limitations prevents. I am forced to the conclusion that the stattlte should and does prevent. Let judgment he entered sustaining the demurrer to the bill, and dismissing the bill, with costs, as to said Gaynor, assignee.
In re J. C. WARD & Co., Bankrupts.
(District Oourt, W. D. Tennessee. May 11, 1882.)
BANKRUPTCy-CREDITORS' P.Il:TITION-DoRMANT PARTNER-COMMENC.Il:MENT OIl' PROCEEimm.
Where 'an involuntary petition was tiled against two persona as partners, and subsequently an amended petition was filed against s'third person as s dormant partner, !teld that, as to the proof of individual debts against. the dormant partner, tile date of the amended petition must be taken as the commencement of the proceedings in bankruptcy against him, and not the date of the original petition by relation.
SAME-PROOF OF ··
Section 19 of the original act of 1867 (14St. at Large, 525) made the time of .the adjudication the decisive time when the debt must be then eXisting to be provable, but section 5067 of the Revised Statutes has changed it to the time of the commencement of the proceedings in bankruptcy, and therefore no debt created SUbsequently to the; date of the petition can be now,proved against,the estate of the bankrupt.
The fees of an attorney for resisting an involuntary adjudication and preparing the schedules cannot be proven as a debt against the 'bankrupt unleSs the retainer was prior to the date of the tiling of the bankruptcy petition; nor can they be l?:owallowed as costs against the estate.
, . 11
Myers If Sneed and Galvin F. Vance, for creditors. Estes ct Ellett, contra. ', HAMMOND, D. J. The register has overruled exceptions to the claiin
for the attorney's fee for professionaleervices for resisting the decree of adjudication of one of the bankrupts,and by consent the validity of his action in allowing the claim is submitted to court informally as if properly presented under rule 34 and the practice of the court. An involuntary petition was filed by creditors againstJ. C Ward and J. F. Holst, as partners, and they were adjudicated bankrupts without contest. Subsequently, it being claimed that Mrs. Margaret Holst was a partner in the firm, a supplemental petition' was filed against her. : She denied being a partner, but on the trial of the
,issue;it was decided against her, and she was adjudicated. Re Wm'd, 7 Rep. (Boston,) 136; 25 Int. Rev. Rec. 289. , For their services in that behalf her attorneys have proved their claim against her estate, and demand payment as individual creditors of their pro rata share of her assets, and it is this claim which other creditors oppose. They contend that even if the time of adjudication is to be taken as that by which the provability of a debt is to be determined, that being a member of the firm of J. C. Ward & Co. the adjudication of Mrs. Holst must 'relate back to that of tlie adjudication of the firm, or the filing of the original petition in bankruptcy, and that this is a subsequently-accruing debt which cannot be proven. In Sherman v. International Bank, 8 Biss. 371, it was held that a'n amendment of the petition related back to the commencement of the original proceeding, but the court was careful to observe that there might be circumstances where this doctrine of relation should not be applied, and it is manifest that this must be The commencement of proceedings is the most important point of time in the whole bankruptcy system, and hali an immense bearing on the rights of all the parties. Here was an unknown partner-one held to be a partner under the law of the 'case, perhaps against her own will, or at least againather own knowledge-who was not originally proceeded against, and the question is whether the date of the petition against her is to control in determining the rights of the parties interested, or, by relation, that of the original proceeding against the firm. However it may be as to firm assets and firm creditors, and rights growing out of the proceeding in its relation to the title of the assignee to properly involved, either firm property or her individual property, and as to which I do not now express any opinion, it is quite clear that for the purposes of this controversy over an individual claim against her the date of the petition against her is ,the point of time when the proceeding must, be taken to have been commenced. Without elaborating the question it is obvious that this is in accordance with all the analogies of the law in cases where the doctrine of relation applies to' commencement of suits, services of process, and the like. Under section 19 of the original act it was provided "that all debts due and payable at the time of the adjudication of bankruptcy, and all debts then existing, etc., may be proved against the estate of the bankrupt." 14 St. at Large, 525. There was a conflict in the courts as to the proper construction of this section. In
IN BE WARD.
the case of the New York Mail Stcam-ship Co. 2 ,N.B. B.:554;..... a. case precisely like this, and on the anthority of 'which, no doubt,the register allowed this claim,-it was held that the fee was pro¥able against the estate'because it existed at the 'date of the ,adjudication, 8Illd all claiin'sthen existing were provable. 'rhis construction was followed in Re H e'(1,Mcksburgh, 7 N. B. R. 37; S. C., 6 Ben. 150; and, perhaps, in other cases. Btlt in ReCrawford,3 N.,B. B. 698, and in Be Nounnan, 7 N. B. R. 15, 22, the ,of this constrUction, notwithstanding the plain language of the statute, was denied on grounds that are not without great force.' But' since these decisions the language of the statute has been changed,' no do1ibt to settle the c9nflict, and since the amElndments,of 1874 the section has been made to read thus: "All fiomthe bankrupt at the time of the commencement of the ,proceedings, in bankruptcy, and all debts then exieting, etc., may be: proved against the estate of the bankrupt." Rev. St. § 5067. And it is imperatively provided that "no debts other than those specified in the five preceding sections shall be proved or allowed against the estate." Rev. St. § 5072. This must settle· thi's controversy in favor of the objecting creditors, and the claim must ba disallowed, unless the retainer was prior to the date of the petitIon Mrs. Holst. The 'old cases allowed a reasonable compensation to both the attorney for the petitioning creditor and the resisting bankrupt out of the fund, particularly where the services were beneficial to the estate; but this practice was designedly abrogated by a rule of the supreme court, and it is not claimed by couDsel in this case. Re Ll,oyd, 7 FED. REP. 459, was the case of a claim for services to the petitioning creditor, but it applies Q,S well to the rule that allowed the resisting bankrupt for oounsel fees, as both stood on the same footing. See cases in note appended. Disallow the claim. This case being again sent to the register, the attorneys proved that they were, in fact, retained prior tqthe,filing oithe bankruptcy petition against Mrs. Holst, and thereupon the register allowed their claim, which, on exceptions, the court sustained, saying : "When this case was before heard, it occurred to me 8S highly probable that the retainer was prior to the filing of the amended petition, inasmuch as Mrs. Holst's connection with the bankrupt firm was establishod on the peculiar facts developed on the trial of that issue, andl had that state of the case in my mind upon that investigation, ;and' came to
the cOn<llusion that if the contract for services in defending it was made prior to filing the amended petition against her, it would be provable. I have not a doubt, on this proof, that such was the hct, and the action of the register in allowing the claim will be sustairred." May 24, 1882. HAMMOND, J.
NOTE. Consult Bump, Bky. (10th Ed.) 82, 572. and notes; Re Pattl!'rson, 1 N. B. R. 125; Re Williams, 2 N. B. R. 229; Re Williams, Id. 83; Re Bigelow, rd. 371; Re Waite, Id. 452; ReSchwab, Id. 488; Re Montgomerg, 3 ,N. B. R. 137; Re Brown,Id. 584; Re New Y01'k Mail Steam-ship 00. Id. 627; Re Sawyer, 5 N. B. R. 54; Re Oomstock, Id. 191; Re Jaycox,7 N. B. R.l40, 142; Re Riggs, 8 N. B. R. 90, 92; Re Andrews, 11 N. B. R. 59; Re Portsmouth Savings SocietY,Id. 303;Re Riker, 18 N. B. R. 393; Re Orne, 1 N. B. R. 57; S. C.l Ben. 361; Re Bigelow,a Ben. 146; Re Bruce, 6 Ben. 515; Re May, 7 Ben. 231; Re Hamburgher, 8 Ben.l89; Re Hatje, 6 Biss. 436; Triplett v. Hanley, 1 Dill. 217; Re Oommercial Bulletin 00. 2 Woods, 220; Bailey v. Loeb, Id. 578 ; Wylie v. Smith, Id. 673.
(Circuit Oourt, 8. D.Ne'llJ York.
COPYRIGHT AND INVENTION - TRANSFER VENTOR-RIGHTS UNDER CONTRACT.
EMPLOYMENT OF AUTHOR AND 11.-
Plaintiff engaged his services to defendant for period of ten years as an author and inventor, and stipulate'd that the property in his productions should belong exclusively to defendant, including his time and services, in consideration of $5,000, to be paid to him annually, and certain other contingent provisions as to compensation. Held, that such a contract, and the transfer to defendant made in pursuance thereof, invested with the exclusive property in the play copyrighted, and in the patented invention of the plaintiff contemplated in the terms of the engagement or contract.
2. SAME-TITLE-RIGHT TO USE OF.
In such a contract there is no condition precedent or subsequent wllich can be invoked to defeat defendant's title or reinvest plaintiff with any internst in the property, nor can he interfere with defendant's usc of the property by injunction, or against defendant's wishes to use them himself.
Scudder <t Carter, for M. H. Mallory. W. F. Scott and F. N. Bangs, for Mackaye.
WALLACE, C. J. The parties seek each to restrain the other by a preliminary injunction .from exhibiting the play copyrighted by tLe title of Hazel Kirke, and from employing the mechanical device known as the "double stage," secured by letters patent of the United States.