The daily journal. (Salem, Or.) 1899-1903, 1902-01-30
WHAT THE DECISION
BY BELLINGER MEANS
Continued from Fourth Page.

Continued from Fourth rage
This is proceeding in involuntary
bankruptcy against A. I. aud +. N:
Gilbert, az partners in the conduct OF
the banking business OF Gilbert Broth
ers, NJ Salem, Or. The petitioners in
the original and amended petitions are:
Ida Muths, William Ivan and A Ep-
plev, creditors of Gilbsrt Brothers In
the aggregate sum Of 1913. Subsequent.
ly one Loo jim, creditor in the sum OF
5000, also filed "A petition praying Tor an
order OF adjudication in bankruptcy.
The acts Of bankruptcy relied upon by
the creditors are alleged as follows:
That Gilbert Brothers, being insolvent,
did within four months o! the filing OF
the original petition transfer securities
by way OF preference to certain creiitore
10 the aggregate amount in the value OF
5000; that subsequent TO the filing OF
the original petition, A. L. Gilbert en-
tered intoa written stipulation in suit
then pending against Gilbert Brothers
brought by or in the interest OF the heirs
Of William Cosper, deceased, whereby II
was stipulated that one Claud Catch
might be appointed receiver OF said firm,
aud that said Catch should convert the
assets OF the firm into cash for the pay
ment OF all the firms creditors and the
winding up of it's business; that to this
end A. 4. Gilbert suffered decree TO be
entered in said suit, and that he there
after transferred the assets OF the firm tn
the receiver. Other acts OF bankruptcy
we're alleged in the petitions dled, but
upon the hearing, these we're aban'
doned.
IL is contended that F. N. Gilbert is a
partner In the business of Gilbert Broth.
ers, and this isa question In the case,
material only In the event that an act OF
bankruptcy 10 proven as alleged.
The stipulation that receiver might
be appointed, and the subsequent trans
fer by A. 4. Gilbert, do not have the
effect OF general assignment within
he meaning of the bankruptcy act.
This question was decided by the Cir
cult Court OF Appeals in the Second Cir
cult in recent case, In which the court
says: "When the statute declares that
a general assignment FOR the benefit Of
credito 4 il an act OF bankruptcy, can il
be construed TO include aR act which Ia
not general assignment We think
that II cannot, becaute the term has a
understood and recognized
lnFMUlAK AtlNuNkllhhN WV hlAANlNhA HANAN1f
and means transfer aud conveyance by
n person of all his property TO a named
person upon trust, which 10 To be |
worked out in some states by a court OF
probate and insolvency, in some states
by court Of common law, and In some
states by trustee, subjsct only 10 the |
to which any trustee 10 sub
ieCted. 1t isa deed orconveyance which |
-. ,ltsnVuvtl.s
times by compuleion, At the instance OF
n court of insolvency, A petition for
the appointment of receiver Is not that
proceeding which 10 universally recog-
ni1ed Az an assignment, and its 'equi-
yalency' Of result, II equiyalency exists,
is not important. The bankruptcy
statute has said that the one is AZ act Of
bankruptcy and has said nothing about
the other, IN direct terms and when
acts Of bankruptcy are classified, as they
are In the statute of 1898, IL is not the pro-
vince of conrt To enlarge the clAssi.
hcation because the omitted class
seems 90 partake Of the sin OF the
Bedstead Co., 0s Fed. Rep. 9Sl.
There IL "a much stronger case against
the contention that consent IN the ap.
lNNNklAfAA ~ ANNNANNN hINNMANH - Mu
assignment within tho meaning of tho
bankruptcy act than that from which
the above quotation Ia made. The suit
la which Receiver Catch WAS appointed
was not a friendly suit. lt IL not claimed
that IL was procured or acquiesced In by
A. T.. Gilbert. The bank OF Bibert
Brothers had already been forced toI
supend by reason OF suit previously
~ ~ 81 a a a.
United States Tor this district by one of
the heirs of William Cosper, claiming a
liability from the ba 10 said heirs in
the sum OF Si5O0OO, A receiver was ap-
pointed TO take charge of the property
aud assets oi the suspended bank during
the pendenoy of the suit. The bin OF
IN that suit was dismissed for
want OF jurisdiction, In the meantime
the administrator OF the CosPer estate
brought In the state Court the suit In
which Catch was appointed receiver
Both OF these suits were in the same
right and hostile 90 the respondents la
stlpulating, as he did, A, I. Gilbert Ao-
luiesced ia What be could not help, and
Thereby saved needless expense 20 the
estate and delay in its distribution.
To authorize an adjudication of bank
fup,ey, u must appear that the transfers
II were made with intent 20
prefer the creditors 20 whom they were
made. II the respondent wac insOlvent,
and had know Nledgoot the fact, an intent
90 prefer will he concluslyely presumed.
There ~ a further presumption that the
debtor knows his tnaLcial condition as
60 solyency, but this is a disputab,e pre-.
sumption aud Il the debtor honestly be.
lleves himself 10 be solvent or Il he es-
ta0llshes his want oi knowledge as 10 his |
insolvency be then rehuts the presump.
ton Of au intent 10 prefer which arises |
from the fact of actual insolvency. Col |
lier ON Bankruptcy, 81. The bankruptcy |
act declares that a pers0n shall be deem |
cd insolyent within the provisions of The |
act whenever the aggregate OF his prop |
rFty, exclusive of anl property wAlch he |
may have conveyed, transferred, con-
cealed OF removed, or permitted 10 be |
OF removed, with intent 90 de- |
fraud, hlndeT or delay his creditors, shall |
not al a iair valuation be snliciont IN |
amount 10 paw his debts.
10 is then necee saTy 60 khOW whether |
the respondent, A, 4. Gilbert, VAS in. |
solvent when he made the transfers re-. |
lerred 10, aud II 40, has he established |
his Want oi knowlcdge at the tune a. 10 |
bic 6nancial conditonf
ll 70 conleuded Tor the petitioner that
A. I. Gilbert must be presumed insol-
vent bseaase he did nol In bic answer