Bankruptcy. Involuntary Proceedings. Joining Additional Creditors in Petition

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  • Bankruptcy. Involuntary Proceedings. Joining Additional Creditors in PetitionSource: Harvard Law Review, Vol. 23, No. 6 (Apr., 1910), p. 479Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1325379 .Accessed: 22/05/2014 11:14

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  • RECENT CASES. RECENT CASES. RECENT CASES. 479 479 479

    authority depended were equally known by both parties, that seems an insuffi- cient ground for distinction. Starkey v. Bank of England, supra. Contra, New- port v. Smith, 6i Minn. 277. An agent can escape liability only by expressly bringing home to the party with whom he contracts his intention not to warrant his authority. Lilly, Wilson, &, Co. v. Smales, Eales, &6 Co., [1892] i Q. B. 456. So the principal case seems correct in overruling Smout v. Ilbery.

    BANKRUPTCY- INVOLUNTARY PROCEEDINGS- JOINING ADDITIONAL CRED- ITORS IN PETITION.- A filed a petition in involuntary bankruptcy against B, alleging that B had less than twelve creditors, and naming as an act of bankruptcy a preference given to the defendant. The defendant's answer disclosed that B had more than twelve creditors. The requisite number of creditors then joined with A in an amendment which was filed more than four months after the commission of the act of bankruptcy. Held, that the amendment relates back to the date of filing the original petition. First State Bank of Corinth v. Haswell, 174 Fed. 209 (C. C. A., Eighth Circ.).

    A petition in involuntary bankruptcy can be amended in minor particulars at the discretion of the court according to the general rules governing amendments of pleadings. Armstrong v. Fernandez, 208 U. S. 324. Section 59f of the Bank- ruptcy Act of 1898 provides that "creditors other than the original petitioners may at any time enter their appearance and join in the petition." Under this section it has been repeatedly held, in accord with the principal case, that additional cred- itors can be joined to cure a jurisdictional defect in the petition more than four months after the commission of the act of bankruptcy. In re Romanow, 92 Fed. 5I0; Ryan v. Hendricks, i66 Fed. 94. This provision seems unfortunate, as it apparently deprives the court of all discretion in permitting the intervention of additional creditors in the petition, and it would seem that an utterly worthless petition filed by persons who are not creditors at all, may be cured by joining real creditors after the four months' period has elapsed. The decisions that addi- tional creditors cannot be joined more than four months after the act of bank- ruptcy if the jurisdictional defect appears on the face of the petition seem questionable. See In re Stein, I30 Fed. 377; In re Bedingfield, 96 Fed. I90.

    BILLS AND NOTES - PURCHASER FOR VALUE WITHOUT NOTICE- PLEDGEE AS INNOCENT PURCHASER.- The plaintiff made a note payable to the order of his agent for the purpose of negotiation. After telling the plaintiff that the note had been destroyed, the agent without indorsing it, pledged it for a personal loan to the defendant who took it in good faith. The plaintiff asked that the defendant be restrained from suing and that the note be canceled. Held, that the decree will not be granted. Sublette v. Brewington, 122 S. W. 1150 (Mo., Kan. City Ct. App.).

    When a note payable to order is transferred without indorsement, the transferee takes subject to all equities attached to it, even though he is a bonafide purchaser for value. Goshen National Bank v. Bingham, 118 N. Y. 349; Southard v. Porter, 43 N. . 379. The Negotiable Instruments Law is to the same effect. See BRANNAN, NEG. INST. LAW, ?? 52, 58. The plaintiff can, however, disregard the note and recover on the contract created by the agency. Harper v. National Bank, 54 Oh. St. 425. See Ducarrey v. Gill, M. & M. 450. But as the note in the principal case was payable to the order of the agent, it would seem that a transfer made without indorsement was not within the scope of his authority. Accord- ingly the principal would not be bound thereby; for an agent to sell has no au- thorityto pledge. See Warner v. Martin, II How. (U. S.) 209, 224. Then too, the agency, which was solely for this special purpose, seems to have been terminated by the agent's telling his principal that the note was destroyed. No notice of the revocation in such cases is necessary. Watts v. Kavanagh, 35 Vt. 34. There- fore the subsequent wrongful act of the agent could not bind the principal. Fuentes

    authority depended were equally known by both parties, that seems an insuffi- cient ground for distinction. Starkey v. Bank of England, supra. Contra, New- port v. Smith, 6i Minn. 277. An agent can escape liability only by expressly bringing home to the party with whom he contracts his intention not to warrant his authority. Lilly, Wilson, &, Co. v. Smales, Eales, &6 Co., [1892] i Q. B. 456. So the principal case seems correct in overruling Smout v. Ilbery.

    BANKRUPTCY- INVOLUNTARY PROCEEDINGS- JOINING ADDITIONAL CRED- ITORS IN PETITION.- A filed a petition in involuntary bankruptcy against B, alleging that B had less than twelve creditors, and naming as an act of bankruptcy a preference given to the defendant. The defendant's answer disclosed that B had more than twelve creditors. The requisite number of creditors then joined with A in an amendment which was filed more than four months after the commission of the act of bankruptcy. Held, that the amendment relates back to the date of filing the original petition. First State Bank of Corinth v. Haswell, 174 Fed. 209 (C. C. A., Eighth Circ.).

    A petition in involuntary bankruptcy can be amended in minor particulars at the discretion of the court according to the general rules governing amendments of pleadings. Armstrong v. Fernandez, 208 U. S. 324. Section 59f of the Bank- ruptcy Act of 1898 provides that "creditors other than the original petitioners may at any time enter their appearance and join in the petition." Under this section it has been repeatedly held, in accord with the principal case, that additional cred- itors can be joined to cure a jurisdictional defect in the petition more than four months after the commission of the act of bankruptcy. In re Romanow, 92 Fed. 5I0; Ryan v. Hendricks, i66 Fed. 94. This provision seems unfortunate, as it apparently deprives the court of all discretion in permitting the intervention of additional creditors in the petition, and it would seem that an utterly worthless petition filed by persons who are not creditors at all, may be cured by joining real creditors after the four months' period has elapsed. The decisions that addi- tional creditors cannot be joined more than four months after the act of bank- ruptcy if the jurisdictional defect appears on the face of the petition seem questionable. See In re Stein, I30 Fed. 377; In re Bedingfield, 96 Fed. I90.

    BILLS AND NOTES - PURCHASER FOR VALUE WITHOUT NOTICE- PLEDGEE AS INNOCENT PURCHASER.- The plaintiff made a note payable to the order of his agent for the purpose of negotiation. After telling the plaintiff that the note had been destroyed, the agent without indorsing it, pledged it for a personal loan to the defendant who took it in good faith. The plaintiff asked that the defendant be restrained from suing and that the note be canceled. Held, that the decree will not be granted. Sublette v. Brewington, 122 S. W. 1150 (Mo., Kan. City Ct. App.).

    When a note payable to order is transferred without indorsement, the transferee takes subject to all equities attached to it, even though he is a bonafide purchaser for value. Goshen National Bank v. Bingham, 118 N. Y. 349; Southard v. Porter, 43 N. . 379. The Negotiable Instruments Law is to the same effect. See BRANNAN, NEG. INST. LAW, ?? 52, 58. The plaintiff can, however, disregard the note and recover on the contract created by the agency. Harper v. National Bank, 54 Oh. St. 425. See Ducarrey v. Gill, M. & M. 450. But as the note in the principal case was payable to the order of the agent, it would seem that a transfer made without indorsement was not within the scope of his authority. Accord- ingly the principal would not be bound thereby; for an agent to sell has no au- thorityto pledge. See Warner v. Martin, II How. (U. S.) 209, 224. Then too, the agency, which was solely for this special purpose, seems to have been terminated by the agent's telling his principal that the note was destroyed. No notice of the revocation in such cases is necessary. Watts v. Kavanagh, 35 Vt. 34. There- fore the subsequent wrongful act of the agent could not bind the principal. Fuentes

    authority depended were equally known by both parties, that seems an insuffi- cient ground for distinction. Starkey v. Bank of England, supra. Contra, New- port v. Smith, 6i Minn. 277. An agent can escape liability only by expressly bringing home to the party with whom he contracts his intention not to warrant his authority. Lilly, Wilson, &, Co. v. Smales, Eales, &6 Co., [1892] i Q. B. 456. So the principal case seems correct in overruling Smout v. Ilbery.

    BANKRUPTCY- INVOLUNTARY PROCEEDINGS- JOINING ADDITIONAL CRED- ITORS IN PETITION.- A filed a petition in involuntary bankruptcy against B, alleging that B had less than twelve creditors, and naming as an act of bankruptcy a preference given to the defendant. The defendant's answer disclosed that B had more than twelve creditors. The requisite number of creditors then joined with A in an amendment which was filed more than four months after the commission of the act of bankruptcy. Held, that the amendment relates back to the date of filing the original petition. First State Bank of Corinth v. Haswell, 174 Fed. 209 (C. C. A., Eighth Circ.).

    A petition in involuntary bankruptcy can be amended in minor particulars at the discretion of the court according to the general rules governing amendments of pleadings. Armstrong v. Fernandez, 208 U. S. 324. Section 59f of the Bank- ruptcy Act of 1898 provides that "creditors other than the original petitioners may at any time enter their appearance and join in the petition." Under this section it has been repeatedly held, in accord with the principal case, that additional cred- itors can be joined to cure a jurisdictional defect in the petition more than four months after the commission of the act of bankruptcy. In re Romanow, 92 Fed. 5I0; Ryan v. Hendricks, i66 Fed. 94. This provision seems unfortunate, as it apparently deprives the court of all discretion in permitting the intervention of additional creditors in the petition, and it would seem that an utterly worthless petition filed by persons who are not creditors at all, may be cured by joining real creditors after the four months' period has elapsed. The decisions that addi- tional creditors cannot be joined more than four months after the act of bank- ruptcy if the jurisdictional defect appears on the face of the petition seem questionable. See In re Stein, I30 Fed. 377; In re Bedingfield, 96 Fed. I90.

    BILLS AND NOTES - PURCHASER FOR VALUE WITHOUT NOTICE- PLEDGEE AS INNOCENT PURCHASER.- The plaintiff made a note payable to the order of his agent for the purpose of negotiation. After telling the plaintiff that the note had been destroyed, the agent without indorsing it, pledged it for a personal loan to the defendant who took it in good faith. The plaintiff asked that the defendant be restrained from suing and that the note be canceled. Held, that the decree will not be granted. Sublette v. Brewington, 122 S. W. 1150 (Mo., Kan. City Ct. App.).

    When a note payable to order is transferred without indorsement, the transferee takes subject to all equities attached to it, even though he is a bonafide purchaser for value. Goshen National Bank v. Bingham, 118 N. Y. 349; Southard v. Porter, 43 N. . 379. The Negotiable Instruments Law is to the same effect. See BRANNAN, NEG. INST. LAW, ?? 52, 58. The plaintiff can, however, disregard the note and recover on the contract created by the agency. Harper v. National Bank, 54 Oh. St. 425. See Ducarrey v. Gill, M. & M. 450. But as the note in the principal case was payable to the order of the agent, it would seem that a transfer made without indorsement was not within the scope of his authority. Accord- ingly the principal would not be bound thereby; for an agent to sell has no au- thorityto pledge. See Warner v. Martin, II How. (U. S.) 209, 224. Then too, the agency, which was solely for this special purpose, seems to have been terminated by the agent's telling his principal that the note was destroyed. No notice of the revocation in such cases is necessary. Watts v. Kavanagh, 35 Vt. 34. There- fore the subsequent wrongful act of the agent could not bind the principal. Fuentes

    This content downloaded from 193.104.110.105 on Thu, 22 May 2014 11:14:04 AMAll use subject to JSTOR Terms and Conditions

    http://www.jstor.org/page/info/about/policies/terms.jsp

    Article Contentsp. 479

    Issue Table of ContentsHarvard Law Review, Vol. 23, No. 6 (Apr., 1910), pp. 413-494Freedom of Public Discussion [pp. 413 - 440]Nullification by Indirection [pp. 441 - 455]State and Federal Control of Corporations [pp. 456 - 464]NotesThe Police Power of the States and the Federal Power of Taxation [pp. 465 - 467]Original Probate of Foreign Wills [pp. 467 - 469]Jurisdiction of Equity to Restrain Criminal Proceedings [pp. 469 - 470]Jurisdiction of Equity to Enjoin the Passage of a Municipal Ordinance [pp. 470 - 471]Remedies of an Abutting Landowner Whose Property Is Injured by Public Works [pp. 471 - 473]The Jurisdiction of Equity over the Realty of an Infant [pp. 473 - 474]Privilege of Non-Resident Parties and Witnesses from Service of Process [pp. 474 - 476]Risk of Loss after an Executory Contract for the Sale of Real Estate [pp. 476 - 478]

    Recent CasesAgency. Agent's Liability to Third Persons. Warranty of Authority by Agent [pp. 478 - 479]Bankruptcy. Involuntary Proceedings. Joining Additional Creditors in Petition [p. 479]Bills and Notes. Purchaser for Value without Notice. Pledgee as Innocent Purchaser [pp. 479 - 480]Bills of Peace. Insurance Companies Seeking to Enjoin Separate Actions [p. 480]Boundaries. Whether Grantee Takes to Center of Closed Street [p. 480]Carriers. Custody and Control of Goods. When Railroad Becomes Warehouseman [p. 481]Constitutional Law. Powers of the Judiciary. Injunction by Federal Court against Enforcing Railroad Rates Fixed by State Commission [p. 481]Corporations. Corporations De Facto. Collateral Attack on Corporation Not Colorably Organized [pp. 481 - 482]Equitable Conversion. Order of Court for Sale of Land [pp. 482 - 483]Gifts. Imperfect Gift. Appointment of Donee as Executrix [p. 483]Indictment and Information. Finding and Filing Indictment. Presence of Expert Accountant in Grand Jury Room [pp. 483 - 484]Interstate Commerce. Control by States. Regulation of Rates on Interstate Ferries [p. 484]Judgments. Equitable Relief. Default Due to Illness of Counsel [pp. 484 - 485]Judgments. Equitable Relief. False Return of Service in Mechanics' Lien Proceedings [p. 485]Legacies and Devises. Particular Instances of Construction. Absolute Gift Followed by Qualifying Clauses [pp. 485 - 486]Municipal Corporations. Police Power and Regulations. Acts Prohibited by Both Statute and Ordinance [pp. 486 - 487]Partnership. Rights, Duties, and Liabilities of Partners Inter Se. Action on Note after Dissolution of Firm [pp. 487 - 488]Receivers. Liability for Railroad's Tort Committed before Appointment [p. 488]Rule in Shelley's Case. Executory Trusts [pp. 488 - 489]Statute of Frauds. Part Performance. Parol Partition of Land [p. 489]Statute of Frauds. Sales of Goods, Wares, and Merchandise. Contract for Goods to Be Manufactured [p. 489]Trespass to Realty. What Constitutes a Trespass. Compensation for Trespass Justified by Necessity [p. 490]

    Book Reviewsuntitled [p. 491]untitled [pp. 491 - 492]untitled [pp. 492 - 493]untitled [pp. 493 - 494]

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