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Bankruptcy. Preferences. Action by Transferee to Recover Proceeds of Property Sold by Trustee

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  • Bankruptcy. Preferences. Action by Transferee to Recover Proceeds of Property Sold byTrusteeSource: Harvard Law Review, Vol. 33, No. 2 (Dec., 1919), p. 310Published by: The Harvard Law Review AssociationStable URL: .Accessed: 21/05/2014 21:58

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    case of steam roads. Moreover, the word "railroad" in its generic sense includes street railways. Bloxham v. The Consumers' Electric Light & Street R. Co., 36 Fla. 5I9; Mass. Loan &e Trust Co. et al. v. Hamilton, 88 Fed. 588. Where there is nothing to indicate that the legislature intended to employ the term in a restricted sense it should be construed in its broadest signification. See Gyger v. Phila., etc. Ry. Co. et al., I36 Pa. St. 96, I04; Shreveport Traction Co. v. Kansas City, S. &T G. Ry. Co., iio La. 759, 773. The decision in the prin- cipal case seems of doubtful propriety. The court relies chiefly on the con- struction given to the word "railroad" in the Interstate Commerce Act of i887. The Supreme Court has held that the term does not include street rail- ways. Omaha &a Council Bluffs St. Ry. Co. v. Interstate Commerce Commission, 230 U. S. 324. But in that case the court expressly rests its decision on the intention of Congress, as gathered from the context, not to subject street rail- ways to the provisions of the act. No general or arbitrary rule is laid down that the word "railroad" in federal statutes shall always be construed in its narrow sense.

    BANKRUPTCY - PREFERENCES - ACTION BY TRANSFEREE TO RECOVER PROCEEDS OF PROPERTY SOLD BY TRUSTEE. - One month before bankruptcy a creditor, knowing the debtor to be insolvent, took a conveyance of a crop of rice in discharge of all claims. These claims were partially secured by a mort- gage on livestock worth $3,ooo. The creditor had advanced $2,000 for rent and seed upon the debtor's promise to pay the old debt and advances out of the proceeds of the crop. The creditor spent $3,600 harvesting the crop. The trus- tee avoided the transfer and sold the crop, realizing $i i,ooo. Bill to require the trustee to pay over all or part of the proceeds of the crop. Held, that the bill be dismissed. Crawford et al. v. Broussard et al., 43 Am. B. R. 603 Circ. Ct. App.).

    A transfer founded upon present consideration is not a preference. Ernst et al. v. Mechanics, etc. Bank, 20i Fed. 664. By the better view a transfer partly to pay an antecedent debt and partly for present consideration is separable into its voidable and valid parts. In re Cobb, 96 Fed. 82 I; In re Dismal Swamp Contracting Co., I35 Fed. 4I5. If such a transfer is avoided, the trustee should restore what was given: in the principal case, the amount of the mortgage sur- rendered. Barber v. Coil, I44 Fed. 38I. It seems clear that the trustee should restore the money spent in harvesting the crop before the avoidance of the transfer. Otherwise the estate would be unjustly enriched at the expense of one who is not an intermeddler. Crandall v. Coats, I33 Fed. o65. See Seig v. Greene, 225 Fed. (55, 96i. But the creditor should not recover the old debt or the advances. Although the original agreement to pay these claims out of the proceeds of the crop was made six months before bankruptcy, there was no crop until within four months. Consequently there could be no lien until it was too late for the debtor to dispose of his property according to his contracts. In re Dismal Swamp Contracting Co., supra. See Samuel Williston, "Transfers of Personal Property," ig HARV. L. REV. 573.

    BANKRUPTCY - PROPERTY PASSING TO THE TRUSTEE - UNENFORCEABLE CLAIM AGAINST THE GOVERNMENT. - The bankrupt was one of a class of rail- road employees that, prior to January I, i9i8, had made a demand for in- creased wages. Upon the railroads being taken over by the government, the director-general of railroads promised to investigate the claim, and to make any increase in pay, in case such should be granted, retroactive to January i, i9i8. ? 70 a (5) of the Bankruptcy Act of i898 provides that "property which

    * . [the bankrupt] could by any means have transferred" shall pass to the trustee. The trustee claimed the money paid on the basis of services performed by the bankrupt prior to the adjudication, in pursuance of an order made by the

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    Article Contentsp. 310

    Issue Table of ContentsHarvard Law Review, Vol. 33, No. 2 (Dec., 1919), pp. 133-336Waters: American Law and French Authority [pp. 133-167]Legal Preparation Tested by Success in Practice [pp. 168-197]The Delivery of a Life-Insurance Policy [pp. 198-222]The Limitations upon the Amending Power [pp. 223-235]The Progress of the Law, 1918-1919 Civil Procedure [pp. 236-254]Bills and Notes [pp. 255-280]NotesThe Treaty-Making Power under the United States Constitution. The Federal Migratory Birds Act [pp. 281-287]State Referendum and Federal Amendments [pp. 287-292]State Control over Interstate Bridges [pp. 292-295]Eligibility of Women for Public Office [pp. 295-298]Legal Status of Voluntary Associations [pp. 298-300]Adoption of Admiralty Rules by Common-Law Courts [pp. 300-303]Consideration in Conveyances between Husband and Wife in Fraud of Creditors [pp. 303-306]Presumption of Legitimacy of a Child Born in Wedlock [pp. 306-308]

    Recent CasesAgency. Nature and Incidents of the Relation. Liability of Agent for Interference with a Prospective Sale [p. 309]Bankruptcy. Bankruptcy Act of 1898. Construction of 4 a. Meaning of the Word "Railroad" [pp. 309-310]Bankruptcy. Preferences. Action by Transferee to Recover Proceeds of Property Sold by Trustee [p. 310]Bankruptcy. Property Passing to the Trustee. Unenforceable Claim against the Government [pp. 310-311]Carriers. Limitation of Liability. Termination of Liability. Effect of Provisions of Special Contract [pp. 311-312]Constitutional Law. Interstate Commerce. Control by States. Interstate Bridges [p. 312]Constitutional Law. Making and Changing Constitutions. Federal Amendments. State Referendum [p. 312]Constitutional Law. Treaty-Making Power. Federal Migratory Bird Acts [p. 312]Contracts. Construction of Contracts. Contract to Perform to Satisfaction of Other Party [pp. 312-313]Contracts. Defense of Impossibility. Damages for Breach of an Impossible Contract [p. 313]Contributory Negligence. Imputed Negligence. Husband's Negligence Not Imputed to Wife [pp. 313-314]Equity. Jurisdiction. Protection of Rights of Personality [p. 314]Evidence. Hearsay. Declaration of Mental State Distinguished from Res Gestae [p. 315]Evidence. Presumption of Legitimacy of a Child Born in Wedlock. Quantum of Proof Necessary to Overcome the Presumption [p. 315]Evidence. Proof of Foreign Law. Presumption That the Statutory Lex Loci Is the Same as the Statutory Law of the Forum [pp. 315-316]Executors and Administrators. Rights, Powers, and Duties. Assignment to Residuary Legatee of Right to Enforce Estate's Claim to Contribution [p. 316]Legacies and Devises. Construction. Forfeiture on Condition. Happening of Condition in Testatrix's Lifetime [p. 317]Master and Servant. Workmen's Compensation Acts. Retroactive Effect of an Amendment [pp. 317-318]Master and Servant. Workmen's Compensation. Violation of Statute as Bar to Recovery [p. 318]Quasi Contracts. Money Paid under Duress or Compulsion of Law. Sufficiency of Protest to Permit Recovery of Tax [pp. 318-319]Reformation of Instruments. Reformation of Insurance Policy for Mistake of Fact [pp. 319-320]Restraint of Trade. Contract Not to Engage in Business. Restriction in Use of Stage Name [p. 320]Rule against Perpetuities. Suspension of Ownership. New York Rule [p. 321]Sales. Conditional Sales. Whether Included under Act Regarding Mortgages [pp. 321-322]Sovereign. Telegraph and Telephone Companies. Liability to Suit of Telegraph and Telephone Companies under Federal Control [p. 322]Statute. Construction. Estate Tax of Federal Inheritance Tax [pp. 322-323]Taxation. Property Subject to Taxation. Good Will of a Business [pp. 323-324]Torts. Damages. Nervous Shock from Fright Caused by Spoken Words [p. 324]Trusts. Postponement of Enjoyment of the Interest of a Sole Cestui Que Trust. Merger of Legal and Equitable Estates [pp. 324-325]Waters and Watercourses. Profits Prendre. Right to Take Fish on a Non-Navigable, Non-Tidal Stream [pp. 325-326]

    Book ReviewsReview: untitled [pp. 326-327]Review: untitled [pp. 328-329]Review: untitled [pp. 329-332]Review: untitled [pp. 332-333]Review: untitled [pp. 333-334]Review: untitled [p. 334]Review: untitled [pp. 334-336]

    Books Received [p. 336]