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a claim shall have been reconsidered and rejected, in whole or in part, upon which a dividend has been paid, the trustee may recover from the creditor the amount of the dividend received upon the claim if rejected in whole, or the proportional part thereof if rejected only in part. (m) The claim of any estate which is being administered in bankruptcy against any like estate may be proved by the trustee and allowed by the court in the same manner and upon like terms as the claims of other creditors."' 16 “Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.” 17
amine the claimant, Re Sumner, 101 Fed. 224; Re Castle Braid Co., 145 Fed. 224; as well as other witnesses, Re Sumner, 101 Fed. 224. It is said to be improper for the attorney for the trustee, Re Stern, C. C. A., 144 Fed. 956; or for the attorney for the bankrupt, Re Wooten, 118 Fed. 670; to represent the claimant when objections to the same are interposed. A rehearing was denied where it was made solely for the purpose of renewing the petitioner's right of appeal. Re Girard. Glazed Kid Co., 129 Fed. 841. See $ 667, infra.
16 30 St. at L. 544, § 57.
17 Ibid, $ 63b, Re Heinsfurter, 97 Fed. 198; Henry Siegel Co., 223 Fed. 368. A claim not provable cannot thus be liquidated, Moore v. Douglas, C. C. A., 230 Fed. 399; Re Hutchcraft, 247 Fed. 187. There may be a liquidation of a claim for damages for a breach of promise of marriage. Re Martin, C. C. A., 228 Fed. 184. The claim may be liquidated before the referee, Re Duquesne Incandescent Light Co., 176 Fed. 785, or in a State court, Re Havens, 182 Fed. 367; Re Martin, C. C A.., 228 Fed.
The liquidation of a claim should ordinarily be before the judge or referee in bankruptcy, Re Heim Milk Product Co., 183 Fed. 787. They should not be liquidated by a proceeding in the State court taken subsequent to the institution of the bankruptcy proceedings, unless the judge or referee so directs. Under the Act of 1867 (14 St. at L. 517) it was held that the filing of a proof of claim in bankruptcy is not a waiver of a right of action upon the same in another court, and that if the trustee does not apply for a stay of a suit pending before the petition was filed, judgment therein is proper proof of the amount claimed as liquidated. Re Buchan's Soap Corp., 169 Fed. 1017. A judgment against the bankrupt by default in a State court a few days before the bankruptcy was held not to be conclusive. Re Stuck Trucking & Rigging Co., 243 Fed. 287. The trustee cannot without the consent of the court of bankruptcy consent to liquidation in a State court. Re Soltman, 238 Fed. 241. Where the holder of an unliquidated claim is one of the petitioning creditors, the liquidation
8 646. Time for proof of claim. “Claims shall not be proved against a bankrupt estate subsequent to one · year after the adjudication;? or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, then within sixty days after the rendition of such judgment : 2 Provided, that the right of infants and insane persons without guardians, without notice of the proceedings, may continue six months longer."'
may be made before the adjudication. F. L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445.
8 646. 1 The time to prove claims against the estate in general cannot be limited to a shorter period. Re Lathrop, Haskins & Co., C. C. A., 223 Fed. 912; Re Dunlap Carpet Co., 206 Fed. 726; but the court may limit the time for the presentation of claims to certain assets provided that due notice and reasonable time is given to all the parties interested. Ibid. Re T. A. McIntyre & Co., C. C. A., 176 Fed. 552. The time cannot be extended for any cause not specified in the statute, Re Trion Mfg. Co., 224 Fed. 521; nor because of accident or mistake, Re Sanderson, 160 Fed. 278; nor because of the concealment of assets, Re Peck, C. C. A., 168 Fed. 48; Re Meyer, 181 Fed. 904; Re Shaffer, 104 Fed. 982; Chapman v. Whitsett, C. C. A., 236 Fed. 573. Contra, Re Pierson, 174 Fed. 160; nor it has been held, by the filing of a supplemental petition showing new assets, Re Shaffer, 104 Fed. 982. See Re Peck, C. C. A., 168 Fed. 48. But where, through the fraud of the bankrupt, the schedule stated no assets and consequently no claims were proved, no trustee appointed, the bankrupt discharged and the estate closed, upon the discovery of assets, the estate was reopened and the filing of claims was permitted subsequent to the year. Re Pierson, 174 Fed. 160. Where no creditor objected, a single creditor who had been thus deceived by the bankrupt was allowed to
prove his claim after the statutory period. Re Towne, 122 Fed. 313 But see, Re Kansco, 208 Fed. 201. The time cannot be extended because the claim was scheduled by the bankrupt, although in proceedings for a composition, he has deposited sufficient to pay a dividend upon the claim if proved, Re Bland, 188 Fed. 452. The time cannot be extended by an order nunc pro tunc, Re Co-operative Knitting Mills, 202 Fed. 1016. The limitation does not apply to a claim for an expense of administration of the estate, Re Green, 231 Fed. 253; nor to a claim of ownership of property adverse to the bankrupt, Nauman Co. v. Bradshaw, C. C. A., 193 Fed. 350; nor affect a creditor's right to plead his claim as a set-off or counter-claim in an action by the trustee to recover his indebtedness to the estate; Norfolk & W. Ry. Co. v. Graham, C. C. A., 145 Fed. 809; nor, it has been held, does it apply to the United States, Re Stoever, 127 Fed. 394; nor it has been held to beneficiaries of a trust when a trustee has made proof in time without due authority, Re A. J. Ellis, Inc., C. C. A., 252 Fed. 483; nor to an assignee whose assignor has made proof in due time; Re Breakwater Co., 232 Fed. 375.
In case of an appeal or writ of error to review the adjudication, the time to prove claims was extended until one year after the affirmance of the order below or the dismissal of the writ or appeal, Re Lee, 171 Fed. 266. Where an order vacating an adjudication was reversed; the
time was deemed to run for a year thereafter, Re Malkan, 265 Fed. 867. Claims may be assigned, Re Miner, 114 Fed. 998; even after the year allowed for proof of claim, Hutchinson v. Otis, C. C. A., 115 Fed. 937. 2 30 St. at L. 544, 566, $ 57, subd.
Where a claim is liquidated by litigation, proof thereof may be made within sixty days after the rendition of the judgment, no matter how long subsequent to the or. der such judgment was entered. Powell v. Leavitt, C. C. A., 150 Fed. 89, 80 C. C. A., 43; Re Strobel, 163 Fed. 787. Contra Re Edelen, 248 Fed. 580. Where claimant is in good faith engaged in litigation either in a court of bankruptcy, Powell v. Leavitt, C. C. A., 150 Fed. 89, 80 C. C. A., 43; Re Landis, 156 Fed. 318; Re Strobel, 163 Fed. 787; Re Otto F. Lange Co., 170 Fed. 114; Re Standard Telephone & Electric Co., 186 Fed. 586. See Page v. Rogers, 211 U. S. 575, 581, 53 L. ed. 332, or a State court, Re Baird, 154 Fed. 215; Re Keyes, 160 Fed. 763. See Keppel v. Tiffin Sav. Bank, 197 U. S. 356, 49 L. ed. 790; to enforce, Powell v. Leavitt, C. C. A., 150 Fed. 89, 80 C. C. A., 43; Re Baird, 154 Fed. 215, overruling Re Baird, February 6, 1907; Re Strobel, 163 Fed. 787; Re Otto F. Lange Co., 170 Fed. 114; Re Standard Telephone & Electric Co., 186 Fed. 586. See Keppel v. Tiffin Sav. Bank, 197 U. S. 356, 49 L. ed. 790; Page v. Rogers, 211 U. S. 575, 581, 53 L. ed. 332. Contra, Re Fagan, 140
Fed. 758; Re Kemper, 142 Fed. 210; or defend, Keppel v. Tiffin Savings Bank, 197 U. $. 356, 25 Sup. Ct., 443, 49 L. ed. 790; Hutchinson v. Otis, 190 U. S. 552, 23 Sup. Ct., 778, 47 L. ed. 1179; Page v. Rogers, 211 U. S. 575, 581, 29 Sup. Ct., 159, 53 L. ed. 332; Re Shiebler, 165 Fed. 363; Re John A. Baker Notion Co., 180 Fed. 922; Re Clark, 176 Fed. 955; Re Cahill, 208 Fed. 193; Re Louis J. Berg. doll Motor Co., C. C. A., 233 Fed. 410; a preference or a claim to security, Re Salvator Brewing Co., C. C. A., 193 Fed. 989, where it does not clearly appear
whether the claimant was a party to the litigation, his claim is not liquidated so as to set the statute in motion until the final judgment therein is entered. Where , security for part of the claim was set aside by the State court and the Supreme Court of the United States more than a year before the attempt to prove the claim, and the claimants had since then continually insisted in bankruptcy proceedings that they had security for the rest, and notes given to them were shown by the bankrupts' schedules; it was held that they might prove the part not solely secured by the mortgage that was set aside. Re Vogt, 188 Fed. 764, in which the writer was counsel. Where as a result of the litigation, each
party recovered judgment for costs; it was held that the time for filing the claim expired at least sixty days after an order off-setting those judgments and that it was not extended by
$ 647. Provable claims. “Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest; 1 (2) due as costs taxable against an involuntary bankrupt who was at the time of the filing of the petition against him plaintiff in a cause of action which would pass to the trustee and which the trustee declines to prosecute after notice; (3) founded upon a claim for taxable costs incurred in good faith by a creditor before the filing of the petition in an action to recover a provable debt; 2 (4) founded upon an open account, or upon a contract express or implied ;8 and (5) founded upon provable debts reduced to judgments after the filing of the petition and before the consideration of the bankrupt's application for a discharge, less costs incurred and interests accrued after the filing of the petition and up to the time of the entry of such judgments. (b) Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.”'4 A claim may be proved which is purely equitable and not recognized by a court of common law. It seems that a debt barred by the statute of limitations may be proved when the bankrupt interposes no objection to the same, but that it is not entitled to any dividend until the other creditors have been paid in full.? The provability of a debt
the fact that the balance was not paid until later. Re Clover Creamery Ass ’n., C. C. A., 176 Fed. 907. Where a suit to set aside a prefer
was not brought until more than a year after the adjudication, it was held that the creditor was entitled to rely upon his preference until that time and that he could prove his claim within sixty days after his defeat in such litigation. Re Clark, 176 Fed. 955.
But see Re Havens, 182 Fed. 367. It has been said, that the clause of the bankruptcy act containing this short statute of limitations does not apply to the claims of creditors who have been deprived of prefer
which are merely voidable, but that such may be proved and allowed after the preference has been surrendered at any time before the estate is finally settled. Re Otto F. Lange Co., 170 Fed. 114, 116. An agreement made be. tween the trustee and a creditor as to the value of the latter's security made pending a suit in which this question was involved is a liquidation by litigation within the meaning of the statute, Kansas City Southern Ry Co. v. Maynor, C. C. A., 209 Fed. 611. But not, it has been held, litigation to which neither the bankrupt or his receiver or trustee was a party, Moore v. Simms, C. C. A., 257 Fed. 540; Re Edelen, 248 Fed. 580; nor does a foreclosure action brought in State court within the year, not justify the proof of a judgment for a
deficiency thereafter, Re Sampter, C. C. A., 170 Fed. 938.
3 See Re Co-operative Knitting Mills, 202 Fed. 1016. The delivery of the claim to the trustee within the year is sufficient, although he fails to file it with the referee. J. B. Orchutt v. Green, 204 U. S. 96, 27 Sup. Ct., 195, 51 L. ed. 390; Orinoco Iron Co. v. Metzel, C. C. A., 230 Fed. 40. It has been held that relief cannot be given to a creditor who handed his claim to an employee of the trustree in the trustee's office within the year and the latter failed to file the same, it not appearing in what capacity such person was employed by the trustee. Re Lathrop, Haskins & Co., C. C. A., 197 Fed. 164. Nor is it sufficient for the trustee to file his own claim with himself, or to give it to his attorney for filing with the referee when such attorney fails to do so. J. B. Orchutt v. Green, 204 U. S. 96, 27 Sup. Ct. 196, 51 L. ed. 390. So where the cliamant sent the receiver
unverified account showing a general balance and its attorney testified that the receiver, who was afterwards trustee, shortly thereafter said that “it was all right, which conversation the receiver testified that he did not recollect. Re Alfred Kessler & Co., 176 Fed. 647; Re French, 181 Fed. 583. The filing is sufficient, although it is returned by the referee for correction and not refiled within the statutory period. Re Haskell, 128 Fed. 819.
$ 647. i Beaven v. Stuart, C. C. A., 250 Fed. 972.
2 Stenographers' and referees' fees, when taxable by the State law, may be proved as such costs. Re J. B. Brewster & Co., C. C. A., 180 Fed. 109. The right to costs is not lost because the creditor knew or believed, when the suit was brought, that the debtor was in financial difficulty. Re Harnden, 200 Fed. 172. A surety upon the bankrupt's bond for costs on appeal may prove his claim for the costs that he has paid. Re Lyons Beet Sugar Refining Co., 192 Fed. 445. Cf. $ 649, infra.
3 Re D. C. Clark Shoe Co., 211 Fed. 341; Re R. R. Hutchcraft, 247 Fed. 187.
430 St, at L. 544, 562, 563, § 63; Re Heinsfurter, 97 Fed. 198.
5 Re Putnam, 193 Fed. 464.
6 Re Currier, 192 Fed. 695, Contra, Re Putnam, 193 Fed. 464.
7 Re Currier, 192 Fed. 695. Cf. $ 652, infra. It has been held that a payment upon such a debt made after the bankrupt has become insolvent, Re Salmon, C. C. A., 249 Fed. 300; Re Banks, 207 Fed. 662; or an acknowledgement thereof in writing, Re Blankenship, 220 Fed. 395; will authorize the creditor to