Page:United States Statutes at Large Volume 5.djvu/477

ruptcy, as follows: All persons whatsoever, residing in any State, District or Territory of the United States, owing debts, which shall not have been created in consequence of a defalcation as a public officer: or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, who shall, by petition, setting forth to the best of his knowledge and belief, a list of his or their creditors, their respective places of residence, and the amount due to each, together with an accurate inventory of his or their property, rights, and credits, of every name, kind, and description, and the location and situation of each and every parcel and portion thereof, verified by oath, or, if conscientiously scrupulous of taking an oath, by solemn affirmation, apply to the proper court, as hereinafter mentioned, for the benefit of this act, and therein declare themselves to be unable to meet their debts and engagements, shall be deemed bankrupts within the purview of this act,Merchants, bankers, &c., on petition of their creditors, may be declared bankrupts in certain cases. and may be so declared accordingly by a decree of such court; all persons, being merchants, or using the trade of merchandise, all retailers of merchandise, and all bankers, factors, brokers, underwriters, or marine insurers, owing debts to the amount of not less than two thousand

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being opposed in opinion upon questions adjourned from the district court, they were certified to the Supreme Court on the motion of the counsel of the petitioner. Held, that the district judge cannot sit as a member of the circuit court, under the “Act to establish a uniform system of bankruptcy throughout the United States.” Consequently, the points adjourned could not be brought before the Supreme Court on a certificate of division. Nelson v. Carland, 17 Peters’ Rep. 181; S. C., 1 Howard, 265.

An appeal or writ of error will not lie from the decision of the circuit court, in a case of bankruptcy, adjourned from the district court. The decision of the circuit court is conclusive on the district judge. Ibid.

Under the late bankrupt act of the United States, the existence of a fiduciary debt, contracted before the passage of the act, constitutes no objection to the discharge of the debtor from other debts. Chapman v. Forsyth, 2 Howard, 202.

A factor, who receives the money of his principal, is not a fiduciary, within the meaning of the act. Ibid.

A bankrupt is bound to state, upon his schedule, the nature of a debt if it be a fiduciary one. Should he omit to do so, he would be guilty of a fraud, and his discharge will not avail him; but if a creditor, in such case, proves his debt and receives a dividend from the estate, he is estopped from afterwards saying that his debt was not within the law. Ibid.

But if the fiduciary creditor does not prove his debt, he may recover it afterwards from the discharges bankrupt, by showing that it was within the exceptions of the act. Ibid.

In Kentucky, the creditor obtains a lien upon the property of his debtor by the delivery of a fi. fa. to the sheriff; and this lien is as absolute before the levy as it is afterwards. Savage’s Assignee v. Best, 3 Howard, 111.

Therefore, a creditor is not deprives of this lien by an act of bankruptcy on the part of the debtor committed before the levy is made, but after the execution is in the hands of the sheriff. Ibid.

This court has not revising power over the decrees of the district court sitting in bankruptcy; nor is it authorized to issue a writ of prohibition to it in any case, except where the district is proceeding as a court of admiralty and maritime jurisdiction. Ex parte Christy, 3 Howard, 292.

The district court, when sitting in bankruptcy, has jurisdiction over liens and mortgages existing upon the property of a bankrupt, so as to inquire into their validity and extent, and grant the same relief which the state courts might or ought to grant. Ibid.

The control of the district court over proceedings in the state courts upon such liens, is exercised, not over the state courts themselves, but upon the parties, through an injunction or other appropriate proceeding in equity. Ibid.

The design of the bankrupt act was to secure a prompt and effectual administration of the estate of all bankrupts, worked out by the courts of the United States, without the assistance of state tribunals. Ibid.

The phrase in the 6th section, “any creditor or creditors who shall claim any debt or demand under the bankruptcy,” does not mean only such creditors who came in and prove their debts, but all creditors who have a present subsisting claim upon the bankrupt’s estate, whether they have a security or mortgage therefor, or not. Ibid.

Such creditors have a right to ask that the property mortgages shall be sold, and the proceeds applied towards the payment of their debts; and the assignee, on the other hand, may contest their claims. Ibid.

In the case of a contested claim, the district court has jurisdiction, if resort be had to a formal bill in equity or other plenary proceeding; and also jurisdiction to proceed summarily. Ibid.

The principles established in the case of Ex parte the City Bank of New Orleans in the matter of Christy, assignee of Walden, reviewed and confirmed. Ibid.

But this court does not decide whether or not the jurisdiction of the district court over all the property of a bankrupt, mortgaged or otherwise, is exclusive, so as to take it away from the state courts in such cases. Norton’s Assignee v. Boyd, 3 Howard, 426.

Where the defendant below became a bankrupt, the Supreme Court will not award a supersedeas to stay an execution, because the assignee of the bankrupt has his remedy in the circuit court. Black v. Zacharie, 3 Howard, 483.