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Statute of Limitations has barred an action by the assignees does not revive the right of action for creditors.1

The mistake has sometimes been made of supposing that the validity or invalidity of such suits was dependent upon the discharge of the debtor. It is not the bankruptcy or discharge, but the exclusive title of the assignees, which supersedes the remedies of creditors; and an important case was lost in the Supreme Court by the omission of the defendants to allege that an assignee had been appointed.2

All rights,

§318. All Kinds of Property vest in the Assignee. licenses, and franchises which are in the nature of property, and which the law permits to be assigned, under whatever limitations, conditions, or restrictions, go to the assignees, subject to those restrictions; as franchises of a ferry or railroad, a license to keep a stall in a market, a seat in a stock board, and other similar franchises, subject to any valid by-laws giving the corporation or its members a lien for the debts of the owner contracted with them.5

If the consent of a corporation or of the Legislature is essential to the validity of a transfer, the courts will presume that the right will be reasonably exercised, and the assignees may transfer the interest of the bankrupt toties quoties until the consent is obtained, and a corporation will be required to transfer the bankrupt's shares to his assignees, though the by-laws require a certain form of transfer which cannot be obtained from the bankrupt.

4 Re Gallaher, 19 N. B. R. 224, Fed. Cas. No. 5197; Re Ketchum, 1 Fed. Rep. 840; Platt v. Jones, 96 N. Y. 24; Re Warder, 10 Fed. Rep. 275; Re

56; Dorrance v. Henderson, 92 N. Y. 406; Spring v. Short, 90 N. Y. 538; Crouse v. Frothingham, 97 N. Y. 105; Loos v. Wilkinson, 110 N. Y. 195. 1 Trimble v. Woodhead, 102 U. S. Warder, 15 Fed. Rep. 789 [overruling Re Sutherland, 6 Biss. 526, Fed. Cas. No. 13,637]; Powell v. Waldron, 89 N. Y. 328.

647.

2 Moyer v. Dewey, 103 U. S. 301. The opinion of the Court of Appeals of New York was not followed in the Supreme Court, though the decision was sustained on the pleadings: see s. c. 9 Hun, 473; 72 N. Y. 70.

Hyde v. Woods, 94 U. S. 523. 6 See note 2, and Wilson v. Atlantic & St. L. R. R. Co., 2 Fed. Rep. 459; Re Staib, 3 Fed. Rep. 209; Ex parte

3 New Orleans R. R. Co. v. Dela- Butler, 1 Atk. 210; Platt v. Jones, 96 mere, 114 U. S. 501.

N. Y. 24.

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Patent-rights and copyrights and similar incorporeal statutory titles pass by the decree. But the trustees have no interest in an unpatented invention, or in an author's unused manuscript, because it is within the personal discretion of the inventor or author whether it shall be given to the world.2 § 319. Good-will of a Business. The good-will of a business has been said to be the value of the probability that the old customers will resort to the old place. The good-will of a business has been assumed and understood to pass to the assignees. In several of the statutes in England since 1861 it is expressly mentioned as vesting in them. Trustees cannot covenant for the bankrupt, and though they may dispose of the good-will neither they nor their grantee can prevent the bankrupt from carrying on the old business in his own name and soliciting the old customers; 5 though they may enjoin him from representing that he owns the local good-will.®

If one member of a firm is bankrupt the solvent partners have the right to continue the business, but they cannot use the bankrupt's name without his consent.

§ 320. Trade Marks. Similar principles apply to trade marks. If a trade mark has become a symbol denoting merely quality, it is assignable, and is assigned by the decree; and so of the right to publish a newspaper by a particular title, though if the trade mark is significant of the business of a certain person or firm it cannot be transferred excepting with the business. But a trade mark which is personal and represents that

1 Mawman v. Tegg, 2 Russ. 385; Drone, Copyright, pp. 315, 322; Barton v. White, 144 Mass. 281; Act of 1898, § 70 a, infra, § 533.

2 Slater on Copyright, 163.

3 Cruttwell v. Lye, 17 Ves. 336, 1 Rose, 123.

4 Chissum v. Dewes, 5 Russ. 29; Ex parte Thomas, 2 M. D. & De G. 294, per Cross, J.; Ex parte Punnett, 16 Ch. D. 226; Cruttwell v. Lye, 17 Ves. 336; Walker v. Mottram, 19 Ch. D. 355, 363, per Baggallay, L. J.

5 Johnson v. Helleley, 2 De G. J. & S. 446; Cruttwell v. Lye, 17 Ves. 336, 1

Rose, 123; Cook v. Collingridge, Jac. 607; Hembold v. Hembold, 53 How. Pr. 453; Ginesi v. Cooper, 14 Ch. D. 596, per Jessel, M. R.; Walker v. Mottram, 19 Ch. D. 355.

6 See Hudson v. Osborne, 21 L. T. N. s. 386: Leggott v. Barrett, 15 Ch. D. 306; Walker v. Mottram, 19 Ch. D. 355; Wotherspoon v. Currie, L. R. 5 H. L. 508; Thorley's Cattle Food Co. v. Massam, 14 Ch. D. 763; Churton v. Douglas, Johns. 174.

7 Filkins v. Blackman, 13 Blatch. 440, Fed. Cas. No. 4786; Pepper v. Labrot, 8 Fed. Rep. 29; Warren v. Warren

a particular individual devotes his skill to the business or manufacture cannot be assigned. If the symbolic trade mark is assigned, the bankrupt cannot afterwards use it without the consent of the assignees, though his own name is a part of it. Assignments by act of the party without covenants are analogous and some of the decisions cited below refer to such assignments.2

§ 321. Claims on a Government. -The notion that claims upon a sovereign government incapable of enforcement in a court are not property, and therefore not assignable,3 is exploded. The law is that such claims if they are assignable in their nature, such as claims for damage to property, will vest in the assignees, and the subsequent acknowledgment by the government will be, not a gratuity, but the recognition of a right. Even if the claim be in its nature illegal, as where money was advanced in breach of the neutrality laws, the assignment will be valid.5

A statute declares that no claim against the United States shall be assigned until after its allowance and after a warraut

Thread Co., 134 Mass. 247; Hudson v. Osborne, 21 L. T. N. s. 386; Longman v. Tripp, 2 B. & P. N. R. 67; Ex parte Foss, 2 De G. & J. 230; Hall v. Barrows, 4 De G. J. & S. 150; Bury v. Bedford, 4 De G. J. & S. 352; Leather Cloth Co. v. Am. Cloth Co., 4 De G. J. & S. 137, 11 H. of L. 523; Hoxie v. Chaney, 143 Mass. 592; Chadwick v. Covell, 151 Mass. 190; Skinner v. Oakes, 10 Mo. App. 45; Hazelton Boiler Co. v. Tripod Boiler Co., 142 Ill. 494; Richmond Nervine Co. v. Richmond, 159 U. S. 293; Stachelberg v. Ponce, 23 Fed. Rep. 430.

1 Pearce v. Farr, 3 Mad. 74; Austen v. Boys, 2 De G. & J. 626; Carmichel v. Latimer, 11 R. I. 395.

2 See note 7, page 233.

3 Campbell v. Mullett, 2 Swanst. 551; Vasse v. Comegys, 4 Wash. C. C. 570, Fed. Cas. No. 16,893.

4 Comegys v. Vasse, 1 Pet. 193; Duncan v. Duboys, 3 Johns. Cas. 125; Hun

ter v. United States 5 Pet. 173; Plater

v. Scott, 6 Gill & J. 116; Milner v. Metz, 6 Pet. 221; McBlair v. Gibbes, 17 How. 232; Clark v. Clark, 17 How. 315; Couch v. Delaplaine, 2 Comst. 397; McKee v. Judd, 12 N. Y. 622; Byxbie v. Wood, 24 N. Y. 607; North v. Turner, 9 S. & R. 244, per Gibson, C. J.; Farnam v. Brooks, 9 Pick. 212, 241, per Parker, C. J.; Erwin v. United States, 13 Ct. Claims 49, 97 U. S. 392; Phelps v. McDonald, 99 U. S. 298; Leonard v. Nye, 125 Mass. 455; Williamson v. Colcord, 13 N. B. R. 319, Fed. Cas. No. 17,752; Burke v. United States, 13 Ct. Cl. 231; Bachman v. Lawson, 109 U. S. 659; Crawford v. Cinnamond, 15 W. R. 996; Re Young, 12 W. R. 537 ; Chandler v. Gardiner, cited 17 Ves. 343; Goodwin v. Robarts, 1 App. Cas. 476; Randal v. Cockran, 1 Ves. Sen. 98; Blaauwpot v. Da Costa, 1 Eden, 130.

5 See Mayer v. White, 24 How. 317; Gill v. Oliver, 11 How. 529; McBlair v. Gibbes, 17 How. 232.

has been issued for its payment.1

This is intended for the

convenience of the United States and does not prevent the claim from vesting in the assignees.2

§ 322. Alabama Claims. -The settlement of what were called the Alabama Claims gave rise to several interesting decisions. The tribunal of arbitration between the United States and Great Britain provided for by the treaty of Washington, awarded and Great Britain paid to the United States £3,100,000 for injury done to the property of American citizens by certain specified cruisers; and Congress in 1874 established a court to decide upon the claims of these citizens. It was held that these claims passed by a general assignment, such as a decree in bankruptcy, made at any time after the injury, though before either the treaty or act of Congress were in existence.5

By the statute of 1874 it was declared that persons who had been insured should receive compensation only for the amount of any loss which they had sustained above the amount of insurance money paid them, and that no insurance company or insurer should receive anything excepting when he or they had paid for losses by the cruisers more than had been received for premiums on such risks.

It was held that where an owner who had been paid by the underwriters the full amount of a valued policy had received a further sum from the Alabama fund, the underwriters were not subrogated to his right and could not require him to pay the amount to them.6

In 1882, Congress authorized the Court of Alabama Claims to award payments for losses and expenses, such as war premiums which had been expressly rejected by the arbitrators at Geneva.7

The question whether sums awarded by virtue of this statute would pass by a previous assignment was much

1 Rev. Sts. U. S. § 3477.

2 Hobbs v. McLean, 117 U. S. 567. 3 See 17 Stats. 863.

4 Stat. 23d June, 1874, 18 Stats. 245. 5 Williamson v. Colcord, 13 N. B. R. 319, Fed. Cas. No. 17,752; Leonard v.

Nye, 125 Mass. 455; Bachman v. Lawson, 109 U. S. 659.

6 Burnand v. Rodocanachi, 7 App. Cas. 333; s. c. 5 C. P. D. 424; 6 Q. B. D. 633.

7 Act of June 5, 1882, 22 Stats. 98.

debated. Several courts answered this question in the negative, on the ground that claims which had been rejected at Geneva had no standing whatever, and that their recognition by Congress was purely gratuitous.1 Able and learned judges, on the other hand, were of opinion that the claims being for property destroyed, were in the nature of property and capable of assignment, and this was the decision of the final court of appeal. That they would pass by the residuary clause of an earlier will was twice decided in Maine.3 In Massachusetts it was said that executors are universal successors and that whatever comes to them as executors must be treated as having belonged to their testators. The reasoning of the courts in Maine did not rest upon this distinction. It was strongly intimated in Heard v. Sturgis 5 that an assignment of a claim after the Act of Congress had been passed would be valid. In England it was said that even a gift made by the government to an insured person to atone for a seizure might pass to the underwriter by subrogation.

§ 323. Money given on a merely Moral Claim. - If the bankrupt have a merely moral claim upon a private person or upon a government, its subsequent recognition will be considered a gift, and assignees whose title antedates the gift will take nothing. Instances are: a grant to an officer for services which, though of unusual merit or labor, were within the line of his duty, a claim against a brother for a share of the father's estate "on moral grounds," 8 an agreement by a company with a third person, to which the bankrupt was not a party, to make him certain allowances, a waiver after bankruptcy of a forfeiture incurred before,10 and all the bankrupt pending or after

1 Brooks v. Ahrens, 68 Md. 212; Taft v. Marsily, 47 Hun, 175; Heard v. Sturgis, 146 Mass. 545; reversed, Williams v. Heard, 140 U. S. 529.

2 Williams v. Heard, 140 U. S. 529. 3 Grant v. Bodwell, 78 Maine, 460; Pierce v. Stidworthy, 79 Maine, 234.

4 Per Holmes, J., in Heard v. Sturgis, 146 Mass. 545, 552.

other gifts and gratuities to his bankruptcy though the

5 Per Holmes, J., 146 Mass. 548, and in Goreley v. Butler, 147 Mass. 8, 11.

6 See remarks in Burnand v. Rodocanachi, 7 App. Cas. 333.

7 Emerson v. Hall, 13 Pet. 409. 8 Tallman v. Tallman, 5 Cush. 325. 9 Ex parte Piercy, L. R. 9 Ch. 33. 10 Kittridge v McLaughlin, 33 Maine, 327.

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