ADAJlS V. HYAJlS.
judges of the election in the discharge of their duties." I am unable to see any valid objection to them. They follow the law, and the facts alleged constitute, beyond doubt, an unlawful interference within the plain meaning of the statute. The demurrer will- be overruled.
NOTE·· A governor of a state is not .. an officer of election" within the meaning of section 22 of the act of May 31,1870, (section 5515, Rev. St.) U. 8. v. Clayton, 2 Dill. 219; 19 Am. Law Rep. 737; 10 Am. Law Reg. (N. S.) 737. See Giauque's U. S.Election Laws, 35 et Beq.
ADAMS and another, Assignees,
HUMS and another.
(Circuit Court, D. Connecticut.
OF CONNECTICUT OF
1860, c. 348, § 5,
Under section 5 of chapter 348 of the Session Laws of Connecticut of 1860, sureties of an assignee in insolvency are lialJle upon their bond in case of their principal's default, though it consistil in refusing to obey an order made to sUbvert the assignment. Qwcre, whether or not an accounting before the county judge is a prerequisite to an action. 2. SESSION LAWS OF 1877, c. 466, CONSTRUED-AcTIONS AGAINST SURETIES. Chapter 466, of the Session Laws of Connecticut of 1877, did not make an accounting Lefore some specified court a prerequisite to an action against such sureties.
SAME-RIGHTS OF SURETIES AS AFFECTED THEREBY.
No substantial rights of such sureties were impaired by the repeal of the act of 1860 by the act of 1877.
William Y. Wilson, for plaintiffs. Philip J. Joachimson, for defendants.
SHIPMAN, D. J. Upon the facts which have been heretofore found the defendants insist that they are not liable in this suit,because they say that, under the fifth section of chapter 348 of the Session Laws of 1860, if the default of an assignee in insolvency consisted in a refusal to obey an order or decree made to subvert and not to carry out the assignment, an action will not lie against his sureties upon their bond, and also that an accounting by the assignee before the court of common pleas was prerequisite to a suit against his sureties. The defendants rely upon the construction which was placed upon this section in the case of People v. Chalmers. 1 Hun, 686, and 60 N. Y. 154. The fourth section of the act provided in substance that after the v.8,no.6-27
la,pse of one year fromth-e date of theassignrnent the county judge, upon the, petition of any creditor of the debtor, should have power to compel an accounting: by the assignee, and to:decree ,payment of sucb proportional just part of the fund. An appeal lay from the decree of the county judge. ,The fifth flection was as foll,ows:
"Whenever' any such assignee or8.sslgneeB shall omit or refuse to perform ltllydecree or order made againBt him, her, or them, by a judge or court hl\v'ing jurisdiction, to compel· the payment of any debt out of such trust fund, such county judge or court may order the bond of such assignee or assignees to be proBecuted in the name of the people by the district attorney of the county where the said bond is filed, and shall apply the moneYB collected thereon in satisfaction of the debtB of said debtor Qr .debtors in the same manner as the same ought to have been applied by such assignee or assignees."
Chief Justice Church, speaking for the court of appea.ls in People v. Chalmers, 60 N. Y. 154, says:
" This language (section 5) clearly refers to the order or decree provided for .n the fourth section to be made by the county judge on accounting, or by an appellate court 'upon the appeal from such order or decree. The word' judgment' is not used; and, as orders and decrees are specially provided for in the fourth section, it is presumed that the use of these words ,in the fifth section referred to such orders and decreeB as the previous section authorized. However this may be, it iB quite evident, whatever court may make the order or decree, it must be one to enforce the duty of the assignee under the assignment."
The factsuptm which thecolirt based its decision were different from those in this case. In the Chalmers Case, sundry creditors of the insolvent debtor had obtained judgmetlts upon their claims, and a decree declaring the assignment to be void as to the plaintiffs, and directing the a,ssignee to pay to them the amount of their judgments ratably out of the assets in his hands. The suit was to subvert the 3ssignmimt, 'which was virtually beldto be void as to all. the The amount of the judgments was more than the trust fund. Upon the assignee's refusal to pay these judgments, suit was brought against the sureties upon their bond.· In this case the assignment was not void as against oreditors. It was valid when made, but by the decree in bankruptcy it became void as against the assignees in bankruptcy. By virtue of the assignment, a good title to the assigned property passed to the assignee, subject to be defeated by an assignee in bankruptcy, provided the assignment was made within the respective periods, prior to the filing of the for an adjudication, specified in the bankrupt act in the case of voluntary or involuntary
ADAMS V. ltYAM"S.
bankruptcy. Maltbri v. Hotchkiss, 38 Conn. 80; In re Bdsenthal, 14 Blatchf. 146; Mayer v. Hellman, 91tJ. S. 496. The title of Pamberger had come to an end, and it was his duty, certainly, after he had ascertained that fact by a judicial decree, to transfer assets to the assignee in bankruptcy, in whom the title had become vested. For his default in not paying to the plaintiffs balance of trust funds in his hands after deducting his f,ees and 'expenses, the sureties were responsible, provided the amount which was due had 'been found by the proper court. It seems to be clear that, as between the plaintiffs and Bamberger, the district court had jurisdiction. Whether under the statute the sureties had a right to insist that the accounting should have been had by a county judge, remains to be considered: The question whether the fifth section of the act of 1860 made an accounting before the county judge a prerequisite to an action against a surety, is one of difficulty. But this suit was commenced after the repeal of the act of 1860 by chapter 466 of the Session Laws of 1877. Section 9 of this chapter provides simply that"Any action brought upon an assignee's bond be prosecuted by a party in interest by leave of the court; and all realized shall be applied, by directions of the county judge, in satisfaction of the debts of the assignor, in the same manner as the same ought to have beeu applied by such assignee."
Another section provides that aU proceedings commenced under the statute of 1860 might be continued under this act. Whatever construction may be given to the fifth section of the act of 1860, I do not think that an accounting before any specified court was made by the act of 1877 a prerequisite tb an action against a surety. If the dictum of Chief Justice Church is referred to, the meaning of the fifth section was covered; and if the statute may be said to have been a part of the contract of the sureties, it was not an unalterable part of the contract that an accounting must be had by the county judge before the commencement of a suit upon the bond. The details ot the statute may certainly be changed without making the obligation of the surety void, provided no substantial right is impaired. By the supposed change no substantial right of the surety was changed or impaired. The conclusion is that the plaintiffs, as assignees, are entitled to recover of the defendants the sum of $10,000, with costs.
(District Court, 8. D. New York. July 25, 1881.)
WITNEss-REFERENCE-REFEREE'8 FEES-PARTICULAR ORDER CONSTRUED.
The fees of the register to whom a reference is taken under an order directing a witness, who had refused to answer certain q,uestions, to answer each and all of them, etc., "unless the said James W. Gillies shall, within five days from the service of a copy of this order upon him, or his attorney, tll.ke an order of reference herein to Edgar Ketchum, Esq., register," etc., must be pll.id in the first instance by the witness therein referred to, as such reference is taken for his benefit, not for the information of the court.
OFFICER OF THE COURT-AGREEMENTS AFFECTING HIS RIGHT TO LEGAL COM:PENSATION-RuLE.
An agreement that is relied upon vary the right of an officer-of the court to legal compensation is not to be regarded, in case a dispute arises as to its terms, unleils it is in writing or entered in the minutes.
In Bankruptcy. Appeal from taxatIOn of costs of bill of the regI ister. ·Wm. H. Gale, for appellant. Fredk. J. Stokes, for respondent. BROWN, D. J. In a proceeding against the bankrupt, an opposing creditor, Phelps, subprenaed Gillies as a witness to testify concerning some transactions of the firm of Wright, Gillies & Bro., in which the bankrupt was at one time a partner. Gillies having refused to answer certain questions, claiming that they were improper, the matter was certified to the court, and, after hearing, the court, on December 14, 1880,
"That said James W. Gillies' be, and he hereby is, directed and required to answer each and all of the questions propounded to him upon his said examination, and to produce the accounts called for on his said examination, unless the said James W. Gillies shall, within five days from the service of a copy of this order upon him or his attorney, take an order of reference herein to Edgar Ketchum, Esq., register, to take testimony on the question whether there was an account stated between the firm of 'Wright, Gillies &; Bro."
The attorney of Gillies thereupon entered an order of reference to the register to take proof of the facts concerning the legality of the subject-matter of the inquiry, and by a subsequent order his attorney Upon this procured an enlargement of the scope of the inquiry. interlocutory reference a little testimony was taken and numerous adjournments were had, the examination of the witness in the original proceeding being in the mean'time suspended. The bankrupt having thereafter effected a composition with his creditors, which has been approved, the register presented to the attorney of the witness a bill of $49 against the firm of Wright, Gillies & Bro. for the pro-