of color as to authorize the bankruptcy court to determine it by summary proceedings over protest. In re Luken (C. C. A. 1914) 216 Fed. 890.

20. Joinder of causes of action.-In a suit against the bankrupt and his transferees to set aside alleged fraudulent conveyances of property, the trustee has the right to include all such matters and causes of action as might have been included by the creditors in a creditors' bill against the defendants. Norcross v. Nathan (D. C. 1900) 99 Fed. 414, 3 Am. Bankr. Rep. 613; Spaulding v. McGovern (C. C. 1874) 10 N. B. R. 188, Fed. Cas. No. 13,217.

A petition by the trustee against the bankrupt and one of his creditors, to procure the setting aside of a mortgage on land, a chattel mortgage, and a lease of real and personal property, all made by the bankrupt at different times to the defendant creditor, and alleged to be fraudulent as to other creditors, and to have been given and accepted with intent to prefer the creditor receiving the same, is not demurrable for multifariousness. Carter v. Hobbs (D. C. 1899) 92 Fed. 594, 1 Am. Bankr. Rep. 215; Hunt v. Doyal (1907) 128 Ga. 416, 57 S. E. 489. And so, a bill is not multifarious though brought to recover from several defendants different portions of the estate of the debtor, if the alleged illegal transfers were the result of a common purpose on the part of the defendants to dismember the estate. Van Kleeck v. Miller (D. C. 1879) 19 N. B. R. 484, Fed. Cas. No. 16,860.

II. JURISDICTION

21. Statutory provisions.-This section of the statute is intended to define and limit the jurisdiction of the courts of bankruptcy, and it operates as an exception to, or limitation upon, the more extended expressions of § 9586, ante, so that jurisdiction of civil actions at law and plenary suits in equity, to determine title to and reduce to possession assets of the bankrupt cannot be claimed under § 9586, if not within the terms of this section. Bardes v. First Nat. Bank (1900) 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175.

The provision of the amendatory acts of 1903 and 1910, giving courts of bankruptcy and state courts concurrent jurisdiction of suits by trustees to set aside fraudulent conveyances or recover preferences, is not unconstitutional as imposing on state courts jurisdiction over causes of action which arise solely under the constitution and laws of the United States. French v. R. P. Smith & Sons Co. (1900) 81 Minn. 341, 84 N. W. 44.

The final clause of this section, that "the United States circuit courts shall have concurrent jurisdiction with the courts of bankruptcy of the offenses enumerated in this act," has no applicability to civil actions, the "offenses

enumerated" meaning the crimes elsewhere described in the act. Goodier v. Barnes (C. C. 1899) 94 Fed. 798, 2 Am. Bankr. Rep. 328.

22. Jurisdiction of courts of bankruptcy. The mere fact that the plaintiff in a suit is a trustee in bankruptcy is not sufficient to give jurisdiction to a federal court. McEldowney v. Card (C. C. 1911) 193 Fed. 475, 27 Am. Bankr. Rep. 937. Such court has no jurisdiction of a formal action at law or a plenary suit in equity between a trustee in bankruptcy and an adverse claimant, unless the action might have been maintained in that court by the bankrupt himself, if bankruptcy proceedings had not intervened. Brumby v. Jones (1905) 141 Fed. 318, 72 C. C. A. 466, 15 Am. Baukr. Rep. 578; Plaut v. Gorham Mfg. Co. (D. C. 1909) 174 Fed. 852, 23 Am. Bankr. Rep. 42; Real Estate Trust Co. v. Thompson (D. C. 1902) 112 Fed. 945, 7 Am. Bankr. Rep. 520. Compare In re Hammond (D. C. 1899) 98 Fed. 845.

A proceeding by the trustee of a bankrupt corporation to have an assessment ordered on unpaid stock is not a "suit" within the meaning of the statute, but is an administrative proceeding within the jurisdiction of the court of bankruptcy, since it does not require notice to nor the presence of the stockholders, whose personal rights are not involved, but remain to be determined in subsequent suits to collect the assessment if made. In re Newfoundland Syndicate (D. C. 1912) 196 Fed. 443, 28 Am. Bankr. Rep. 119. See, also, In re Crystal Spring Bottling Co. (D. C. 1899) 96 Fed. 945, 3 Am. Bankr. Rep. 194. So the court has jurisdiction of a controversy between persons, each claiming the right to a conveyance of land as a purchaser from the trustee in bankruptcy, since, while the title remains in the trustee, its jurisdiction with respect to such lands is exclusive. In re Henderson (D. C. 1905) 142 Fed. 568, 15 Am. Bankr. Rep. 760. This decision was reversed (Henrie v. Henderson [1906] 145 Fed. 316, 76 C. C'. A. 196, 16 Am. Bankr. Rep. 617), but on the ground that the sale to one of the contending parties had been confirmed and the price paid, though no deed made, before any controversy arose. The court of bankruptcy has jurisdiction of proceedings to recover property in the possession of a receiver appointed by a state court. In re Hecox (C. C. A. 1908) 161 Fed. 823, 21 Am. Bankr. Rep. 314.

The court of bankruptcy has jurisdiction of an application for the rejection of a claim, and, in addition thereto, to require the creditor to repay to the trustee the amount of a dividend previously paid on the claim. Pirie v. Chicago Title & Trust Co. (1901) 182 U. S. 438, 21 Sup. Ct. 906, 45 L. Ed. 1171. And of a proceeding to re-examine and reduce a payment made by an intend

ing bankrupt to an attorney for services to be rendered in the bankruptcy proceedings. In re Wood (1908) 210 U. S. 246, 28 Sup. Ct. 621, 52 L. Ed. 1046.

The bankruptcy court, in summary proceedings to recover property in the hands of third persons, has jurisdiction over the latter's protest to determine only whether the adverse claim is colorable, and may not pass on the weight of the evidence and determine the merits of the claim. In re Yorkville Coal Co. (C. C. A. 1914) 211 Fed. 619.

In a summary proceeding by a trustee to require a third person to turn over money and property alleged to belong to the bankrupt estate, the court of bankruptcy has jurisdiction to determine the question whether respondent has such money or property; a denial of possession not being the assertion of an adverse claim. In re Kramer (D. C. 1914) 218 Fed. 138. Where, on the bankruptcy of a corporation, it owned certain whisky subject to the rights of a pledgee of warehouse receipts covering the same the bankruptcy court had jurisdiction to determine the rights of the bankrupt and the pledgee and the claims of stockholders in the corporation, nor was such jurisdiction affected by the sale of the whisky and substitution of the proceeds. In re Miller Pure Rye Distilling Co. of Pennsylvania (1914) 214 Fed. 189, 130 C. C. A. 537.

But the provision of the statute which allows the court of bankruptcy to take jurisdiction of controversies with the consent of the proposed defendant relates only to plenary actions, and does not enlarge such portion of the court's jurisdiction as may be exercised summarily, even with the consent of the respondent. In re Teschmacher & Mrazay (D. C. 1904) 127 Fed. 728, 11 Am. Bankr. Rep. 547. Since this portion of the statute only speaks of suits "by" the trustee, it places no restriction upon the jurisdiction of the court of bankruptcy as to suits "against" the trustee or the estate; so that, when its jurisdiction is voluntarily invoked by an adverse claimant as plaintiff, it may take cognizance of the action without regard to the citizenship of the parties or the amount in controversy. In re McCallum (D. C. 1902) 113 Fed, 393, 7 Am. Bankr. Rep. 596; In re Whitener (1900) 105 Fed. 180, 44 C. C. A. 434, 5 Am. Bankr. Rep. 198; Swann v. Sanborn (C. C. 1878) Fed. Cas. No. 13,675. The Supreme Court of the District of Columbia, sitting as a court of equity, has jurisdiction to entertain a suit for the establishment of an equitable lien against the estate of a bankrupt. Crosby v. Ridout (1906) 27 App. D. C. 481. But nothing in the bankruptcy act operates to abolish the distinction between legal and equitable remedies, so far as regards suits or controversies arising out of, but not

constituting a part of, the bankruptcy proceeding. Hence a suit in equity by a trustee is not maintainable in the district court, though otherwise within its jurisdiction, where a plain, adequate, and complete remedy might be had at law. Warmath v. O'Daniel (1908) 159 Fed. 87, 86 C. C. A. 277, 20 Am. Bankr. Rep. 101. See Grant v. National Bank of Auburn (D. C. 1912) 197 Fed. 581, 28 Am. Bankr. Rep. 712. 23. Claims on property in possession of trustee.-If any particular item or parcel of property has come into the custody of the court of bankruptcy, by actual possession vesting in one of its officers, such as a trustee or receiver, and is claimed as a part of the estate in bankruptcy, that court has full jurisdiction to hear and determine all controversies involving the assertion of a title to such property, or a right or interest in it, or a lien upon it, in a summary manner if that form of proceeding is otherwise justified, or else in a plenary action where all necessary parties are duly served and brought into court. Whitney v. Wenman (1905) 198 U. S. 539, 25 Sup. Ct. 778, 49 L. Ed. 1157, 14 Am. Bankr. Rep. 45; Clay v. Waters (1910) 178 Fed. 385, 101 C. C. A. 645, 24 Am. Bankr. Rep. 293; Bray v. United States Fidelity & Guaranty Co. (1909) 170 Fed. 689, 96 C. C. A. 9, 22 Am. Bankr. Rep. 363; Thomas v. Woods (1909) 173 Fed. 585, 97 C. C. A. 535, 23 Am. Bankr. Rep. 132; Treat v. Wooden (C. C. 1905) 138 Fed. 934, 14 Am. Bankr. Rep. 736; J. B. McFarlan Carriage Co. v. Solanas (1901) 106 Fed. 145, 45 C. C. A. 253, 5 Am. Bankr. Rep. 442; In re Kellogg (D. C. 1902) 113 Fed. 120, 7 Am. Bankr. Rep. 623; In re Rodgers (1903) 125 Fed. 169, 60 C. C. A. 567, 11 Am. Bankr. Rep. 79; In re McCallum (D. C. 1902) 113 Fed. 393, 7 Am. Bankr. Rep. 596; Davis v. Coe (1899) 19 Ohio Cir. Ct. R. 639; In re Sabin (D. C. 1878) 18 N. B. R. 151, Fed. Cas. No. 12,195.

Property having been found in the possession of the bankrupt and having passed into the possession of his trustee, the court of bankruptcy has jurisdiction to determine the claim of a third person, who sold the property to the bankrupt and asserts the right to rescind the sale for fraud. In re Mertens (D. C. 1904) 131 Fed. 507, 12 Am. Bankr. Rep. 698. And so, bailors or consignors, who permit their goods in the hands of the bankrupt to pass into the custody of the receiver or trustee, cannot occupy the position of adverse claimants in determining the jurisdiction of the court. In re Leeds Woolen Mills (D. C. 1904) 129 Fed. 922, 12 Am. Bankr. Rep. 136; In re McCallum (D. C. 1902) 113 Fed. 393, 7 Am. Bankr. Rep. 596. And a controversy between a trustee in bankruptcy and one asserting an adverse title to property which is in the custody of the

court is a "proceeding in bankruptcy" of which the court has jurisdiction, and not a "controversy at law or in equity" such as can only be tried there with the consent of the proposed defendant. In re Rochford (1903) 124 Fed. 182, 59 C. C. A. 388, 10 Am. Bankr. Rep. 608; In re Leeds Woolen Mills (D. C. 1904) 129 Fed. 922, 12 Am. Bankr. Rep. 136. See Havens & Geddes Co. v. Pierek (1903) 120 Fed. 244, 57 C. C. A. 37, 9 Am. Bankr, Rep. 569. A court of bankruptcy has jurisdiction to determine a controversy as to the ownership of property between the trustees of two different estates, both of which are being administered by such court. In re Rosenberg (D. C. 1902) 116 Fed. 402, 8 Am. Bankr. Rep. 624.

The property being in the possession of an officer of the court, the court of bankruptcy has jurisdiction of a proceeding in equity to establish the lien of a mortgage or other incumbrance on the property. Cleminshaw v. International Shirt & Collar Co. (D. C. 1908) 165 Fed. 797, 21 Am. Bankr. Rep. 616. Or to impeach the validity of an existing mortgage covering the property. In re Kellogg (1903) 121 Fed. 333, 57 C. C. A. 547, 10 Am. Bankr. Rep. 7; In re Waterloo Organ Co. (D. C. 1902) 118 Fed. 904, 9 Am. Bankr. Rep. 427. Or to set aside the mortgage as fraudulent or preferential or as having been given within four months previous to the bankruptcy. In re McMahon (1906) 147 Fed. 684, 77 C. C. A. 668, 17 Am. Bankr. Rep. 530; Carter v. Hobbs (D. C. 1899) 92 Fed. 594, 1 Am. Bankr. Rep. 215. Or to recover property unlawfully sold on foreclosure of a chattel mortgage after an adjudication in bankruptcy and before the appointment of a trustee. In re Brooks (D. C. 1898) 91 Fed. 508, 1 Am. Bankr. Rep. 531. But not of a suit to foreclose a mortgage. In re San Gabriel Sanatorium Co. (1901) 111 Fed. 892, 50 C. C. A. 56, 7 Am. Bankr. Rep. 206.

Where a bankrupt's trustee had possession of real property of the bankrupt, located in another state, the bankruptcy court in which the proceedings were pending had jurisdiction, by any proceedings which would constitute due process of law, to determine whether a mortgage, executed to secure a pre-existing debt, was a voidable preference. Galbraith v. Robson-Hilliard Grocery Co. (C. C. A. 1914) 216 Fed. 842. But the court has not jurisdiction of a proceeding to impeach a mortgage as fraudulent where the property affected is in the possession of the creditor, and not of the trustee. Bardes v. Hawarden Nat. Bank (1900) 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175.

In order thus to confer jurisdiction, there must be actual possession on the part of the receiver or trustee, not a mere claim to possession. But it may be constructive or symbolic. Thus, where the trustee in bankruptcy locks

up the bankrupt's store and keeps the key, this brings the goods in the store into the custody and jurisdiction of the court of bankruptcy. Wood v. Cummings (1908) 197 Mass. 80, 83 N. E. 318. And jurisdiction, having thus vested in virtue of possession of the res, cannot be divested or impaired by the unauthorized surrender of possession of the property by the officers of the court or by a seizure thereof by an adverse claimant. In re Schermerhorn (1906) 145 Fed. 341, 76 C. C. A. 215, 16 Am. Bankr. Rep. 507; Plaut v. Gorham Mfg. Co. (D. C. 1908) 159 Fed. 754, 20 Am. Bankr. Rep. 269.

In an action against defendant trustee in bankruptcy to restrain him from cutting timber, the petition held not to allege constructive possession of such timber, either in the bankrupt or the trustee so as to give the bankruptcy court jurisdiction to determine conflicting claims to such timber. Bennette v. Lewis (Tex. Civ. App. 1915) 176 S. W. 660.

24. Independent suits against third persons.-A district court of the United States, in its capacity as a court of bankruptcy, has no jurisdiction of an independent suit brought by a trustee in bankruptcy against a stranger (that is, one who has not been in any way made a party to the bankruptcy proceedings) to collect a debt due to the bankrupt or to recover money or property claimed as assets of his estate, unless by consent of the proposed defendant, such jurisdiction being expressly denied by the twenty-third section of the bankruptcy act. Bardes v. First Nat. Bank (1900) 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175, 4 Am. Bankr. Rep. 163; Wall v. Cox (1901) 181 U. S. 244, 21 Sup. Ct. 642, 45 L. Ed. 845, 5 Am. Bankr. Rep. 727; Jaquith v. Rowley (1903) 188 U. S. 620, 23 Sup. Ct. 369, 47 L. Ed. 620, 9 Am. Bankr. Rep. 525; In re Horgan (C. C. A. 1908) 164 Fed. 415, 21 Am. Bankr. Rep. 31; In re Bailey (D. C. 1907) 156 Fed. 691, 19 Am. Bankr. Rep. 470; Hull v. Burr (1907) 153 Fed. 945, 83 C. C. A. 61, 18 Am. Bankr, Rep. 541; Hatch v. Curtin (C. C. 1906) 146 Fed. 200, 16 Am. Bankr. Rep. 629; In re Flynn & Co. (D. C. 1903) 126 Fed. 422, 11 Am. Bankr. Rep. 318; In re Hartman (D. C. 1903) 121 Fed. 940, 10 Am. Bankr. Rep. 387; In re Rochford (1903) 124 Fed. 182, 59 C. C. A. 388, 10 Am. Bankr. Rep. 608; J. B. McFarlan Carriage Co. v. Solanas (C. C. A. 1901) 106 Fed, 145, 45 C. C. A. 253, 5 Am. Bankr. Rep. 442; In re Tollett (D. C. 1900) 105 Fed. 425, 5 Am. Bankr. Rep. 305; In re Silberhorn (D. C. 1900) 105 Fed. 899, 5 Am. Bankr. Rep. 568; Chattanooga Nat. Bank v. Rome Iron Co. (C. C. 1899) 99 Fed. 82, 3 Am. Bankr. Rep. 582; Woods v. Forsyth (C. C. 1868) Fed. Cas. No. 17,992; Tate v. Brinser (D. C. 1915) 226 Fed. 878; Chicago Title & Trust

Bankr. Rep. 328; Burnett v. Morris Mercantile Co. (D. C. 1899) 91 Fed. 365, 1 Am. Bankr. Rep. 229; Jackman v. Eau Claire Nat. Bank (1905) 125 Wis. 465, 104 N. W. 98, 115 Am. St. Rep. 955; Nye v. Hart (1901) 22 Ohio Cir. Ct. R. 427; Heath v. Shaffer (D. C. 1899) 93 Fed. 647, 2 Am. Bankr. Rep. 98. But since the act of 1903, jurisdiction of such actions is vested in the courts of bankruptcy, without regard to diverse citizenship of the parties. Shutts v. First Nat. Bank (D. C. 1899) 98 Fed. 705, 3 Am. Bankr. Rep. 492; Pepperdine v. Headley (D. C. 1900) 98 Fed. 863, 3 Am. Bankr. Rep. 455; Carter v. Hobbs (D. C. 1899) 92 Fed. 594, 1 Am. Bankr. Rep. 215; In re Hammond (D. C. 1899) 98 Fed. 845; In re Woodbury (D. C. 1900) 98 Fed. 833, 3 Am. Bankr. Rep. 457; Norcross v. Nathan (D. C. 1900) 99 Fed. 414, 3 Am. Bankr. Rep. 613; Lehman v. Crosby (D. C. 1900) 99 Fed. 542, 3 Am. Bankr. Rep. 662; In re Kerski, 1 Nat. Bankr. News, 328; Wall v. Cox (1900) 101 Fed. 403, 41 C. C. A. 408, 4 Am. Bankr. Rep. 659; Hall v. Kincell (1900) 102 Fed. 301, 42 C. C. A. 360; Louisville Trust Co. v. Marx (D. C. 1899) 98 Fed. 456, 3 Am. Bankr. Rep. 450.

(D. C. Bankr.

The effect of the amendment is to confer jurisdiction on the courts of bankruptcy of plenary proceedings at law or in equity brought by a trustee in bankruptcy to avoid preferences given contrary to the act, or to recover property transferred in violation of the act, which jurisdiction is concurrent with that of the proper state courts, but may be exercised without the consent of the proposed defendant. McElvain v. Hardesty (1909) 169 Fed. 31, 94 C. C. A. 399, 22 Am. Bankr. Rep. 320; Wallace v. Jefferson County Sav. Bank (C. C. A. 1907) 157 Fed. 838; Off v. Hakes (1905) 142 Fed. 364, 73 C. C. A. 464, 15 Am. Bankr. Rep. 696; Frost v. Latham & Co. (C. C. 1910) 181 Fed. 866, 25 Am. Bankr. Rep. 313; Lynch v. Bronson 1908) 160 Fed. 139, 20 Am. Rep. 409; Bowman v. Alpha Farms (D. C. 1907) 153 Fed. 380, 18 Am. Bankr. Rep. 700; Horskins v. Sanderson (D. C. 1904) 132 Fed. 415, 13 Am. Bankr. Rep. 101; McNulty v. Feingold (D. C. 1904) 129 Fed. 1001, 12 Am. Bankr. Rep. 338; Kraver v. Abrahams (D. C. 1913) 203 Fed. 782, 29 Am. Bankr. Rep. 365; Breit v. Moore (1915) 220 Fed. 97, 135 C. C. A. 573. This enlarged jurisdiction was not confined to rights of action arising subsequent to the amendatory statute, but was available to enforce rights of action then existing. Pond v. New York Nat. Exchange Bank (D. C. 1903) 124 Fed. 992, 10 Am. Bankr. Rep. 343. The amending act did not apply to bankruptcy cases then pending. In re Hartman (D. C. 1903) 121 Fed. 940, 10 Am. Bankr. Rep. 343.

An action by a trustee in bankruptcy to recover damages from defendants, upon allegations that they conspired with the bankrupt, knowing him to be insolvent, and pursuant to such conspiracy he purchased goods on credit, which he turned over to defendants for less than their value, is an action merely to recover damages for the conspiracy, and not to set aside a fraudulent transfer of property, and therefore is not brought within the jurisdiction of the court of bankruptcy by the amendatory statute. Lynch v. Bronson (D. C. 1910) 177 Fed. 605, 24 Am. Bankr. Rep. 513.

A suit by a trustee in bankruptcy against directors of the bankrupt corporation cannot be regarded as one to recover property fraudulently transferred by the bankrupt, and hence justiciable in a court of bankruptcy, where the import of the allegations of the bill is not that the corporation has done anything, but that certain of its officers by false pretenses have withdrawn its funds. Park v. Cameron (1915) 237 U. S. 616, 35 Sup. Ct. 719, 59 L. Ed. 1147.

United States district court held to have jurisdiction of suit to recover payments by insolvent corporation preferential under Stock Corporation Law N. Y. § 66, though not constituting preferences under section 9644, post. Grandison v. Robertson (D. C. 1915) 220 Fed. 985.

Prior to the amendment of 1910, the court of bankruptcy could not take jurisdiction of an action by the trustee, founded on the provision of section 9654, post, that "the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from any person to whom it was transferred, unless he was a bona fide holder for value prior to the adjudication," unless the consent of the proposed defendant was given. Wood v. A. Wilbert's Sons Shingle & Lumber Co. (1912) 226 U. S. 384, 33 Sup. Ct. 125, 29 Am. Bankr. Rep. 220; Harris v. First Nat. Bank (1910) 216 U. S. 382, 30 Sup. Ct. 296, 54 L. Ed. 528, 23 Am. Bankr. Rep. 632; Hull v. Burr (1907) 153 Fed. 945, 83 C. C. A. 61, 18 Am. Bankr. Rep. 541; Sheppard v. Lincoln (D. C. 1910) 184 Fed. 182, 25 Am. Bankr. Rep. 804; In re Rathman (1910) 183 Fed. 913, 106 C. C. A. 253, 25 Am. Bankr. Rep. 246; Palmer v. Roginsky (D. C. 1910) 175 Fed. 883, 23 Am. Bankr. Rep. 358; Gregory v. Atkinson (D. C. 1904) 127 Fed. 183, 11 Am. Bankr. Rep. 495; Skewis v. Barthell (D. C. 1907) 152 Fed. 534, 18 Am. Bankr. Rep. 429. Compare Hurley v. Devlin (D. C. 1906) 149 Fed. 268, 17 Am. Bankr. Rep. 793. But since the amendment of 1910, an action under section 70e may be maintained by a trustee in bankruptcy in a court