Page v. Edmunds, 9 A. B. R. 281, 187 U. S. 596: "Was the seat in the stock exchange property which could have been by any means transferred, or which might have been levied upon and sold under judicial process? If the seat was subject to either manner of disposition, it passed to the trustee of the appellant's estate.

"We think it could have been transferred within the meaning of the statute. The appellant could have sold his membership, the purchaser taking it subject to election by the exchange, and some other conditions. It had decided value. The appellant paid for it in 1880, $5,500, and he testified that the last price he had heard paid for a seat was $8,500. One or the other of these sums, or, at any rate, some sum, was the value of the seat. It was property and substantial property to the extent of some amount, notwithstanding the contingencies to which it was subject. In other words, the buyer took the risk of the contingencies. And they seem to be capable of estimation. The appellant once estimated them and paid $5,500 for the seat in controversy; another buyer estimated them and paid $8,500 for a seat. A thing having such vendible value must be regarded as property, and as it could have been transferred by some means by appellant (one of the conditions expressed in § 70), it passed to and vested in his trustee."

Thus, also, a lease providing for forfeiture on attempted assignment cannot be "transferred" by the debtor but may be levied on and sold under judicial process against him.14

Again, it has been held that where an elevator company or other company having goods in possession, for which elevator certificates or warehouse receipts have been issued, becomes bankrupt, the fact of outstanding certificates against the flour and grain in its storage tanks or goods in its warehouse is not sufficient to prevent title passing to the trustee in bankruptcy, since the property could have been levied upon by creditors.15

In re Milbourne Mills Co., 20 A. B R. 746, 162 Fed. 988 (D. C Pa.): "As we read the cases of York Mfg. Co. v. Cassel, supra, and Davis v. Crompton, supra, the court in both held that the bankrupt never had title to property covered by a conditional sale and was not included in the property to which a trustee in bankruptcy took title under subdivision 5 of § 70a, because that subdivision not only requires that the property to which the trustee takes title shall be property which would have been liable to be levied upon and sold under judicial proceedings against the bankrupt by the creditors, but that the bankrupt must have had some previous title to it, or the rights of the creditors fixed by a previous lien placed upon it by levy or attachment. But neither of these cases go so far as to say that property upon which a creditor could have levied, concededly belonging to the bankrupt, to which it had title and possession before the bankruptcy proceedings and of which title it had never been divested, although covered by a certificate or pledge as collateral security for a loan, belongs to the pledgee as against the trustee

name, does not prevent it from passing to the trustee as his individual property, if, in fact, it was such. In re Gibson, 27 A. B. R. 401, 191 Fed. 665 (D. C. S. D.).

1 R B-48

14. See post, subject of "Leaseholds," § 979, et seq.

15. See post, § 1884; compare, perhaps (Security) Warehousing Co. v. Hand, 19 A. B. R. 291, 206 U. S. 415 quoted at § 1146.

in bankruptcy. The pledge is no doubt good as between the pledgor and pledgee in Pennsylvania as against creditors who have never levied, but as the title still remained in the pledgor, who is the bankrupt when it is so adjudged, its title passed to the trustee. It is property, the title to which passes to the trustees under subdivision 5, § 70a of the act, as property 'which might have been levied upon and sold under judicial proceedings against him.' * * * The facts in this case are nearly similar to those under consideration by the Supreme Court in the case of Security Warehousing Co. v. Hand [19 A. B. R. 291, 206 U. S. 415], and there the trustee held the property for the general creditors. In that case it was in effect held that where there was no delivery or change of possession, such certificates as those given did not operate as a delivery of the property mentioned therein. It was also held that the general law of pledge requires possession, and it cannot exist without it."

However, it is to be observed that if, under the law of the State, such certificates or receipts were sufficient to pass title to the property itself, they would doubtless be likewise sufficient in bankruptcy. Indeed, such seems to be the qualification imposed by the Supreme Court in the case of Security Warehousing Co. v. Hand, 19 A. B. R. 291, 206 U. S. 415.

§ 965. If Transferable "by Any Means," or Leviable, It Passes, Otherwise, Not.-If capable of being disposed of or its possession parted with by any means, and either absolutely or conditionally, it passes to the trustee; but if not so capable it does not pass, unless leviable upon or coming within some one of the other classes of § 70 (a).16

§ 966. Broad Scope of Class 5.-The broadest possible scope is given to this class 5 of assets. Not only is "transfer" a word of widest content by the definition of the Bankruptcy Act itself, including all possible interests of the bankrupt in property, but also in class 5 of assets it is further provided that such interests pass if "by any means" they can be made to pass. Thus, conditional and contingent interests pass, even if, in addition to being conditional or contingent, the assistance of the bankrupt or of some one else over whom the bankruptcy court has control is requisite in order to consummate the "disposing of" the property.17

SUBDIVISION "A."

MEMBERSHIP IN STOCK EXCHANGES, CLUBS, ETC., LICENSES AND OTHER

PRIVILEGES.

§ 967. Thus, Memberships in Stock Exchanges, Clubs, etc., Licenses and Personal Privileges, Pass.-A good example of the broad scope of this class 5 of assets is furnished by memberships in stock exchanges. The transferability of such memberships is wholly contingent upon the purchaser being elected a member by the exchange. Again, its transfer commonly is not to be effected by any of the ordinary and usual means

16. Bankr. Act, § 1 (25): ""Transfer' shall include the sale and every other and different mode of disposing of or parting with property or the possession of property, absolutely or

conditionally, as a payment, pledge, mortgage, gift or security."

17. Gould v. N. Y. Life Ins. Co., 13 A. B. R. 235, 132 Fed. 930 (D. C. Ark.).

of transferring property-neither by sale, assignment, pledge, mortgage, etc.-but only by the holder making written request upon the exchange to transfer the membership. Thus, membership in stock exchanges illustrate, most aptly, the broad inclusiveness of class 5. Such property not only is capable merely of contingent transfer, but also is capable of transfer only by peculiar means.

Personal privileges, if in any way they can be sold, even conditionally and though they require peculiar means for consummating the transfer, thus pass to the trustee, as memberships in clubs and in stock exchanges and licenses. Thus, a membership in a chamber of commerce will pass.18

And the money value of a seat in the stock exchange belonging to a bankrupt member passes to the trustee, in the absence of any forfeiture clause in the constitution or by-laws.19

O'Dell v. Boyden, 17 A. B. R. 758, 150 Fed. 731 (C. C. A. Ohio): "Though possessing none of the qualities of a negotiable or even a nonnegotiable instrument, this membership has a pecuniary market value and constitutes a property right which, under the settled principles of the law, is capable of passing by will or inheritance. In re Hellman, 174 N. Y. 254. Though its sale and transfer are clogged with onerous conditions and the property one of a narrow character, these conditions and characteristics go only to the reduction of the pecuniary market value and do not deprive it of its character as property. Powell v. Waldron, 89 N. Y. 328. As a valuable property right, incorporeal in character, it may be reached and subjected as property by a creditor through the flexible remedies of equity. A court of chancery through a decree in personam may compel the co-operation of the number in steps necessary to consummate a sale and transfer under the rules of the association. * * * Such a seat constitutes a property right which is not only descendable, taxable and assignable, but is one which passes to the trustee of a bankrupt member, and the bankrupt court may compel the bankrupt to sign all transfers, or consents essential to bring about its sale under the rules of the exchange. * * * That an assignee or transferee, in pledge or otherwise, would obtain such an equitable right as would enable him through the aid of equity to bring about its transfer through the co-operation of the member, cannot be doubted. If a creditor, having no equitable lien by contract, might obtain one by aid of equity, there is no reason why an assignee or transferee might not also."

Subject however to liens of creditor members, under the rules of the stock exchange. 20

18. In re Neimann, 10 A. B. R. 739, 124 Fed. 738 (D. C. Wis.).

19. Page v. Edmonds, 9 A. B. R. 281, 187 U. S. 596, quoted at § 964; In re Gaylord, 7 A. B. R. 195, 111 Fed. 717 (D. C. Mo.); In re Hurlbutt, Hatch & Co., 13 A. B. R. 50, 135 Fed. 504 (C. C. A. N. Y.); In re Gregory, 23 A. B. R. 270, 174 Fed. 629 (C. C. A. N. Y.).

But the proceeds of a sale of the seat will not be ordered paid to the trustee where supplementary proceedings had been instituted prior to four

And subject also to the decision of the stock exchange tribunal establishing the order and validity of such liens.21

In re Currie (Austin), 26 A. B. R. 345, 185 Fed. 263 (C. C. A. N. Y.): "The proposition that a bankrupt's seat in the New York Stock Exchange is property or assets passing to his trustees may be admitted. I think it must be admitted, but am unable to perceive how it advances the petitioner's case. A seat in this Stock Exchange is property of such a nature that it can never become available to the assignee, legal representative, receiver or trustee of a Stock Exchange member, until the claims of other members of this unincorporated association have been settled by the sole tribunal entitled to pass upon the same according to the laws of the exchange, which are no more than the contractual engagements entered into by every person joining the organization, and therefore binding upon all those successors in interest who claim by, through, or under a Stock Exchange member."

Conditioned of course upon the usual rules regulating the binding force of tribunals outside of the regularly constituted courts.

A liquor license will pass, or not pass, according to local law. 22
Thus, it will pass in Minnesota.

In re May, 5 A. B. R. 1 (Ref. Minn. affirmed D. C.): “Without undertaking to make nice discriminations between what may properly be classified as property, and what clearly appears to be a mere personal privilege, it is held that whatever has a money value in the hands of a trustee, so that some person may be willing to buy from him at a price, even though it partake of the qualities of a personal privilege, in the sense of being not legally assignable, passes to the trustee, except such property as is expressly exempted by law. *

"The village liquor license now in the possession of the bankrupt, is in some sense property. It represents the investment of a large amount of money, and will be deemed to have a money value. The trustee in bankruptcy is entitled to said license, and is bound to realize upon it, whatever he may be able to sell it for. The question as to what title he may be able to give, is for the consideration of an intending purchaser."

And in Virginia.23

But a liquor license will not pass in Georgia, because it is not a contract nor a property right.24 And it has been variously held in Pennsylvania; one case holding that a liquor license will not pass since it is peculiarly a

21. In re Currie (In re Austin), 26 A. B. R. 345, 185 Fed. 263 (C. C. A. N. Y.).

Creditor Member Holding Other Security Besides Lien on Stock Exchange Seat. For a case where a creditor member holding other security besides his lien on the bankrupt stock broker's seat, was yet not required to exhaust his other security first, see In re Currie (Austin), 26 A. B. R. 345, 185 Fed. 263 (C. C. A. N. Y.).

22. Instance where benefits of license held to pass. In re Baumblott, 18 A. B. R. 496, 156 Fed. 422 (D. C. Pa.).

License to Sell Patented Article.Will pass subject to the conditions of the license, In re Spitzel & Co.. 21 A. B. R. 729, 168 Fed. 156 (D. C. N. Y.); see ante. § 958.

23. In re Flaherty, 25 A. B. R. 943, 184 Fed. 962 (D. C. Va.).

24. In re Keller, 16 A. B. R. 727 (D. C. Ga.).

personal privilege,25 whilst other cases hold that it will pass,26 whilst in Massachusetts it will pass,27 conditioned, however, on the assent of the public authorities to the transfer.28 But even in Massachusetts if the public authorities refuse assent to the mortgaging of the liquor license by the bankrupt, the proceeds of the sale of the liquor license will not be turned over to satisfy the mortgagee.29

And the right of a bankrupt to apply for a renewal of a liquor license has been held to pass to the trustee and the bankrupt has been required to make application therefor.30

Likewise, a market stall license passes to the trustee under the same ruling.31

§ 968. Though Subject to Contingency of Election or of Approval of Public Authorities.-This is so notwithstanding the membership may be a subject of election: the purchaser buys subject to the contingency that he may not be elected. Also, notwithstanding such personal privileges cannot be levied on and sold, they may be transferred by the bankrupt, for "transfer" includes conditional sales and "any and every mode of parting with property or the possession of it," according to the definition of the term "transfer" contained in § 1.32