the other half to the children of the deceased. If there is no child, the whole shall go to the widow, and if no widow, to his heirs, according to the law regulating the distribution of intestate estates."

Upon the finding of this indictment the railway was summoned to appear; and it did appear at the next November term of the court, and by its attorneys petitioned that the cause might be removed to this court, for the reason that the Grand Trunk Railway was a foreign corporation, established by the laws of Canada, an alien corporation, and because the penalty or fine to be imposed exceeded $500, exclusive of costs, to-wit, the sum of $5,000, which penalty or fine the complainants-the widow, administrator, and heirs of John E. Willis-were seeking to recover in the suit, or by this

indictment.

Upon the filing of this petition, and the requisite bond, objection was made by the state that this was not a civil proceeding or suit, but was a criminal prosecution, and that it did not appear that the amount in dispute exceeded the sum of $500. The cause was, therefore, ordered "continued," and the question thus raised transferred to the full bench of the supreme court of the state. At the March term of that court, 1879, the court gave its opinion that the proceeding was not of a civil nature, but was a criminal proceeding to enforce a penalty for the "infraction of a state law."

In the meantime the cause was brought to this court, and entered here the May term, 1878. At the same term a motion was made to remand the cause to the state court, because, among other things, the cause was a criminal proceeding, and there is no sum in controversy exceeding the sum of $500. For the first of these reasons, if not for the other, we think the motion must be granted. It is well settled by numerous decisions that in construing local or state statutes the federal courts will follow the construction given to such statutes by the highest courts of the respective states.

Such decisions are, in some of the cases, said to be as binding as the text of the statute. McKeen v. Delancy, 5 Cr. 22; Polk's Lessee v. Wendall, 9 Cr. 87; Thatcher v. Powell, 6 Wheat.

119; McDowell v. Peyton, 10 Wheat. 454; Shelby v. Guy, 11 Wheat. 361; McCheny v. Silliman, 3 Pet. 270; Harpending v. Dutch Church, 16 Pet. 455; Smith v. Kernocher, 7 How. 198; Nesmith v. Sheldon, Id. 812; Van Ransaler v. Kearney, 11 How. 297; Webster v. Cooper, 14 How. 488, 504; Leffingwell v. Warren, 2 Blk. 599; Gelpcke v. City Dubuque, 1 Wall. 175; Christy v. Pridgeon, 4 Wall. 196; Nichols v. Levy, 5 Wall. 433; City of Richmond v. Smith, 15 Wall. 429.

So closely and carefully has this rule been followed that if the highest court of a state adopts new views as to the proper construction of a state statute, and reverses its former decision, the federal courts will follow the latest decision of the state court. Leffingwell v. Warren, 2 Black, 599; United States v. Morison, 4 Pet. 124; Green v. Neal's Lessee, 6 Pet. 291.

The supreme court of New Hampshire, the highest court of the state, having, in this case, given a construction to the statute that it is, in substance, a penal statute, and that a suit or proceeding upon it is a criminal proceeding, for an infraction of a law of the state, this court must adopt that construction. If so, it is quite clear this cause must be remanded to the state court. This court had no jurisdiction of the subject-matter of it when commenced. It has not now. The statute of 1875, (section 2, c. 137, vol. 18, p. 470, U. S. St. at Large,) under which it is claimed the removal of this cause is authorized, provides only for the removal of causes of a civil nature. This is criminal. There is no doubt that when there is proper authority for it a criminal case may be removed from a state court to the federal courts. It was so held in Tennessee v. Davis, 100 U. S. 257. But there is no provision for the removal of a cause like this under the act of March 3, 1875, on which the removal depends. The removal of the case of Tennessee v. Davis was under an entirely different statute and for an entirely different reason. In that case arose the question or right of the federal authorities to protect their officers in the discharge of their duty. Here is only a claim of citizenship or alienage, and it cannot be pretended, successfully, that the statute makes provision for the removal of a criminal cause on that account.

WARNER and others v. SPOONER, Assignee.

(Circuit Court, D. Massachusetts. September 30, 1880.)

1. BANKRUPTCY-BANKRUPTS IN REPRESENTATIVE CAPACITY-PROOF OF DEBT.-A court of bankruptcy may permit the bankrupts themselves, acting in a representative capacity as the administrators of an estate, to prove an equitable debt, arising from a loan of funds borrowed from the estate of their intestate, whether such loan was lawful or not.

2. SAME-SAME-SAME ASCERTAINMENT OF AMOUNT.-In such case, however, the amount for which the administrators are liable should be first ascertained in the court of probate.

Gideon Wells and Knowlton & Long, for appellants.
C. N. Judson, for appellee.

LOWELL, C. J. This is an appeal from the decree of the district court rejecting a debt offered for proof in the bankrupt estate of Frank H. Warner and Elizabeth B. Warner, copartners. The bankrupts are the administrators of the estate of the late David Warner, and are entitled to two-thirds of his personal property after his debts are paid. The debts of the intestate have all been paid, or, if not, are barred by the statute of limitations. The remaining third belongs to a minor daughter of David. After David Warner's death, the bankrupts, who are his widow and son, formed a copartnership, and put into it $52,000 of his assets, for which they gave a firm note, payable to the estate of David Warner. Before they became bankrupt they had paid about half of the amount, and it is admitted that they now owe the estate about $27,000. The district judge very properly rejected a proof upon the note as a legal instrument, holding it a mere memorandum; and from this decree no appeal was taken. The administrators then offered the proof now under review for the amount which, as copartners, they owe themselves as administrators.

We have no doubt that a court of bankruptcy may permit the bankrupts themselves, acting in a representative capacity, to prove an equitable debt of this nature arising from a loan of trust funds, whether the loan was lawful or not; or it may

appoint some one else to make the proof. We agree, however, with the district judge, that the amount for which the administrators are liable, by whomsoever the proof may be made, should be first ascertained in the court of probate. The difficulty could be readily met. The real question in the case lies deeper. It is whether the proof should be for the whole sum due the estate of David Warner, or only for one-third of that sum. The administrators wish to prove for the whole, in order to have a larger dividend coming to them as administrators, by which to diminish the amount which they will owe the minor child, and thereby relieve the sureties on their probate bond.

If the cestui que trust were of full age, there can be no doubt that she would have no equity to prove more than the equitable debt due her. Her mother and brother had no lawful authority to put her share of her father's estate at the risk of the business, but they had the right to risk their own shares, and she might have called them to account at any time in the proper court. On the other hand, the firm creditors, trusting to the capital which they saw, had no more than a constructive knowledge of any breach of trust, and have an equity to require that the bankrupts' share of the intestate's property shall go to pay them in the first instance. We do not think that the minority of the daughter should vary the case. The law protects the estate of the father by bonds with sureties, and thus the minor has a double security; and the sureties have no equity as against the firm creditors, for the reason already given, that they had some control over the acts of administrators, while the creditors had none. Looked at as a simple question of equitable indebtedness, the amount which the bankrupts have misapplied is the share of the minor child, and if she offered to prove for more, she must show some peculiar equity which we have failed to discover. See Ex parte Turner, 2 De G. McN. & G. 927.

Decree affirmed.

1. BANKRUPTCY-DISCHARGE-ESTOPPEL.-The acceptance of a dividend under an unlawful assignment does not estop a creditor from objecting to the discharge of the assignor under subsequent proceedings in bankruptcy, where such creditor had no power to dissent from, repudiate, or avoid such assignment.

Jos. S. Bosworth, Jr., for bankrupt.
R. E. Prime, for creditor.

CHOATE, D. J, In this case a rehearing has been granted upon the question of the discharge of the bankrupt Kraft, upon the suggestion that the court and counsel had entirely overlooked one point in the case, which might be decisive in his favor. The discharge was refused on the ground that the bankrupt had made a general assignment for the benefit of creditors about two years and seven months before he filed his petition. The point now made is that the opposing creditors received dividends under the voluntary assignment, and have thereby affirmed its validity, and are estopped to set it up as a fraudulent conveyance to prevent a discharge. There is some evidence upon which it is claimed that one of the two opposing creditors virtually assented to the assignment at or before the time it was executed. This was held

not sufficient as showing their assent to it. The case cited upon this rehearing, and hereinafter referred to, might lead to a reconsideration of this question if it could affect the result. But as it is conceded that no such assent, otherwise than by the acceptance of a dividend, is shown against the other opposing creditor, it is unnecessary to consider further the effect of that evidence. The dividend was paid to the opposing creditors about 15 months after the execution of the assignment. Is this such a ratification of the assignment as precludes the creditor from opposing the discharge of the assignor in a subsequent bankruptcy, on the ground of his making the general assignment? Several cases are cited in