:tion ,on such a ground is one addressed to the Bound discretion of the court, and when it is made, as here, before .the trial,the granting of the motion<may be with leave to issue So ,new commission for re-examination of the witnesses. Motion granted.
ElATFIELD tI. MOLLER
(Oircuit GOU1't, D. New
BANKRUPTCY -ATTACHMENT. - '
Ail attachinent levied witllh fO\6, months before the commencem'ent 'of proceedings in bankruptcy is dissolved, ipso/acto, by operat,qJ;l of, such proceedings. In re,Scraffor,d, 15 N. B..J:f.. 104..
bill in the rqf a <lre,ditor's bill, prayillg that certain conveyances of ,real estate may be declared void, will therefore: be dismissed with '(\()sts,wliet(fiiJd by a purchaser of the prop,erty undehiuch writ of lttt'acbm6tit.: ,i,."
'l · ;;
In Equity. On Bill and Plea. NlxoN,D. J.Moses, Tayl<?r&.. Co., of-New York, claiming to be creditors of William Moller & Son, of ,the same on the sixteenth of September, 1875, caused a writ offoreign attachment to be issMd out! of the cirouit·:court.of the county of Warren; state of New Jersey, ,returnable October 5, 1875, and placed it in the hands of,the sheriff of said county for execution, who, by virtue of the same, levied upon sundry lots and tracts of land situate at Hackettstown, as the property of William Moller, one of the defendants. Pending these proceedings, and within a few weeks after the return of the writ, to wit, on the twenty-eighth of October, 1875, a petition in bankruptcy was filed against William Moller, George H. Moller, and William F. Moller, as copartners, and against William Moller individually, and they were adjudged bankrupts on the twentieth of November fol. lowing. William A. Booth was duly appointed their assignee on the thirteenth of December, 1875, to whom an assignment
wag'regularly made of all the bankrupts' partnership and individual property. Notwithstanding these bankruptcy proceedings, the proceedings under the attachment were continued in the state court, by the appointment of an auditor, the entry of the judgment in favor of the attaching creditors, the sale of the real estate taken under the writ, on the twenty-eighth of December, 1876, and the execution of a deed by the auditor to the purchaser, two days afterwards. The purchaser then filed a bill in the court of chancery of New Jersey, in the nature of a creditor's bill, alleging that William Moller, one of the defendants in attachment, previous to the issue of ,the writ, had made' and executed two several deeds of conveyance to his two daughters, Elizabeth Moller and Sarah M. Moller, purporting to convey the said real estate; that these deeds were voluntary, without valuable consideration, and were, as was expressed upon their face, "in consideration of natural love and affection," and were fraudulent and void against creditors, and praying that they might be decreed illegal, null and void against the complain.. ant as purchaser. To this bill the defendants put in So plea, setting up the proceedings in bankruptcy in bar of the complainant's title. The case has been brought into this court by virtue of the removal act, and has been heard upon bill and plea. It must be determined by ascertaining the effect which the bankruptcy proceedings had upon the pending attachment. The writ was issued within four months next preceding the filing the petition; was the attachment, therefore, dissolved by the adjudication? If so, the state court had no jurisdiction thereafter to enter a judgment or make an order for the sale of the property, and the complainant's title is void. Or, was it necessary for the assignee, after his appointment, to take some affirmative steps in order to divest the lien of the attachment? None such were taken, and unless the attachment was dissolved by operation of law, after the filing the petition in bankruptcy, and the adjudication thereon, the plea is bad and must be overrnled.
The decision of these questions dependsnpon the construction of the provisions of section 5044 ·of the Revised StatuteS of the United States. That section provides that, "as soon as the assignee is appointed and qualified,the judge, · · · by an instrument nnder his hand, shall assign and convey t.o· him all the estate, real aud personal, of the bankrupt, and such assignment shall relate back to the commencement of proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any Buch attachment made within four months next preceding the commencement of the bankruptcy proceedings." Much controversy has arisen as to the true construction· of these provisions, but the weiglit of authority undoubtedly is that after an a.djudication in bankruptcy all attachments be.come invalid, and their lien is divested by operation of law, unless more than four months shall have intervened between the issuing of the writ and the filing of the petition. See Inre Ellis, 1 N. B. R. 555ilnre Preston, 6 N. B. R. 545. Zeiber v. Hill, 8 N. B. R. 240. Thus, in Miller v. O'Brien, 9 Blatchf. 271, Judge Woodruff says: "The statute, (§ 5044,). in the most explicit terms, declares the attachment dissolved, In like explicit terms it declares that the assignment to the assignee shall relate back to the commencement of the proceedings in bankruptcy, and that the title to all the bankrupt's estate shall vest in the assignee." In re Scrajford, 15 N. B. R. 104, Judge Dillon asserts that "all attachments levied within four months before the com. mencement of the . proceedings in bankruptcy are dissolved, ipso facto, by operation of such proceedings." . In Bracken v. Johnston, 15 N. B. R. 106, Justice Miller, in discussing the meaning of the section oLtha bankrupt law now under consideration, says: "The purpose of. the act was to put a creditor, who undertook to secure a lien by attach. ment, in precisely the same condition as one who took a pref. erence or lien by consent of the debtor·. In both cases the
creditor proceeded at his own hazard. If the debtor escaped the bankruptcy court for the prescribed time, the preference or lien remained valid. If he did not, it is void absolutely." And the judgment of the supreme 'court in Doe v. Childers, 21 Wall. 643, is strongly in the same direction, although it be an implication, mther than a direct utterance. The decision there was that an attachment, laid more than four months previously to the bankruptcy begun, continued a valid lien, and was not dissolved by the transfer of the bankrllpt estate to the assignee. But the court, in reaching that conclusion, say: "Under the fourteenth section (§ 5044 of Rev. St.) of the bankl'upt act, the title pendente lite is transferred by operation of law from the bankrupt to the assignee in bankruptcy. The conveyance of· the register operates as would, under ordinary circumstances, the deed of a person having the title, with two differences: First, it relates back to the commencement of the bankl'uptcy proceeding; secondly, the register's conveyance dissolves any attachment that has been made within four months previous to the commencement of the bankrupt proceedings." The title of the complainant failing, and the law requiring him to stand upon the strength of his own title, rather than the weakness of his adversaries, the bill of complaint must be dismissed, with costs.
GIANT POWDER COMPANY V. CALIFORNIA VWORIT POWDER
(Circuit Court, D. California. - - , 1880.)
1. RE-IssuE-REv. ST. § 4916.-Section 4916 of the Revised Statutes only authorizes a re-issue when, from an unintentional error in the desription of the invention, the patent is invalid or inoperative, or when the claim of the patentee exceeds his invention. 2. SAME-COMMlSSIOl"ER OF PATEN'l'S-JURlSDlCTION.-The power to accept a surrender and issue new letters is vested exclusively in the commissioner .of patents, and his decision in such cases is not open tocollateral attack in a suit for the infringement of re-issued letters.