INRE AH LEE.
whethAr under the' federal or state authority, withdraws the proptlrty frOlu the reach of the process of the other. Hagan v. Lewis, 10 Pet. 400; Brown v. Clark, 4 How. 4 ; Pulliam v. Ofioorne, 11 How. 471; Taylor v. Oaryl, 20 How. 583; Foz T. Hempjield R. 00. 2 Abb. U. S. 151; Jo!msofl,V. Billhop, 1 Woolw. 324; S. C. 8 Bank Reg. 533. Petition dismissed.
(District Court, D. Oregon. April 19, 1880.)
The national courts have jurisdiction to relieve any person from imprisonment under color of the authority of a state, without due process' of law, contrary to the amendment. S. DUE PROCESS OF LAw. A person imprisoned under a valid law, although there is error in the proceeding resulting in the commitment, is not imprisoned with· out due process of law, contrary to the fourteenth amendment. 8. DE F A.CTO OFFICER. A person in office by color of right is an officer de facto, and hil acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder.
" SAME. The constitution of Oregon authorizes the legislature, when the population of the state equals 200,000, to provide by election for separate judges of the supreme and circuit courts. On October 17, 1878, the legislature passed an act providing for the electIOn of such judges at the general election in June, 1880, and also that the governor should appoint such judges in the meantime, which was done. Held, that admitting such act was unconstitutional, because the population of the state was less than 200,000, and that the appointments by the governor were therefore invalid, and also because the constitution only authorized the selection of such judges by election, still the persons so appointed under the act, and performing the duties of the judges of said courts, were judges defacto, and a person imprisoned under a judgment given in one of them, convicting him of a crime, is not thereby deprived of his liberty without due process of law, contrary to the fourteenth amendment.
Rufus Mallory and John W. Whalley, for petitioner. DEADY, D. J. This is a petition for a writ of habeas corpus directed to the sheriff of this county commanding him to produce the 'body of the petitioner, Ah Lee, before this court, together with the cause of his detention. Substantially the petition states that the petitioner is a citizen of the empire of China; that he has been indicted and convicted of the crime of murder in the circuit court for the county of Multnomah and state of Oregon, alleged to have been committed in the killing of one Chung Su Ging about October 3, 1878, in a joss house in this city, the judgment of which court was afterwards affirmed by the supreme court of the state; that afterwards said circuit court, in pursuance of a mandate from said supreme court, appointed April 20, 1880, as the day on which the judgment aforesaid should be executed by hanging the petitioner; that neither the person who acted as judge of said circuit court during the pendency of said proceeding, nor those who acted as judges of said supreme court during the same, were ever appointed or elected judges of said courts, or any of them, in pursuance of any law or authority of the state of Oregon; that neither they, nor any of them, had any power or authority to act as such judges during the pendency of said proceeding, or at all, and that therefore said proceeding and the judgment therein were carried on and had without due process of law, within the meaning of article 14 of the amendments of the constitution of the United States, and are therefore void and of no effAct; that the sheriff of said county now unlawfully restrains the petitioner of his liberty in pursuance of said void and pretended judgment, and also threatens and intends to deprive him of his life, as therein provided and directed. Besides these allegations contained in the petition, it was assumed and understood upon the argument that the following facts were judicially known to the court: That on October 17, 1878, the legislature of this state passed an act entitled "An act to provide for the election of supreme and circuit judges in distinct classes," (Sess. Laws 1878, p. 33,) by which it was provided that at the general election in June, 1880, there should be elected three jus,
IN BE AH LEE.
tices of the supreme court, who should take office on the first Monday in July thereafter; and also a circuit judge in each of the judicial districts of the state, who should take office at the same date. By section 10 of the act it was further provided that, "within 20 days after the taking effect of this act, the governor shall appoint three judges of the supreme court and five judges of the circuit courts, who shall, within 10 days after· receiving notice of their appointments, qualify and enter upon the duties of their offices until their successors are elected and qualified, as provided in this act;" that the governor appointed certain persons to be judges of the supreme and circuit courts accordingly, who entered upon these respective offices and thereby displaced the five justices of the supreme and circuit courts then in office; and that each of the judges before whom the action against the petitioner was heard and tried, entered and held office under and by virtue of an appointment under said section 10, and not otherwise; and the contention of the petitioner is that this act is unconstitutional, and the appointments thereunder illegal and void, and therefore the petitioner is in custody without due process of1aw. The petition is based upon the clause of section 1 of the fourteenth amendment which reads: "Nor shall any state deprive any person of life, liberty, or property without due p'roceS8 of law;" and sections 751-755 of the Revised Stat· utes, which provide for the issuing of the writ of habeas corpus by the courts and judges of the United States. 753d section of the Revised Statutes provides that, among other cases, the writ may "extend to a prisoner" who "is in
custody in violation of the constitlition, or of a law or treaty of the United States," whether under color of the authority of
the United States or a state thereof. This amendment, like -the original constitution, is the supreme law of the land, and therefore, within the limit of its operation, the national government is superior to that of the state. Section 5 of the amendment gives congress express power to enforce the provisions thereof. In relation to the limitation upon the power of the state to "deprive any person of life, liberty, or property,"
congress has exercised this power in the passage of the act of February 5, 1867, (14 St. 385 j Rev. St. § 753,) which authorizes the national courts to inquire, by habeas corpus into the cause of detention of anyone who "is in custody," whether under the authority of the state or otherwise, "in violation of the constitution, or a law or treaty of the United States," and to discharge him therefrom in case he is held in contravention thereof. If, then, the petitioner is restrained of his liberty or adjudged to lose his life by the ac.t or agency of the state, without due process of law, he is so restrained or adjudged in violation of the constitution of the United States, and therefore this court has power, and it is its duty, to interfere and relieve him from such restraint or adjudication. Argument cannot make the case plainer than the mere statement of it. The conclusion necessarily follows from the premise. The state can only act through individuals, and when it does so their acts a,re the acts of the state. As was said by Mr. Justice Strong, in delivering the opinion of the court in Ex parte Coles, at the present term of the supreme court: "We have said that the prohibitions of the fourteenth amendment are addressed to the states. 'l'hey are: · No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States j nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to the actions of the political body denominated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislature, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exercised, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public position under a state government deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, the constitutional inhibitiun, and as he acts in the name and for thE;
IN BE -.UI LEE.
state, and is clothed with the state's power, his act is thflit of the state. This must be so or the constitutional prohibition has no meaning, when the state, has clothed one of its agents with power to annul or evade it." And again, in speaking of the power of con.gress to enforce these prohibitions, and the supp>dsed want of it in regard to the'injunctions addressed to the states in tpeoriginal constitution, as was said in Kentucky v. Dennison; 24 How. 66, he says: "But the constitution now expressly gives authority fot c'ongressional interference 'alid, c6mpulsionin the cases embraced within the fourteenth ariiertdment. ,It is but a limited authority, t1'l1e,extendirig a single class of cases,: but within its limits it is complete.': In re Parrott, U. S. C. Dist. ofCal.,Sawyer and lfojfmdn, JJ.,-lately held that constitution and laws of California, fqrbidding the employmeni' of Chinese by corporations, was:adenial by the state' of the equal protection of the laws Chinese; and therefore void, and took upon a habea's corpus out of the hands of the state authorities, where he was held upon a criminal charge for violating these laws, and discharged him, as being in custody contrary to the 'constitution of the' United States. It is admitted that the state has the power to depi'iv(\ persons of life, liberty, and property, provided it is not done without due process of law. 'fhe power to do this, so 'flU as it ever existed, is denied to and in effect taken away from the state by the fourteenth amendment. Andthis is not all. In case the state does so deprive anyone, orat'tempts to, power is conferred upon the general government to interfere and prevent or correct the wrong. It is worse idle to talk about the rightof a state to do what.the constitution prohibits it from doing, or the want of right in the Upited States to do what the constitution expressly authorizes it to do. The constitution, and not the convenience, passion, or est, is the standard and measure: of the relative right and power of a state and the United States in our form of government. This fourteenth amendment was made a part of the constitution by the ratification of the states, including' Oregon, and
'!!'Reported:1I. 1 FED.
its provisions ar; as much .the supreme law of the land as any line or word in the original instrument. The clause now under only forbids a state to act towards individuals in disregard of what are generally deemed fundamental 'principles. So far, then, it. is a bulwark against local tyranny and opression, and therefore ought to be c()nsidered and enforced as a provision intended and calculat.ed'to maintain and promote right and justice between the l'ltate and its inhabitants. .' Article 7 of the constitution of the state providesaub. stantially as follows: Tht} judicial power shall be vested in a circuit, courts. Section 1. The supreme court shall consist of four justices, "to be chosen in districts by the electors thereof," but the number may be increased to seven. 2, Vacancies in this office must befj.·lled by election, but may fill a vacancy until next election. Section 4. The supreme court shall have only jurisdiction, shall hold,a term at the seat of gpvernment annually. Sections 6, 7. .The circuit court shall,be held in each county by one of the justices of the sup'rero.e court, and shall have all judicial power not otherwise Sections 8, 9. 10 provides: "When the white population of the state shall amount to 200,000, the legisassembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty, and the o.ther shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shull take the same oath as the supl'eme judges." The petitioner claims that the act under which the persons who were appointed judges of the court in which his case was t,ried and heard was unconstitutional and void, because: (1) The act does not declare or find that there was 200,000 poplilation in the state when it was passed, nor was there any election return, or other record or public writing, or record tending to establish that fact, but the contrary; (2) that the provision of the constitution authorizing the legisla.
ture to provide for distinot judges for the and oirou,it oourts authorized it to do so by election, but not and therefore, at least, section 10 of said aot, the one under which these persons were appointed judges, is unoonstitutional and void; and (3) the subjeot of appointing is it is so far. void as not expressed in the title, being passed contrary to section 20,' art. 4, of the' oonstitutIon, which provides: "Every act embrace but subject, and matters properly conneotedtherewith, whIoh shall be expressed in the as to any subthe act shall be void; and that, theteject not fore, the persons appointed said act as judges wel'e'not judges, but intruders and usurpers, and the petitioner is in oustody and adjudged to without due prooess What is due process of law, or the, want of it, under the fourteenth amendment may, in some cases, be a difficult· question to answer. The power the United States to relieve against the acts of the &tate on this account was not intended to reach mere errors or defects in a proceeding, but only extends to cases in whioh there has been a palpable and substantial disregard of the law applicable thereto. For instance, the oonstitution of this state (section 11, art. 1) guaranties to a defendant in a criminal action the right of trial by jury. Now, if the legislature should provide that a oertain person or class of persons who were obnoxious to the publio should be tried without a jury, there can be no doubt. that a oonviction under such an aot would be without due process of law, and the party affected by it might be relieved from it by the power of the United States. Chancellor Kent, in his Commentaries, (vol. 1, p. 612,) says :. "The better and larger definition of due process of law is that it means law in its regular oourse of administration through ' : Courts of justice." Since the adoption of the, fourteenth amendment have been before the supreme court of the United States. involving this The first was Kennard v. Louisiana" 92 U. S. 481.' There, was aoontest between Kennard and Morgan for a state'judge-.
ship in Louisiana, and the plaintiff in error appealed [\,om the decisIon of the supreme court of the state, giving the office to Morgan; on the ground that it was without due process of law. The chief justice, in announcing the de'cision of the court,said that the only question in the case for its consideration was whether the .state of Louisiana, acting through her judiciary, had Kennard of his office without due process of law,' and tlien said: "It is substantially admitted by counsel in the argument that such is not the case, if it has been done 'in the due 'course of legal proceedings,' according to those rules and have been established for the protection of private rights. We accept this as a sufficient definition of the term 'due process of law,' for the purposes of the present case. The question before us is not whether the court below, hav$ng jurisdiction of the case and the parties, have followed law, but whether the law, if followed; would have furnished Kennard the protection antied by the constitution., Irregularities and mere errors iIi the proceedings can only be corrected in the state courts.
Our authority does not extend beyond an examination of the power of the courts to proceed at all. The judgment of the
state court was affirmed. The second was Pennoyer v. Neff, 95 U. S. 723. This case went up from this court, and the question was as to the validity of a personal judgme;tt given against a non-resident of the state, in a court of the state, without any service of the summons except by publication. ' In delivering the opinion of the court, Mr. Justice Field said: "Since the adoption of the fourteenth amendment to the federal constitution the validity of such judgments may be directly questioned, and their enforcement in the .state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties, over whom that court has no jurisdiqtion,do not constitute duellrocess of law. What. difficulty, may be experiEmced in giving to those terms a .definition which will embrace' permissible exertion of ll.()wer affecting private rights, aI).d exclude such as there can be no doubt of their when applie(i
to judicial proceedings: "Ilhey then· meaD B cotlrse l'ep;al proceedings according ,to those rulesandprlnciples -Which have beeD established in our jurisprudence for the prot'eotion and enforcement of private rights. . To gi'Ve such proceedings any validity, there must bea tribunal compEitentby its con. stitution-that is, by the law of its cr13ation-to pass upon the subject-matter of the suit; .and, if that involves mereiya: determination of the persOIli1l liability of the defendant, he. must be brought within its jurisdiction by service of process within the state, or his voluntary appearance." . In considering this case I have not found it necessary to pass upon the constitutionality'ofthe act of October 17,1878, or the validity of the appointments thereunder; for although the act may beunconstitutional,and the appointments still if the persons appointed were judges de facto, their aots, its to third 'persons, are valid,a.nd the petitioner is not strained without due process of law. From the provisions of the oonstitution abOve cited it plainly appears that the supreme and oircuit oourts of' the· state are created by the oonstitution. They exist by virtue of its provisions. As therein provided, the judges of the former aT'e' the judges the latter, until the legislature, in the exernise of the power conferred upon it by section 10, art. 7,provjdes for the election of distinct judges for the latter. The per-sons appointed as judges under this act, altboughits ullCoDstitutionalitybe:admitted, and that therefore they are not judges de jure or of right, are, nevertheless, acting as judges of constitutionally created and existing courts;, having jurisdiction to try, hear; and deiermine the criminal action in "'hioh the petitioner has been convioted of niurder, and sentenMd toreoei'\'e the punishnient. of death when as it took place, both in the court below and upon appeal. A person 'ItOtnally in office by color of mere usurper or intruder-although not right or legally appointed or elected thereto, or qualified to hold the same, is still an officer de faeto; or in faot, and, as a. matter of publio convenienoe and utility, his acts, "'hile so in offiee t held, valid and binding as to third persons. But oounsel for the petitioner contend: (1) That no one is
an 9ffi.cer de facto who enters upon ()r holds an office under a void law or illegal appointment, but that heis only an intruder; (2) that to make one an 'lfficer de facto he must appear to have entered upon the office under a legal election or appointment-under color of right; (3) that a person cannot be considered an officer de facto unless the office he is said to be in legally exists; and there being no such office as "circuit judge" or judge of the circuit court ,established by the constitution, the person who acted as judge on the trial of the petitioner in the court below was not even a de facto judge; and (4) that an appointment cannot give color of right to enter and hold an office which is elective, and vice versa, and therefore the person who acted as judge Qf the circuit court in which the petition was tried was not a judgedefacto. Upon the latter point council cite People v. Kelsey, 34 Cal. 475; People v. Albertson, 8 How. P.R. 363; Brown v. Blake, 49 Barb. 9. In the first of these cases the court held that the constituiion of the state having made the office of tax collector elect:lYe. the legislature had no power to provide for its being filled by 'appointment, nor to confer the duties thereof upon an office filled by appointment. But there the question arose in a direct proceeding to tty the ,right to an office, while here it arises in a collateral to determine the legality of an ttct done by a person while in office. Upon, the question of the power of the governor to appoint a judge, when the stitution only provides for his election, it is in point. But it bas no bearing upon the question, whether a person 80 appointed is a judge de facto or not. The second case is a direct authority for the proposition that "an officer de facto is one who acts under color of title, which color can only be given by power having authority to nIl the office;" in other words, that an appointment to an office does not give color of title to the appointee, and vice versa. The opinion is plausible ; but no authorities are cited, and, so far as appears, the distinction attempted to be made by it is not found in the books. The case was decided in the county court, and the opinion delivered by the Ct unty
IN BE AH· LEE.
judge. The last case also held that the legislature could not fill an elective office by appointment so as to give the incum. bent color of right and make him an officer de facto, and therefore it discharged a party on habeas corpus from arrest, where the warrant was issued by a police judge, elected by the trustees of a village, who were themselves appointed to office when the constitution provided for their election. The opinion given by the judge who heard the matter at the special term cites no authorities, and it was affirmed at the general term without an opinion. As to the third point, it is sufficient to say that the constitution in effect creates a circuit court in each county, to be held by a justice of the supreme court or a circuit judge, as the case may be, and such court is the office of the judge who holds it. A circuit judge's office is the circuit court in which he sits-the place which he fills-and such is the place or office filled by the person who acted as judge upon the trial of the petitioner. The first and second points cover the general question, what constitutes a person an officer de facto? In The. King v. The Oorporation of the Bedford Level, 6 East, 356, Lord Ellenborough, citing, 1 Lord RaYfD.ond; 660, said: "An officer dee facto is one who has the reputation of being the. officer he assumes to be, and yet is not a good officer in point of law." In this case,it wa.s held that a deputy registrar who continued to perform the duties of registrar after the death of his prin. cipal was not registrar de facto, because. he entered only as deputy and could not, therefore, acquire the reputation of registrar. In Wilcox v. Smith, 5 Wend. 232, it was held that a person who had acted as justice of the peace for three years, with the reputati9n of being such justice, was presumably in office under color of an election,' and therefore an officer de facto, although there was no direct evidence that he entered the office under color of an election. In delivering the opinion of the court, Sutherland, J., said: "The principle is well settled that the acts of officers de. facto are as valid and effectual,
when they concern the 'public or the rights of third persons, as though they were officers de jure. The affairs of society cannot be carried on upon Rny other principle. · · · It will be observed that the cases do not go upon the ground that the claim by an individual to be a public officer, and his acting as such, is merely prima facie evidence that he is an officer de jnre, but the principle they establish is this: that an individual coming nita office by color of an election or appointment is an officer de facto, and his acts in relation to the public or third persons are valid until he is removed, although it be conceded that his election or appointment was illegal. His title shall not be inquired into. The mere claim to be a public officer, and the performance of a single or even a number of acts in that character, would not perhaps constitute an individual an officer de facto. There must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of at least a colorable election or appointment." In People v. White, 24 Wend. 539, Mr. Chancellor Walworth said: "An officer de facto is one who comes into a legal and eonstitutional office by color of a legal appoi.ntment or election to that office; and, as the duties of the office must be discharged by some oneior the benefit of the public, the law does not require third,'. persons, at their petil, to ascer· tain whether such officer has been: properly elected orappointed before they submit themselves to his. authority, or call upon him to perform officiatacts which it is nMessary should be performed. Thus, for instance, the constitution requires that the justices of the supreme court shall be appointed by governor, with the advice and consent of the senate; but if, either intentionally or from inadvertence, the governor should appoint and commission an individual as one of the justices of that court without having previously nominated him to the senate and obtained the consent of that body, and 'the person thus appointed should take upon himself the duties of that office, he would be a judge of the supreme
, IN RE'AlI' t:llJE.
court de facto, although, upon a quo warranto, he might be removed from the office to which he had not been legally and constitutionally appointed, and his' official acts while he was such judge defacto would be valid as'to third persons, so that this court, upon a writ of error brought for the purpose of reversing a judgment pronounced by him as such judge de facto of that court, would not be authorized to inquire as to the validity of his appointment. The result would be the same when his appointment had been made with the consent of the senate, in case he was constitutionally ineligible in consequence of his being a minister of the gospel." To the sanie effect are the cases of People v. Collins, 7 John. 549; Mclnstry v. Tanner, 9 John. 135. In the latter, a person in the office of justice Of the peace was held to be an officer tkfacto, although he was a minister of the gospel, and therefore constitutionally ineligible. In Mallet v. Uncle Sain,' 'etc., 1 Nev. HIS; it was held that a person acting as justice of the peace under an appointment by selectmen, who had no authority to make such appointment, and a commission from the governor, who was authorized to issue commissions to such officers, was a justice 'de
In February; 1812, the legislature of Massachusetts created the county of Hampden, and provided that the act should not take effect until August In the meantime the governor of the state assumed to appoint the officers for the new county, as he was authorized to do after ,the law took effect. The matter came before the court, and it was held that the appointments were void as being made without law, but that the appointees, while in office, were officers de facto, and their acts valid. See Fowler Y. Beleu, 9 Mass. 231; Commonwealth v. Fowler, 10 Mass. 290. ' In Plymouth v. Painter, 71 Conn. 587, it was held that "an officer de facto is one' :who exeeutes the duties of an office under color of an appointment or election to that office. He differs on the one hand from a mere usurper of an office, who undertakes to act as officer withOut any color of right, and
on the other from an officer de jure, who is in all respects legally appointed and qualified to exercise the office. In Brown v. O'Connell, 36 Conn. 451, an offioer de facto was defined to be "one who has the color of right or title to the office he exercises,-one who has the apparent tltle ofan officer de jure;" and in Brown v. Dunt, 37 Maine, 428, a/> "one who actually performs the duty of an office with apparent right, and under claim and color of an appointment or an election." Ex parte Strang, 21 Ohio St. 610, is a case directly in point, and decides expressly what some of the foregoing cases do by necessary implication, that an unconstitutional act will give color of right to an appointment made under it. The case was this: A statute authorized the mayor of Cincinnati, in the absence or disability of the police judge, to appoint a temporary substitute. In pursuance of this authority the mayor made such an, appointment, who, in the disoharge of the duties of the office, committed Strang to prison for the of a fine. The prisoner sued' out a habeas corpus, and on the argument it was claimed in his behalf that the statute was contrary to the constitution and void. The court held that, admitting the act to be void, yet the appointee of the mayor was a judge de facto, saying: "The direot question in this case is whether the reputed or colorable authority required to constitute an officer de facto can be derived from an unconstitutional statute. The claim that it cannot seems to be based upon the idea that such authority can only emanate from a person or body legally competent to . invest the officer with a good title to the office. We do not understand the principle to be so limited. We find no thorities maintaining such limitation, while we find a number holding the contrary. 9 Mass. 231; 10 Mass. 290. The true doctrine seems to be, that it is sufficient if the officer holds the office under some power having color of authority to appoint; and tho,t a statute, though it should be found repugnant to the constitution, will give such color." In support of this conclusion the court cites Taylor v. Skr'ine, 8 Brevard, 516; Brown v. O'Connell, 36 Conn. 432; The State v. MessII
m.ore, 14 Wis. 164; The State v. 17 Wis. 521; in all of which it appears that an unconstitutional statute was held sufficient to give color of right or authority to an appointment to a judicial office, and the acts of such appointees, while in office thereunder, were held valid. No decision of the supreme court of this state upon the question has been cited, and I am not advised that any exists. Thus it will be seen that the almost unbroken current of authority is against the claim made for the petitioner, that no one can be an officer de facto under a void law or an illegal appointment; and, admitting that the judges who tried and heard the action against the petitioner in the. state courts were appointed judges of those courts under an unconstitutional act, yet they were at the least such judges under color of right and authority, and therefore they were and are judges de facto, and their acts are valid and binding as to third persons. Color of title to an office is analogous to color of title to land. The latter does not mean a good title, or even a defective conveyance from one having title, but only the appearance of title; that is, a deed to the premises in due form of law. Stark v. Starr, 1 Sawy. 20. In conclusion, it appearing that the petitioner has been convicted of the offence charged against him in a court having jurisdiction of the subject-matter and the person, held by at least a de facto judge, he is not, so far as this court can inquire, restrained of his liberty or adjudged to lose his life without due process of law, and therefore the petition for writ is denied.
In re WAGqONER, Bankrupt.
(District Vowrt, W. D. 1'ennessl!6. February 19, 1881.)
DtSCHARGE-THIRTY PER CENTUM-DEPOSIT FOR COSTS.
In determining whether the assets are equal to 30 per centum of the debts proved, it is to the gross proceeds the court looks, and not the net sum paid to creditors; and the deposit of $100 for costs must be estimated as part of the assets.
SAME SUBJECT-PRACTICE-DlllFICmNCY OF ASSETS.
If the bankrupt desires to be discharged on the ground that his assets were of greater value than is shown by the assignee's sales, he must, in his petition fordischarge, or some supplemental petition, state the facts, and tender issues to be tried in a plenary way.
SAME SUBJECT-VAI.UE OF ASSETS-WHEN DISCHARGE GRANTED.
Actual results of a fair sale are the best evidence of the value of the assets, and this will be conolusive on the question of discharge, unless there be some element of unfairness in the conduct of the sale, such as fraud, collusion, or some accident or mistake, whereby the erty has brought substantially less than its real value, in which case, upon a proper showing of the facts, the discharge will be granted, notWithstanding the deficiency of funds in the hands of the assignee.
In this case, where the qeficiency is very trifling, the court allowed the bankrupt to make it good, but declares against the practice.
In Bankrupt'cy. J. F. IIuddle8ton, for bankrupt. HAMMOND, D. J. The questions arlsmg in this case are of. the register, and the presented by the following proof accompanying it:
"I, T. J.Latham, the register in charge of said cause, hereby certify that all the meetings in said case have been held as l'equired under the law and rules of this court; that the specifications in opposition filed against the discharge of said bankrupt have been dismissed by order of the court; that two debts against said bankrupt have been filed, aggregating $668.01, viz., J. R. Adams $78.90, R. W. P. Pool $589.11; that the gross amount realized by the assignee was $94.45, the amonnt deposited was $DO, a total of $184.45.