for he is entitled to all the rights of the bankrupt in respect to his property. McMillan v. Love, 72 N. C. 18.

Where an action is brought on an appeal bond to recover costs, an objection that one of the appellees became bankrupt after the taking of the appeal and before the dismissal thereof, will be deemed to be waived unless it is pleaded, and can only be pleaded in abatement. McSpedon v. Bouton, 5 Daly, 30.

The bankrupt may sue out a writ of error in his own name to remove a judgment rendered against him after the commencement of the proceedings in bankruptcy. Dormire v. Cogly, 8 Blackf. 177.

If the defendant is declared a bankrupt before the taking of an appeal, the appeal may be prosecuted in his name or in that of his assignee. O'Neil v. Dougherty, 10 B. R. 294; s. c. 46 Cal. 575.

A bankrupt may appeal from a judgment rendered against him as guardian after the commencement of the proceedings in bankruptcy. Collins v. Marshall, 10 Rob. (La.) 112.

The time of the adjudication of bankruptcy is the time of filing the petition. In re Patterson, 1 B. R. 125; s. c. 1 Ben. 508.

ACT OF 1898, CH. 5, § 46. Death or Removal of Trustees.(a) The death or removal of a trustee shall not abate any suit or proceeding which he is prosecuting or defending at the time of his death or removal, but the same may be proceeded with or defended by his joint trustee or successor in the same manner as though the same had been commenced or was being defended by such joint trustee alone or by such successor.

ACTS OF 1867 and 1874, § 5048. No suit pending in the name of the assignee shall be abated by his death or removal; but, upon the motion of the surviving or remaining or new assignee, as the case may be, he shall be admitted to prosecute the suit in like manner and with like effect as if it had been originally commenced by him.

Statutes revised Prior March 2, 1867, ch. 176, § 16, 14 Stat. 524. Statutes April 4, 1800, ch. 19, § 9, 2 Stat. 24; Aug. 19, 1841, ch. 9, § 9. 5 Stat. 442.

ACT OF 1898, CH. 4, § 21. Evidence; Certified Copy of Order Approving Bond.- (e) A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened.

ACT OF 1867, § 5049. A copy, duly certified by the clerk of the court, under the seal thereof, of the assignment, shall be conclusive evidence of the title of the assignee to take, hold, sue for, and recover the property of the bankrupt.

Statute revised March 2, 1867, ch. 176, § 14, 14 Stat. 522. Prior Statutes - April 4, 1800, ch. 19, § 56, 2 Stat. 35; Aug. 19, 1841, ch. 9, § 15, 5 Stat. 448.

When an appellant becomes bankrupt after an appeal taken, his assignee, upon producing a copy of the assignment, duly attested by the clerk of the proper district court, may, on motion, be admitted as a party to the suit in the appellate court in the place of the bankrupt. Herndon v. Howard, 4 B. R. 212; s. c. 40 How. Pr. 288; s. c. 9 Wall. 664; Knox v. Exchange Bank, 12 Wall, 379.

An uncertified copy of the petition to be declared bankrupt and a certificate of discharge are no evidence of the appointment of an assignee. Alexander v. McCullough, 32 Leg. Int. 336.

Oral testimony to prove an assignment is not admissible until evidence is given to show that the original or a certified copy thereof can not be produced. Burk v. Winters, 15 B. R. 140; s. c. 28 Ark. 6; Files v. Harbison, 29 Ark. 307.

The right of the assignee to maintain a suit does not depend on the instrument of assignment. A copy of an assignment, under the seal of the court, if duly certified, is sufficient to show the assignee's right to sue, although the original assignment is not signed either by the judge or the register. Zantzinger v. Ribble, 4 B. R. 724; s. c. 36 Md. 32.

It is not necessary to produce proof of an acceptance of the appointment or of a publication of the appointment or of the recording of the assignment, for a duly certified copy of the assignment is made conclusive evidence of the right to sue. Rogers v. Stevenson, 16 Minn. 68; Faires v.

Metoyer, 6 Rob. (La.) 75.

In a suit instituted by the assignee, it is not necessary to prove all the steps in the proceedings in bankruptcy, for a copy of the assignment is conclusive evidence of the assignee's title. Dambmann v. White, 12 B. R. 438; s. c. 48 Cal. 439; Shawhan v. Wherritt, 7 How. 627; Carr v. Gale, 2 Ware, 330; s. c. 3 W. & M. 38.

If the assignee produces a duly certified copy of the assignment, it is not necessary for him to show the jurisdiction of the district court over the proceedings or the person of the bankrupt. Cone v. Purcell, 11 B. R. 490; s. c. 56 N. Y. 649.

Neither the validity of the adjudication of bankruptcy, nor the existence, sufficiency, or validity of the debt of the petitioning creditor can be collaterally drawn in question. In all suits brought by the assignee, the assignment is conclusive evidence of his right to sue. Barstow v. Adams, 2 Day, 70; Rugan v. West, 1 Binn. 263; Barclay v. Carson, 2 Hay (N. C.) 243; Lovett v. Cutter, 1 Mass. 67; Livermore v. Swazey, 7 Mass. 213; Den v. Wright, Pet. C. C. 64.

§ 5050. No person shall be entitled, as against the assignee, to withhold from him possession of any books of account of the bankrupt, or claim any lien thereon.

Statute revised March 2, 1867, ch. 176, § 14, 14 Stat. 522.

Until a conveyance is declared to be void by due course of law, the grantee's right to books and papers conveyed to him is as perfect, to all intents, as against the assignee, as his right to any other property. Rogers v. Winsor, 6 B. R. 246.

A receiver appointed by a State court, is entitled to refuse to deliver up the bankrupt's books to the assignee, or to give him possession thereof, until they are properly taken from him by adverse proceedings, but he must produce them to be used on the examination as evidence. In re William W. Hulst, 7 Ben. 40.

*

ACT OF 1898, CH. 3, § 7. Duties of Bankrupts. The bankrupt shall ** * execute to his trustee transfers of all his property in foreign countries.

ACTS OF 1867 and 1874, § 5051. The debtor shall, at the request of the assignee and at the expense of the estate, make and execute any instruments, deeds, and writings which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt.

Statutes revised March 2, 1867, ch. 176, § 14, 14 Stat. 522. The bankruptcy court will order the bankrupt to execute and deliver to the assignee the proper papers to enable him to be admitted to prosecute suits pending in the State courts in his own name, in the same manner and with the like effect as they might have been prosecuted by the bankrupt; and direct the bankrupt himself to refrain from prosecuting the actions, or applying for any order or decree therein. In re Clark et al., 3 B. R. 491; s. c. 4 Ben. 88; Samson v. Burton, 4 B. R. 1; s. c. 5 Ben. 325; Clark v. Binninger, 5 B. R. 255; s. c. 39 How. Pr. 363.

*

(d) Liens given

ACT OF 1898, CH. 7, § 67. Liens. or accepted in good faith and not in contemplation of or in fraud. upon this Act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this Act.

ACT OF 1867, § 5052. No mortgage of any vessel or of any other goods or chattels, made as security for any debt, in good faith and for a present consideration, and otherwise valid, and duly recorded

pursuant to any statute of the United States or of any State, shall be invalidated or affected by an assignment in bankruptcy.

Statute revised March 2, 1867, ch. 176, § 14, 14 Stat. 522.

This provision can not enlarge the rights or title of the assignee, or make a mortgage invalid against him, which, but for the provision, would have been valid. It appears to have been inserted out of greater caution, lest it should be supposed that valid chattel mortgages would be affected by the assignment, and not with any view of construing the laws regarding record; and so, if the mortgage be one that requires no record, as if it be executed in a State having no statute upon the subject, or if the record is not required between the parties, the provision will not defeat it. In re Chas. W. Griffiths, 3 B. R. 731; s. c. Lowell, 431; Coggeshall v. Potter, 4 B. R. 73; s. c. 6 B. R. 10; s. c. 1 Holmes, 75.

It would be going too far to hold all mortgages not included by the terms of the description to be invalidated by the act. The clause expressly saves certain mortgages, but it says nothing as to others. Much less does it say anything as to deeds of trust or conveyances of analogous character. It leaves all deeds and instruments of writing not expressly saved to the general principles of jurisprudence. In re Wynne, 4 B. R. 23; s. c. Chase, 227; s. c. 2 L. T. B. 116.

Mortgages which are not otherwise valid or duly recorded are not enumerated as protected in favor of the mortgagee, but, on the contrary, are carefully excluded. The attention of Congress was specially called to chattel mortgages, and the language of the act is carefully framed, so as to recognize and protect such liens as were already valid by the laws of the land, the statutes of the United States, or of the State where the transaction occurred. The maxim expressio unius est exclusio alterius, applies to other cases. Edmonson v. Hyde, 7 B. R. 1; s. c. 2 Saw. 205; s. c. 5 L. T. B. 380; in re Geo. P. Morrill, 8 B. R. 117; s. c. 2 Saw. 356; Moore v. Young, 4 Biss. 128.

In a contest between the assignee and third parties to ascertain their respective rights as to real estate, which had been purchased by the bankrupt and such parties, under an agreement to furnish the outlay and share in the profit and loss equally, it is necessary to adjust the partnership dealings to the time of the commencement of bankruptcy proceedings, and ascertain the exact interest of the bankrupt and each of his partners in such transaction. Where partnership debts are still outstanding on which the bankrupt's partner is liable, such partner is entitled to a lien upon such real estate until the debts are paid, to indemnify him in case he is compelled to pay them. Thrall v. Crampton, Assignee, 16 B. R. 261. Where one has a valid lien upon property in his custody belonging to another who is on the eve of bankruptcy, and sells the same with knowledge that bankruptcy is imminent, the sale will not be afterward disturbed by the court of bankruptcy if untainted by fraud, if there has been no sacrifice of the property. In re Roseberry et al., 16 B. R. 340.

The lien of a factor for his advancements, charges and commissions is within the meaning of the statute providing that securities taken in good faith, etc., will not be affected by the act. Ibid.

Where a mortgage was executed to secure a mortgagee as indorser, and it does not appear that he has taken up any of the indorsed paper, he can claim no rights under the mortgage, and is liable to the assignee for any moneys paid him for its release. Sessions v. Johnson, 17 B. R. 64.

A mortgage given as collateral security for a debt, and also to secure mortgagee against liability as surety for the mortgagor, is a valid and subsisting lien from the date of its record to secure such amount as may appear to be due upon the indebtedness secured thereby. Milner v. Meek, 17 B. R. 82.

A mortgage executed by a bankrupt prior to commencement of proceedings in bankruptcy, to secure a present indebtedness and also future advances of goods to be made by the mortgagee, is a valid security for such indebtedness, and the amount of advances actually made. Schulze, Assignee, v. Bolting, 17 B. R. 167.

A mistake in description of premises in such mortgage may be corrected as against the assignee subsequently appointed. Ibid.

It was held in this case (under law of 1867) that where the mortgagee had proved his debt as a secured claim in the proceedings, an action to foreclose the mortgage could be brought in the bankruptcy court, by leave of the court first obtained. Ibid.

The rights of a pledgee are not impaired or affected by any of the provisions of the bankruptcy law, noi are they impaired by his failure to appear in the bankruptcy court and refusal to become a party to the proceedings by proving his debt. Yeatman et al., Assignees, v. N. O. Sav ings Bank, 17 B. R. 187.

A bankrupt previous to commencement of the proceedings sold certain premises. Parties who had prior to the conveyance performed work upon the premises subsequently filed a lien therefor and proved their claim in the bankruptcy proceedings, but neglected to state that it was secured by a lien, and received a dividend. In an action to foreclose the lien, Held, that the grantee of the premises could not claim that the lien was thereby released. Bassett v. Baird, 17 B. R. 177.

Where sale of goods was made on condition that the title of the vendor was not to pass until the purchase money should be paid, and the goods were delivered to the vendee, Held, that such a stipulation is valid, and if all taint of fraud is disproved a subsale of the goods by the vendee, before payment in full to the vendor, will not affect the title of the original vendor. In re Binford, 17 B. R. 353.

Possession of goods does not of itself carry along with it the property in them, nor of itself identify the real owner of them. In Virginia the possession of the fixtures and outfit of a tobacco manufactory was held not to create the presumption that the title to them was in the person using them. Ibid.

A charterer of a vessel having purchased supplies of a materialman upon the credit of the vessel, afterward went into bankruptcy and pro