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The question presented by demurrer is whether this action can be maintained in Utah. The first section of the act quoted is declaratory of the common law theretofore existing in Nevada. The second section clearly limits the right. The statute as a whole supersedes the common law applicable to the subject. By a completeness of statement it covers the entire field, and was intended as a revision of the law. By section 4, not only conflicting statutes, but inconsistent laws, are repealed. Thereafter the plaintiff's right was no less an exclusively statutory right because the same facts would have created a right under prior common law principles. Commonwealth v. Marshall, 1i Pick. (Mass.) 350, 22 Am. Dec. 377; Commonwealth v. Cooley, 10 Pick. (Mass.) 37; Gorham v. Luckett, 6 B. Mon. (Ky.) 146; Gwinner v. Lehigh, etc., R. R. Co., 55 Pa. 126. Viewed as a statutory right, it must be admitted that the state creating the right can attach to it any valid condition, so that, when the right is sought to be vindicated in another state or in a foreign country, the condition must also be applied. Hamilton v. R. R. Co., 39 Kan. 56, 18 Pac. 57; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900; Minor's Conflict of Laws,
202. “As the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation (Smith v. Condry, 1 How. [U. S.] 28, 11 L. Ed. 35), but equally determines its extent. It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose.” Slater v. Mexican Nat. R. R. Co., supra. In Nonce v. Richmond & D. R. Co. (C. C.) 33 Fed. at page 435, it is said:
"A cause of action arising under a statute may be made local by the express terms of the statute; and, if the provisions of such law are not complied with, the right thus conferred may be extinguished, and cannot be enforced in the court of another state."
At common law such an action as this was transitory, and a suit for trespass to real property local; but this common-law distinction is not removed from legislative control, and, when the place of trial is attached to the right as a condition, I know of no authority to recognize the right and ignore the condition, unless it is violative of some superior law. As the statute in question does not discriminate against federal courts, there is no basis for questioning its validity.
The demurrer will be sustained, and the action dismissed.
In re PHOTO ELECTROTYPE ENGRAVING CO.
In re VREDENBURGH'S CLAIM.
(District Court, S. D. New York. July 10, 1907.) BANKRUPTCY-CLAIMS-PREFERENCES—WAGES-STATUTES-AMENDMENT.
Bankr. Act July 1, 1898, c. 541, 8 64b, par. 4, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], giving priority of payment to "wages due to workmen, clerks, or servants” earned within three months before the commencement of the proceedings, was amended by Act Cong. June 15, 1906, which took effect on its passage, so as to include traveling or city salesmen. Held that, where a salesman was not entitled to a preference for wages under the original act at the time when the bankruptcy petition was filed or the adjudication entered, he could not obtain it by virtue of the subsequent amendment.
David Stewart Edgar, for claimant.
CHATFIELD, District Judge. The bankrupt herein is a corporation. A claim was filed by one Harry J. Vredenburgh, an employé of the bankrupt, under section 64b, par. 1, of the bankruptcy act (Act July 1, 1898, c. 511, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]), as amended by the laws of June 15, 1906, for the sum of $130, being part of the salary alleged to be due him for the three months immediately preceding the filing of the petition in bankruptcy. This employé had been receiving a salary of $40 per week, according to the pay rolls and books of the bankrupt concern, and claimed an additional $10 a week, under an arrangement with the president of the company, which arrangement was alleged to have been made about one year and three months before the filing of the petition. The claim for a portion of the alleged salary as a preferred debt was referred to one of the referees in bankruptcy, as special master, and the special master has reported that the arrangement for the additional salary had been made by the president, was binding upon the bankrupt, and that the testimony supported the claim; but that the objection of the trustee, on the ground that the amendment of June 15, 1906, could not be retroactive, inasmuch as this amendment did not go into effect until after the services claimed had been rendered, is not well taken.
Section 64b, par. 4, of the bankruptcy law, as originally passed in 1898, gave priority of payment to "wages due to workmen, clerks, or servants which have been earned within three months before the date of the commencement of proceedings, not to exceed three hundred dollars to each claimant. By the amendment of June 15, 1906, the words "traveling or city salesman” were inserted, and the referee, finding that the claimant herein was a clerk and city salesman, allowed the claim for $130, on the ground that the wages debt was provable to that extent at the time the claim was filed with the referee in bankruptcy.
Section 19 of the amendatory act of July 1, 1903 (chapter 487, 32 Stat. 801 [U. S. Comp. St. Supp. 1905, p. 683]), contained a provision that the amendatory act should not apply to bankruptcy cases pending when the act took effect. In the amendinent of June 15, 1906, no such provision was inserted, and the act took effect when it became a law. The amendatory act is remedial, in the sense that it affords additional relief to all cases coming within its scope; but it is also declaratory and jurisdictional, in that it creates certain rights affecting the amounts to be paid preferred creditors and the balance left for other creditors. And the question to be determined on this motion is whether, upon the filing of a petition in bankruptcy, the rights of the various creditors are fixed according to the provisions of the law in effect at the date of adjudication; or whether the rights of these creditors do not exist until they have been passed upon and allowed, or disallowed, by the referee. Section 64b, par. 4, provided for the payment of certain wages earned within three months before the date of the commencement of proceedings. At the time of the filing of the petition, which was the commencement of this proceeding, the law fixed the status of every creditor, in so far as his rights to be considered preferred or general were concerned. As between the various creditors, their claims were thus determined, and while the share of any creditor might be enlarged, by the disallowance of claims, it is considered that his claim would not be changed. All subsequent matters are to be determined in the light of the situation as it existed at the time the petition was filed, or at adjudication, if that does not immediately follow. The amendment of 1906, if allowed to alter the rights of creditors in this proceeding, would take away property which the creditors were entitled to by the provisions of law existing at the time when this estate came under the administration of the bankruptcy court. Such an effect would be retroactive, even if these rights had not become vested, in the sense of having been liquidated or adjudicated.
Under this view, the claim for $130 was invalid at the time of the filing of the petition in bankruptcy, upon the findings of fact as reported by the special master, and it seems that Congress would have no power to deprive any of the other creditors of their rights in the property by taking some of the bankrupt estate from them, and giving it to others, by means of legislation.
In so far as the special master's report finds the contract with Vredenburgh to be valid, upon the evidence, the report will be confirmed; but, as to the finding that Vredenburgh is entitled to a preference for $130, the exception will be sustained, and the report and order of the special master amended to that extent.
In re ELDRED.
(District Court, E. D. New York. June 7, 1907.)
BANKRUPTCY--FINAL DIVIDEND—FINAL REPORT-TIME.
Bankr. Act 1898, $ 57, subd. "n," c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444], declares that claims shall not be proved against a bankrupt after a year from the adjudication, except in the case of litigation, when 90 days additional may be added, and, in the case of infancy or insanity, such persons being entitled to six months additional within which to file claims. Section 65b provides that the first dividend shall be declared within 30 days after adjudication if there are funds sufficient to do so, and that the final dividend shall not be declared within 3 months after the first dividend shall be declared; and subdivision "c" provides that creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by proof or allowance of claims subsequent to the date such dividends are declared and paid. Held that, where a bankrupt's estate is ready for final dividend, it may be closed at any time after four months from the adjudication, on notice to all persons scheduled or appearing in any way in the proceedings as creditors.
See 152 Fed. 491.
CHATFIELD, District Judge. In this estate a dividend of 5 per cent. was declared, on October 26, 1906; on January 9, 1907, a second dividend of 5 per cent. was declared; and on April 25, 1907, the trustee filed a final report, showing a balance of $1,268.12. The trustee applied to the referee to have the account settled and a final dividend declared at that time, which application the referee denied, and from that denial an appeal to this court has been taken, requesting that a final meeting of creditors be called and a final dividend declared. The referee based his decision upon the fact that one year from the date of adjudication had not elapsed, and that within that year any creditor could file and prove his claim and be entitled to a share of the final dividend.
By section 57, Bankr. Act July 1, 1898, subd. “n,” c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, .p. 3444], it is provided that “claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication," except in the case of litigation, when 90 days additional may possibly be added; and in the case of infancy or insanity, a creditor laboring under these disabilities, without notice, may have six months longer within which to file a claim. Section 65b provides that the first dividend shall be declared within 30 days after the adjudication, if the funds are sufficient to do so; that dividends subsequent to the first shall be declared as often as the amount equals 10 per cent. or more, and upon closing the estate, "provided, that the first dividend shall not include more than fifty per centum,” etc., “and provided further, that the final dividend shall not be declared within three months after the first dividend shall be declared.” Subdivision "C" is as follows:
“The rights of creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by the proof and allowance of claims subsequent to the date of such payment or declaration of dividends; but the creditors proving and securing the allowance of such claims sball be paid dividends equal in amount to those already received by the other creditors if the estate equals so much before such 'other creditors are paid any further dividends."
This question was passed upon in the case of In re Stein (D. C.) 94 Fed. 124, in which it was held that if the estate seemed to have been finally administered a final dividend could be declared and the trustee's report approved within the year after adjudication. This case has been followed in the Southern District of New York, in Re Bell Piano Company, Bankrupt (opinion filed February 5, 1907) 155 Fed. 272. In this opinion the court says:
"To say that the final dividend shall not be declared within three months after the first dividend is declared does in my judgment say by implication that a final dividend may be declared on the expiration of three months from the time of the first dividend.”
As the prior provisions of the act have made it necessary to declare a first dividend within 30 days after adjudication, if there are funds sufficient to do so, and as the statute has provided that creditors who are not diligent are permitted only to share in the estate that remains and not to interfere with the funds already divided, it would appear that the court has the power to make a final dividend and to approve of a final report at any time after four months have elapsed subsequent to adjudication, if the other conditions are present showing the estate to be apparently ready for the final accounting. Such an application should, however, be only upon an order to show cause, or other sufficient notice to all persons scheduled or appearing in any way in the proceedings as creditors, giving them an opportunity not only to know of the dividend, but notifying them that their claims should be proven, or their rights lost.
The order of the referee in this proceeding is modified to this extent, and the matter is sent back to him for action in accordance with this opinion, if he finds that the trustee has completed his duties, with the exception of the final report and distribution, and if the proceedings before the referee have been closed, so far as concerns the interests of all parties who have appeared.
In re SMITH.
(District Court, E. D, New York. June 18, 1907.)
BANKRUPTCY-PROCEEDINGS-WITHDRAWAL-RIGHT TO DISCHARGE.
Bankr. Act July 1, 1898, § 14b, subd. 5, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], provides that a bankrupt may obtain a discharge unless he has been granted a discharge in bankruptcy within six years. By section 14a, the bankrupt may apply for a discharge within 12 months after adjudication, or, if unavoidably prevented from filing it within such time, it may be filed within but not after the next 6 months. Held, that where a bankrupt having been discharged in voluntary proceedings on January 17, 1902, filed another voluntary petition on January 11, 1907, he would not be permitted to withdraw the same over the protest of his creditors because he could not obtain a discharge within 12 months after adjudication, he being entitled to apply for a discharge within the succeeding 6 months.
Peter Schmuck, for bankrupt.
Adolph M. Schwarz, Strasbourger, Weil, Eschwege & Schallek, and Arthur Garfield Hays, for creditors.
CHATFIELD, District Judge. The bankrupt has asked leave to withdraw these proceedings, which were instituted by the filing of a voluntary petition in bankruptcy, upon the 11th day of January, 1907. From that date until the present time the matter has followed the usual course, but the first meeting of creditors has been adjourned for a considerable period because of the illness of the attorney for the bankrupt. His death has necessitated the employment of another attorney. It now appears that upon the 17th day of January, 1902, in a former voluntary proceeding, the bankrupt herein was granted a discharge. The present attorney for the bankrupt, having learned of this, advised the bankrupt that he could not obtain a discharge within six years after the granting of the former discharge. The bankrupt, upon the advice of this attorney, now asks leave to withdraw the proceedings. Objection is made on the part of the creditors, in that the estate has been brought into court by the filing of the present petition, and that the rights which they might have had by filing an involuntary petition, or