tage from the use or deposit of such funds; and such assignee may be examined orally upon the same subject, and if he shall willfully swear falsely, either in such affidavit or examination, or to his report provided for in this section, he shall be deemed to be guilty of perjury, and on conviction thereof, be punished by imprisonment in the penitentiary not less than one and not more than five years.

The assignee's right to convey depends entirely upon the statute which gives him the power, and he is bound to convey in the manner prescribed by the statute, or else his conveyance is a nullity. Stevens v. Palmer, 10 Bosw. 60; Harrington v. Fish, 10 Mich. 445; Gray v. Heslep, 33 Mo. 238; Warren v. Homestead, 33 Me. 256; Dwinel v. Perley, 32 Me. 197; Osborn v. Baxter, 58 Mass. 406; Joy v. Berdell, 25 Ill. 537; Holbrook v. Brenner, 31 Ill. 501. Vide Crowley v. Hyde, 116 Mass. 589.

The register may designate the newspapers in which a notice of sale by the assignee shall be published. In re Peter N. Burke, 15 B. R. 40.

ACT OF 1867, § 5063. Whenever it appears to the satisfaction of the court that the title to any portion of an estate, real or personal, which has come into possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent, or attorney, as the court shall deem reasonable, order it to be sold, under the direction of the assignee, who shall hold the funds received in place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property in any suit or controversy between the parties in any court. But this provision shall not prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale.

Statute revised March 2, 1867, ch. 176, § 25, 14 Stat. 528.

This section intrusts the court with a discretion which can only be exercised by the court itself, and can not be delegated to any officer of the court. In re Wm. Major, 14 B. R. 71; in re John Graves, 1 B. R. 237; s. c. 2 Ben. 100.

An order of a register authorizing a private sale without notice is null and void. In re Wm. Major, 14 B. R. 71.

No confirmation by the court can give validity to an order of a register authorizing a private sale without notice. Ibid.

An approval by the court of a sale can not be regarded as a confirmation where it is private and does not become a part of the record until some time afterward. Ibid.

A purchaser at a judicial sale made under a void decree, is bound by the rule caveat emptor to look to the jurisdiction of the court, and the legality of the decree and proceedings from which it arose. Ibid.

A sale can only be made after such notice to those claiming adversely as the court in its discretion may deem proper. Ibid.

If property in dispute is sold without notice to the claimant, the sale is a nullity so far as he is concerned. Stanley v. Sutherland, 16 A. L. Reg. 298.

The sale must be public after public notice. In re Wm. Major, 14 B. R. 71.

Before the appointment of an assignee, the bankrupt is the custodian of the estate, and must act in the interest of the creditors. He stands in a fiduciary relation to the estate and can not be a purchaser. March v. Heaton, 2 B. R. 180; s. c. Lowell, 278.

Quaere, Does this clause apply to mortgaged property? Its language is better adapted to claims made by title paramount. Foster v. Ames, 2 B. R. 455; s. c. Lowell, 313.

The provision that the court may order a sale of property not in the possession of the assignee implies very clearly that the court may exercise such control as it deems proper, in regard to property which is in controversy, and which is not in the possession of the assignee. Of course it must be reduced to possession. Where a sale has been made and the proceeds realized by that sale are in controversy the court may order the proceeds to be delivered to the assignee, and held subject to the rights of the party who may prove himself entitled to it. Bill v. Beckwith, 2 B. R. 241; Foster v. Ames, 2 B. R. 455; s. c. Lowell, 313; in re Josiah D. Hunt, 2 B. R. 539; s. c. 1 C. L. N. 169.

Taken literally, the phrase "or which is claimed by him " appears to afford some support to the theory that the power of sale extends to any portion of an estate, the title to which is in dispute, where the same is claimed by the assignee; but it is impossible to adopt that view, as it would authorize the district judge, in the settlement of the estate of a bankrupt, however small, to order the sale of the estate, if claimed by the assignee, of every inhabitant of his judicial district, and to direct the assignee to hold the funds received from the sales in the place of the estate sold, and to compel the owners in possession of the same to appear in court and vindicate their titles, and to accept, if successful, the proceeds of the sales as the value of their property. Such a construction would annul the Constitution, for a man might under it be deprived of his property without due process of law, and could not claim a trial by jury unless he commenced his action before the court ordered a sale. The phrase can not, however, be rejected as surplusage. It was incorporated into the act for the purpose of giving an enlarged power of sale, and authorizes a sale though the estate may not have come to the possession of the assignee, if it is claimed by him, and the title is in dispute, as where personal estate is found in the hands of a mere depositary, carrier, or bailee for safekeeping or transportation, without claim of title or interest in the goods; or, what more frequently occurs, where personal property is subsequently

discovered in the possession of the bankrupt which was not transferred to the assignee, and other cases of a like character. Other examples might be put, but these are sufficient to show that the power of sale even as enlarged by incorporating the phrase into the provision, does not extend to a case where the estate in question is in the actual possession of a third person, holding the same as owner, and claiming absolute title to and dominion over the same, whether the title and possession were derived from the debtor, or any other former owner. Knight v. Cheney, 5 B. R. 305; s. c. 2 L. T. B. 205.

The notice required by this section to be given to a claimant is not in terms at least limited to claimants residing in the district. Markson v. Heaney, 4 B. R. 510; s. c. 1 Dillon, 497.

Under this provision the property may be recovered from the possession of the assignee by an action brought in a State court, before the commencement of proceedings in bankruptcy, and to which the assignee is made a party, or after the commencement of proceedings in bankruptcy, by an action brought in the bankruptcy court, or in the circuit court. But an action of replevin, brought in a State court, to recover specific property, after such property has been taken into custody by the bankruptcy court is not, within this section, a proper action." In re Vogel, 2 B. R. 427; s. c. 3 B. R. 198; s. c. 7 Blatch. 18; s. c. 2 L. T. B. 154; in re Noakes, 1 B. R. 592.

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If the assignee is satisfied that property taken by him did not belong to the bankrupt, he should return it without delay to the owner. In re Noakes, 1 B. R. 592.

The statute does not exempt an assignee from an action in a State court for a tortious taking of property not in possession of the bankrupt and belonging to a stranger. Leighton v. Harwood, 12 B. R. 360; s. c. 111 Mass. 67.

In an action against the marshal for an illegal seizure of property, the measure of damages is the true value of the property, not the amount for which it was sold. Doll v. Harlow, 11 B. R. 350; s. c. 5 N. Y. Supr. 699; s. c. 9 N. Y. Supr. (Hun) 659.

ACT OF 1867, § 5064. The assignee may sell and assign under the direction of the court, and in such manner as the court shall order, any outstanding claims or other property, in his hands, due or belonging to the estate, which can not be collected and received by him without unreasonable or inconvenient delay or expense.

Statute revised - March 2, 1867, ch. 176, § 28, 14 Stat. 530.

ACT OF 1867, § 5065. When it appears to the satisfaction of the court that the estate of the debtor, or any part thereof, is of a perishable nature, or liable to deteriorate in value, the court may order

the same to be sold, in such manner as may be deemed most expedient, under the direction of the messenger or assignee, as the case may be, who shall hold the funds received in place of the estate disposed of.

Statute revised

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March 2, 1867, ch. 176, § 25, 14 Stat. 528.

The parties must apply to the court, and not to the register. In re John Graves, 1 B. R. 237; s. c. 2 Ben. 100.

The court can not order the sale of the property in an involuntary case until it comes into the hands of the marshal. In re Metzler & Cowperthwaite, 1 B. R. 38; s. c. 1 Ben. 356.

It is the duty of the court, from the moment that the property is submitted to its custody, to take due order for its preservation, and to turn it to the best account for the creditors. The district court may, therefore, even before the appointment of an assignee, order the sale of the whole or any part of the property, if it will be beneficial to the creditors, and is assented to by the bankrupt. In re James Vila, 5 Law Rep. 17.

The filing of a petition for a stay of the sale of certain property as perishable does not make the petitioner a party to the proceedings. Marsh v. Armstrong, 11 B. R. 125; s. c. 20 Minn. 81.

If a sale is made before the appointment of an assignee, it should not be made by the bankrupt. In re James Vila, 5 Law Rep. 17.

The bankrupt can not sell any of his property without authority from the court. In re Richard Prior, 4 Biss. 262.

If a sale is made before the appointment of an assignee, it is necessary that the creditors should have due notice of the application before the sale takes place, so that they may appear in the district court and show cause against any sale, or for a postponement thereof. The best mode of giving notice to the creditors is by advertisement in some public newspaper a sufficient time before the sale to enable them to act if they see fit. In re James Vila, 5 Law Rep. 17.

ACT OF 1867, § 5066. The assignee shall have authority, under the order and direction of the court, to redeem or discharge any mortgage or conditional contract, or pledge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same subject to such mortgage, lien, or other incumbrance.

Statute revised - March 2, 1867, ch. 176, § 14, 14 Stat. 522. Prior Statutes April 4, 1800, ch. 19, § 12, 2 Stat. 24; Aug. 19, 1841, ch. 9, § 11, 5 Stat. 447.

Quaere, Can the assignee redeem before the debt is payable? Foster v. Ames, 2 B. R. 455; s. c. Lowell, 313.

ACT OF 1898, CH. 1, SEC. 1. Debt. (11) "Debt shall include any debt, demand, or claim provable in bankruptcy. ACT OF 1867, § 5067. All debts due and payable from the bankrupt at the time of the commencement of proceedings in bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the bankrupt. All demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest. When the bankrupt is liable for unliquidated damages arising out of any contract. or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate.

Statute revised Prior March 2, 1867, ch. 176, § 19, 14 Stat. 525. Statutes - April 4, 1800, ch. 19, § 39, 2 Stat. 32; Aug. 19, 1841, ch. 9, § 5, 5 Stat. 444.

What Claims are Valid.-When a creditor seeks to prove a debt against the estate of a bankrupt, he stands in the position of a plaintiff in a suit at law seeking to enforce such claim. In re Prescott, 9 B. R. 385; s. c. 5 Biss. 523; in re Robert Pittock, 8 B. R. 78; s. c. 2 Saw. 416.

The assignee may set up any defense to a claim which the debtor himself could set up. In re Prescott, 9 B. R. 385; s. c. 5 Biss. 523.

Any debt which may be proved by complying with the provisions of the bankruptcy act is a provable debt. It is true that a secured creditor can be admitted as a creditor only for the balance of his debt after deducting the value of the property upon which he has a lien, unless he releases or conveys his security to the assignee, in which case he may be admitted as a creditor for his whole debt; yet his debt is, nevertheless, provable within the meaning of the act, before such balance is ascertained or such release or conveyance is made. It does not follow that, because he can not be admitted as a creditor, he, therefore, can not prove his debt. On the contrary, the proving of his debt is a necessary preliminary step to his eventually being admitted as a creditor. In re Bloss, 4 B. R. 147; s. c. 2 L. T. B. 126; Rankin & Pullan v. Florida, Atlantic & G. C. R. R. Co., 1 B. R. 647; s. c.. 1 L. T. B. 85. Contra, Sigsby v. Willis, 3 B. R. 207; s. c. 3 Ben. 371; s. c. 1 L. T. B. 71.

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. Contra, in re Hennocksburgh & Block, 7 B. R. 37; s. c. 6 Ben. 150.

The time of the adjudication in bankruptcy is taken by the statute as the decisive time. The debt must exist at the time, or it can not be