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should appear in such action and submit his rights to adjudication therein for the protection of the bank, and unless he does so the attachment will be vacated.-United States v. Neeley (C. C.) 763.

The amendment of an involuntary bankrupt's petition, alleging that defendants removed their stock with intent to defraud their creditors, so as to allege that such removal was for the purpose of a transfer in preference to creditors, held not an abuse of the trial court's discreA third person, claiming ownership of a fund in a bank attached as the property of a tion.-Hark v. C. M. Allen Co. (C. C. A.) 665. defendant through a transfer to him of the *A conveyance by a partner of his individual certificate of deposit issued for the same, may property although with intent to prefer a firm properly intervene in the action and assert his creditor, does not constitute an act of bankclaim by a motion to vacate the attachment as ruptcy by the firm, and will not sustain proto such property, but the attachment will not ceedings in bankruptcy against the partnership. be vacated on such ground on ex parte affida--Hartman v. John Peters & Co. (D. C.) 82. vits.-United States v. Neely (C. C.) 764.

ATTENDANCE.

Of witness, see "Witnesses," § 1.

ATTORNEY AND CLIENT.

Employment of attorney for corporation after appointment of receiver, see "Receivers," § 1.

AUTHORITY.

Of agent, see "Principal and Agent," § 1.
Of broker, see "Brokers." § 1.

AWARD.

See "Arbitration and Award," § 1.

BAGGAGE.

See "Shipping," § 4.

BAILMENT.

A receiver in bankruptcy is entitled to a reasonable allowance for the services of counsel employed by him in administering the estate while in his hands, but he has nothing to do with the payment or allowance of fees for counsel for the petitioning creditors for services rendered in instituting the proceedings or otherwise primarily for the benefit of his clients.In re Oppenheimer (D. C.) 140.

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The real equitable owners of lands standing in the name of a bankrupt held estopped 'by a decree obtained with their consent quieting the title in him absolutely and enjoining them from questioning the same to assert any equity

Embezzlement or larceny by bailee, see "Em- or trust therein which would prevent such lands bezzlement."

Particular species of bailments, and bailments incident to particular occupations. See "Banks and Banking," § 1; "Carriers," § 2.

BANKRUPTCY.

and the proceeds of those sold from passing to the bankrupt's trustee under Bankr. Act July 1, 1898, c. 541, § 70 (5). 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451].-In re Coffin (D. C.) 181.

An instrument given to secure a debt and purporting to be a deed but not accompanied by a bond for reconveyance as required by Civ. Code Ga. 1895, § 2771 et seq. to constitute a statutory security deed, and which contains a sions, is a common-law mortgage and does not power of sale and other contradictory provi

1. Petition, adjudication, warrant, and custody of property. Where, on the death of a member of an insolvent firm and the making of an inventory of its assets and liabilities, as provided by Rev. St. Ohio 1906. §§ 3167, 3169, the surviving part-pass title; and where the property remained in ner elected not to take the interest of the deceased partner, but joined the administrator in an application for the appointment of a receiver, his act in so doing did not constitute an act of bankruptcy on his part.-Moss Nat. Bank v. Arend (C. C. A.) 351.

Amendment of an involuntary bankruptcy petition more than four months after the occurrence of the acts of bankruptcy alleged therein held properly permitted to be filed nunc pro tunc as of the date of the filing of the original petition within such four months' period.-Hark v. C. M. Allen Co. (C. C. A.) 665.

possession of the debtor until his bankruptcy
and passed to his trustee, it is subject to sale
Moore (D. C.) 187.
as a part of the assets of his estate.—In re

§ 3.

Preferences and transfers by bankrupt, and attachments and other liens.

*Transfers by a bankrupt to certain banks while he was insolvent, and just prior to the filing of an involuntary bankruptcy petition against him, held void. In re Gesas (C. C. A.) 734; In re Commercial Nat. Bank of St. Anthony, Id.

*Point annotated. See syllabus.

|

*The purchaser of a stock of goods from an | While the fact that an attorney had acted
insolvent retail merchant who sold for the pur- for a bankrupt may affect the propriety of his
pose of defrauding creditors held chargeable employment to act for the trustee, it does not
with notice of such purpose, and not protected deprive him of the right to compensation for
as a bona fide purchaser as against the seller's services rendered after he has been so employed.
trustee in bankruptcy.-In re Knoff (D. C.)-In re Dimm & Co. (D. C.) 402.
109; Ex parte Sanders, Id.

The estoppel of a bankrupt to deny the validity of a lien on his property does not affect his trustee where such lien was voidable by his creditors. In re Shaw (D. C.) 273.

A parol agreement by a husband to assign certain life insurance policies to his wife for a valuable and adequate consideration received, made in good faith when the husband was solvent, held to give the wife an equitable lien on the policies which would be enforced against the husband's trustee in bankruptcy although the formal assignment was not made until after the husband became insolvent, and within four months prior to his bankruptcy.-In re J. F. Grandy & Son (D. C.) 318; Ex parte Grandy,

Id.

§ 4.

§ 5.

Actions by or against trustee. The jurisdiction of a circuit court of a suit by an adverse claimant of property against a trustee in bankruptcy is expressly excluded by Bankr. Act July 1, 1898, c. 541, § 23a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431] where it would not have had jurisdiction if the suit had been against the bankrupt.-Hatch v. Curtin (C. C.) 200.

in an action by a trustee in bankruptcy against Evidence reviewed in a charge to the jury the bankrupt and another to recover the value of money and property alleged to have been fraudulently transferred by the bankrupt to his codefendant and to others through a conspiracy between defendants.-Murray v. Joseph (D. C.)

260.

$ 6.

Claims against and distribution of estate.

Administration of estate. Evidence considered and held to justify a finding that bankrupts had concealed assets, consisting of money drawn from the bank short- bankrupt which was void for usury held an The holder of a secured claim against a ly prior to their bankruptcy, and an order re-active party to the bankruptcy proceedings and quiring them to turn the same over to their to proceedings for the settlement of the estate trustee. In re Weinreb (C. C. A.) 243. of the bankrupt's father, so that the claim could be properly disallowed in toto on the demand of objecting junior lien creditors.-In re L'Hommedieu (C. Č. A.) 708.

A decree of a court of bankruptcy affirmed which enforced a forfeiture of a long term lease held by a corporation bankrupt for breach of a covenant to build, and directed the trustees to surrender possession of the property to the lessor.-Lindeke v. Associates Realty Co. (C.

C. A.) 630.

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A circuit court is without jurisdiction to review the proceedings of a district court in bankruptcy even when they are alleged to have been coram non judice.-Hatch v. Curtin (C. C.) 200. Under Bankr. Act July 1, 1898, c. 541, §§ 2, 7, 20, 21, 29, 38, 57, 30 Stat. 545, 548, 551, 552, 554, 555, 560 [U. S. Comp. St. 1901, pp. 3420, 3425, 3430, 3433, 3435, 3443], a referee in bankruptcy held authorized to administer an oath to a witness including the bankrupt appearing to testify in support of a claim filed against the bankrupt's estate.-United States v. Simon (D. C.) 89.

*A judgment against a bankrupt which was a lien on certain real estate of which the bankrupt's father died seised, and out of which the fund to be distributed arose, held entitled to priority. In re L'Hommedieu (C. C. A.) 708.

on account within the four months period as the A payment made by an insolvent to a creditor last of the transactions between the parties held a preference which must be surrendered before proof of the creditor's claim in bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 [U. S. St. 1901, p. 3443].-In re Watkinson (D. C.) 142.

The several subdivisions of Bankr. Act July 1, 1898, c. 541, § 63a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], are independent of each other, constituting a classification of claims which are provable, and the provision of subdivision 1, limiting the claims provable thereunder to those which were a fixed liability absolutely owing at the time of the filing of the petition, does not impose such limitation upon claims provable under other subdivisions.-In

A motion to commit the treasurer of a bank-re Smith (D. C.) 923.
rupt corporation for contempt for failure to
obey an order of the referee requiring him
to turn over money to the trustee will not be
considered where he is under bail to appear
and answer to indictments in the state courts
for the embezzlement of such money from the
corporation until after such indictments are dis-
posed of.-In re Hooks Smelting Co. (D. C.)
336.

The liability of a bankrupt indorser on com-
mercial paper which did not become absolute
until after the filing of the petition is a debt
founded upon a contract within Bankr. Act
July 1, 1898, c. 541, § 63a (4), 30 Stat. 562
[U. S. Comp. St. 1901, p. 3447], and provable
in bankruptcy thereunder after such liability
has become fixed and within the time limited for
proving claims.-In re Smith (D. C.) 923.
*Point annotated. See syllabus.

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A trustee in bankruptcy held entitled to an allowance for services and expenses in attending and assisting in auction sales of the bankrupt's stock of goods which were advantageous to the estate. In re Dimm & Co. (D. C.) 402.

§ 8. Rights, remedies, and discharge of bankrupt.

The fact that the refusal of a bankrupt to answer material questions in the course of the proceedings which were approved by the referee was based on the claim of his constitutional privilege not to incriminate himself does not deprive the court of the right to deny him a discharge because of such refusal under Bankr. Act July 1, 1898, c. 541, § 14b (6) 30 Stat. 550 [U. S. Comp. St. 1901, p. 34281, as amended in 1903, Act Feb. 5, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684].-In re Dresser (C. C. A.) 383.

Within the fair meaning of Bankr. Act July 1, 1898, c. 541, § 14b (3) 30 Stat. 550 [U. S. Comp. St. 1901, p.3428], as amended in 1903, Act Feb. 5, c. 487; § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684], a materially false written statement was "made" to a person from whom property was obtained on credit, and deprives the bankrupt of the right to a discharge if it was given to an agent for the purpose of being used in obtaining property for the bankrupt, and its contents were communicated by the agent to such person.-In re Dresser (C. C. A.) 383.

Where a bankrupt had voluntarily surrendered a lease giving him an option to purchase the leased property more than four months prior to the bankruptcy proceedings he is not chargeable with concealing property from his trustee because of his failure to schedule such property in the absence of proof that the surrender was not in good faith.-In re Kolster (D. C.) 138.

The burden of proof rests upon a creditor objecting to the discharge of a bankrupt and while the acts charged may be established by inference from the facts proved it is not sufficient that such facts justify a suspicion of fraud but they must be inconsistent with honesty and good faith.-In re Kolster (D. C.) 138.

The pledging by a firm of brokers, within four months prior to their bankruptcy, of stock in their hands owned by customers to secure a loan to themselves was not a transfer of their property with intent to hinder, delay, or defraud their creditors within the meaning of Bankr. Act July 1, 1898, c. 541, § 14, subd. b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428] as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684] which debars the bankrupts from a discharge, although they may have had a lien on some of the stock pledged. In re Jacob Berry & Co. (D. C.) 623.

belonging to the firm by way of pledge for such a loan was the act of the partners, and, if made within four months prior to their bankruptcy and with intent to defraud their creditors, would defeat their right to a discharge.In re Jacob Berry & Co. (D. C.) 623.

*Under the statute of Washington (Laws 1901, p. 222, c. 109, Ballinger's Code Supp. § 3102, Pierce's Code, § 5346) which, in case of a sale in bulk of a stock of merchandise, makes the purchaser responsible for the application of the purchase price on the seller's debts, the seller, by making such a sale, must be deemed to have assented to such application and, on his adjudication as a bankrupt, cannot claim his statutory exemptions out of the money due from the purchaser. Nor do the creditors waive their rights in such fund by instituting involuntary proceedings in bankruptcy against him.-In re Connor (D. C.) 998.

BANKS AND BANKING.

Payment of check of corporation after appoint-
ment of receiver, see "Receivers," § 1.
§ 1. Functions and dealings.

*A banker's lien given by Rev. St. Idaho 1887, § 3448, held not to cover stocks of goods or property not usually taken in the actual possession of banks in the ordinary course of business.-In re Gesas (C. C. A.) 734; In re Commercial Nat. Bank of St. Anthony, Id.

*The right given to a bank by a contract with a depositing and borrowing corporation, to declare any notes of the corporation held by the bank due in case the corporation became insolvent, and to apply thereon any sum then on deposit to the corporation's credit, cannot be exercised after a receiver has been appointed for the corporation.-Eastern Milling & Export Co. v. Eastern Milling & Export Co. (C. C.)

761.

§ 2. National banks.

*A count in an indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497] charging misapplication of the funds of a national bank by a director held bad for failure to show an actual withdrawal of the funds or that they were lost to the bank.-United States v. Martindale (D. C.) 280.

An averment in an indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], charging that defendants as director and cashier of a national bank, by means of a draft drawn by them or by other stated means, misapplied the moneys, funds, and credits "of said association without the knowledge and consent thereof," is not equivalent to an averment that the act was done without the knowledge and consent of the directors as required by the statute, and is insufficient.-United States v. Martindale (D. C.) 280.

Where an officer of a national bank is charged in an indictment with the fraudulent misapplication of its funds in the payment of several and distinct notes, each payment constitutes a separate misapplication and must be charged *Point annotated. See syllabus.

Where employés of a partnership had general authority to obtain loans for the firm on securities a transfer by such employés of stocks

in a separate count.-United States v. Martin- | terms to the note.-Columbia Finance & Trust dale (D. C.) 280. Co. v. Purcell (C. C.) 85.

In the federal courts the liability of a person writing his name on the back of a note before it is indorsed by the payee is that of a joint maker or guarantor.-Columbia Finance & Trust Co. v. Purcell (C. C.) 85.

*A count in an indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497] charging that defendant as a director of a national bank, between certain given dates, abstracted and misapplied a stated sum of the moneys, funds, and credits of the bank, without further specification is insufficient as too general and indefinite.-United States v. Martindale (D. C.) 280. Evidence offered by the government on the See "Exchanges." trial of an indictment for misapplication of the funds of a national bank, under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], by means of checks drawn by defendant when he

BOARD OF TRADE.

BONA FIDE PURCHASERS.

BONDS.

had no funds to his credit, to show that an Of lands, see "Vendor and Purchaser," § 3. apparent credit appearing on the books of the bank was fictitious and fraudulently procured by defendant held inadmissible, no such transaction being specified in the indictment.-Unit- Injunction bonds, see "Injunction," § 5. ed State v. Martindale (D. C.) 289.

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BILL OF DISCOVERY.

See "Discovery," § 1.

BILL OF EXCHANGE.

See "Bills and Notes."

BILL OF LADING.

See "Shipping." § 3.

BILLS AND NOTES.

§ 1. Rights and liabilities on indorsement or transfer.

An anomalous indorser on a note could not be made liable on a contract written above his indorsement reciting an agreement by such indorsement to pay the note according to the terms of another agreement which added several

BOOKS.

Copyright, see "Copyrights," § 2.

BREACH.

Of condition, see "Insurance," § 1
Of contract, see "Contracts," § 4.
Of covenant, see "Insurance," § 1.
Of warranty, see "Insurance," § 1; "Sales,"
§ 2.

BRIBERY.

In a prosecution for alleged bribery of a public officer, in violation of Rev. St., § 5451 [U. S. Comp.' St. 1901, p. 3680), evidence held insufficient to warrant a finding that defendant promised or offered such officer anything of value

to influence his action.-Vernon v. United States (C. C. A.) 121.

BROKERS.

See "Exchanges."

§ 1. Employment and authority.
Evidence considered, and held sufficient to re-
quire the submission of the issues in the case
to the jury.-Berry v. Chase (C. C. A.) 625.
§ 2. Compensation and lien.

In an action for brokers' commissions the direction of a verdict for defendant on the theory that defendant believed plaintiff was acting for the purchaser and not for him held error.Love v. Scatcherd (C. C. A.) 1.

The changing of an option for the sale of certain lands by defendant held to require only that the price should be net as between himself and the purchaser, and not to affect plaintiff's right to commissions.-Love v. Scatcherd (C. C. A.) 1.

Where a broker who had made a contract on behalf of a corporation for a sale of its stock made no objection to a compromise by which the purchaser took a smaller amount of stock, *Point annotated. See syllabus.

but took part in the negotiations, he is entitled | United States v. New York Cent. & H. R. R. to commissions only on the amount actually Co. (C. C.) 298; Same v. Guilford, Id. sold.-Bauersmith v. Extreme Gold Min. & Mill. Co. (C. C.) 95.

CANCELLATION OF INSTRUMENTS.

Grounds for cancellation or rescission of par-
ticular instruments.

Contracts for sale of realty, see "Vendor and
Purchaser," § 2.

Contracts in general, see "Contracts," § 3.

1. Proceedings and relief.

*A bill for the cancellation of a contract on the ground of false and fraudulent representations by defendant held unsustainable by proof of mutual mistake.-Burk v. Johnson (O. C. A.) 209.

In a suit to cancel an assignment of territory for the promotion of a plan for the organization of mutual burial associations, evidence held insufficient to sustain a finding that defendant made certain alleged fraudulent representations.-Burk v. Johnson (C. C. A.) 209.

See "Shipping."

CARGO.

CARRIERS.

Carriage of goods by vessels, see "Shipping," 3.

Carriage of passengers by vessels, see "Shipping," § 4.

§ 1. Control and regulation of common carriers.

An indictment against a railroad company held to sufficiently charge a violation of the Interstate Commerce Act (Act Congress Feb. 4. 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) as supplemented by Elkins Act (Act Congress Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), prohibiting deviation from published freight rates.-United States v. New York Cent. & H. R. R. Co. (C. C.) 298; Same v. Guilford, Id.

Certain interstate, carriers held not justified in reclassifying laundry soap in less than carloads so that it should pay 20 per cent. less than third-class rates, the classification of soap in car loads and other articles bearing a proportionate rate remaining unchanged.-Interstate Commerce Commission v. Cincinnati, H. & D. Ry. Co. (C. C.) 559.

2. Carriage of goods.

recover for a loss of goods evidence held to In an action against a railroad company to warrant the submission to the jury of the question whether the goods were delivered to defendant by a connecting carrier.-Southern Ry. Co. v. Hubbard Bros. Co. (C. C. A.) 31.

3. Carriage of passengers.

In an action for death of a passenger by being thrown from the platform of a train as he was passing from one car to another whether the platform gates were sufficient and whether defendant was guilty of negligence in failing to have them closed held questions for the jury.Boston & M. R. Co. v. Stockwell (C. C. A.) 505.

In an action for death of a passenger, intestate held not guilty of contributory negligence as a matter of law.-Boston & M. R. Co. v. Stockwell (C. C. A.) 505.

Act Congress June 29, 1906, 34 Stat. 584, c. 3591, amending Elkins Act (Act Cong. Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. establish the negligence of a street railroad com Evidence considered, and held to conclusively Comp. St. Supp. 1905, p. 599]), by restoring the penalty of imprisonment for violation of the pany in starting a car suddenly while a passenInterstate Commerce Act, etc., held prospec-ger was alighting therefrom.-Pittsburgh Ry. Co. Bloomer (C. C. A.) 720. tive in operation only.-United States v. New v. Bloomer (C. C. A.) 720. York Cent. & H. R. R. Co. (C. C.) 298; Same v. Guilford, Id.

A carrier engaged in interstate commerce and

its agent may be prosecuted for rebating in See "Equity."
violation of Interstate Commerce Act (Act Con-
gress Feb. 4. 1887, c. 104, 24 Stat. 379 [U. S.
Comp. St. 1901, p. 3154]) as supplemented by

CHANCERY.

CHARGE.

Elkins Act (Act Congress Feb. 19, 1903, c. 708, To jury in civil actions, see "Trial," § 3.

32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), in the same indictment, for the same offense.-United States v. New York Cent. & H. R. R. Co. (C. C.) 298; Same v. Guilford, Id.

CHARTER PARTIES.

An indictment against certain railroads and See "Shipping," § 1.

CHATTEL MORTGAGES.

others for rebating, held to sufficiently allege that the payment of the rebates was a willful failure on the part of the railroad company to observe the published tariffs, prohibited by § 1. Rights and remedies of creditors. Interstate Commerce Act (Act Congress Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) as supplemented by Elkins Act (Act Congress Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]).

Unrecorded chattel mortgages on the property of a bankrupt held void as against his trustee as fraudulent attempts to create secret liens and also under Rev. St. Me. c. 93, § 1, for want of record or the delivery and retention of *Point annotated. See syllabus.

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