179 F. 720 | M.D. Penn. | 1910
(specially assigned). It must be confessed that the very capable and ingenious argument of the receiver’s counsel has much to recommend it, and I am not prepared to say that it might not properly carry conviction in a different proceeding. But the difficulty now is that I am asked to make a summary order directing the respondent upon pain of imprisonment to surrender certain goods of which he is said to be holding fraudulent custody, the property still belonging to the bankrupt. It is clear that such an order should not be made, unless the goods can be followed and sufficiently identified to enable the marshal to take them into his possession. The evidence in the present case does not go far enough to meet these requirements, and for this reason the petition must fail. In a plenary suit, where a receiver or a trustee may recover a verdict for the value of goods, even if the goods themselves cannot be precisely identified, a recovery may rest upon proof of a somewhat less definite quality; but in a proceeding like this it is necessary to follow specific articles with reasonable certainty. 1 Remington, Bank. § 1831 et seq. As I have already said, the evidence does not come up to the proper standard. Some articles that had been the bankrupt’s within the four months were undoubtedly traced into the respondent’s possession, but these he holds under a claim and color of title, asserting that he paid for them and offering evidence in support of his assertion. These, therefore, he is entitled to retain until he is dispossessed by a plenary suit. To other articles, which were in the respondent’s possession, but were not identified as having belonged to the bankrupt, it was attempted to apply the doctrine of confusion of goods; and Jewett v. Dringer, 30 N. J. Eq. 291, was cited in support of the position. It was definitely established there that Dringer had fraudulently procured certain goods of the complainant and had intermixed them with his own. The goods thus procured were of different kinds and values, and could not be so distinguished as to enable the property of the respondent to be separated from the property of the complainant. If similar facts appeared here, there would be room to contend that Leventhal must surrender at least so much of the mass as would replace the goods that had been followed into the heap. But
The rule is discharged, and the restraining order revoked, but without prejudice to the right of the receiver or the trustee to institute hereafter a plenary suit for relief, if he shall be so advised; “ the petitioner’s costs in this proceeding to be paid out of the bankrupt estate.
