Stewart vs. Fagan.

property which he seeks to subject to the payment of his debt. He has simply a debt which he can sue on at law. Until he has exhausted his remedy at law by the recovery of a judgment, equity has no jurisdiction. Non constat but that on an execution he might make his money. Jones v. Green, 1 Wall., 330; Beck v. Burdett, 1 Paige, 305; McElvain v. Willis, 9 Wend., 548; Crippen v. Hudson, 3 Kern., 161.

But even if this defect in the bill did not exist, I should be constrained to overrule the motion. The answer of Fagan, Connery and McCan traverses every allegation of fraud made in the bill, and with the affidavits filed, shows that the claim of the mortgage creditors upon the boat was honest and fair, and the amounts claimed by them justly due.

The averment of the bill that the admiralty sale of the Katie was void is entirely without proof to support it. It appears that before the libel of the Underwriters Wrecking Company was dismissed, other creditors of the Katie intervened and it was upon their claims she was sold. The sale was made in pursuance of a decree of the court of admiralty. There is no proof and in fact no averment that it was unfairly obtained. This sale cuts off all claims of creditors and of the original builders or proprietors of the boat. The purchasers at that sale had the right to place the title where they pleased and to do with the boat as they pleased. There seems to be not the slightest proof of any fraudulent practices on the part of the mortgage creditors of the Katie. They were vigilant and looked after their own interests. The creditors, whose evidences of debt complainant holds, slept on their claims, and two years after a sale of the Katie under an admiralty decree, this bill is filed.

The case has no basis to stand on, either upon the law or the facts.

Motion for injunction overruled.

In re Commercial Bulletin Company.

In re COMMERCIAL BULLETIN COMPANY. JAMES BUCKNER VS. W. L. JEWELL and E. E. NORTON, Assignees.

1. A landlord cannot prove, as a claim against a bankrupt's estate, a demand for rent which accrued after the bankruptcy.

2. But neither the bankrupt nor the assignee can claim to occupy leased premises after the bankruptcy without paying the rent in full.

3. If either the bankrupt or the assignee continues to occupy the leased premises after the bankruptcy, he is liable for the rent, and the landlord has the same lien upon the goods on the premises as he has upon the goods of other tenants.

4. Where a bankrupt's assignee occupied, after the bankruptcy, for storing the goods of the bankrupt's estate, premises which had been leased to the bankrupt, it was no answer to a demand for rent by the landlord, for the assignee to say that all the assets of the estate had been consumed by the general expenses of the bankruptcy.

The petitioner leased a store, 133 Gravier street, New Orleans, to the bankrupt, for five years, commencing October 1, 1871, at an annual rent of $3,200, payable in monthly installments of $266.66. The lessee became bankrupt January 9, 1872, having paid all arrears of rent up to that time.

The assignees were appointed in April, and took possession of the premises, and refused to give up possession to the landlord. They paid him rent, however, from time to time, to the amount of $650. He sued for nine months rent, which accrued during the occupation by the assignees, less the said payment of $650the amount demanded being $1,750 besides interest.

He only demanded judgment against the assignees for the proceeds of the property of the bankrupt, which was in the building, on which he claims he had a lien. For the balance he asked a general judgment, with the privilege of coming in pro rata with the other creditors.

The assignees filed an answer, and with it an account, showing that the proceeds of the estate amounted to $2,492.40, of which $1,500 was from the goods in the leased premises; but they claimed credit for the whole amount for the general expenses of the bankruptcy, including their own fees and the $650 paid to the petitioner, and claimed to have the petition dismissed.

In re Commercial Bulletin Company.

Messrs. J. H. Kennard, W. W. Howe and S. S. Prentiss, for petitioner.

Mr. Lionel A. Sheldon, contra.

BRADLEY, Circuit Justice. The position of the assignees is untenable. A landlord cannot prove against a bankrupt's estate for rent which accrues after the bankruptcy; and neither the bankrupt nor the assignee can claim to occupy the leased premises thereafter without paying the rent in full, unless it has been prepaid by the bankrupt. If they continue to occupy the premises they are liable personally for the rent; and the landlord has his lien on their goods on the premises the same as against other tenants. For rent thus accruing after the bankruptcy, the landlord has nothing to do with the expenses of the estate. They are nothing to him. They cannot be deducted from his rent. If an assignee continues to occupy leased premises of the bankrupt, he ought always to make some definite arrangement with the landlord, unless he expects and is willing to pay the accruing

rent.

This being the case, the petition for the rent is like any action for rent, and is subject to like rules and proceedings. I think I was mistaken, therefore, in refusing a jury trial in this case. If the assignees wish it they may have it; but the petitioner ought in that case to be allowed to amend his petition and claim a judg ment for the whole rent due.

If the assignees elect to let the case stand without a jury, the petitioner may have such judgment as he asks, namely, that the assignees be compelled to pay him the proceeds of the goods which were on the leased premises, less the expenses of sale, and have a judgment for the balance to come in pro rata with the other creditors.

The assignees must within ten days, file a written election which course they will pursue.

In re Bailey & Pond.

In re G. M. BAILEY & POND.

Petition of J. M. & J. Lockhart and Paul Fourchy.

1. One of the members of a bankrupt firm had been the guardian of his own children. The firm was indebted to the children in a large sum, for which the guardian held its notes, payable to himself as guardian, but not indorsed by him to his wards. Under these circumstances, held, that the children, having become sui juris, were competent to vote as creditors of the firm in favor of a composition proposed by it.

2. One of the said children, being a married woman, voted for and signed the resolution for the composition without producing the authority of her husband therefor; but the husband afterwards made and filed an affidavit that he had given her his authority, and that her vote had his approval. Held, that such affidavit was both a ratification and estoppel, and made good the wife's act.

3. Damages for a tort are not provable against a bankrupt's estate until they have been assessed.

4. Unliquidated damages for a tort placed by the bankrupts on their schedule, but denied by them to be a valid claim, were properly excluded from the debts of the bankrupt estate, when it was to be ascertained whether creditors holding one-half the debts had assented to a proposed composition.

This was a petition of review, filed under authority of the second section of the bankrupt act, to reverse an order of the district court sitting in bankruptcy. The facts appear in the opinion of the judge.

Mr John E. Austin, for the petitioners.

Messrs. John H. Kennard, W. W. Howe and S. S. Prentiss,

contra.

BRADLEY, Circuit Justice. The petiton of review in this case asks the court to set aside a decree of the district court, made May 2, 1876, confirming a composition made by the bankrupts with their creditors, under sec. 5,103 of the Rev. Stat. and the act of 1874, and directing the resolution of composition to be recorded.

The errors assigned are, that the district court allowed to stand votes amounting in the aggregate to about $45,000, by the three children of G. M. Bailey, one of the bankrupts, and struck out a claim for damages for $30,000, which had been placed on the schedule by the bankrupts, thus increasing the vote in favor

In re Bailey & Pond.

of the composition by three names and $45,000 in amount, and diminishing the amount of the entire indebtedness by one name and $30,000 in amount, which changed the result.

There is no charge that the amount voted on by the children was not due to them; but it is alleged that the claim was mostly secured by notes of the bankrupts, given therefor, payable to the order of the said G. M. Bailey, guardian, and not indorsed by him to the children. But if they are sui juris and competent to act in their own behalf, I do not see why this fact should prevent them from agreeing to the compromise. They proved their debts regularly, and were entitled to the privileges of creditors. The presumption is, that they were entitled to demand the notes from their father at any time. He holds them merely for their benefit, and if the compromise stands, the claims of the children against the bankrupt firm, whether represented by the notes or not, will be discharged the same as the claims of other creditors. They stand in all respects on an equality with the other creditors.

But it is said that one of the children is a married woman, and voted and signed the resolution without authority of her husband. If she actually had such authority, whether it was exhibited or not, her act would be binding on her and on him. Since this petition has been pending, her husband has made and filed an affidavit in this court that she had his full authority for what she did, and that her votes in favor of the composition had his full approval. He can never go behind this affidavit. It binds and estops him forever. And, as a ratification goes back to the first act and gives it validity, this affidavit, viewed merely as a ratification, validates the wife's acts. But it is more than a ratification. It is a full estoppel and proof against the husband that his wife acted by his authority at the time.

The striking out of the claim of $30,000 for damages, thereby reducing the sum total of the schedule that amount, presents a question of more difficulty. On the original schedule this claim is put down in the following words:

"Marshall & Bateman, Shreveport, La., merchants, $30,000, 1873, about. This claim is not admitted. Suit pending in one the district courts, in and for the parish of Orleans, state of Louisiana, for damages alleged to have been sustained by them