WHITE V. ORAWFORD.
section is to be qualified by the language of the 4504th section, which expressly declares that nothing in this title shall prevent the owner, consignee, or master, of any vessel, except vessels bound from a port in the United States to any foreign port, other than yessels engage,d in trade between the United States and the British Nodh possessions, or the West India islands, or the republic of Mexico, etc., from performing himself, so far as his vessel is concerned, the duties of shipping commissioner. This language expressly applies to the whole title, and, of course, to section 4549, which is a part of it. We are perfectly satisfied that the revision has not altered the previous law, and that the act does not apply to a vessel which has been engaged in a voyage to the West India islands, which was thepresAnt case. We think, therefore, that the defendant is not liabl(; for the penalty sued for, and that the verdict must be in his favor. The same. conclusion, in effect, was reached by the supreme court of the United States in the case of U.8. v. The Grace Lothrop, 95 U. S. 527, where the question was, whether a writ.ten agreement, as required by the act of 1872, should be executed in the presence of a shipping commissione!, when the ship had been engaged in a voyage to the West Indies; and it was decided that the act in its original form, or as revised, did not apply to the case.
WmTE V. CRAWFORD
(Oircuit Oow·t, D. Minnesota.
1. PROVING CLAIM
A creditor waives any lien he may have upon the property of his debtor, by proving up his debt 8S an unsecured claim.
Robert P. Lewis, one of the defendants, on the seventh day of June, 1875, gave his note, and a mortgage to secure the same, on the S. W. ! of secHOIl 22, in township 30, range 22, excepting therefrom five acres in the S. E. corner thereof, to John W. White, the plaintiff,intending, however, to convey such property in township 29 instead of township 30. On the first day of July, 1876,the said Lewis gave a second note, and a mortgage to secure the same, on the same property as described in the first mortga.ge, as also upon' piece of property ; but, in this second rriortgage, the a certain same mistake as in the first. Again, September 1,,1877, the said Lewis, having discovered his mistake made in the first and second mortgages, makes '8. third mortgage for the purpose of correcting the mistake, in which he describes the property as being in towIlship 29. Between the giving of the first two mortgages and the third, correcting the first two., one James A. Crawford, a
brother or near kin of Alexander Crawford, obtains a judgment against RobertP. Lewis and pretends to docket the sallie, which jUdgment was thereafter, February 4, 1878, assigned to the defendant Alexander Crawford. Upon this jUdgment the said Alexander Crawford issued execution, which was levied on this property in township 29, alld the sallie was sold April 8, 1879, he buying it in for the sum of $1,800. Prior to this sale, however, the said Alexander Crawford had due notice of the mortgage claim of plaintiff upon this land. Prior to said execution and sale R. P. Lewis commenced proceedings in bankruptcy for a discharge from his debts, to-wit, on August 31,1878; his discharge being granted April 15, 1879, only seven days after the sale of said property. During the pendency of the proceedings in bankruptcy, and prior to the execution and sale, the said Alexander Crawford proved up his entire claim in the bankrupt court, without any reference to his lien upon this prop· erty, making atlidavit that he had no lien upon this or any other property.
E. Webb, for plaintiff.· . R. B. Galusha, for defendant Crawford. NELSON, D. J. I have examined this case, and find nothing new presented which can reverse the decision already made and set aside the order for a decree. The defendant Crawford proved his debt as an unsecured claim, and made affidavit to that effect in the form pres<iribedby law. Subsequently he execution on the judgment, pending the bankruptcy proceedings, and attempted to collect this claim, which was in judgment and a lien up6n real estate at the time, as he now insists, when he made and filed his proof. If he was a creditor having a lien, by proving his debt. secured thereby to the full amount he waives his lien, and relinquishes it. Such has been the ruling even in respect to mortgages upon specific property. Before a secured creditor can prove his full claim as an unsecured debt he must surrender the security. There is no distinction made in the kind of security. 1 B. R. 485, 400, 147; 8 B. R. 241. Crawford could have refused to prove his debt or appeal' in the bankruptcy court, and looked to the lien which he claims his judgment gave him; and unless the assignee took action and assumed control of the property on which the lien attached, might have subjected it to the discharge of his debt. But he did not do this. He acted upon the theory that he could prove his debt as unsecured, and at the same time enforce the lien which the judgmeut gave him. There is no support for such a claim. 95 U. S. 764. The complainant's equity is superior, and the order for a decree must stand.
IN BE BELLER.
and another, Bankrupts.
(DistriceUOU'l't, D. N6fJJ Jersey. October 17, 1881.1
1. BANKRUPTCy-DISCHARGE OF THE BANKRUPT.
Where there are no assets, the bankrupt is entitled to his discharge on making application after the expiration of 60 days from the adjudication of bankruptcy, and before the estate has been settled and the discharged.
The right of a bankrupt toa discharge depends upon his own acts. Unless 8 party thereto, he is not bound by the acts of commission or omission of his former partner.
On Specifications against the Discharge of RUdolph Heller.
E . .A. S.Man,for opposing creditor. G. F. Hill, for bankrupt.
NIXON, D. J. Under the specifications and evidence in this case 1 think the bankrupt is entitled to his discharge. The objection, interposed by the counsel of the opposing creditors, that the petition was filed too late; is not valid. It is true that no assets have come to the hands of the assignee, and in such a case t.he act orignally required that the application for discha;rgeshould be made within ohe year from the adjudication of bankruptcy. Rev. St. § But nils provision was changed by the'Bupplement of July 26,1876, (1'9 St. at Large, 102,) in which the limitation of one year was and the application was allowed, where there were no assets; "at any time after the expiration of 60 days, and before the final dii;lPosition of the cause." I have heretofore held that this expression, "the final disposition of the cause," means the settlement of the estate and the discharge of the assignee. No such settlement or discharge has taken place in the present case. The only specifications that the evidence tends to support are the two following:
(a) .. That the said bankrupts have never delivered any of the books of a(;count or Writings of their firm to Moses Mendal, the assignee in bankruptcy duly appointed by the court, though requested 80 to do by him, but have fraudulently kept, detained, and concealed the same; that such detention and concealment of said books of account and writings was done Wilfully by said bankrupts, and for the express fraudulent purpose of concealing the condition of their estate and effects, and to prevent and hinder their creditors from ascertaining the same, and to conceal their own fraudulent acts and doings in relation thereto, and to hinder and prevent their creditors from deriving any benefit therefrom. (b) 'fhat neither the said Heller nor the said Katz have delivered to the said Moses Mendal, assignee as aforesaid, their books of