CHAPTER XVI

BANKRUPTCY AND INSOLVENCY COURTS

It is within the power of Congress to assume the exclusive

regulation of bankruptcy proceedings throughout the United

States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is

in this country no real difference in meaning between the terms

bankruptcy and insolvency. Each denotes a _status_ into

which one unable to pay his debts, as and when they fall due, may

put himself, or be put by his creditors. The remedy is not

confined to any particular classes of persons, and no more fault

is implied on the part of one who is adjudged a bankrupt than on

the part of one who is adjudged an insolvent.

During most of the history of the United States there has been no

uniform law on the subject of bankruptcy for the whole country.

Three bankrupt Acts were enacted by Congress from time to time

during the first century after the adoption of the Constitution.

Each followed some serious financial crisis, and was repealed not

long after the immediate effects of the crisis had passed away.

They were adopted as a kind of [Greek: seisachtheia] to help

insolvent debtors to get on their feet again. A later Act passed

in 1898 is still in force,[Footnote: 30 U. S. Statutes at Large,

544; 32 _id._, 797.] and as it contains many provisions

which have been found useful by creditors as well as by debtors,

it is not unlikely to remain permanently upon the statute-books.

The prosperity of the United States rests mainly on the absolute

free trade which exists between the several States. That

necessarily results in innumerable credits extended by citizens

of one State to those of others, and in immense property

interests in each State belonging to non-residents. In case of

insolvency full justice can not be worked out except through the

legislative powers vested in the United States.

The Act of 1898 allows any one except a corporation to become a

voluntary bankrupt. Practically any insolvent debtor can be

thrown into involuntary bankruptcy, except wage earners, farmers,

incorporated banks, or business corporations owing less than

$1,000. This is so even if a State court of insolvency has

already taken charge of his affairs; and if that has occurred it

is of itself a sufficient reason for bankruptcy proceedings.

Petitions in bankruptcy are preferred to a District Court of the

United States. Each bankrupt estate is put in charge of one or

more trustees. They can maintain actions to recover or protect

it, as a general rule, in the courts of any State as well as in

those of the United States.[Footnote: See Bardes _v._ Bank,

178 U. S. Reports, 524.]

Their title does not extend to anything which by the laws of the

State where the bankrupt belongs is exempt from his creditors.

Such exemptions differ greatly in different parts of the country.

In some States certain property of the value of $5,000 may be

exempt; in others the amount which the debtor can retain is

comparatively trifling. There is, therefore, no uniformity in

the result; but there is, nevertheless, uniformity in the rule

under which the results are reached, and this is enough to

support the validity of this provision of the statute.[Footnote:

Hanover National Bank _v._ Moyses, 186 U. S. Reports, 181.]

The bankrupt may propose a composition to his creditors, and it

may be accepted by a majority of them in number if they also hold

the major part of the indebtedness. If such an acceptance is

confirmed by the court the entire indebtedness is discharged when

the total amount to be paid (including whatever is necessary to

discharge all preferred claims) is deposited in court.

A discharge may be granted to every honest bankrupt (whether his

estate pays anything to his creditors or not), which clears him

forever of all his ordinary debts. It does not apply to taxes

nor to liabilities for certain wrongs of an aggravated character;

nor can two successive discharges in bankruptcy be procured

within six years unless the first was the result of involuntary

proceedings.

Whenever there has been no national bankruptcy law in existence,

the States have been held to be free to pass such insolvent laws

as they might think proper. During the existence of a national

bankruptcy law no State insolvent law can be of any force which

covers the same field.[Footnote: Ogden _v._ Saunders, 12

Wheaton's Reports, 213; Tua _v._ Carriere, 117

U. S. Reports, 201; Ketcham _v._ McNamara, 72 Conn. Reports,

709, 711; 46 Atlantic Reporter, 146.] Its operation is excluded

or suspended as a necessary effect of the enactment of the Act of

Congress, although that contains no express provision to that

effect.

Most of the States have on their statute-books provisions for a

permanent system of insolvency proceedings. In some they are as

favorable to the debtor as the United States bankrupt law of

1898: in more they are less favorable. Generally such

proceedings are brought before a court of special jurisdiction,

constituted both for this purpose and for the settlement of the

estates of deceased persons and of those who are incapable of

managing their own affairs. In the older States it is often made

a condition of a discharge that the creditors shall have received

a certain percentage of their claims.

The relief which the States are competent to give either to

debtor or to creditor is very inadequate. The discharge of the

debtor is of no avail except as against those creditors who were

subject to the jurisdiction of the court. None are so subject

except those belonging in the State, or actually taking part in

the proceedings.

Every bankruptcy or insolvency proceeding is a great lawsuit.

The discharge is the final judgment in it. It can bind none who

are not parties to the action. Only those are parties who were

bound to appear, or who did appear. No one belonging to any

other State or country can be bound to appear, unless in the rare

case of a personal service of proper process upon him, made while

he was within the territorial jurisdiction. Any creditor,

wherever he may reside, who files a claim against the insolvent

estate, or receives a dividend from it, makes himself a voluntary

party. But as against a non-resident who keeps aloof and takes

no part in the proceedings the discharge is worthless, even in

the courts of the very State by authority of which it was

granted.

On the other hand, the creditor gets less aid from the State

courts than a trustee in bankruptcy. The trustee in bankruptcy

can sue in any court in the country in which the debtor could

have sued for the same cause of action. The trustee or assignee

in insolvency, acting under the appointment of a State court, can

only sue within that State, unless his title has been fortified

by a conveyance from the insolvent which would be good at common

law. So far as his title rests on a law, by which it was taken

away from the bankrupt and vested in him, it is ineffectual

wherever that law is ineffectual; and the law of no sovereign is

effectual of its own force outside of his territorial

jurisdiction.

*[Footnote: Booth _v._ Clark, 17 Howard's Reports, 322, 337;

Hale _v._ Allinson, 188 U. S. Reports, 56.]*

If, therefore, as is commonly true in estates of any magnitude,

part of the assets can only be recovered by suit in other States,

there must be ancillary insolvency proceedings there, to clothe

the principal assignee with the right of action. Should the

insolvent be the owner of land in another State, the title to

this can only be transferred in accordance with its law, and a

foreign assignment in insolvency will be wholly ineffectual. Nor

will ancillary proceedings in insolvency be allowed to prejudice

the rights of citizens of the State in which they are instituted

to any security which they might otherwise have for debts due

them from the insolvent.[Footnote: Ward _v._ Conn. Pipe

Mfg Co., 71 Conn., 345; 41 Atlantic Reporter, 1057; 42 Lawyers'

Reports Annotated, 706; 71 Am. State Reports, 207.] The right,

however, of every sovereignty to postpone claims under a foreign

bankruptcy or insolvency to the interests of its own people is

modified in the United States by the constitutional provision

that the citizens of each State are entitled to all privileges of

citizens in the other States.[Footnote: Blake _v._ McClung,

172 U. S. Reports, 239.]

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The American Judiciary · 第 8 / 17 章