The New York herald., 1876-02-27

by them important and necessary that they
should do so for the before stated II they could
the cooperation OF their debtors only in
resisting the petition. but IN Inducing, by lawful
means creditors to join in the petition and MAKING
the written admission invited by the statute As 20 the
requisite number and amount OF creditors ana In
appearing and waving service OF notice and consentng
70 adjudication, Invited by sections 40 al OF
the act Of 1867 now sections 5025 and 026 Of the Re-
vised Statutesl such action Of the debtors cannot,
without entire abrogatiOn OF the provisions Of the
statutes be held TO DO unlawful II Is not alleged
shown that the debtors any creditors Influenced the
action OF any creditor in respect or uniting In the in
voluntary petition by any pecuniary consideration or
Obligation within the purview Of section ll0 OF the Re
vised Statutes The fact that incident Of the in
voluntary proceeding the debtors will other
wise entitled TO q discharge, be enabled to secure
without paying any percentage OF their debts OBJ
tainng the assent OF any Of their creditors valid
objection 70 an adjudication IN voluntary bankruptcy
shown 10 have been aided by the debtors the
manner in which such aid given in the present
As pointed out IN Scull II Benedict 37l
3T5 the provision Of the statute that In Of In
voluntary bankruptcy the bankrupt may receive dis
charge If otherwise entitled thereto without paying
any proportion Of his debts and without procuring the
OF any portion Of his creditors a condition Of
his dischargei while IN cases OF voluntary
bankruptcy no discharge can be granted TO
debtor whose equal thirty
per cent of the claims proved against his
estate, upon which he is liable principal debtor,
without the assent Of at least fourth OF his cred
itors in number and one third in value is based the
view that If one-fourth In number and one. third
value Of the creditors petition IN involuntary bank
ruptcy they shall be regarded under the provisions Of
the statute asserting 10 the discharge OF the bank
rupt in like manner nefourth in number and one
third in value assent voluntary bankruptcy This
view concurred in by Judge Lowell In re Wilson,
Is Nat Bankruptcy Reg. 253l As the debtor
pressy allowed BY statute TO procure bv lawful solic
tatiop from his creditors their Affirmative his
discharge in proceedings in voluntary bankruptcy no
reasonable objection can exist TO his procur-
ing from them, by lawful solicitation, their I'M
Piled assent to his discharge proceedings
in involuntary bankruptcy by procuring by lawful
solicitation signatures 70 the petition IN involuntary
bankruptcy, such creditors deemit for their interest
TO institute proceedings in involuntary bankruptcy
do not perceive that Mr. Elliott partner who
should have been joined In the proceedings As 10 the
suggestion that certain conveyances, transfers and
assignments and general asst gnment by the bank
rups all made than four months before the petit
tion in bankruptcy fled could have been
ASIDE by tho assignee in bankruptcy beng in
fraud OF the bankruptcy statute II the bank
the time limited by the thirty fifth section OF
the of 1867 tnow sections lbs and 129 Revised
satutes as modified by section 10, act 1874 after the
transaction occurred is is sufficient say that
the observation is equally true OF the failure Of credit
tors TO file an involuntary petition within the time
limited the limitation in the statute is expressly
applied 10 and the period before the ning
petition against the debtor and before the filing OF
petition by him But the fact that both the creditors
and the debtors failed TO e any petition In bankruptcy
until the one now under consideration was aled, and
that thus certain transfers which might have been
statute, cannot now be attacked can ia
manner the question OF the validity OF the
the persons most concerned in setting aside under
bankruptcy proceedings transactions which could be
aside violation OF the bankruptcy statute and
which could not otherwise be set aside and II they did
choose avail themselves Of opportunities which
tho bankruptcy statute would have offered in they
the debtors had filed petition in bankruptcy at
earlier day that fact be objection the filing
OF the present petition with the other advantages to
grow OF II that accorded by the statute to cred
tors and debtors II Is alleged that certain convey
ces transfers and assignments made by one more
all Of the debtors prior TO the filing Of the pcttlon
because of certain irregularities defects and
lawful intents void and OF no elect as having been
made with intent to delay deraud hinder the cred
tors OF the debtors and for other reasons, and 1t is
claimed that this Court ought 10 allow the creditors
who have commenced proceedings IN the State
courts TO set aside such conveyances, transfers
such proceedings Among other OI things il IS ton
tended that the power and right OF assignee in bank
rupcy Will not extend to the setting aside Of the in
question The sufficient reply to this
suggestion is that far any property the prop
erty Of the bankrupts when the petition filed
The that the title 10 il had passed Of the
oankrupts by conveyances proper and adequate In
orm TO convey it 1t rests in their assignee when ap-
pointed and he collect IL as assets, and that
any property has been conveyed by the bankrupts
fraud OF their creditors such property by section
046 of the Revised Statutes the assignee in
and he it by suit set aside
the fraudulent conveyances II it be necessary that
the assignee in bankruptcy should in such suit be
shown TO represent creditor who had before the Pc
tition in bankruptcy filed and before the ttH OF
such assignee accrued acquired specific lien upon
the property raudulenty conveyed the ground that
such assignee cannot set aside conveyance which
creditor could not set aside, and that under the
laws OF New York creditor must have
acquired specific lien upon property fraud
uleny conveyed by his debtor In
TO entitle him 10 maintain suit TO set aside the
veyance lis manifest that IT. when the petition
was filed there a creditor occupying
such position the assignee represents such creditor
and can MAINTAIN any suit which such. creditor could
maintain and that IT, when the petition in bankruptcy
filed, there such creditor creditor can,
alter the filing OF the petition In bankruptcy acquEe
any such lien properly, as the property OF the
bankrupt as against the assignee IN bankruptcy aud
the general creditors represented by HIM. The
sideration that creditor can acquire lien on tho
property Of bankrupt after the ang OF petition in
bankruptcy, and may be that there was
creditor having lien when the petition
1led, would seem TO indicate that 70 hold
that an assignee in bankruptcy cannot under
the provision Of the statute which declares that 'all
property conveyed by the bankrupt in fraud OF his
creditors shall, in virtue OF the adjudication in bank.
ruptcy and the appointment OF his assignee recover
the property thus declared to be vested in him. unless
there creditor having lien when the petition
sion OF the statute in many Whatever authority
may be found in re Collins ~ Blatcht G c. r., 64Sb
for SO holding would seem to oe departure from what
was done in Sedgwick vs. Place pd l63), and in
Beecher Clark I'd 256 and 20 be in conflict with the
of Allen Massey Il Dillon, 40 and l. Wallace,
351l In re wynne "A Nai Bkcy., Reg %. and Bank
OF Leavenworih va Hunt On Wallace. S9l) and with
the decision OF Judge Woodruff holding the Circuit
Court for this district In Leland 40 Blatchlord,
G e r. 5o3.) But however this may be, Whatever
any creditor had acquired before the petition in
bankruptcy was filed Of such a character place
him in condition at that time TO enforce by suit
the setting aside conveyance fraudulent cred
tors, Whatever lien he had at that time acquired by
bringing any such suit preserved by the bankruptcy
atute, and VIII be respected and enforced by The
Bankruptcy Court which acts muchfor socuredcred-
ors for unsecured creditors; but 1t belongs to that
Court to adjudcae as all such liens and has y, wer
TO restrain all interference by suit OF oth6rwse by
individual creditors with property which II II be prop
ery tina, was, before the Ming Of the pc iton in bank
ruptcy, transferred by the debtor IN fraud OF his
creditors declared by the statute be property that
vests in the assigned I'm re Grinncll i'd, IA; In
Clark, Blatchiord, g. c. R., S72 United States VS..
Bancroft Benedict. S92; in re Ulrch i'd. ASA And
Ia this connection Il may be observed that what Is
vested by the statute in the assignee IN bankruptcy Is
all the property conveyed by the bankrupt fraud Of
his creditors and merely such right OF action in
respect OF such property as the bankrupt had,
or as any creditor had when the peution In bank
rupcy died, and that the dling OF such petition
prevents the alter attachment OF liens such prop
erty against he assignee and the creditors OF the
estate is not only proper but necessary regard
the vestng OF the assignee with the title such prop
erty as giving him right TO recover and reduce 10
possession his property, and displacing any
quiremenL which otherwise might exist that he shall
represent creditor who at the The time the peti.
tion bankruptcy fled clothed with legal process