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risdiction of the court, conditioned to indemnify the bankrupt for all costs and expenses, in addition to the damages occasioned, in the event the petition is dismissed. (Sec. 3, e.) As to whether a corporation can become a surety on the bond required by section 3, e, in view of the express provision permitting them to do so on the bonds of referees and trustees (sec. 50, g), is doubtful, but it would seem discretionary with the judge whether or not he will accept them under section 69.
A receiver may be appointed, after an adjudication of bankruptcy and before the selection of an assignee, for the temporary care and custody of the estate, when special circumstances render it desirable. (Lansing v. Manton, 14 N. B. R. 127; 3 N. Y. Weekly Dig. 112; Fed. Cas. 8077.) Application for a provisional assignee on the ground that the debtor was removing his property was denied, it appearing that the property was being removed in view of a contract made long before the commencement of the bankruptcy proceedings. (M. & M. Nat. Bank of Pittsburg v. Brady's Bend Iron Co., 5 N. B. R. 491; 19 Pittsb. Leg. J. 5; 3 Chi. Leg. News, 402; 28 Leg. Int. 317; 4 Amer. Law T. 168; 8 Phila. 171; 3 Pittsb. Rep. 326; 1 Amer. Law T. Rep. Bankr. 272; Fed. Cas. 9018.) A warrant commanding the marshal to take possession provisionally of all the goods, assets and property conveyed by the bankrupt to another is beyond the power of the court in so far as it commands the marshal to take property conveyed before the filing of a petition by the bankrupt. (In re Harthill, 4 N. B. R. 131; 4 Ben. 488; Fed. Cas. 6161.) A petition in involuntary bankruptcy having been filed, and certain goods which had been transferred having been seized upon a warrant, a petition was filed for the annulment of the warrant, which was granted; but an injunction was issued to prevent disposal of the goods. (In re Holland, Jr., 12 N. B. R. 403; 1 N. Y. Weekly Dig. 125; Fed. Cas. 6605.)
Liability for unlawful seizure. It was held, under the act of 1867, that where property is unlawfully taken by the marshal under a warrant of seizure, the actual value of the property may be recovered. (Doll v. Harlow, 11 N. B. R. 350.) If the United States marshal, in executing a warrant for the seizure of a bankrupt's property, seize that of a stranger, he renders himself liable to an action for trespass which may be brought in a state court. (Marsh and Palmer, Ex'rs, v. Armstrong, 11 N. B. R. 125; In re Muller & Bretano, 3 N. B. R. 86; Deady, 513; Fed. Cas. 9912; In re Marks, 2 N. B. R. 175; Fed. Cas. 9095. But see Stevenson et al. v. McLaren et al., 14 N. B. R. 403; In re Briggs, 3 N. B. R. 157; Fed. Cas. 1869.) A marshal has no authority under a warrant to seize property provisionally, outside of his district. (Carr v. Phillips, 18 N. B. R. 527; sec. 5046, R. S.)
Sec. 70. Title to property.-a. The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon
his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) documents relating to his property; (2) interest in patents, patent rights, copyrights, and trade-marks; (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; (4) property transferred by him in fraud of his creditors; (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him: Provided, That when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets; and (6) rights of action arising upon contracts, or from the unlawful taking or detention of, or injury to, his property.
[Act of 1867. SEO. 14. That as soon as said assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and such assignment shalĺ relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings:
and all the property conveyed by the bankrupt in fraud of his creditors; all rights in equity, choses in action, patents
and patent rights and copyrights; all debts due him, or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person arising from contract or from the unlawful taking or detention, or of injury to the property of the bankrupt, and all his rights of redeeming such property or estate, with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee; and he may sue for and recover the said estate debts and effects, and may prosecute and defend all suits at law or in equity, pending at the time of the adjudication of bankruptcy, in which such bankrupt is a party in his own name, in the same manner and with the like effect as they might have been presented or defended by such bankrupt. 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; but no property held by the bankrupt in trust shall pass by such assignment].
This is a substantial deviation from the act of 1867. Under that act the courts held the title to vest in the assignee as of the date of filing the petition, while under the present law it is limited to the date a party is adjudged a bankrupt, thus avoiding much of the difficulty and inconvenience incident to a transfer of title to be subsequently avoided upon a judgment of solvency, and permits business transactions with the bankrupt without fear as to imperfections of title. Should this liberality conduce to improvident treatment of the estate by the bankrupt, the court, upon satisfactory proof that the property is being neglected, is deteriorating or about to deteriorate in value, may issue a warrant to the marshal to seize and hold it subject to further orders, upon the giving of a satisfactory bond by the creditor. Upon the bankrupt giving a bond, the property may be released to him. (Sec. 69.) Furthermore, the practicing of fraud by the bankrupt will defeat his discharge, and his concealing any of the property belonging to the estate in bankruptcy, or making a false oath or account in relation to any proceedings, subjects him to imprisonment. (Sec. 29, b, 1, 2.) In addition, any attempt on the part of the alleged bankrupt to defeat the provisions of the law by conveying or delivering to others any material amount of property after the filing of the petition and before the adjudication renders the person receiving such property liable to imprisonment. (Sec. 29, b.)
Control of court over property of bankrupt.- A bankrupt before bankruptcy, or his assignee thereafter, is a necessary party to a suit in equity on an order on funds obtained before bankruptcy, and the bankruptcy court has exclusive jurisdiction for the determination of all questions pertaining to the bankrupt's estate (Walker, Ass., v. Seigel & Bott et al., 12 N. B. R. 394; 2 Cent. Law J. 508; Fed. Cas. 17085; In re Carow, 4 N. B. R. 178; Fed. Cas. 2426); and its jurisdiction operates as a supersedeas of the process in the hands of the sheriff, and an injunction against all other proceedings than such as might thereupon be had under the authority of the court, until the question of bankruptcy shall have been disposed of. (Jones v. Leach, 1 N. B. R. 165; Fed. Cas. 7475.) All property of the bankrupt included in the schedule comes into the exclusive control of the court as fully as if it were actually and visibly in its presence, the moment the voluntary petition is filed (Byrd, Ass., v. Harrold et al., 18 N. B. R. 433; 26 Pittsb. Leg. J. 315; Fed. Cas. 2269); and no steps can thereafter be taken to enforce claims against the property except through the bankrupt court, or by its permission in the state court (In re Hufnagel, 12 N. B. R. 554; Fed. Cas. 6837; Davis v. Anderson, 6 N. B. R. 146; Fed. Cas. 3623); and the officer appointed to manage it is accountable to the court appointing him and to that court alone. (In re Carow, 4 N. B. R. 178; Fed. Cas. 2426.) The property of the bankrupt, though situate in another state and though mortgaged by the bankrupt prior to the institution of proceedings in bankruptcy against him, is under the control of the court. (Markson & Spalding v. Heaney, 4 N. B. R. 165; 3 Chi. Leg. News, 153; Fed. Cas. 9098.) Receivers of a company “dissolved" under state insolvency laws have no power to withhold the assets of the bankrupt company from the jurisdiction of the court of bankruptcy. (In re Independent Ins. Co., 6 N. B. R. 260; Holmes, 103; Fed. Cas. 7017.) A bankruptcy court has power to take possession of personal assets in the hands of a vendee of a bankrupt, purchased before the adjudication in bankruptcy, upon the ex parte allegations and proof by the assignee that such sale is fraudulent and void, anterior to a trial upon an issue of title thereto. (In re Hunt, 2 N. B. R. 166; 1 Chi. Leg. News, 169; Fed. Cas. 6881.)
Property of bankrupt surrendered to register.- Bankrupts upon filing their petition and being adjudicated bankrupts must surrender all the assets to the register, notwithstanding there may be a prospect of settlement with their creditors. (In re Shafer et al., 2 N. B. R. 178; 1 Chi. Leg. News, 326; Fed. Cas. 12694; In re Howes & Macy, 9 N. B. R. 423; 7 Ben. 102; Fed. Cas. 6787.) The register may order the bankrupt to hand over to the custodian of the estate funds in his hands, and failure to obey is contempt for which an attachment may issue. (In re Speyer, 6 N. B. R. 255; 42 How. Pr. 397; Fed. Cas. 13239.) The register has the right to convey the estate of the bankrupt to the assignee if there be no one before him contesting the appointment of an assignee, although title to the property is in dispute. (In re Wylie, 2 N. B. R. 53; Bank Ct. Rep. 123; 1 Chi. Leg. News, 30; Fed. Cas. 18109.)
any power over a (Dutcher, Ass., v. The title to prop
Nature of title of assignee.-If the assignee has subject, it must be found in the bankrupt law itself. Bank, 11 N. B. R. 457; 12 Blatchf. 435; Fed. Cas. 4203.) erty remains in the bankrupt until the trustee or assignee is duly appointed and qualified and the conveyance or assignment has been made to him. (Sutherland v. Davis, 10 N. B. R. 424.) All the rights and all the duties of the bankrupt in respect to whatever property, not excluded from the operation of the Bankruptcy Act, he may hold under whatever title, whether legal or equitable, and however incumbered, pass to and devolve upon the assignee at the date of the filing of the petition in bankruptcy (In re Wynne, 4 N. B. R. 5; 2 Amer. Law T. Rep. Bankr. 116; Fed. Cas. 18117; In re Rosenberg, 3 N. B. R. 33; 3 Ben. 366; Fed. Cas. 12055; Smith v. Buchanan et al., 4 N. B. R. 133; 3 Alb. Law J. 97; Fed. Cas. 13016; Markson & Spalding v. Heaney, 4 N. B. R. 165; 1 Dill. 497; 3 Chi. Leg. News, 153; Fed. Cas. 9098; Purviance v. Bank, 8 N. B. R. 447; 30 Leg. Int. 352; 21 Pittsb. Leg. J. 33; Fed. Cas. 11475; Fourth Nat. Bank of Chicago v. Bank, 10 N. B. R. 44; Randolph & Co. v. Canby, Ass., 11 N. B. R. 296; Fed. Cas. 11559; Barnard et al., Ass,, v. Railroad Co. et al., 14 N. B. R. 469; 4 Cliff. 351; 3 Cent. Law J. 608; 5 Amer. Law Rec. 361; 22 Int. Rev. Rec. 312; Fed. Cas. 1007; Aiken v. Edrington et al., 15 N. B. R. 271; Fed. Cas. 111; Hayes v. Dickinson, 15 N. B. R. 350; Hersey v. Elliott, 18 N. B. R. 358), and he must be considered in the light of a purchaser. (In re Griffith, 3 N. B. R. 179; Potter v. Cogswell, 4 N. B. R. 9; Bromley, Ass., v. Smith et al., 5 N. B. R. 152; 2 Biss. 511; 3 Chi. Leg. News, 297; Fed. Cas. 1922.) The effect of the petition, the adjudication and the assignment is to vest the assets in the assignee as a trust against which the statute of limitations ceases to run. (In re Eldridge & Co., 12 N. B. R. 540; 2 Hughes, 256; 1 N. Y. Wkly. Dig. 243; Fed. Cas. 4331; Starkweather v. Cleveland Ins. Co., 4 N. B. R. 110; 3 Chi. Leg. News, 77; 28 Leg. Int. 36; 10 Amer. Law Reg. (N. S.) 333; 5 Amer. Law Rev. 568; Fed. Cas. 13308.) He has all the rights and powers which are given to the whole body of creditors, whether at law or in equity (Wilkins v. Davis, 15 N. B. R. 60; 2 Lowell, 511; Fed. Cas. 17664), and he has the same remedies they would have had, to reach and subject it to the payment of the debts of the estate. (Allen & Co. v. Montgomery et al., 10 N. B. R. 503.) There is not vested in the assignee any more beneficial interest in the debtor's estate than his execution creditors, under the laws of the respective states already in force, could have obtained under adversary proceedings. (In re Appold, 1 N. B. R. 178; 7 Amer. Law Reg. (N. S.) 624; 6 Phila. 469; 25 Leg. Int. 180; 1 Amer. Law T. Rep. Bankr. 83; Fed. Cas. 499.) He can claim only such interest and right in any property, except in case of fraud, as the bankrupt himself could have claimed. (Rodgers v. Winsor, 6 N. B. R. 246; Fed. Cas. 12023; In re Dow, 6 N. B. R. 10; Fed. Cas. 4036.) All money and property in the hands of the bankrupt at the time of filing his petition, which he is using and holding as his own, pass