In re Thompson

122 F. 174 | S.D.N.Y. | 1903

HOLT, District Judge.

I think that the referee had jurisdiction to make the order (Bryan v. Bernheimer, 181 U. S. 188, 21 Sup. Ct. 557, 45 L. Ed. 814); that the petition and order to examine Murray was substantially a re-opening of the proceedings on the accounting; that, the motion at the close of Murray’s examination gave him due notice of the claims against him which were passed on by the referee, and that he had a fair opportunity to give evidence and be heard on the claim? made against him; that Murray went into possession of the bankrupt.’?; property and held it as assignee for the benefit of creditors, and not as mortgagee in possession; that Hincks & Johnston took the carriages covered by their mortgage in payment of their claim; that they could not transfer to any other creditor a lien on the rest of the property mortgaged; that therefore Murray held all the rest of the property, not covered by his first two mortgages, as assignee, and was properly charged with its value by the referee; that he was also liable as assignee for the value of all the property purchased by the bankrupt after executing the Hinckg & Johnston mortgage, except the eight horses mortgaged to 0 Donnell; that the mortgage to O’Donnell, although not filed, was valid as to the parties and Murray as assignee; and that therefore Murray was justified in delivering said eight horses to O’Donnell.

My conclusion is that the referee’s order should be modified by deducting $1,200, the value of the eight horses delivered to O’Donnell, from the sum of $6,036.85, the amount directed to be paid by the assignee to the trustee, and that the order in other respects should be affirmed.

¶ 2. See Chattel Mortgages, vol. 9, Cent. Dig. § 256.