· I," '
SECURITY CO. 'V. CHRISTY
(Olrcnit Oourt, S. D. Iowa,
·December 12, 1887.)
Ka1ftrm,an & Guernsey, for complainant. Phillip's & Day, for defenqants.
Bill for Foreplosure of Mortgage.
SHffi.AS, J. 'rhe bill in this cause was filed for the purpose of foreclosing a mortgageexecuted by William Christy to William Bolles to secure the payment of the sum of $4,000, payable November 1, 1884. In 1881, after the execution of the mortgage, Christy sold the land to one Couch, who is made a defendant. At different times payments of amOlmts sufficient in the aggregate to discharge the m,ortgagedebt were made by Christy &; Couch to H. R. Creighton, of Des Moines; the same being made before the date of the maturityof the loan. The conclusions reached in the case of SeCUl'ity Co. v. Richardson, ante. 16. are decisive of this cause. The ,Security Company does not claim to be the beneficial owner of the note and mortgage. It is merely a trustee for William Bolles. ' The evidence shows. as, is held in the Richardson Case, that Bolles had constituted H. R. Creighton his agent in Iowa. with authority to collect the amounts due him and to receive payment thereon before. as well as after. maturity. The payments jllade to Creighton were therefore, in effect. made to Bolles, and hence. when ,this suit was brought. there was nothing due complainant or William Bolles. Decree must therefore be fOl' dismissal of bill on the merits. at cost of complainant!
(Oircuit Oourt, N.
fllz'noia. December 20,1887.)
LIMITATION OFACTIONS-BANKRUPTCY-SUSPENSION OF RIGHT OF ACTION.
Defendants were adjudged bankrupts in 1874, and plaintiffs proved their claims against them. A discharge was denied defendants in 1882. To an action brought by plaintiffs in 1887 to enforce their claims, defendants pleaded the limitation of 10 years. Rev. St.' Ill. c. 83, 23, provides that, when an action is stayed by statutory prohibition, such time is not part of the time limited for the commencement of actions, and. Rev. St. U. S. 5105, prohibits a creditor who has proved his claim to maintain suit pending the proceedings in bankruptcy, and provides that such ,creditor shall not be held. to have waived his right .of action "where a discharge has been refused, or the bankruptcy proceedings determined without .a discharge." Held. that plaintiffs were entitled to maintain their action against defendants.
L: H. BOttteU;for plaintiffs. Moses '& Newman', for defendants.
BLODGETT, J. This is a demurrer to plaintiffs' second replication to defendants'third plea. ·TM third plea is that the causes of action, set out in the second, third, and ninth counts of the declaration did not ao-
IIALL V. GREF..NBAUM.
erue within 10 years before the commEmcement of this suit; and the replication in question to avoid this plea alleges, in substance, that the defendants were,on July 7, 1874, adjudged bankrupts by the United States district court of this district; that plaintiffs proved their said debts against the estate of the defendants in such bankruptcy proceedings on the twentieth day of August, 1874, and that, from that time until the twentieth day of May, 1882, when said district court refused to grant the defendants a discharge, the plaintiffs were prohibited from bringing suit on the causes of action in question; and excluding this period of time when plaintiffs were so prohibited by law from maintaining any . suit onthese claims, the said causes of action did accrue to the plaintiff within 10 years. . Section 23, c. 83, Rev. St. Ill., which is the limitation act ofthe state of Illinois, provides that when the commencement of an action is stayed by injuIlction:or order of a judge or court, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement ofthe actions. The question presented, then, is, were the plaintiffs prohibited by the bankrupt law ftombringing suit against the defendants upon these causes of action pending the defendants' bankruptcy proceedings, and until their right to a from their debts by said proceedings was determined? Section 5105 ofthe Revised Statutes of the United States, (title "Bankruptcy,") as amended by the seventh section of the act of June 22,1874, (18 St.: 179·,) reads as follows: uNo creditor proving his debt or claim shall be allowed to main.tain any suit at law or iIl eqUity therefor against the bankrupt, but shall bedee01ed to have waived all right of action against them; and all proceedings already commenced, or unsatisfied jUdgments already obtained thereon against the. baI1krupt,shall be'deemed to be discharged and surrendered thereby. a creditor prOVing his debt or claim shall not be. held to have waived his rig)lt of action or suit against the bankrupt, where a discharge has been refused. or the proceedings been determined without a discharge." .. . I do not :find that the express question raised by this demurrer has ever been passed upou by the supreme court, but it seems to me language could hardly be plainer or more definite than this as the section now stands ari1ended. The amendment of 1874 consisted in·.adding to the original section the last sentence, commencing with the word "but," after the word "thereby;" and whatever may have been the construction given by the judges to the original section 21 of the bankrupt law of which section 5105 is a part, I think there can be no doubt that congress intended to make it clear beyond question that a creditor who had proved his claim against the bankrupt's estate was not precluded from maintaining an action against the bankrupt on that debt, or the unsatisfied portion of it, if the bankrupt should be denied a discharge, or if the proceedings in bankruptcy should be determined without granting a discharge. Counsel for the defendants rely, in support of their demurrer, upon Boynton v. BaU, 121 U. S. 457, 7 Sup. Ct. Rep. 981, a careful reading
of that case shows that the decision turns wholly upon the construction to be given section 5106 of the Revised Statutes, instead of section 5105, and, to my mind, it does not seem to touch the question hare under consideration. Taken as it now stands, section 5105 clearly prohibits a creditor who has proved his debt against an estate in bankruptcy from maintaining a suit at law or in equity, on such cause of action pending the proceedings in bankruptcy , and, if a discharge is refused, or the proceedings· in bankruptcy determined without a discharge, the creditor. is remitted to his right of action against the bankrupt. It is urged that the bankrupt merely has the privilege of insisting ,lpon a stay of proceedings at law pending his bankruptcy proceedings;' md that may be true in regard to cases arising under the provisIons of Jection 5106, but clearly such was not the intention of congress in regard to cases coming within the provisions of section 5105, as now amended. Where a creditor has proved his debt, and while the bankruptcy proceed· ings are pending, awaiting the action of the court upon the question of the right of the bankrupt to a discharge, it was evidently the policy of the law to protect the bankrupt from harassing suits by creditors who had made themselves parties to the bankruptcy proceedings by coming into . the bankrupt court and proving their claims; but if those claims were not satisfied out of the bankrupt's estate, and the bankruptcy proceed. ings terminated without the issue of a discharge, or a discharge was re. fused to the bankrupt, then those creditors could afterwards proceed against the bankrupt for the collection of their demands. The language of the bankrupt law is: "No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity thereforagainst the bankrupt," etc. This is clearly a peremptory and positive prohibition against the maintenance of a suit agail)st a. bankrupt by a creditor who has proved his debt; and until that prohibition is at an end by the denial of the discharge, or the determination of the proceedings, the creditor, within the meaning of section 23 of the Illinois statute of limitations, may be said to be prevented by statutory prohibition from the commencement of an action. Hence I am of the opinion that the demurrer to the replication is not well taken, and that the replication furnishes a sufficient answer to the defense set up in the plea. Demurrer to the second replication to the defendants third plea over· .ruled.
IN RE BURKHARD:r.
(District Oourt, E. D. Wisconsin. October 27, 1887.)
1. CRIMINAL PRACTICE-REMOVAL FROM: DISTRICT-REV. § 1014. Where a removal is sought, under section 1014, Rev. St., of an accused per· son from the district where he is found to the district where the alleged of· fense was committed. there should be a preliminary examination to establish the identity of the prisoner, and his probable guilt, before a warrant for his removal is issued by the judge. 2. SAME. In such a case, the judge is not required to decide absolutely the question of guilt or innocence; nor is he authorized to discharge the accused if there be some doubt of guilt. S. SAME. If identity is shown, and a case of probable guilt made, it is incumbent upon the judge to issue a warrant for the removal of the prisoner to the proper dis· trict,. where a jury may determine, upon all the evidence, the question of guilt or innocence.
(Syllabus by the Court.)
In the Matter of the Application for the removal of Richard Burkhardt
to the district of Minnesota on a criminal charge.
W. A. Walker, for the United States. W. a. WiUiarns, for accused.
DYER, J. On the fifteenth day of October the attorney for the United States presented to a uommissioner in this district a complaint, in writing, charging that on the fifth day of March, 1887, Richard Burkhardt wrongfully and unlawfully took from the post-office at Wells, in the state of Minnesota, a certain letter directed to one August Biederman, which had' been theretofore deposited in the post-office at Oshkosh, Wisconsin, addressed to said Biederman, and which contained a draft of the value of $100; and that the accused, having obtained possession of the letter, embezzled the same and its contents. A warrant was thereupon issued for the arrest of Burkhardt, and, being found in this district, he was arrested and brought before the commissioner to answer the charge against him. Before these proceedings were instituted, a warrant had been issued by a United States commissioner in the district of Minnesota for the arrest of the accused, but he was not found in that district. Upon being brought before the examining officer here, a preliminaryexamination was had, such as is usual in criminal cases; and, upon being satisfied of the identity of the prisoner, and of his having committed the offense charged, the commissioner held him to bail, and, in default of bail, the accused is in the custody of the marshal. Application is now made by the district attorney, under section 1014, Rev. St., for a warrant for the removal of the prisoner to Minnesota, where he may be· tried for the offense with which he is charged. The course of procedure pursued by the district attorney, preliminary to the present application, was correct. Section 1014 provides that "for any crime or offense against the United States, the offender may, by any