In re Hirsch

BENEDICT, District Judge.

The difficulties surrounding this proceeding, which were suggested to counsel upon the original application, and which impelled me to issue an order to show cause, with a stay meanwhile, instead of a peremptory injunction, have not been removed by the argument which has been • had. There is certainly difficulty in holding that any provision of the bankruptcy act confers upon this court the power to issue an injunction which shall run into all the states in the Union, and be effective to stay proceedings which may be pending against the bankrupt in any court of any state. According to the theory of the judiciary act [1 Stat. 73], the jurisdiction of the district courts is limited to their respective districts. According to the theory of the various laws relating to the federal judiciary, the jurisdiction of the district courts is limited to their respective districts. The jurisdiction conferred upon these courts by the bankruptcy act is indeed an extended one, for the proper exercise of which it would seem necessary, in certain cases, that the orders of the bankruptcy court should run throughout the United States; but it is certainly difficult to affirm that this extended *212power has been conferred by. any of the provisions in the bankrupt law. If, however, it can be held that this power is necessary to the exercise of the jurisdiction expressly conferred, and therefore to be implied, and that when the bankrupt has surrendered all his property to a district court, before which alone his proceedings in bankruptcy can be considered to be pending, he has the right to look to that court for the protection against suits, pending the adjudication upon his petition, which the act expressly declares that he shall have, and which it is not easy to see that any other court can grant, and that every creditor of the bankrupt,' wherever he may be, is a party to the proceedings under the petition, and therefore subject to the orders of that court, whether served in or out of the judicial district in which the petition was filed, still another difficulty arises in regard to the method of enforcing obedience to such orders by parties residing and being out of the judicial district, which is the present case. If an attachment be issued, to whom shall it be directed? I find no authority conferred upon this court to issue process to the marshal of any other district, directing him to arrest those persons and bring them before this court. In criminal cases, the practice in regard to delinquents out of the district is regulated by the 33d section of the judiciary act (1 Stat. 91). where it is provided that, for any crime or offence against the United States, the offender may be arrested wherever he may be found; and, if such arrest is within a district other than that in which the offence is to be tried, the judge of the district where the delinquent is arrested issues his warrant to the marshal of his district, directing the removal of the delinquent to the district where the trial is to be had. It might be that upon an attachment for contempt being ordered, the proceedings could be considered as thenceforth a criminal proceeding, and so the offender brought before the judge of the district where the arrest might be made, and then transferred to this court under the provisions of the judiciary act. But if not, then I do not see how this court can do more than issue its writ to the marshal of the district, to be executed only within this district. Such a proceeding, however, in this, as in most cases, would be entirely futile and unavailing as a means of enforcing the orders of the court, for the offenders do not reside in the district, and there is no evidence that they can ever be found therein. These difficulties I am not. however, required to solve in the present case by means of the facts shown upon the return of the order to show cause, for it appears that prior to the commencement of the action in the state court, the bankrupt had. by a general assignment, transferred all his property to an assignee for the benefit of his creditors. The money in the Bank of America would therefore pass to this assignee, if not bound by the attachment which was subsequently issued upon the commencement of the action in the state court, and would in no event pass to the as-signee in bankruptcy when appointed. The action of the state court, moreover, as it now appears, had proceeded to judgment before the passage of the bankruptcy act, and the money attached in the bank had been paid to the sheriff, and by him paid to the plaintiffs upon the judgment and execution issued thereon, so that at the time of the commencement of the bankruptcy proceedings the only proceeding pending in the state court was an appeal taken by the bankrupt from an order denying a motion to set aside the attachment, and this appeal, if successful, would in no way affect the judgment which has been recovered in this action, nor would it retake from the plaintiffs the money received from the bank,, nor would it give the-assignee in bankruptcy any right which he would not otherwise possess. It therefore seems clear that no action of the plaintiffs in regard to this appeal would tend to enforce any demand against the bankrupt, nor deprive the assignee in bankruptcy of any property or right. When, therefore, the appeal being called upon the calendar for argument, the plaintiffs dismissed it for want of prosecution, the counsel for the bankrupt being present and not desiring to proceed, they cannot be said to have disobeyed the order of tiiis court, which Sorbade all proceedings to enforce their said claim. The motion must, therefore, be denied.