112 F. 951 | D. Or. | 1902
This is a proceeding in involuntary bankruptcy against A. T. and F. N. Gilbert, as partners in the conduct of the banking business of Gilbert Bros., at Salem, Or.
“When the statute declares that a general assignment for the benefit of creditors is an act of bankruptcy, can it be construed to include an act which is not a general assignment? We think that it cannot, because the term 'has a universally understood and recognized meaning throughout the different states, and means a transfer and conveyance by a person of all his property to a named person upon a trust, which is to be worked out in some states by a court of probate and insolvency, in srme states by a court of common law, and in some states by a trustee, subject only to the supervision to which any trustee is subjected. It is a deed or conveyance which the grantor makes voluntarily, or sometimes by compulsion, at the instance of a court of insolvency. A petition for the appointment of a receiver is not that proceeding which is universally recognized as an assignment, and its equivalency’ of result, if equivalency exists, is not important. The bankruptcy statute has said that the one is'an act of bankruptcy, and has said nothing about the other in direct terms; and, when acts of bankruptcy are classified, as they are in the statute of 1898, it is not the province of a court to enlarge the classification because the omitted class seems to partake of the sin of the named class.” In re Empire Metallic Bedstead Co., 39 C. C. A. 372, 98 Fed. 981.
This is a much stronger case against the contention that consent to the appointment of a receiver operates as an assignment within the meaning of the bankruptcy act than that from which the above quotation is made. The suit in which Receiver Gatch was appointed' was not a friendly suit. It is not claimed that it was procured or acquiesced in by A. T. Gilbert. The bank of Gilbert Bros, had already been forced to suspend by reason of a suit previously brought in the circuit court of the United States for this district by one of the heirs of William Cosper, claiming a liability from the bank to the said heirs in the sum of $350,000. A receiver was appointed to
It is, then, necessary to know whether the respondent A. T. Gilbert was insolvent when he made the transfers referred to; and, if so, has he established his want of knowledge at the time as to his financial condition? It is contended for the petitioners that A. T. Gilbert must be presumed insolvent, because he did not, in his answer, make a full and complete showing to the contrary. The rule invoked is a rule of good faith. Prior to the filing of the petition in bankruptcy, A. T. Gilbert had assisted the receiver in the United States court in preparing an inventory of his assets and liabilities. That inventory appears to have been full and complete. The respondent A. T. Gilbert advised with the receiver as to the probable loss that would result in collecting the overdrafts of the bank. Thereafter he transferred the assets of the bank to the receiver in the state court. Attorneys who appeared for the plaintiff in the suit in the .United States court represent the petitioners here. Substantially all that is now known, after all the testimony has been taken, and all there is to know, was then a matter of public record. These facts do not authorize a presumption of insolvency against A. T. Gilbert, and such insolvency, if it existed, must be otherwise established. The receiver appointed in the United States circuit court made an inventory of the assets of Gilbert Bros., from which such assets are placed, in round numbers, at $164,000, and -the liabilities at $191,000. He testifies that his estimate of assets was made “from the books of the bank, from the notes that were found in the bank, and the copies that were deposited as collateral, from information obtained from A. T. Gilbert, and from information,
Petition dismissed.