Approved in In re Kenney, 97 Fed. 558, denying bill to restrain sheriff from paying proceeds of execution levied within four months prior to bankruptcy; Glenny v. Langdon, 98 U. S. 23, 25 L. Ed. 44, holding creditors can recover assets of bankrupt fraudulently transferred, only through instrumentality of assignee; Johnson v. Price, 13 Fed. Cas. 793, Circuit Court is without jurisdiction of bill filed by creditors before appointment of assignee, to restrain mortgagee in possession from disposing of goods of alleged bankrupt; Olney v. Tanner, 10 Fed. 103, suit against assignee in bankruptcy to assert a claim of superior title to property fraudulently assigned before proceedings in bankruptcy; dissenting opinion in Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 372, 373, 25 L. Ed. 203, arguendo; Mason v. Hartford etc. Ry. Co., 19 Fed. 55, as authority for holding jurisdiction of Circuit Court is concurrent with that of District Court in such matters; Mitchell v. M'Clure, 91 Fed. 622, construing bankruptcy act of 1898.

What amounts to adverse holding of property acquired from bankrupt. Note, 8 L. R. A. (N. S.) 1235.

Where assignee desires to obtain property of bankrupt, which a transferee of bankrupt's firm claims adversely, the proceedings should not be summary, under first section of Bankruptcy Act of 1867, but plenary under second clause of third section.

Approved in First Nat. Bank v. Chicago Title etc. Co., 198 U. S. 289, 49 L. Ed. 1054, 25 Sup. Ct. 693, no appeal lies from decree of bankruptcy court in proceeding begun by receiver's petition for directions respecting sale by which question of his possession decided, sale decreed and rights of adverse claimants determined; Louisville Trust Co. v. Comingor, 184 U. S. 25, 46 L. Ed. 416, 22 Sup. Ct. 296, denying referee in bankruptcy right to summarily proceed against assignee and compel payment of sums claimed adversely at time petition filed; Bardes v. Hawarden Bank, 178 U. S. 532, 44 L. Ed. 1180, 20 Sup. Ct. 1003, holding District Court, with consent of defendant, may entertain jurisdiction of trustee's suit to set aside fraudulent transfers made before bankruptcy proceedings; Shea v. Lewis, 206 Fed. 882, 124 C. C. A. 537, holding where bankrupt's wife was in possession of property, claimed to be conveyed to her before being subject to liens, her claim could not be determined without her consent, except in plenary suit; In re Blum, 202 Fed. 886, 121 C. C. A. 241, holding where wife of bankrupt claimed money as repaid her on chattel mortgage and denied referee's jurisdiction to determine claim, she was entitled to have it adjudicated in plenary suit; First Nat. Bk. v. Hopkins, 199 Fed. 876, 118 C. C. A. 321, holding where there was nothing to show but what bankrupt's deposits were ordinary deposits and bank held notes amounting to more than deposits, matter of its claim was for

plenary litigation and not summary between it and trustee; In re Rathman, 183 Fed. 920, 924, 106 C. C. A. 253, holding where receiver had sole property of bankrupt under foreclosure proceedings, bankruptcy court had no jurisdiction to determine in summary proceedings merits of claim under mortgage, decree and sale; The James McCaulley, 181 Fed. 936, 105 C. C. A. 186, holding where vessel is released on stipulation for value, decree cannot be entered for greater sum than named in stipulation; In re Michie, 116 Fed. 753, holding bankruptcy court without jurisdiction over controversy between trustee and one to whom bankrupt conveyed property; In re Klein, 116 Fed. 525, holding general assignee's accounts as to disbursements before filing petition against assignor cannot be summarily settled by bankruptcy court; In re Steuer, 104 Fed. 978, holding objections to jurisdiction waived, defendant having full opportunity to protect rights as in plenary suit and not objecting; In re Baudouine, 101 Fed. 577, 41 C. C. A. 318, holding stranger claiming title to bankrupt's property adverse to trustee, entitled to be heard in plenary suit; In re Cohn, 98 Fed. 75, holding rights of third persons in actual possession of property can only be determined in plenary suit; Murray v. Beal, 97 Fed. 570, sustaining demurrer to jurisdiction, petition failing to show action originally vesting in trustee and not in bankrupt; In re Gibson, 22 Okl. 871, 98 Pac. 925, holding where person, not party to proceedings, is ruled by referee to turn over property to bankrupt's trustee, and he claimed that he had no property of bankrupt, referee cannot proceed summarily; Marshall v. Knox, 16 Wall. 556, 21 L. Ed. 484, holding similarly, where controversy was as to right of possession of bankrupt's property, seized, before any act of bankruptcy, as a pledge for payment of rent due; Wood etc. R. Co. v. Brooke, 2 Sawy. 583, Fed. Cas. 17,980, holding court cannot deprive assignee of possession of bankrupt's property without an action and trial by jury, unless parties consent to trial by court; Shainwald v. Lewis, 6 Sawy. 591, 5 Fed. 515, following rule; Ferguson v. Peckham, 8 Fed. Cas. 1153, whether an adverse claimant may not proceed against an assignee by petition, quaere; In re Marter, 16 Fed. Cas. 859, holding District Court without power to determine validity of assignee's title by summary proceedings; Rogers v. Winsor, 20 Fed. Cas. 1133, and In re Abraham, 93 Fed. 776, 35 C. C. A. 592, where assignee in bankruptcy sought to recover books of account transferred to assignee of bankrupt's own selection; Bowen v. Christian, 16 Fed. 731, holding receiver appointed to wind up partnership affairs, who seeks to set aside a mortgage given by one of partners, on ground of fraud, must proceed by original bill; In re Herdic, 40 Fed. 361, holding title of administrator of bankrupt, who was not a party to bankruptcy proceedings, cannot be adjudicated by bankruptcy court on rule to show cause; In re Brodbine, 93 Fed. 644, holding District Court had no juris

diction to proceed summarily at suit of trustee in bankruptcy, to determine validity of claim of bankrupt and another party to a license; Smith v. Sullivan, 71 Me. 156, and Taylor v. Taylor, 74 Me. 587, where State insolvency law was under consideration; Marsh v. Armstrong, 20 Minn. 86, 18 Am. Rep. 359, and Doyle v. Sharpe, 74 N. Y. 159, holding actions involving interests of parties other than bankrupt, his assignee and creditors, can only be determined by actions which are separate from proceedings in bankruptcy; Goodall v. Tuttle, 3 Biss. 230, Fed. Cas. 5533, In re Litchfield, 13 Fed. 866, and Ex parte Hollis, 59 Cal. 415, all arguendo.

Qualified in In re Campbell, 3 Hughes, 288, Fed. Cas. 2348, holding transferee may waive right to plenary proceedings.

Distinguished in In re Tune, 115 Fed. 914, holding bankruptcy court may inquire summarily into adverse claim of stranger; O'Brien v. Weld, 92 U. S. 83, 23 L. Ed. 677, where transferee, or in this case plaintiff, in execution proceedings, takes matter into bankruptcy court and obtains orders and rules relating thereto, he is bound thereby; In re Pierce, 7 Biss. 427, Fed. Cas. 11,139, holding gift of personal property by insolvent husband to wife, without visible change of possession, does not constitute such an adverse interest in wife as to compel institution of separate proceedings; In re Ulrich, 6 Ben. 492, Fed. Cas. 14,328, where summary proceedings were had before the appointment of an assignee; In re Sims, 22 Fed. Cas. 181, holding assignee may petition summarily to set aside mortgage given after commencement of proceedings in bankruptcy; In re Baudouine, 96 Fed. 540.

Strangers to bankruptcy proceedings, not served with process, who have not voluntarily appeared, cannot be compelled to come into court under petition for rule to show cause.

Approved in Marshall v. Knox, 16 Wall. 557, 21 L. Ed. 484, and Harmanson v. Bain, 1 Hughes, 201, Fed. Cas. 6072, both following rule; Bradley v. Healey, 1 Holmes, 452, Fed. Cas. 1781, holding court has no jurisdiction to entertain summary petition against assignees of bankrupt for sale of property never in possession of assignees, but in possession of parties claiming title, and not parties to petition; In re Litchfield, 13 Fed. 869, following rule.

Explained in In re Anderson, 23 Fed. 498, 501, where strangers came in voluntarily.

Power to revise bankruptcy cases arising in District Courts, except when special provision is otherwise made, is conferred upon Circuit Courts. Approved in In re Kirk's Petition, 3 Mackey (D. C.), 118, refusing to review appealable order in bankruptcy passed by special term.

Bankruptcy, effect on proceedings in State court. Note, 17 Am.
Rep. 207.

Miscellaneous. Cited in Coit v. Robinson, 19 Wall. 286, 22 L. Ed. 155, Graham v. Boston etc., 14 Fed. 761, and Stickney v. Wilt, 23 Wall. 160, 23 L. Ed. 53, not in point; Eyster v. Gaff, 91 U. S. 526, 23 L. Ed. 405, without being cited for any particular point; Goodrich v. Wilson, 119 Mass. 434, and Francisco v. Shelton, 85 Va. 788, 8 S. E. 794, both holding jurisdiction, conferred on Federal courts in bankruptcy matters, does not exclude concurrent jurisdiction in State courts; Minot v. Tappan, 127 Mass. 339, not in point; Bromley v. Goodrich, 40 Wis. 137, 22 Am. Rep. 688, incidentally.

14 Wall. 434-441, 20 L. Ed. 858, MOWRY v. WHITNEY.

Suits to set aside, annul, or declare void a patent, must be brought in the name of the government, or by authority of attorney general, by bill in chancery, which is substituted for the scire facias, the ancient mode of annulling the king's patent.

Approved in Briggs v. United Shoe Mach. Co., 239 U. S. 50, 60 L. Ed. 139, 36 Sup. Ct. 7, refusing to annul patent for fraud in action for royalties; Wayne Mfg. Co. v. Coffield Motor Washer Co., 227 Fed. 991, both holding that patent cannot be collaterally attached in infringement suit; United States v. Wesely, 189 Fed. 279, United States may bring action to cancel land patent erroneously issued through clerical error of land officers; Western Glass Co. v. Schmertz Wire-Glass Co., 185 Fed. 791, 109 C. C. A. 1, and Allen v. Consolidated Fruit Jar Co., 145 Fed. 949, denying jurisdiction over suit for accounting for profits, damages, or royalties based on contract granting license under patent, or for cancellation of patent; Eastern etc. Bag Co. v. Continental etc. Bag Co., 142 Fed. 511, alleged infringer cannot collaterally attack patent on ground that patentee's solicitor contributed substantial part of invention and embodied it in application after patentee had made oath to same; Calculagraph Co. v. Wilson, 132 Fed. 21, validity of patent regular on its face cannot be collaterally attacked on ground that final fee was not paid within six months required by statute; United States v. San Jacinto Tin Co., 125 U. S. 281, 31 L. Ed. 750, 8 Sup. Ct. 855, holding suit may be brought by United States in any court of competent jurisdiction, to cancel a patent for land obtained by fraud or mistake; United States v. American Bell Tel. Co., 128 U. S. 368, 32 L. Ed. 462, 9 Sup. Ct. 97 (reversing 32 Fed. 604, 606, 607), following rule; Celluloid Mfg. Co. v. Goodyear Dental Vulcanite Co., 13 Blatchf. 384, Fed. Cas. 2543, suit to have patent adjudged void can only be sustained by the attorney general in behalf of the government; United States v. Gunning, 21 Blatchf. 518, 18 Fed. 512, holding United States may file bill in Circuit Court to repeal letters patent granted for an invention alleged to have been obtained by fraud, although there is no statute authorizing such suit; Birdsall v. McDonald, 3 Fed. Cas. 444, applying principle to reissued patent; North

ern Pac. Ry. Co. v. Cannon, 54 Fed. 259, 4 C. C. A. 303, holding company cannot maintain suit in equity to quiet its title to lands within limits of its grant, when patents have been issued to individuals for same before line of road was fixed; Scott v. Lockey Inv. Co., 60 Fed. 37, and Meyendorf v. Frohner, 3 Mont. 321, both holding government alone can complain of fraud practiced on it in procuring patent to land; United States v. San Pedro & Canon del Agua Co., 4 N. M. 308, 17 Pac. 420, holding suit brought for cancellation of land patent, properly brought in name of attorney general; dissenting opinion in Mahn v. Harwood, 112 U. S. 365, 368, 28 L. Ed. 669, 670, 6 Sup. Ct. 451, 453, majority holding suit may be maintained between patentee and alleged infringer to determine whether patent is valid, where it is alleged patentee has been guilty of laches in obtaining a reissue; New York etc. Coffee Polishing Co. v. New York etc. Coffee Polishing Co., 20 Blatchf. 177, 9 Fed. 581, and Consolidated Electric Light Co. v. Edison Electric Light Co., 23 Blatchf. 413, 25 Fed. 720, arguendo; Attorney General v. Rumford Chemical Works, 32 Fed. 620, 621, 622, holding attorney general has no power to maintain in his own name a bill to repeal letters patent for an invention.

Distinguished in State v. Millis, 61 Or. 254, 119 Pac. 766, holding action in nature of quo warranto should, under provisions of law of Oregon, be brought by district attorney instead of attorney general; Northern Pac. Co. v. Cannon, 46 Fed. 231, where question was as to right of railroad company to maintain ejectment for lands granted to it, but also claimed by others, under grant from government.

Scire facias. Note. 122 Am. St. Rep. 79.

Where two patents have been granted for same thing to different individuals, or a claim has been rejected because invention was covered by patent already issued, parties interested may try their conflicting claims by bringing suit in chancery.

Approved in Coffield Motor Washer Co. v. A. D. Howe Co., 172 Fed. 671, holding Coffield reissue patent 12,719, for water motor valid and infringed; Boston etc. Power Co. v. Eureka Patents Co., 139 Fed. 31, where identity of patent claims not shown, court cannot declare later patent invalid for want of patentability; Foster v. Lindsay, 3 Dill. 128, 129, Fed. Cas. 4976, and Foster v. Lindsay, 9 Fed. Cas. 557, both construing section 4918, Revised Statutes, and holding in such cases as above, the United States Circuit Court has power to adjudge either of interfering patents void in whole or in part; to same effect is Lockwood v. Cleaveland, 6 Fed. 726.

Distinguished in Pentlarge v. New York Bung Co., 20 Fed. 314, where claims were held to be not conflicting; Nathan Mfg. Co. v. Craig, 49 Fed. 370, where answer to complaint denied interference, and it appeared claims of respective patents did not cover the same invention. Patent for invention as a monopoly. Note, 20 E. R. C. 8.