Bankruptcy. Property Passing to Trustee. Right of Action for Tort Causing Personal and Property Damage

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  • Bankruptcy. Property Passing to Trustee. Right of Action for Tort Causing Personal andProperty DamageSource: Harvard Law Review, Vol. 33, No. 6 (Apr., 1920), p. 860Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1327045 .Accessed: 25/05/2014 08:12

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  • 86o HARVARD LAW REVIEW

    murrer to the plea was sustained. The defendants appealed. Held, that the information be dismissed. People ex. rel. Livers et al. v. Hanson et al., I25 N. E. 268 (III.).

    For a discussion of this case, see NOTES, p. 848, supra.

    BANKRUPTCY - PROPERTY PASSING TO TRUSTEE - RIGHT OF ACTION

    FOR TORT CAUSING PERSONAL AND PROPERTY DAMAGE. - The defendant so negligently discharged its duties under a contract to maintain the bankrupt's credit as a trader during his absence in the army that his estate was forced into bankruptcy and its assets depleted. The bankrupt and the trustee join as parties plaintiff, the former claiming for damage to his credit and business reputation, and the latter claiming for injury to the estate. Held, that both may recover. Wilson P Another v. United Counties Bank, Ltd., [I920] A. C. I02 (House of Lords).

    It is well settled that a right of action for personal injuries remains in the bankrupt, while one for property damage vests in the trustee. Sibley v. Nason, i96 Mass. I25, 8i N. E. 887. See BANKRUPTCY ACT i898, ?? 70a 5, 6. But where the same wrongful act causes both personal and property damage, the relative rights of the bankrupt and the trustee are as yet not well defined. An earlier English case took the view that the right should be confined to the party representing the interest chiefly damaged. Rose v. Bucket, [i9oi] 2 K. B. D. 449. See I5 HARV. L. REV. 229. Theoretically unsatisfactory, this is practically inapplicable where each interest has sustained material in- jury. In justice, both should be compensated, but the difficulty lies in ap- portioning the cause of action occasioned by the single tortious act. It would seem that the Bankruptcy Act established a right in the trustee, for in him are vested the bankrupt's "rights of action arising . . . from injury to his property." BANKRUPTCY ACT, ?? 7oa, 6. If so, the bankrupt must proceed on the theory that the action is divisible to recover for the personal injury. Such a dual cause of action has been held divisible even outside of bank- ruptcy. Brunsden v. Humphrey, I4 Q. B. D. I4I; Reilly v. Sicilian, etc. Paving Co., I70 N. Y. 40, 62 N. E. 772. But see Doran v. Cohen, I47 Mass. 342, I7 N. E. 647; Von Fragstein v. Windler, 2 Mo. Ap. 598. And various dicta of the English courts in bankruptcy cases foreshadowed the decision in the principal case. Rogers v. Spence, I2 Cl. & F. 700, 720; Beckham v. Drake, 2 H. L. C. 578, 628. See also Darley, etc. Co. v. Mitchell, ii A. C. I27, I44. Even though, in general, such a cause of action should be held indivisible, it would seem practically desirable to allow an apportionment between the bankrupt and his trustee under the special circumstances of bankruptcy. It is to be hoped that the American courts, as yet undecided, will follow the principal case, despite their varying views on the divisibility of actions. There are cases pointing the other way, however. See Epstein v. Handverker, 29 Okla. 337, ii6 Pac. 789; Remmers v. Remmers, 2I7 Mo. 54I, II7 S. W. III7; Sibley v. Nason, supra.

    BANKRUPTCY -PROPERTY PASSING TO THE TRUSTEE IN BANKRUPTCY -

    RIGHT TO RECOVER SECURITIES PLEDGED FOR A USURIOUS LOAN. - The de- fendant loaned money to a borrower at a usurious rate of interest. A statute permitted the borrower an action for the recovery of the securities without any tender of the loan. (i909 LAWS OF NEW YORK, C. 25, ? 377.) The plain- tiff, receiver in bankruptcy of the borrower, claims the same right. Held, that the defendant have judgment. Rice v. Sclneck, I79 N. Y. SuPP. 335.

    The Bankruptcy Act provides that the assets of the bankrupt, including rights of action arising from contract and detention and injuries to property, shall pass to the trustee of the estate. BANKRUPTCY ACT OF i898, ? 70 a (6). Actions for fraud in inducing a sale or an acceptance of a contract will pass,

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    Article Contentsp. 860

    Issue Table of ContentsHarvard Law Review, Vol. 33, No. 6 (Apr., 1920), pp. 747-884A Contemporary State Trial: The United States versus Jacob Abrams et al. [pp. 747-774]Federal Power to Own and Operate Railroads in Peace Time [pp. 775-793]The Sixteenth Amendment [pp. 794-812]The Progress of the Law, 1918-1919 Equity (Continued) [pp. 813-837]NotesState Regulation of Prices under the Fourteenth Amendment [pp. 838-840]Extraterritorial Enforcement of Inheritance Tax by Suit against Beneficiaries [pp. 840-843]Is Homicide Committed Where the Blow Is Struck or Where the Death Occurs? [pp. 843-845]Are Bonuses to Soldiers and Sailors Given for a Public Purpose? [pp. 846-848]Estoppel of an Attorney to Act against His Client [pp. 848-850]A Judgment as Evidence in a Later Proceeding [pp. 850-852]A Partnership and a Joint Adventure Distinguished [pp. 852-854]Obligation of Aggrieved Contracting Party to Accept New Offer of Defaulter to Obviate Avoidable Damage [pp. 854-857]

    Recent CasesAbatement. Pendency of an Action in Which Present Claim Might Be Set up as Counterclaim [pp. 857-858]Admiralty. Jurisdiction. Equitable Jurisdiction. Accountings [p. 858]Appeal and Error. Appellant's Right of Dismissal Denied Where Prejudicial to Appellee [pp. 858-859]Attorneys. Relation between Attorney and Client. Advice of Attorney to a Deserter as Assistance under a Statute [p. 859]Attorneys. Relation between Attorney and Client. Proceeding in Quo Warranto Dismissed Because State's Attorney Disqualified [pp. 859-860]Bankruptcy. Property Passing to Trustee. Right of Action for Tort Causing Personal and Property Damage [p. 860]Bankruptcy. Property Passing to the Trustee in Bankruptcy. Right to Recover Securities Pledged for a Usurious Loan [pp. 860-861]Conflict of Laws. Concurrent Jurisdiction. Rule of Federal Courts as to Burden of Proof Applied in an Action in a State Court under a Federal Statute [p. 861]Constitutional Law. Due Process. Regulation of Prices [pp. 861-862]Constructive Trusts. Mistake of Fact. Money Loaned in Ignorance of the Previous Institution of Bankruptcy Proceedings against the Borrower [p. 862]Corporations. Liability of Stockholder upon Subscription-Calls. Whether Date of Payment Necessary for Validity of Resolution for a Call [pp. 862-863]Damages. Measure of Damages. Duty of Innocent Party to Accept Offer of Defaulting Party in Mitigation of Damages [p. 863]Domicile. Evidence of Intent to Change as between Two Residences [pp. 863-864]Equity. Jurisdiction. Adequacy of Legal Remedy Where There Is a Recovery in Quasi-Contract. Account [p. 864]Evidence. General Principles and Rules of Exclusion. Evidence of Trailing of Accused by Bloodhounds [pp. 864-865]Evidence. Statements in Public Documents. Admissibility of Census Report [p. 865]Fraudulent Conveyances. Rights of Creditors. Tort Claimants as Creditors within the Statute. Time of Accrual of Right to Attack the Conveyance [pp. 865-866]Grand Jury. Selection of Members. Effect of Exemption of Jurors by Court on Its Own Motion [p. 866]Husband and Wife. Community Property. Right of Wife to Sue for Injuries When Husband Refuses to Join [p. 867]Indictment and Information. Sufficiency of Accusation. Necessity of Allegation of Specific Instances of Practicing without a License [pp. 867-868]Joint Adventures. Fiduciary Relation between Co-Adventurers. Duty to Divide Secret Profits [p. 868]Liens. Priority of Common-Law Lien over Conditional Vendor's Lien [pp. 868-869]Partnership. Rights of Partners inter se. Fiduciary Relation after Dissolution [p. 869]Searches and Seizures. Validity of Judicial Order Requiring Production of Papers Discovered by Unlawful Search [pp. 869-870]Statute of Frauds. Sales of Goods, Wares, and Merchandise. Check as Part Payment [p. 870]Taxation. Inheritance Tax. Collection and Enforcement. Personal Action in Another State against the Beneficiaries [p. 870]Torts. Liability of Occupier of Premises. Lessee Liable for Injuries to Invitee on Portion of Premises Not Covered by Lease [p. 871]War. Suit by Alien Enemy. Effect of Payment of Judgment to Alien Property Custodian [pp. 871-872]Waters. Navigability. Necessity of Actual User [p. 872]Wills. Republication. Incorporation by Reference. Valid Codicil Referring to Will Procured by Undue Influence [pp. 872-873]Witnesses. Privilege of Husband and Wife. Use for Purpose of Impeachment of Testimony Obtained in Violation of Privilege [p. 873]

    Book ReviewsReview: untitled [pp. 874-875]Review: untitled [pp. 875-878]Review: untitled [pp. 878-880]Review: untitled [pp. 880-881]Review: untitled [pp. 881-883]Review: untitled [pp. 883-884]

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