In re Krogman , 14 F. Cas. 866 ( 1848 )

LONGYEAR, District Judge.

The petitioner contends that the limitation provided by section two does not apply, because (1) this is not a suit, a “suit at law or in equity,” within the meaning of said section two; .and (2) Grout is not a “person claiming an .adverse interest touching the property and rights of property” “of said bankrupt transferable to or vested in the assignee,” within the meaning of said section.

First. As was held by this court in Re Norris [Case No. 10,304], the assignee has his option, in a ease like the present, to proceed in the bankruptcy court, in the district court or in the circuit court Now, if he had proceeded in either of the two last mentioned courts, the forms of proceeding would necessarily have been such that there • could have been no question as to its being .a “suit” within the meaning of section two. I think it can make no difference with the application of the limitation provided by ¡section two, because the assignee has chosen to proceed in the bankruptcy court, and has thereby necessarily adopted a different form of proceeding. It is a “suit at law,” nevertheless, within the spirit and meaning ■ of said section, and therefore, so far as that ■ question is concerned, the limitation applies.

Second. So far as appears by the allegations in the petition, and that is all the guide we have in the present aspect of the • case, all the claim set up by Grout is (1) that the amount claimed by the assignee is much larger than what he is liable for; .and (2) that he sets up a claim for services which the assignee disputes. Nowhere in ■the petition does it appear that Grout in any manner sets up any interest touching the property itself, or the rights of property of ■the bankrupt, adverse to the assignee. What Grout disputes is simply the amount, •and not the assignee’s interests and rights touching the property. Neither could he as voluntary assignee under a void assignment, have or claim, merely as such, any such adverse interest as against the assignee in bankruptcy; and Grout’s claim for services is clearly not a claim of interest, adverse or ■ otherwise touching the property, &c. It is simply a personal claim of indebtedness against the estate, and can in no event constitute a lien upon the property and books of account in his hands, under the circumstances of this case as developed in the petition. See, also, Sedgwick v. Casey [Case No. 12,610], recently decided in Southern district of New York, in which the above views are confirmed. The cause of action is therefore not such an one as falls within the scope of the limitation proved in section two, and for that reason the demurrer is not well grounded. The demurrer is overruled with costs, and the x-espondent Grout, is given - days to put in his answer to the petition.