Ex parte Faxon

D. Massachusetts

Ex parte Faxon

8 F. Cas. 1109, 1 Low. 404

CourtDistrict Court, D. Massachusetts

DecidedJuly 1, 1869

DocketCase No. 4,704

StatusPublished

Cited by2 cases

This text of 8 F. Cas. 1109 (Ex parte Faxon) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte Faxon, 8 F. Cas. 1109, 1 Low. 404 (D. Mass. 1869).

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Opinion

LOWELL, District Judge.

An assignee in bankruptcy, unless restrained by the terms of the lease itself, may adopt or reject a [1110]*1110term, as he finds most beneficial for the creditors, .and may take a reasonable time to decide the question. If he takes the lease he makes himself liable, on behalf of the estate, for the rent, including at least that of the current quarter, and this; he must consider in determining whether to adopt the lease. The petitioners would have done more wisely, perhaps, to insist on this at the time, but I see no ground for saying they have waived any of their rights. In theory of law, the assignees have been in possession ever since the petition was filed, and not only from the date of the adjudication, which is merely a finding that the petition is well founded. If the quarter-day had come round pending the petition, the bankrupt would have been authorized, if he found it necessary for the. best interests of his creditors, to pay the rent in order to save an ejectment. I have more than once permitted this to be done. And the assignees, by the course they have taken, affirm this to be a case in which such a course was prudent and proper.

The only reported case which I have seen is very short, and gives no reasons or arguments, but the decision agrees with my opinion. There , the assignees were required to pay rent from the date of the petition. In re Merrifield [Case No. 9,465]. I do not know that any question was raised in that case, to distinguish the date of the petition from that of the adjudication; but if an as-signee is to pay only for his own occupancy, he must be charged from the date of the assignment. There is no argument which will make him liable from the adjudication that does not apply to the date of the petition, which is the true beginning of the proceedings, and the controlling date in all these matters. Petition granted.

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LOWELL, District Judge.

An assignee in bankruptcy, unless restrained by the terms of the lease itself, may adopt or reject a [1110]*1110term, as he finds most beneficial for the creditors, .and may take a reasonable time to decide the question. If he takes the lease he makes himself liable, on behalf of the estate, for the rent, including at least that of the current quarter, and this; he must consider in determining whether to adopt the lease. The petitioners would have done more wisely, perhaps, to insist on this at the time, but I see no ground for saying they have waived any of their rights. In theory of law, the assignees have been in possession ever since the petition was filed, and not only from the date of the adjudication, which is merely a finding that the petition is well founded. If the quarter-day had come round pending the petition, the bankrupt would have been authorized, if he found it necessary for the. best interests of his creditors, to pay the rent in order to save an ejectment. I have more than once permitted this to be done. And the assignees, by the course they have taken, affirm this to be a case in which such a course was prudent and proper.

The only reported case which I have seen is very short, and gives no reasons or arguments, but the decision agrees with my opinion. There , the assignees were required to pay rent from the date of the petition. In re Merrifield [Case No. 9,465]. I do not know that any question was raised in that case, to distinguish the date of the petition from that of the adjudication; but if an as-signee is to pay only for his own occupancy, he must be charged from the date of the assignment. There is no argument which will make him liable from the adjudication that does not apply to the date of the petition, which is the true beginning of the proceedings, and the controlling date in all these matters. Petition granted.

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Bluebook (online)

8 F. Cas. 1109, 1 Low. 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-faxon-mad-1869.

Opinion

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