SCHECK v. KELLY. (Circuit Court, W. D. Arkansas. August 2, 1899.) No. 164.
INJUNCTION-DAMAGES FOR WRONGFUL ISSUANCE-RIGHT OF ACTION.
Where an injunction has been granted without bond, and subsequently the injunction is dissolved, and the bill dismissed, no action will lie at the instance of the defendant against the plaintiff in the injunction suit for damages sustained by reason of the issuance of said injunction.
On Demurrer to Complaint. Ira D. Oglesby, for plaintiff. H. C. Mechem, for defendant. ROGERS, District Judge. The defendant, Harry E. Kelly, sued the plaintiff, A. Scheck, in the chancery court of Phillips county, Ark., and procured an injunction against him restraining him from entering upon, cutting down, or removing timber already cut upon certain lands in that county. Subsequently the injunction was dissolved, and the bill was dismissed. Scheck, who is a citizen of Germany, residing in the state of Tennessee, now sues Kelly, who is a resident of the Ft. Smith division of the Western district of Arkansas, in this court for damages sustained by reason of said injunction. The suit is not based upon any injunction bond, nor does it appear that any was given, but is a simple suit at law for damages, alleging that he sustained damages in the sum of $3,537.60. Kelly demurs to the complaint generally for insufficiency, and, secondly, that plaintiff's complaint is not based upon any bond given to obtain said injunction, and that aside from and without such a bond there is no liability for any damages because of the issuance of said injunction. The court is of opinion that this demurrer should be sustained. In the case of City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 354, it is said:
"It seems that, without some security given before the granting of an injunction order, or without some order of the court or a jUdge requiring some act on the part of the plaintiff which is equivalent to the giving of security, such as a deposit of money in court, the defendant has no remedy for damages which he may sustain from the issuing of the injunction, unless the conduct of the plaintiff has been such as to give ground for an action for malicious prosecution."
There is nothing in the complaint upon which to base a suit for malicious prosecution. See, also, Russell v. Farley, 105 U. S. 433; Lawton v. Green, 64 N. Y. 326; Hayden v. Keith (Minn.) 20 N. W. 195. The demurrer is sustained.
Where the bankrupt, previous to the adjudication, had acted as admInistratrix of her husband's estate, and had mingled property of her own With the property of such estate, it is her duty, in the bankruptcy pro·
ceedings, to present a correct and intelligible statement of her affairs, showing clearly what property r.qer husbl!J!.d, left, what she added thereto, and the disposition made of 'each Class of p'roperty, and thereupon to account for the property .that should 1nur:e to, the benefit of her creditors. Until she does this, her discharge will be withheld.
In Bankruptcy. On application of, the-bankrupt for ,discharge. Hoffman, for banl\!-'upL I, " Mr. Cohn and Friend, House & Grossman, for creditors. THOMAS, District Judge. After her husband's death, the bankrupt, as administratrix, took possession of her husba:nd's stock; of goods, and thereafter purchased other goods. In hel;'schedules she included as creditors the persons from Iwhomshe made the additiop;al p-qrchases, but did not include. allY part of the goods thus purchased,'although she mentioned certain outstaridingacC'ounts. She sold'1;he stock of goods to acrMitor of her husband in consideration discharge of such creditor's debt against her husband's estate, there were other ·creditors <:If stich estate., . urged in her behalf that these goods 'Yeresolely the goods to the husband's est:.tte. No books are:prOduced, no statement ?f the goods en).lm¢ration of' the items of stock left byh,e.r husband is made, sold hyner is ofl'ered,and no evidence of the disposition df'the goods purc'hased 'by her is forthcoming. She evidently has'a'plere general kno:wledge of the as,ift herstepson. , 'The schedules may be correct, but her oath, howev¢r'hotiestly intended, has 'ndprobative force., " 'She has cast the whoJe'matter of her estate and distingpishment Of the same from is '.contented to her husband's estate updn .the allow theotDcers of the cMt-t topursne aM ,find the truth;lf they may. Sudl' a' bU,rden does not reSt upoil'the court. or its, officers. . It is the duty of the bankrupt topresen.t an and true statement of her affairs, to show clearly what goodsh'er what she added and commingled with the same, and the disposition made of each C'lasfilofproperty, and thereupon to account fOr the property that should inure to the of her creditors. . The'c,ourt will not permit her to plead ignorance, and assert tb,atshe acted through agents, and that all detailed knowledge rests with such agents, and that the court must look to l;;luchsource for information: She,at a recent time, had property. What has she done with it? If she cannot, through herself or others, make the explanation, her,discharge shoUld be withheld. It .is not the' duty of the court to secure order from that is imposed the presentconftlsion, and it will not attempt a upon the bankrupt. Proceedings for the dischargewiH be continued to the 16th day of October next. If meantime the bankrupt shall have presented schedules showing her actual property, and all of the same, her debtors and creditand shall have enumerated fully and papers ors, and shall pave satisfactorily expl51ined by her or other evidenCe what tne different classes of property thll,t have come has made of into her pOEf$essioil compriSed, and what dispositiO:n the same, she should be discharged j should be denied. ;i
IN RE O'CONNOR.
In re O'CONNOR. (District Court, E. D. New York. August 7, 1899.)
Where a creditor brings a suit to avoid a fraudulent sale of chattels by his debtor, and procures the appointment of a receiver therein, the lien acquired thereby dates from the appointment of the receiver; but, if the action was begun more than four months before the filing of a voluntary petition in bankruptcy by the debtor, the lien will be recognized and protected in the bankruptcy proceedings according to section 67, c1. c,of the bankruptcy act, though the receiver was appointed within the four months, and did not qUalify until after the institution of the proceedings in bankruptcy. Bankruptcy Act 1898, § 67, c1. f. providing that "all levies, judgments, attachments, or other liens obtained through legal proceedings agalnst a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt," applies only to involuntary proceedings against a debtor, not to proceedings on his voluntary petition.
SAME-VOLUNTARY AND INVOLUNTARY CASES.
'Vhere proceedings supplementary to execution against a debtor are suspended by his adjudication in bankruptcy on his voluntary petition, but their continuance is afterwards permitted by the bankruptcy court, and a receiver then appointed by the state court, the creditor acquires no lien upon, or specific interest in, the property of the bankrupt; for, the entire estate being under the control of the court of bankruptcy at tbe time of the appointment of the receiver, no title vests in the latter which could relate back to a time when the supplementarypl'oceedings were begun.
In Clinton T. Boe,for Pratt & Lambert, lienors. P. Q. Eckerson, for Goodman, lienor. Chll:rles A. Kipling, for trustee in bankruptcy. James J. Conway,' Goeller, Shaffer & Eisler, Story & Stratton, and Howard Sperry, for opposing creditors.
THOMAS, District Judge. On }fay 2d O'Connor .filed a petition in bankruptcy. More than four months priorthel'eto Goodman began Ii creditor's action to avoid a fraudulent sale of chattels by O'Conno'l', Wherein, on}fay 1st, was appointed a receiver, who qualified after May 2d.D1d, the creditor thereby acquire a' lien? The inception of the cteditor'saction created no lien as against asubse· quent levy in favor of other creditors, but the appointment of the receiver operated as an equitable levy and sequestration of the chattels for the' bene1it Of the plaintiff in the action, and perfected the lien. Bankv. Shuler, 1.53 N. Y. 163,172, 47 N. E. 262. The commencement of a creditor's 'action to reach equitable assets does ereate a lien thereon, but this rule does not extend to chattels subject to be taken on execution. Brown v. Nichols, 42 N. Y. 26. In the present case the property was subject to levy on execution. Daven· port v. Kelly, Id. 193; Kitchen v. Lowery, 127 N. Y. 53, 27 N. E. 357. Therefore no lien attached until one day preceding the filing of the petition. }fay this be avoided under the bankruptcy act? This de· pends tipon the true constrnctionof section 67, cIs. c, f. Section 67