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fused the certificate of conformity required by rule 10. The facts therefore give rise to the presumption or suspicion that some act was done either by or on behalf of the bankrupt to secure the discontinuance of such opposition, or that the objecting creditors have been induced. to withdraw the same, and to allow the discharge to be granted. has been held that, if the opposition of the creditor is bought off, it is such a fraud, under the bankrupt act, as would warrant vacating a discharge. In re Dietz (D. C.) 97 Fed. 563. There is no doubt that the court has the power to refuse a discharge to a bankrupt where the entire proceeding is a palpable fraud upon the creditors. Without now determining that question, I believe a proper disposition at this time of the application of the bankrupt for discharge, in view of the prima facie showing of fraud, is to refer the matter back to the referee, with instructions to ascertain and report whether opposition to the discharge has actually been abandoned by the creditors, and whether such abandonment was induced in consideration of payment or part payment of their claims.
The discharge of the bankrupt will accordingly be withheld until the further report of the referee on the questions now submitted to him.
TIFFANY v. UNITED STATES.
(Circuit Court, S. D. New York. May 23, 1904.)
1. CUSTOMS DUTIES-CLASSIFICATION-SILVER HAND BAGS-JEWELRY. Women's silver hand bags or purses, used for holding money, articles of wearing apparel, etc., are not within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 434, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for “articles commonly known as jewelry," but are dutiable as articles of silver under paragraph 193 of said act, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645].
Appeal by the Importers from a Decision of the Board of United. States General Appraisers.
On application for review of a decision of the Board of General Appraisers. The merchandise consisted of so-called “aumoniers," imported by C. L. Tiffany at the port of New York, and classified under the provision in Tariff Act July 24, 1897, c. 11, § 1. Schedule N, par. 434, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for “articles commonly known as jewelry." These articles were composed of silver wire, partly oxidized, with a clasp, ring, and chains of the same material, and were intended to be used as hand bags or purses for holding money, articles of wearing apparel, etc. On the authority of a former decision (G. A. 4,829, T. D. 22,688), the board affirmed the collector's assessment of duty.
William B. Coughtry, for importer.
Charles Duane Baker, Asst. U. S. Atty.
TOWNSEND, Circuit Judge. The merchandise in question comprises hand bags or purses carried by women on the arm, in the hand,
or suspended from the belt, and used for holding money, articles of wearing apparel, tickets, and similar articles. They were assessed for duty under the provisions of paragraph 434 of the act of 1897 as "articles commonly known as jewelry.' The importer protested, claiming that they were dutiable under the provisions of paragraph 193 of said act as "articles composed of silver." The uncontradicted testimony of witnesses from various branches of trade, including dealers in jewelry, fancy goods, silverware, and of salesmen in the department stores, shows that these articles are not commonly known as jewelry, and are not manufactured in jewelry factories, or sold as articles of jewelry. The decision of the Board of General Appraisers is reversed.
NARETTI v. SCULLY.
(District Court, E. D. Pennsylvania. July 30, 1904.)
Where, on an issue as to the validity of a release of a judgment, the answer alleged that the release was executed without consideration, but the release showed on its face that a consideration was paid, and the depositions failed to sustain the answer, but tended to show that libelant was coerced into executing the release through fear of imprisonment, the latter would be permitted to amend his answer so as to attack the validity of the release on that ground.
In Admiralty. Upon a rule to show cause why clerk should not file a release, the libelant was permitted to amend his answer.
Joseph Hill Brinton, for libelant.
HOLLAND, District Judge. In the matter of the petition of John Scully, by his attorney, George Hart, for a rule on the clerk to file a release of a judgment against the said respondent in the above-mentioned case, I have carefully read the depositions on both sides. The petition alleges the execution of the release of this judgment, and the filing of the same with the clerk. The libelant alleges, as a matter of defense, that there was no consideration for the execution of the same, but the release shows upon its face that there was a consideration paid. It is duly executed, and properly witnessed before a notary public, although its execution is denied by the libelant. The facts in this case are rather extraordinary, and call for a thorough investigation. Papers properly and legally executed cannot be set aside without proper proceedings had, and deliberate consideration of the same. The depositions of respondent fail to sustain the answer, but, taken together with those of the libelant, they would indicate that the libelant was coerced into executing this release through fear of imprisonment. If that is the case, the answer should fully state the facts as they really are, and attack the validity of the release upon such grounds as will
enable the court to investigate its validity, and depositions taken to ascertain the exact truth in the matter.
The libelant is therefore allowed to amend his answer, in accordance with the facts as stated at the argument, and as indicated in the depositions, on or before September 1st.
THE R. C. VEIT.
(District Court, E. D. Pennsylvania. July 30, 1904.)
1. ADMIRALTY-REGISTRY-DEPOSITS--SUBSTITUTION OF BOND.
Where a fund has been deposited in the registry of a federal District Court. in admiralty, a motion for leave to withdraw a portion of the fund and substitute a bond therefor will not be granted; the practice in such cases being to distribute the fund in the registry in accordance with the provisions of admiralty rules 57 and 58.
In Admiralty. Motion to take out fund in the registry denied.
J. Warren Coulston, for respondent.
HOLLAND, District Judge. This is a motion on behalf of the respondent to be allowed to take out a portion or the whole of a fund remaining in the registry of the court, and to substitute a bond for such amount as is taken out. The practice heretofore, in cases of this kind, in this district, so far back as it can be ascertained, has been to distribute the fund in the registry in accordance with the provisions of the rules of court Nos. 57 and 58 in admiralty. Numerous applications have been made, which have heretofore been refused. I am not, therefore, inclined by this order to establish a new practice.
The application is therefore refused.
JAMES v. GRAY. In re JAMES et al. Ex parte JAMES.
(Circuit Court of Appeals, First Circuit. July 6, 1904.)
1. BANKRUPTCY-PROVABLE DEBTS-LOAN BY WIFE TO HUSBAND.
A loan made by a wife to her husband from her separate estate is provable as a debt against his estate in bankruptcy without regard to its enforceability under the law of the state, the contract being valid in equity, by the principles of which courts of bankruptcy are governed; and there is no distinction in such respect between an estate to the wife's separate use, as known to the chancery courts, and a separate estate created by statute.
Aldrich, District Judge, dissenting.
Appeal from the District Court of the United States for the District of Massachusetts.
Joseph H. Beale (Beale, Hutchings & Beale, on the brief), for appellant.
Lee M. Friedman (Morse & Friedman, on the brief), for appellee. Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
PUTNAM, Circuit Judge. This is a case of a bankrupt partnership. Proof of a claim of $20,469.46 for money loaned the partnership was offered by the wife of one of the bankrupt partners, and rejected by the District Court on the strength of In re Talbot, 110 Fed. 924. În re Talbot rested on Woodward v. Spurr, 141 Mass. 283, 6 N. E. 521, and Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022, 51 L. R. A. 447. The District Court also made reference to Clark v. Patterson, 158 Mass. 388, 33 N. E. 589, 35 Am. St. Rep. 498.
All the transactions were in Massachusetts, and all the parties are residents of that state. The common and statutory laws of Massachusetts relating to this loan are, as we will see, in harmony with the commonlaw text writers and authorities, so that, so far as they are concerned, the claim could not be allowed in either the federal or state courts, because, on the ground of the unity of the persons of the husband and wife, no contract could ever exist. Therefore, if we had no separate estate as known to the chancery courts, and no statutory separate estate, the decision of the District Court would necessarily be affirmed.
The case involves the statutes which were re-enacted in Rev. Laws Mass. 1902, c. 153, §§ 1, 2, as follows:
"Section 1. The real and personal property of a woman shall upon her marriage remain her separate property, and a married woman may receive, receipt for, hold. manage and dispose of property, real and personal, in the same manner as if she were sole. But no conveyance by a married woman of real property shall, except as provided in section 36, extinguish or impair her husband's tenancy by the curtesy by statute or his rights to curtesy which existed at the time this chapter takes effect in such property unless he joins in the conveyance or otherwise releases his said rights.
"Sec. 2. A married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, except that she shall not be authorized hereby to make contracts with her husband."
It will be observed that, unlike the statutes of many states, this legislation does not enlarge the common law so far as contracts between husband and wife are concerned. If any relief is found, it must be on equitable principles, treating the property vested in the wife under the statute as a separate estate in equity, or analogous thereto. The existing statutes in bankruptcy make no special provision in reference to claims of this character; but that full equitable principles are accepted by the courts in bankruptcy was determined by us in Batchelder & Lincoln Co. v. Whitmore, 122 Fed. 355, 58 C. C. A. 517, and in Franklin Chase et al., Petitioners, 124 Fed. 753, 59 C. C. A. 629. There can be no question that equitable claims, as, for instance, claims arising out of a breach of trust in the technical sense of the word "trust,' are provable under Act July 1, 1898, c. 541, § 63, 30 Stat. 562, 563 [U. S. Comp. St. 1901, p. 3447]. They are to be regarded either as "unliquidated claims" or as claims founded "upon a contract, express or implied," because every trust involves such a contract. There never has been any question on this score in the United States, and in England the rule is the same. Williams' Bankruptcy Practice (7th Ed. 1898) at page 120, says:
“A breach of trust, although it would afford a good ground for an action of tort for unliquidated damages, is always, even without express enactment, held to create a debt in equity."
The learned author makes this observation as part of his description. of debts provable in bankruptcy. At pages 36 and 37 the learned author, speaking of the words describing provable debts in the act of 1869, "due at law and in equity," says:
"These words do not appear in the present act, but it would not seem that the law has been changed by the omission of them.”
In Ex parte Wells, 2 M., D. & De G. 504, the value of a legacy of stock, bequeathed to the wife's separate use, but transferred to the name of her husband, who sold it out and became bankrupt, was held provable. In Ex parte Greer, 2 D. & Ch. 113, it was decided that the income of an estate settled in trust for the wife might be used by the husband with her consent without creating a debt, yet the whole theory of the case was that, if the principal had been so used, it would create a debt provable in bankruptcy. These decisions are in all respects analogous, as they arise with reference to a claim of a married woman against her husband in connection with her separate estate.
It must be conceded that the decisions of the Supreme Judicial Court of Massachusetts, which have been referred to by the learned judge of the District Court, would, if they controlled this court, compel us to sustain his decree. Clark v. Patterson, 158 Mass. 388, 33 N. E. 589, 35 Am. St. Rep. 498, was a bill in equity, brought by a wife against a partnership of which her husband was a member, for relief with reference to a loan made to the partnership from her separate estate. The court held that relief could not be granted even in equity, stating, at page 391, 158 Mass., page 591, 33 N. E., 35 Am. St. Rep. 498, that the note was void as between the original parties, having been given to a wife by a partnership of which her husband was a member, and, with a citation of prior decisions of the same court, adds that equity does