Fisherman & farmer. [volume] (Edenton, N.C.) 1887-19??, 1899-01-06

conferred by statute rR. s. sss
an order signed by the Jude
and attached by the Deput
Clerk with the seal or the cour
IS valid, but alone a Deput
Clerk cannot undo an order @
reference in Bankruptcy, wheth
er lie can do so in the name @
! the clerk.
The whole matter is now be
tore the Judge and will be con
sidered, decided and disposed o
on the record sent up, the plead
lngs and affadavits which is tn,
whole record, both as on peti
tion for review and as acting
referee under section 43.
The only remaining question
is embodied in the fifth excep
ton in these words: That an
swer having been filed denying
insolvency. Referee had nc
power to find as a fact or decree
as matter of law that the as
signment referred TO was an act
Of Bankruptcy
The exception is on the
ground of power in the Referee
The ground of power will bt
disregarded and the cause con.
sidered on the record as upon ar
original hearing as aforesaid
Defendant, for there is in fact
but one, G. w. Cobb, in due
capacity, admits the assignment
of all of his property in both ca.
pacities as set out in the peti-
ton, but denies insolvency, bas-
ing such denial on a difference
of the valuation of the property
assigned. Was this an act of
Bankruptcy? The debts denied
are insignificant 1t is admitted
that there are other creditors not
secured in the assignment ap>
p-oximating nine thousand dol
lars, but the amount is inmate
rial. Sec. 3 c. l. Sub. 4. de6n-
ing acts of Bankruptcy in the
plain Language OF the statute. 1t
is SO held and adjudged. Other
acts of Bankruptcy defined in
IN the section c. III. S 81 are
based upon or connected with
the condition of insolvency, but
where there is a general assign
ment rere is no limitation. 1t
is per Sc an act OF Bankruptcy.
Insolvency is denied &C L.
Sec. 1. S. S. IS, provides ga per-
son shall be deemed insolvent
within. the provisions OF this act
whenever the aggregate Of his
property, exclusive Of any prop
erty which he may nave con
veyed, transferred concealed, or
removed, or permitted to be
concealed or removed with in,
tent to defraud, hinder or delay
his creditors shall not at a fair
valuation be sufficient i'll amount
to pay his debts. ="
Defendant has assigned all his
property and provided for the
payment of others in preference
to debts due petitioners. this is
such intent to hinder or delay,
if not IN law to defraud, peti>
TONERS as contemplated. But
Sec. 3 S. S D., provides that a
person denying the allegation of
insolvency, it shall be the duty
to appear with bis books and
submit to an examination and
upon tailule to SO appear the
burden of proving insolvency is
IL pon him. This has not been
done, but after assigning all his
property, insolvency is simply
denied, and the denial, as it ap
pears in the answer, is based
solely OH all opinion as to the
value Ct his estate, unasCcrta1ned
By schedules, OF other proper
basis. The fact of the assign
meut is some eviden ce the p1op>
er;y is not sufficient to pay all
defendants debts, hut it is made
for the purpose and with the in
tent to prefer certain creditors.
and to hinder and delay Others.
Such a denial does not raise a
bona fide issue of solverCy as is
contemplated in the act or di
rected to be tried by a jury.
Having failed comply with
the requirements of the section
quoted above, the burden is up
on defendant to prove solvency
and no evidence is offered to this