Rights of assignee to payments made to bankrupts.- Payments made by creditors to a bankrupt after the filing of the petition in bankruptcy are invalid as against the assignee (In re J. P. Hayden, 7 N. B. R. 192; Fed. Cas. 6257; Babbitt v. Burgess, 7 N. B. R. 561; 4 Dill. 169; 5 Chi. Leg. News, 326; Fed. Cas. 693), even though without knowledge of the appointment of the assignee. (Duffield et al., Ass.. v. Horton et al, 16 N. B. R. 59.) An injunction order and proof of its service are competent evidence to show that a debtor making payment to a bankrupt after adjudication had notice of the demand of the assignee. (Babbitt v. Burgess, 7 N. B. R. 561; 2 Dill. 169; 5 Chi. Leg. News, 326; Fed. Cas. 693.) A payment to a bankrupt after the filing of the petition for adjudication will not discharge the debtor's liability to an after-appointed assignee. Until the appointment of an assignee or the dismissal of the petition, the right of action against the debtor is suspended. (Booth v. Meyer et al., 14 N. B. R. 575.) Where an attachment is issued within four months preceding the commencement of bankruptcy proceedings and is served upon the debtor of the bankrupt, and, pending the bankruptcy proceedings, a general judgment is recovered in the action and an execution issues, and the debtor pays the sheriff the amount of his indebtedness, such payment is voluntary and does not discharge his obligation to the bankrupt or to the assignee. (Duffield, Ass., v. Horton et al., 19 N. B.

R. 13.)

Claims against property in hands of assignee.— A bankrupt court has no authority to deprive the assignee of the possession of the bankrupt's property without due process of law, unless the parties consent to a trial by the court. (Wood Mowing & Reaping Machine Co. v. Brooke, 9 N. B. R. 395; 2 Sawy. 576; Fed. Cas. 17980.) Where a claim to property in the hands of the assignee is set up, and the assignee denies the validity of the claim and asserts title to be in himself, as property of the bankrupt, the claimant cannot proceel by a summary petition. (Hurst v. Teft, Ass., 13 N. B. R. 108; 12 Blatchf. 217; Fed. Cas. 6939.) In taking possession of the bankrupt's estate, the assignee takes the place of a sheriff or marshal, and if the property would not be recoverable from them it is not from him. (Aiken v. Edrington et al., 15 N. B. R. 271; Fed. Cas. 111.) The equities of creditors of a bankrupt, to whom property was fraudulently transferred before bankruptcy, and of creditors of the transferrer, are equal, and the assignee of the bankrupt cannot be required to surrender the property. (Aiken v. Edrington, 15 N. B. R. 271; Fed. Cas. 111.) The defense of usury can be pleaded by the assignee in bankruptcy so long as any part of the debt for which the usury was or was agreed to be paid remains unpaid. (In re Prescott, 9 N. B. R. 385; 5 Biss. 523; 6 Chi. Leg. News, 151; Fed. Cas. 11389.) A sale of goods with a verbal agreement that the vendor is to remain in possession and carry on the business under his own name until such time as the vendee should please to take possession is fraudulent and void as to creditors, and

such vendee is not entitled to the goods as against the vendor's assignee. (In re Morrill, 8 N. B. R. 117; 2 Sawy. 356; Fed. Cas. 9821.) Where a debtor, shortly before filing his petition in bankruptcy, purchases a quantity of carpets, and the vendor brings replevin, the sheriff takes possession, the bankrupt bonds them back, they come into the hands of the assignee, and the parties apply to the register, asking that the goods be held by the assignee to await the determination of ownership, since the title is in dispute, application must be made to the court by petition, but otherwise the register may dispose of the matter. (In re Graves, 1 N. B. R. 19; 2 Ben. 100; Fed. Cas. 5709.) A state cannot tax the funds in the hands of an assignee. (In re Booth, 14 N. B. R. 232; 8 Chi. Leg. News, 307; 1 Cin. Law Bul. 131; Fed. Cas. 1645.)

Assignee's relation to property in general.-The assignee is not bound by the bankrupt's ratification or acquiescence in a sale of collaterals made after the commencement of the proceedings in bankruptcy. (Sparhawk et al. v. Drexel et al., 12 N. B. R. 450; 1 Wkly. Notes Cas. 560; Fed. Cas. 13204.) Where the security of a creditor is reduced to money, the assignee is entitled to any surplus over and above the amount necessary to liquidate the debt. (In re Newland, 9 N. B. R. 62; 7 Ben. 63; 2 Ins. Law J. 860, 895; 4 Bigelow, Ins. Cas. 283; Fed. Cas. 10171.) A secured creditor who proves his claim as unsecured relinquishes his right to any and all securities he holds for his debt, and must deliver the same to the assignee. (In re Granger & Sabin, 8 N. B. R. 30; Fed. Cas. 5684.) Where a bankrupt does not satisfactorily explain a deficit in his assets, he must pay over to the assignee the amount of such deficit. (In re Peltasohn et al., 16 N. B. R. 265; 4 Dill. 107; 10 Chi. Leg. News, 9; Fed. Cas. 10912.) Where a will devises bonds to A., B. and C. and their heirs, provides against alienation and for rents and profits to be paid them by executors, and in case of death of either A., B. or C. without lawful issue the share of such an one is to go to the survivors and heirs forever, and at death of testator C. has several children living, the remainder to the issue of C. is vested and alienable, and passes to a general assignee in bankruptcy during the life of C. (Smith v. Scholtz et al., 17 N. B. R. 520.) An assignee who redeems pledges is subrogated to the rights of the pledgee until, from the proceeds of the pledges redeemed, the fund is made good. (McLean et al., Ass., v. Cadwalader, 15 N. B. R. 383.)

It is not a ground for nonsuit that the plaintiff has been adjudged a bankrupt since the suit was begun, as the court may direct the jury, if they find for the plaintiff, to find that he may recover for the use of his assignee in bankruptcy. (Wooddail, Adm'r, v. Austin & Holliday, 10 N. B. R. 545.)

Where, by agreement between a bankrupt and another, the latter agrees to furnish the bankrupt goods of his manufacture at a fixed price, the bankrupt to pay all freight, storage and charges, and at the expiration of each three months to pay for all goods sold or shipped from the

bankrupt's warehouse, the assignee is entitled to the proceeds of all the goods sold by the bankrupt. (In re Linforth et al., 16 N. B. R. 435; 4 Sawy. 370; 1 San Fran. Law J. 199; Fed. Cas. 8369.) Where a person has the exclusive right to sell another's machines, with the understanding that he is to pay for them if sold within a certain time, and if not he is "to take them for the next season," and the transaction appears upon his books and upon the owner's invoices as a sale, the property in the machines passes upon delivery and upon bankruptcy of the purchaser to his assignee. (Wood Mowing and Reaping Machine Co. v. Brooke, 9 N. B. R. 395; 2 Sawy. 576; Fed. Cas. 17980.) A contract for the conditional delivery of goods to a debtor gives his creditors no title to them until the account for the same is paid. (Sawyer et al. v. Turpin et al., 5 N. B. R. 339; 2 Lowell, 29; Fed. Cas. 12410.)

Where a bankrupt had a fee title in a street, subject to the public easement, which street once terminated in a lake, but accretions accumulated between the street and the lake shore, the right of accretion being a vested one passes to the assignee. (Kinzie v. Winston, 4 N. B. R. 21; Fed. Cas. 7835.) After the filing of a petition in involuntary bankruptcy, no person can acquire any interest by a receivership created by a state court, or otherwise, in the property of the debtor, which the decree in bankruptey will not displace. (Smith v. Buchanan et al., 4 N. B. R. 133; 3 Alb. Law J. 97; Fed. Cas. 13016.)

Property in general in which assignee has no title.—The assignee must surrender to the owners property found in the possession of the bankrupt but belonging to others. (In re Noakes, 1 N. B. R. 164; Bankr. Ct. Rep. 162; Fed. Cas. 10281; In re Pusey, 7 N. B. R. 45; Fed. Cas. 11478.) Where, under a written contract, ownership of personal property is not to pass to the vendee until the full amount of the stipulated price is paid, the assignee in bankruptcy is not entitled to the property unless he makes payment of the balance due. (In re J. H. Lyon, 7 N. B. R. 182; 4 Chi. Leg. News, 421; Fed. Cas. 8614.) Where a bankrupt has charge of, and conducts in his own name, the business of another, taking half of the net profits as his compensation, his right thereto does not pass to his assignee. (In re Beardsley, 1 N. B. R. 121; 1 Amer. Law T. Rep. Bankr. 91; Fed. Cas. 1184.) Hides purchased by a bankrupt to be tanned into leather under an agreement by which another, for whom the leather is to be manufactured, is to furnish the money, belong to the party furnishing the money, although some of the hides may have been purchased with the proceeds of drafts which such party refused to accept. (Safford et al. v. Burgess, Ass., 16 N. B. R. 402; Fed. Cas. 12213.) Where a sale of scales is agreed to, and the payment is to be made after the delivery and the setting up thereof, and they are delivered and partly set up, when the purchaser is declared a bankrupt, the title does not pass to the bankrupt. (In re Pusey, 6 N. B. R. 40; Fed. Cas. 11477.)

Where the bankrupt under a general contract has rendered partial

service, but has not completed the contract prior to the filing of the petition, but subsequently fulfills the same, unless the contract for payment is contingent upon full performance of the services, the compensation will be apportioned between the assignee and the bankrupt in proportion to the value of the services rendered before and after the bankruptcy. (In re Jones, 4 N. B. R. 114; Fed. Cas. 7448.) The assignee of a bankrupt who contracted for the manufacture of and received pay for an article is estopped to deny that an article of the kind contracted for, in the possession of the bankrupt at the time of the adjudication, is the one paid for. (Ex parte Rockford, Rock Island & St. Louis R. R. Co., In re McKay & Adams, 3 N. B. R. 12; 1 Lowell, 345; 2 Amer. Law T. 105; 1 Chi. Leg. News, 337; 1 Amer. Law T. Rep. Bankr. 133; Fed. Cas. 11978.)

Where the bankrupt is a non-resident when the cause of action accrues, and it does not appear when he became a resident of the state, nor that since the cause of action accrued he had resided more than three years in the state, the assignee cannot set up the state act of limitations as a defense. (Capelle, Ass., v. Trinity M. E. Church of Chester, 11 N. B. R. 536; Fed. Cas. 2392.) If a bill of sale be recorded in the clerk's office at one place, upon a representation by the bankrupt that he resided there, it will bind the assignee, although the bankrupt actually resided in another place. (Allen v. Whittemore, Ass., 14 N. B. R. 189; 8 Ben. 485; Fed. Cas. 241.) A lease executed by the bankrupt prior to the bankruptcy and not recorded, and free from fraud as to the creditors of the bankrupt, is valid as against the assignee though he had no notice of it. (Goss v. Coffin, 17 N. B. R. 332.) A tenant who occupies land under an agreement to pay rent, with provision for ouster and distraint upon default, has no such interest in the land as will pass to his assignee. (In re O'Dowd, 8 N. B. R. 451; Fed. Cas. 10139.)

Assignee's interest in exempt property. See EXEMPTIONS, Sec. 6. Lien of assignee.-The assignee takes the property of the bankrupt with the like right, title, power and authority to sell it as the bankrupt could have done. He acquires no other or better title to the property than the bankrupt had, and if there were a lien on the property in the hands of the bankrupt the same lien follows the property into the hands of the assignee (In re Winn, 1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17876), if it were perfected before the commencement of the proceedings in bankruptcy. (In re Smith et al., 1 N. B. R. 169; 2 Ben. 432; 1 Amer. Law T. Rep. Bankr. 112; Fed. Cas. 12973.) He acquires his title to movable property found upon the premises, subject to the rights of all other persons; and where rent is a lien upon the personal property of the bankrupt it must be paid first out of the proceeds of the sale. (Longstreth v. Pennock et al., 12 N. B. R. 95, U. S. S. C.) The landlord will be entitled to prove his claim in bankruptcy for the unexpired term of a lease beyond one year, even though he has been

preferred, under a state law, for his rent up to the end of the year. (In re Wynne, 4 N. B. R. 5; 2 Amer. Law T. Rep. Bankr. 116; Fed. Cas. 18117.) Where a corporation gives a deed of trust in which it agrees to keep the premises insured and to make the policies payable to the trustee, and to deliver them when effected, and the insurance, though effected, is not so made payable nor are the policies delivered, and the buildings burn and the corporation becomes bankrupt, whereupon the assignee collects the insurance, the trustee, through the covenant in the deed, has an equitable lien upon the proceeds. (In re Sands Ale Brewing Co., 6 N. B. R. 101; 3 Biss. 175; 4 Chi. Leg. News, 137; 6 Amer. Law Rev. 574; Fed. Cas. 12307.)

Preferences. Where an assignment is made for the benefit of creditors, the title to property so assigned rests in the common-law assignee until such assignment is set aside, and does not vest in the assignee in bankruptcy by the mere force of the adjudication and his appointment as assignee. (Belden, Ass., v. Smith et al., 16 N. B. R. 302; Fed. Cas. 1242.) A conveyance of real estate made to defraud creditors is not void, but voidable, and the property so conveyed does not absolutely vest in the assignee. (Phelps et al. v. Curts, 16 N. B. R. 85.) An assignment made bona fide twelve months prior to the filing of the petition in bankruptcy is good against the assignee. (In re Arledge, 1 N. B. R. 195; Fed. Cas. 533.)

Where a lease is made of a hotel for a term of years and it is transferred to a creditor to secure a debt, and the lessor becomes bankrupt, the assignee takes the estate subject to such lease. (Meador et al. v. Everett, Ass., 10 N. B. R. 421; 1 Cent. Law J. 453; Fed. Cas. 9376.)

Title to realty.-If a deed without any certificate of acknowledgment be good against a bankrupt, it is good against his assignee. (In re Kansas City Stone and Marble Mfg. Co., 9 N. B. R. 76; Fed. Cas. 7610.) Where a limitation has ceased and division is made of an estate, the bankrupt taking his share in fee, such land is liable to the bankrupt's debts, although contrary to the stipulation in the instrument by which he takes it. (In re Myrick, 3 N. B. R. 38; Fed. Cas. 10000.)

b. All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers; they shall be appointed by, and report to, the court. Real and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value.

While real and personal property may be sold subject to the approval of the court, after appraisal, at least ten days' notice by mail must be