Page:United States Reports, Volume 209.djvu/418

 392 OCTOBER TERM, 1907. Ophfion of th Court, 20 U, . has to recover poseion of said certificates or the value thereof against either of the bankrupts or any person in whoas poes- sion they may be found, or any right of action that he has against either or both of said bankrupts for the conversion of said certificates to .their own use, when said bankrupts knew that said certi/fcates were not their property, and never h! been; and that the said deponent does not waive any right whatsoever of any kind, nature or description a int said bankrupts, or either of them, for or on account of the failure of the bankrupts or either of them to return said certU/cate to said deponent, and for the ,,nlawful hypothecation and conversion of the same by said bankrupts, or either of them." In this claim the essential question is as to the effect of Hall's proof of his claim in bankruptcy as a waiver of his right to recover the shares of stock covered by the receipt. We are of the opinion that, in view of the reservation just made, there was nothing in Hall's conduct amounting to an election to pursue his claim as a creditor in bnkruptcy, which now pre- vents Iris recovery of the certificates of stock in question. It is true that he voted at the first meeting of the creditors on December 19, 1904, upon an ffdormal ballot for trustee in bnlruptcy, and at the formal election of trustee on Decom- her 21, 1904, Mr. Hall did not vote, though the referee finds that he participated actively at the meetings held for the elec- tion of trustee. We are ot the opinion that the reservation of Hall evidenced his intention to hold on to whatever rights he had in his shares of stock, and there is nothing in his conduct which should preclude him, after he had d/scovered that the shares. had been returned to the assignee in bankruptcy, from reclim ing them as his own property. We find no error in the judgment of the Circuit Court of Appeals for the Second Circuit, and the same is A/md.

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