of a creditor, of pro-
ceedings in bankruptcy or insolvency, and the more ordinary
remedies for the recovery of debts by actions at law.
§ 31. It has been held that a commission in bankruptcy, is
not strictly a proceeding at law. Thus an order was made, that
a solicitor's bill should be taxed by a master, and that all pro-
ceedings atlaw should in the mean time be stayed; and, while the
bill was under taxation, the solicitor sues out a commission of
bankruptcy against his client. On a petition to supersede the
commission, this was adjudged to be no contempt, nor a sufficient
cause to supersede the commission, because the order of reference
extended only to bringing actions, and to common and ordinary
proceedings.^
§ 32. In reference to the petitioning creditor in bankruptcy,
the eflfect of a commission is, that the creditor elects to proceed
by commission p and he may be enjoined from prosecuting an
action previously commenced.^ And where a petitioning creditor,
1 Robinson v. Richardson, 13 Gray,454. ' Prowse, 1 Glyn & J. 92.
2 Mosely, 27.

(a) A bankrupt cannot, without the concurrence of his assignee or

assignees, obtain a summons for the examination of a party under the 120th
section of the consolidation act, 12 and 13 Vict. c. 106, who is suspected of
having the bankrupt's property. Dimsdale, 27 Eng. Law & Eq. 323.
96 BANKRUPTCY AND INSOLVENCY. [CHAP. V.

having petitioned on account of two notes, arrested the bankrupt

upon a third, it was held that he should still be discharged, the
creditor having determined his election by the commission.'
§ 33. With reference to other creditors who have commenced
actions against the bankrupt prior to the commission, it is held
that where the plaintiff, in such action makes his election to pro-
ceed under the commission, the defendant is entitled to have some
entry or suggestion of the election put on the record.^
§ 34. A creditor, who has proved his claim, will be restrained
from proceeding in a suit, though there be no dividend.* And
contrary to the general rule, that election, to come in under a
commission or proceed at law, cannot be compelled before divi-
dend; a creditor will be thus compelled, who, for the purpose
of taking both remedies, has split an entire demand, and, being
the assignee, delayed a dividend.* So where a creditor, who peti-
tions to prove his debt, holds the bankrupt in arrest under mesne
process, he is entitled to his discharge instanter, upon the order
for the proof." So a verdict creditor, having proved his debt, and
otherwise acted under the commission, has made his election, and
shall not afterwards resort to the bankrupt's bail.* So a judg-
ment creditor, by proving the debt, elects to become a party to
the proceedings in bankruptcy, surrenders his judgment, and can
receive but a dividend. Hence he cannot afterwards pursue the
bankrupt by bill, nor allege that he proved the debt for the purpose
of defeating the discharge and not of receiving a dividend.^ So,
although a party tendering the proof or claim of a debt under a
commission is entitled to the judgment of the commissioners upon
his right to prove or claim, before he discharges the bankrupt or
relinquishes the action, yet the bankrupt must be discharged, and
the action and all benefit from it relinquished, before the proof
or claim is admitted upon the proceedings.* So a creditor who is
suing the bankrupt at law is not entitled to benefit under the com-
mission, and has no resource to the great seal, unless he gives up
his legal proceedings.' So arresting the bankrupt before com-
mission, and keeping him in execution after, is an election not to
1 Ward, 1 Atk. 153. OAylett «. Harford, 2 W. Black. 1317.
2 Kemp V. Potter, 6 Taunt. 649. ' Hoxtun v. Corse, 4 Ed. Ch. 585.
3 Flower, 1 De Gex, 508. 8 Frith, 1 Glyn & J. 165.
*GroBvenor, 14 Ves. 587. "Joseph, 1 Kose, 184.
5 Irving, Buck, 423.
CHAP, v.] FORMS OF PROCEEDING. 97

proceed under the commission.* And if a bankrupt be taken in

execution after the commission, the effect is an election, without
regard to the particular motive.^
§ 35. But, notwithstanding the rule above stated, as to final
election between the proceedings at law and under the commis-
sion, ithas been held, even with regard to the petitioning cred-
itor, that where such creditor had, before petitioning for adjudi-
cation, arrested the bankrupt and detained him in custody till he
was discharged on his petition to the Insolvent Debtors' Court;
the Court of Appeal would not annul the adjudication on that
ground, until its validity had been tried at law.* And, in general,
under the English bankrupt law, a creditor may proceed by action,
though proceedings are pending for the same debt m the court of
bankruptcy.* Thus, where the defendant, in afl action brought
for the recovery of a debt, has become bankrupt, and the plaintiff
has tendered his claim for proof of the debt under the bankruptcy,
and the claim is not allowed, but adjourned, the defendant is not
entitled to a stay of proceedings in the action under the 12 &
13 Vict. c. 106, s. 182, the bankrupt law consolidation act. To
entitle him to such stay of proceedings, the debt must be proved
under the bankruptcy, or the claim entered upon the proceed-
ings.* So under the bankrupt law of 1841, filing a petition for
the benefit of the law did not arrest the progress of a suit against
the petitioner.* So a creditor, who does not elect to prove his
debt under the proceedings in bankruptcy, has a right to pursue
such remedies as are afforded to him by the State law, against the
bankrupt, certainly until the bankrupt has obtained his certificate
of discharge; and if he be imprisoned, by virtue of process issuing
from the State court, after he has filed his petition and been de-
creed abankrupt, it is not competent for the District Court of
the United States to order his release from such imprisonment,
previous to his obtaining his certificate of discharge. And it was
doubted whether, after the certificate, the District Court could
order him discharged from such imprisonment, or whether he
must not proceed by audita querela, or otherwise, in the State

1 Warder, 3 Bro. 0. C. 191. * Covington v. Hogarth, 7 Man. & G.

2Knowell, 13 Ves. 193. 1013.
3 Watson, 35 Eng. L. & Eq. 168. ' Ball v. Bowden, 20 Eng. L. & Eq. 476.
' Givens v. Bobbins, 5 Ala. 676.
98 BANKRUPTCY AND INSOLVKNCY. [CHAP. V.

court.^ The filing a petition in bankruptcy does not deprive the

State court of its jurisdiction, and the action will not for that
reason be dismissed upon motion.''(a) On the other hand, the
pendency of proceedings at law does not debar the creditor of his
rights under the commission. Thus a creditor, having the bank-
rupt in execution at the time the commission issues, may elect
between his remedies.^ And if a bankrupt, surrendered in dis-
charge ofhis bail, be discharged by the creditor, having never been
charged in execution, this is no election, and the creditor may be
permitted to prove.^ And, in general, a creditor is not bound to
elect to proceed at law, or under the commission, before a dividend;
therefore a creditor having the bankrupt in custody on mesne
process was permitted to vote in the choice of assignees.* So a
creditor having the bankrupt in execution before the bankruptcy
is not bound to elect until a dividend.' So, where the proof
of the petitioner's debt was refused under the commission, and
he brought an action against the bankrupt, obtained a verdict,
entered up judgment, and took out a capias ad satisfaciendum
in order to fix the bail; and the bankrupt surrendered himself
in discharge of them; the petitioner was admitted to prove his
debt, and the certificate was stayed." So, under the insolvent
law of Massachusetts, a creditor may prosecute an action against
his debtor to final judgment, notwithstanding, after the action
is commenced, the defendant institutes proceedings in insolvency,
and the creditor ofl"ers the claim in suit for proof against the
estate. Whether a defendant who, during the pendency of a
suit against him, institutes proceedings in insolvency, shall have
a delay of the trial of the action on that ground, and for how
long a time, are matters resting entirely in the discretion of
the judge before whom the action is pending; and to the exer-
cise of such discretion no exception lies.* So in Tennessee, the
1 Comatock, 22 Vt. 642. ^sharpe, II Ves. 203.
2 Hobart v. Haskell, U N. H. 127. e Warwick, 14 Ves. 136.
3 Knowell, 13 Ves. 193. ' Arundel, 1 Rose, 143; 18 Ves. 231.
* Cundall, 6 Ves. 446. e Barker v. Haskell, 9 Cush. 218.

(ce) In Pennsylvania, after a petition had been presented for the benefit of
the bankrupt law, and before the applicant had been declared a bankrupt,
his goods, found upon demised premises, might be distrained and sold by his
landlord for the payment of his rent. Butler v. Morgan, 8 VTatts & Serg. 53.
CHAP, v.] FORMS OF PROCEEDING. 99

suggestion of the insolvency of an estate to the county court, and

notice to creditors to file their claims, does not furnish matter in
bar of a pending suit, under the statutes. The creditor may pro-
ceed to judgment, and, if he does not file his claim, he fails to do
so at his peril.' And more especially, under the insolvent law of
New York, where a creditor commences a suit for the purpose
of setting aside an assignment by his debtor as fraudulent, he
does not debar himself from coming in under the assignment,
upon the failure or discontinuance of the suit.^
§ 36. Proving a claim against the principal is not an election
not to proceed against the surety.* So the drawer of a bill, who
has paid the amount to the holder after a commission against the
acceptor, may sue the acceptor before he has obtained his certifi-
cate, and arrest him upon the bill, notwithstanding the holder
has proved the bill under the commission.*
§ 37. In the present connection, we may properly refer to
the subject of parties in bankruptcy and insolvency proceedings.
Upon this point the general rule was thus expressed in a late
case in New York : " There is no evidence that the relator is a
creditor of the insolvent debtor, or that she has any interest
which has been or can be affected by his discharge. For that
reason I should feel inclined to quash the certiorari in this case
as having been improvidently issued. Courts ought not to be
invoked, except to protect the actual interests of- the moving
party, or the rights of the public."® Upon the same ground, in
Massachusetts, a bill in equity cannot be maintained by an insol-
vent debtor, to reduce the allowance made to his assignee for his
services, which does not allege that the debtor's estate paid at
least fifty per cent, of his debts, besides the charges of the insol-
vent proceedings ; as otherwise the complainant is not interested
in the amount of the allowance.' So it is not competent for
the holders of undisputed certificates of stock in a corporation,
whose property has been embezzled, to oppose the discharge of a
petitioner charged with embezzling it ; because, by becoming stock-
holders, they surrender their control over their property, to the ex-
tent of the stock held by them, to the "president and managers" of
' Campbell v. Hancock, 7 Humph. 75. * Mead v. Braham, 3 M. & S. 91 ; 2
2 Jewett V. Woodward, 1 Edw. Ch. 195. Rose, 289.
3 Hughes, 5 B. & A. 482. 5 People v. Stryker, 24 Uarb. 649.
^Richards v. Meriam, 11 Gush. 582.
100 BANKRUPTCY AND INSOLVENCY. [CHAP. V.

the corporation, who are authorized to conduct the business of the

company, and who can alone oppose the petitioner for that cause.'
But any creditor of an insolvent debtor has the right to be made
a party, for the purpose of opposing the discharge, or obtaining
his proportion of the assets, whether he be named in the assign-
ment or not.'' So a creditor of an insolvent debtor, who attaches
his property after the commencement of insolvency proceedings
and before the assignment, has suflScient interest to maintain a bill
in equity to set aside the proceedings ; though he might not have,
if the attachment were subsequent to the assignment.^ So in an
application to the Court for the appointment of a trustee of the
property of a debtor, any attaching creditor has a right to be
heard.^ But, under the bankrupt law, an attaching creditor was
held not "a party interested" in such sense, as to authorize him
to appear as a party in the case; as, for instance, to contest the
facts alleged in the petition of another creditor in invitum, who
had obtained an injunction against the attaching creditor's suit."
§ 38. A decree sustaining proceedings in insolvency is binding
on all having notice of the petition upon which it was rendered;
though such petition was not in form filed in behalf of all persons
interested.* And where a stranger to the commission seeks relief
under the chancellor's jurisdiction in bankruptcy, he submits him-
self to it in all respects, and the chancellor will enforce his orders
against him.'
' Hassinger, 2 Ashm. 287. « Merriam v. Sewall, 10 Gray, Cutl.
2 Lambert v. Slade, 4 Cal. 337. Ins. L. 3d ed. 21.
3 Merriam v. Sewall, 8 Gray, 316. ' Pearee, 1 Rose, 232 ; 19 Ves. 25 ; Bo-
* Brewster v. Shelton, 24 Conn. 140. zannet, 1 Rose, 181. See Hiinne-
5 Button V Freeman, Law Rep., Feb. — well v. Goodrich, 3 Cash. 469.
43, p. 447— Mass. C. C.
 CHAPTER VI.

PROPERTY OF THE BANKRUPT OR INSOLVENT — MESSENGER —

ASSIGNMENT.

1. Messenger and proviiiional as- 42. Lien by execution.

signee. 43. Bights of assignee in case of
5. Assignee.
6. Who may be. 46. Property in the order and disposi-
fraud.
7. Election. tion of the bankrupt.
8. Removal. 49. Leases.
10. What property passes to the as- 59. Chases in action.
signee. 62. Claims for torts or -wrongs.
11. Subject to equities; incomplete 64. Foreign property.
contracts, etc. 70. Rights of the bankrupt or insol-
12. Trusts. vent in his property; allowance, etc.
14. Possibilities — inheritance — de- 71. TiTne in connection with the as-
vise. signment, the title of the assignee,
etc.
15. Miscellaneous property — poli-
cies of insurance, patents, offices, etc. 81. Sale of property by assignees.
19. Liens and incumbrances — equi- 90. General responsibility of as-
table liens.
signees.
20. Sale, etc. for liens — statutory 96. Conflicting assignments — volun-
provisions. tary and official assignees.
24. Bills, etc. held as security. 99. Joint assignees.
27. Lien, on whose property. 101. Successive assignees.
28. Lien by legal proceedings ; at- 108. Assignees and receivers.
tachment, judgment, etc. 112. Assignment by special order of
41. Lien by judgment. court.

§ 1. Under the English bankrupt law, and some of the bank-

rupt and insolvent systems in the United States, the first official
custody of the property of a bankrupt or insolvent is that com-
mitted to the messenger, whose office corresponds somewhat with
that of a sheriff under a writ.
§ 2. But the messenger has not, like a sheriff, unless expressly
conferred by statute, the power of selling, but only of keeping
(101)
102 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

until the permanent title vests in an assignee. (a) Thus, in Jor-

dan's case,^ in Massachusetts, the Court refused to order a sale,
on application of the messenger, (under the insolvent law,) upon
the ground that the goods were perishable, and could not be kept
without disproportionate expense, though assented to by the debtor
and such creditors as could be found.
§ 3. A messenger is justified in locking the debtor's store,
though unoccupied, and taking the key into his own possession."
And there is no jurisdiction in bankruptcy, to order goods seized
by a messenger to be delivered up to a person claiming them as
his.^ So, although the messenger is to enter and seize at his own
hazard the property of the bankrupt, yet, if he enters the house,
and seizes the property of another, acting under authority, it is held
that he cannot be turned out, but the party must take his remedy
at law.* So a messenger is not liable for retaining the property
which he took upon the warrant after the magistrate has disallowed
the claim of the petitioning creditor and dismissed the petition, if
such creditor appeals and prosecutes his appeal; nor, if the de-
cision below is affirmed, is he liable for keeping the goods a
reasonable time after such affirmation. The messenger is not
bound to decide at his peril whether an appeal lies, nor whether
the appellant has done all that is requisite to sustain it.' But, if
commissioners issue a warrant to apprehend the bankrupt, directed
to the messengers (by name) "and their assistants," etc., this war-
rant does not justify the apprehension of the bankrupt by any
one not in the actual or constructive presence of the messengers.
Hence if a person who is the assistant of one of the messengers
in his business of a sheriff's officer, having the warrant in his
possession, but in the absence of the messengers, in attempting
to arrest the bankrupt, is struck down by him with a stone, and
in an ensuing struggle has his nose bitten oflF, and dies from his
injuries; the bankrupt is guilty only of manslaughter.* And if
goods fraudulently purchased are seized under a warrant against
I Law Rep., July— 45, p. 122. * Page, 1 Eose, 1 ; 17 Vea. 59.
" Stevens v. Palmer, U Met. 464. 6 Stevens v. Palmer, 12 Met. 464.
s Craggs, 1 Rose, 25. 6 Rex v. Whalley, 7 Car. & P. 245.

(a) As to the authority of a messenger, see Perry, etc. v. Brown, U. S. Cir.

Ct., Law Eep., Oct.— 47, p. 264; Hawkes v. Dunn, 1 Tyr. 403.
CHAP. VI.] ASSIGNMENT. 103

the purchaser, the seller may maintain replevin against the mes-
senger without a previous demand.'
§ 4. The compensation of the messenger is usually regulated
by express statutory provision. It is held in England, that a
creditors' assignee in insolvency, under Sts. 5 & 6 Vict. c. 116, s. 1,
and 7 & 8 Vict. c. 96, s. 4, is not liable for the messenger's fees,
except upon an express contract.^ And, under former statutes,
the messenger appointed by the commissioners might be removed
by the assignees, who were held not liable to him for his services
after such removal. It was argued in favor of the messenger's
claim, that if the Court upholds the right of removal, "they will
have to import into the warrant the words, ' or until the choice of
assigflees.' " To which Tindal, C. J., replied: " So, in any gen-
eral appointment, it might be said that the words 'until death'
should be imported."^ (a)
1 Bnssing v. Kice, 2 Cuah. 48. ^ Robson v. Jonassohn, 7 Man. & Gr.
2 Hamber v. Hall, 4 Eng. L. & Eq. 382. 351.

(a) A commission of bankruptcy issued in 1817, and A. acted as messen-

ger from that time until 1821, and was paid the greater part of his claim on
account. Many years afterwards, moneys came to the hands of the ofiScial
assignee, and the executors of the messenger petitioned for payment out of
these moneys of the balance remaining due ; but the Court, concurring in
the view of the commissioner who had refused the application, declined to
make any order. Page, 27 Eng. L. & Eq. 332.
It is often provided by statute, that the property of the bankrupt or insol-
vent shall vest in a temporary or provisional trustee, until the election or
appointment of the regular and final assignee.
A provisional trustee, appointed under the Maryland statute " relating to
insolvent debtors in Baltimore," (1816, c. 221,) is bound to deliver up the
estate and effects of the insolvent to the permanent trustee on demand; and,
if he refuse, he is liable for interest, and entitled to no compensation for his
services. Williams v. Ellicott, 6 Har. & J. 427.
It has been held that a provisional trustee cannot maintain an action of
trover for promissory notes, which were delivered by the insolvent himself
to the defendant, to discharge a debt due him. Kennedy v. Boggs, 5 Har.
& J. 403. That he is the mere recipient of the property of the insolvent,
of which the law contemplates his receiving immediate possession from the
insolvent himself, and not .by suitagainst third persons. That he cannot
assign a judgment of the insolvents, and, if the assignee collects it, he is
answerable for the amount to the permanent trustee. Brown v. Brice, 2
Har. & Gill, 24.
But it is now held, that a provisional trustee in insolvency is as fully
authorized to commence actions as the permanent trustee, and therefore the
104 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

§ 5. The permanent representative of the bankrupt or insol-

vent, and trustee of bis property, is the assignee; and, in imme-
diate or indirect connection with the title of assignment, is to be
found a very considerable portion of the English and American
law upon the subjects of bankruptcy and insolvency.
§ 6. A bankrupt, whether certificated or not, cannot be an
assignee under his own commission.^ And in regard to a third
person, the general rule is, that "to disqualify him, he must be
in such a situation as to be under temptation to secure himself
from a scrutiny to which he would have been subjected had
another been assignee, or must have manifested some intention
to use his position to obtain some undue advantage."^ Thus
neither the solicitor to the commission nor his partner d&n be
assignee. '(a) Nor a banker receiving the money under a bank-
ruptcy.* But a solvent partner may be appointed receiver, with-
out salary, of the partnership property.*
§ 7. The election of assignees must be made by those creditors,
however few, who are in a condition to vote, although those not
in condition might have made a difierent choice.* But where the
great body or the major part in value of the creditors had been
accidentally, and without default on their parts, or through mis-
1 Jackson, 2 Rose, 221 ; Coop. C. C. » Rice, 1 Mont. 259 ; Badcock, 1 Mont.
286. & Mac. 231.
'Per Shaw, C. J., Shelton v. Walker, * Lacey, 6 Ves. 625.
10 Law Rep. 24. s stoveld, 1 Glyn & J. 303.
« Butterfell, 1 Rose, 192.

statute of limitations begins to run from the time of the appointment and
qualiflcation of the former. Teackle v. Gibson, 8 Md. 70.
A. was made a bankrupt, and B. was appointed the ofiBcial assignee, and
0. was elected tne creditors' assignee. An action was brought by D. against
B. and C. in respect of some property in the possession of the bankrupt at
the time of the bankruptcy, and a verdict was given in favor of D. The
result of the action was independent of the bankruptcy, and would have been
the same whether the ^ai was valid or invalid. C. was insolvent. D. being
about to issue execution against B. in respect of the costs of the action, B.
applied to the Court for protection. The Court, however, declined to inter-
fere. Johnson, 7 Eug. L. & Eq. 314.
(a) It is said, " assignees owe a duty to every creditor, and each creditor
owes a duty to the other creditors. It is the duty of the solicitor employed
by the bankrupt, if he find that he is employed by the assignees, to see that
he can do his duty to every creditor as well as to the bankrupt." Per Lord
Eldon, Shaw, 1 Ulyn & J. 156.
CHAP. VI.] ASSIGNMENT. 105

take of the commissioner, excluded from voting, a new choice was

directed to be made.^ So where the commissioners had improp-
erly rejected the petitioner's proof to a very large amount, whereby
two creditors, for comparatively trifling sums, were enabled to
choose the assignees; — the petitioner indemnifying the estate
against all the costs. ^(a) But though a case appear, in which
the Court would upon an immediate application vacate the choice
on account of an improper rejection, yet it will not interfere
where there is delay in making the application.^ So creditors,
who have, subsequent to the appointment, signed resolutions au-
thorizing the assignees to do certain acts, as assignees, which
they could not otherwise have performed, and to act generally as
assignees, are debarred from afterwards questioning the appoint-
ment, upon grounds of which they were aware at the time of sig-
nature.* Nor is it a ground for the removal of assignees, that the
commissioners have improperly rejected the proof of a debt that
would have turned the choice, unless the rejection was fraudulent.'
Nor is there jurisdiction in bankruptcy to reject a debt, on the
ground that it must command the choice of assignees, and that
the creditor has an adverse interest to the general creditors by
property and security obtained immediately before the bankruptcy ;
but an unjust use of his legal right by choosing himself will be
controlled by the Lord Chancellor, either by removing him, if
the election is recent, and nothing done under it, or otherwise by
some arrangement ; as, in this instance, from the great amount of
the debt, appointing another assignee to act solely in the investi-
gation and decision of the disputed claim.^ And commissioners
were ordered forthwith to execute the assignment to the petition-
ers, who had been elected assignees by the major part in value of
the creditors who had proved and voted, where the meeting had
been adjourned by the commissioners for the purpose of investi-
gating a claim not sufficient to turn the choice.' So where, in an
1 Deohapeaurouge.l Mont. & Mae. 174; * Nash, 1 Deao. & Chit. 445; 1 Mont.
Hawkins, Buck, 520. But see Sur- 501.
tees, 12 Ves. 10. 5j)arent, Buck, 201.
[Link], Buck, 411. «De Tastet, 1 Ves. & B. 281; 1 Rose,
3 Scholey, 1 Glyn & J. 2. 324.
f WooUey, 1 Glyn & J. 366.

(a) As to an attempted control of an assignee's acts by a majority of

creditors, see 2 Pars, on Oontr. 618.
106 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

action of covenant by the assignee of A., a bankrupt, founded on

an article of agreement between the latter and the defendant, the
defendant pleaded that A., of his own motion, filed in the District
Court of the United States his petition, applied for a discharge
under the bankrupt law, and was declared a bankrupt, and that
the plaintiff was appointed assignee, solely at his own instance ;
held, the plea was held bad on demurrer.*
§ 8. It is a general rule, as has been suggested, that an assignee
having adverse interests will be removed, or an arrangement made
by the appointment of some other creditor for the investigation of
his claims.^(a) So assignees were removed on the ground that one
of them had purchased the bankrupt's estate, under the commission,
for himself. A re-sale was directed, and the purchaser to account
for a profit gained by him upon a re-sale of part; but he was dis-
charged from the purchase only conditionally, in case the re-sale
should produce more.' So where an assignee had exercised undue
influence in procuring his appointment, and had interests adverse
to fliose of the other creditors, and after his appointment had used
improper means to secure a preference to himself; the Court ordered
that he should be removed, his assignment revoked, a meeting of
creditors called to makeanother election, and the former assignee
make to his successor all necessary conveyances.^ So an assignee
permanently resident in Scotland was removed.^ So, one of two
assignees having quitted the country, a petition was presented by
the remaining assignee, that the bargain and sale to the two
assignees might be vacated, a choice made of a new assignee in
the stead of the one abroad, and a new bargain and sale executed
to the petitioner and the new assignee ; and that service of the
petition at the last place of residence of the assignee abroad might

1 Hastings v. Fowler, 2 Carter, 216. ♦ Per Shaw, C. J.. Shelton v. Walker,

2 De Tastet, 1 Rose, 324 ; 1 Ves. & B. 10 Law Rep. 124.
281. And see Surtees, 12 Ves. 10. 5 Qrey, 13 Ves. 274.
s Reynolds, 5 Ves. tOT.

(a) Where commissioners had charged an excessive sum for each meeting,
and large sums for their eating and drinking, they were removed. Reynolds,
.f) Ves. 709.
As to removal, see Barnett, 2 M. D. & De G. 692 ; Shaw, 1 Glyn & J. 127 ;
Surtees, 12 Ves. 10 ; Mendel, 4 Dea. & Oh. 725 ; Gopeland, 1 M. & Ayr. 306 ;
Dechapeaurouge, M. & McA. 174 ; Morse, 1 De G. 478.
CHAP. VI.] ASSIGNMENT. 107

be deemed good service. On production of an aflSdavit of service

of the petition, an order was made according to the prayer of the
petitioner.^ So a commissioner, objecting to the solicitors em-
ployed bythe creditors' assignees, on the ground that they were
connected by marriage with the bankrupts, requested the as-
signees to change such solicitors, and, upon their refusal to do
so, made an order removing them from their office of assignees.
Held, upon appeal, that the matter was one entirely in his dis-
cretion; and, there being nothing to show a wrongful exercise
of such discretion, the Court had no power to interfere.^ And
the Court has jurisdiction to remove the persons nominated by
the creditors as assignees before the execution of the assignment.^
But, till a debt is set aside, the Court will not remove a creditor
from his office as assignee upon a suspicion of its unfairness.*
§ 9. On an application to remove one of several assignees, as
has been seen, the proper course is to petition for a new choice.*
So where, upon a joint choice of three persons as assignees, the
Court rejects the nomination of one of them, it will set aside the
choice altogether, as it cannot collect from the nomination of three
persons jointly an intention to intrust the administration to two
of the three, if one be rejected.^ And the retiring assignee must
permit his name to be used in any legal proceedings already com-
menced, being indemnified by the new assignee, in an amount to
be settled by the master.' And an assignee removed for the ben-
efit of the estate is entitled to his costs out of any fund in hand,
before it is transferred to the new assignees.' But, on the other
hand, where an assignee, on being chosen, accepts the office, he
can only retire on payment of the costs occasioned by his re-
moval.' So an assignee was discharged from being such on his
own petition, but on terms.^"
§ 10. The general rule is, that the assignment passes the whole
of the bankrupt's property."(«) Or all that might be conveyed.'^
1 Bonbonus, 3 Madd. 23. 8 James, 1 Mont. & Bligh. 262 ; 1 Deac.
2 Bates, 10 Eng. L. & Eq. 310. & Chit. 272.
8 Shaw, 1 Glyn & J. 127. » Watts, 1 Deao. & Chit. 322.
* Mills, 2 Rose, 68 ; 3 Ves. & B. 189. >» Thorley, 3 Madd. 273 ; Buck, 231,
5 Steel, 1 Deac. & Chit. 489. 465.
«Shaw, 1 Glyn & J. 127. "Barstoww. Adams, 2Day,70; Kitchen
' Koberts, Buck, 465. w. Bartsch, 7 E. 53.
12 Cohen v. Gibbs, 1 Hill S. C. 206.

(a) Whether the assignee accepts the trust or not. 1 Hill, S. C. 206.
108 BANKRUPTCY AND INSOLVENCY. [OHAP. VI.

And nothing further than the bankrupt's own rights, unless in

case of fraud} In other words, the assignees stand precisely in
the situation of the bankrupt himself.^ It is said, "any one, who
affirms that a particular thing does not pass by force of the stat-
ute, must bring himself within its exceptions, or show conclu-
sively aliunde, that it was the design of the makers of the law
that the thing specified should not pass to the assignee."' And,
in another case, referring to him as the representative of ered-
itors, "the assignee, while for some purposes he represents the
debtor and stands in his place, is clothed with much higher and
more extensive rights in relation to the estate than the debtor
himself possessed."* So, it is said, "in cases unaffected with
fraud, the assignee generally, although perhaps not universally,
succeeds to those rights and those rights only, which belong to the
bankrupt. His remedy may be more extensive, growing out of
the bankruptcy ; but his rights are not enlarged."* So the assign-
ment of an insolvent debtor passes all his property, whether men-
tioned on the schedule o,r not.* And if an insolvent debtor include
in his schedule "all his interest in certain property assigned to"
a person named, and, on an issue found, the jury find the deed
assigning such property fraudulent, the debtor shall be imprisoned
until he make a surrender of the whole of such property.' So it
is immaterial whether the property be in the possession of the
debtor, or in that of any other person.* So an assignment by a
debtor of "all his estate, real and personal," pursuant to an insol-
vent act, passes the title to all the lands which he owns, without
further description.^
§ 11. The assignee takes the bankrupt's interest, subject to all
rights and equities}" It is said, no estate vests in him but that of
which the bankrupt had the legal and equitable title}\a) So it
1 Fletcher v. Money, 2 Story, 553 ; Mil- Shirley v. Long, 6 Rand. 735; Bank,
chell t). Winslow, ibid. 630; Winsor etc. t). Horn, 17 How. 157 ; 6 Rand.
V. McLellan, ibid. 493. 735; 2 Denio, 61. See Huttou v.
^Stoutfer V. Coleman, 1 Yea. 399. Self, 6 Ired. 285.
sper Hubbard, J., Gray v. Bennett, 3 ' Hutton v. Self, 6 Ired. 285.
Met. 525. B Shirley v. Long, 6 Rand. 735.
*Per Hoar, J., Bingham v. .Jordan, 1 ' Roseboom v. Mosher, 2 Denio, 61.
Allen, 374. "> Mitchell v. Winslow, 2 Story, 630;
sPer Story, J., Fiske «. Hunt, 2 Story, Winsor v. McLellan, ibid. 493;
684. Newhall, ibid. 860.
6 Cooper V. Henderson, 6 Binn. 189; " 10 John. 65.

(a) It is said, that the early statute of 13 Bliz. c. 7, did not embrace
equities of redemption. 2 Bl. Com. B. 2, ch. 1, s. 8.
CHAP. VI.] ASSIGNMENT. 109

is said, " I have always understood the assignments from the com-
missioners, like any other assignment by operation of law, passed
his (the bankrupt's) rights, precisely in the same plight and con-
dition as he possessed them. Even where a complete title vests
in them, and there is no notice of any equity aifecting it, they
take subject to whatever equity the bankrupt was liable to. This
shows that they are not considered purchasers for a valuable con-
sideration, inthe proper sense of the words. Indeed, a distinc-
tion has been constantly taken between them and a particular
assignee for a valuable consideration ; and the former are placed
in the same class, as voluntary assignees and personal representa-
tives."^ But, contrary to the general rule as to bond fide pur-
chasers for consideration, the assignee in insolvency of a fraudu-
lent grantee takes no better title than the grantee had.^ So if a
grantee of land give back a bond of defeasance, his assignee in
insolvency is bound by such bond, though not recorded.^ So an
infant insolvent debtor cannot, in favor of his assignee, revoke a
transfer of property in payment of his wife's debts.* So where,
after filing his petition and prior to the decree of bankruptcy, the
party inherited property from his mother, to whose estate he was
indebted; held, the assignee took the inheritance, subject to this
debt.* But though, in general, assignees do not take property of
which the equitable title has been transferred by the bankrupt,
there must have been a specific transfer of the very property in
question. Thus the bankrupt had drawn bills on A., and nego-
tiated them to B., the bills were dishonored, and the bankrupt, at
B.'s request, wrote to A., instructing him to turn over to B.'s
agent all the bankrupt's property in A.'s hands for the bank-
rupt's account ; which was accordingly done after the bankruptcy.
Held, the assignees were entitled to the property.^ So a clerk in
the store of a dry goods dealer has no implied authority to pledge
or hypothecate the goods ; and if he attempts thus to secure a
debt of his employer, the assignee in insolvency of the lattef may
claim the goods.' So if a mortgage of chattels provides that the
1 Per Sir Wm. Grant, Mitford v. Mit- 5 Newhall, 2 Story, 360.
ford, 9 Ves. 100; Herbert, 13 Ves. SBurn v. Carvalho, 4 Nev. & M. 889.
188. See Meynell v. Surtees, 31 Eng. L.
2 Pratt V. Wheeler, 6 Gray, 520. & Eq. 475.
8 Stetson V. Gulliver, 2 Gush. 494. ' Nash v. Drew, 5 Gush. 422.
4 Butler V. Brack, 7 Met. 164.
110 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

mortgagor may sell them and substitute others, which is done;

upon his insolvency before the mortgagee takes possession of the
new property, it vests in the assignee.* So the assignee is en-
titled to notes left by the debtor with a bank for discount, but
not discounted ; and the bank cannot set off debts of the insolvent
against the assignee's claim.^ So a mortgagee, having entered
to foreclose, agreed with the' mortgagor that he, the mortgagee,
should receive the rents and profits and apply them to another
debt. Before any rents were received by the mortgagee, the
mortgagor became insolvent. Held, the insolvency revoked the
agreement thus to apply the rents, and those afterwards received
must be applied to the mortgage.* So the owner of a ship and
cargo at sea transferred them as security, executing a bill of sale
and a policy of insurance, and indorsing the bill of lading; but
upon the arrival of the ship, with notice to the purchaser, he
neglected to take possession, and the seller soon became bank-
rupt. Held, the title to the ship vested in the assignees of the
seller.^ And, on the other hand, in favor of the assignee, no
mere equities of a seller of property will be allowed to interfere
with the completed title of the buyer, prior to his insolvency.
Thus A., owning wood cut and packed upon his land, sold a part
of It, which was measured and marked off to B., the purchaser,
who was to have a year to remove it. B. gave a note for the
price, payable in six months, and afterwards became insolvent.
Held, his assignee was 'entitled to the wood, subject to a lien for
the price ; though the note had not matured or been negotiated,
and the bill of sale had been given up after the insolvency, and
though, after the year had elapsed, A. had re-sold a portion of
the wood.°(a)
§ 12. "Property held in trust never passes by the commission,
and if that property consists of goods remaining in specie, or of
notes and other choses in action, the cestui que trust is entitled
1 Moody V. Wright, 13 Met. 17. ^ Hilliard v. Allen, 4 Cusli. 532.
2 Stetson v. Exchange, etc., 7 Gray, * Mair v. Glennie, 4 M. & S. 240.
425. 5 Arnold v. Delano, 4 Gush. 33.

(a) As to the title of an assignee to negotiable paper, transferred by the

bankrupt after an act of bankruptcy, see Willis v. Freeman, 12 B. 656;
Wilkins v. Casey, 7 T. R. 711 ; Arden v. Watkins, 3 E. 317 ; Kitchen v.
Bartch, 7 E. 53.
CHAP. VI.] ASSIGNMENT. Ill

to the property, and not the creditors at large. The only check
to the operation of the rule is, when the property is converted
into cash by the bankrupt, and has been absorbed in the general
mass of the estate, so that it cannot be followed or distinguished.
It is the difficulty of tracing the trust tnoney, which has no ear-
mark, that prevents the application of the rule. But here that
difficulty ceases, for the money, which was the proceeds of the
trust goods, was kept separate and distinct, and deposited as such
with the defendants."^ But, as suggested above, where a debtor
has converted trust property into cash, and it has become .mixed
with his own property, so that it cannot be followed, the cestui
que trust stands on the same footing with other creditors.^ And,
on the other hand, a mere executory agreement between the bank-
rupt and a third person, prior to the bankruptcy, will not have
the effect of vesting an interest in the latter sufficient to defeat
the title of the assignee. Thus, if the bankrupt deposited a lease
as a security for money, but made no mortgage or assignment of
it, the assignees may recover it.' So if the bankrupt has given a
power of attorney to another to receive sums of money due to
him, in consideration of engagements entered into by such person
on account of the bankrupt; money received under such power,
after bankruptcy, may be recovered by the assignees. *(a)

1 Kip V. Bank, etc. 10 John. 65. s Doe v. Roe, 5 Esp. 105.

2 Vanlier v. DisboTough, 1 Green, 343. * HotUI ». Lethwaite, 5 Esp. 158.

(a) In another connection (see chap..iii.) we have considered the rights of

the wife of a bankrupt or insolvent in the disposition of his estate, as coming
under the general head of an implied trust. It may here be stated, that it was
held, under the late United States bankrupt law, that the assignee of a hus-
band might claim a watch presented to his wife about ten years before the
petition ; articles of jewelry given her by third persons before, or by the
husband before or since the marriage ; but not jewelry given her by third
persons since the marriage, as personal memorials. In the same case it
appeared, that two minor sons of the bankrupt had each a gold watch worth
about fifty dollars, purchased two years before with money given by a third
person and by the bankrupt. It was held, that the assignee could not claim
the watches, nor could he claim any part of their value, if, when the advance
was made, the father was solvent, and made it bond fide, and it was suitable
to his rank, condition, and estate. But if otherwise, then the sons must
account to the assignee for the sum thus advanced by the father. Grant,
112 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

§ 13. Where the bankrupt, before passage of the law, had

acquired a resulting trust in certain real estate by payment of
the whole purchase money, such property belongs to the assignee,
under the general clause in the law, which provides that all rights
of property shall thus vest, by mere operation of the decree of
bankruptcy. And although, in such case, the transaction had for
its object to defraud the bankrupt's creditors, and he might oh
that ground be prevented from enforcing the trust for his own
benefit, the assignee could still claim the property.^(a)
§ 14. Possibilities coupled with an interest pass to the as-
signee. But not ba7-e possibilities, such as the expectancy of an
heir.'' Thus the distributive share of an intestate estate, to
which an insolvent debtor is entitled in right of his wife, after
the death of the widow of the intestate, vests in the assignee.'
And in regard to interests acquired by will, where a devise has
been made to and accepted by a bankrupt, even though the will
has not been approved, it is a fraud upon creditors for him to dis-
claim or renounce it, and the Court will compel him to do all acts
necessary to perfect his title. And his consent is presumed, if
the devise is plainly for his benefit, as in case of an unconditional
fee, without trust or incumbrance.* So in personal property be-
queathed intrust, to pay the income to the testator's widow for
life, and, at her decease, to convey the remainder to such of his
children or their issue as shall survive her; the husband of a
daughter of the testa,tor has an equitable interest, which will pass
by an assignment of his property under the insolvent law, during
the life of the testator's widow ; though the assignees will take,
subject to an equitable provision for the daughter and her chil-
1 Carr v. Hilton, 1 Curt. (U. S.) 231. ' Sherman v. Keigart, 7 Watts & Serg.
2 Carlton v. Leighton, 8 Merl. 667; 168.
Comegys v. Vasse, 1 Pet. 193, 220. * Fuller, 2 Story, 827.

2 Story, E. 312 ; 5 Law Rep. 11. Money deposited in a bank, in her own
name, by a married woman, who lives apart from her husband and is not
supported by him, passes to the assignees upon his bankruptcy. Ames v.
Chew, 5 Met. 320.
(a) In Maryland, where an insolvent has made an absolute conveyance of
property, in the nature of a trust, to secure a debt due to his grantee, it is
the duty of his trustee in insolvency to administer upon such property. Bank
of Westminster v. Whyte, 3 Md. Ch. Decis. 508.
CHAP. VI.] ASSIGNMENT. 113

dren.^ So, in land devised in trust to pay the income to the tes-
tator's widow for life, and, at her decease, to convey the remainder
to such of his children or their issue as shall survive her, the hus-
band of a daughter of the testator, after issue born alive, has an
equitable tenancy by the curtesy, which will pass by an assignment
of his property under the insolvent law, during the life of the tes-
tator's widow.^ But a legacy to the bankrupt's wife, even if vested
but not payable, and more especially if dependent on her surviv-
ing another person, being a mere possibility, does not pass to the
assignees of the husband.^ So the right of a joint tenant by
survivorship will take precedence of the title of an assignee in
bankruptcy. Thus, one of four joint tenants of a sum of .£2000,
subject to a life estate in B., married A. ; afterwards A. became
bankrupt; then the wife died ; then B. died. Held, the surviving
joint tenants were entitled, in preference to the assignees in bank-
ruptcy ofA.*
§ 15. It is held that a policy of insurance passes to the as-
signee.°(a) Or a patent.^ It is said : " It is true that the schemes
which a man may have in his own head before he obtains his cer-
tificate, or the fruits which he may make of such schemes, do not
pass, nor could the assignees require him to assign them over,
provided he does not carry his schemes into effect until after he
has obtained his certificate. But if he avail himself of his knowl-
edge and skill, and thereby acquire a beneficial interest, which
may be the subject of assignment, I cannot frame to myself an
argument why that interest should not pass in the same manner
as any other property acquired by his personal industry."' But
diplomas, conferring degrees and honors, and certificates from med-
ical institutions and practitioners, do not pass to the provisional as-
signee bythe vesting order of the Insolvent Debtors' Court, under
Stat. 1 & 2 Vict. 110, s. 37.' So it is held in England, that the

' Gardner v. Hooper, 3 Gray, 398. ^ gchoudler v. Waoe, 1 Cowp. 487.

2 Ibid. 6 Hesse v. Stevenson, 3 B. & P. 565.
3 Shay 0. Sessaman, 10 Barr. 432; ' Per Lord Alyanley, 3 B. & P. 565.
Krumbaar [Link], 2 Wash. C.C. 406. sgernot v. Cattlin, 22 Eng. L. & Eq.
* Barton's, etc. 12 Eng. L. & Eq. 323. 234.

(a) How far this Is so, even notwithstanding the usual clause forbidding
an assignment, see Lazarus v. Commonwealth, etc. 5 Pick. 76 ; 19 ibid. 81 ;
Brichta v. New York, etc. 2 Hall, 372.
8
114 BANKRUPTCY AND INSOLVENCY. [CHAP. VI.

place of under-marshal of London is salable under a commission

of [Link]) But not the place of a Jew broker.^ So the
franchise of a toll bridge passes to the assignee in bankruptcy.*
§ 16. An assignment from a commissioner of insolvency, upon
proceedings against a partnership, of "all the estate, real and
personal, of said insolvent debtors," passes the separate estate of
each partner.* But under a separate commission against one of
several partners, only his private property and his interest in the
funds of the firm pass to his assignees.'
§ 17. Upon the ground that property of the bankrupt vests in
the assignee by force of the decree ; a creditor's bill Tvill not lie
to subject it.^
§ 18. In construction of the third section of the bankrupt law
of 1841, which provides that the assignee shall have all rights,
etc. "as fully, to all intents and purposes, as if the same were
vested in, or might be exercised by, such bankrupt, before, or at
the time of his bankruptcy," Judge Curtis held this clause of the
section not to restrict but enlarge the rights of the assignee, as
created by the preceding part of the section. " The design of
that clause was not to deprive the assignee, of rights which attach
to the ownership of the property, in the capacity in which he
holds it, but to enlarge his powers and confer rights upon him
which, on the ordinary principles of law, do not belong to a mere
voluntary assignee."'
§ 19. As the assignee of a bankrupt or insolvent takes the
property of the latter, subject to all legal and equitable titles to
such property, of course, as a general rule, any lien or incum-
brance, prior to the act of bankruptcy or the commencement of
1 Butler ». Richardson, Amb. 73. ^ Harrison v. Sterry, 5 Cranch, 302.
^ Lyons, Amb. 89. « MoCabe v. Cooney, 2 Sandf. Ch. 314.
3 Stewart v. Hargrove, 23 Ala. 429. ' Carr v. Hilton, 1 Curt. 235-6.
* Judd V. Gibbs, 2 Gray, 539.

(a) An interim order for protection, granted under the insolvent acts, 5 &
6 Vict. c. 116, and 7 & 8 Vict. c. 96, only protects from process such prop-
erty of the insolvent as would pass to, or could be distributed by, the assignees
under those acts. Those statutes contain no provision by which the assignees
can obtain the profits of an ecclesiastical benefice. A writ of sequestrari
facias, therefore, may be issued by a plaintiff in an action against the bene-
fice of the defendant, after the latter has obtained an interim order for
protection. Parry v. Jones, 37 Bng. L. & Bq. 413.
CHAP. VI.] ASSIGNMENT. 115

proceedings, is recognized and protected. (a) "It is undoubtedly

the policy and the legal effect of the insolvent law, to transfer to
the assignee, for the benefit of creditors, all the property of the
debtor, and all the rights and interests which he could properly
transfer, by his own act. But the purpose of the law is, to trans-
fer the rights of the debtor, in the same plight which they were
in, in the hands of the debtor himself, subject in all respects to
the same liens, incumbrances, and equities."^ Nor is it necessary
that assignees should have had notice of such liens.^ So, in re-
gard to the nature of these contingent and partial claims, and
the construction of a statutory provision relating to them, it is
remarked by high authority : " It would be an arbitrary and fan-
ciful exposition of the terms of this proviso to say, that it saved
common law liens, and not statute liens; liens after judgment,
and not liens before judgment."* And equitable as well as legal
liens are protected. (J) Thus, where it appeared that the bank-
rupts were authorized to make drafts on the plaintiffs, in payment
for merchandise, which was pledged and hypothecated to the plain-
tiffs as collateral security for their advances ; held, the plaintiffs
had an equitable lien upon shipments and the proceeds thereof in
the hands of the assignee ; and duties and charges upon such
shipments, paid by the bankrupts, are not to be deducted from
their value, or the proceeds in the hands of the assignee, except
in reference to such goods as came into the hands of the assignee
charged with the duties since the bankruptcy. Judge Story re-
marks: "It is suggested, that in the proviso of the second section
of the bankrupt act of 1841, ch. 4, there is no saving of any liens,
except such as are valid by the laws of the States respectively;
and it is added that, by the laws of Massachusetts, where the
'Per Shaw, C. J., Davis «. Newton, 6 'Per Grier, J., Pecks. Jennese, 7How.
Met, 542-3. 620.
' Clason V. Morris, 10 John. 624.

(a) See remarks of Oatron, J., in Norton v. Boyd, 3 How. 440. See also
Steiner, 27 Penn. 313.
(6) A statutory lien is also protected. Thus a mutual fire insurance com-
pany are entitled to a special judgment upon a premium note, for the purpose
of enforcing their lien on the real estate insured, although it has been sold
and conveyed to a lond fide purchaser. Bowditch v. Jackson, 12