Page:Federal Reporter, 1st Series, Volume 10.djvu/120

 IJOS FEDERAL REPORTER �to be defeated through any mere delay in filing schedules. This title must therefore necessarily stand, under this language of the act, un- less something else in it plainly defeats the title. The subsequent provision, that "proceedings pending may be continued under this act," is, it seems to me, wholly insufficient to defeat it. The language is permissive, and does not indicate any purpose of defeating any former assignments for such a cause. The act contains no regulation or direction in regard to pending assignments in which more than 30 days have already elapsed without schedules being filed; and the validity of such assignments must therefore be judged according to the prior acts, and under these the assignment, as we have seen, was not void. �The title to this property being therefore in the voluntary assignee at the time the receiver was appointed, through a deed valid as between the parties to it, the question remains whether, assuming that the assignment was fraudulent as to creditors, the receiver, upon his appointment, acquired tpso /acio the title to the assigned property, or only a right of action, as representative of the judgment creditor, to procure it to be adjudged invalid in a suit institutedfor thatputpose. If the latter is all that the receiver acquired by his appointment, then, as he failed to institute any such suit till long after the commencement of proceedings in bankruptcy, the property had, by virtue of section 5046 and section 5044, already vested in the assignee in bankurptcy prior to the filing of this bill. Miller v. O'Brien, 9 Blatchf. 270 ; In re Wynne, 4 N. B. E. 25. The complainant was appointed receiver in proceedings supplementary to execution under the Code of Procedure as it esisted prior to the amendment of 1880. These proceedings were adopted as a substitute for the former creditor's bill, to reach assets of p, judgment debtor after execution returned unsatisfied, and the practice under the Code is in njost respects substantially the same as formerly existed, except in matters of form. The Code author- ized a receiver to be appointed "of the property of the judgment debtor," (old Code, § 298; new, § 2464,) just as a receiver was for- merly appointed in the simplest form of a creditors' bill brought against the judgment debtor alone. The Code did not define the powers or duties of such a receiver, but adopted them as they existed in the former practice. By that practice such a receiver became vested, by the order appointing him, with all the property and effects of the debtor which he had in his possession or under his control; but not with property to which the debtor had himself no title, but which he had conveyed to another in fraud of creditors. To have ��� �