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as oft

prisoned had a right to an action for false imprison- tus, a host of passages from the Bible and Bacon's ment, but no such action would lie against the Essay “of Seditions and Tumults,” “which whole king, who, according to the old maxim, could not essay,” he kindly says, “deserves the reading,” and be a wrong-doer, ergo the king could not imprison. arrived at the conclusion that sedition was merely Thus he ingeniously endeavored to turn the most a synonym for discord. He next showed, at still despotic maxim of our books against the despot. greater length, that the word had no different sigFrom this he proceeded to his main argument, viz., nification in law, and herein bore hardly upon Bracthat the cause assigned was too general and uncer- ton and his fellows, whom he termed obsolete tain, and here we have anticipated the well known authors, good for ornament but of no binding aucase of the general warrants under Geo. III. He thority, and (most fatal objection of all) too prone strongly urged that so far from "sedition” being to follow the civil law. He granted that the cause an offense known to the law, the word itself in a in the return was not traversable upon the

present substantive form was not to be found in any statute occasion, but contended and cited the reports to or precedent, and quoted many authorities upon prove that there must at least be so much in the rethe vice of generality. He was followed by Mason, turn as if false would give the party aggrieved an afterward recorder of London, who did little but action in the case. Of Berkley's coercive power he reiterate Ask's able argument.

made short work, and as to the house-on-fire illusFor the king, Berkley, Serg't, answered success

tration "observe the true consequence of this arfully the objection that the sovereign could not im- gument- if my house be on fire my neighbor's prison, but calling to his aid the ancient writers, must be pulled down. Mr. Selden is seditious, Bracton and Britton, he went dangerously far, and ergo Mr. Herbert, his neighbor, must be imprisoned.” sought to establish a general coercive power, laying Finally to the Statute of Westminster, with its proit down that “in matter of government, to avoid vision that a man taken by commandment of the commotion, the king ought to use his coercive king should not be replivisable, he replied, power against those that are enraged.” “It is a as that statute is cited I will always cry out the case well known,” he said, “that if a house be set Petition of Right! The Petition of Right! As on fire every man may pull down the next house the king of France cried out, nothing but France ! for prevention of a greater mischief, so it seems France! when all the several dominions of the concerning the incendiaries of state, they ought to king of Spain were objected to him.” No one folbe restrained lest others should be stirred up by lowed Littleton, the counsel for the other prisoners them to the same combustion." Upon the gener being content to rely upon bis argument. ality of the return he drew a distinction between A few days after the attorney-general, Sir Robert the certainty needed in a return and in an indict- Heath, replied for the king, but signally failed to ment, and cited the ordinary return upon certain rebut Littleton's learned and convincing discourse. writs, the very name of which amaze our modern After boldly claiming that the Petition of Right, ears, such as “the taking of an apostate, the amov- being simply a confirmation of the ancient rights ing of a leper, the burning of an heretic, and the and liberties of the subject, did not in any way afburning of an idiot,” and finally returning to his fect or help the prisoners' case he endeavored to high coercive notions he urged that the prisoners rehabilitate the battered word “sedition.” Refershould be restrained of their liberty, that the com- ring, amongst his other quotations, to the town monwealth might not be damnified. Sergeant Daven- clerk of Ephesus, “who knew not how to answer port followed in the same strain, and upon the close for this day's sedition," he observed, in passing, of the argument the case stood over till Trinity “that he wished the greater ones, to-day, were as Term.

circumspect as he was," a remark, which read in On the first day of Trinity the writs of the other the light of the king's ultimate fate, has an appliprisoners came up, and for them Littleton (who af- cation somewhat different from that intended by the terward became chief justice of the Common Pleas, learned gentleman. Ultimately flying to his last and who, as solicitor general, argued for the crown resort, the pretended coercive power, he closed in in the Ship Money case) appeared. Admitting the this wise: "If any danger appear to you in the king's power to commit he proceeded to state, as prisoners' bailment I am confident that ye will not the main ground on which he relied, a proposition bail them, but first ye will consult with the king, which is, now we apprehend, the fundamental prin- and he will show you where the danger rests." ciple in habeas corpus cases, viz., " that no freeman The court, to their credit, did not act in accordthat is imprisoned only for misdemeanor before ance with Mr. Attorney's suggestion. Timid they conviction may be detained in prison without bail, undoubtedly were, as the sequel will show, but unless it be in some particular cases in which the neither so servile nor corrupt as certain historians contrary is ordained by any particular statute.” have since represented theni. Had they then held From this he proceeded to examine whether the re- their patents, as now, quamdiu se bene gesserint, we turn disclosed any thing. more than a bailable mis- are inclined to think there would be little fault to demeanor, and at once fell foul of that unlucky find with their decisions, and till we are ourselves word "sedition.” In a lengthy disquisition as to perfectly indifferent to considerations of place and the true meaning of this term he quoted Livy, Taci- income we ought to have a little charity for their

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moral cowardice. They fixed a day for judgment, BANKRUPTCY-DISCHARGE-ACTION BY BANKand there seems to have been little doubt what

RUPT AFTER. their decision would be. The king at any rate felt

VERMONT SUPREME COURT. uneasy, and resorted to the expedient of transferring the prisoners to the Tower, sending an expla

LAFOUNTAIN V. SAVINGS BANK.* natory letter to the judges. In this he told them

Uncollected usury does not pass to the assignee in bankthat he purposed that none of the accused should

ruptcy, and it may be collected by the debtor after his discome before them "until we have cause given us charge in a suit in his own name. to believe they will make a better demonstration of A debtor, after his discharge, may sustain an action in his their modesty and civility, both toward us and own name to recover money paid under a mutual mistake, your lordships, than at their last appearance they

the assignee having settled the bankrupt estate without

attempting to enforce the claim, and the statute of limita. did." Beneath this velvet sheathing the trem- tions having run so that it would be a bar to a second suit bling justices felt the impending sword, and on the in behalf of the creditors. appointed day, no prisoners of course appearing,


SSUMPSIT in common counts. Plea, general 18they refused to give judgment, alleging that it sue, with an agreed statement of facts. Trial by would be to no purpose to do so, as the prisoners court, September Term, 1880, Cbittenden county, Pierbeing absent could neither be bailed, delivered or

point, C. J., presiding. Judgment for the plaintiff.

The action was to recover ior usury, and for money remanded. Accordingly the nine members re

paid by a mutual mistake to the defeudant. Pay. mained in durance throughout the long vacation.

ments of the usury and by mistake were admitted. Toward Michaelmas the king sent for the chief Afterward the plaintiff was adjudged a bau krupt by justice, who attended by one of his puisne justices,

the United States District Court, and an assignment of the distinguished Whitlock, waited upon him, and in

all his estate was made to the assignee in conform

ity with the provisions of the United States Bankrupt reply to his pressing questions informed him that the

Act. judgment of the court would be to bail the prison

Thereupon the assignee aforesaid uudertook and ers, subject to their giving security for their good proceeded with the administration of said trust; but behavior. Although not too well pleased, Charles made no claim, nor attempted to collect of the defend. put on a smiling face, telling them that “he would ant any of the aforesaid overpayments of interest; and

never knew of said two payments so made as aforesaid never be offended with his judges, so they dealt

by mutual mistake; and neither party discovered the plainly with him, and did not answer him by ora

same uutil after the bringing of this suit. The assignee cles and riddles."

settled the estate, and after paying some forty cents On the first day of term, Mason, of counsel for on the dollar to the creditors, was discharged. The the members, moved for judgment, and was in- plaintiff received his discharge from the court. formed of the decision of the court. The prison

William G. Shaw, for defendant. ers however were now in the mind of St. Paul at W. L. Burnap and E. R. Hard, for plaintiff. Philippi, and by no means willing to secure their Ross, J. The exceptions, on the facts agreed upon liberty by compromise. Mr. Selden, speaking for by the parties, present two questions for consideraall, demanded to be bailed in point of right, “if it

tiou. be not grantable of right we do not demand it,”

1. Did the uncollected usury paid by the plaintiff to

the defendant before the adjudication of bankruptcy, said he. Serg't Ashley offered his own bail for his

pass under the late general bankruptcy law to the as son-in-law, Hollis, but Hollis refused to join in the signee of the plaintiff? The solution of this question bond, and Long, whose sureties for good behavior depends mainly upon the wording of the statute of were actually in attendance, discharged them and Vermont in regard to usury, and the decisions of the cast in his lot with his brethren. Thus they all

court construing and interpreting that statute. The

language of the bankrupt act is broad and comprehencheerfully returned to prison, esteeming loss of lib

sive; and probably the language, "all his rights of acerty a lighter thing than voluntary surrender of

tion for property or estate, real or personal, and for their rights. The victory was theirs, and althougb any cause of action which he had against any person some died in prison, none were conquered. Doubt- arising from contract, or from the unlawful tak. less they looked for speedy deliverance from Par

ing or detention or injury to the property of the bank. liament, but for ten years no Parliament was sum

rupt," is broad and comprehensive enough to include

usury as it exists under most of the State laws. moned. Their captivity became gradually relaxed, Many decisions, both by State and United States and at length merely formal, and when at length courts, cited by the defendant's counsel, have ad the king was compelled to call his commons to- judged that usury under the statutes brought under gether, and the famous Long Parliament met, their

consideration passed to the assignee, and that he alone turn came. That Parliament forgot no old scores,

had the right to recorer it for the benefit of the estate

of the bankrupt. In some of the cases the statute did and in the midst of all its pressing labors found not give the right to recover the usury paid to any one time to recompense the sufferers of 1629. Each in terms. This is the case under the National Bank. survivor received £5,000, and to the deceased Sir ing act. In other cases the statute gave the right to Miles Hobart a monument was erected. The noble recover to the person paying the usury to freedom which our race on both sides of the Atlan

his legal representatives. These decisions fur

nish but little aid in determining whether tic enjoy to-day remains the common monument of

usury under our statute passes to the assignee in bank. all its builders, amongst whom are numbered our ruptoy. The language of our statute confiues the right nine members.

*To appear in 56 Vermont Reports,


to recover back usury to the person paying the same. right of redress which is personal to the party injured, The decisious have never extended this right beyond and whioh he may decline to enforce at his election; such person. It was early held that it could vot be at- and though the statute has given a form of action in tached by trustee process. Barker v. Esty, 19 Vt. 131. assumpsit by which a party who has paid usury may As this process is the only one by which a creditor can recover it back, yet tbis remedy, in legal contemplaavail himself of uncollected usury, this decision tion, is no less a mode of redressing an injury caused places it beyond the reach of the creditors of the per- by personal wrong and oppression than if the action son paying it. If the creditor cannot, while the per- sounded wholly in tort." son paying usury is solvent, avail himself of it in sat- The construction thus placed upon the statute in reisfaction of his debt, it is difficult to comprehend bow, gard to usury by the bigbest court of the State, and when he becomes insolvent, his assignee can avail bim- adhered to for so many years, is not only binding upon self of it for the benefit of the creditors of the bank. this court and the citizens of the State, but upon the rupt. In this early leading case usury is held, not to Federal courts. The Federal courts have by repeated be a debt or credit of the person who has paid it, in- decisions ackuowledged the binding force and effect of trusted or deposited in the hands or possession of the the decisions of the highest State court in construperson receiving it, but rather a personal statutory ing the statutes of its own State when such decisions right given to the person paying it to redress a wrong had been uniformly tbe same way. The only decispersonal to himself, and to punish the person receiv- ions of this court which in tendency and holding are ing it, for tbe commission of the wrong, as a part of the claimed not to be uniform with the cases already cited police regulations of the State; in legal essence a tort, are Roberts v. Burton, 27 Vt. 396, in, which it is held as for money extorted by duress, in form of remedy that a claim for usury survives against the estate of ex contractu-assumpsit for money had and received, the party recovering it, and Ewing v. Griswold, 43 Vt. or goods sold and delivered. Whether he will enforce 400, in which it is held that usury paid may be pleaded the remedy, redress the wrong, and recover back the iu set-off to an action on contract. The latter decis. money paid as usury, is at the option and election of ion can well be placed upon the ground that its allowthe person against whom the wrong has been commit- ance would produce no incongruity in pleading, the ted, the person paying the usury. Low v. Prichard, remedy prescribed for the recovery back of usury 36 Vt. 191. Tbe statute against usury is for the pro- being assumpsit or contract wise, though for the retection of the borrower only. Austin v. Chittenden, 33 dress of a tort in essence. The former decision is Vt. 553. Money paid as usury, eo nomine, that is, placed upon the common ground that the receipt of when it is not included in the security, nor paid as a the usury bas increased the assets of the estate, and so part of the debt,a surety cannot avail himself of, in re- survives the debt of the intestate. Neither decision duction of the debt. Ward v. Whitney, 32 Vt. 89; gives a character to usury different from that stated in Churchill v. Cole, id. 93. For recent cases holding that Nichols v. Bellous, supra. Whatever may have been the right to recover usury is strictly personal, and con- decided by other courts in regard to usury under other fined to the person paying the same, see Cady v. statutes passing to tbe assiguee under the late bankGoodnow, 49 Vt. 400; Reed v. Eastman, 50 id. 67; La- rupt law, we adhere to the doctrine announced in moille County Nat. Bank v. Bingham, id. 105; Spauld. | Nichols v. Bellows, supra, that right to recover back ing v. Davis, 51 id. 77; Richardson v. Buker, 52 id. 617. usury under the provisions of the statute is but a There is an unbroken line of decisions of this court, in right to redress a wrong personal to the party paying whatever light and form the question has been pre- it, to be exercised or foregone at his option alone, and sented, holding that the right to recover back usury is did not pass to the assignee under the provisions of strictly personal, confined to the payer.

the late National bankrupt law. It is not a right of The language of the National bankrupt law of 1841 action, arising “from the unlawful taking, detention iu regard to what property of the bankrupt passed to or injury to the property of the bankrupt," but a the assiguee was quite as broad and comprehensive right to redress a personal wrong, which the baukrupt as that of the recevt bankrupt law. In its language alone can exercise. On these views the plaintiff is "all property and rights of property of every name entitled to recover in his own name the amount which and nature, whether real, personal or mixed,” of the the parties have agreed he paid the defendant, as inbankrupt passed to the assignee. Under this act Judge terest in excess of six per cent. Prentiss, as United States District judge, held that un- 2. The other question presented is, can the plaintiff, collected usury, under the statute of this State, passed on the facts and circumstances detailed, recover for to the assignee of the bankrupt. Moore y. Jones, 23 the money which he paid to the defendant by mutual Vt. 739. This decision was rendered in 1848. The mistake prior to the time he was adjudged a bankyear following the same question came before this rupt? This is a claim for money or property, the court in Nichols v. Bellows, 22 Vt. 581, and on full con- right, title and estate to which, by the adjudication in sideration it was held that it did not pass to the as- bankruptcy, vested in and passed to the assignee. Imsignee. This latter decision has been recognized and mediately upon the payment of the money by mutual approved, although the question was not then before mistake the law implied a promise from the defendant the court, in Churchill v. Cole, 32 Vt. 93; Low v. Prich- to repay it to the plaintiff. The right to recover this ard, 36 id. 191; Eving r. Griswold, 43 id. 400; Streit claim therefore accrued to the plaintiff. The question v. Waugh, 48 id. 301.

is, is the plaintiff on the facts and circumstances of The opinion in Nichols v. Bellows was delivered by this case barred from the exercise of this right? The the then Chief Justice Royce, who'with his usual defendant contends chat he is; that inasmuch as the clearness and force, in speaking of the language of the "' title and estate " to this claim by the adjudication bankrupt act of 1841, above quoted, and of usury as ex- in bankruptcy passed to the assignee, he alone, until isting under our statute, characterizes them in the fol. he has parted with the claim, can exercise the rigbt to lowing language:

recover back the money. The industry of the defend“This sweeping enactment undoubtedly extended ant's counsel has produced a large number of cases, to everything which would go to make up a full inven- both English and American, in which it has tory of the bankrupt's estate-all his means consisting been held that the assignee

the proper, of tangible property and rights of property, which and the only proper party to recover Buch could be expected to be made available for the pay- a claim. In nearly all the cases cited the assignee ment of debts. But the right to sue for torts is not a was in the active exercise of the functions of his office. right of property in any such sense. It is simply a In some the bankrupt had commenced a suit on the

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ground that the claim did not pass to the assignee,and bly pass by force of the decree in bankruptcy to the the question was who was the proper party to prose- | assignee by operation of law, and become vested in cute the suit? To whom did the claim belong? A him as soon as he is appointed. But though the legal careful examination of all the cases cited by the de- title passes to the assignee, he is not bound, said Judge fendant's counsel on this point, with certain excep- Ware, to take possession of all property. Leasehold tions hereinafter noticed, shows simply this and noth- estates pass to the assignee under the English bank. ing more, that if the claim in contention passed to rupt laws; but the assignee is not bound to take the the assignee, and the defendant plead the adjudica- lease and charge the estate with the payment of the rent tion in bankruptoy, the appointment of the assignee, as the rent may be greater thau the value of the lease, and that the claim passed to him, standing on that plea, and thus the estate may be burdened instead of being the defendant was entitled to judgment. The defend

benefited; and in such a case the claim may be abanant's counsel contends that after the adjudication of

doned by the assignee. He is not bound in such a case bankruptcy such claims must be prosecuted in the

to take the property; it remains in the bankrupt; and name of the assignee.

no one certainly, except the assiguee, has a right to It is evident however that the defendant's implied dispute his possession. Copeland v. Stephens, 1 Barn. promise in this case, and wherever the action is upon

& Ald. 603; Fowler v. Down, 1 Bos. & Pul. 44." & contract and an actual promise, such promise is to the bankrupt. On general princi- “Robison says it has long been a recognized principles it would not seen that the defendant should ple of the bankrupt law that the assignees of a bankbe allowed to object to such promise or contract being rupt are not bound to take property of an onerous or enforced in the name of the person to whom he act- unprofitable character, or property which will be a ually or impliedly made it, provided he could be pro- burden instead of a benefit. They are on that subject tected against a re-enforcement of it.

regarded as being in a very different position from In Cook v. Lansing, 3 McLean, 571, cited by de- that of the executors of a deceased testator, as the forfendant's counsel, it is said: “But all suits com- mer take the property by operation of law, while the menced after the appointment of the assiguee should latter claim title through their testator, and are bound be brought in his name, or at least prosecuted for the to perform his obligations to the extent of his assets. benefit of the creditors whom he represents.” It is the Robisou’s Bankruptcy, 822. Where the assiguee right of the assignee to have the avails of the claim to elects not to take the rights of the bankrupt, and distribute among the creditors of the bankrupt. If charge the estate with the burden of uncertain litigathe assignee elects to collect it in the name of the bank- tion, the right, whatever it is, survires in the bankrupt, what legal objection can the defendant raise? rupt, and some of the authorities hold that it may be His legal obligation is to pay it to the bankrupt in the pursued by any creditor not a party to the proceedivgs first instance, but the bankrupt law intervenes and de- in bankruptcy. Smith v. Gordon, 6 Law Rep. 317. clares that the title and estate therein shall vest in the Persons acting as assignees in such a case are required assignee for the benefit of his creditors in the first in- to elect within a reasonable time; and the rule is that stance, and the surplus, if any, for the benefit of the if they refuse to elect when required to do so it is bankrupt.

deemed an election to reject the estate. Lawrence F. If A. holds a non-negotiable claim against B., Knowles, 5 Bing. (N. C.) 399; Carter v. Warne, 4 C. & and sells it to C., and C. notifies B. of such P. 191; Graham v. Van Dieman's Land Co., 11 Exch. purchase, by such sale all the title and estate 101; E. parte Brand, 1 Dea. 321 ; Tuck v. Fyson, 6 in such claim passes to C., and B. thereafter can Bing. 321.". The authorities cited fully sustain the doolegally discharge it only by payment to C. C. could trine announced by the learned judge. not, as the assignee in bankruptcy can, sue the This doctrine has been followed and applied in Toucle claim in his own name, but by the sale took the right v. Rowe, 58 N. H. 394, and Ramsey v. Fellones, to enforce it in the name of A. He also conferred upon id. 607. It shows that both under the English and B. the right and legal duty to pay it to C., and he American bankrupt laws the right to enforce a concould insist that A. should not enforce it in his own tract or legal duty in the name of the bankrupt is not right. Because the title and estate in the claim in taken away by the adjudication in bankruptcy and the contention passed to the assignee, and by force of the appointment of an assignee; that this still exists so far bankrupt law the assignee was empowered to bring a as the defendant is concerned or interested by consuit upon it in his own name, it does not follow that, tract or legal duty and obligation, and that the de. the defendant was thereby clothed with the right to fendant is only concerned, and has the right to be proobject to its enforcement in the name of the plaintiff, tected against the danger of being subjected to two except that it should be so enforced that it could not suits and a double payment of the claim transferred by again be enforced against him in the name of the as- operation of the bankrupt law to the assignee. When siguee. Suppose the claim is burdened with an oner- that danger has passed his right to object to a suit in ous condition, so that it is doubtful if any thing will the name of bankrupt is gone. This is consonant with be gained to the estate by its enforcement, the decision of this court in Udal v. School District,

that it is of a doubtful character, and 48 Vt. 588, in which it is held that on the sale of a nouthe assignee refuses to accept the burden or to incur negotiable claim by the assignee to the bankrupt, the the expense of the litigation, and for that reason re- bankrupt could maintain a suit thereon in his own nounces his right to the claim, is it in the power of the

As the bankrupt law did not make a non-nedefendant to say that his duty or contract obligations gotiable claim negotiable, even in the hands of the asto the bankrupt are thereby discharged, and that the signee, but simply empowered him to sue it in his own bankrupt is barred from calling on him in that be- name, when the assignee's right to the avails of the half?

claim became extinguished as between him and the In the well-considered case of Amory v. Laurence, 3 bankrupt, the right of the defendant to object to Cliff. 527, Judge Clifford, speaking on this subject, says a suit in the name and for the benefit of the bankrupt the bankrupt's "title, in case of onerous property also ceased. None of the cases cited by the defendwhere the assignee elects not to take it into possession, ant's counsel contravene the doctrine announced by is good against all the world, except the assignee or Judge Clifford, supra; but some of them recog. some one to whom he conveyed the property.” Smith nize it. v. Gordon, 6 Law Rep. 317 “All property and rights In Gay v. Kingsley, 11 Allen, 345, Chapman, J., says: of property belonging to the bankrupt, unquestiona- “He (the bankrupt) might hold it (the uote) as his own



the appointment of another assiguee, nor to be allowed to come into this suit and take the avails of this claim. Their failure to act is a practical renunciation of the claim or any right to it.

The defendant having ample means of protecting itself against a repayment of the claim, the neglect and non-action of the plaintiff's creditors under the circumstances of this case do not call upon the court to delay judgment in favor of the plaintiff, that they may be notified, and formally renounce all right to the claim, as was done in cases reported in 58 N. H.

Judgment affirmed.





if the assignee, with kuowledge of its existence, deelined to claim it."

In Sinith v. Chandler, 3 Gray, 392, it is in substauce conceded that a suit could be begun and prosecuted in the name of the bankrupt, “ with the consent and for the benefit of the assignee,” but that the case did not show such assent. The cases strongly relied upon by the defendant do not discuss nor consider what the right of the bankrupt would be if it were shown that the assignee had waived his right to prosecute the claim, or that the defendant had in any other way been placed in circumstances so that the danger of a second payment of the claim being enforced by the assignee was passed.

In Nash v. Nash, 12 Allen, 345, the interest of the bankrupt in the demanded premises was included in his schedule of property, filed in the proceedings in bankruptcy, and it was not showu whether the as. siguee realized any thing from it, or in any way availed himself of it. It was held the bankrupt could not maintain the action.

In Parks v. Tirrell, 3 Allen, 15, it is held that the right of the plaintiff became vested in the assignee, and nothing was shown by which it had been conveyed to any other person, and that if the right became barred by the statute of limitations while vested in the assignee, from prosecution by the assignee, it thereby became barred from subsequent prosecution by the plaintiffs.

Griswold v. McMillan, 11 Ill. 590, decides that the bankruptcy of the plaintiff is good defense to an action in his name when he produced the note on which the action was founded, and showed no other facts. Robinson v. Denny, 57 Ala. 492, so far as regards the question under consideration, holds that it is for the bankrupt court to determine the surplus which the assignee holds, if any, in trust for the baukrupt, aud until such decree the title remains in the assignee, and if the surplus consists of rights of action, he alone can maintain suits founded on them. None of these cases, urged especially by the defendant's counsel, consider the question discussed by Judge Clifford; nor do they decide any thing in conflict therewith.

The remaining question is, do the facts of this case bring it witbin the principle which allows the bankrupt to maintain the suit for a recovery for bis money paid by mutual mistake? The fact that the assignee has settled his account and been discharged by the bankrupt court does not remove the danger of a second payment of the claim from the defendant, as a new assignee doubtless could be appointed at the instance of the creditors who have not been paid in full; nor does the failure of the assignee to prosecute the claim while in office; for neither he nor the bankrupt then knew of its existence. But it further appears, and is not disputed by the defendant, that the claim has now become barred by the statute of limitations, if an assignee should now be appointed to prosecute the same. This suit however was commenced in season to save the statute bar as to the plaintiff. As by the lapse of time the defendant has now a full defense against a buit in favor of any assignee whom the creditors may bare appointed, upon principle and authority the right to maintain the suit in the name of the bankrupt, which never was lost, exists, and may be exercised by the bankrupt in his own favor. If any sure remedy remains :o the creditors of the plaintiff to avail themselves of this claim, it is by coming into this suit, and on equitable principles in regard to sharing in the expense of its prosecution, by being allowed to take the avails of this claim. This doubtless could be done. But the suit has now been pending a long time, with all the facts in regard to this claiin spread upon the record, and uo move been made by the creditors for

CITY OF FORT SMITH V. MCKIBBIN.* Adverse possession of a city alley for the statutory period

gives title to the occupant. INJUNCTION against opening an alley. The opin

ion states the James Brizzolara, for city, appellant. Duval & Cravens, for appellee.

EAKIN, J. Mary McKibbin, the owner of a half block of land in Fort Smith, which she occupied in solido as a residence under inclosures, applied in chan: cery and obtained a perpetual injunction upon the city authorities, restraining them from proceeding to open an alley through the premises.

The city claimed the alley ay baving been dedicated to city uses, and as being already subject to its control, and was about to proceed to remove the obstructions. Although the terms of the injunction were general, the decree was not intended, and will not have the effect to preclude the city from hereafter opening an alley there, in the proper exercise of its powers, as in the case of a new alley, if the public convenience should require it. The city appeals.

The facts of the case are simple. The blocks of the city are 300 feet square, with a street upon every side. They are divided each into twelve lots, fronting, six each, upon opposite streets and running back to a twenty foot alley, which runs between the two ranges of lots. These lots are numbered from 1 to 6 on one side, and reversely from 7 to 12 on the other side. The appellee owned and occupied lots 4, 5, 6, 7, 8, 9, which composed a half of the block, taken across the supposed alley. The other half of the block was owned by two others, having each a quarter of the block on the other corners. They had also taken each a portion of the alley into their inclosures, so that there was really no passway there. None of the parties needed or desired one.

The alley, according to the plat of the town, extends straight for a long way each side through blocks in the same range, and was not in any other way obstructed. The portion of the town in which the block lies was not thickly built; the streets were unobstructed, and it is clear enough, from the evidence, that there was no public necessity for the alley. It does not in any way appear that it would have been the slightest convenience to any one whatever. It does appear that to open it would, in a great measure, destroy the utility and comfort of the premises as the appellee's home.

The blocks, lots, streets, and alleys had been mapped and platted by the original owner of the site of Fort Smith, wbich plat had been accepted by the city as

*9. C., 41 Ark. 45.

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