12,11 than upon the clause authorizing the order of seizure. 12

This warrant can also be used to compel the agent of the bankrupt, who has bankrupt money in his possession and asserts no adverse claim, to deliver the money to a proper custodian. In such case a mere refusal to surrender the money does not constitute an adverse claim, and the party holding it can be proceeded against by a rule to show cause.13

This principle, however, does not interfere with the general principle of comity of courts. If a state court has possession of bankrupt's property to enforce a lien created not against the provisions of the bankrupt act, and is proceeding to enforce that lien, the bankrupt court will not dispossess it merely because the final judgment enforcing the lien may come within the four months named in section 67 of the bankrupt act.1

THE APPOINTMENT OF A RECEIVER

49. Further provision is made for the protection of the bankrupt estate in the allowance of a receiver for this purpose when necessity therefor is shown. But this step is by no means a matter of course, and the exercise of the power should be carefully guarded.

11 172 U. S. 657, 18 Sup. Ct. vi, 43 L. Ed. 1190.

12 White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183. See "Bankruptcy," Dec. Dig. (Key-No.) § 211.

13 Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405. As to the issue of summary process, see In re Brodbine, 93 Fed. 643; Mound Mines Co. v. Hawthorne, 173 Fed. 882, 97 C. C. A. 394. See "Bankruptcy," Dec. Dig. (Key-No.) §§ 116, 211.

14 METCALF BROS. v. BARKER, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122; Pickens v. Roy, 187 U. S. 177, 23 Sup. Ct. 78, 47 L. Ed. 128. See "Bankruptcy,” Dec. Dig. (Key-No.) §§ 156, 211.

Section 2, subd. 3, of the act, allows the courts to appoint receivers, or the marshals, upon the application of the parties in interest, in case the courts shall find it absolutely necessary for the preservation of estates, to take charge of the property of bankrupts after the filing of a petition, and until it is dismissed or the trustee is qualified. The cautious language of this clause shows that such a receiver is by no means a matter of course, and that the exercise of this power should be carefully guarded.15 The receiver is intended mainly as a curator or temporary custodian of the property.

The act of 1867, though it did not contain any express provision allowing the appointment of a receiver, was construed as authorizing their appointment in cases where they were necessary, though the courts held them to be mere receivers to hold with limited powers.1 16 Nor would they be appointed unless it appeared that the probabilities of the case were in favor of the complainant.17

Under the present act, the decisions have given them more extended powers than that of mere custodians. They may be appointed not only for the purpose of holding the property of the bankrupt, but of stopping the dissipation of the property by a grantee alleged to hold it illegally, and for that purpose may not only hold the property that they get possession of without suit, but may proceed in the courts to protect property alleged to belong to the bankrupt. This was expressly decided as to the powers of a receiver in Re Fixen,18 and would seem to follow necessari

15 T. S. Faulk & Co. v. Steiner, Lobman & Frank, 165 Fed. 861, 91 C. C. A. 547; In re Standard Cordage Co. (D. C.) 184 Fed. 156. See "Bankruptcy," Dec. Dig. (Key-No.) § 114.

16 Lansing v. Manton, Fed. Cas. No. 8,077. See "Bankruptcy," Dec. Dig. (Key-No.) § 114; Cent. Dig. §§ 164-166.

17 Wilkinson v. Dobbie, Fed. Cas. No. 17,670. See "Bankruptcy," Dec. Dig. (Key-No.) § 114; Cent. Dig. §§ 164-166.

18 (D. C.) 96 Fed. 748. This decision is questioned in Guaranty Title & Trust Co. v. Pearlman (D. C.) 144 Fed. 550, but the better

ly from the language of the court in Bryan v. Bernheimer.19 The latter case was a proceeding by the marshal, but the principle is the same.

The decisions conflict on the question whether a receiver can sue outside the district of his appointment. Some hold that he cannot, but may apply for temporary relief in another district till the appointment of a trustee.20

But the better view is that a bankrupt proceeding is not bounded by district or state lines, and that its receiver is a statutory receiver and may sue anywhere.21

He may take property, though in charge of a state insolvent court.2 22

And if the property is of such a nature as to render it necessary, he may sell it.2

23

THE DEFENSE

50. The defense is set up by the bankrupt or by a creditor by means of a demurrer, plea, or answer; the questions generally raised being that of the jurisdiction, or whether there can be an adjudication in bankruptcy; the creditors being allowed to make only such defenses as could be set up by the bankrupt.

opinion is in accord with it. See In re Dempster, 172 Fed. 353, 97 C. C. A. 51. See “Bankruptcy," Dec. Dig. (Key-No.) §§ 114, 115; Cent. Dig. $$ 164-166.

19 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814. See "Bankruptcy," Dec. Dig. (Key-No.) §§ 114, 115; Cent. Dig. §§ 164–166.

20 In re Schrom (D. C.) 97 Fed. 760; In re Dunseath & Son Co. (D. C.) 168 Fed. 973. See "Bankruptcy," Dec. Dig. (Key-No.) § 115; Cent. Dig. § 165.

21 In re Dempster, 172 Fed. 353, 97 C. C. A. 51. See "Bankruptcy," Dec. Dig. (Key-No.) § 115; Cent. Dig. § 165.

22 In re John A. Etheridge Furniture Co. (D. C.) 92 Fed. 329. See "Bankruptcy," Dec. Dig. (Key-No.) § 115; Cent. Dig. § 165.

23 In re Becker (D. C.) 98 Fed. 407; In re Desrochers (D. C.) 183 Fed. 991. See "Bankruptcy," Dec. Dig. (Key-No.) § 115; Cent. Dig.

Section 18b of the bankrupt act provides that the bankrupt or any creditor may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow. The amendment of February 5, 1903, has reduced this ten days to five days. It is apparent, therefore, that the defense may be made either by the bankrupt himself or by a creditor; and for this reason, as stated above, a subpoena must issue so as to fix the time within which the creditor can appear.24

The fact, however, that a creditor may also defend, does not give him the right to raise any issue that the bankrupt could not raise. On the original petition the validity of transfers, as far as the creditor is concerned, is not involved. When he defends he simply stands in the shoes of the bankrupt, and sets up such defense as the bankrupt alone could set up.25 Assuming that the jurisdictional facts are all made out, practically the only issue that the bankrupt or a creditor can raise on the petition itself is whether an act of bankruptcy has been committed. This is clear from the language of many clauses in the act. For instance, section 18d speaks of the bankrupt or any of his creditors appearing within the time limited and controverting "the facts alleged in the petition." Section 59b provides that the prayer of the petition is "to have him adjudged a bankrupt," and section 59f adds a provision that creditors other than the original petitioners may "be heard in opposition to the prayer of the petition"; thus showing that, when creditors appear, they can only resist the adjudication in bankruptcy, and cannot raise questions as to the validity of conveyances to them, or other questions. personal to them. There are other means provided for raising these questions.

24 In re L. Humbert Co. (D. C.) 100 Fed. 439. See "Bankruptcy," Dec. Dig. (Key-No.) §§ 86, 87; Cent. Dig. §§ 130–155.

25 Sinsheimer v. Simonson, 107 Fed. 898, 47 C. C. A. 51; Louisville Trust Co. v. Comingor, 184 U. S. 18, 22 Sup. Ct. 293, 46 L. Ed. 413. See "Bankruptcy," Dec. Dig. (Key-No.) § 89.

As to the form of the defense, the provision that the bankrupt or any creditor may appear and plead is not to be construed literally, as meaning that the form of the defense must be a plea. Section 19a provides that a person against whom an involuntary petition has been filed shall be entitled to a jury trial on filing a written application therefor "at or before the time within which an answer may be filed." Section 59f provides that creditors other than original petitioners may at any time enter their appearance and join in the petition, "or file an answer and be heard in opposition to the prayer of the petition." It is clear, therefore, that the word "plead" is merely equivalent to "making defense," and that the form of defense may be according to the ordinary rules of pleading; that is, by plea, demurrer, or answer.

Form 6 of those prescribed by the Supreme Court 26 can be followed in most cases, and is sufficient, but this does not prevent a more elaborate defense and a setting up of other matters.27 In fact, this form could not possibly answer for many defenses that might be made, as, for instance, the question whether the requisite number of creditors have joined, and whether their debts aggregate the right amount.

THE RIGHT TO A JURY

51. The bankrupt is given the right to a jury upon the question of his insolvency and the question whether he has committed an act of bankruptcy, provided he files a written application therefor at or before the time within which an answer may be filed.

26 172 U. S. 684, 18 Sup. Ct. xxi, 43 L. Ed. 1209.

27 Mather v. Coe (D. C.) 92 Fed. 333; In re Paige (D. C.) 99 Fed. 538. See "Bankruptcy," Dec. Dig. (Key-No.) § 89; Cent. Dig. §§ 120