UNITED STATES V. MURPHY.
589
with respect to the allegation of negligence.· He said in substance: The question is one of pleading, and not necessarily one ofevidence. The plaintiff, who was injured while traveling as a passenger on board the defendant's cars, alleges that he was injured by the derailment of the train on which he was traveling, and that the injury resulted from negligence on the part of the defendant, but he does not state in what the negligence consisted. If this were a suit by an employe it might, perhaps, be necessary to specify in the complaint the facts conl'>tituting the negligence; but there is a material difference between' a suit by an employe and a suit by a passenger for personal injury. The latter has, as a general thing, no means of knowing what has caused the accident or injury. He has nothing to do with the operation of the road. He may be only one of a thousand passengers occupying many coaches. He may be so' seriously injured as to beu.nable to inquire into, the causes of the accident. He may be killed·, and suit may be brought by his representatives. Many reasons selves at once why. it would' be a' harsh rule to require, whosuesfor injury to specify the acts of negligence, or tile facts acshowing want of care, on the part of the railroad company. cordingly settled, we think, by reason and authority, that jt is cient to state in the declaration generl;l.lly that theinjnry ,the result of defendant's negligence. When it. comes to the trial the burden is upon the plaintiff to show a prima facie case. Whether he does so by showing simply that' the car ran off the track, and that he was injured in consequence, is..a qllestjon which may the trial, but which is not now befOre us. He must. show'enough to raise a presumption of negligence on the part of .· th,e defendant; but how far he must go in order to do this Wl;l need not now (ieter,mine. This view is supported by the, authority Thompson"g'wor.k on Carriers of Passengers, p. 547, § 9, and by the cases
on.
,
' . '.
,,
, :
UNiTED STATES 1'. +dURPHY. ,
'.
(Oircuit Oourt, D. Indiana.
1883.) Oll' PmORITY IN PAY· .
t
BANKRUl'TCy-CLAIM OF THE UNlTED loIENT";-PERSONAL LIABILITY OF TRtrBTEll:.
By the Revised Statutes the;right of priority: in payment of debts Elue the United States is established, inter alia, in cases where an act of bankruPtcy.has been committed, and every person, who pays debts py tIle person or estate from whom or for which he acts before he discharged
590
l"EPERAL REPORTER.
all that be owing the. Ullited, States by such pel'$fln or estate, is made personally answerable for whate.ver may be needed to satisfy,the unpaid claims of the government. . 2. SAME-ACQUIESCENCE IN PnocE'illtlmas AND OMISSION TO ASSERT CLAIMSW AlYER OF RIGHT OF PRIORITY-ASSIGNElll NOT RESPONSIBLE, .
The government is not bound to go into a bankruptcy court, nor is its debt barred by a certificate of discharge; but to secure priodty in pllyment out of funds upon which such court is administering uuder the act, the right must be asserted in that court and worked out through that act. Failure of the government, with full knowledge of the adjudication of bankruptcy, to make this claim before final settlement of the estate, waives such right, and leaves it no ground on which to hold the assignee responsible out of his own means. lIaving done all he had undertaken to do when he had distributed the estate according to the terms of the act, the orders of the court, and the directions of a' committee of creditors, the assignee would not be liable on an express or an implied a8sumpsit. 3. SAME,-ENTRY OF SATISFACTION AS TO ONE JOINT JUDGMENT DEBTOR, SAVING THE: RIGHT TO SUE THE' OTrlERS.
4.n aetualrelease of one. joint obligor discharges all ; but it is otherwise where the dght to sue the otherS is reserved. An entry of sati!jfaction of a judgment as to one joint debtor, expressly stipulating that it. should not prejudice the creditor's rights as to the others, where it is the intentiol\ that it should prevent maintaining an action or Issuing an execution ontnejudgment against auch debtor, does not operate as a contract not to sue, but as a technical ·lease. '
4.
SAME-FACTS.
After lin execution had been Issued by the proper officers of the government on certain real estate of· one of several joint judgment debtors of the United States, another of the judg!Dent debtors was adjudicated blljl,krupt and defendant appointed his trust-ee. During the entire·course of the administration oJ the latter's estate, the real estate exceeded in value the amount of the whole debt, the exedution on it continued in force, and the omeers of the government. with full kllOwledgeof the. facts. never even intimated the right of priority for tl/.a claim, nor demanded its p/\yment. Acting on a belief, induced bV theseCircumstances, that the government relied for satisfaction exclusively on the property sO levied on', the assignee wft,hlield only hisbimkrupt's full tive portion of the judgment, on proper demand paid to the United States,. ar d distributed ail the assets acoording law. Held, that the officers of thegovernment, having received its quota of the debt, and having executed a release to the debtor whose property had been taken in execution, the trustee of the debtor was not personally liable.
In Bankruptcy. , O. L. Holstein, Dist. Atty., and Ohas. H. McOarer, Asst. U. Atty., for plaintiff. Baker, Ilord,.tt Hendricks, ,and Olaypool f!: Ketcham, for defendant GRElSHA1rI, J. The United States recovered jqdgment in this cQurt. in 1871, aga,inst Stephen Major, Greenville Wilson, and William C; Titrkington, as sureties upon the bond of Garland D. Rose, postinn,ster at Indianapolis. In the. yoar following, Tark-
JNITElDSTATESV.llIUltPHY.
lugton 'was a:batlkrupt, and 'the defendant was appointed and trustee; to receive' and upqn theestatej' under the direction of a committee of creditor'S and the of<the OOll,rt. The the Which tributed among .the ,general creditors who had including himself." The moneythu8 distributed was more than, enough, after paying expenses of administration, to ha.v6satisfied the above judgment, which the defendant knew was unpaid. To the complaint alleging these facts the defendant; in his special answer, avers .that before Tarkington was adjudicated a bankrupt the marshal had levied an execution, which the plaintiff had caused to be issued, on the judgment agaitl.s't' Burgess and others upon real estate belonging to Greenville Wilson,whichwas, and' yet is, worth more than enough to satisfy such judgment ; that the attorney of the United States, who was charged with the duty'of eolleotingsuch judgttlent, and the proper officers of the United States, who: were authorized to instruct such attorney in the premises, and who'also knew of the adjudication of,bankrnptcy li,gainstTarkingtoJ1, and of aU the subsequent proceedings thereunder, neither proved the':cl8iim of the United States' as a dreditor;nor obtained: ani order recognizing t'heir supposed priority, ordir.ecting its payment, nor objected to any of: Buch proceedings; including the final distribution of the fund; tha.t before any of the fund-had been, distribl1ted"among the creditors; and while the estate'was yet inpl'oceas of settlement, the marshal, who had levied on of Wilson; 8Jndwas maintaining such levyin force, under the direction of the plaintiff, informed the defendant that such levy was sufficient ,to satisfy the judgment,)nterest, and costs; that although Wilson haa; filed no contingtinti claim. for contribution ngain.st,the bankrupt's estate, yet, inasmuch aa it Heved the land:'! so levied on would sell for enough 'to pay the entire judgment, the defendant withheld: from for Wilson, $2,419.20, the full contributive portion of the judgment due from the bankrupt, and distributed the balance of the fund, unde'r the orders amorigthe creditors who had proved their claims faS of the required' by the act; that since the commencement of this suit the 1:lum so reserved for Wilsonwu,s paid to the,United the de-; mand of the propel.' officers, anilthereafter, viz., onthetwenty-first'day: -of July, 1881, theattbrney oftheUnitBd States, by the authority of their prbper made a compromise'ivith Greenville Wils(!)U,with respect to his liability on such judgment; whereby he paid to the: of: sueh judgr,oi United States $l,OOQ in full satisfaction' and
592
REPORTER.
ment as against him, and at the same time the attorney of the United States wrote upon the margin of the reoord of such judgment the lowing stipulation and release: "I hereby enter, by direction of the solIcItor 01 tOe treasury, satisfaction of this jUdgment as to Greenville Wilson, (see letter of July 17, 1881. accepting $1,000 in compromise of Wilson's liability,) without prejudice to the rights of against his co-defendants herein, ,and provided, a1 ways, that the United all rights of the United states as to them, and each of them, are hel'ebr expressly saved and reserved. .. CHARLES L. HOLSTEIN, rSignedJ "U. S. Attorney."
Section 3466, Rev. St., provides that whenever any person indebted to the United States is insolvent, or whenevel' the estate of any deceased debtor, in tbehands of the executors or administrators, is insufficient to pay all the debts due ·from the deceased, the debts due' to the United States shall be first satisfied, and the priority hereby' established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed. Section 3467 provides that every executor, administrator, or assignee, or other perSon who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for 80 much thereof.as may remain due and unpaid. It has been held that a discharge in bankruptcy does not bar a debt due the government, (U. S. v. Herron, 20 Wall. 25;) also that the government is nor bound to prove a claim in the bankruptcy court, (Lewis v. U. S. 92 U. S. 619.) But it does not follow that the government, kpowing that the estate of its debtor is being administered upon in the bankruptcy court, may stand by, assert no claim to the fund, suffer the settlement to proceed, and final distribution to be made under the terms of the act, without waiving its 'right of priority of payment ouf of that fund. The assignee and trustee are the mere instruments of. the court in administering upon the estate; they execute the trust committed to them, in obedience to the terms of the act, and under the orders of the court, in. the ease of a trustee, also under the direction of a comulittee of creditors. Only those oreditors who prove their claims, or in some proper form present
UNITED STATES V-. MURPHY.
593
them and have them allowed, are entitled to share in the distribution of the fund. After an estate has been fully administered in bank· ruptcy, and the funds distributed under the terms of the act, credo itors, including the government, who, with knowledge of the adjudication of bankruptcy, neglected to prove their claims, or in some form have them allowed, can assert no rights against the assignee or trustee. If· the government claims a right of priority out of a' particular fund in the hands of the bankruptcy court, it is reasonable and just to treat an omission to assert that right as a waiver of it. Section 5101, Rev. St., provides that, in the order of distribution; the following claims shall be entitled to priority: First, costs ; second, debts and taxes due the United States; third, debts and taxes etc.; and, fifth, debts due the state; fourth, wages due to . due to persons subrog3,ted to the government's right of priority. The government is bound 'to go into a bankruptcy court, nor is it bound by a certificate of discharge; but if it claims priority out of a lund upon which that court is administering under the act, it must assert that right, just as the state alid operatives and persons subrogated to the rights of the government are required to do, to beeutitled to share in the distribution of that fund. The government's right of priority of payment out of a fund cin the hands of the bankruptcy court must be worked out through the act. It is true that the defendant settled the trust and distributed the fund with knowledge of the judgment against the bankrupt and others, but it is also true that the government knew Tarkington's estate wad in bankruptcy, and wholly omitted to assert any right of priority until after the fund had been distributed and the trust had been fully executed under the direction of the committee of creditors and the orders of the court. The government thus waived its right of priority, and assented to the distribution of the Lfund among the creditors who had established their right to it under the terms of its own law, and it would be unjust, 'if not oppressive, to now compel the trustee to pay the balance of the judgment out of his own means. The government had levied upon real estate of Greenville Wilson, sufficient to pay the judgment, before Tarkington went into bankruptcy. This levy was kept alive during the entire time that the defendant as .trustee was settling the estate., There can be no doubt that in good faith he executed the trust, and distributed the fund among the creditors who had proved their claims, believirig that the government was relying upon the specific lien which it had acquired v.15,no.8 -08
594
. ' Fjjll)l!lR,ALREl'ORTER.
on the real estate of Wilsoli. Whether this was the purpose of the and the proper officers of the treasury attorney oftha department, who had control of the judgment, or not, they, by their conduct, indu.ced him to think it was. With fuU notice of everything that was done in the settlement of the estate, and without intimation of any kind, before distribution, that it claimed a right of priority in the fu:q.d, the government DOw sues the trustee personally, as upon an implied assumpsit. The· defendant's undertaking when he accepted the trust was that he .wouldadminister the estate according to the .act, and the orders of the oourt. This he did. There was no assumpsit, .'express or implied, to do anything else.. · It would be olearlyinequitable and unjust, on the facts already stated, to oharge a liability on'the defendaI).t. and the law impliel'l no assumpsit under such circumstances. . Thus far. I have oonsidered the demurrer to the special answer without reference to the compromise between the government and Wilson. This occurred long after the defendant had distributed the fund and had been discharged framhis trust, and after the bringing. of this sJ;lit.. An actual relElase'of one joint obligor discharges all·. though it is. otherwise in a covenant not to sue. It bas been decided in numergus cases that a release reserving the right to sue others iii not a technical release, but,.only Ai covenant not to sue. It seems clear that both the governmentandWilson..unde.rstood that the latter wasta be. absolutely discharged from all liability on the judgment. The entry was npt a covenant to Ielease the levy or .to suspend fur. the]; proc,eedings on the a perpetual "satisfaction" of it as. to Wils.on. No execution can' issue on the judgment against him, and no action can be maintained on it against him. It would be a stra.inedconstruction of the entry of satisfaction to hold that the f.{overnment meant no more than a contract not to sue on an existing .. If the. entry was only intended to have the effect of a covenant not to sue, then the govarnment might maintain an action against Wilson on the judgment, and his only redress for the would be an appeal to congreslil for relief. The duty of paying the judgment rested alike upon all the defendants, and the absoall. Cheatham v. Ward, lute, satisfaction of..it,as to one, 1 Bos. &P. 630; Balla,m v.Price, 4 E. C.L. 418; Nichols01] v. Revell, 31 E. C. L.166; [{earsl'f3Y v. Gole, 16 Mees. & W. 127; Jayv. Wurtz, 2 Wash. 266; Wi(H/in$l v.'1'lulor, 23 Pick. 444-5; 1 Lindley, Paxtn. 433. VI
t:aulc.:J.
UNITED STATES ,V. MURPHY.
595
PtmLICQlI'F1CERS,AND AGENTS,--AuTHORITY OF AND LACHE!! OF. "The government is not bound by the act or declaration of its agent unless it ifestly appears that he acted within the scope of his authority, or wall employed in his capacity as a public agent, to do the act or make the declaration for it. Individuals, as well as courts, must take, notice of the extent of authority conferred by law upon a person acting in an official capacity."(a) "The government is not responsible for the laches or wrongful acts of its officers."(b) ,Laches, however gross, cannot be i\upute!l to the government. This maxim is founded, not in the notion ofextraordinary prerogative, but upon great public policy.(c) " The rule that' t\16 government cannot be held responsible for the mistakes of its ""gents includes mistakes of law as well as mistakes of fact." (d) PRIORITY OF DEBTS DUE THE UNITED STATES. Section 3466, 'U. Rev. St., gives a priOrity to debts due the United States in all cases (jfinsolvency, arid section 3467, Rev. 'St., renders personally liable any trustee of such an estate who pays any debt of the estate before he satisfies and pays the debt due the United States. "Corigresshad power to pass the act.(e) No bonafide transfer is overreached"by the act, nor are vested liens superseded.(f) There must be a legal and known insolvency, surihas bankruptcy or anassignrtlent.(g) A mere inability of the debtor to pay his debts is not insolvency within the statute;(h) The priorit.y does not supersede the assignment of 'the debtor or set it aside. The United States has simply a right "of ,priority at payment out of the fund in the hands of the assignee, who is rendered personally liable if he fails to pay the debt of the United States.(i) -' In construing: the statute the following principles may be laid down:' (1) No lien is created by the statute; (2) th,e priority established can never attach while the debtor continues the owner and in the posseBsion of the property, although he may be unable to pay his debts; (3) ,no evidence can be: received of his insolvency until he has been divested of his property in one of the modes stated in the section; (4) whenever the debtor is thus div-estedof his property, the person \fho becomes invested with ,the title is' thereby made a trustee for the United States; and is bOllnd'to-pay the debt firstout'oftbe proceeds,of the debtor's propertY.(.1) ,:The fact that'an assignee who, neglected to'pay the olaim of the United States had distributed the land under the orders of a state coUrt, will not protect him from the personallia,bility imposed by the statute; prOVided that he had notice of the existence of, the claim of the United States. 'fhe United States are not bound to appear and parties to the proceedings in the state court.: The priority of the United (G) U.s. T. Whlteslde9, 93 '0. S. 247; Mayor,Y. E9cbbeck, 17 Md. :lP2. , (b) Hart v. U.S.96 U.S.316; Jonesv. U.s. 18 Wall. 662. (r) U. 8, v. KIrkpatrIck. 9 Wheat, 735. (d) Mcb:lrath v. U. S, 12 Ct. Claims, 201. Upon the saine subject see. alBo, U,S. v. Vanzandt, 11 WheHt. 184; Hawkln. v, U. S. 96 U.S.691; Lee v. Mauroe, 7 Cranch, 3oG; The Floyd Accept. ances,,7Wall.360; Doxv. U.S, 1 Pet.317; Sm th v. U. 8, I; Pet. 292; John.on v. U, S. 5 Muon,423i Gibbons v. U. S. S Wull. 274.
(.)U. S. v. Flsher.,2Cranch,2lY.l. , (f) U.S.v, .'Isher, 2Cranch,,2O'l; U, S. v. H(jQl!, 3 Crauch, 73; Thelus90n v. Smith, 2 Wbellt: 396; Coni'ad v.Jns Co; 1 Pet. 386; U. 8."". Grlswottl,8 Fed. Rep. 496.. ,', , " (,.) U. s. v. Hooe,3Cranch, 73; Prince v. Bartlett, 8 Crancb,431; Theln.son v: Smith, I! Wheat. 396; Bellston v. Farmers' Bank, 12 Pet. 102. (h) Conard v. Ins. Co, (I) Conord v. In", ("0. 11'et. 3RS; (J) 80,'dton v, 12 ret. UP.
596
FEDERAL REPORTER.
States attaches in virtue of the assignment and notice to the assignee of their debt; and it is the duty of the assignee to make known the debt as having such priority.(k) l'hose affected by the statute are persons" indebted to the United States." The language is withqut qualification. The form of the indebtedness is immaterial. The debt may be legal or equitable, and incurred in this country or abroad. The debtors may be joint or several, and principals or sureties. The United States is in nowise bound by the bankrupt act. The clause of that act giving priority to debts due the United States is in pari materia with the acts in question, and was doubtless put in to recognize and reaffirm those acts. The United States need not, therefore, file their claim in the bankruptcy proceedings, but may bring their suit against the trustee in the circuit court which has jurisdiction. Where there is bankruptcy, the same remedies are applicable as if the fund had arisen in any other way. Neither stl,'tute any qnalification, and the court can interpolate Where the debtis due from a partnel'ship, the rights of the United States are the S/loma .ItS U the partners were severally liable. The United States are entitled .,to·priority. out of their separate property in preference to all other debts, notwithstanding the rule. in equity, recognized by the bankrupt act, that partnersllip property is to be first applied/I) paymellt of partnership debts, and individual property in of debts.(Z) RELEASE,OF CO-SURETY OR JOINT DEBTOR. "It seems now clearly established at law that a release or discharge of one surety by the creditor will operate adischal'ge of all the other sureties, even though it may be founded on a mere mistake of law. :aut it may be doubtful whether the same rule will be allowed universally to· prevail in equity. ThUS, if a creditor has ac· cepted a. composition from one surety aIld discharged him, it has been thought he might stillrecover against another surety his full proportion of the original debt. In other words, such surety, notwithstanding such discharge. might be held liable in equity to pay his share of the original debt, treating each as liable for his equal pro mta.(m) The leading case on the subject is Ex parte Gil· ford,(n) in which Lord Eldon said, inter alia, that the creditor, in discharging one"surety, .. may reserve his, remedy against the other surety expressly." 'l'he whole release must be cOllsidered, and if it be general in its terms it may.be limited and controlled in its effects by the limitation in the recital; and it may expressly extend to only a pal't of the claim, or to the party released, withe'xpl'e8sl'Eilservationof rights against other parties, in which caseIt will be construed only asacovenant nob to sue. (0) The legal operation of a release toone of several jointeontraclors may be restrained by the express terms of the instrument itself. Courts endeavor to carry out the intention of the parties by holding the instrument.to be.3. covenant not to sue, and .Hot a Telease.(p): Where a release of one of .twQsureties, who had entered into a joint and several covenant to pay an annuity in default of payment by the grantor, was accompanied by a proviso that such release should not prejUdice the of the grl\ontee to enfQrce its. payment against the gmntor and the other surety, (k) Field v. U S 9 Pet. 182. (Z) LeWIS V. U. S. 92 U. S. 61S. (m) Story,Eq. Jur. 149;a. (n) 6 Vo.ey, 603.
(0) 2 Pars. Cont. 714. (1') Chit. Cont. (11th Arner. Ed.) J.155. See, also, Whllrt. Cont. I 83'2; Brandt, Snretyship, f 3sa; Slory, Cont. (Gth A mer. Ed.) 1163,67.
UNI.TED ST:!TEB V. MURPHY.
597
or either of them, it was held that the proviso restrained the operation of the release, and that the liability of the co-surety was not affected thereby.(q) Courts will not suffer the strict letter of a release to defeat the intention of the parties. Hepce, even general words of release cannot operate to enlarge a previous statement, which defined the particular object of the agreement.(r) The release pleaded must be a technical release, under seal, expressly stating the cause of action to be discharged. No release is allowed by implication; it must be the immediate legal result of the terms of the instrument which contains the stipnlation.(s) RELEASE OF PRINCIPAL. Even in the case of a discharge of a principal debtor, if the rights of the creditor against the surety are in the release of the principal, this is not to be construed as extinguishing the remedy against the surety, but merely as a covenant not to sue The rule that the unconditional release of one surety releases all his co-sureties seems to rest upon two reasons: (l)Thll release gives rise to a presumption that the debt is satisfied; and (2) because the unconditional release destroys the co-surety's right of contribUtion against the released' surety, for any excess he may pay abOve his pro rata proportion, and'thereby increas'es his liability. .A. release which :expressly reserves the remedy againatthe co-suEety is open to, neither of these objections. Its tenus rebut the presumption of satisfa:ction ;" and by accepting the 'limitatioll 'in the release the reieaSedsurety enters, as it were, into an agreement that the creditor may still pursue his rem· edyagainst the co-surety; and justice' reqUires; and he implIedly agrees, that If by reason of his making such agreement the co-surety is compelJed to pay :nore thaJ;) his proportion, he will still hold himsel( liable for contl'ibuLlon as though he had not been released. That this right of contribution against a surety who has accepted such a release exists in favor Of his !leems well settled ;(tt) and, by anaiogy, in case of release of the principa1.(v)· " CoNTRA TO VIEWS SUPHA. In 'Nte'kSo!n v. Revel(a) there appears a severe criticism onth!l case of Ex'parte GWord, and the ability to limit the effect, of a release to onlytbeperson Lowhom the release waa gral1ted ,is denied. The g\ve,n .ill that case" however, cQl1tain6il, no ofrelll,edies whatever, and the decision, so far as that poi nt is concerned, seems ap. obiter dictum. Justice STORY, in commenting on the two cases, sayus to Expal'fe Gi.trord:.. I see no reason fa question either the accuracy of the report or the 'soundHess of the docirillr."'(b) In lVi.qgin$ v. T'udo1'(C) it is held that the of remedies against the co-surety wilf not preiiJerve the right against j , I
McAlliAter v. Sprague, 34 Me. 2g6 ; Bllrk,e v. Npble, 4B,PR, St. H13; AlnswOl'th< v( Browtr,<l1 Ind. 210. . (I) Whart. Cont. f83'2; ,v"Cole, 16 Mees, & W. 127; Clagett V. Gill & J, lowing case8,.in which it Was held . IMd.) 314; Sohier v; [;orlnll:.6 !Jush,li3'7; Green v. one of two joint_obligors would not release a co,· Wynn, L. R. .4 lh, App. 204;' De .Colyer. Guar. '. . i' " ,bligor against whom the creditOl"1l ri/(hb were' antltl·· 403. ·xpre8sly bV ,the . (u)De Colyer, Gnarar.ties, 406; Hill v, Morse, Yll1is v'. De Castro,21 Law Rep. 376; seymour v. Girde, 6H; Clapp v'. Rice, 15 Gray, 559'.' .' Hlltler, B Cla"ke, (Iowa,) 306;, Co"c,li v,'MiIIs, 21 (..) Cllll(ett v.' Frnl/non, Gill & 'J. (Md.) 314; Kearsley v, Cole, l.i Mees. & W, w. . ',vend. 424; Crane v. Alllng, 3 Green, (N. J.) 423; the BRnk v·. 5 B8rb.466;Durrell v. Wen- . (a) 31 K C. L. 166, jell, B:N, H. Lane v. OWilll:S, a Ilibb, 247; (b) .;q. Jur, § 498a, note (c) 23 Pick, 444.
(q) Thompson. v Lack, ,1IIall., G. & S, 640' (r) Solly v. Forbes, 2 Brad. -& H.'46" ' (.) Bailey v.Berry, B Am,er. Law Re.g. (N. S.) Shaw v. Pratt, 22 Pick, 300: See, alAo, the
him. As shown in this note there is great weigllt of authority against this view,_ and the case could hardly have been well considered, when the case of Shaw v. P1'att,(d) where the contrary opinion was expressed, was neither cited by counsel nor noticed by the court, although decided shortly oe101'e in the same ... '" ... forum. (a) 22 Pick,. 300
_ '1'6 rn LACHES.-
MOYER,
Bankrupt.-
CD/Btrict (Jourt, E. D. PennBlIlvania. February 27, 1883.) 5045, REV. ST.-·EXEMI'TION TO BANKRUPf-MISCONDUCT-
A bankrupt, who is a fugitive from jnstice, and who has failed to acoount to the assignee for $5,000 and other property in his hands, has no right, after 10 years' aoqulescence, to olaim, under section 1i045, Rev. St., an exemption out of cash in. the hands of the assignee, the prooeeds of property sold by him.
In Bankruptcy. Exceptions to thereport of the register who allowed the claim of the bankrupt for exemption. The facts are set forth in the opinion. J. P. S.·(Jobin and Josiah Funk, for exceptions of creditors and assignee:," C. L. Lorkwood and P. H. Reinhard, contra, and for the bankrupt. BUTLli.ni; J. Icanriot agree with the register respecting the bankrupt's claim. When the proceeding began the bankrupt had property "exempt from levy and sale upon execution or other process, under the laws of the state," as contemplated by section 5645 of the Revised Statutes. He had fled from, and abandoned his resideuc t in, this sta.te.:...-was a fugitive from justice; and has remained abroad ever since... The exemption provided for by the state statute is con· fined to citizens of the state, as her courts have decided. But the bankrupt, in my judgment, is not entitled to any part of his claim. If the trustee failed in duty, as alleged,-retaining and converting property to which the bankrupt was entitled,-the latter could have had redress by suit, or an order of this court in the premises. He sought no such redress. however; but for 10 yeats has apparently acquiesced in the trustee's conduct. The property has now passed beyond his reach, and his right of action against the trustee is barred. I was about to say that he now presents himself here to recover, not the property alleged to have been exempted, but money returned to the court for distribution, as part of the bankrupt's estate. This $Reporleu by Albert B. Guilbert, of the PlliladeJphia Lar.