In re Haensell

• Decision Date: 06 January 1899
• Docket Number: 2,765.
• Parties: In re HAENSELL.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F. 355

In re HAENSELL.

No. 2,765.

United States District Court, N.D. California.

January 6, 1899

S. M Buck, for the motion.

DE HAVEN, District Judge.

This is an application by the bankrupt for an order permitting him to prosecute to judgment a certain action, commenced by him prior to the date of his being adjudged a bankrupt, and now pending in one of the courts of the state, to recover damages for his malicious prosecution and arrest upon a criminal charge. The present motion is necessarily based upon the assumption that the right to any damages which may be recovered in the action to which it refers is vested in the trustee in bankruptcy, for, if the bankrupt's original right to recover damages for such alleged malicious prosecution is not vested in such trustee, it must follow that this court has no jurisdiction to exercise any control over the bankrupt in the matter of prosecuting such suit and, upon consideration of the question, I am satisfied that the cause of action for the malicious prosecution and imprisonment alleged to have been suffered by the bankrupt constitutes no part of his estate in bankruptcy. This is made very clear by a reference to section 70 of the bankrupt act. That section provides that there shall be vested in the trustee, except so far as such property is exempt, the title of the bankrupt to-- 'All (1) documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade-marks; (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; (4) property transferred by him in fraud of his creditors; (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him; * * * (6) rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property.:

A cause of action for damages arising out of a personal wrong suffered by the bankrupt is not embraced in the foregoing description of property, the title to which, by operation of law, vests in the trustee of the bankrupt. The right to sue for a personal tort, such as slander, malicious prosecution assault, etc., is strictly personal. It cannot be assigned is not subject to levy and sale upon judicial process, and the statute does not contemplate that the bankrupt's right to maintain an action to recover damages for such wrongs shall constitute any part of his estate in bankruptcy. The law follows, in this respect, section 14 of the bankruptcy act of 1867 (14 U.S.Stats. 517), in the construction of which it was uniformly held that rights of action for personal torts did not vest in the assignee in bankruptcy. In re Crockett, 2 Ben. 514, Fed. Cas No. 3,402; Noonan v. Orton, 34 Wis. 259; Dillard v. Collins, 25 Grat. 343. In the first of these cases it was held that a cause of action for fraudulently and deceitfully recommending a person as worthy of trust and confidence did not pass to the assignee in bankruptcy by virtue of section 14 of the bankruptcy act of 1867; and in Noonan v. Orton it was decided that an action for an abuse of an attachment process was an action for a personal injury, and did not vest in the assignee, although the wrong injured the bankrupt's business; while in Dillard v. Collins it was held that a plea that the plaintiff had been adjudged bankrupt under the act of 1867 was not a good plea to an action of slander. The decisions under the bankruptcy laws of England are to the same effect, and section 70 of the present bankruptcy law of the United States, defining what property of the bankrupt shall vest in the trustee, is not more comprehensive than the act of 6 Geo. IV. c. 16, which provided that all the real and personal estate of the bankrupt, and 'all the present and future personal estate...