, 1873-01-01

Ills Honor States tic Grounds upon Which
tho Removal Of tho Assignee afay
Be Prayed For.

tho Removal Of tho Assignee Amy
Be Prayed For.
In What promised to bo n very dry mattor.of-
fact exposition OF tho Inv Us to ullo.Lor the do
n1urror by Assignee Perkins to tho roviaoE pot-
tiou for his removal was good or not, Judge
Drummond yostorlay delivered M opinion that
not only will provo precedent Oh an important
point Of law, but makes unusually interesting
rcading In rcspoct Of several matters rotating 10
Ito State Insurance Company that hare lately
ongagod public attontion, aud on which tho
opinion Of His Honor had not hithor.o boon
expressed. Without furthor preface we giyo
THE DECISION.
IN application waa made to tho District Judge
for tho removal Of Mr.. Perkins, the Assignee OF
grounds. Tho Assignee ensworod tho applica-
ton, proofs wcro taken, and Tho District Judge
refused to ronovo him. sonlo Of tho creditors
under tho second aoctlon Of tho bankrupt Law,
asking d royiow Of tho decision OF tho District
Judge. In tho petition there arc come nllcga-
tlona which appear not to Aaro been pro-
aro objected to by tho Assignee. partly for TINT
reason, aud partly boca,.ae thoy do. not contain
any substantive mattor aa ground Of removal;
and the question comes up on the gus!ictenoy Of
TONERS to preaont tllom In this Court. As !
stased during the argument, I havo no doubt Of
tho right Of . party to proeont now allegations;
In other words, to ask Of tho Circuit Court tho
case is mado to That end. It ie hardly fir,
however, whero MI application ia mado for
tho removal Of M Ausigneo that any Of tho
known cauees for removal Rhouid bo withheld
Whole Who'll IN matter in ite iii scope should bo pro.
acnted to tho District Judge for his oonsdora-
ton. 1t IL hardly just to tho District Court.
whon any particular causc fs known (Which is
tic othors prosecuted, aud tllo decision Of tho
District judge having bcen adyore6 to the appli-
cant, to present to tho Circuit Court THIS
additional cause. ,When the cause Is unknown
cant in tho Circuit Court subsequently,. y.-t6ore
would scom to be no good reason why tho Cir
cult Court should not hear 1t, inasmuoh aB 1t Ia
the province Of tho Circuit Court to exercise q
general supcrintcndenco over the acte OF tho
District Court whore thoro is an appeal or writ
Of error 10 tho Circuit Court.
In looking into tho new allegations, however,
do not know that 1t is absolutely necessary
for the Court to, decide the. frat point.
Independent grounds sufficient to warrant tho
Court it tloy had been mado known to tho Dis
trjct Judge, In removing Mr.. Perkins. Thoy
simply amount to this: Tint thero was stock
subscription Of this Company for very large
J
sons against whom complaints have boen made
by those petitioners from tho beginning,
aud among whom was this Assignee; and
| upon which stoch Subscription thcro Ind
becn only 24 por cent paid. 1t Is alleged that
| this stock subscription wna made or increased
for the purpose OF obtaining control Of tho COM
| pany; that at meeting Of the etockholdora on
the 18th OF January, 1871, q bylaw was passed.
| holders wore to bo surrendered, and ono full
share vas to be Issued. OF course 1t would
| follow from this statomont thas, originally,
| tho wflole amount Of stock which was unpaid
January. But tho only poraons who could com.
plain Of this arrangement were the creditors Of
| tho Company. AS to the stockholders 1t would
soem to bo no good ground Of complaint: II
tho Company had gonc on and transacted busi-
ness and continued solvent, 10 complaint would
| have boon made. It was only In case Of tho in
| eolyency Of tho Company that the creditors
| might havo the right to call upon the stouk-
| holders for tho payment Of their original sub
| soription.
as connected with this, It was stntod that tho
| report was not made by tho Assignee, as It was
his duty to do. Thoro Is also added tho bol!of Of
| tho petitioners nj to the motive which caused
| tho Assignee to withhold o report which al
whiSoh tho beellef Is founded. / would
say in relation to tho omission to make report
that it is not per SO such M omission as would
| warrant the Court in removing an Assignee ; it
mny heye beon through some inndvertence,
| which any Assignee might be guilty OF.
Thon thoro is this fWthor allegation that up
to the 18th Of September, 1872. when tho dvf-
proved up amountedto s400, 900, and that Of these
| claims e215,000 and upwards wore held by
the emiths, and their ngents aud confoderates,
which claims had boon purchased from tho
against this bankrupt company, after the filing
OF tho petition; and that, when tho claima ca1ao
to be proved up, and tho dividends on thom
paid. as they weTo by tho Assignee, they were
FGy saP sP No. Md B;d aosa Sasas s s' If" part
Court at tho December term in 1871, hay-
ing boen complied with. Tho order requires
that, where claims hayo been assigned before
being proved np they sel 1 be e;nppotfse,a by tho
moncomont Of the proceedings in bankruptcy,
setting forth the confederation which was given
| for the debt, and whether Or not they wore
secured. This WAS not done, and it is said that
that ia true7 The Court must presume that tho
| proof WAS allowed By tho Register in Bankrupt
cy, and thoro ia no all egation here that there
was any wilfu1 or Intentional omssion Of duty
tS Sa part tits Of s the AsssDse Ass s tho 1t mg
to tho Rogistor. There is nothing in those now
allegations to ropel that inforonce. It was .
ao to tho II, Roeistor a. to the Assgnoo, and Il so'
then certainly It would hardly be an adequate
cause for tho removal OF tho Assignee that bio did
not comply With It.; and. il 1t wore known to tho
Assignee and to tho Register, and tho Register
made tho order for tho payment, 1t could hardly
bo eald to 10 such . delinquency on the part OF
| the Assignee 40 to justify tits removal:
This IL all thoro is In tho now allegations; tho
rest Is simply 1nattor Of argument; and do not
think that tLeso cauaes arc OF aucb chafacter
rs to require tho Assignee to SO to proof upon
them or that. II they we're established as stated
| in this portion OF tho petition, they would be
material. It seoms to mo, therefore, that the
| demurrer must bo sustained
bIr. Cooper su pposed that tho general prayer
| for relief would stand.
Tho Court-Of course. do not conaidor this
very MATERIAL ono way or tho othor. The ground
upon which tho removal OF the Assignee ia
asled must depend upon other matters. There
arc two grounds, perhaps moro, upon which his
! removal may ha aakcd: Quo Ia where ho acta