Page:Federal Reporter, 1st Series, Volume 5.djvu/64

 52 FEDERAL REPORTBB. what appears to liave beent the riglits of the parties, they would have been surretularDii by the receiver withbut litiga- tion, or could have been obtained from him by & suit of replevin brought by an assignee in bankruptcy of the firm. It is indeed argued that because the receiver had a large claim against the firm fer breach of contract he would have either suceessfuliy resisted this claim, or made it so expensive to enforce that the claim for this property must be regarded as worthless. It cannot, however, be assumed that a receiver, the ofi&cer of a court, would, or would be allowed to, interpose vexations obstacles to the assertion of so clear- a right of property; and I see no way in which he oould make his claim against the firm for breach of contract available todefeat the claim of an assignee for ereditors to specifie chattels belong- ing to the bankrupts, in wMoh the. receiver, as a creditor, would have no greater interest than any other creditor,' and in which he certainly aoquired no ne w interest by air acci- dentai possession, even tbough when he took that possession it may have been upon the supposition on his part that he iad a right to the property : as receiver of the ; railroad Com- pany. The test of available aasets is, I thinky whetker,.at the time of the filing of the petition in^ bankruptcy, there was van available fund to pay firm rcEeditors,: and if, by theirheg- dect to avail themselves of such fund, eitherthrough ignorance ■of its existence or otherwise, the fund then existing has been itdissipated or lost, it does noi seem to me that their equity against the individual estate is enlarged. Ordinarily, where an assignee is appointed, and administers the property under "the law, and in fact he doeSnot realize anything above costs and expenses, it may be assumed that the property was worth nothing as a fund for payment of debts at the time of filing the petition. The presumption certainly is that he has realized its entire value. But no such presumption can be indulged where the proof is that the property then had sub- stantial value, and the failure to realize upon it is owing to the fact that it was abandoned and never administered. It is unnecessary to examine the question as to any other alleged assets of the firm.