when once a party, could, on showing the required facts, secure a removal of the cause to the proper Federal court; there are, however, no cases in point. If a trustee does not intervent, he is bound by the judgment to the same extent that any party acquiring an interest pending suit would be bound.48 $43. Where bankrupt is plaintiff.-The words of this subsection are strikingly similar to those of the law of 1867.49 They have, however, been given a somewhat limited meaning. Thus, only such suits as may be beneficial to the estate should be continued by the trustee.50 If, then, actions not beneficial to the estate are pending, what may the bankrupt do? The authorities are not uniform.51 The analogy between such a right of action and any other valueless or burdensome property is striking, and, it is thought, on proper application to the referee in charge, the trustee may be excused from prosecuting such a suit, and the bankrupt authorized to do so for his own benefit.52 The consent of the bankruptcy court to the substitution of the trustee for the bankrupt in the State court should first be obtained and affirmatively shown.53 If the trustee intervenes, the suit will be continued in his name, but the trustee is liable only for costs after he intervenes, and for costs personally only when guilty of mismanagement or bad faith.55 § 44. Practice.-Application should first be made by petition or motion for leave to ask to intervene; and this application should, as a rule, be heard at a meeting of creditors. It may, however, be Rowley, 188 U. S. 620, 9 Am. B. R. 525. Compare Neiman v. Shoolbraid, 2 N. B. N. Rep. 668. 48. Thatcher v. Rockwell, 105 U. S. 467. 49. Act of 1867, section 16; R. S., section 5047. 50. In re Haensell, 1 Am. B. R. 286, 91 Fed. 355; In re Franks, 2 Am. B. R. 634, 95 Fed. 635. 51. Towle v. Davenport, 16 N. B. R. 478; Noonan v. Orton, 12 N. B. R. 405; Gilmore v. Bangs, 55 Ga. 403; Sutherland v. Davis, 42 Ind. 26. 52. Griffin v. Mutual Life Ins. Co., 11 Am. B. R. 622, 119 Ga. 664, 46 S. E. 870. 53. Hahlo v. Cole, 15 Am. B. R. 591, 112 App. Div. (N. Y.) 636. 54. Ames v. Gilman, 51 Mass. 239. 55. Norton v. Switzer, 93 U. S. 355; Reade v. Waterhouse, 52 N. Y. 587. granted ex parte. How far an adverse party in the State court should be heard in opposition to the motion is an open question. He certainly should not, if he is not a creditor, and any effort on his part summarily to determine the controversy on the merits should be checked; the State court is the forum for such determination. Permission once granted, the scene shifts to the State court, and the application there will, of course, be in accordance with the rules and practice of that court.56 Throughout, the prac tice under these subsections is closely analagous to that where a trustee initiates a suit, discussed under the appropriate sections.57 § 45. Limitation on suits by trustee and when it begins to run. -This subsection has reference to suits initiated by the trustee, rather than those pending at the time of the bankruptcy.58 It is similar to the corresponding clause under the act of 1867 in the period only, two years. The time under that statute began to run when the cause of action accrued in or against the assignee. The time does not now begin to run " until the estate has been closed."59 This subsection constitutes an arbitrary limitation on suits, as to computation of time at least superseding all statutes, whether State or Federal,60 provided the action is not barred by the State statute at the time the petition in bankruptcy was filed. It seems also that the character of the suit is immaterial, provided it amounts to the prosecution of a demand in a court of justice, 62 in respect to the property or rights of property of the bankrupt.63 It applies also to writs of error sued out to review a State judgment, as well as to suits initiated by the trustee. It does not apply to 56. Bank of Commerce v. Elliott, 6 Am. B. R. 409. 57. See chapters XXII, XXIII and XXIV, supra. 58. But compare Maybin v. Raymond, Fed. Cas. 9.338. 59. For a somewhat remarkable example of the effect of the limitation under the former law, see Scott v. Devlin, 89 Fed. 970. 60. Freelander v. Holloman, Fed. Cas. 5,081. 61 61. Sheldon v. Parker, 11 Am. B. R. 152 (Neb.), 92 N. W. 923. 62. Bailey v. Glover, 21 Wall. (U. S.) 342; Ames v. Gilman, supra; Union Canal Co. v. Woodside, 11 Pa. St. 176. 63. In re Conant, Fed. Cas. 3,086; Stevens v. Hauser, 39 N. Y. 302. 64. Jenkins v. Bank, 106 U. S. 571; Walker v. Towner, Fed. Cas. 17,089. an application to reopen a case upon the ground that the proceeding was closed before the estate was fully administered. 65 Under familiar principles, this limitation does not affect jurisdictions; to be available, it must be pleaded.66 "After the estate has been closed" is a new phrase. It surely does not mean the date of the discharge or refusal to discharge. Nor yet does it mean the day the referee remits the papers of a closed case to the clerk.67 It rather refers to the date when the final decree approving the trustee's account and discharging him is granted.68 Even this is, how ever, not accurate, for in no-assets bankruptcies, no trustee may be appointed, and yet a cause of action may develop; while in many cases when a trustee is appointed, he finds himself unable to find assets and, there being no funds with which to pay the expenses incident to a meeting for his discharge, files no report and is not discharged. There are as yet no decisions construing the meaning of this phrase. It is suggested that, where no trustee is appointed, the two years will begin to run from the day when the order dispensing with a trustee is granted, and that, when a trustee is appointed who does not report or seek a final discharge, it will not begin until such discharge is granted." It has been held that where an estate is declared closed, but is subsequently reopened, the two year period begins to run from the subsequent closing of the estate. 70 65. Matter of Paine, 11 Am. B. R. 351, 127 Fed. 246. 66. Chemung Bank v. Judson, 8 N. Y. 254. 67. See section 39a (7), Bankr. Act, 1898. 69 68. See section 2(8), Bankr. Act, 1898. 69. Collier on Bankruptcy, 6th ed., P. 154. 70. Bilafsky V. Abraham, 183 Mass. 401, 67 N. E. 318. of wife in use of her estate by her husband constitutes a trust...... 372 Action: right of creditor or levying officer to attack conveyance in, by grantee 748 750 right of creditor on intervention of grantee. 750 intervention by creditors 751 remedy where equitable interests in real estate are sought to be 752 |