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2(5), 30 Stat. 546 [U. S. Comp. St. 1901, p. Bankruptcy court held to have jurisdiction un3121], to continue the business of bankrupts by der circumstances to hear issues and render judgreceivers, they have implied power to authorize ment, and there was no error in the proceedings the issuance of receivers certificates to provide or in the conclusion which had not been waived funds necessary for operating expenses.-In re by the trustee.-In re Blake (C. C. A.) 279. Erie Lumber Co. (D. C.) 817.

A landlord held not entitled to enforce a lien A mortgagee of a bankrupt who has notice of under Iowa Code, $ 2992, against the assets of and participates in the bankruptcy proceedings his bankrupt tenant for rent alleged to have acand makes no objection to the appointment of crued while the tenant held possession under a receivers to continue the bankrupt's business, contract of purchase after the expiration of but does business with the receivers, is thereby his lease.-Des Moines Nat. Bank v. Council precluded from insisting on the priority of his Bluffs Sav. Bank (C. C. A.) 301. mortgage over the operating expenses or other

A parol assignment of choses in action as obligations incurred by the receivers under security by a bankrupt prior to the bankruptcy orders of the court.-In re Erie Lumber Co. (D. may be established by the testimony of the C.) 817.

parties alone where such testimony is uncon§ 3. Assignment, administration, and tradicted and credible, the witnesses are not

and impeached, and there are no circumstances distribution of bankrupt's estate which cast doubt upon their truthfulness.-Assignment, and title, rights, Union Trust Co. v. Bulkeley (C. C. A.) 510. and remedies of trustee in general.

*A parol assignment of notes and accounts A trustee in bankruptcy unaffected by fraud, to secure an indorser is valid as against the and wherein no attachments and executions trustee in bankruptcy of the assignor where have been levied on the property of the bank- made and acted on by the assignee in good rupt, stands in the latter's shoes.-In re Blake faith.-Union Trust Co. v. Bulkeley (C. C. A.) (C. C. A.) 279.

510. A membership in the New York Stock Ex- *The failure to record a deed or mortgage unchange held property, which passed to the mem- til after the bankruptcy of the grantor, which ber's trustee in bankruptcy, notwithstanding a instrument is valid as between the parties, unprior assignment by him which rendered a pro- der Civ. Code Cal. $ 1217, does not render it ceeding between the trustee and the assignee in voidable as a preference under Bankr. Act July the bankruptcy court to determine the right 1, 1898, c. 541, § 60b, 30 Stạt. 562 [U. S. thereto a "proceeding in bankruptcy,” and an Comp. St. 1901, p. 3445), as amended by Act order made therein granting an interlocutory Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. injunction reviewable only on petition to revise, S. Comp. St. Supp. 1905, p. 689), nor can it under Bankr. Act July 1, 1898, c. 541, § 24b, 30 be set aside as fraudulent where there was no Stat. 553 [U. S. Comp. St. 1901, p. 3432].- agreement to withold it from record or active O'Dell v. Boyden (C. C. A.) 731.

concealment.--In re McIntosh (C. C. A.) 546. § 4. Preferences and transfers by 8 5. Administration of estate. bankrupt, and attachments and

A creditor who holds a voidable preference other liens.

has a provable claim, but which he may not be The lien of a township on a bankrupt's stock allowed or vote on until he has surrendered his of goods held not lost by the fact that it ac- preference.-Stevens v. Nave-McCord Mercantile cepted a chattel mortgage which was unenforce Co. (C. C. A.) 71. able as a preference.-Smith v. Township of Au Aside from statutory jurisdiction, the federal Gres, Michigan (C. C. A.) 257.

District Court has equitable jurisdiction to proWhere a bankrupt used trust funds with tect its receivers and enforce contracts made by which to purchase goods for sale in his mer- them.-Mason v. Wolkowich (C. C. A.) 699: In chandise business, and so commingled the goods re Mason, Id.; In re Rubin, Id.; Wolkowich v. that he was unable to distinguish the goods so Mason, Id. purchased, the cestui que trust was entitled to Act of a bankrupt's trustee in applying to the an equitable lien on the proceeds of a sale of court for an order directing payment to him of the whole mass as against general creditors, who the proceeds of an unauthorized sale of the were only entitled to share in the surplus.- bankrupt's assets, which was duly granted, held Smith v. Township of Au Gres, Michigan (C. an affirmance of the sale.-Mason v. Wolkowich C. A.) 257.

(C. C. A.) 699; In re Mason, Id.; In re Rubin, A mortgage executed by a bankrupt to se-Id. ; Wolkowich v. Mason, Id. cure misapplication of trust funds held to con- A court of bankruptcy held authorized to comstitute a preference, which could not be en- pel the delivery of the proceeds of a sale of a forced.--Smith v. Township of Au Gres, Michi- bankrupt's assets to the trustee, under Bankr. gan (C. C. A.) 257.

Act July 1, 1898, c. 541, $ 2(7), 30 Stat. 515 [U. A court of bankruptcy may by consent ob- wich (c. c. A.) 699; In re Mason, Id.; In re

S. Comp. St. 1901, p. 3420].—Mason v. Wolkotain jurisdiction to determine a controversy be- Rubin, id.; Wolkowich v. Mason, Id.

and . cerning a debt of a third party.-In re Blake Where a receiver is directed to make a sale of (C. C. A.) 279.

assets by the court appointing him, the parties *Point annotated. See syllabus.

must recognize him as an officer of the court, A judgment of a state court of California on and the court has power to enforce the contract which an execution has been awarded under the in a summary manner.-Mason v. Wolkowich provisions of Code Civ. Proc. Cal. $ 685, more (C. C. A.) 699; In re Mason, Id.; In re Rubin, than five years after its entry, which execution Id.; Wolkowich v. Mason, Id.

was levied prior to bankruptcy proceedings In a proceeding by a bankrupt's trustee to com- against his estate, notwithstanding the fact that

against the defendant, is provable as a claim pel defendant to account for the proceeds of a an action thereon is barred by limitation under sale of the bankrupt's assets, defendant held not another section of the statute.-In re Rebman chargeable with interest.—Mason v. Wolkowich (O. C. A.) 759; Williams v. Hayes, Id. (C. C. A.) 699; In re Mason, Id.; In re Rubin, Id.; Woskowich v. Mason, Id.

Claims for property sold to receivers of a

bankrupt, which as shown by the orders of the § 6. -Actions by or against trustee. court they had no authority to buy on credit, are

A trustee in bankruptcy in an action for con- not provable against the estate.-In re Erie version of goods may join a count on his own Lumber Co. (D. C.) 817. title, and a count upon the bankrupt's title, being vested with the bankrupt's rights of action of a contract by receivers of a bankrupt is not

An unliquidated claim for damages for breach by Bankr. Act 1898, § 70a (6) 30 Stat. 565 [Ů. S. Comp. St. 1901, p. 3451), and where he provable against the estate. In re Erie Lumber counts on his own title alone, but the case has

Co. (D. C.) 817. been tried and submitted without objection, as A mortgagee of property of a bankrupt who though the declaration contained a count upon had no notice of the bankruptcy proceedings in both titles, a new trial will not be granted which the property was sold is entitled to priorbecause of a variance in that the evidence show-ity of payment from its proceeds after they have ed the title to have been in the bankrupt at contributed ratably to the payment of labor the time of conversion.-Burns y. O'Gorman Co. claims, if any, and the costs of administration. (C. C.) 226.

-In re Erie Lumber Co. (D. C.) 817. § 7. Claims against and distribu

Under Bankr. Act July 1, 1898, c. 541, $ tion of estate.

64b(3), 30 Stat. 563 [U. Š. Comp. St. 1901, p. Under Bankr. Act July 1, 1898, c. 541, $ 57n, 3447], fees of attorneys for the petitioning cred30 Stat. 561 [U. S. Comp. St. 1901, p. 3444), itors in a proceeding in involuntary bankruptcy a claim liquidated by litigation may be proved are allowable and given priority as a part of the within 60 days from the rendition of the judg- cost of administration, and such claims rank ment.-Powell v. Leavitt (C. C. A.) 89; In re next after the wages of laborers, taking preceNoel, Id.

dence of all mortgage or other liens on funds in Where a bankrupt's trustee contested a se- the hands of the court for distribution.-In re cured claim in a state court, on the ground that Erie Lumber Co. (D. C.) 817. the security constituted an invalid preference In the distribution of the assets of a bankrupt and was successful, the claim was “liquidated manufacturing corporation whose business has by litigation," and provable as an unsecured been continued by receivers under orders of the claim within 60 days after the rendition of the court of bankruptcy, wages due laborers for judgment under Bankr. Act July 1, 1898, c. 541, labor performed within three months prior to $ 57n, 30 Stat. 561 [U. S. Comp. St. 1901, p. the bankruptcy, and also under the receivership, 3444). -Powell v. Leavitt (C. C. A.) 89; In re will be given priority over all other liens or Noel, id.

claims except taxes.-In re Erie Lumber Co. (D. Where the partners of a firm borrowed money C.) 817. on their individual credit for the firm's benefit, the lender after receiving his dividend from the

$ 8.

- Accounting and discharge of firm's assets in bankruptcy was entitled to

trustee. prove the balance of his claim against the in

Where all the proceeds of a sale of a bankdividual assets of the members of the firm.- of a preferred lien thereon, it was immaterial the opposing creditor is not required to establish An interlocutory order by a court of banksuch offense beyond a reasonable doubt, a mere ruptcy granting an injunction is appealable unpreponderance of the evidence is not sufficient, der section 7 of Act March 3, 1891, c. 517, 28 but it must be sufficient to overcome the opposing Stat. 828 [U. S. Comp. St. 1901, p. 550], creatpresumptions as well as the opposing evidence.- ing the Circuit Courts of Appeals, provided the Troeder v. Lorsch (C. C. A.) 710; In re Troeder, nature of the cause or proceeding is such that Id.

the In re McCoy (C. C. A.) 106; Bowen v. Chap- that such application would deprive the trustee man, Id.

of all compensation for his services.-Smith v. *A claimant held entitled to recover money Township of Au Gres, Michigan (C. C. A.) which a bankrupt held in trust from a fund 257. which passed to the trustee in bankruptcy.Smith v. Mottley (C. C. A.) 266.

8 9. Rights, remedies, and discharge of *Whether a claimant is entitled to priority of

bankrupt. payment from a fund which passes into the bankrupt has his domicile control the exemption

*The exemption laws of the state where the that the claimant's money was held in trust be allowed in bankruptcy proceedings, as provided the bankrupt and passed into such fund, is not by Bankr. Act July 1, 1898, c. 541,' $ 6, 30 Stat. a question to be determined by the priorities 548 [U. S. Comp. St. 1901, p. 3424].-Duncan allowed under the insolvency laws of the state v: Ferguson-McKinney-Dry Goods Co. (C. C. which are superseded by the bankruptcy act. | A.) 269; McCarty v. Coffin (C. C. A.) 307. Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. On the hearing of an objection to a bankrupt's Comp. St. 1901, p. 3418].-Smith v. Mottley discharge on the ground that he has committed (C. Č. A.) 266.

an offense punishable by imprisonment, while *Point annotated. See syllabus.

the final decree therein would be reviewable by Specifications of objection to a bankrupt's dis- appeal under the provisions of such act, but charge, grounded on the alleged making of false not where it is in a "proceeding in bankruptcy" oaths by him in the course of his examination reviewable only on a petition to revise in matbefore the referee, should be specific and of such ter of law under Bankr. Act July 1, 1898, c. 541, character that their sufficiency may be tested § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. by demurrer or by exceptions analogous to those 3432]. -O'Dell v. Boyden (C. C. A.) 731. allowed in equity.–Troeder v. Lorsch (C. C. A.) A membership in the New York Stock Ex710; In re Troeder, Id.

change held property, which passed to the memEvidence considered, and held insufficient to ber's trustee in bankruptcy, notwithstanding a sustain objections to a bankrupt's discharge on prior assignment by him which rendered a prothe ground that he committed offenses punishable ceeding between the trustee and the assignee in by imprisonment by concealing assets and mak- the bankruptcy court to determine the right ing false oaths in the course of his examination. thereto a "proceeding in bankruptcy,” and an - Troeder v. Lorsch (C. C. A.) 710; In re Troe-order made therein granting an interlocutory inder, Id.

junction reviewable only on petition to revise, On the determination of an issue made by under Bankr. Act, July 1, 1898, c. 541, $ 24b, specifications of objection to the discharge of à 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432].

a v. C. ) of false oaths during his examination before the $11. Offenses against bankrupt laws. referee, it is not a question of his general truthfulness, but a question as to some specific matter ing money from his trustee, testimony to show

On the prosecution of a bankrupt for concealwhich can be framed into an issue material to that his attorney advised him to continue his the bankruptcy proceedings.-Troeder v. Lorsch business until the usual time for closing on the (C. C. A.) 710'; In re Troeder, Id.

day when the petition was filed and the adjudiUnder Code Civ. Proc. S. D. 1903, 88 346, 363, cation made is immaterial.-MeNiel v. United relating to exemptions, a bankrupt partnership States (C. C. A.) 82. is not entitled to claim an exemption.-In re Novak (D. C.) 602.

An indictment which charges that a bank

rupt unlawfully, knowingly, willfully, and fraud§ 10. Appeal and revision of proceedings. ulently concealed from his trustee certain proper

All parties aggrieved by a final decision where- ty belonging to his estate in bankruptcy carries
by a petition in bankruptcy is dismissed may with it a sufficient averment of his knowledge
join in an appeal.-Stevens v. Nave-McCord that such property belonged to his estate.-Mc-
Mercantile Co. (C. C. A.) 71.

Niel v. United States (C. C. A.) 82.
An order of dismissal of a petition in bank-
ruptcy on the ground that it does not state

BANKS AND BANKING.
facts sufficient to constitute an act of bank-
ruptcy is a "judgment refusing to adjudge the Verdict in general in prosecution for offense
defendant a bankrupt," and appealable under against banking laws, see "Criminal Law,"
Act July 1, 1898, c. 541, 30 Stat. 553, § 25a

$ 2. [U. S. Comp. St. 1901, p. 3432], though also reviewable by petition to revise under section $ 1. National banks. 24b.-Stevens v. Nave-McCord Mercantile Co. *The discounting by the president of a na(C. C. A.) 71.

tional bank with the funds of the bank of comA suit by a bankrupt's trustee to cancel a deed mercial paper known by him to be worthless or to certain of the bankrupt's property held re- fictitious, for the benefit of an insolvent corporaviewable by appeal under Bankr. Act July 1, tion, of which he is an officer, and with intent 1898, c. 541, $ 24a, 30 Stat. 553 [U. S. Comp. to. injure and defraud the bank, is a willful St. 1901, p. 3431], and not be a petition to re- misapplication of its funds, constituting a crimi vise under Act July 1, 1898, c. 541, § 25a, 30 nal offense under Rev. St. $ 5209 [U. S. Comp. Stat. 553 (U. S. Comp. St. 1901, p. 3132). - St. 1901, p. 3497].-Flickinger v. United States McCarty v. Coffin (C. C. A.) 307.

(C. C. A.) 1. A proceeding by a bankrupt's trustee to com- *In an indictment under Rev. St. § 5209 [U. pel the payment to him of the proceeds of a sale s. Comp. St. 1901, p. 3497], charging an ofof the bankrupt's assets held reviewable on ap- ficer of a national bank with a willful misapplipeal, under Bankr. Act July 1, 1898, c. 511, cation of its funds with intent to injure and $ 24a, 30 Stat. 553 [U. S. Comp. St. 1901, p. defraud the association, it is not necessary to 3431], and not by petition to review.-Mason v. aver that the acts set out were done without Wolkowich (C. Č. A.) 699; In re Mason, Id.; authority from the directors.-Flickinger v. UnitIn re Rubin, Id.; Woskowich v. Mason, Id. ed States (C. C. A.) 1.

*Point annotated. See syllabus.

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BAR.

BUILDING AND LOAN ASSOCIA-
Of action by former adjudication, see "Judg-

TIONS.
ment," $ 5.

See "Associations."
BENEFICIAL ASSOCIATIONS.

BUILDING CONTRACTS.
See “Associations."

Measure of damages for breach, see "Dam-

ages," $ 1.
BENEFITS.
Acceptance of, as ground of estoppel, see “Es-

BURGLARY INSURANCE.
toppel," $ 1.

See "Insurance," $8 5, 6.
BEQUESTS.

BUSINESS HOMESTEAD.
See “Wills.”

See "Homestead," $ 1.
BETTING.
Seo “Gaming."

CANCELLATION OF INSTRUMENTS.
BILLS AND NOTES.

See "Quieting Title"; "Reformation of In-

struments.”
Action by holder of note given by partner, 1. Proceedings and relief.
against other partner on dissolution of firm,

*On a bill in equity for the cancellation of
see "Partnership,” 8 1.
Assignment of notes as preference in bankrupt- an instrument on the ground of fraud, the com-
cy, see "Bankruptcy," $ 4.

plainant cannot ordinarily maintain his case
Marshaling notes secured by lien, see "Marshal- by his own testimony alone or by a mere pre-

ponderance of evidence, but must satisfy the
ing Assets and Securities."

court that he is entitled to the relief asked.-

Marsh v. Cortis (C. C. A.) 121.
BONDS.

CARGO.
Effect of assignment of, see “Assignments,"
$ 2.

See "Shipping."
Importers' bonds, see "Customs Duties," $ 4.
Sureties on bonds, see "Principal and Surety."

CARRIERS,
United States contractors' bonds, see "United
States," 1.

Carriage of goods by vessel, see “Shipping,”

$ 3.
Bonds for performance of duties of trust or Jurisdiction of federal circuit court to compel
office.

carrier to live up to contract, see "Courts,"
Indian agents, see "Indians.”

$ 1.
Bonds in judicial proceedings.

Regulations of interstate commerce, see "Com-

merce," $ 1.
See "Appeal and Error," $ 3; "Bail."

Restraining brokers from dealing in railroad
Involuntary bankruptcy proceedings, see "Bank- tickets, see "Injunction," $ 1.
ruptcy," § 2.

§ 1. Control and regulation of common

carriers.
BREACH.

*Under S. D. Rev. Civ. Code 1903, § 1577,

an express company offering to carry money for
of condition, see "Insurance," 8$ 2, 3.

hire held a common carrier thereof.-Platt v. Le
Of contract, see "Contracts," $ 3.

Cocq (C. C.) 391.
Of covenant, see "Insurance," $ 3.
of warranty, see “Insurance," $ 3; “Sales,” obligation to obey an order of the railroad com-

It was no answer to an express company's
88 1, 2.

mission requiring it to receive money packages
BROKERS.

for transportation at reasonable hours that ship-

pers could send their money by mail, and were
See "Principal and Agent.”

not therefore prejudiced by the express com-
Validity of contract of brokers for sale of land, able hours.-Platt v. Le Cocq (C. C.) 391.

pany's rule requiring shipment at unreason-
see "Vendor and Purchaser," $ 1.

Where an express company held itself out as

a common carrier of money, it was bound to
BUCKET SHOPS.

comply with an order of the railroad commis-

sioners requiring it to receive packages of mon-
See "Gaming," $ 1.

ey on the day preceding actual shipment, though
*Point annotated. See syllabus.

I

such compliance would result in loss to the ex- the carriers named in the information.-United press company.-Platt v. Le Cocq (C. C.) 391. States v. Camden Iron Works (D. C.) 214.

Under S. D. Rey. Pol. Code 1903, c. 7, regu- The provision of Act Feb. 19, 1903, c. 708, lating common carriers, an express company, $ 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, whether incorporated or not, doing business p. 599], that in a prosecution of a carrier therewithin that state, held subject to the control under for giving a rebate any rate filed with and regulation of the board of railroad commis- the interstate commerce commission by it, or in sioners.-Platt v. Le Cocq (C. C.) 391.

which it participates, “shall be conclusively Under S. D. Rev. Civ. Code 1903, $ 1578, and carrier, its officers or agents, merely prescribes

deemed to be the legal rate” as against such Pol. Code 1903, c. 7, $ 437, a rule of an express the effect to be given such rate as evidence company requiring delivery of money for trans- against the carrier, and does not affect its portation on the day of shipment before 6:30, 7, admissibility against a shipper who is being or 7:15 a. m. held unreasonable, and that the tried for receiving a rebate. - United States v. board of railroad commissioners was authorized Camden Iron Works (D. C.) 214. to require acceptance of such packages during reasonable business hours on the day preceding & 2. Carriage of goods. shipment.-Platt v. Le Cocq (C. C.) 391.

A railroad company held liable for a loss of S. D. Pol. Code c. 7, § 437, held only to pro- cotton delivered to a compress company on its hibit the subjection of any person, etc., or any account by a connecting carrier on evidence particular description of traffic by a common tending to show that such delivery was in accarrier to an unreasonale prejudice or disad-cordance with the usual course of business bevantage.-Platt v. Le Cocq (C. C.) 391.

tween the two carriers, and that it was defend

ant's custom to accept such delivery as delivery Where a federal court had jurisdiction of the to itself; it having a contract with the comparties and subject matter in a proceeding to press company to compress cotton received for restrain the enforcement of an order of the state shipment and load it in defendant's cars. railroad commission, the court had power to Southern Ry. Co. v. Hubbard Bros. & Co. (C. pass a decree for the enforcement of such regu- C. A.) 312. lation notwithstanding S. D. Pol. Code 1903, c. 7.-Platt v. Le Cocq (C. C.) 391.

CAUSE OF ACTION. Act Cong. June 29, 1906, 88 2, 6, 34 Stat. 584, c. 3591), held not to invalidate a previously see "Action." existing contract between complainants and an interstate carrier, based on a sufficient consideration, by which the carrier agreed to issue

CERTIFICATE. to complainants free transportation over its lines for life.-Mottley y. Louisville & N. R. Certificate of citizenship, see “Aliens," $ 2. Co. (C. C.) 406.

Receiver's certificate on continuing business of

bankrupt, see "Bankruptcy," § 2. An information against a shipper for receiving rebates in violation of Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St.

CERTIORARI. Supp. 1905, p. 599), held to sufficiently charge that the several carriers engaged in the trans- To compel correction of record on appeal, see portation of the property were used under a "Appeal and Error," $ 4. common control management or arrangement within the meaning of section 1 of the interstate commerce law (Act Feb. 4, 1887, c. 104,

CHANCERY. 24 Stat. 379 [U. S. Comp. St. 1901, p. 31541). See "Equity.” -United States v. Camden Iron Works (D. C.) 214.

CHARGE. In a prosecution for receiving rebates in violation of Act Feb. 19, 1903, c. 708, 32 Stat. To jury in civil actions, see “Trial," $ 2. 847 [U. S. Comp. St. Supp. 1955, p. 599), evidence held admissible to show that the several

CHARITIES. connecting carriers were used under a common control or arrangement for a continuous shipment, and to show the lawful rate.- United $1. Creation, existence, and validity. States v. Camden Iron Works (D. C.) 214.

*Under the laws of West Virginia, a devise in

trust for the benefit of an association of inIn a prosecution under Act Feb. 19, 1903, c. dividuals who are unnamed and who cannot be 7708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, known is void for uncertainty whether it be p. 599), for receiving rebates on a shipment of regarded as a devise or bequest of personalty. property alleged to have been made from Phila- - Miller v. Ahrens (C. C.) 644. delphia as the initial point to Winnipeg in the Province of Manitoba, it is immaterial that the shipment in fact originated in Camden, N. J.,

CHARTER PARTIES. where the property was lightered across the river to Philadelphia, and there delivered to see "Shipping,” $ 1.

*Point annotated. See syllabus.

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