22 Re Chaplin, 115 Fed. 162. But see Crowder v. Allen-West Commission Co., 213 Fed. 177.

23 Pond v. New York Nat. Exch. Bank, 124 Fed. 992; Re Plant, 148 Fed. 37; Wall v. Cox, 101 Fed. 403; Off v. Hakes, 142 Fed. 364; Parker v. Black, 151 Fed. 18; Mason v. Herkimer County Bank, 163 Fed. 920; Parker v. Sherman, C. C. A., 212 Fed. 917; Taylor v. Fram, 243 Fed. 735. See Parker v. Black, 143 Fed. 560; Kaufman v. Tredway, 195 U. S. 271, 49 L. ed. 190. Contra, Warmath v. O'Daniel, C. C. A., 159 Fed. 87; First State Bank v. Spencer, C. C. A., 219 Fed. 503; Simpson v. Western Hardware & Metal Co., 227 Fed. 304; Plumb v. Lyell Ave. Lumber Co., 202 N. Y. 617; Allen v. Gray, 201 N. Y. 504, a suit to set aside fraudulent transfers under $70; Reber v. Ellis Bros., 185 Fed. 313.

24 Re Knickerbocker, 121 Fed. 1004. See §§ 610, 635, Supra. The trustee's right to recover property transferred by the bankrupt as a preference is not assignable. Lovell v. Latham & Co., 211 Fed. 374. But in a proper case creditors may be authorized to sue in the trustee's name at their own expense with the right to indemnity out of any property that may be recovered. It has been held that before the election of a trustee, such a suit may be instituted by a creditor; and that, in such case, the trustee upon his election should be made plaintiff in the same. Frost v. Latham

& Co., 181 Fed. 866. See supra, § 643. The trustee need not obtain judgment before beginning such a suit. Davis v. Gates, 235 Fed. 192; Sherwood v. Holbrook, 178 N. Y. App. Div. 462. No previous demand by the trustee is required before a suit to recover a preferential payment. Kaufman v. Tredway, 195 U. S. 271, 49 L. ed. 190; Wright v. Skinner, 136 Fed. 694. As to a demand held to be sufficient, see Grant v. National Bank of Auburn, 197 Fed. 581. For cases where such a suit was held not to be an election that prevented the trustee from afterwards pursuing another remedy, see Rock Island Plow Co. v. Reardon, 222 U. S. 354, 56 L. ed. 231, § 368, supra. Contra, Re Hurst, C. C. A., 194 Fed. 830. Where the preference was made by the sale of property for less than its value, the trustee may recover the surplus without a previous tender of the purchase money. Stern v. Louisville Trust Co., C. C. A., 112 Fed. 501. The trustee may join in the same suit, a claim to set aside a fraudu lent transfer of property and one to recover back a preferential payment. French v. R. P. Smith & Sons, 81 Minn. 341. See note 12, supra. The bill must contain four essential allegations: (1) that the bankrupt was insolvent when the alleged preference was given; (2) that it was within four months prior to the institution of the bankruptcy proceedings; (3) that the effect of the endorsement of the judgment or

transfer, or the retention of the property or money, as the case may be, will be to enable the defendant to obtain a greater percentage of his debt than any other creditor of the same class; and (4) that defendant had reasonable grounds to believe that a preference was intended. Painter v. Napoleon Tp., 156 Fed. 289; Re Sanger, 169 Fed. 722; Watson v. Adams, C. C. A., 242 Fed. 441; Hoshaw v. Cosgriff, C. C. A., 247 Fed. 22. But it has been held that when the trustee sues to enjoin the enforcement of a judgment recovered within the statutory four months he need not allege that the judgment creditor at the time of its entry had reasonable cause to believe that its enforcement would effect a preference. Re Petersen, C. C. A., 200 Fed. 739. It has been held that the bill need not allege the intent of the bankrupt in making the payments. Cohen v. Goldman, C. C. A., 250 Fed. 599. It seems that a trustee is not required to make any tender in his bill of complaint. Stern v. Louisville Trust Co., C. C. A., 112 Fed. 501; Dreyer v. Kicklighter, 228 Fed. 744. But the defendant will be allowed any credit to which in equity he is entitled. Ibid. Toof v. City Nat. Bank of Paducah, Ky., C. C. A., 206 Fed. 250. Woodford v. Rice, 207 Fed. 473. The complaint was held to be demurrable when it failed to show the amount of the preferred and unsecured claims. Grant v. National Bank of Auburn, 197 Fed. 581. In a suit to set aside a preference obtained by the confession of a judgment and the purchase of property at an execution sale, subject to prior judgments which were paid, the trustee in bankruptcy need not make

the sheriff nor the holders of the prior judgments parties, unless they are charged to have been guilty of misconduct in connection with the transaction. Ibid. The plaintiff need not plead, nor offer evidence, that claims have been proved against the estate of the bankrupt, but he should plead and offer evidence to show that the bankrupt is indebted to general creditors. Gering v. Leyda, C. C. A., 186 Fed. 119. Cf. Miller v. New Orleans, A. & F. Co., 211 U. S. 496, 505. The burden of proof is upon the trustee to establish the facts which constitute a preference. Pyle v. Texas Transport & Terminal Co., 238 U. S. 90; Angle v. Bankers' Surety Co., C. C. A.; Mayes v .Palmer, C. C. A., 208 Fed. 97; Baxter v. Ord, C. C. A., 239 Fed. 503. But see Winslow v. Staab, 233 Fed. 305. But when the defendant claims to be a purchaser he has the burden of proving that he paid a valuable consideration. Owens V. Daniel, C. C. A., 230 Fed. 101; Watson v. Adams, C. C. A., 242 Fed. 441; Woodford v. Rice, 207 Fed. 473. See Klinger v. Hyman, C. C. A., 223 Fed. 257; and when the preference charged is an application of firm assets to payment of individual debt of a partner the burden is on the defendant to prove that the other partner consented. Ryan v. Cavanagh, C. C. A., 238 Fed. 604. A previous ruling in the bankruptcy proceedings will be regarded as the law of the case and will usually be followed in an independent suit in equity. Lewis v. Julius, 212 Fed. 225. In such a suit, the creditor is precluded by the adjudication, in so far as it determines that the bankrupt committed an act of bankruptcy within four months prior to

the filing of the petition, Cook v. Robinson, C. C. A., 194 Fed. 785. The fact that a debtor was adjudged a bankrupt on the ground that a chattel mortgage was a preference and an act of bankruptcy does not affect the mortgage in an action to set aside the same as a preference, Hussey v. RichardsonRoberts Dry Goods Co., C. C. A., 148 Fed. 598. A judgment or order of a referee disallowing a claim against the bankrupt's estate on the ground that the claimant had received a preference is res adjudicata and admissible in evidence in a subsequent suit by the trustee to recover the preference, Ullman, Stern & Krausse v. Coppard, C. C. A., 246 Fed. 124. An order directing that the proceeds of a sale be paid into court to await the final decree does not estop the trustee from suing to set aside the sale as fraudulent, Faulkner v. Kaplon, 203 Fed. 114. It was held that the dismissal of a bill to set aside a preference by a firm, because of the failure to prove that the individual partner as well as the co-partnership were insolvent, was res adjudicata against a subsequent suit for the same relief alleging the insolvency of both the firm and its individual members, although the former bill did not contain the latter allegation. Worrell v. Kemmerer, C. C. A., 192 Fed. 911. The fact that a transfer is set aside as fraudulent does not deprive the defendant of the right to participate in the proceeds of the sale of the property recovered, so far as concerns a debt incurred previous to the execution of the fraudulent conveyance and not connected with the sale. Re Hurst, 188 Fed. 707. The defendant cannot set off the amount of

any dividend to which he would be entitled from the estate of the bankrupt, Templeton v. Kehler, 173 Fed. 574; Ommen v. Talcott, 175 Fed. 259; and the day of judgment will not be postponed until he has proved his claim and the dividend has been declared, Templeton v. Kehler, 173 Fed. 574. The fact that creditors have filed their claims and taken part in the election of the trustee does not estop them from asserting their right to attack a preferential transfer. International Silver Co. v. N. Y. Jewelry Co. C. C. A., 233 Fed. 945. Extreme insolvency at the time the petition is filed unless shown to arise in the absence of evidence to the contrary justifies the inference that it existed during the preceding four months. McGill v. Commercial Credit Co., 243 Fed. 637. Evidence of statements made by the bankrupt subsequent to the transfer is usually inadmissible against another defendant, First State Bank v. Lowry, C. C. A., 227 Fed. 846. Roseman v. Coppard, C. C. A., 228 Fed. 114. Evidence of previous transactions between the parties is usually inadmissible as irrelevant, Hanck v. Frey, 228 Fed. 779. As to the charge to the jury in such a case see Campbell v. Krauss, C. C. A., 249 Fed. 670. In a suit to set aside a sale where the property sold had deteriorated in value its value at the time of the sale was adopted as the basis of the decree. Dreyer v. Kicklighter, 228 Fed. 744. But where it was agreed by the receiver or trustee that the defendant should hold the property pending the litigation it was held that such defendant was liable only for such property and not for its value

same, may be cured by amendment. Re Medina Quarry Co., 179 Fed. 929; Re Stradley & Co., 187 Fed. 285. It is too late to make such an objection after the claimant has voted. Re Stradley & Co., 187 Fed. 285.

2 The signature may be made in the owner's name by his agent, J. & S. Ferguson v. Lyle, C. C. A., 267 Fed. 817; attorney or proxy, Re H. E. Ploof Machinery Co., 243 Fed. 421; but it has been held that an attorney should not sign several proofs of claims for different persons. Ibid. The father of a minor may prove a claim for the latter's wages. Re Haskell, 228 Fed. 819. Where an agent proves a claim in his own name without disclosing the fact that he is acting for another the proof may be disallowed as false, Re Collins, 235 Fed. 937. It seems that a creditor cannot be compelled to prove his claim, Re Kligerman, 219 Fed. 258; a claim may be presented in the name of the real party in interest although he is not the owner at common law. Re Worcester County, C. C. A., 102 Fed. 808. If the claim has been assigned before bankruptcy, the assignee should make the proof in his own name. Re Worcester County, C. C. A., 102 Fed. 808. This is the case although the assignment was made as collateral security. Re Am. Specialty Co., C. C. A., 191 Fed. 807. An assignment of a claim gives the assignor any right of intervention which was held by the assignor, Re Fitzgerald, 191 Fed. 95. The bankrupt may prove against himself, a claim, which he holds in a representative capacity, Warner

v. Spooner, 3 Fed. 890.

Ordinarily a claim for a deficiency after the foreclosure of a mortgage to a trustee for the benefit of bondholders should be made by the latter and not by the former. U.S. Tr. Co. v. Gordon, 216 Fed. 929; Re A. J. Ellis, Inc., C. C. A., 252 Fed. 483; affirming 242 Fed. 156. A claim may be proved by the next friend of a creditor who is non compos mentis although not actually insane, Re Kronberg, 208 Fed. 203. The true owner of a claim is not estopped from proving it because it was previously proved by another to whom it did not belong, Re Dunlap Carpet Co., 206 Fed. 726; Assets Realization Co. v. Sovereign Bank of Canada, C. C. A., 210 Fed. 156; Re Louis J. Bergdoll Motor Co., 230 Fed. 248.

3 By General Order XXI, as amended Nov 1, 1915. "1. Depositions to prove claims against a bankrupt's estate shall be correctly entitled in the court and in the cause. When made to prove a debt due to a partnership, it must appear on oath that the deponent is a member of the partnership; when made by an agent, the reason the deposition is not made by the claimant in person must be stated; and when made to prove a debt due to a corporation, the deposition shall be made by the treasurer, or, if the corporation has no treasurer, by the officer whose duties most nearly correspond to those of treasurer; if the treasurer or corresponding officer is not within the district wherein the bankruptcy proceedings are pending, the deposition may be made by some officer or agent of the corporation having knowledge