In re Wolfe , 10 F. 383 ( 1881 )

Butler, D. J.

November 26,1873, Erasmus D. Wolfe and David H. Wolfe were adjudged bankrupts. January 19, 1874, a meeting of creditors was held and an assignee elected. Eour days later the election was approved by the court, and the assignee required to give security in $10,000, as suggested by the register, the deed of assignment executed by the register being placed upon file. Here the proceedings termina,ted. Nothing further was done. The assignee neither gave security as required by the court, nor expressed acceptance of the trust, as required by the statute. The proceeding, in this incomplete condition, came to an end by abandonment.

A voluntary assignment for th e benefit of creditors having been made on the twenty-fourth of October, 1873, the parties turned to it, and pursued the remedies thus afforded, through the instrumentalities of the state court. Between the proceeding on this assignment and the proceeding in bankruptcy there is no connection whatever. Finding the remedies afforded by the state court sufficient for their purposes, the parties contemplated no further prosecution of the proceeding here, and permitted it to die by inaction. The petition for discharge, filed four years later, (when creditors were pressing for judgment,) had nothing whatever to rest upon. The attempt thus to revive the defunct proceeding was abortive. There was nothing to revive. The proceeding itself was an abortion, dying in the throes of birth. If it could be regarded as alive, however, the petition would still have to be dismissed for non-compliance with the bankrupt laws, in prosecuting the case. In re Young, 9 Fed. Rep. 146, bears no resemblance to this case.

The petition must be dismissed.