or by some other notice to him. The notice may be served on the attorney outside the jurisdiction of the court.10 The appearance of the attorney without objection to the jurisdiction, although a consent to the entertainment of the suit by the Court of Bankruptcy, does not justify an order requiring him to pay back money which he has received when there is no allegation that he was paid more than was reasonable.11

§ 609. Jurisdiction in bankruptcy by consent. As a general rule, consent will not give a court of the United States any jurisdiction that is not conferred by statute. A petition in voluntary bankruptcy is a submission of the bankrupt's estate to the court for administration and the bankrupt cannot object to a summary proceeding to determine his rights.2 The Bankruptcy Act, by implication, gives the courts of bankruptcy jurisdiction over suits by the trustees "by consent of the proposed defendant." Consent is given to the jurisdiction of a court of bankruptcy in summary proceedings against an adverse claimant, by his appearance and answer to the merits without raising the jurisdictional objection; but not when he joins in the same answer an objection to the jurisdiction with a defense. upon the merits; nor by filing an answer to the merits concurrently with a demurrer to the jurisdiction; nor by an answer and defense on the merits after his objection to the

9 Re Wood & Henderson, 210 U. S. 246, 52 L. ed. 1046. But see Re Raphael, C. C. A., 192 Fed. 874.

10 Re Wood & Henderson, 210 U. S. 246, 52 L. ed. 1046. See Re Lewin, 103 Fed. 850; supra, § 611. 11 Re Raphael, C. C. A., 192 Fed. 874.

§ 609. 1 Fourniquet v. Perkins, How. 160, 12 L. ed. 650; Olds Wagon Co. v. Benedict, C. C. A., 67 Fed. 1, 14 C. C. A. 285.

2 Re Brantman, C. C. A., 224 Fed. 101.

8 30 St. at L. 544, 552, § 23, subd. b. Such consent "means consent to the tribunal in which the controversy is to be carried on and not to the mode of procedure, which is

4

regulated by general principles of law unless other provision is made.' Sinsheimer v. Simonson, C. C. A., 107 Fed. 898, 906; approved Re Raphael, C. C. A., 192 Fed. 874, 876.

4 Ryttenberg v. Schefer, 131 Fed. 313; Knapp & Spencer Co. v. Drew, C. C. A., 160 Fed. 413; Re Mills, 179 Fed. 409; Re Kornit Mfg. Co., 192 Fed. 392; Mitchell Storebuilding Co. v. Carroll, C. C. A., 193 Fed. 616; Re Berry, 247 Fed. 700. 5 Wood v. Wilbert, 226 U. S. 384, -; overruling Sheppard v. Lincoln, 184 Fed. 182; Re Goldstein, C. C. A., 216 Fed. 887. See §§ 169, 170, supra.

57 L. ed.

6 Re Michie, 116 Fed. 749.

jurisdiction has been overruled; 7 nor by failing to object to the jurisdiction until after the filing of an amended petition when the original petition alleged no cause of action. A proof of claim or a vote upon the same 10 do not constitute a consent to jurisdiction of the Federal court in a suit 11 or proceeding 12 which relate to matters not involved in such claim. Nor, it has been held, does the filing of a claim for proof give the court jurisdiction upon its rejection to direct the elaimant to pay to the estate the difference between the value of security which he holds and the debt due to him.13 Nor does the appearance of a non-resident in obedience to a subpoena ad testificandum make him a party to the proceedings so as to give the court jurisdiction of a suit or proceeding against him.14 Nor does authority given by a State court to its receiver to appear and oppose the adjudication of bankruptcy surrender its jurisdiction to the Court of Bankruptcy.15

The consent need not expressly appear on the record, but may be shown by conduct necessarily implying the same,16 or be given by estoppel.17 Consent is also conferred over an adverse claimant by his intervention in the bankruptcy proceedings,18 or seeking relief therein; 19 by his submitting his rights to the court

7 First Nat. Bank v. Chicago Title & Tr. Co., 198 U. S. 280, 49 L. ed. 1051; Louisville Tr. Co. v. Comingor, 184 U. S. 18, 46 L. ed. 413; Re Bacon, C. C. A., 210 Fed. 129; Re Gottlieb & Co., 245 Fed. 139.

8 Re Hemby-Hutchinson Pub. Co., 105 Fed. 909.

9 Pickens v. Dent, 187 U. S. 177, 47 L. ed. 128; affirming 106 Fed. 653.

10 Tate v. Brinser, 226 Fed. 878. 11 Ibid.

ing affirmative relief was held to be a consent to the jurisdiction of the court of the United States in a plenary suit by the trustee. But see Re Gill, C. C. A., 190 Fed. 726, holding that a plea of set-off seeking no affirmative relief was an adverse claim and not a consent to the jurisdiction of the referee in a summary proceeding.

17 Re Plymouth Elevator Co., 191 Fed. 633, the surrender of property for sale without objection; Re Trayna & Cohen, C. C. A., 195 Fed.

12 Fitch v. Richardson, C. C. A., 486, attendance or representation at 147 Fed. 196.

13 Fitch v. Richardson, C. C. A., 147 Fed. 196.

14 Re Geller, 216 Fed. 558.

15 Blair v. Brailey, 221 Fed. 1. 16 McEldowney v. Card, 193 Fed. 475, where a plea of set-off claim

a sale without objection. Re Dialogue, 241 Fed. 290.

18 Re Emrich, 101 Fed. 231. 19 Re Elletson Co., 174 Fed. 859; Re Banzai Mfg. Co., C. C. A., 183 Fed. 298; Re Jackson Brick & Tile Co., 189 Fed. 636; Re Lipman, 201

or referee without raising the jurisdictional objection,20 by his invoking the affirmative action of the court, by an application for a receiver,21 or for an injunction,22 or otherwise, 23 by his acceptance of the benefit of an order of the court,24 and by a waiver in the Circuit Court of Appeals of the objection, although raised in the District Court.25 Leave to amend an answer by pleading an objection to the jurisdiction may be denied.26 It is too late to raise an objection to the jurisdiction for the first time upon appeal.27

Consent may give the District Court jurisdiction of a bill of interpleader against the trustee in bankruptcy and another claimant of a fund in the possession of the complainant.28

But it has been held that consent cannot give to the Referee jurisdiction of a suit to enforce specific performance of a contract between the bankrupt and a stranger to the proceedings.29 Nor to the court jurisdiction of an application after the confirmation of a sale and payment of the price to compel the trustee to execute a deed to an assignee of the purchaser.30

Fed. 169; Nisbet v. Federal Title & Trust Co., 229 Fed. 644; Re Trayna & Cohen, C. C. A., 195 Fed. 486, the abandonment of the application after it had been referred and before the taking of testimony upon the same was held not to be a withdrawal of the consent. See Re Traunstein, 225 Fed. 317.

20 Re Steuer, 104 Fed. 976; Chauncey v. Dyke Bros., C. C. A., 119 Fed. 1; Re Howard Laundry Co., C. C. A., 203 Fed. 445; T. E. Wells & Co. v. Sharp, C. C. A., 208 Fed. 393; Re Hopkins," C. C. A.,. 229 Fed. 378; Re Newfoundland Syndicate, C. C. A., 231 Fed. 917; Re Valecia Condensed Milk Co., 233 Fed. 173; Aleo Film Corp. v. Alco Film Service, C. C. A. 234 Fed. 55; Durand v. Brown. 236 Fed. 609; Re Drag, 254 Fed. 474. It has been held that this waived objections to the jurisdiction of the court of bankruptcy, but not the

objection that the matter cannot properly be determined upon summary proceedings and should be the subject of a plenary suit. Sinsheimer v. Simonson, C. C. A., 107 Fed. 898. See Re Raphael, C. C. A., 192 Fed. 874.

21 Re Durham, 114 Fed. 750; Re Hadden Rodee Co., 135 Fed. 886. 22 Ibid.

23 Re Porterfield, 138 Fed. 192; Re Platteville Foundry & Machine Co., 147 Fed. 828.

24 Re Noel, 137 Fed. 694.

25 Hatch v. Curtin, C. C. A., 154. Fed. 791.

26 Knapp & Spencer Co. v. Drew, C. C. A., 160 Fed. 413.

27 Boonville Nat. Bank v. Blakey, C. C. A., 107 Fed. 891.

28 Re Blake, C. C. A., 150 Fed.. 279.

29 Re Ballou, 215 Fed. 810. 30 Henrie v. Henderson, C. C. A., 145 Fed. 316.

t

§ 610. Jurisdiction of courts of bankruptcy over plenary suits. By the Bankruptcy Act: "The United States circuit courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants."1 "Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recovery of property under section sixty, subdivision b; section sixty-seven, subdivision e; and section seventy, subdivision e." This gives the District courts jurisdiction, concurrent with the State courts, of all suits at common law or in equity irrespective of the citizenship of the parties or of the bankrupt, and of the amount involved, which are brought to set aside a preference or to recover the property thereby conveyed or its value,5 of suits to set aside.

§ 610. 136 St. at L. 544, § 23a. 2 Before the enactment of the Judicial Code, which abolished the circuit courts where the bankrupt might have sued the defendant in a Circuit Court of the United States, the trustee might do so, although his citizenship was the same as that of the defendant. "Citizenship of the trustee is wholly immaterial to the jurisdiction of such a case." Bush v. Elliot, 202 U. S. 477, 484, 50 L. ed. 1114, 1117, 26 Sup. Ct. 668. See Spencer v. Duplan Silk Co., 191 U. S. 526, 48 L. ed. 287, 24 Sup. Ct. 174; Mayer v. Cohrs, 188 Fed. 443. It was held that the jurisdiction of a Circuit Court of the United States over a suit by a creditor of the bankrupt, to recover property fraudulently transferred, was not affected by the bankruptcy

transfers or encumbrances of the bankrupt's property, made within four months prior to the filing of the petition with the intent to hinder, delay or defraud his creditors, and all other conveyances or encumbrances, made by him within such four months while insolvent, which are null and void as against his creditors by the laws of the State, territory or district where the property is situated; of suits to set aside any transfer of the bankrupt's property, which any creditor of the bankrupt might have avoided, and to recover the property so transferred or its value from the transferee, irrespective of the date of such conveyance. Such suits may be brought in the district where