113 F. 110 | D. Mass. | 1902
In this case the creditor, a clerk of the bankrupt, had, four months before the date of the bankruptcy, a claim against the bankrupt for wages amounting to $333.19. During four months immediately preceding bankruptcy he earned $445, and within three months preceding bankruptcy earned more than $300. During the four months, however, and with knowledge of the.
But the claim cannot be allowed priority. Four months before bankruptcy the creditor had a claim of $333.19. Though this claim then had priority, it is now without priority. A further claim of $445 accrued within the four-months period. If no payment had been made on either claim, the creditor would now have a priority claim of $300, and a common claim for $478, but the priority claim at the time of bankruptcy would not be that part of the claim which had priority four months earlier. The priority of the earlier claim would have disappeared, and for the purposes of this discussion that claim must be treated as a common claim, because, in these proceedings, it must be proved as such. The creditor seeks to apply the pa3^ment which he has received wholly to the common claim. The result of this application will be to leave him a common claim of $74, due at the date of bankruptcy, a sum smaller 'than the claim which was due four months earlier. If he be now allowed to prove a priority claim for $300 without surrendering the payments he has received, his common claim will have been diminished within the four-months period, and so, under the decision of Dickson v. Wyman, he has received a preference. If any preference has been received, it is undoubtedly a guilty one, and can be recovered back by the trustee under section 60b, Bankr. Act, and this without any set-off as provided in section 60c. That the creditor should be allowed to prove any claim against the estate, whether having priority or not, when the trustee has a claim against him for a guilty preference, is not to be permitted. It was argued that at the beginning of the four-months period the creditor had a claim for $300 having priority, and a common claim for $33, and that at the time of the bankruptcy he had a priority claim for $300 and a common claim for $74, and that, therefore, his common indebtedness had increased within the four months, rather than decreased; but, as has been said, the indebtedness which had priority at the beginning of the four months must, for the purposes of this case, be treated as having lost it, and therefore the common indebtedness must be deemed to have diminished. If the- creditor is willing to prove as a creditor not having priority, inasmuch as his claim will then have increased within four months prior to bankruptcy, he may prove without surrendering the payments made to him, but his claim of priority must be disallowed. Unless the creditor desires to withdraw it, his proof of claim will be allowed without priority.