IN RE FnANKLIN M. KETCHUM.
bankrupt to do to make the right available to the assignee he will be required to do. . I think the case cannot be distinguished in principle from the case of Gallagher v. Lane, 19 N. B. R. 224, in which it was determined that a Washington market leafle was property that belonged to the assignee. As in that case the consent of the city was necessary to a transfer" so here the consent of a committee of the stock exchange is necessary to a transfer of this right. The seat, however, has an actual pecuniary value, which the rules of the society, as interpreted and applied in practice, permit the holder. to realize, by a sale and transfer. There is no practical difficulty in effecting a transfer of this right or interest for a pecuniary consideration, subject to the condition that the debts of the present holder to members are first paid; and the right or privilege is to all intents and purposes a business right or privilege, useful for business purposes only. I see nothing in the rules of the exchange which renders it impossible for the seat to be disposed of by the assignee in bankruptcy, with the co-oporation of the bankrupt) subject to the condition above mentioned. The equity of the creditors in the matter is as obvious as in the case of the market lease. This seat in the board was actually used as part of the business capital of these bankrupts as stock-brokers. To suffer the bankrupt still to hold it virtually withdraws several thousand dollars in value of their business assets from the creditors. In the case of Hyde v. Woods, 4 Otto, 523, I understand it. to be distinctly intimated that membership in a stock board, where the transferee of a seat call1lot become a member except by election, is property which will pass to the assignee in bankruptcy, subject to a similar condition as to debts due to other members. The provision giving members a right somewhat in the nature of life insurance, is merely an inci. dent of inembership and a mere contingency, and does not, in my jlldgment, take this business privilege or asset out of the category of business property. I think this particular feature
of the case is not enough to distinguish it from Hyde v. Woods. The case of In re Sutherland, 6 Biss. 526, can, perhaps, be distinguished from Hyde v. Woods, and from In re Gallagher, on the ground suggested in the latter case, that the right in that case was less distinctly of a mere business character. But if not, I am not satisfied, by the reasoning in that case, that property like this seat in the New York Stock Exchange was not intended to pass to the assignee in bankruptcy, under the bankrupt law. The controlling consideration is, as it seems to me, that practically, and whatever its form or incidents with respect to other matters may be, it is a part of the bankrupt's business assets, or more generally of his property, which it was the primary design of the bankrupt law to distribute among his creditors, and that the peculiarities which distinguished this from other property are, in view of the evident purpose and scope of the bankrupt law, unessential; mere technicalities. cob-webs-which the law is strong enough to break through. Let an order be entered requiring the bankrupt to execute any transfer, assignment, or other instrument necessary for the purpose of vesting the title to his seat in the New York Stock Exchange in such person as the assignee in bankruptcy may procure as transferee.
THE MATTlJR OF JAMES
District Court, S. D. New York. March 9,1880.)
BANKRuPTcy-DISCHARGE-JURISDICTION OF EXCHANGE-REV. COURT-SEAT IN SToCK
ST. §§ 5604, 5051.-A bankrupt cannot be compelled, after his discharge, by an order of the court having jurisdiction of the bankruptcy proceedings, to execute such instruments as may be necessary to enable the assignee to make available; as assets of the bankrupt's estate, a seat in the New York Stock Exchange held by the bankrupt at the time of the tiling of his petition.
Alex. Thain, for motion. Knox If Woodward, contra.
IN BE .TAMES B. NICHOLS.
CHOATE, J. This is an application to compel the bankrupt to execute necessary instruments to enable the assignee to make available, as assets of the bankrupt's estate, a seat in the New York Stock Exchange held by the bankrupt at the time of the filing of his petition. More than three years before this motion was made the bahkrupt was discharged. He has now appeared by counsel, and takes the objection that since his discharge he is not subject to the summary jurisdiction of the court, nor can be compelled by an order in the bankruptcy proceeding to execute writings or instruments to enable the assignee to demand, recover and receive the property assigned. He also claims that in this case it was determined by the court that the seat in the stock exchange was not property to which the assignee is entitled. This decision is claimed to have been made in passing on the application of the bankrupt for his discharge. An examination of the record, however, shows that the specifications of the opposing creditors were for wilfully and fraudulently omitting this item from his schedule, wilfnlly swearing falsely to the truth of the affidavit annexed to the schedule which omitted, this asset, and wilfully swearing falsely in his examination that he had no other property than that named fu the schedule. It is evident that the overruling of these specifications as not proved, and the granting of the discharge, were not a determination of the question whether or not the seat was an asset of the estate in bankruptcy. The charges were of willful and concealment, and wilfully false swearing. And it is clear that, to find these charges proved, the court must have been satisfied that the bankrupt, knowing and believing that the seat was property to which his creditors were entitled,' intentionally omitted it from his schedule, and wilfully swore falsely about it. The objection that the question is res adjudicata must, therefore, be overruled. , The objection that the bankrupt is liable to the summary order of the court, such as is now asked for, only before his discharge, is, I think, well taken. Revised Statutes, § 5604, provides: "The bankrupt shall at all times, until his dis-