In re Portsmouth Sav. Fund Soc.

E.D. Virginia

In re Portsmouth Sav. Fund Soc.

19 F. Cas. 1087, 2 Hughes 238

DecidedMay 15, 1874

StatusPublished

This text of 19 F. Cas. 1087 (In re Portsmouth Sav. Fund Soc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Portsmouth Sav. Fund Soc., 19 F. Cas. 1087, 2 Hughes 238 (E.D. Va. 1874).

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Opinion

HUGHES, District Judge.

An agent cannot, by his own oath, prove a debt for a creditor who is resident in the United States, unless he shows that the creditor is prevented “by some good.cause” from making the oath himself, in which case the agent must show his own “means of knowing” the facts to which he makes oath. The oath which the 22d section requires of a creditor, in proving his claim, is such that it cannot be taken by proxy, and the 22d section of the bankrupt act dispenses with personal oath only where the creditor is “absent from the United States,” or is prevented by “some good cause" from taking it in person. It must be shown affirmatively that the creditor was prevented by “some good cause” from proving his claim in person, before proof by an agent can be admitted. In this case there is not only no proof that the creditors represented by J. G. Bain were (except in one case) non-resident in the United States, or were prevented from making oath themselves; but it is evident, from all the papers, that they were resident in the district and could have made proof of their claims in person. Not having proved their claims according to law, the votes cast for these creditors by attorney were, therefore, illegal, and the election effected by these votes was void. The court, therefore, disapproved the election of R. T. Bain and George M. Bain, Jr., and set the same aside. But the court held that it did not follow, because the Bains were not duly elected, that Gale and Murdaugh, who received the votes of the minority of creditors who had duly proved their claims, had been elected. Exercising the unrestricted power given to the judge by the fourth clause of section seven of the bankrupt law, of approval or disapproval, the court adjudged that there had been no choice of assignees. The judge intimated a purpose of appointing Mr. L. Har-manson as assignee, but withheld the appointment for a day or two in the expectation that all parties would acquiesce in this selection. This was done, and Mr. Harman-son appointed.

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HUGHES, District Judge.

An agent cannot, by his own oath, prove a debt for a creditor who is resident in the United States, unless he shows that the creditor is prevented “by some good.cause” from making the oath himself, in which case the agent must show his own “means of knowing” the facts to which he makes oath. The oath which the 22d section requires of a creditor, in proving his claim, is such that it cannot be taken by proxy, and the 22d section of the bankrupt act dispenses with personal oath only where the creditor is “absent from the United States,” or is prevented by “some good cause" from taking it in person. It must be shown affirmatively that the creditor was prevented by “some good cause” from proving his claim in person, before proof by an agent can be admitted. In this case there is not only no proof that the creditors represented by J. G. Bain were (except in one case) non-resident in the United States, or were prevented from making oath themselves; but it is evident, from all the papers, that they were resident in the district and could have made proof of their claims in person. Not having proved their claims according to law, the votes cast for these creditors by attorney were, therefore, illegal, and the election effected by these votes was void. The court, therefore, disapproved the election of R. T. Bain and George M. Bain, Jr., and set the same aside. But the court held that it did not follow, because the Bains were not duly elected, that Gale and Murdaugh, who received the votes of the minority of creditors who had duly proved their claims, had been elected. Exercising the unrestricted power given to the judge by the fourth clause of section seven of the bankrupt law, of approval or disapproval, the court adjudged that there had been no choice of assignees. The judge intimated a purpose of appointing Mr. L. Har-manson as assignee, but withheld the appointment for a day or two in the expectation that all parties would acquiesce in this selection. This was done, and Mr. Harman-son appointed.

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Bluebook (online)

19 F. Cas. 1087, 2 Hughes 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-portsmouth-sav-fund-soc-vaed-1874.