has been adjudged a bankrupt, may interpose his plea to that effect at any time before judgment. Block v. Fitche, 33 La. Ann. 1094. A sale under execution issuing from the state court during the pendency of bankruptcy proceedings against the judgment debtor is invalid and passes no title. Stemmons v. Burford, 39 Tex. 352; Stinson v. McMurray, 6 Humph. 339.

Violation of Order Staying Suits.

Where a bankrupt obtained an injunction order from the bankruptcy court staying all suits and proceedings against him on the part of certain creditors, their agents and attorneys to collect certain specified debts, and thereupon a suit by one of the creditors was discontinued, and afterwards a new suit was brought through the same attorneys in the state court for the recovery of the same debt, with allegations of fraud, it was held that this was a violation of the injunction order. In re Schwarz, 14 Fed. 787.

Intervention of Trustee in Pending Suits.

When there is a suit pending at the time of the adjudication, in which the bankrupt is the plaintiff on the record, the trustee may either have himself substituted as plaintiff, or he may consent that the bankrupt shall continue to prosecute the action in his own name. Thatcher v. Rockwell, 105 U. S. 467. The right of action is the same if the bankrupt be one of several joint plaintiffs. Thus, where husband and wife were jointly prosecuting a suit in respect to the wife's chose in action, and during its pendency the husband went into bankruptcy, his trustee should join with the wife in the further conduct of that suit. In re Boyd, 2 Hughes, 349, Fed. Cas. No. 1,745. But the trustee has his option whether to intervene or not; and if he is satisfied that nothing is to be gained for the estate by his prosecuting or defending the suit, his duty requires him to take no part in the litigation, and BL. BANK.-5

no court has power to compel him to become a party to the action. Serra v. Hoffman, 29 La. Ann. 17. If he elects to proceed, it must be in his own name and not in that of the bankrupt. Dessau v. Johnson, 66 How. Prac. 4. And if he declines to prosecute a right of action which is pending at the time of bankruptcy, the bankrupt may maintain a suit thereon in his own name and for his own benefit. Ramsey v. Fellows, 58 N. H. 607. An action which is in progress when the defendant is adjudged a bankrupt may, upon due notice to the trustee, be prosecuted to final judgment against the latter in his representative capacity, provided the bankruptcy court does not see fit to arrest the proceedings; but such judgment is not effectual for purposes of execution, but only as an ascertainment of the amount due the creditor and as a basis of dividends. Norton v. Switzer, 93 U. S. 355; Eyster v. Gaff, 91 U. S. 521. Where an action is pending in a state court of competent jurisdiction to enforce a specific lien on property of the debtor, the subsequent bankruptcy of the debtor does not divest the state court of its jurisdiction to proceed to a final decree in the cause and execute the same. The trustee in bankruptcy may intervene in such action, but the jurisdiction of the state court and the validity of its decree are not affected by his failure to do so. Kimberling v. Hartly, 1 Fed. 571. Tenants in common must join in an action to recover the earnings of their vessel, unless there is an excuse for the severance of the claim; but the bankruptcy of one owner is not an excuse; in such case the assignee of the owner who is in bankruptcy must be joined with the solvent owners, or if an assignee has not been appointed when the suit is commenced, an action may be supported in the names of the bankrupt and other owners until an assignee comes in. Stinson v. Fernald, 77 Me. 576, 1 Atl. 742.

Limitations of Actions by and against Trustees-What is a Suit within this Clause.

Where a judgment in a state court was rendered against one who was shortly thereafter adjudged a bankrupt, the suing out a writ of error to that judgment by the trustee was held to be a "suit" within the meaning of the clause of limitations. Jenkins v. International Bank, 106 U. S. 571, 2 Sup. Ct. 1; International Bank v. Jenkins, 107 Ill. 291. But the substitution of the trustee as plaintiff in a pending action is not to be regarded as a bringing of suit by him within the meaning of the statute; the suit begins when the summons or other process is issued. Chicago &c. R. R. v. Jenkins, 103 Ill. 588. And where an action is pending in which the bankrupt is plaintiff, and the trustee, after the statute of limitations has run against him, applies to be made a party thereto by amendment, such amendment will not have the effect to relate back to the commencement of the suit and make the trustee a party ab initio; for this would amount to an evasion of the statute. Cogdell v. Exum, 69 N. C. 464. The limitation does not apply to a bill in equity brought bv trustees under a will to obtain the instructions of the court, in which a trustee in bankruptcy of one of the cestuis que trust under the will is a party defendant. Minot v. Tappan, 127 Mass. 333.

To what Actions the Statute Applies.

The clause "applies to all judicial controversies between the assignee and any person whose interest is adverse to his, in behalf of the bankrupt's estate." Scovill v. Shaw, 4 Cliff. 549, Fed. Cas. No. 12,552; Walker v. Towner, 4 Dill. 165, Fed. Cas. No. 17,089; Bailey v. Glover, 21 Wall. 342. It applies to suits by trustees to collect the debts and assets of the estate, as well as to actions relating to specific property. Payson v. Coffin, 4 Dill. 386, Fed. Cas. No. 10,858; Ross v. Wilcox, 134 Mass. 21. It applies to all cases where adverse claims are made to property which the trustee found in the possession of

the bankrupt and of which he took charge in good faith as the property of the bankrupt. Esmond v. Apgar, 76 N. Y. 359. It applies to an action by the trustee of a bankrupt corpora tion to enforce against stockholders the payment of their unpaid shares. Payson v. Coffin, 5 Dill. 473, Fed. Cas. No. 10,859. It also applies to actions brought in the name of the trustee though wholly for the benefit of a third party. Pike v. Lowell, 32 Me. 245. But a suit in equity, brought against a bankrupt and his trustee, to foreclose a mortgage executed by the bankrupt, is not barred by the limitation. Gildersleeve v. Gaynor, 4 Woods, 541, 15 Fed. 101. And it has no reference to suits growing out of the dealings of the trustee with the estate after it comes into his hands; "these are matters for which he may be made personally responsible, and no reason existed for changing the general period of limitation any more than in the case of any other trustee dealing with trust property." Nelson, J., in Re Conant, 5 Blatchf. 54, Fed. Cas. No. 3,086. And further, the limitation applies only to actions by and against the trustee in respect to interests existing in some claimant other than the bankrupt himself. Phelps v. McDonald, 99 U. S. 298; Clark v. Clark, 17 How. 315.

Concealed Frauds.

When the cause of action on which the trustee sues is based on a secret transfer or fraud concealed by the parties thereto, which he could not earlier have discovered by the exercise of due diligence, the limitation is not to be considered as running against him until the discovery of such fraud. Ty ler v. Angevine, 15 Blatchf. 536, Fed. Cas. No. 14,306; Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382; Bailey v. Glover, 21 Wall. 342; Cook v. Sherman, 4 McCrary, 20, 20 Fed. 167.

Accruing of Trustee's Title.

The limitation does not begin to run against the trustee, in respect to rights in property previously assigned for the bene

fit of creditors, until he has procured a decree setting aside. the assignment, and has thus clothed himself with the title of the assignee. Tappan v. Whittemore, 15 Blatchf. 440, Fed. Cas. No. 13,750. But the fact that a trustee in bankruptcy did not discover his right to certain property of the bankrupt until after the expiration of two years from the time an action accrued to him therefor, does not remove the bar of the statute. Norton v. De La Villebeuve, 1 Woods, 163, Fed. Cas. No. 10,350. But the limitation does not apply to suits by trustees or their grantees for the recovery of real estate until after two years from the taking of adverse possession. Banks v. Ogden, 2 Wall. 57.

COMPOSITIONS, WHEN CONFIRMED.

$.12. a A bankrupt may offer terms of composition to his creditors after, but not before, he has been examined in open court or at a meeting of his creditors and filed in court the schedule of his property and list of his creditors, required to be filed by bankrupts.

b An application for the confirmation of a composition may be filed in the court of bankruptcy after, but not before, it has been accepted in writing by a majority in number of all creditors whose claims have been allowed, which number must represent a majority in amount of such claims, and the consideration to be paid by the bankrupt to his creditors, and the money necessary to pay all debts which have priority and the cost of the proceedings, have been deposited in such place as shall be designated by and subject to the order of the judge.

c A date and place, with reference to the convenience of the parties in interest, shall be fixed for