any lien would have a right which he could enforce in the bankruptcy proceedings. Subject to valid liens, if any, property in the hands of others belonging to the bankrupt passes to the trustee and he may recover it.)

§ 848. (Bankruptcy, Sec. 58.) Rights to sue.

(See Johnson v. Collier, 228 United States Reports, 538, set out under § 837, supra.)

Case 814. Matter of W. C. Nabors, bankrupt, 48 American Bankruptcy Reports, 619.

CLAYTON, DISTRICT JUDGE: "Nabors, the bankrupt here, was injured by a government motorcycle being driven by an enlisted soldier of the United States Army on March 9, 1918. He has pending in Congress a claim in the form of a bill to pay him $10,000 damages on account of his injury, and the Court is informed that this bill has received the sanction of the senate of the United States, but it has not passed the house of representatives.

"The petitioners, McAbee & Jenkins, show that they are creditors of the bankrupt, and that he is indebted to them in the sum of $348.95 by provable claim, which has heretofore been duly filed and allowed in this cause. The petitioners further show that on June 15, 1921, the bankrupt filed his voluntary petition, with a schedule of assets and liabilities; that in the conduct of said matter no dividend was paid to the creditors, and that on January 25, 1922, the bankrupt was discharged; and the petitioners show that at the time of the filing of his petition and his discharge the bankrupt failed to schedule as part of the assets of his estate his right of action or claim for damages accruing to him for injuries sustained by him in collision with the motorcycle hereinbefore mentioned. "The petitioners pray for an order setting aside the discharge and reopening the case for further appropriate proceedings in the matter, to the end that the aforesaid right of action or claim of the bankrupt may be administered as a part of his estate. The above claim for in

juries sustained in the manner above described by the bankrupt, because of the negligent act of a soldier of the United States, is not a legal liability against the government. If such a claim be paid at all, it will be paid because of the sense of justice or generosity of the Congress. It is manifest that this claim of the bankrupt against the United States government does not pass to the trustee or creditors in bankruptcy as a part of his estate.

"A claim for unliquidated damages resulting in personal injuries on account of negligence is not a provable debt. Imbriani v. Anderson, 76 N. H. 491, 84 Atl. 974; In re New York Tunnel Co. (C. C. A. 2d Cir.) 20 Am. B. R. 25, 159 Fed. 688, 86 C. C. A. 556; Brown & Adams v. United Button Co. (C. C. A. 3d Cir.), 17 Am. B. R. 565, 149, Fed. 48, 79, C. C. A. 70, 8 L. R. A. (N. S.) 961, 9 Ann. Cas. 565; Weisfield v. Beale, 231 Pa. 39, 79 Atl. 878. Kellogg v. Schuyler, 2 Denio (N. Y.) 73. In re Schuchardt, 8 Ben. 585, Fed. Cas. No. 12483; Beers v. Hanlin (D. C., Ore.), 3 Am. B. R. 745, 99 Fed. 695. The principle underlying this casé differentiates it from a claim for the conversion of personal property, for the latter is a provable debt, because it does not arise out of injury to the person. Pitcairn v. Scully (Pa. C. P.), 33 Am. B. R. 870, 252 Pa. 82, 97 Atl. 120; Cole v. Roach, 37 Tex. 413; Fingold v. Schacter (Mass. Sup. Ct.) 36 Am. B. R. 596, 223 Mass. 274, 111 N. E. 903.

"The principle controlling in this case is stated in German Bank, etc., v. U. S. (U. S. Sup. Ct.), 148 U. S. 573, 13 Sup. Ct. 702, 37 L. Ed. 564, to be that:

"It is a well-settled rule of law that the government is not liable for the nonfeasances or misfeasances or negligence of its officers, and that the only remedy to the injured party in such cases is by appeal to Congress.'

"And that:

"If this be treated as a case of tort, then it is clear that the government is not liable, not only on the ground above stated, but because, under the act of Congress conferring jurisdiction upon the Court of Claims (24 Stat.

505, c. 359), there is an express exception of cases sounding in tort.'

"It is established beyond dispute that the alleged claim is based entirely on the tort committed by one of the government soldiers and the matter here must be governed by the rule declared in the above adjudicated case. It follows that the cause of action for the personal injury does not pass to the trustee in bankruptcy or the creditors, and that the bankrupt's claim for personal injuries cannot be administered as a part of the bankrupt estate. North Chicago Street Ry. Co. v. Ackley 171 Ill. 100, 49 N. F. 222, 44 L. R. A. 177; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908; Brandies v. Cochran, 112 U. S. 344, 5 Sup. Ct. 194, 28 L. Ed. 760.

"The title to property which is vested in the trustee of the bankrupt estate is governed by section 70 of the Bankruptcy Act (Comp. St. 9654). The position of the petitioners, that the title to the claim against the government for damages became vested in the trustee under subdivision 3 or under subdivision 5 of said section, is not tenable. The first-named subdivision deals with technical powers under the common law, and does not apply to the right of action for personal injury. The other subdivision passes to the trustee :

"Property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him.'

"The claim here, for damages growing out of a tort alleged to have been committed against the person of the bankrupt, manifestly could not have been levied upon and sold under judicial process. Moreover, the alleged claim being only of a personal nature, the bankrupt could not be compelled to prosecute it. Rights of action arising upon contract, or from the unlawful taking or detention of or injury to the bankrupt's property, pass to the trustee as assets; but this does not include an action for tort resulting in personal injury. The authorities above cited sustain this proposition.

"Accordingly decree and order will be entered sustaining the demurrer to the petition, and denying the relief prayed for by the petitioners."

Question 814: What rights of suit pass to a trustee in bankruptcy? If the bankrupt has a claim for personal injury, does it pass to the trustee in bankruptcy? Suppose he had secured judgment for the injury before the petition was filed and the judgment was yet unpaid would the right to collect it pass to the trustee?

§ 849. (Bankruptcy, Sec. 59.) Burdensome property; trustee may reject.

(Note: The trustee in bankruptcy may reject burdensome property and thrust it back upon the bankrupt.)

§ 850. (Bankruptcy, Sec. 60.) To what liens trustee's title is subject.

(1) Liens secured through judicial proceedings (a) within four months, (b) more than four months prior to filing petition.

Case 815. Bankruptcy Law, Sec. 67f.

(See the law quoted in Coder v. Arts, supra.)

Case 816. Wagner v. Mt. Carmel Iron Works, 270 Federal Reports, 80 (C. C. A. 3rd Cir.).

Facts: Wagner got a judgment on January 9, 1920, against the Mt. Carmel Iron Works for infringement of patent. The Company went into bankruptcy, March 15, 1920. Wagner claims that the lien of his judgment was not dissolved though obtained within the four months period because his claim based on such judgment is not dischargeable because it arose out of a 'deliberate, wanton and continuous' tort.

Held: That the lien was dissolved regardless of the question whether the debt was dischargeable or not. Otherwise, the power would rest in any creditor having a non-dischargeable claim, to defeat the bankruptcy pro

ceedings by fastening the lien of his judgment upon such property.

Question 816: Are liens obtained by judgments dissolved by bankruptcy proceedings? In what cases? Does it make any difference that the judgment is one that the bankruptcy proceedings will not discharge?

(2) Liens arising out of contract.

See Coder v. Arts, supra.

(Note: A lien given to secure a present indebtedness is valid and is not dissolved by bankruptcy proceedings. Nor is a valid lien given to secure a past indebtedness invalid (1) if given prior to the four months period, or (2) if given within the four months period where it does not amount to a voidable preference.-Coder v. Arts, supra.)

(3) Liens given by law not arising out of contract or judicial proceedings.

Case 817. Henderson v. Mayer, 225 United States Reports, 631.

Facts: Samuel Mayer owned a plantation in Georgia which he rented to Joseph Burns for one year. The rent not being paid Mayer on November 30, 1908, made an affidavit according to the local statute and the Justice of the Peace thereupon levied a distress warrant on the cotton, corn and other property on the place. The statute of Georgia provided: "Landlords shall have a special lien for rent on crops made on land rented from them superior to all other liens except liens for taxes

and shall also have a general lien on the property of the debtor, liable to levy and sale, and such general lien shall date from the time of the levy of a distress warrant to enforce the same.

Three days after the distress warrant was levied general creditors filed a petition in bankruptcy against Burns, and the trustee contests Mayer's lien.

MR. JUSTICE LAMAR, after making a statement of facts, delivered the opinion of the court: