Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

up matters of fact shall be verified under oath."7 "If it be averred in the petition that the creditors of the bankrupt are less than twelve in number, and less than three creditors have joined as petitioners therein, and the answer avers the existence of a larger number of creditors, there shall be filed with the answer a list under oath of all the creditors, with their addresses, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition and shall delay the hearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed." 8 § 631. Warrants of seizure. "A judge may, upon satisfactory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the

Nor in case of voluntary bankruptcy the motive of the petitioner, Re Hargadine-McKittrick Dry Goods Co., 239 Fed. 155. A plea was held to be sufficient which set forth that, since the institution of the proceeding, two of the petitioners had colluded to compel the respondent to pay the claim of the third, and that that reduced the number of petitioners to less than was required to sustain the jurisdiction. Cummins Grocer Co. v. Talley, C. C. A., 187 Fed. 507. An answer signed in the name of a corporation by its president is presumed to be filed by the authority of the corporation; and it has been held that none but the corporation, its stockholders and its creditors can claim that it was not

authorized. Re Columbia R. E. Co., 101 Fed. 965.

730 St. at L. 544, § 18c, where the petition is verified upon information and belief a similar verification may be annexed to the answer. Lackawanna Leather Co. V. La Porte Carriage Co., C. C. A., 211 Fed. 318. It was sufficient when the notary wrote after the signature of the petitioners and before his official signature and seal, "subscribed and sworn to before me this 22nd day of August, 1914." Ogden v. Gilt Edge Consol. Mines Co., 225 Fed. 723.

8 30 St. at L. 544, 551, § 59d. As to amendments to answers, see Re Cleary, 179 Fed. 990; Re Harris, 155 Fed. 216.

petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained. Such property shall be released, if such bankrupt shall give bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to turn over such property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such petition." 1 "Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or applicant shall file in the same court a bond with at least two good and sufficient sureties who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt."2 Upon the receipt of the certificate of the clerk stating that the judge is absent, the referee may issue such a warrant. It has been said that such an application is a proceeding in bankruptcy and not a controversy in law or equity. The proceedings should be instituted by a petition, which should be a separate petition from that for the adjudication in bankruptcy.6 It must be supported by an affidavit containing satisfactory proof of the act of bankruptcy

5

§ 631. 130 St. at L. 544, § 69. Property claimed adversely, while in the possession of the bankrupt, may be thus seized, although he claims to act as agent or custodian of the adverse claimant. Re Bender, 106 Fed. 873; Re Moody, 131 Fed. 525. It has been held that property, which is in the actual possession of an adverse claimant, may thus be seized. Re Knopf, 144 Fed. 245.

Contra, Re Rockwood, 91 Fed. 363;
Re Kelly, 91 Fed. 504; Beach v.
Macon Grocery Co., C. C. A., 116
Fed. 143; Lee Master v. Spencer, C.
C. A., 203 Fed. 210.

230 St. at L. 544, § 3e.

3 Re Knopf, 144 Fed. 245, 246.
4 Re Knopf, 144 Fed. 245.
5 Re Knopf, 144 Fed. 245.
6 Re Kelly, 91 Fed. 504.

and the neglect and danger of deterioration of the property which it is sought to seize. It has been held that, in a suit in equity by a trustee in bankruptcy, the court may issue a writ of sequestration to prevent the removal of the property from the district, where the case does not warrant the appointment of a receiver.8

§ 632. Arrest of bankrupt. "The judge may, at any time after the filing of a petition by or against a person, and before the expiration of one month after the qualification of the trustee, upon satisfactory proof by the affidavits of at least two persons that such bankrupt is about to leave the district in which he resides or has his principal place of business to avoid examination, and that his departure will defeat the proceedings in bankruptcy, issue a warrant to the marshal, directing him to bring such bankrupt forthwith before the court for examination. If upon hearing the evidence of the parties it shall appear to the court, or a judge thereof, that the allegations are true and that it is necessary, he shall order such marshal to keep such bankrupt in custody not exceeding ten days, but not imprison him, until he shall be examined and released or give bail conditioned for his appearance for examination, from time to time, not exceeding in all ten days, as required by the court, and for his obedience to all lawful orders

Re Kelly, 91 Fed. 504. It has been held that an application supported merely by the affidavit of the bankrupt, stating that he waived proof of these facts and waived the required bond and consented to the issue of the warrant, was insufficient. Re Sarsar, 120 Fed. 40. The bond protects only the respondents to the application. Re Spalding, C. C. A., 150 Fed. 120. If any person subsequently becomes respondent to and desires to be protected, he must move for an additional bond. Re Spalding, C. C. A., 150 Fed. 120. The costs, counsel fees and other damages covered under the bond are only those which

are strictly incident to the seizure. Selkregg v. Hamilton Bros., 144 Fed. 557. Counsel fees for resisting the petition for bankruptcy are not allowed. Re Smith, 113 Fed. 993. Where the property is not seized, but its removal is enjoined, counsel fees are not allowed upon any bond given to secure such injunction. Re Hines, 144 Fed. 147; supra, § 328. Search of a third person's premises is only permitted as regards specific property charged to belong to the bankrupt. Re Iron Clad Mfg. Co., 193 Fed. 781.

8 Horskins v. Sanderson, 132 Fed. 415.

made in reference thereto."1 "Whenever a warrant for the apprehension of a bankrupt shall have been issued, and he shall have been found within the jurisdiction of a court other than the one issuing the warrant, he may be extradited" from one district within which a District Court has jurisdiction to another. This does not authorize the extradition of a bankrupt, who removed from the district more than four months before the beginning of the proceedings in bankruptcy, nor the issue of a warrant to serve as a basis for such extradition.3 The warrant of arrest, authorized by these statutes, is analogous to the writ of ne exeat. It has been held that a writ 5 or order, in the nature of a ne exeat, may also be issued. This is the better practice when there is danger of the bankrupt's absconding with assets.7 It has been held that the warrant of arrest need not state that the bankrupt is to be brought before the court for examination. It should be issued upon a sworn petition setting forth the necessary facts.

1

§ 633. Injunctions in aid of bankruptcy proceedings. The Bankruptcy Act authorizes courts of bankruptcy to "make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act." The provision of the Revised Statutes forbidding injunctions to stay proceedings in a court of a State expressly excepts "cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." 2 "A suit which is founded upon a

§ 632. 130 St. at L. 544, 549, § 9.

230 St. at L. 544, 549, § 10a.

8 Re Hassenbusch, C. C. A., 108 Fed. 35.

4 Re Hassenbusch, C. C. A., 108 Fed. 35, 38. This writ is described supra, §§ 326-328. See § 471.

5 Re Cohen, 136 Fed. 999; Re Berkowitz, 173 Fed. 1012.

6 Re Lipke, 98 Fed. 970.
7 Re Lipke, 98 Fed. 970, 971.
8 Re Lipke, 98 Fed. 970.

9 Re Lipke, 98 Fed. 970.

§ 633. 130 St. at L. 544, as

amended 32 St. at L. 279, 34 St. at L. 267, 36 St. at L. 838.

2 U. S. R. S., § 720. See supra, §§ 268, 270. No injunction will be granted to restrain the prosecution of his suit in which the bankrupt's estate has no interest. Re Federal Biscuit Co., C. C. A., 203 Fed. 37; Re Interocean Trans. Co., 232 Fed. 408; Re Buchanan, C. C. A., 219 Fed. 492. See Re Bittle, 239 Fed: 191. In a single case, it was held that a Court of Bankruptcy might, before a petition in bankruptcy was filed, issue an in

claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined."

junction to preserve the status quo until the filing of such petition. Blake v. Francis-Valentine Co., 89 Fed. 691. But see Re Ogles, 93 Fed. 426. It has been held that a State court cannot grant such an injunction. Victor v. Lewis, 38 App. Div. (N. Y.) 316, 1 Am. B. R. 667; Clothing Co. v. Hazle, 126 Mich. 262, 6 Am. B. R. 265; Ellis v. Hays Saddlery & Leather Co., 65 Kan. 174, 8 Am. B. R. 109. It seems that this doctrine does not prevent the issue if such an injunction in a suit where the State or Federal court has jurisdiction upon other grounds. Remington on Bankruptcy, § 917.

3 Ibid., § 11, subd. a.; Re Mustin, 165 Fed. 506; Re Nuttal, 201 Fed. 557; Re Dunfee, 206 Fed. 745; Orinoco Iron Co. v. Metzel, C. C. A., 230 Fed. 40. A Court of Bankruptcy has jurisdiction: to determine whether a debt is of such a character as is released by a discharge in bankruptcy; and to grant an injunction against a prosecution in a State court pending bankruptcy proceedings to collect such a debt; and to enjoin the execution of process issued before or after judgment in such a suit, Knott v. Putnam, 107 Fed. 907. Where it is doubtful whether the claim is dischargeable in bankruptcy, an action to enforce it should be enjoined until

Between the time of the filing

the right to a discharge is determined in order that the bankrupt may have an opportunity to plead the discharge if granted, Re Nuttall, 201 Fed. 557. Where the pleadings show a dischargeable debt the injunction cannot be vacated upon affidavits showing that it was not dischargeable. Re Lusch, 251 Fed. 316. See Re Lusch, 251 Fed. 316. A fine imposed by a State court for a civil contempt is not dischargeable, and proceedings to enforce it cannot be enjoined, Re Penn Development Co., 220 Fed. 222; People ex rel. Otterstedt v. Sheriff of Kings County, 206 Fed. 566, although if the injunction was void because it infringed a Federal right, the contemnor might be released by habeas corpus. See supra, §§ 461-461e. Where it is necessary in order to enforce security not affected by the bankruptcy proceedings, the creditor will be allowed to proceed to judgment, although he may be enjoined from enforcing this except against such security. Re Mercedes. Import Co., C. C.-A., 166 Fed. 427; Re Maaget, 173 Fed. 232; Remington Automobile & Motor Co., 119 Fed. 441. The court refused to enjoin the enforcement of an interlocutory judgment directing a bankrupt to account for the infringement of a patent which had been entered prior to his adjudica

« ΠροηγούμενηΣυνέχεια »