Bankruptcy. Involuntary Proceedings. When Debtor Must Owe $1000

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  • Bankruptcy. Involuntary Proceedings. When Debtor Must Owe $1000Source: Harvard Law Review, Vol. 24, No. 4 (Feb., 1911), p. 317Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1324068 .Accessed: 22/05/2014 01:43

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  • RECENT CASES. RECENT CASES. RECENT CASES.

    who sued to quiet title. The defendant claimed through the husband. By statute either spouse may sue the other to recover his or her separate property, and the accumulations of a wife are her separate property. Held, that the wife had gained title by adverse possession. Union Oil Co. v. Stewart, IIo Pac. 313 (Cal., Sup. Ct.).

    Owing to the identity of interests and submersion of the wife's rights such a result would be entirely foreign to early common-law principles. Yet two jurisdictions hold that, the husband acquiescing, a wife may gain title by adverse possession without the aid of statutes. Hartman v. Nettles, 64 Miss. 495; McPherson v. McPherson, 75 Neb. 830. Others take the contrary view, since the land is jointly occupied and the husband remains the head of the family. First National Bank of Santa Barbara v. Guerra, 6i Cal. I09. But under a statute allowing the wife separate property, and a right to sue and be sued, she may recover from the husband for use and occupation of her land. Skinner v. Skinner, 38 Neb. 756. So title by adverse possession may be acquired where the parties are living apart under a void decree of divorce. Warr v. Honeck, 8 Utah 6i. And without legislative enactment one state, at least, has relieved the wife of all marital disabilities on desertion by the husband. Love v. Moyne- han, I6 Ill. 277. Such is the general rule when the husband abjures the realm. Gregory v. Pierce, 4 Met. (Mass.) 478. Since the basis of the rule as to dis- abilities disappears on abandonment by the husband, the principal case marks a justifiable step in the recognition of equal rights.

    BANKRUPTCY - INVOLUNTARY PROCEEDINGS - WHEN DEBTOR MUST OWE $ooo. - An insolvent debtor owing over $4000 made a general assignment, assented to by some of his creditors. The other creditors, whose claims aggre- gated less than $Iooo, filed a petition to have him adjudged a bankrupt. The Bankruptcy Act of i898, ? 46, provides that "any natural person except a wage earner or person engaged chiefly in farming . . . owing debts to the amount of one thousand dollars or over may be adjudged an involuntary bankrupt." Held, that the petition should be granted. In re Jacobson, I8I Fed. 870 (Dist. Ct., D. Mass.).

    Courts have generally held that the time when one must be engaged in one of the excepted occupations, in order to be exempt, is the date of the creditors' petition. In re Interstate Paving Co., I7I Fed. 604. Hence this should also be the time when $iooo must be owed, the two clauses in the same sentence offer- ing no ground for distinction. Yet if courts adhered strictly to this require- ment, the debtor would be enabled to settle with some creditors and leave the rest without remedy. In straining to avoid this result it has been held that voidable preferences are included among the creditors' debts at the time of the petition because they can be recovered by the trustee. In re McMurtrey &s Smith, I42 Fed. 853. Yet such an assumption of the basis for bankruptcy is reasoning in a circle. Where a debtor, to avoid bankruptcy, goes into one of the exempt occupations, courts have made a judicial exception to the terms of the statute and refused him protection. Tiffany v. La Plume Condensed Milk Co., 141 Fed. 444. See 23 HARV. L. REV. 393. Unfortunately there is equal neces- sity for judicial legislation in the case of preferences, and the principal case will undoubtedly be followed.

    BANKRUPTCY - PROPERTY PASSING TO TRUSTEE - LIFE INSURANCE POLI- CIES. - A bankrupt had policies of insurance on his life payable to his executors, administrators, or assigns, on which the insurance company had a valid lien for a greater amount than their cash surrender value. The Bankruptcy Act, ? 70 a (5), provides "that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has

    who sued to quiet title. The defendant claimed through the husband. By statute either spouse may sue the other to recover his or her separate property, and the accumulations of a wife are her separate property. Held, that the wife had gained title by adverse possession. Union Oil Co. v. Stewart, IIo Pac. 313 (Cal., Sup. Ct.).

    Owing to the identity of interests and submersion of the wife's rights such a result would be entirely foreign to early common-law principles. Yet two jurisdictions hold that, the husband acquiescing, a wife may gain title by adverse possession without the aid of statutes. Hartman v. Nettles, 64 Miss. 495; McPherson v. McPherson, 75 Neb. 830. Others take the contrary view, since the land is jointly occupied and the husband remains the head of the family. First National Bank of Santa Barbara v. Guerra, 6i Cal. I09. But under a statute allowing the wife separate property, and a right to sue and be sued, she may recover from the husband for use and occupation of her land. Skinner v. Skinner, 38 Neb. 756. So title by adverse possession may be acquired where the parties are living apart under a void decree of divorce. Warr v. Honeck, 8 Utah 6i. And without legislative enactment one state, at least, has relieved the wife of all marital disabilities on desertion by the husband. Love v. Moyne- han, I6 Ill. 277. Such is the general rule when the husband abjures the realm. Gregory v. Pierce, 4 Met. (Mass.) 478. Since the basis of the rule as to dis- abilities disappears on abandonment by the husband, the principal case marks a justifiable step in the recognition of equal rights.

    BANKRUPTCY - INVOLUNTARY PROCEEDINGS - WHEN DEBTOR MUST OWE $ooo. - An insolvent debtor owing over $4000 made a general assignment, assented to by some of his creditors. The other creditors, whose claims aggre- gated less than $Iooo, filed a petition to have him adjudged a bankrupt. The Bankruptcy Act of i898, ? 46, provides that "any natural person except a wage earner or person engaged chiefly in farming . . . owing debts to the amount of one thousand dollars or over may be adjudged an involuntary bankrupt." Held, that the petition should be granted. In re Jacobson, I8I Fed. 870 (Dist. Ct., D. Mass.).

    Courts have generally held that the time when one must be engaged in one of the excepted occupations, in order to be exempt, is the date of the creditors' petition. In re Interstate Paving Co., I7I Fed. 604. Hence this should also be the time when $iooo must be owed, the two clauses in the same sentence offer- ing no ground for distinction. Yet if courts adhered strictly to this require- ment, the debtor would be enabled to settle with some creditors and leave the rest without remedy. In straining to avoid this result it has been held that voidable preferences are included among the creditors' debts at the time of the petition because they can be recovered by the trustee. In re McMurtrey &s Smith, I42 Fed. 853. Yet such an assumption of the basis for bankruptcy is reasoning in a circle. Where a debtor, to avoid bankruptcy, goes into one of the exempt occupations, courts have made a judicial exception to the terms of the statute and refused him protection. Tiffany v. La Plume Condensed Milk Co., 141 Fed. 444. See 23 HARV. L. REV. 393. Unfortunately there is equal neces- sity for judicial legislation in the case of preferences, and the principal case will undoubtedly be followed.

    BANKRUPTCY - PROPERTY PASSING TO TRUSTEE - LIFE INSURANCE POLI- CIES. - A bankrupt had policies of insurance on his life payable to his executors, administrators, or assigns, on which the insurance company had a valid lien for a greater amount than their cash surrender value. The Bankruptcy Act, ? 70 a (5), provides "that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has

    who sued to quiet title. The defendant claimed through the husband. By statute either spouse may sue the other to recover his or her separate property, and the accumulations of a wife are her separate property. Held, that the wife had gained title by adverse possession. Union Oil Co. v. Stewart, IIo Pac. 313 (Cal., Sup. Ct.).

    Owing to the identity of interests and submersion of the wife's rights such a result would be entirely foreign to early common-law principles. Yet two jurisdictions hold that, the husband acquiescing, a wife may gain title by adverse possession without the aid of statutes. Hartman v. Nettles, 64 Miss. 495; McPherson v. McPherson, 75 Neb. 830. Others take the contrary view, since the land is jointly occupied and the husband remains the head of the family. First National Bank of Santa Barbara v. Guerra, 6i Cal. I09. But under a statute allowing the wife separate property, and a right to sue and be sued, she may recover from the husband for use and occupation of her land. Skinner v. Skinner, 38 Neb. 756. So title by adverse possession may be acquired where the parties are living apart under a void decree of divorce. Warr v. Honeck, 8 Utah 6i. And without legislative enactment one state, at least, has relieved the wife of all marital disabilities on desertion by the husband. Love v. Moyne- han, I6 Ill. 277. Such is the general rule when the husband abjures the realm. Gregory v. Pierce, 4 Met. (Mass.) 478. Since the basis of the rule as to dis- abilities disappears on abandonment by the husband, the principal case marks a justifiable step in the recognition of equal rights.

    BANKRUPTCY - INVOLUNTARY PROCEEDINGS - WHEN DEBTOR MUST OWE $ooo. - An insolvent debtor owing over $4000 made a general assignment, assented to by some of his creditors. The other creditors, whose claims aggre- gated less than $Iooo, filed a petition to have him adjudged a bankrupt. The Bankruptcy Act of i898, ? 46, provides that "any natural person except a wage earner or person engaged chiefly in farming . . . owing debts to the amount of one thousand dollars or over may be adjudged an involuntary bankrupt." Held, that the petition should be granted. In re Jacobson, I8I Fed. 870 (Dist. Ct., D. Mass.).

    Courts have generally held that the time when one must be engaged in one of the excepted occupations, in order to be exempt, is the date of the creditors' petition. In re Interstate Paving Co., I7I Fed. 604. Hence this should also be the time when $iooo must be owed, the two clauses in the same sentence offer- ing no ground for distinction. Yet if courts adhered strictly to this require- ment, the debtor would be enabled to settle with some creditors and leave the rest without remedy. In straining to avoid this result it has been held that voidable preferences are included among the creditors' debts at the time of the petition because they can be recovered by the trustee. In re McMurtrey &s Smith, I42 Fed. 853. Yet such an assumption of the basis for bankruptcy is reasoning in a circle. Where a debtor, to avoid bankruptcy, goes into one of the exempt occupations, courts have made a judicial exception to the terms of the statute and refused him protection. Tiffany v. La Plume Condensed Milk Co., 141 Fed. 444. See 23 HARV. L. REV. 393. Unfortunately there is equal neces- sity for judicial legislation in the case of preferences, and the principal case will undoubtedly be followed.

    BANKRUPTCY - PROPERTY PASSING TO TRUSTEE - LIFE INSURANCE POLI- CIES. - A bankrupt had policies of insurance on his life payable to his executors, administrators, or assigns, on which the insurance company had a valid lien for a greater amount than their cash surrender value. The Bankruptcy Act, ? 70 a (5), provides "that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has

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    Article Contentsp. 317

    Issue Table of ContentsHarvard Law Review, Vol. 24, No. 4 (Feb., 1911), pp. 253-332Corporate Personality [pp. 253 - 267]Administrative Exercise of the Police Power [pp. 268 - 289]The Seventeenth Century Indictment in the Light of Modern Conditions [pp. 290 - 297]The Decadence of the System of Precedent [pp. 298 - 305]NotesHusband's Duty to Reimburse Wife for Expenditures for Necessaries [pp. 306 - 307]May State of Domicile Tax Gifts Made Abroad When the Property Is Located Abroad [pp. 307 - 309]Apportionment of an Annuity between Capital and Income [pp. 309 - 311]Restrictions upon the Vendor of Good Will [pp. 311 - 312]Habit as Evidence of an Act [pp. 312 - 313]Quo Warranto and Mandamus for Offices at Will [pp. 313 - 315]The Nature of the Right in a Dead Body [pp. 315 - 316]

    Recent CasesAdverse Possession. Who May Gain Title. Wife against Husband [pp. 316 - 317]Bankruptcy. Involuntary Proceedings. When Debtor Must Owe $1000 [p. 317]Bankruptcy. Property Passing to Trustee. Life Insurance Policies [pp. 317 - 318]Conflict of Laws. Personal Jurisdiction. Statute Authorizing Service out of Jurisdiction [p. 318]Constitutional Law. Privileges and Immunities: Class Legislation. County Ordinance Prohibiting Fishing by Non-Residents [pp. 318 - 319]Corporations. Foreign Corporations. Jurisdiction over Internal Affairs [p. 319]Costs. Liability of Infant to Indemnify Next Friend [pp. 319 - 320]Criminal Law. Appeal. Sentence Increased on Appeal [p. 320]Dangerous Premises. Liability to Trespassers. Injury by Vicious Animal [pp. 320 - 321]Death by Wrongful Act. Damages in Statutory Action. Right of Wife Not Supported by Husband to Sue for His Death [p. 321]Divorce. Defenses. Delay [pp. 321 - 322]Electric Wires. Application of the Principle of Fletcher v. Rylands [p. 322]Evidence. General Principles and Rules of Exclusion. Irrelevancy: Violation of Municipal Ordinance [pp. 322 - 323]Homicide. Responsibility for Death Caused by Fright [p. 323]Husband and Wife. Contracts between Husband and Wife. Validity of Separation Agreements [pp. 323 - 324]Interstate Commerce. What Constitutes Interstate Commerce. Breaking of Original Package by Agent for Delivery [p. 324]Joint Wrongdoers. Contribution [p. 325]Legacies and Devises. Payment. Interest by Way of Maintenance [p. 325]Malicious Prosecution. Basis of Action. Malicious Procuring of Injunction [pp. 325 - 326]Mechanics' Liens. Effect of Stop Notice When Contractor Subsequently Defaults [pp. 326 - 327]Receivers. Liability of Foreign Receiver of Insolvent Corporation for Franchise Tax [p. 327]Rescission. Rescission for Fraud or Mistake. Representations Made Through Mercantile Agency [p. 327]Sales. Time of Passing of Title. Cash Sales: Waiver of the Condition by Delivery [p. 328]Suretyship. Surety's Defenses: Absence, Extinction, or Suspension of the Principal Obligation. Estoppel [p. 328]Waters and Watercourses. Appropriation. Beneficial Use [p. 329]Wills. Undue Influence. Burden of Proof [p. 329]

    Book Reviewsuntitled [pp. 330 - 332]

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