IN RE FRANCIS-VALEKTINE CO.
953
act of 1867 seems to have proceeded upon .views similar to those just expressed, and to support the conclusion the court has reached in this case, namely, that the claim for the rent which otherwise would have accrued after March 23, 1899, was not a provable debt against the bankrupt's estate, as the rent never can accrue at all, because of the bankruptcy. Bailey v. Loeb, 2 Fed. Cas. 376,11 N. B. R. 271; In re Webb, 29 Fed. Cas. 494, 6 N. B. R. 302; In re Breck, 4 Fed. Cas. 43, 12 N. B. R. 215. In reaching this conclusion the court has attached little or no importance to the forfeiture clause of the lease in case of a subletting, because the court would have reached the same conelusion had no such clause been found in the contract, nor a similar provision in the Kentucky Statutes. Indeed, it seems to the court that thjs result inevitably follows from the peculiar relations between landlord and tenant alone, and from the severance of those relations by the operations of the bankrupt act. Of course, this leaves the landlord at full liberty to make a better lease if he can, although unfortunately it may find him unable to make one so good. This, however, is the unavoidable consequence of any dissolution of the tenancy. The bankrupt act, it must be observed, dissolves practically all the contracts of the bankrupt, and the one with the landlord is no more sacred than the others. The result therefore is that the action of the referee in disallowing the landlord's proof of debt against the bankrupt's estate for rent to accrue after the date of the adjudication is approved and confirmed. In re FRANCIS-VALENTINE CO. (District Court. N. D. California. No. 2,762.
May 2, 1899.)
1.
BANKRUPTCY LEVY.
DISSOLUTION OF LIENS -
POSSESSION OF PROPERTY UNDER
'Vhere actions are begun in a state court. and writs issued and levied on proprty of an insolvent debtor, within four months before the institution of proceedings in involuntary bankruptcy against him, the trustee is entitled to recover possession of such property from the sheriff holding the same under the levy; and the court of bankruptcy has jurisdiction to order the surrender of the property on summary petition by the trustee. A sheriff, holding property of an involuntary bankrupt under writs levied within four months before the commencement of the proceedings in bankruptcy, has no right, as against the trustee, to retain possession of such propeliy until payment of his costs.
2.
SA:ME-SHEIUFF'S COSTS.
In Bankruptcy. Gordon & Young, for petitioner. Reddy, Campbell & Metson, for respondent. DE HAVEN, District Judge. This is an application made by the trustee of the estate of the Company for an order commanding and directing one Richard I. Whelan, his deputies and employes, not to interfere in any way with any of the property of said estate in bankruptcy, or with the trustee's possession thereof.
954
93
FEDERAL REPoRTER.
does not ,claIm' title. to the, property adverselytq, Company, but he insist!' that, prior to the comof. the proceeding by ;Which the Fxancis,-V C<>mpany was adjudged bankrupt, the property had been by him, as sherand county of San Frapcisco, levied upon under writs iff of the of attacb.ment and execution issued out of the superior court of the state ,Of Oalifornia, in and for the city and county of San, Francisco, in certain actions pending in that court, in whiclI the Francis-Valentine Company was a defendant; and it, is further· claimed by him has no jurisdiction, in a summaryprogeeding like this; t01nquire into hi.s right to withhold the possession of said property fr9m' the trustee. In my opinion, th.is' court has jurisdiction, as there is question here of conflicting titles to property; it being eonced,ed that the property belon.ged to the Francis-Valentine C<lmpany, that the legal.title. thereto, of course, to all lawful liens,plj.Bsed. by operatipn of Illw,to the trustee in bankruptcy. The actioI;\s, in the state epurt were. all commenced, and the writs of attachment ,and execution issued and levied, within four months prior to the filing'in this court of the petitioj1 in bankrqptcy aga;inst the Francis;Yiii,lent,ineCompany, and the liens .obtained thereby becll,:p1e, under l'lubdivisfon f of section 67 of the bankruptcy act of 1898, Dull and void. wpen that company was.adjudged bankrupt. Such being the case, the respondent, whose only claim is based upon the proceedings in the state court, is not entitled to the' possession of the property levied upon by him, as against the trustee of the bankrupt. Whether the respondent is entitled to have the costs incurred by him in the attachment proceedings paid out of the proceeds arising from any sale of the property made by the trustee ,is 'a question not necessary to be passed upon at this time. If it should be conceded that he has such right, it still cannot be admitted that he has the right to withhold the possess1on of the property from the trustee for the purpoSe of euforcing such demand. Application granted.
In ,re COLES. (Circuit N. D. California. No. 12,565. CUSTOMS VUTIES-CLASSIFICATION-ANTFrRACITE' COAL.
April 24, 1899.) ..... .
Under the tariff act of 1897, anthracite coal containing less than 92 per cent. of pure carbon is dutiable, being clearly embraced within the language of paragraph 415, which imposes l' duty on "coal. bituminous, and all coals containing less than ninety-two per centum :of fixed carbon," and thus brought exception contll.ined in paragraph 523, placing on the free list "coal, anthracite, not specially provided for 'in this act."
This is Q1i application by CharlesP. OMs for the review of a decision of the board of gel'1eral appraisers relative to the classification for duty of a cargo 'Of anthracite coal. . Sidney V. Smith, fdjo:petitioner. Samuel Knight, Asst. U. S. Atty.
