Сн. 18. 13. Parsons C. J., in giving the opinion of the court ob served, that "by the English statutes of bankruptcy, it seems to be settled, that no debt can be proved, the amount of which must be ascertained by a jury," as they do not provide for a jury "to decide between a creditor and the assignees :" but the act of Congress does provide for such a jury, if either stranger, they may,by parol, party require it; hence this debt could be demanded against prove the day the bankrupt's estate Trover by assignees against a on which the act of bank ruptcy was committed. 2 Day's Ca. 246. 2 Mass. R. 375, Jones Williams trustee. § 14. In a bankrupt case, after the creditor's demand was proved, and after a dividend paid, the assignee endorsed on the notes that formed the demand, "I will be accountable to bearer of this note for the benefit of the creditors of S. G." (creditors of the bankrupt) "in proportion to their respective v. Gorham, & demands on him, for such dividend thereof, as may hereafter be decreed by the commissioners on the within estate, to be paid by me as assignee." Held, the assignee was still trustee of such creditor. The debt was due from Samuel Rogers to said Gorham on two promissory notes. Williams was sole assignee of Rogers; his first dividend was ordered December 5, 1803, and Gorham's proportion was paid by Williams, assignee; second dividend was ordered July 9, 1805, Gorham's part was $450, which Williams had advanced to him October 18, 1804, and took his promissory note for it, payable July 6, 1805, with interest. Gorham agreed this dividend was to pay his note. Williams, January 23, 1805, signed said memorandums of said notes at the request of Gorham. January 25, 1805, Williams was summoned as trustee of Gorham; Williams had received monies, and had claims as such assignee, for a third dividend not declared; of this he was trustee, though Gorham had, February 27, 1805, by indenture, assigned over his estate to his creditors, and the case was held not to come within the 12th section of the trustee act. Moseley's R. 28, 79, 80. 9 Mass. R. 337, 359, Dawes J. v. Boylston. 7 Mass R. 213, Livermore, assignee & al. . Swasey. 15. A bond payable at a future day on a contingency, cannot be proved before the commissioners till the contingency happens; but if a bond on a contingency becomes due before all the effects are divided, the obligee shall come in as a creditor to what remains to be divided. And joint creditors shall first be paid out of the joint estate, and separate creditors out of the separate estate, but each shall come in for any surplus of either. 16. The assignees of a bankrupt in England cannot recover, in the courts in Massachusetts, a debt due to the bankrupt, in their own names. 17. In a writ of entry brought to recover land, formerly a bankrupt's, by his assignee, held, the judgment of the district court, founded on verdict, that he had committed an act of bankruptcy pursuant to the 52d section of the bankrupt CH. 18. law, was final on the question, as to all the creditors coming Art. 3. in under the commission or not. 18. Assumpsit was originally brought by Charles Paine, 8 Mass. R. the deft's. intestate, as he was assignee of W. P. Smith, a bank- 521, Hall v. Cushing rupt. The intestate dying, pending the action, the deft. was admr. admitted to defend it. Held, it did not survive against the administrator of such assignee. This was a special action for monies paid by a surety on a custom house bond; Paine had paid half, and averred he had effects of Smith's to pay the bond. The administrator pleaded the general issue, also, that Paine's estate was insolvent, and shewed how. Plt. demurred to the second plea in bar. 19. Assumpsit; plea in bar, a discharge as a bankrupt. 10 Mass. R. Held, that nothing arising under a commission of bankruptcy 23, Whitney can protect the bankrupt but a certificate of discharge. v. Crafts. 226, Jenkins $20. Of Pleading a discharge. This was debt on a judg- 10 Mass. R. ment recovered May 1803, by the plt., and one W. Jenkins, v. Stanley & whom the plt. had survived, against the deft. The deft., Ca- al. leb Stanley, plead in bar that April 13, 1803, he became a bankrupt, (within the act of Congress &c.,) that such proceedings were had before the commissioners &c.; that May 30, 1803, they gave him a certificate of discharge from all debts &c. that a majority of his creditors, in number and value, consented the commissioners should sign and seal it; that the District Judge June 6, 1803, allowed and confirmed it, and made a profert of it. Plt. replied, that when said Caleb was supposed to become a bankrupt, "he was not actually using the trade of merchandise, by buying and selling, in gross or by retail, or dealing in exchange, or as a banker, factor, or underwriter, or marine insurer," " and that John Eggleston, the petitioning creditor, on whose sole petition the proceedings were had, was not a bona fide creditor of the said Caleb, to the amount of $1000, but his pretended debt was, without consideration, and made by fraud and collusion, between him and the said Caleb, for the purposes of enabling him to obtain a certificate of discharge, in pursuance of the said statute;" and so the plt. said it was obtained unfairly, and by fraud and collusion &c. Said Caleb rejoined, that when &c., he was actually using the trade of merchandise, as a grocer; that J. E. was a bona fide creditor for a good and valuable consideration, and that said discharge was fairly obtained, and not by fraud &c. Issue joined, and verdict, "that the certificate of discharge by the said Caleb, in the plea aforesaid mentioned was obtained fairly, and not of his own fraud, and by collusion with others, as by the plt's. replication is alleged." Plt. moved for judgment, or a repleader, because said Caleb had not pleaded 1 Bos. & P. Mawson. the general issue, nor set forth in his plea all the material facts necessary to discharge him by the statute of the U. S. therein mentioned, and whether the certificate was obtained by fraud or not, was immaterial. Jackson J. delivered the opinion of the court, noticed the thirty-fourth section of the statute authorized the general issue; only one in this action, on a judgment, was nul tiel record, not triable by jury. Hence the deft. could not avail himself of the privilege of the statute. He must of course plead specially the matter relied on for his discharge, and the sufficiency of his plea must be decided by the rules of the common law. Had been clearly bad on demurrer, but cured by the subsequent pleadings and verdict. The replication was calculated to impeach the certificate, on the ground of fraud, and stated several facts to that purpose, so confessed, and avoided, &c., admitting every fact substantially stated in the bar; repeated the facts it averred, and observed, "all this could not be true, unless certain other facts also existed," and stated them, and inferred, on sound principles in pleading, the facts stated in the plea in bar, and those necessarily implied made a good defence. "The certificate is primâ facie evidence of all the proceedings precedent to obtaining it ;" and provides a verdict shall pass for the deft., unless the plt. can in his action prove that the certificate was obtained unfairly and by fraud &c. Not to be supposed the plt. meant to reply "several distinct and independent facts," so make his replication double, and which, if traversed would have been proved by the certificate. The rejoinder traversed the only material averment, viz., "the fraud in obtaining the certificate;" this is found for the deft; so the verdict decides the only material fact on these pleadings, so no repleader. Judgment for the defts. over. 21. Composition with creditors. Those of a bankrupt 286, Stork v. agreed, by deed, to receive 8s. in the pound, and release all One creditor had two distinct debts due from him, for one of which he held bills to the amount, and received his dividend of 3s. on both, and then recovered the full value of some of the bills. Held, this he recovered to the bankrupt's use. Though a parol acceptance of Ss. in the pound cannot be pleaded, yet when by deed it may; and Buller J. said, this creditor might have taken 8s. in the pound on one debt, and viewed the other as paid by the bills, but he did not take this course. A bankrupt's intention in preferring a creditor is for the jury to consider. 6 Taun. R. 539. 4 D. & E. 22. One insolvent assigned over his effects for the benefit 166, Jackson of the creditors, and it was provided in the deed, the shares of the creditors who should not execute it before a day named, should be paid by the trustee to the insolvent. An agreement v. Lomas. made between him and such an after creditor, after the day, that if he signed the deed he should be paid his whole debt, is fraudulent and void. CH. 18. Art. 3. States v. $23. The United States cannot have an action for money 3 Cranch had and received against a bankrupt's assignees, for the price 337, 356, U. of a ship sold by them, as his property, who had got a register Grundy & by a false oath, the United States never having seised the ship al. for the forfeiture before his sale and transfer ; nor elected the forfeiture, and not the value. 24. The bankrupt laws of a foreign nation cannot work a 5 Cranch legal transfer of property in the United States. Harrison v. 290. Sterry. Tho's. the firm of 25. T. & H. Moore, partners in trade, owed a debt to 5 Cranch 34. Jno. & Jam. Tucker. T. Moore became a bankrupt, and Ox-J. & J. Tucker, plts. ley, his assignee, brought assumpsit against J. & J. Tucker. in error, v. Non assumpsit pleaded. Verdict for Oxley for $143 38, Oxley, assubject to the opinion of the court. Before the Moores dissolv- signee of ed partnership they became indebted jointly to J. & J. Tuck- Moore, a er in $106 49; and after they dissolved, J. & J. Tucker be- bankrupt of came indebted to T. Moore in $113 12, the debt his assignee T. & H. sued for. Held, J. & J. Tucker might set off their debt, Moore, £106 49, against T. & H. Moore, against T. Moore's sepa- Ch.56, a. 6, rate debt, $113 12, against J. & J. Tucker. 2. Such off-set could not have been made at law, independent of our bankrupt law. 3. A debt jointly owed by the bankrupt and his partner, may be off-set against a debt owed to the bankrupt separately, and may be proved under a separate commission against him; 4. And a full dividend received. 5. Equity alone restrains the joint creditor from receiving his full dividend, until the joint effects are exhausted. 193, 210, on 26. The deft. pleaded the endorser's bankruptcy, in bar of 3 Cranch, the action. Held, the plt. might reply the note was given to Wilson v. the endorser in trust for the plt. Joint debt set off against a Codman, separate claim, 5 Cranch 34. The averment a promissory the law of note is endorsed for value received, is immaterial, and need Virginia. not be proved, Wilson v. Codman. Many cases in which one may be a bankrupt, as a shoemaker &c., or not, see Bac. Abr. ; Am. ed., title Bankrupt. v. Pierpont. $27. Bankrupts, how sued &c. Two, of three partners, 1 Johns. R. became bankrupts in England; the other resided in New York, 118, Bird and declared a bankrupt under the law of the United States. Assumpsit was brought in the name of all the partners to recover a debt due before the bankruptcy. Quære, ought not the assignees of the bankrupt partner here to have been joined. Quære, if the assignees of the bankrupt partners in England can sue here. 3. The bankruptcy of the plt. may be given in evidence under the general issue. Сн. 18. Art. 3. in Johns. R. 342, Bird v. Caritat. 2 Johns. R. 437, Sands v. Codwise & al.-4 do. 536 to 606, error. $28. But since held, a writ may be brought in New York, in the name of a foreign bankrupt, and he may be joined with the assignees of a co-partner, who is here a bankrupt according to the forms in this country settled. It is a 29. Practice among nations as to assignees &c. general principle among them, to admit and give effect to the title of foreign assignees, in bankrupt cases. But the mode of proceeding to recover debts due to the bankrupt, whether in his own name or that of his assignees, depends on the form of same case in proceeding in the country, and in the court, in which the suit is instituted. 3. Where a decree in chancery has been made in a suit by a bankrupt's creditors against him, his assignee, and others, and then the assignee is removed, and a new one appointed by a majority of the creditors, and the cause is brought by appeal to the court of errors, that court will not stay the proceedings until the new assignee be made a party by the respondents. Conveyances made to defeat creditors, are void by common law as well as by statute, deeds void ab initio. 1 Caines' R. 30. A certificate is produced under the bankrupt act of 487, Jones v. the United States, granted in a sister state, thereon the deft. will be discharged. Emerson. 2 Caines' R. 25, Hen § 31. If a person hire a house for a year before his act of bankruptcy, and he continue in possession after such act, he is dricks v. Ju- not discharged from the subsequent rent by his certificate. dah. 1 Johns. R. § 32. A received monies prior to his act of bankruptcy, on 37, Hatten v. a promise to put it out on bond and mortgage security, but neSpeyer. glected to do it. Held, he was not liable in a special action on the case, but that the action was barred by his certificate, as the creditor might clearly have proved his demand under the commission. Whenever the certificate would be a bar to the 4 Dallas 371. debt, it may be so proved. 1 Caines' R. 4 Day's Ca. 5 Johns. R. 412, Phoenix v. Day & al. 1 Johns. R. al. v. Jack 33. The commissioners have no power to declare the time when one becomes a bankrupt. 34. A debtor's attempt to conceal himself to his creditors, and being denied to them, is not an act of bankruptcy, unless thereby he actually prevents the service of process. $35. One insolvent may bonâ fide give a preference to one creditor, and this, though voluntary, is valid, unless done in contemplation of bankruptcy; and if that be contemplated by the debtor, yet if on the application of a creditor he pays him, his payment is good; so is an assignment of property. 36. If C, on the eve of a bankruptcy, prefer W, a credit370, Ogden & or, and without suit &c., and if he sue, then another; this is son, cited by voluntary and void, as decided in trover by Ogden & al., assignees of W. & D. A.Cummings, bankrupts, against Jackson, made 6 D. & E. 84. trustee to the Manhattan Company &c. Nov. 14, 1803, the 4 D. & E. 212.-Cowp. 122, 632.-3 Wils. 47-4 Butr. 2240. the court, 2 East 117. |