23 F. Cas. 1 | S.D.N.Y. | 1871
By
[The petition was filed in this case on the 27th of September, 1870, and the adjudication thereon was 10th of October following. The question being on the right of creditors thus represented, and whose depositions for the proof of their several claims were produced and filed with me, to vote for assignee, Mr. Seixas moved to “suspend” sundry proofs until the appointment of assignee, upon the ground that the creditors holding such claims had severally sought to obtain and had obtained a preference over other creditors, in violation of the provisions of the bankrupt law, and in support of the motion read two
By section IS of the bankruptcy act, it is provided, that no person who has received any preference contrary to the provisions of the act, shall vote for an assignee. The power given to the judge, by section 23, and to the register, by rule 6 of this court, to postpone proof of a claim until an assignee is chosen, in a case where there are doubts as to the validity of the claim, or as to the right of the creditor to prove it, and an opinion entertained that such validity or right ought to be investigated by the assignee, includes the power to so postpone where the doubts are whether the claim is valid in view of the receipt of a preference, contrary to the provisions of the act, by the creditor. The provisions which define when a debt can not be proved because of the acceptance of a preference by the creditor, are found in sections 23, 35, and 39. The register ought to exclude from voting for an assignee, all persons who appear to him, on proof, to be thus inhibited from proving their debts. He m&y do so by postponing the proof of such claims until after the election or appointment of an assignee; and he may do so although the depositions for the proof of such claims have been produced to and filed with him. Whether, under these rules of law, the affidavits presented to the register in this case are sufficient, in point of fact, to justify and require him to exclude any or all of the creditors named from voting for an assignee, can be answered only by saying, that those ought to be excluded who appear tcf have accepted or received a preference before the petition in bankruptcy was filed, and none others. Taking property on attachment or execution is receiving a preference. Merely obtaining a judgment is not.
As to the second question, I do not regard it as necessary, under the decision in the case of In re Brown [Case No. 1,975], for the creditors who recovered judgments after the adjudication, to vacate their judgments, before they can prove the claims on which the judgments were recovered, provided such claims are otherwise properly provable, under the views above stated.
[From 4 N. B. R. 307 (Quarto, 122).]