Bankruptcy. Involuntary Petition. Provable Claims. In Re Stern, 116 Fed. 604

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  • The Yale Law Journal Company, Inc.

    Bankruptcy. Involuntary Petition. Provable Claims. In Re Stern, 116 Fed. 604Source: The Yale Law Journal, Vol. 12, No. 4 (Feb., 1903), p. 246Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/781949 .Accessed: 24/05/2014 15:32

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  • YALE LAW JO URNAL. YALE LAW JO URNAL.

    RECENT CASES.

    ASSIGNMENTS-FOREIGN CREDITORS' RIGHTS.-BLOOMINGDALE V. WEIL,

    70 PAC. 94 (WASH.) .-Foreign creditors, through proceedings in the local courts, attached property covered by a foreign voluntary assignment to another party. Held, that foreign creditors do not, by virtue of entering suit in the local courts, acquire the right of local creditors to have the

    assignment set aside. There has been frequent discussion as to the operation of voluntary

    assignments in other States, and the weight of authority seems to be that such assignments will be respected, except when in conflict with the rights of local creditors. Barnett v. Kinney, 147 U. S. 476; May v. Wannemacher, III Mass. 202; Lowzry v. Hall, 2 W. & S. (Pa.) 131; Woodward v. Brooks, 128 Ill. 222. In Palmer v. Mason, 42 Mich. 146, the assignee's title to real

    property is held to be superior to that of attaching creditors. The New York doctrine is more liberal towards the foreign creditor, allowing him to

    pursue his remedy in the local courts with the same rights to priority as a local creditor would have. Bank v. Lacombe, 84 N. Y. 367; 3 Am. & Eng. Enc. Law 51. Ex parte Dickinson, 29 S. Car. 453, holds that a preferential foreign assignment is void, and that another foreign creditor may acquire a lien by subsequently attaching realty. See also Exchange Bank v. Stelling, 31 S. Car. 360.

    BANKRUPTCY-INVOLUNTARY PETITION-PROVABLE CLAIMS.-IN RE STERN, 116 FED. 604.-A company which was furnishing its customers ice, under contracts covering a period of several years, broke such contracts and became unable to continue them in the future. Held, that claims of customers for

    damages sustained by reason of the company's inability to fulfill the executory portion of such contracts were "provable claims," under section 63 of the

    Bankruptcy Act of 1898, defining provable claims as those founded on contract.

    Though the question as to what constitutes a provable claim has been much discussed, it seems clear that no debt can be proved unless it exists at the time of filing the petition; Collier on Bankruptcy 35I; In re Crawford, Fed. Cas., No. 3363; or, following the same authorities, at the time of the

    adjudication. In re Hennocksburgh, Fed. Cas., No. 6367. The question then

    remains, is an unliquidated claim, founded on an executory contract, which the bankrupt has repudiated, such an existing debt before the time for ful- fillment of the agreement. Though on this point the cases disagree, the

    decision in the present case, holding that a right of action accrues immediately,

    plainly follows the weight of authority, both in England, Hochster v. De La

    Tour, 2 El. & B1. 678, and in this country; Burtis v. Thompson, 42 N. Y.

    246; even though the contract be divisible. Roehm v. Horst, 178 U. S. I. Even in Massachusetts, where the contrary view is most strongly held, Daniels v. Newton, 114 Mass. 530, the decisions are not uniform. Newcomb v. Brackett, I6 Mass. I6I.

    RECENT CASES.

    ASSIGNMENTS-FOREIGN CREDITORS' RIGHTS.-BLOOMINGDALE V. WEIL,

    70 PAC. 94 (WASH.) .-Foreign creditors, through proceedings in the local courts, attached property covered by a foreign voluntary assignment to another party. Held, that foreign creditors do not, by virtue of entering suit in the local courts, acquire the right of local creditors to have the

    assignment set aside. There has been frequent discussion as to the operation of voluntary

    assignments in other States, and the weight of authority seems to be that such assignments will be respected, except when in conflict with the rights of local creditors. Barnett v. Kinney, 147 U. S. 476; May v. Wannemacher, III Mass. 202; Lowzry v. Hall, 2 W. & S. (Pa.) 131; Woodward v. Brooks, 128 Ill. 222. In Palmer v. Mason, 42 Mich. 146, the assignee's title to real

    property is held to be superior to that of attaching creditors. The New York doctrine is more liberal towards the foreign creditor, allowing him to

    pursue his remedy in the local courts with the same rights to priority as a local creditor would have. Bank v. Lacombe, 84 N. Y. 367; 3 Am. & Eng. Enc. Law 51. Ex parte Dickinson, 29 S. Car. 453, holds that a preferential foreign assignment is void, and that another foreign creditor may acquire a lien by subsequently attaching realty. See also Exchange Bank v. Stelling, 31 S. Car. 360.

    BANKRUPTCY-INVOLUNTARY PETITION-PROVABLE CLAIMS.-IN RE STERN, 116 FED. 604.-A company which was furnishing its customers ice, under contracts covering a period of several years, broke such contracts and became unable to continue them in the future. Held, that claims of customers for

    damages sustained by reason of the company's inability to fulfill the executory portion of such contracts were "provable claims," under section 63 of the

    Bankruptcy Act of 1898, defining provable claims as those founded on contract.

    Though the question as to what constitutes a provable claim has been much discussed, it seems clear that no debt can be proved unless it exists at the time of filing the petition; Collier on Bankruptcy 35I; In re Crawford, Fed. Cas., No. 3363; or, following the same authorities, at the time of the

    adjudication. In re Hennocksburgh, Fed. Cas., No. 6367. The question then

    remains, is an unliquidated claim, founded on an executory contract, which the bankrupt has repudiated, such an existing debt before the time for ful- fillment of the agreement. Though on this point the cases disagree, the

    decision in the present case, holding that a right of action accrues immediately,

    plainly follows the weight of authority, both in England, Hochster v. De La

    Tour, 2 El. & B1. 678, and in this country; Burtis v. Thompson, 42 N. Y.

    246; even though the contract be divisible. Roehm v. Horst, 178 U. S. I. Even in Massachusetts, where the contrary view is most strongly held, Daniels v. Newton, 114 Mass. 530, the decisions are not uniform. Newcomb v. Brackett, I6 Mass. I6I.

    246 246

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    Article Contentsp.246

    Issue Table of ContentsThe Yale Law Journal, Vol. 12, No. 4 (Feb., 1903), pp. 185-258+i-xviFront MatterLegal Duties and Rights [pp.185-212]The Supreme Court of Porto Rico [pp.213-215]The Community of Acquests and Gains [pp.216-225]The Objects of Criminal Procedure as They Appear to a French Prosecuting Officer [pp.226-233]The Supreme Court of Connecticut [pp.234-237]CommentVolenti Non Fit Injuria [pp.238-240]Foreign Corporations. Right of Action after Failure to Comply with State Registry Law [pp.240-241]The Extent of the Postmaster General's Right to Regulate the Use of the Mails [pp.241-242]Husband's Liability for Wife's Torts as Affected by Married Women's Property Acts [pp.242-243]Ornaments as Fixtures [pp.243-245]

    Recent CasesAssignments. Foreign Creditors' Rights. Bloomingdale v. Weil, 70 Pac. 94 (Wash.) [p.246]Bankruptcy. Involuntary Petition. Provable Claims. In Re Stern, 116 Fed. 604 [p.246]Bankruptcy. Judgment Enforcing Lien. Jurisdiction of Bankruptcy Court. Metcalf Bros. v. Barker, Trustee, 23 Sup. Ct. Rep. 67 [p.247]Bankruptcy. Liability on Lease. In Re Hays, Foster & Ward Co., 117 Fed. 879 [p.247]Carriers. Street Railway Transfers. Mistake of Agent. Lawshe v. Tacoma Ry. Co., 70 Pac. 118 (Wash.) [pp.247-248]Check. Liability of Drawer. Presentation. Edmisten v. Herpolsheimer et al., 92 N. W. 138 (Neb.) [p.248]Consideration. Payment of Debt of Third Party. Promise to Repay. Thomson et al. v. Thomson, 78 N. Y. Supp. 389 [p.248]Constitutional Law. Limiting Hours of Employment of Women. State v. Buchanan, 70 Pac. 52 (Wash.) [p.248]Constitutional Law. Police Power. Regulation of Sheep Herding. Sweet v. Ballentine, 69 Pac. 995 (Idaho). Sifers v. Johnson [p.249]Customs Duties. Importations from Algeria. Question for the Courts. Tartar Chemical Co. v. United States, 116 Fed. 726 [p.249]Gifts. Causa Mortis. Public Policy. Deneff v. Helms, 70 Pac. 300 (Ore.) [pp.249-250]Illegitimate Child. Transfer of Custody by Mother. Validity. Cusset v. Euvrard, 52 Atl. 1110 (N. J.) [p.250]Injunction. Agreement Not to Oppose. National Phonograph Co. v. Schlegel, 117 Fed. 624 [p.250]Injunction. Picketing. Foster et al. v. Retail Clerks' Protective Ass'n. et al., 78 N. Y. Supp. 860 [pp.250-251]Master and Servant. Fellow Servant. Orman et al. v. Salvo, 117 Fed. 223 [p.251]Minors. Necessaries. Counsel Fees. Crafts v. Carr, 53 Atl. 275 (R. I.) [p.251]Negligence. Injuries to Children. Liability of Landowner. Paolino v. McKendall, 53 Atl. 268 (R. I.) [pp.251-252]Negligence. Injury to Railroad Employe. Liability of Connecting Line. Mo., etc., Ry. Co. v. Merrill, 70 Pac. 358 (Kan.) [p.252]Negotiable Instruments. Debenture Payable to Bearer. Usage. Holder for Value. Edelstein v. Schuler & Co. (1902) 2 K. B. 144 [p.252]Personal Injuries. Claims. Assignability. Ry. v. Ginther, 70 S. W. 96 (Tex.) [pp.252-253]Specific Performance. Vendor and Purchaser. Mistake. Van Praagh v. Everidge (1902), 2 Ch. 266 (Eng.) [p.253]Street Railroads. Negligence. Duty to Look. Beerman v. Union R. Co., 52 Atl. 1090 (R. I.) [p.253]Subterranean Waters. Rights of Landowner. Reasonable Use. Sale of Water. Katz et al. v. Walkinshaw, 70 Pac. 663 (Cql.) [p.253]

    Reviewsuntitled [pp.254-255]untitled [p.255]untitled [pp.255-256]

    Acknowledgments [p.256]School and Alumni Notes [pp.257-258]Back Matter [pp.i-xvi]

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