The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-31

objection ad absurdum. The regular
Referee of the division of the District
| being absent or disqualified tas hereto
fore adjudgedD the Judge may act or
| appoint another Referee, as was done it
| the case ut bar Sec. 49,
| And there is nothing in the Act which
requires the Judge to wait until an an
swer is filed, a jury trial demanded, or
| against or his Counsel obtained.
g. The fourth objection answers the
third objection and is sustained. The
| Deputy Clerk at Elizabeth City being
| a brother-in-law of defendant Cobb and
| district tat Raleigh he referred the mat
ter. The case at bar is an exception to
the provision for reference by the
Clerk, the Judge being in the District
/ and even if this were within the pur-
view of the power conferred on the
clerk he neglected to perform the
duty. But the cause having been re-
| ferred by the Judge. and certainly the
Deputy Clerk at Elizabeth City had no
power in the premises; the Clerk has no
judicial powers in Bankruptcy, but is
a ministerial officer, subject to the or
ders of the District Judge, and Deputy
Clerk is not mentioned in the act. The
Deputy's authority and power are con
fined to those conferred by statute tR.
S. 55S) an order signed by the Judge
| and attached by the Deputy Clerk with
the seal of the court is valid, but alone
Deputy Clerk cannot undo an order
( rafa IN, nj x,yhnfhap hoJ
can do so in the name of the clerk.
The whole matter is now before the
Judge and will be considered. decided
and disposed of on the record sent mp.
the pleadings and affidavits which is
the whole record, both as on petition for
review and as acting Referee undeE sec
ton 43.
The only remaining question is en-
bodied in the fifth exception in these
words: THAT answer having been filed
denying insolvency. Referee had no
power 10 find as fact or decree as a
matter of law that the assignment re-
ferred to was an act of Bankruptcy"
The exception is on the ground of
power in the Referee. The ground of
power will be disregarded and the cause
considered on the record as upon an ORR
for there is in fact but one. G.. w. Cobb,
in Il duel capacity, admits the assign
ment of all his property in both capaci-
ties rs set out in the petition. but de-
MES insolvency, basing such denial on
a difference of valuation of the proper
ty assigned. Was this an act of Bank
ruptcy? The debts denied are insignifi
cant. 1t is admitted there are other
ffpp IN, no NJ
approximating nine thousand dollars,
but the amount is immaterial. Sec. 81
G. |. Sub. S. 4. defining acts of Bank
ruptcy is made Il general assignment
for the benefit of creditors" Defend
ant. therefore. committed an act of
Bankruptcy in the plain language of
the Statute. II is so held and adjudged
Other acts of Bankruptcy defined in the
section &C. III S. Sd are based upon
or connected with the condition of in
solveney but where there is a general
assignment there is no limitation. 1t is
per Sc an act of Bankruptcy.
Insolvency is denied-C. / Sec. /. s.
S. To- provides "a person shall be deem
ed insolvent within the provisions of
this act whenever the aggregate Of his
property, exclusive of any property
which he may have conveyed, transfer
ed. concealed or removed or permitted
TO be concealed or removed with intent
to defraud hinder or delay his creditors
shall not at fair valuation be suffi-
cient in amount to pay his debts"
Defendant has assigned all his prop
erty and provided for the payment OIL
others in preference to debts due petit
TONERS, this is such intent to hinder orl
delay. if not in law to defraud, petit
TONERS as is contemplated But Sec.
S. S. d.. provides that person de-
nying the allegation of insolvency, it
shall be his duty to appear with his
books and submit to an examination
and upon failure to so appear the bur-
den of proving solvency is upon him.
This has not been DONE but after as
signing all his property, insolvency isl
simply denied and the denial, as APP
pears in the answer, is based solely on
an opinion as to the value Of his estate,
umascertained by schedules, or other
proper basis. The fact of the assign
ment is some evidence the property isl
not sufficient to pay all defendants
debts, but is made for the purpose and
with the intent to prefer certain credl-
tors. and to hinder and delay others.
fide issue of solvency as is contemplated
in the act or directed to be tried by al
jury Having failed to comply with theI