I. From the state.

Lewis, C. J., in

The Mayor V. The Ohio And Pennsylvania Railroad Company

26 Pennsylvania State, 355.

It must be remembered that the ground was public ground, owned and in charge of the public municipal authorities, for public uses. It may also be inferred that the grant was made on the application of the railroad company, and on their own representation of the quantity of ground which they deemed it necessary to occupy. In the construction of a grant it is important to have respect to the estate of the grantor, to the consideration which leads the estate, and to the recompense and loss which is sustained. Gough v. Howard, 3 Bulst. 125. Where a grant is made by the king at the suit of the grantee, it is to be taken most beneficially for the king and against the grantee. 2 Bl. Com. 347; Hob. 243; Hard. 309. A grant made by the commonwealth, or by a municipal corporation under authority derived from the commonwealth, at the instance and for the convenience of a railroad company, is governed by the same rule of construction, and nothing is to be taken by implication against the public, except what necessarily flows from the nature and terms of the grant.

II. From individuals by involuntary alienation.

1. Title by Eminent Domain.1

Eaton V. B. C. & M. Railroad

51 New Hampshire, 504. - 1872. [Reported herein at p. 1.]

1 The cases illustrate the exercise of the power by corporations under the authority of the state. See also pp. 141 and 120, note. The matter is largely regulated by statute. For the New York Law, see Code Civ. Proc, §§ 3357 -

3384. - Ed.

[1069]

Wheeler V. Kirtland

27 New Jersey Equity, 534. - 1875. [Reported herein at p. 698.]

2. Title by Marriage.1

Riley's Administrators V. Riley

19 New Jersey Equity, 229. - 1868. [Reported herein at p. 26.]

Babb V. Perley

1 Maine, 6. - 1820. [Reported herein at p. 28.]

Houghton V. Hapgood

13 Pickering (Mass.), 154. - 1832.

[Reported herein at p. 24.]

Fears V. Brooks

12 Georgia, 195. - 1852. [Reported herein at p. 571.]

3. Title by Bankruptcy.2

Johnson V. Geisriter

26 Arkansas, 44. - 1870.

McClure, J. - On the 3d of September, 1867, Geisriter executed and delivered his note to W. W. Johnson, for $600, payable one year

1 Dower inchoate is rather a lien or charge than a title. Curtesy inchoate is an aeexcept in those States where the wife can, by her separate deed, convey the land free and clear of her husband's claim. Dower assigned and curtesy con-animate are of course estates. - Ed.

2 This is governed by statutory regulations in the various States except when then is a general bankruptcy act in force, in which case the federal courts may after date. W. W. Johnson assigned said note to one Ben S. Johnson, the plaintiff in this action, who brought suit on the same.

Geisriter answered, setting up that W. W. Johnson had filed his petition in bankruptcy; that, at the time of filing said petition, said Johnson was the owner of the note sued on; that said note was not included in Johnson's schedule of assets, and that he had no right or authority to assign the same; that said W. W. Johnson, long after the filing of said petition in bankruptcy, was the owner of said note; that the assignment to Ben S. Johnson, the plaintiff, was and is null and void, and that said plaintiff acquired no legal title by reason of said assignment.

To this answer the plaintiff demurred on the ground that " the answer does not state facts sufficient to constitute a defense."

The court overruled the demurrer, the plaintiff rested, and judgment was for the defendant. The plaintiff appealed.

The question presented is whether a bankrupt can assign property that ought to have been scheduled, after having filed a petition.

The demurrer admits the filing of the petition of bankruptcy, by W. W. Johnson, the ownership by him of the note at the time o filing the petition, that it was not included in the schedule of assets of said Johnson, and that long after the filing of the petition in bankruptcy, Johnson was the owner of the note.

The appellant urges that a bankrupt's assets do not pass to the assignee until the assignee has been appointed and qualified.

The bankrupt act requires the petitioner to make a schedule of his assets and liabilities. It also declares that, upon the appointment of the assignee and his qualification, the judge, or, where there is no opposing interest, the register shall, by an instrument under his hand, assign and convey to the assignee all the interest, real and personal, of the bankrupt, and that such assignment shall relate back to the commencement of said proceedings in bankruptcy; and therefore, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, * * * and shall dissolve any attachment made within four months next preceding the commencement of said proceedings. The 11th section of the act declares: " The filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt."

The appellant urges that the answer does not disclose that the petitioner had been adjudged a bankrupt, or that an assignee had restrain the state courts from proceeding in such cases. In re Miller, 6 Biss. 30, Fed. Cases No. 9551. See the National Bankruptcy Act of 1898, for the present law. The provisions of the New York statute are to be found in the Code Civ. Proc, §§ 2149-2218. - En.

been appointed and qualified. The language of the nth section is, that " the filing of the petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt." We construe this language to mean that a petitioner shall be deemed a bankrupt from the day on which he files his petition.

The moment the petition is filed the bankrupt is civilly dead. During the interval existing between the filing of the petition and the appointment of the assignee, a condition of things exists not unlike that in the case of a person dying intestate, and before the appointment of an administrator. On the death of a person intestate, no one is authorized to dispose of or assign his assets. A bankrupt is civiliter mortuus, from the day on which he files his petition, and during the interval, between the filing of the petition and the appointment of the assignee, no assignment of his assets can be made. A judgment rendered against a bankrupt, after the filing of the petition, and before the appointment of an assignee, is as much a nullity as a judgment rendered against a deceased person, who has no legal representative. If no valid judgment can be rendered against a bankrupt at such a time, it is not at all probable that the law gives him the power to make a valid assignment of assets that should, and which the appellant admits, ought to have been placed in the schedule.