contradictory statements by him.48 The respondent to the application may introduce evidence on his own behalf.49 The order will not be granted unless facts sufficient to support it are proved by clear and convincing evidence; 50 and, according to a large number of cases, not unless they are proved beyond a reasonable doubt.51 The sworn denial of the bankrupt or other respondent is not conclusive.52 The order may be supported by circumstantial evidence.53 When recent possession is proved, it is ordinarily presumed that the respondent still has the money or property, unless he affords reasonable proof of its disposition.54 It has been said that proof of possession of the assets at 49 Re Miller, 105 Fed. 57, 5 Am. B. R. 184; Boyd v. Glucklich, C. C. A., 116 Fed. 131, 140, 8 Am. B. R. 393, 397; Re Lasch, Referee (Pa.), 12 Am. B. R. 158; Remington on Bankruptcy, § 1839. 50 Re Gilroy & Bloomfield, 140 Fed. 733; Re Berman, 165 Fed. 383; Re Adler, 170 Fed. 634; Re Dickens, 175 Fed. 808; Re Jackier, 179 Fed. 720; Re Nisenson, 182 Fed. 912; Re Chamelin, 184 Fed. 553; Re Kreuger, 197 Fed. 124. See Re Jablin, 194 Fed. 228. 51 Re Sax, 141 Fed. 223; Samel v. Dodd, C. C. A., 142 Fed. 68, 16 Am. B. R. 167; Re D. Levy & Co., C. C. A., 142 Fed. 442, 15 Am. B. R. 169; Remington on Bankruptcy, § 1842; Re Nisenson, 182 Fed. 912; Re Kreuger, 197 Fed. 124. See Re Dickens, 175 Fed. 808. farb Bros., 131 Fed. 643. Contra, Re Alphin & Lake Cotton Co., 134 Fed. 477, 14 Am. B. R. 194, 197; Re Cole, C. C. A., 144 Fed. 392, 16 Am. B. R. 302; Re Lasky, 163 Fed. 99; Seigel v. Cartel, C. C. A., 164 Fed. 691; Re Cramer, 175 Fed. 879; Re Holland, 176 Fed. 624; Re Robert Greenberg & Bro., 179 Fed. 413; Re Krall, 182 Fed. 191; Re Meier, C. C. A., 182 Fed. 799; Re Lippman, 184 Fed. 551; Re Cummings, 186 Fed. 1020; Stern v. U. S., C. C. A., 193 Fed. 888; Re Stokes, 185 Fed. 994. 53 Re Schacter, 119 Fed. 1010, 9 Am. B. R. 499; Schweer v. Brown, C. C. A., 130 Fed. 328; Re Goldfarb Bros., 131 Fed. 643, 12 Am. B. R. 386; Re Frankfort, 144 Fed. 721. See Henkin v. Fousek, C. C. A., 246 Fed. 285. 54 Re Felson, 124 Fed. 288, 10. Am. B. R. 716; Re D. Levy & Co., C. C. A., 142 Fed. 442; Re Cole, C. C. A., 144 Fed. 392, 16 Am. B. R. 302; Waters v. Davis, C. C. A., 145 Fed. 912; Re Edelman, 251 Fed. 429. The finding by a referee, that at the time of his bankruptcy the bankrupt had under his control money or property of his estate which he has never surrendered, will not, without further proof, sup the time of the filing of the petition for the summary order, together with proof of a subsequent disposition thereof, is not sufficient to support the order, when it appears that the respondent has no control over them or their proceeds.55 Where third parties have interfered with property which was in the bankrupt's possession when the petition in bankruptcy was filed, the burden is upon them to show that they had a right to remove it.56 Payment of interest will not be ordered unless it appears that interest has been received.57 The order must definitely describe the property to be surrendered.58 It has been held that an order directing the return of the "value" of the goods is port an order, seven years later, requiring him to turn the same over to the trustee. Re Ruos, 164 Fed. 749. 55 Re Cotton Co. (Alphin & Lake Cotton Co.), 134 Fed. 477, 14 Am. B. R. 194; Re McCormick, 97 Fed. 566, 3 Am. B. R. 340; Re D. Levy & Co., C. C. A., 142 Fed. 442, 15 Am. B. R. 166; Re Royce Dry Goods Co., 133 Fed. 100, 13 Am. B. R. 257; Ripon Knitting Works v. Schreiber, 101 Fed. 810, 4 Am. B. R. 299; affirmed in 104 Fed. 1006; Re Gerstel, 123 Fed. 166, 10 Am. B. R. 411; Re Kane, 125 Fed. 984, 10 Am. B. R. 478. Compare Re Adler, 129 Fed. 502, 12 Am. B. R. 19; Re Shachter, 119 Fed. 1010, 9 Am. B. R. 499; Re Epstein, 15 Am. B. R. 711. Instance, Re Deuell, 100 Fed. 633, 4 Am. B. R. 60; Re Felson, 124 Fed. 288, 10 Am. B. R. 716; Re Schlesinger, 97 Fed. 930, 3 Am. B. R. 342; affirmed, C. C. A., 102 Fed. 117, 4 Am. B. R. 361; Re Finkelstein, 101 Fed. 418, 3 Am. B. R. 800; Re Greenberg, 106 Fed. 496, 5 Am. B. R. 840; Obiter, Re Mayer, 98 Fed. 839, 3 Am. B. R. 533; Re Anderson, 103 Fed. 854, 4 Am. B. R. 640; Re Goldfarb Bros., 131 Fed. 643, 12 Am. B. R. 386; Instance, Re Wilson, 116 Fed. 419, 8 Am. B. R. 612; Re Rosser, C. C. A., 101 Fed. 562, 4 Am. B. R. 153; Re De Gottardi, 114 Fed. 328, 7 Am. B. R. 723; Obiter, Re Laplume C. M. Milk Co., 145 Fed. 1013, 16 Am. B. R. 729; Re Hershkowitz, 136 Fed. 950, 14 Am. B. R. 86; Re Frankfort, 144 Fed. 721, 15 Am. B. R. 210; Re Levin, 113 Fed. 498, 6 Am. B. R. 743; Re Henderson, 130 Fed. 385, 12 Am. B. R. 351; Re Friedman, 2 Am. B. R. 301; Re Weinreb, C. C. A., 146 Fed. 243, 16 Am. B. R. 702; Re Feldser, 134 Fed. 307, 14 Am. B. R. 216; Remington on Bankruptcy, § 1850. See Re Jablin, 194 Fed. 228. But see Re Idzall, 96 Fed. 314, 2 Am. B. R. 741; Re Sax, 141 Fed. 223, 15 Am. B. R. 455; Re Switzer, 140 Fed. 976, 15 Am. B. R. 468. 56 Re Iron Clad Mfg. Co., 193 Fed. 781. 57 Re Rosser, C. C. A., 101 Fed. 562, 4 Am. B. R. 153. See also Remington on Bankruptcy, § 1848, and cases cited. Contra, Re Kurtz, 125 Fed. 992, 11 Am. B. R. 129. 58 Re Davis, 119 Fed. 950, 9 Am. B. R. 670; Remington on Bankruptcy, 1847; Re Rogowski, 166 Fed. 165. See Re Ironclad Mfg. Co., 193 Fed. 781. erroneous. 59 The order may be enforced by imprisonment for contempt.60 The order directing the return of property or the payment of money is at least presumptive evidence that the bankrupt or other person against whom the same is directed is able to obey the same, 61 and according to some authorities it is conclusive of the facts at the time of its entry.62 It has been held that the bankrupt may show inability to comply with the order, which accrued subsequently to its entry.63 Subsequent proof of inability to comply with the order may justify a discharge from such imprisonment.64 An order in such a proceeding, of which the Court of Bankruptcy had jurisdiction, will in a subsequent proceeding in bankruptcy,65 or a plenary suit,66 be conclusive evidence of the respondent's liability. An order denying a summary applica tion is not res adjudicata against a plenary suit.67 61 Re Stadrahn, C. C. A., Second Ct., 174 Fed. 330; Re Myerson, 253 Fed. 510. But see Re Elias, 240 Fed. 448. 62 Re Marks, (E. D. Pa.) 176 Fed. 1018; Re Richards, (W. D. Ark.) 183 Fed. 501; Re Frankel, (S. D. N. Y.) 184 Fed. 539. Contra, Re Reynolds, (M. D. Ala.) 190 Fed. 967; Re Haring, 193 Fed. 168. Upon such an application the court has power to find specifically that the bankrupts are then able to deliver the assets which they are ordered to turn over to the trustee. Re Jacobs, 235 Fed. 706. Contra Schmid v. Rosenthal, C. C. A., 230 Fed. 818; contra Re Ironclad Mfg. Co., C. C. A., 201 Fed. 66; Frederick v. Silverman, 250 Fed. 75. As to the approval by the referee of a compromise, see Re Goldman, 241 Fed. 385. 63 Re Mize, 173 Fed. 945; Re Marks, 176 Fed. 1018; Re Richards, 183 Fed. 501; Re Reynolds, 190 Fed. 967; Re Haring, 193 Fed. 168; Re Myerson, 253 Fed. 510. 64 Schweer v. Brown, 195 U. S. 171, 49 L. ed. 144, 25 Sup. Ct. 15; affirming 130 Fed. 328; Re Schlesinger, C. C. A., 97 Fed. 930, 4 Am. B. R. 361; Re Rosser, C. C. A., 101 Fed. 562, 4 Am. B. R. 153, 157; Samel v. Dodd, C. C. A., 142 Fed. 68, 16 Am. B. R. 163; Moody v. Cole, 148 Fed. 295. 65 Re Taylor, 114 Fed. 607, 7 Am. B. R. 410. Criticized in Remington on Bankruptcy, § 1841. 66 Re Lemmon & Gale Co., C. C. A., 112 Fed. 296; Henderson v. Denious, C. C. A., 186 Fed. 100. See Re Wood & Henderson, 210 U. S. 246, 52 L. ed. 1046. 67 Murray v. Joseph, 146 Fed. 260. § 636. Dismissal of petitions. The act of 1910, provides: "A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors, and to that end the court shall, before entertaining an application for dismissal, require the bankrupt to file a list, under oath, of all his creditors, with their addresses, and shall cause notice to be sent to all such creditors of the pendency of such application, and shall delay the hearing thereon for a reasonable time to allow all creditors and parties in interest opportunity to be heard." 1 § 636. 136 St. at L. 838, 841. Re J. W. Lavery & Son, 235 Fed. 910. It has been held that the statute does not apply to the dismissal of a voluntary petition on the court's own motion because of the failure of the bankrupt to furnish the requisite indemnity for the expense of publishing or mailing notices to creditors; Re Crisp, 239 Fed. 419; that where counsel for the petitioner appear before the court or the referee upon the trial, his failure to offer evidence does not constitute want of prosecution or consent to a dismissal, but if it seems that such conduct was pursuant to an agreement with the bankrupt the Court or referee should investigate the question before making its decision; Re Chalfen, 223 Fed. 379. An order, without notice to the creditors, directing that on payment into court of a sum to be used in payment of the claims which had been then proved together with the costs of the proceedings, should be dismissed; was reversed. Luxury Fruit Co. v. Harris, C. C. A., 217 Fed. 740. It was held: that the mere fact that a corporation adjudged a bankrupt might pay its creditors in full, was no ground for a dismissal of the proceedings, al though a creditor had attempted to use the bankruptcy court in an improper way; Re Jamaica Slate Roofing & Supply Co., 197 Fed. 240. Upon such an application creditors may intervene to oppose the dismissal and continue the proceedings although they are barred by laches from beginning a new proceeding in bankruptcy. Re Bolognesi, 223 Fed. 771. But see supra, § 616. Such intervenors or those of the original petitioners who have not withdrawn may continue the proceedings although they are less than the number required for the filing of a petition. Re San Jose Baking Co., 323 Fed. 200; but see Re Sig. H. Rosenblatt & Co., C. C. A., 193 Fed. 638. Where all but one of the creditors, who exceeded twelve in number, consented to a dismissal, a motion by the bankrupt therefor was granted; Re Sig. H. Rosenblatt & Co., C. C. A., 193 Fed. 638. Before this enactment, it had been held that a petition in involuntary bankruptcy might be dismissed for want of prosecution when called for trial; Re Levi & Klauber, C. C. A., 14 Fed. 962. Notice to the creditors who had not joined in the petition was not This rule does not apply to a dismissal because the petition is insufficient, or after a trial when the issues raised by the petition and answer have not been sustained by the petitioners.3 A motion to dismiss is the proper remedy to test the sufficiency of the petition. Upon such a motion the facts alleged in the petition will be presumed to be true.5 Where a proceeding of voluntary bankruptcy was begun in order to obtain a discharge from a debt which could not be discharged by bankruptcy, it was held that the court might dismiss the proceeding instead of denying a discharge. It has been held: that a proceeding for voluntary bankruptcy cannot after adjudication be dismissed at the bankrupt's motion on the consent of all the creditors,7 that it is improper practice to include in the order of dismissal a reservation to other creditors of the right to intervene and have the matter reopened; or to set aside an order of dismissal made pursuant to an agreement with the creditors for a settlement because the agreement was not made or performed by the bankrupt in good faith, or after the dismissal to determine a controversy between a creditor and the alleged bankrupt.10 A judgment of dismissal is an adjudication binding upon the petitioners or intervening creditors so far as concerns the required; it was then further held that a petition of voluntary bankruptcy may then be withdrawn at any time before a creditor had proved a claim; Re Hebbart, 104 Fed. 322; Moulton v. Coburn, C. C. A., 131 Fed. 201; provided all costs and fees of officers were paid; Re Salaberry, 107 Fed. 95. That permission to withdraw was not void for failure to give notice to the other creditors; Re Jemison Mercantile Co., C. C. A., 112 Fed. 966, 968, 972; but that it was error to grant such an application when other creditors then appeared and opposed the same; Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000, 1007. 2 Re Mason-Seaman Transp. Co., 235 Fed. 974. 3 Lackawanna Leather Co. v. La Porte Carriage Co., C. C. A., 211 Fed. 318. 4 Re Mason Seaman Transp. Co., 235 Fed. 974. 5 Graham Mfg. Co. V. DavyPochahontas Coal Co., C. C. A., 238 Fed. 488. 6 Re Shepardson, 220 Fed. 186; Re Nash, 249 Fed. 375. 7 Re M'Kee, 214 Fed. 885. 8 Trammell v. Yarbrough, C. C. A., 254 Fed. 585; holding that such creditors must begin a new proceeding subject to the statutory limitation as to time. 9 Re Kaufman, 253 Fed. 301. 10 Re Sig. H. Rosenblatt & Co. C. C. A., 193 Fed. 638. |