3. That the plaintiff has a full, complete, and adequate remedy at law. But I do not think this objection well taken. Some of the matters charged in the bill are peculiarly of equitable cognizance, while allegations of fraud pervade every part of the bill. That the case is one for equitable relief is clear. The extent of that relief is, of course, not now to be determined.

4. The statute of limitations.

Section 5057, Rev. St.

In Bailey v. Glover, 21 Wall. 342, Justice Miller says:

"In construing this statute, passed by the congress of the United States as part of the law of bankruptcy, we hold that where there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such a character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing, or those in privity with him." Id. 349, 350.

In the present case, the foundation of the bill is fraud of a nature to conceal itself; fraud originally in the judgments obtained before the bankruptcy, and fraud actively practiced in the revival of those judgments, and the use made of them since the bankruptcy. The bill charges continuous and existing collusion between one of the bankrupts and the plaintiffs in the judgments, and other of the defendants, to cheat and defraud the creditors of the bankrupts by the use made and to be made of the fraudulent judgments. If the allegations of the bill are true-and under the demurrers they must be so taken the fraudulent scheme charged in the bill is now actively on foot.

This suit was brought by the present assignee within two years after his appointment, and in view of the secret character of the fraud alleged, I think the bill sufficiently avers the absence of knowledge thereof by Richard Arthurs, the former assignee in bankruptcy.

And now, August 5, 1882, the demurrers are overruled, and leave is granted to the defendants to answer the bill within 30 days.

NOTE. This section applies to actions and suits generally. Archer v. Duval, 1 Fla. 219; Harris v. Collins, 13 Ala. 388; Paulding v. Lee, 20 Ala. 753. The limitation is applicable to an action brought by the assignee to collect debts owing to the bankrupt (Doty v. Johnson, 6 FED. REP. 481) or due to the estate, (Walker v. Towner, 4 Dill. 165; Lathrop v. Drake, 91 U. S. 566; Claflin v. Houseman, 93 U. S. 130;) but that it does not apply to ordinary debts due the bankrupt prior to the adjudication, see Sedgwick v. Casey, 4 Bank. Reg. 497; Smith v. Crawford, 9 Bank. Reg. 38; Bachman v. Packard, 7 Bank. Reg. 353. As to the general policy of the bankrupt act to make a speedy settlement of the estate, see Mitchell v. Great Works Co. 2 Story, 659;

Norton v. De La Villebeuve, 1 Woods, 168. The limitation of the statute applies to all claims (Geisreiter v. Sevier, 33 Ark. 522; Norton v. De La Villebeuve, 1 Woods, 163) and suits by the assignee to collect the debts and assets of the estate, as well as to recover specific property, (Payson v. Coffin, 4 Dill. 386; Comegys v. McCord, 11 Ala. 932;) as a suit to recover money paid as counsel fees by persons acting without authority, (Millenberger v. Phillips, 2 Woods, 115;) or by the assignee of a bankrupt corporation against stockholders to enforce the payment of their unpaid shares, (Payson v. Coffin, 5 Dill. 475; Walker v. Townsend, 4 Dill. 165; Foreman v. Bigelow, 18 Bank. Reg. 457;) or a claim for cotton captured by the military forces of the United States, (Erwin v. U. S. 97 U. S. 392.) This section applies to all judicial contests between the assignee and any persons whose interests are adverse to his, and the only modification is where an action was intended to obtain redress against concealed fraud, (Smith v. Cincinnati, H. & D. R. Co. 11 FED. REP. 289;) to suits against parties having adverse interests in property, (Scoville v. Shew, 4 Cliff. 549;) in property held adversely to the bankrupt and his assignee, (Davis v. Anderson, 6 Bank. Reg. 145;) and it has been held to apply only to cases where there is an adverse interest, (Union Canal Co. v. Woodside, 11 Pa. St. 176,) before the assignment in bankruptcy, (In re Conant, 5 Blatchf. 54.) So, purchasers from an assignee of property, transferable to or vested in him, as such assignee, cannot maintain a suit in equity, asserting their title to such property against persons claiming adverse rights therein, if at the time of the purchase the assignee's right of action was barred by this section, (Gifford v. Helms, 98 U. S. 249,) whether the property was obtained from the debtor before he was adjudged bankrupt or from some other owner, (Knight v. Cheney, 5 Bank. Reg. 305.) This section relates to suits by or against the assignee with respect to parties other than the bankrupt, (Phelps v. McDonald, 99 U. S. 298,) and applies to an action in the name of the assignee though brought wholly for the benefit of a third person, (Pike v. Lowell, 32 Me. 245;) but it has no application to a case in his own favor for injury to property, or for a disseizin in lands vested in him by the proceedings, (Stevens v. Hauser, 39 N. Y. 302; Tappan v. Whittemore, 18 Am. Law Reg. 191.) A controversy between the assignee and the personal representatives of the bankrupt as to the possession of stock is within this section, as no formal transfer on the books of the companies was necessary to vest the assignee with title, (In re Staib, 3 FED. REP. 209;) so proceedings to set aside a foreclosure sale, (Phelan v. O'Brien, 12 FED. REP. 428,) and a suit to ascertain and establish a lien on a vessel for supplies and repairs, is within this section, (In re Churchman, 5 FED. REP. 181.) When the bankruptcy proceedings are void for want of jurisdiction there is no basis for the limitation to rest on. Adams v. Terrell, 4 FED. REP. 803. An assignee is not precluded from defending against a claim by the wife of the bankrupt for a copyright royalty, on the ground that the copyright was transferred to her by her husband in fraud of creditors, because he did not within two years proceed by suit to recover it. In re English, 6 FED. REP. 276.

A proceeding to order a distribution of a fund in the registry is not an action or suit within this section, (In re Masterson, 4 Bank. Reg. 553,) nor a proceeding to recover property fraudulently conveyed by one who claims by vir

tue of a voluntary assignment of the debtor, (In re Krogman, 5 Bank. Reg. 116.) A fraudulent conveyance may be set aside at any time within two years of the discovery of the fraud. Nicholas v. Murray, 5 Sawy. 320. So, when the fraud of the husband came to the knowledge of the wife within two years of filing her petition in bankruptcy, proceeding to claim her rights is not too late. In re Anderson, 2 Hughes, 378; Tyler v. Angevine, 15 Blatchf. 536. If there is a fraudulent concealment, the two years does not begin to run till the discovery of the fraud, (Pritchard v. Chandler, 2 Curt. 488; In re Pitts, 9 FED. REP. 544; Aiken v. Edrington, 15 Bank. Reg. 271;) but the operation of this section is not avoided by the naked averment of concealed fraud, (Andrews v. Dole, 11 Bank. Reg. 352.) This section does not apply to proceedings to review a bill in equity. Wilt v. Stickney, 15 Bank. Reg. 23. The pendency of a suit in chancery between the same parties in the same cause of action, which suit was afterwards dismissed for want of equity, does not interrupt or suspend the prescription provided in this section. McCan v. Conery, 12 FED. REP. 315. That this section does not preclude an action in the state court by the assignee in a cause which accrued to the bankrupt, was held in Peiper v. Harmer, 5 Bank. Reg. 252.-[ED.

BACKUS & SONS v. START and others.

(Circuit Court, N. D. Ohio, W. D. June Term, 1882.

1. DAMAGES-NEGLIGENCE-BURDEN OF PROOF.

In an action for the recovery of money advanced for the purchase and storage of merchandise, where a counter-claim is interposed alleging carelessness and negligence on the part of the plaintiff in storing the property, and claiming damages as a set-off to the claim of the plaintiff, the burden of proof is on defendant to show negligence on the part of the plaintiff.

2. SAME-NEGLIGENCE DEFINED.

Negligence is a failure to do what a reasonably-prudent man would ordinarily do under the circumstances, or in doing what such person under existing circumstances would not have done.

3. SAME-WAREHOUSEMEN-DUTY AND OBLIGATION.

Warehousemen are not required to provide against an unprecedented emergency; but if they have reason to expect such an emergency, they are bound to take such precautionary measures to prevent loss as prudent and skillful men in the like business and under like circumstances might be expected to use. 4. SAME.

They are not bound to have or keep on hand special facilities to meet and overcome possible but unexpected and unprecedented emergencies, which are included in what is called the "act of God; " but if imminent danger presents itself, to use such appliances and means as the ordinary and safe conduct of their business requires them to possess, and such as are at hand, and to use them with such promptness as would be expected of ordinarily careful and prudent men in regard to their own, or property entrusted to their care under like cir

cumstances.

Bessel & Gorrill and Scribner, Hurd & Scribner, for plaintiffs. John F. Kumbler and Kent, Hamilton & Gilcrest, for defendants. WELKER, D. J., (charging jury.) The plaintiffs, A. L. Backus & Sons, sue George H. Start & Co. to recover the sum of $3,312.93 balance due on account for money advanced to the defendants in the purchase of clover seed for them, with interest thereon; also for commissions on such purchase, and the storage of the seed in their warehouse in the city of Toledo, as set forth in an account attached to the petition, and also interest on such balance from the seventeenth day of June, 1881.

The defendants by way of counter-claim set up in their answers that the plaintiffs were warehousemen, and that during the years 1879 and 1880 had purchased for them as commission merchants a large quantity of clover seed, and prior to and on the twelfth day of February, 1881, had the same in store in their warehouse in the city of Toledo for the defendants for compensation for said storage, and that the plaintiffs were guilty of carelessness and negligence in the keeping and care of the seed, in that it was placed and kept on the lower floor of the warehouse, which was an unsafe and improper place to store it; that said floor was not more than six or seven feet above the Maumee river at its usual stage of water; that on the twelfth day of February, 1881, the water of the river arose and overflowed the said lower story of the warehouse, and wet the seed so as to damage it to a great extent, and by reason of which the defendants were greatly damaged; that for several days before the plaintiffs had knowledge, or ought to have known by diligent inquiry, that there was impending a great and extraordinary flood, and with that knowledge neglected to remove the seed to a place of safety, and by such gross negligence left the seed in such improper place to be overflowed and damaged by the flooding of the river; and that by this. gross negligence the seed was damaged to the extent of $8,000, which they ask to recover from the plaintiffs. The plaintiffs deny the allegations of this answer.

The issue, then, for you to determine grows out of this counterclaim of the defendants. In the absence of the establishment of this defense, the plaintiffs are entitled to recover the amount of their account, with interest. The defendants have the burden upon them to establish this defense by a fair preponderance of the proof. They must show that the plaintiffs were guilty of the carelessness and negligence, or some material part thereof, as alleged. The plaintiffs aro

not required under this issue to prove that they were not careless or negligent in the care of the seed.

All questions of fact are to be determined by you. But there are several questions of law involved in this case, necessary to be given you by the court, to enable you to properly determine the questions of fact. The defendants seek to recover in their counter-claim damages for the negligence of the plaintiffs, set out in their answer. Negligence is a failure to do what a reasonably-prudent man would ordinarily have done under the circumstances of the situation; or in doing what such person, under existing circumstances, would not have done. The essence of the fault may lie in omission or commission. Carelessness and negligence are relative terms. What might be negligence under some circumstances, may not be so under other circumstances. Reasonable and ordinary care must have reference to surrounding circumstances at the time demanding such care and attention. Circumstances may often demand a higher or lower degree of care and diligence. Negligence is a question of law and of fact. The matter of law involves the duty of the party; and the question of fact, what was done by the party. The court settles the former, and it is your duty to determine the latter.

The plaintiffs were warehousemen, and the defendants the owners of the clover seed in controversy, placed in the plaintiffs' warehouse for storage for hire. Certain liabilities and rights legally arise from this relation of the parties. As such warehousemen, the law required the plaintiffs to use and exercise ordinary care in regard to the seed in their custody-such care as a reasonably-prudent man would ordinarily, under the circumstances and in the same employment, exercise in regard to his own property, or property entrusted to his care. The plaintiffs were required to store the seed in a proper and suitable place in their warehouse, such as was usually adopted and provided by warehousemen, and in the manner usual in the warehouse business at the city of Toledo. The plaintiffs were not the insurers of the absolute safety under all circumstances of the property placed in their care. They were not liable for injury to the seed occasioned by the act of God or the public enemy, which could not be prevented by the exercise of ordinary care on their part. A sudden and extraordinary flood in the river is to be regarded by you as "an act of God."

The first question of fact for you to settle is, was the seed stored in the usual way in the warehouse by the plaintiffs before the flood? It is not, I understand, seriously claimed by the defendants that it