on his. part cannot be reviewed directly or indirectly. The only doubt, as it seems to me, that can arise upon the language of the supreme court in the case of Schle8inger is whether,,in the defense of an action brought to :recover duties after delivery of ·the goods to the importer, there can be .any review of the collector's decision, even with protest and appeal, if the collector has acted fairly,and not in excess.of his authority. No express right of review in such cases is given by statute. If such a right exists, it is by implication derived from tb,e. qualification attached by section 2981 to the conclusiveness of the collector's decision. Ordinarily on general principles, would be final; but the express ification of its finalty, if due protest .and appeal are taken, imports, I think, a right in that case to resist the liquidation by way of defense. Thus due protest and appeal are the foundation of any right of review; in all cases, where. the collectorin his proceedings directly. has not exceeded the limits of his, authority, and has acted,jn good faith. Hilton v. Merritt, 110 .97, 3 'Sup. Ct. Rep. 548. IntheopinioQS of'the supreme court in .the cases·of Oelbermnmn Rnd .Schle8inger thl'l protest and appeal are :repeatedly referred to as .conditions of the right to raise any suchobjeetions. 123 U. S. 364,367,8 Su:p. Ct.;Rep.151; Rep. 442. 120 U. 8.113, 7 If, on the other hand, it is intended to defend on the ground oHraud, of ,willful neglect of, a statutory. duty.,or of excess of s.ta authority, the answer must aver facts that show some of those dl:\fenses, which this answer does not ,aver.. The disqualifying facts if true, should have been brought to the collector's notice,· and proof of them offered; a.nd the latter factBshould have been pleaded as part of the defense. ,The general principle,s stated in the former,Qpinionas th,e grounds of the decision have been repeatedly applied since ill this cour,t in customs cases, Cu.s. v. Leng, 18 Fed-Rep. 15; U. S., v··McDaweU, 21 Fed. 28 Fed. Rep. 56; U. S·.v.Doherty, 27 Fed. Rep. .563; .0. S. v. Rep; 73,0;) and the sameprinciples,areQf frequent $pplication in cases of habeaa co:rpU&See Stevens v. Puller, l36 U. S. 468,478, 10 Sup. Ct. Rep. 911, and nUmerous cases there cited;,In1'. Vito Rv.Uo, 43 Fed. Rep. 62; 1'11.1'6 DWV,27 Fed. Rep. 678, 680. Dem.urrer sustained.
(District Court, D. South" CaroUna. April 11, 1891.)
Where a bankrupt, 10 mOnths before adJudication, had' a8sfgned a note to a truStee for·tbe.purpose of protecting.his brother fromlilllbiUty·8&'.his surety, the trustee holds the note the statute of cannot begin to in his favor ilritlt the liability secured has been Bati$1led. and'the other persons intereeted the, fUnd have ba4 notice of tlle fact.' .' , '.' ·
BIlIGINS TO RUN. ,., ". '
, IN BE THOMAS.
In 1865 the bankrupt, long before the' adjudication, executed II deed wholly in his own, handwriting reciting the fact that he had received from his mother-in-law $400 in casb and one female slave, which he had sold for iW,ooO] (presumably in Confederate money;) that he had invested the proceeds in certam securities, naming and describing them, which'he held in trust for:\1iswife and ohildren. The deed was not witnessed, although there was a spaoe for a witness' signature on the blank. An indorsement thereon, also iIi his handwriting, and without date, reoited that, hllvingoccasioD to use some of suoh seourities,for his own purposes, he had aupropriated them, and replaced them with the note in controversy. It further appeared that the alleged trust was secret; that the bankrupt had dealt with the subjectmatter of'the origiIlcal deed if it were his own property; and, after substituting for it the note in question, he had transferred the latter to a trustee, to protect his brother from liabUitr.. Held; that the trust so attempted to be created was null and vQid, al against oredltors.
-., Sum-LJi:q.u. SERVICES BY BANXRUPT, TO THE ESTATE.
," "A bankrupt is under no obligation 'to render services as an attorney in proceed, "ings.to realize his estate, and, if he does so, he is entitled to the payment of a fair , , cODlpenllation therefor out of 1;he funds so
Where an order of referenoeislllade on motion of one party in the absence oianalthough -rter notice, t4e,language used, qarefullyexoludes any determmation of tlle issues ,by the referee,the e:ffeot of his report will be merely advisory, ,spd the court will considel;' the caulle 118 presented on the pleadings and proof , . without,re1ereu,ce to the rellOrt so far as.it contains, the teetimony. 6. SETTING ASIDE DEED-MSIGNBE IN BAliKl\uPTCY. , An assignee in bankruptcy 'cannot iUlpeach a deec1 made by the bankrupt for the bllnefit of ,his wife and ohildren more thaj:l. six DlQntbll before adj udlcation .if ,the deed be voidable for 90ustructive fraud onlYi but if actual fraud be oharged n 'can be impeached by the aSSignee. ' ,',. ,
In B&:nkru:ptcy. ,,' ' ,' : ' E.&ir!e and Smith. for assignee. 1. P. K. Bryan, for defendant. '
SIMONTQN, i. The record and testimony in this case are voluminous, to as mlly be necessary to understand and so .much only will be the questions involved in it. WiUiam M. Thomas was adjudicated a on 3d February, has not yet bankrupt on his own btl/ID discharged. A. Blythe .was appointed ,his assignee in February, such 31st August, 1871. This case comes up in 1871, thiiJ way; ',William M. was the owner and holder of a sealed note of Mary Raymond, dated 25th Augllst, for $7,000, secured by a oia lot of land in Greenville, S. C. He began proceedingtil for foreclosure of the mortgage ill the court of equity for Greenville distnct, and obtained his decree 22d January, 1868.. The cause was stubbornly contested. During its progress Mary Raymond died intestate, and the proceedings were revived and continued against her only child and heir, H. H. Raymond, finally resulting in a sale, of the property, application of the proceeds to the debt,and a balance unpaid oU3,421.04. The ,creditors of Mary Raymond then joined in a suit iq Charleston county against her estate, under the name of Warren v. Raymond, to which suit yv. M. was a party/and acted asbis own attorney. The result of this suit was that this claim was established in the sum of $ - - During the contest between Thomas.and Raymonds in Greenville, court of C()mmon pleas,-;-the successor of the court of equity,,-passed tloD order, stating theban]ifuptcy of Th,omas, and allqwing his assignee v,45F.no.11-50'
28tH 1871. The assignee,however, did not interferev.ntil29th April, ;1;&76, when he filed in officefof Charleston county, to which pt of judgment sent in ,Thomas v. from Greenthe a. part of Ville,cQunty, a formal notice'Wat he of Warren v. Raymond:,'()Dthe motion ,cre<litQrs cotiteilting the Thomas claimj ,Thomas; the nunol\ ch,)ldren of W)lbamM.Th()mllS. i,jI'heansw61'$Qf Peter Thomas and S. Thomas, Jr., are simply ,protests against the proceeding making theWpt1lrties., any chiim. Tpellns'Yer Of the 'infants by guardian ad Zitends ,the formal William M. Thomas is the well as'thr litem ofijle infants,,;: ,t'he"assi'gnee claimed: the fund. The ,whom the a.U1Ountt"payableuon the ,thomas judgmeut belonged. , Apparently that cotlt't"seellled ro'ihihk that the only (Jontroverily Wii8'between Will. . it
to continue thl'l actiooin
question could be determined. Warren v. Ra,ymond, 19 S. C. 605. The petition or bill before us sets out a history of this RaYffiopd note"and claims that the ba,',,nk,',,f"RPt ! . inistered by the assignee. The answer M. he owned the Raymond note when he went mto bankruptcy.' that he had, 10" assign.ed ,it to S.· Jr., for a vltlUlib1e conSIderatIon; and he ... Tliornas, Jr.,.tlor hiB' C<rli'i'qrie h'ayJ iN;erwaiveq;anycIai'm to to the a'tttlritiotl'df 'the 'court of liMitations in sections 5129 IRevl.St. jcharres' Earle, both and ha\"e't'p::own 'of It, 187'1; sliystlis,t pfeMtorg of bis' c1alPlS that1hi, event 'he and .that be paId rover 'to S. 'l,'oQtn&S, Jr., t9b& dealt wIth 10 accordance 'with· ' 'The cause came· to' ·s' nearing ·1)&£ore Junge BIl:YA.N, re<'lentI,)" Jdi!trict jtidglil;He 'signed' ali; ord<ll: 'on 'motion of Mitchen & proof'ofiiotlce to referring 81,1es arisifi*Ju'pori to regish3T, With ta:l(e', testim'ony to by 'the parties, aIidrePQrt 'his fact upon :Said issues. seabrook has made his report in fa\79r ofthe,petitioner, th:e'asslgnee, ,&i:Blythe. The ant h!l.sifiTetl"very ril'a,byJexceptions to this repdrt/some oftheni'goibglo the of port;dtOersto on Its well 19 ,settie the force and iElffect of'the:brtler of refererid'ein this'casei.: Ii Rdoes riot :refer the case(tb Mr.:Seabrook t6hearanfddet:ide of'lawor 6ft'lict in there liriything,irithe df the authoti:iing the cotisU'Uctiori' that hem' t6 determinthirii'isstie. "The court could
to, . ·
IN RE THOMAS.
Haggettv.Welsh,lSim.134j Dowsev. Coxe,3Bing. 20j Priory. Hembrow, 8 Mees. &W. 873j Newcomb v. Wood. 97 V.S. 581. But this the consent of all the parties, as it would, in effect, withdraw the case, and submit. the controversy to a trfbunal oLthl'lir own selection·. But the court "cannot, of its own motion, or upon the request of one party only, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers." Kimberly v. Arms, 129 U. S.525, 9 Sup. Ct. Rep. 355. The learned judge who signed the order of reference in this case evidently had this in mind. Ile made the order on motion of one party, and in the absence of the other, although after notice. He carefully used language excluding any determination by his referee,-"The special masteris instructed to take the teslimony, and report his conclusions of law and fact." The information which· is communicated by his findings in such a case upon the evidence presented to him is merely advisory to the court, which it may act upon. or disregard in whole or in part, according to its oWPJjudgment as to the weight of evidence. Kimberly v. Amrs, 8UPTO:; quotinll; and affirming Bqsey v. Gallagher, 20 Wall. 670; Quinby v. Conlan, 104U. S. 420. The court considers the cause. as presented on the pleadings and proof without reference to the report. except so far as it testimony. It accords to the findings .of the report all the weight due to the careful and well-considered opinion of an able and impartial Jawyer, whose qualifications fully justify his .selection b'y the judge. ."his disposes of all preliminary questions made by the defendant to the validity of the order of reference and to the character of the The first because of the want of a replication report too late.. Jili8cher v. Wilson, 16 Blatchf. 220; Jone8 to the v. Brittan, 1 Woods, 667. . An. examination of the pleadings, confining ourselve$ to them, discloses this: The that the fund· in arising from a <)Ontract with lhe bankrupt himself, is a part of the bankrupt estate, to be .administered in! bankruptcy. .He does not ;i'ollow the usual fQJr.tn and ora in equity; but he inef\'ectal1udes to and attemptij.to c(lrtainqElfenses which the defendant may set up. In the answer,the defendant meets the averment that the fund is the property of .the bankrupt estate, and while by implication he admits that at one the note from which it arose was his property, he denies any 'ownership ,at the date of his for that 10 months anterior !lame had been assigned to S. Thomas,J,r., trustee, for. a valH;e denies that S. Thomas,.J.r.· , orhis,ce8tuis que t1"l.t8tmt hl14 iuany way waived their.claim to this then pleads tile statu1.Q q£limitations peculiar 5057, 5129, .;R.ev. St.,aQd' chnrges actual potice of this assignment,1p f;. Jr., .J1pon: the PIlrt. of of bis· attorney, Mr. Ear.le. . He sets up 1)1' the waYJI.:qlaim on the ;runp for his, ow,n services as attorney inse,Cutillg it;aD!l,Qoncludes with: a' prayer that the fund be paid over to S. Jr.,. Vllstee, tope dealt wit\1: by .him in accordance with his Xbil!l,:thep, is Wllsth.e. note of MlI-ry, Raymond , the
source of the, fund in the registry of this court, assigned to S. Thomas, Jr., trustee, 10 montbs before the adjudicatio'nof defendant as a bankrupt? If so, was the assignment of such a character as to prevent the fund, or any part of it, from ever becoming parcel of the bankrupt estate? On 20th April. 1870, William M. Thomas signed and delivered to S. Thomas, Jr., a paper in these words: "1 hereby assign to Mr. S. Thomas. Jr., a note of $7,000, dated - - . 1863, made by Mrs. Mary H.aymond to me, payable six months after peace, or sooner, at myoption. ThiS is to secure Peter Thomas in a note made by him to the state of South Carolina. upon which I was security, and the proceeds of which, to·wit, property at the state works in Greenville, South Carolina, was taken by me for the debts of Barksdale, Perry & Co., and which note is n0'Y out, and unpaid." Tneoriginal of this paper has been lost or mislaid. Its loss and its contents were proved to the satisfaction of the register. We 'assume that the paper 'was made. The evidence shows that both the assignee and Mr. Earle knew that the legal title to this Raymond note was in S. rrhomas,;Jr.,.and that they recognized the fact in December, 1872. There can he no doubt that the legal title was inS. Thomas, and that he held it for the sole purpose of protecting Peter Thomas from all bility upon the note to ,the state, referred to in the assignment. It was a collp,teral, and whenit had served its purpose its proceeds, OT so much thereoI as were not needed to protect Peter Thomas, reverted to William M. Tholl111s,or to such person as represented and controlled his interest therein. So when William' M. Thomas made the assignment toS. - Tho'mas he had an interest still remaining in him, and this interest became and was a part of his estate when he went into' 'bankruptcy. Section 5046, Re\T. St. The testimony proves beyond' aU question that this note to the state on which Peter Thomas was liablehasbeensatisfied and discharged 'bY William M. Thomas. Mr. Seabrook so finds, and William M. Thomas himself has under oath repeatedly asserted it; neither Peter Thomas. norS. Thomas, Jr. denying it. Precisely when this satisfaction was made is disputed. William M:ThoIIlas says that it was, effected after' he was adjudicated a bankrupt. The special master finds that it was done before that time. Whether it occurred before or after that event, all interest of S. Thomas, Jr., in the note was satisfied thereby. If the satisfaction was accomplished by William M; Thomas after his adjudication, and by money of hisoWD, while he would to'Teimbursement fot' such moneys,withpl'oper intet\est, out of the proceeds of the note, the rest of the proceeds would revert to his assignee, unless the assignee had lost his right through laches. The defentlailt denies that the fund reverted to the assignee, and sets up the statute of limitations. The position is this: The assignment to S. ThomasjiTr., was made April 20, 1870. Both the assignee and 'his &1:'torney had notice of it, and recognized it in December; 1872. ,Yet the made no claim until 20th April, 1876. 'rhereisnodoubt that S.rrhomas,Jr.,had a qualifiedpropertyin the note, andthelegal title, until the purposes of theassigntnent tflhiIIl and thaHt.reillll.ined in
IN BE THOMAS.
were fulfilled. if the transfer of the whole note made him trustee for all persons interested in it, then of course the statute could not run in his favor, unless he set up in himself a title adverse to them, and they had notice. Of this there is no evidence whatever. If, however, he held as trustee only, for the special purpose of protecting Peter Thomas, he was entitlt'd to hold until he was satisfied that this purpose was effected, and the statute would run against subsequent claimants upon the fund when they had notice that he had ceased to hold for that purpose, or that he claimed the proceeds of the note in another right. As we have seen, the time when the liability to the state was discharged does not appear. But S. Thomas, Jr., in his testimony before Referee T. M. Hanckelin 1875, declared that he held the 'note for the protection of Peter Thomas, and that Peter Thomas, during a visit to Charleston a few months before, 'had stated to him thatthe Allen note (the note held by the state} was still out and unpaid. In fact, safar as this voluminous mass of testimony discloses, no one butW. M. Thomasktlew how or when he had discharged the liability of Peter Thomas and of himself to the state. Mr. Stephen Thomas, Jr., evidently did n'ot, nor Peter Thomasjand, until they did, S. Thomas, Jr., was bou.:nd to hold the legal title ill the Raymond note, and dthe· fact that he so held it was not adverse to the rights of subsequent claimants, and gave no currency to the statute. If, therefore, we confine ourselves to the issues made in the pleadings, we., must conclude that .the qualified property of Stephen Thomas, Jr., in the Ra:ymond note and its proceeds has ended with the liability of Peter Thomas, and that the right to these proceeds now vests in the , Rev. St. § 5046. In the e)j;ceptiol1 of the defendant No. 11 is a statement that this Raymond note had been orally assigned absolutely by W. M. Thomas to Peter Thomas about lst June, 1870, to extinguish his claim against Perry, Barksdale & Co. The special master reports no finding on this. A careful examination of the evidenoe satisfies me that no such assignment was made, and that the memory of W. M. Thomas and Peter 'Thomas, who speak of it, is at fault; The existence of such an assignment, is incompatible with the ,averments of the answer in this case and its prayer; It cannot he reoonciled with the answers of W. M.Thomas himself and his evidence in the several eases which·are introduced in testimony in this case. It is inconsistent with the instructions given to Perry & Perry, that S. Thomas, Jr., owned the Raymond note, in proof of which the assignment to him was sent to them. Hsuch an absolute .assignment toPetElr Thomas had been made it would have extinguished the title of. S. Thomas, Jr. It was certainly unknown to S. Thomas, .Jr., in 1875,alld to Peter Thomas, for Mr. S. Thomas,Jr., at that time testified that,he held this note to secure and protect Peter Thomas, and t\1at Peter had instructed him a few months before to do so, as the Allen note was still out. No man CaD stand higher than Mr. S. Thomas, Jr.. The whole theory upon which W. M. Thomas carried on Ilis case,in the,R(tymond matter was that S. Thomas, Jr., held' the note for the protection of Peter Thom.asjtbat Peter had heen fully protected,
and tP:at,the proceeds oUhe,note belonged either to his children or to hitnself.,Intleed, up to his testimony in the case of Nesbit, guardian in 1876, W. M, Thomas believaLthat he had so provided in the written assignmentto S; Thomas, Jr., and that, his attention having been called to tbe matter by Gen·. De Saus$ure, "he hunted up his papers, and to his surprise found, that there was no such reversionary clause." There was no sucb consideration' for such parol assignment. Peter Thomas had purchased property from the state :oncredit of a note with W. M. Thomas as security. The latter took property for Perry, Barksdale & Co., of which firm' he was a member. He assumed the debt.with Peter's assent"alid to protect him he assigned the Raymond note to S.Thomas. ·Jr. This was ample. But if we suppose that such an assignment was in fact made, it must have been made to protect Peter Thomas ,from his liability to the state, or it must have been a gift. If the former. it was ineftect a pledge or mortgage, (Hattier v. Etinaud, 2 Desaus. Eq. 570,) and when Feter was free from liability the property reverted; If it was a gift, it was made by a person largely indebted, in secret; the donor retaining :possession and control of. the property, not only treating it as his own, but averring and claiming that it was his own. It is void, therefore, ,under statute 13 Eliz. (Twyne's Case, 1 Smith, Lead. Cas. SS.): . There is another question not:an issue in the pleadings which, however, has appeared in thetestimony,-a claim for this fund on the part of W. M. Thomas as trustee for his wife and children. No exception was taken at the time to the introduction of this evidence, nor was any exception taken to the finding of the referee thereon., The counsel for thtl 8ssigneenowdesires to file an exception to this finding, upon the ground that it was not, ali issue in the pleadings, 'and the order of reference embraced only .such issues lis the pleadings disclosed. Apart from the fact that no exception has been taken until thehearinK, (see Gaines v. New Orlean8, 1 Woods, 104,) itisclear that the real purpose of the state court in, sending ,the fund here to be adjudicated in the bankru pt court was to ascertain the right of thel1ssignee thereto. That court could adjudicate every question between the other parties; could, indeed, have adjudicated the/question as between the assignee andbther parties. But a high sense of'oourtesy, and a very proper regard for the comity between the courts, induced the venerable magistrate who signed the order to send into this jurisdiction the decision of questiofis with which he supposed itwiis.more familiar ,than the state courts are. To appropriate this fund to the bankrupt estate we must hold that the assignee is entitled to it as against everyone else; and when it appears in the examinationupon the isSues in the pleadings thatothel's,andthey infants, have a reasonable show of claim to ,the tund, the court is bound to take notice ofandto inqu,ire into it. The· referee: has with greaitpropl'iety reported all the facts' connected :with, 'thisclairri. On the 27th March,18615, WilliamM. Thomas executed fa ,deed in his own hanitwritirig reciting that he had recei"edfrom ,his mother-in.o.law,Mrs. Thurston, .6400 in cash and 8- negro slaver named Mary; that lie' had invested the
I=". RE THOMAS.
$400 in another. slave, named Eliia, and had sold Mary for $0,000; that he had invested,the $0,000 in oertain private notes, fully SPot out; and that it had always been his intention and thatof his mother-in-law that the property should be free from his marital rights as property of his wife. He declares that he' holds the. same in trust for' his" said wife and her children, freel'from my debts or contracts, reserving to myself the power to collect. and invest the same or dispose of it as may be proper, for her benefit,as .her trustee, and I hereby relinquish all claim to the same ob my individual account." . The deed has a place for a witness; but is nofwitnessed.·· On the back ontiS this indorsement by William M; Thomas, w;ithouti date: "Having used some of the papers; I put in their place the following note of Mrs. Mary. :RaYnJond. upon wbich a deere., has been made in the court of district. clai;m on estate of J. Mj.Turpiu in ,commisr eqUity sionet'8, and on :Pi,ckett in same office." . As·the·first decree in the conriof equHy on the Raymond note bears -date 22d ,il"anuary, 1868, thisAndorsement must have been made alter that time..' How lorig after does,not appear.. This paper was never re. corded in any office, although, being a ,llettlement, it should have been recorded as a marriage v·. Bowman, Rich'. Cas. 185. This, as the law';then stOod; was in the office ofthe'13ecretary of, state .· and· of the register of mesue .conveyance OD' his · .6 St. at Largej S. 0.218. ,Notbeing void as to existing creditors and all ·parties iDot having actual notice of it, though good as the FO'IDkf v·. Woodward, Speer,' Eq. 238. It in evidence that William Thomas, with one Thomaei B. Thurston and others, were copartners in :trlHie in a ,firm of Barksdale, Perry & Co., and that on, 6th November, 1.866,' ,Thomas. purchased the. entire interest of Thurston in said firm, and at the same time entered intos. covenant with him to warrant and defend him of said firm, and that he should not 1?eliable for them'.' ,Perry,,<Barksdille & '00. were largely indebted. On 14th April, 187,0, one William Hugheaobtained judgment against them in Spartanburg :c0unty for $2,969;20;: sent transcript to Greenville county, and levied on .lands of ThUrston uuder execution .thereon. Theprooeeds ofBllle (I)f, these lalldswere applied to the judgment, and theremaindeJ.+'dua thereon was paid by AnnB. Thurston, to whom Hughes. assigned the.judgment. Both T.B.Thurston and Ann .B. ThurstoD'have proved their: claims: in this comti,which are in, tbis .record. They are still unsatisfied. ;Thedeclarationof trust is; therefore, void,' as' w.ellunderthe statute l3Elizabethas under the statute .law ofSouth Carolina, there not' being 8lilhadow,of.testimony that Thurston knew ofite ex:istence or ocmtents. It is contended that,"as thefieed is good ,against tbemaker,Thbmas, ,it is good as against hisallsignee,. especially as it 'was, bot made iu'fralid of the bankrupt act, or in contemplation of bankruptcy. No one bilt ,the creditor existing at thetinie.is able to impeach it. When one bona /ide transfers property intrust:foi: his wife RoW children, and the transfer ,is invalid simply from want bfupJ:'oper registration or from a. mistake as
to the extent of his means or of his indebtedness, thus presenting no element of fraud, the transfer, being good as against the maker, is good as against his assignee in bankruptcy. Warrenv. Moody, 122 U. S. 137, 7 Stip. Ct. Rep. 1063; Adams v. OoUier, .122 U. S. 389,7 Sup. Ct. Rep. 1208:. But where frand is charged, and the charge is well founded, the assigheecan impeach the deed. Allen v. MCl88ey, 17 Wall. 353; Platt v. Matthews, 10 Fed. Rep. 282; Pratt v.. Ourtis, 2 Low. 87,-this last case cited and approved in Warrenv. Moody, 8upra. Now, in this case fmud is charged by the plaintiff, and is denied by the defendant. The d.eed was made in secret, not even having a witness,although it calls for one on its face. The indorsement was equally secret, bearing also no William M.Thomas treated the subject-matter of the original deed as his own property. He gives that asa teason in his indorsement. He treats the Raymond note precisely as if it were his absolute property. He transfers it to one of his brothers td'protect another,inducing both to believe that it was good' security.: So the trust-deed was a secret, even to his own family; He made this assignment six, days after ment was entered against him as one of Barksdale, Perry & Co., in Spartanburg. NotwithstandinK the 'long and varied· litigation in the Rayrrwnd Case, its frequent appearance in the court of South Carolina and in the supreme court of the United States, and the interference ofthe .tary authorities with its enforcement, ·we see no mention whatever of it in this long record until in 1875, in the collateralsuit of Glover v. Blythe. As early as 20th July, 1871, in the suits in which he was the party plaintiff, and therefore interested in its prosecution, and Raymond a party defendant interested in its abatemerit and discOntinuance, an order was entered, presumably by his attorneys, permitting his assignee in bankruptcy to carry on the suit. Yet DO protest appears on the part of the trustee, or.any notice that this note, thus placed under control of the assignee in bankruptcy, was no part· of the bankrupt estate, but was really the property of his wife and children. Such secrecy on the part of the granoor,and the nse of the ,property settled as his own by the settler are two of the badges of fraud ,against the statute 13 Elizabeth in Twyne's Case,l Smith,Lead; Cas. 33. It was made when he was largely indebted for the firm of Perry, Barksdale & Co., not only for his own share of its liabilities,but for the sha-reofT B. Thurston, and was also indebted to other persons. This note and the other claims in the indorsement evidently, did not constitute an inconsiderable share of his estate. He was unable to meet his existing obligations for the debts of Perry I Barksdale & Co., and other debts were not paid, and never have been .paid. The indorsement by which the Raymond note was settled could not have been made sooner than the spring of 1868. In 1870 he felt . thathe must secure his brother f!;gainst debts for Perry, Barksdale & Co. A very few days. before that fie had suffered judgment for a debt of that firm, and 10 months thereafter. he went into bankruptcy, with assets from which thus far the assignee has realized nothing. The inducement stated in the deed is out of all proportion to the sum settled by the indorsement.· He got from his mother-in-law $400 and a woman slave.
IN BE AH KIT.
He invested the $400 in another slave, and sold the other for $6,000, evidently in Confederate money. For this he settles a claim which, scaled down, amounted to $3,265.62, and which, after the' land was sold and proceeds applied to it, left, with accrued interest, $3,229.53, a specialty debt against a perfectly solvent eatate. This attempt by the indorsement to settle the Raymond note to the trusts of the deed is null and void as to creditors. Nor is there any evidence of an adversze holding by the trustee, which cap give currency to the statute of limitations as against the assignee. Not only was there no notice of the trust until 1875, but when it was disclosed W. M. Thomas claimed the note as his own property. The bankrupt cannot plead the statute against his assignee. Mrs. Thomas has departed. this life. The children are not parties to this suit.· This is not necessary. Vetterleinv. Barnes, 124, U. S. 172, 8 Sup. Ct. Rep. 441; Avery v. Oleary, 132 U.S; 604, 10 Sup. Ct.Rep. 220. . William M. Thomas claims counsel fee for his services in securing the fund. He was not bound to render these services. He conducted the case of Thomas v. Raymond in the state court by his attorneys, Messrs. Perry & Perry, then by Messrs. Earle & Blythe, and when they went out i)f the case managed it himself. He was in all the litigation over the Raymond estate,-the record shows at least three cases. He is entitled to reimbursement for money expended and to compensation for services rendered in protecting the claim represented by the Raymond note. Let the case go back to Mr.Seabruok, who will inquire and report what services were rendered, and sums were e:xopended by William M. Thomas after the adjudication in bilnkruptcy in redeeming the pledge of the note of Mary Raymond and in. the suits of Thomas v. Raymond, v. R(lymond,and an other suits growing out of the contest between the mortgagees of 13:. H. Ra.ymond and the creditors of his mother, Mary H. R.uymond,and the vlilue of such services,. When these are ascertained, they will be paid out of the fund, and the remainder will be paid over to A.Blythe,,'assignee·
.1'11. re AH KIT.
(otrCW£t 001ll7't, N. D. Oa1J£jorn:fa. October 27, 1890.)
Col!lSTrrtlTIOIUL LAw-FOURTEENTH AMENDMENT.
City ordina,nce No. 2191 of San Francisco, making it a punishable offense to visit any gambling place located within certain specified limits,which designates what is known as the "Chinese quarter," applies to all alike, lli.nce white men as well as .Chinese live therein, and tbe prohibitlOnextends to "any person,"irrespective of race or color, 'and is not therefore within the language Of the fourteenth amend,
Petition for Writ of Habeas Ompua. Alfred Olarke, for petitioner.