QJoritpll 2Iaui ^rljonl ICtbraty 
 
Cornell University Library 
 KFM6820.Z9M67 
 
 Opinion of Hon. D.C. Glenn, attorney gen 
 
 3 1924 024 701 264 
 
Cornell University 
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 The original of tliis bool< is in 
 tine Cornell University Library. 
 
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 http://www.archive.org/details/cu31924024701264 
 
OP 
 
 HON. D. C, GLENj; 
 
 ATTORNEY GENERAL OF MISSISSIPPI: 
 
 ERESIDUfi is SPGCUIL CBASCfiLLOR, 
 
 AT JACKSON, 
 
 IW TEE CASE OF 
 
 JAMES L.CALCOTE, Complainant, 
 
 VS. ■ 
 
 FREDERICK STANTON and 
 HENRY S. BUCKNER, Defendants, 
 
 COMPLAlNANr S SOLICITCIIS : 
 
 L. MADISON DAY, New Orleans, 
 FULTON ANDERSON, Jackson, 
 Hon. WILLIAM YERGER, " 
 Hon. S. S. BOYD, Natchez. 
 
 BEFENDANTS' SOLICITORS :■,, 
 
 Messus-SHARKOT & WITHERS, Jachs&n, 
 JOSIAH WINCHESTER, Naiche.z. 
 
3 7^2S'0 
 
JAMES L..CALCOTE, 
 
 VS. 
 
 EREDERICK STANTON & *IENRY S. BTJCINEK 
 
 ; .J T;his case has been argued and submitted on the demurrer 
 of the defendants to the complainant's bill. 
 
 The facts pharged in the,biM are sabstantially as follows: 
 The defendants, together 'with M. B. Hamer, who died 
 in April, 1842, had been during the years 1841 and 1842, 
 and for several years prior thereto, partners in trade, doing 
 business in the eity of New Orleans, under the style of 
 Buckner, Stanton & Co., Buokner being the resident and. 
 sole managing partner; a^id in the city of Natchez, undesr 
 the style of Stanton, Bugfeuer & Co., said Stanton being 
 the resident and sole managing partner ; and in Ya2oo eity, 
 under the style of M. B. Hamer &_Co.V.:Hamer being the 
 resident, and sole managing partner. Although composed 
 of. the same individual members, the three firms were ea- 
 tirely.,3Separate and distinct from each other, and kept their 
 business, books and accounts accordingly. The nr'ms m 
 
 1841, and for several years before that time, were insolvent, 
 and so were the individual nJembers, and so continued until 
 Buckner and Stanton were declared bankrupts. On the 
 21st July, 1842, Stanton, as an individual, and as a member, 
 of the three firms, filed his petition in bankruptcy, in the 
 United States Bankrupt Court in Mississippi, and on the 8th 
 Noveraber, 184S, was declared a bankrupt, and on the 21st 
 February, 1843,'received his discharge. On the 18th July,; 
 
 1842, Buckner, as an individual, and as a member of the 
 three firms, filed his petition in bankruptcy, in the^Uftited, 
 States Bankrupt Court in, Louisiana, and on, the 5th Sep- 
 tember, 1842, was decreed a bankrupt, and ofi, the 5th of 
 December, 1842, received, his discharge. These applica- 
 tions, and the proceeding^sj^jinder them, were made by th« 
 defendants, in concert wit$,each other, with an agreement 
 to continue in business when they received their discharge. 
 
 Joseph Sill was appointed assignee in the case of Bucfef' 
 ner. 
 
Hbss to examine ait' any extent wljat :k said of these offehbfes 
 at common law. The reasons given in connexion with 
 them certainly db 'not apply it the present day, and it will 
 he seen that Ihey Were not origir^ily directed afthe saTe oir 
 assignment of -ihoses in acrion, but that the rigorous rule 
 
 . aa to such, airdse from cori|ki^atioris,, which have long 
 ceased to %a%ifany weight, •••-'i 
 
 But it is argued that the assignment here was of a;i*nere 
 
 l^gljtjto sue. So it might be sai#_of every assignment of 
 a cnosein action, and snch is thfcase in nearly every as- 
 signment in a cOmhriercial community. The assignment of 
 a note or a bill of exchange is an assignment of a rigH| to 
 
 yjsae if necessary. Such are termed choses in action ; that 
 
 ^Ui things or rigtits of things resti|^or existing i^actioo as 
 iSJstinguished from property actu^^ existiiDg and capafife ' 
 ef a material transfer or seizin. '■ - ' 
 
 But it is insisted tl5iSt here theVe was tissigned a mere 
 light to litigate.' But in one sense, upon every assigiiltiefit 
 of everything, there p^s^^feo, ipso facio-, a right to sue ; 
 liecause, the right to hatiJ%-eGoVer and enjoy, the thing is 
 ©f the very essence of the,"^^g itself. If ydir purchase a 
 prbmiijgisry note*, you pure'^'se at the same time the right 
 
 ^fc sue'on it or litigate it if.||ie maSer refuses to pay it; and 
 
 ■ if thCi%Signfnenf^in this instia^fel'is voidl'so would be the 
 transmr' of every 4i^j|u:te3 claim, and of all rights which 
 jffe&t or^fcist in action, and which may be contested. ?? 
 « The question fere is perhaps more fairly presekted 'Wh^h. 
 we inquire, not whethf^i;iGalcote had the right to- putchase 
 ike claim, but had Oakey the rigl^to sell the chose" in ac 
 tioi) ? ■ Tij^detiy such a right bedause the debtor 'disputes 
 tfie claim, would be a novel doctrine, and woutd call fer a 
 jetrograde rafovement in the courts. But looking at it from 
 a'oiffeirelit point of view, coiinsef' have very ingeniously 
 Btr^ed that this was a purchase of'a mere right to vacate 
 the discharge of- Buckner (fc, Stanton for fraud*. Now it 
 may be, that Calcote hiust invalidate this discharge before 
 
 rljecan recover and efFectuate'-his jprchasc. Yet does this 
 make him a purchaser of a mere rfght to litigate a fraud ? 
 I think tioi Suppose he should prove fraud and invalidate 
 tiie discharge. Does^ he recover the fruits of the fraud or 
 feiiiages for the fraud ? Not at all. He recovers his defct, 
 Iwhich is the foundation of his 'action,. Suppose the parties - 
 do hot avail thems^ves of their discharge, and- the court 
 pofflSessil^uri's&ction, and the clalj^'is a good one, the as- 
 si^ee obtains his' decree on his debt or c;Iaim. It would 
 6e quite as' correct to,|ay a man pu^i^bais^thc right to liti- 
 gate any other defentoc whicJfe might 'be%et up asgaiaslt a 
 
■chose in aMIi^n. An'tei^ee purciiase^^me right to En- 
 force hisdiii'm/inJ ta'recOTe'r it unless there is a just and 
 le^al reason for riot so!;doing, and to receiver'it overall iift- 
 just, iltegal and unconscientious defences.' His right to tlie 
 plaim clothes him as with in incident thcrelQ;. with alright 
 lo avoid all such defences. It is iilogicaF to say that he 
 has purchased a valid right lo litigate a fraud, becjause he 
 has become the owner of a claim against which a fraudji- 
 |ient deffice mavi be.,arg#d|f '' ' ;. ^ 
 
 '■ It Is; well settled, thatYat common law, ^ no possiljilitj, 
 right title ar thing in action could be transferred to a cKird 
 J, person. For jt was giaid a diiSerent rule would authorize 
 the trinsfer of a ta-w^suit t® a mere strangei-. That sijeh is , 
 not,nowihe law, or the spirit of the law, is matter of legal*' 
 history which needs- no authority. The assig,nal)j|f(y'o"r 
 negotiability of choses inaction is, the basis of half;the liti- 
 gation in this country, and, if the' transfer of a lawsuit is 
 '?ftaijci|i#ftpu3, our courts are fi|ll of it. But the reason of* 
 the rule against the trans^jpf ithoses in action ce&ajng, the 
 rule sjtSi^.lf has ceased. , At an'ea^ly day courts of equity, 
 and. many eminent law' Judges, disregards^', this rule, 
 "Aecordirigly," says Judge Story, "they giveej^4^ito as- 
 signments of trusts, andipossibilities of trusts, and contin- 
 igent inteirestS; and expectoicies, whethet they are in real or 
 'in personal es'tate, as wef! as tO' assiigpments of^'choses in 
 action." And in. sec. l640,,b. n;|Jt,^,he has ehufflerated 
 cases showing, the great extent which' courts of equity 
 will go to pro.tect and enforce assignments. .. 
 
 I. ana not ujimindful of the rule laid down by the same 
 writer in sec. 1040 g., which he has susl^ined by, a refer- 
 ence to the case of Prosser vs. Edwards,, 1 'STounge & Coll., 
 481, 499. He says: "4n assignment of a bare right to 
 file a bill for a fraud comi^ittfe'd on the assignor will be held 
 void, as contrary to public policy, and savoring ^f mainte- 
 nance. * * * Iiideed^it has been, laid down as a, gene- 
 ral rule, that viheii an eq.aSable interest isassigned, in order 
 to girve the ^^gnee a lobiis standi in judkio in a court of 
 equity, the partyy assigning such right must have.somesub* 
 stantial possession, and fome capability of enjoyment, and 
 not a mere naked right to overset a legal instrumet or to 
 maintain a suit." ;., 
 
 Admitting this to i>e cbrrect, and thatwe can understand 
 it,,apfply it in this case pr«iiQ,a1ly— Oakey, and Montgcwriery 
 & Boyd, had a just .(iraiagaiBlst B^ckner & Staaton. 
 Tfeejy. ^ssiga it to Calcc^. Calcote sues on it. ;1|ucktter 
 & S^atiton reply, that Q^j and M. & B., had not a substan- 
 tial, jWSse|sioB or capacit^'to enjoy thp claiins when assigo- 
 
q4 by ttoeih* Why? .^eaase tb§y were 4ischaffged in 
 b[aEi1{ru|^y, But Caluotte ajleg^ tt»at this 4ischaiE^ W4« 
 fraudul^t. Budkner & Stanton admi;t if. If so, ttjie dis- 
 chargg^ is utterly null 'fend void ; and if a nullity, O,, and 
 M. fefB., had a subs'tantial possession,/ ;&c., which |^y^' 
 thep a right to;assign, and thdir assignee a locus standi. in 
 judicio. JNow, 'when only aesigSa^r, a&signee and debtor 
 are concerined, is it pertinent to, tftik'^^ cjiamper||§; an4* 
 maintenance ? When the easy a,Bd unrestricted transfer of 
 every sp^iep of property is th* policy. of our' lav?, and 
 es^cialy of choses-in action, can it be said to be against 
 .public policy to permit anassigpe.l'to avoid a fraud a'od re- 
 cover his debt ? If O., and M. ^^. , have not, or had not,' 
 the status delineated in.sec. 1040j the fraud of Bupkner & 
 Stantpn ousted them ;'' the act is|risjl %i'd vaid."". Can'.. B. 
 & S. then. plead tbei advantage of t^feir own fraud? .There' 
 does.Jiot seem to me to. be any reason in this. 
 
 The same writer p'fesej^s us: with Various .instances 
 where the assignment of a disputed claindjOrpbgse in action 
 Is held'goo'd in equity. *" g ^'■♦^s^^^ iQ6Q,';n. 5, J051i, 1057.. 
 f If there^vi'ere controvertSp^gfiis as to'th^ ownerSjhip of 
 this claim at the time the assignment, was ma^e, Ib^re 
 migte- be some ground for the rule insisted on. It is the 
 pureh^e ©f Iqori^yertied titles ^productive, of naked litigg- 
 tioB among persons claiming the same "thing by different 
 title, which alone novi? callst^br the assertion of^ the doc- 
 trines Sf chaf^^fy'or mainfenari'ce. The true'distinctipn 
 
 will be found to be (and so Judge Story asserts it,) that the 
 doctriijigs of maiijteiiancfe and chai|iperty, and the buying 
 pretended title^jjapply only lo cases wh^jj.|^fheire.is an aiv- 
 yerse right jclaimed under an independent titlenpt in privity 
 with the assignor or seller, and not under a disputed rigbt 
 claimed, in privity and under a trust for the assignor or 
 seller, ^o in this State, in oiieof thf few cases which re- 
 cognize the doMrine of champerty atall, 11 Smedes »fcM., 
 ,4?|. it is said that a p§rty out of possession of real; estate, 
 which is held aldV^-sely by ^othily: under a title, though it 
 be imperfect, cannot^jgell so as to pass a good title to bis 
 'icendor. ^" ; 
 
 Lcannot avoid remarking that the section from Story 
 relifed on is taken almost literally from the body of Lord 
 Abiiger's decisi<p in' Prosser vs. Edwards. General 
 princfiples laid down in a; case are only valuable in con- 
 nexion \sith the facts to which they ai^ api^jed, and with- 
 out the fa;'Gts to mark the true meaj(jing and extent of the 
 principles they may '.niislead us. J have no i;epQ^tof tfee 
 facts'of the case, and^hly a part of the oj^on^.before me. 
 
Inn. 1 to sec. IJO^O, Ji^ge Story speaks of it as a -case 
 where " there \vas a mere naked right to ^set aside a con- 
 veyance for fraud," and in 60 Com. L. R., Lord Campbell 
 says of it, " In that case there had been a sale of rjghts, 
 which were a subji ct of contest." - ^,. 
 
 Thus understood, the dpctfine has not only authi^ity 
 biii;t reasonito support iti ~ '' , , ^ ' 
 
 This, however, is clearly no such case. Here there is 
 no adverse right asserted td"|htese, debts or demands, under 
 an independent title, not in privity with , the assignors or 
 sellers 0. & M, &- B. , But Jthe defence whep literally 
 istated that the assignors had an undisputed right to these 
 claims ; that they were prevented frpm collecting the^n by 
 fraud ; that they have a|ssigued them, and, that the assig- 
 nee, in order to collect them, must set aside a fraud ; that 
 it w,as ohampertous jn him to purchase the claim, and it 
 would be against public policy to allow him to expose or 
 vacate, or disregard the fraud. Thus stated, the- fraud 
 charged in the bill, and confesised by the demurrer- to have 
 been perpetrated by these d|ieridants, is relied on as their 
 strongest ground of defence. : See generally Morresdale vs. 
 Birchal), 2 Black., 820; Makers vs. MiHe,r,-4 T. R. 203 j 
 2 Story Eq., 1039, 1040; Elaker vs, Whitiijg, 4' Sumner, 
 475, 481-4; 3 Cowan's Rep., 623; 1 Swanston,'56-7. 
 '1^(11.) It is further insisted that the claim sold by the as- 
 signf 6' in Louisiana, against Stanton, Buckner.& Co.,)a»nd 
 l|l. B^'Hamer & Co., and purchased by Oakeyj^and by him 
 transferred to comjSlainant, is no claim. The argument is 
 ■this: that the same persons constituted each and all the 
 firms; that they could not owe or,£ue themselves, and 
 therefore there was no such debt or claim /in existence to 
 sell or transfer. 
 
 I will examine the position of the parties in this case be- 
 fore disposing of the main question. 
 
 Th'e bill stSLtcs -.'"Ihe , tfiree^rms were entirely separate 
 and -distinct from each otliei^and kept 'their business and 
 accounts ,actordiri,gty ; each, ho'Ojever, constituted of the 
 sameindividual' members." 
 
 Upon his bankruptcy, and Jhe bankruptcy of his firm of 
 Buckner (fc Stanton, in Louisifna, Buckner rendered in his 
 schedule of assetts on oath. ^Arnong these * assStts, as so 
 much property of the firm, he retii||ied the stated accounts 
 due from Stanton & Buckner," and M. B. Hamer & Co,, to 
 Buckner (fe'S'tanton. As such, they passed with his other' 
 assetls to sill his assignee, anl'iwere soid'for,the bene^t of 
 creditors. Under 6uclI6iTcurnstanees,0akey was indjuced 
 to become the purchaser, and*Kas siiisie assigeed to the ccwn- 
 plainant. 
 
io 
 
 ' Upon his bankruptcy, and the bankruptcy of, Ms firms^of 
 Stanfon & Buckner, arid M. Bi'Hather &Co., in Mfissis^ipi, 
 Stanton rendered in a scheduije of debts aind liabilities i!6h 
 X)tiih: Among the£e debts, as ;liabi'litics'grgainst the firms, 
 and the rSipective- persons' composing them, entitled to a 
 pro rata sRajjgidf dividends, li§ rendered in the claims or 
 stated accounts due from St2(.^|6n & Buckner, and M. B. 
 Hamer & Co. to Buckner & ^'nton, which werfe sold .'by 
 Sill,, and purchased by Oakey, and transferred to co'm- 
 plainant. 
 
 With these facts admitted, cari Buckner & Stanton, or 
 either of them, 'be now permitted to say that there is no 
 such claim in existence? that it is n^ere fiction, and the 
 possession of it vests no substantial rights iii anyone? 
 "If such a point was contested h^ween Buckner & Stanton, 
 the pdsition might bp.toleratedj but not where third parties 
 and those creditor^of both are' concerned. By the course 
 pu^lfed by both, eachvhas efl^ected a practical result which 
 th'^^ii^ust not nowR. be« allcwed to gainsay. Bxickner & 
 Stanton have received tlie benefits of the proceeds of ;the 
 sale of this claim in Lo'ipsiana, and it has been divided 
 ;amoiig their creditors there ;, and by it Stant6fi':&. Buckner 
 hS|ir;e! lessened; the dividend of their cred^tora^ip Mississippi, 
 tp'ihe extent of tjtie pro rata allowance made here on these:. 
 'claims. Jn thus4||0ng, they gave notice to the world, and 
 placed it ottjji-ecord, that these accounts were actual and 
 substantive* claims,jiab!e to be sold as otherr assetts, and en- 
 titled to be paid as other debts. If the claims are mere 
 fictions as is argued, by the conduct of (ho^e on whose be- 
 half the argument is offered, thej^/have beeii made and hav^e 
 become practical realities in pte liands of thkd person^. . 
 By their own act the clMms were^ade debts, by their ac- , 
 tion theylwere sold as eona.j^rfe debts, and by their acts 
 Oakey was induced toj part with his mori^. therefor, and 
 .they are thus^estoppod from denying th.ei'r existence. 
 
 I grant that technical" estop|»els are not favored in law ; 
 but -gii estoppel*,here is not forpial or teehftical, but is the 
 enfercement of ajtule ' of gre^- propriety. All persons are 
 responsible for emcts growing out of their own voluntary 
 action. If one then, by his conduct or representations, in- 
 duces another to afct, faeycannot, upon ptinciples of reason 
 and fairSfess,*be allowed to deny the results of his own pro- 
 ceedings. This rule does no^^, r,est simply on authority, tut 
 on the highest principles of justice' which govern the trans- 
 actions of meii. .But see 3^Eng. Com., L. R. 116, 117; 
 19 Wendell, 557 ;• .21 Wendelf 172 ;■ ^ Lcig,h, 1 ; 3 Howard, 
 698; ind others. < ' ' • ' 
 
11 
 
 Theii; Bucykijer, oneof ,the dfefendants, has returned tliis 
 
 ielaim, on, oath, as an existing dbbt, and Staiiton, the other , 
 defendarfti. having acknovv*ledged it to be such, and Oakey,^ 
 /upon such Eepresentations, having' parted withhis money 
 for the same, upon principle, Buckner & Stanton cannot 
 Dowibe heard to dispute the existence of the claim in the 
 .hands of Oakey or, which is the same thing, in the hands 
 of his assigee, Calcote, the complainant. ' ' 
 ,>< Moreover, as between these parties,! regard ilia existence 
 of these claims as "res adjudicata" by the order and judg-- 
 ment of the United States Circuit Court. When Oakey 
 presented -his claim in Mississippi against the assetts of S. B. 
 &lJo'., and M. B. H. & Co., it was resisted on the, ground 
 now assumed. Mr. Justice Daniel, of the Supreme Court 
 overruled them, and ordered its pro rata allowance with 
 the claims of other creditors, and this judgment still stands. 
 On ttiis, if on no other ground, I should regard this ques- 
 tion, as no longer an open one. between these parties. , 
 
 In this connexion,' I might stop here, as the fore'gpii%iis 
 conclusive with me; but was this not so, I should he e^pj- 
 pelled to rule the.niEttter against the defendants. 
 i , I admit the principle that wHipre two firms deal with eaph 
 other, where some or all of the partners in one firm are 
 partners with other persons in; the other firm, by the tech- 
 nical rules of the common lawla such cas,es, no suit can be 
 maintained at law in regard to any transactions or debts 
 between the two firms ; for in such suit ^\\ the partnfers must 
 join*and' be joined, and no person can maintain a suit against 
 himself, or against himself and others. ' The objection is at 
 law a complete bar to the action. This is the strict rule.of 
 the common taw. which will recognize no different capjtci- ■ 
 ties in an individual, and wiij.not tolerate a conflict in His 
 ■jpQsitive' and relative rights and duties. But 'such distinc- 
 tions are recognized and acte4 On, under other systems, 
 where real justice is not cramped by arbitrary rules. The 
 ■ laws governing partnerships, Jtidge Storysays, are almost 
 identical inSEquity with the,;pivil law, when- conflicting 
 rights of a person, growing oiit of his individual and his 
 social relations, as to third parties, are asserted and en- 
 forced. In equity,- ai! contracts and dealing bet\^een such 
 firms of a moral and legal naiture ^re deemed obligatory, 
 though void at law. Courts of Equity, in all saoh-cases, 
 .look betiindi the form of transaictions to their substance', an,ii 
 treat the different firms' for the purposes of substantial jus- 
 tice exactly as if they were co'ffilpased of strangers, or were 
 in fact corporate compap%Si ,: . 
 
 I may well ask hfei^efi'with Mr. J. I>aniel, "is this the case 
 
12 
 
 of an indivi^ai partner attegjptiijg to prove his ^piairate 
 
 clw|ri' against the i^oojal effeQfs, m opposition to the social 
 
 '^ci^'ijitors ? "- Itis?iQt. It (is the claim of Buckner & 
 
 ^nton against the effects of the bankrupt firms of iStanton 
 
 & Buckner and M. B. Hamer «k Co. True. But a higher 
 
 claim even still — it is the (^^im of the social creditors of 
 
 .the bankrupt firm of Buckner & Stanton, of Nevp Orleans, 
 
 aga.inst the social assets of the hai:^tu,pt firms of Stanton 
 
 & Buckner and M. B. Hamer &, Co .i^lEx-contraetu a debt 
 
 of i;a moral and a legal nature existed 'between thesfe|wuses; 
 
 though composed individually of the same peiisoioSij-social- 
 
 ]y as corporations or artificial actors in t,he community, they 
 
 were distinct and separate. It is unhecesary to. say hoi? 
 
 far this rule could go in a cqpiest among themselves. ^I 
 
 only consider it as affecting the rights of third persons ,©r 
 
 , Cf editors. . Suppose the IVlissigsippi firms had .abstracted 
 
 two-thirldSiof the rtieansijof the New Orleans firm ; can it 
 
 be. said that the creditors of the latter cannot avail th^n- 
 
 selves of the indse^teyness upon its books, whicli?ftpre- 
 
 senlSs amounts thus withdrawn by the former, tp i^sfy 
 
 their claim ; and this b^: suit thereon ? Not at law, but in 
 
 equity, which disregards form, and looks to the suifetantial 
 
 rj^»ti((je;; of the .casie'?. ■. ;■ ■ ■ ^ ■' j,,,. 
 
 ;.'' S-his-is a partnership det)t of the Mississippi houses'»piMf- 
 
 alblp out of the ^ociaiapets.of the firms,- and in case or a 
 
 ;Surpius of»assetsto payrthe separate debts of eaeh^artner 
 
 ; entitled to such surplus, as the separate debtor would, in 
 
 .case of a surplus of social assets be entitled to the separate 
 
 share of the partner separately indebted' to him. This is 
 
 the ryje of the 14th sec. of the bankrupt law, and is but the 
 
 .rale in equity which is derived from the civil law, audi 
 
 (Suppose ,jOf everycode, which' «?wes itp distinctive features 
 
 to that enlighted system. It certainly is the law of L^V 
 
 ,eiai>a, whej-e this accountwas created) sold and trans!ferred. 
 
 3^ LI" Ann.tR. 3g2. . Mr. J. Slidell,al present Chief Jiastice 
 
 of that State, speaks so appositely on the point, tha*t I will 
 
 • quote him. He says ^ " Tte.partnership once formed and 
 
 , put into actiori' becomes, in. JOTalemplatlTO of law, a moral 
 
 being, distinct fj^m the persons who Compose it. It is a 
 
 ci.vil.joe^on, whi<3h has 'its peculiar rights and attributes. 
 
 y^ine per Sonne fictive etmprale separee des'dssocies. Fieiar 
 
 cvjeisdam persunna^ vicem oblinet. See the authorities 
 
 cited in Tropl^ng on Part. sec. 68, &c. Hence, therefore, 
 
 the partjjers are.oot the owners of the partnership property. 
 
 TheUdeal being th"s^^cog^ed b.y a fiction of law is the 
 
 owner; it has aright to control andsdminister the prpper- 
 
 tf to eDifliWe it to fulfil ttfe le^l %M^. ana; oSligifMgJ and 
 
 the respectiv* parses who associated themselves%r the 
 
jjurp«s0 of 'participating in the -profits' which'- mayVaccrue 
 arf-e -not the cfwners of the Property itself; but of tRe resi^- 
 dniim which may be left &6m the^ entire paktiersljip pro- 
 perty, after the obligatidhs of the partner^t& ai-e dis- 
 charged." 
 
 IT,»tben, we disregard tlie . technical intricacy of this 
 transaction, arid look at its real and .siibstantial nature we 
 can have no doubt. We rieedfonly to bear in mind the dis- 
 tinction between the social and'individual relations of these 
 parties, and the matter is plain and simple, and oh behalf* 
 of creditors this should, on' principles of justice, be sustain- 
 ed. This case is clearly" embraced in the principles: laid 
 down by Cany in his work on Part., where he says : 
 
 "Where there are miner partnerships and distinct deal- 
 iflgS'between the different houses, and all the firkns b^me, 
 bankrupt, a debt due from one firm to the other mJ^ be 
 proven in the same as though the dealings had been be- 
 tw^iSri stranger^, a^d where the same parties carried on t,wo 
 distinct trades, at different places, and under different 
 nartiegj the concerns wfere kept totally distinct, and regular 
 accounts were opened bet we etj the houses, and in general 
 both concerns were conducted %s if the proprietors of each 
 concern had been different a^d distinct ; ori a joint con\-' 
 mission against on'e firm it' wig held that the other Hr|n 
 could prove against the joint estate of the bankrupt fifroi" 
 p. p. 240. ■"-' ■• "■'-' 
 
 ' So in this bas%, 'the New Orleans fifni being bankrupt, 
 the indebtedness of the Mississippi firms to it is assets in 
 the hands' of the social creditors, and can be enforced by 
 Oakey.'or his assignee, as the purchaser of sUch indebted- 
 ness, regardless of the ihdividual identity of 'the partners 
 composing the firms ; such", unquestionably, is the rille in 
 equity, and feason aild justice would seem to upholdjt.' 
 
 See,, generally, h Story Eq-,;- sec. 679 ; 6 Taunton 597 ; 
 2 Bos. & P. 120 ; 3 How.(Mi^&) R. 355 ; Collyer on Part, 
 sec. 889, 1001, 100®, et. seq. ;^tory On Part. sec. 376, p; 
 341, n; 2'; 2 Bell's Com., 619,20 ; Pr. Dec. of Mrl 
 J. Darnel, S. C. U, S. r'Wilson vs.'McEhoy, '3 Smedesife'' 
 M. 24tj and casek therewith cited. '"' ' '' 
 
 III. Has'the Court of Chancery jiirisdiction in this case? 
 
 Before examining the question it is well" to remarkthat 
 the mere faict that a party has a renledy at law will not de- 
 prive this Court of jurisdictiotij' for it is a rule withoHt an 
 exception that whenever a remedy is Wiore full and cOlri- 
 plete inequity than it is 'at lawf/'sourts of equity will 
 
 else jurisdiction. •"?■"■ .'&•"',''' '' ' '.,''''' 
 
 K; (ieiirfedhl^fhe s'O'Bject filter # this suit, 'afid thte' oii-' 
 
14 
 
 cam^ljIBde*, surrounSi^ it, mofe aoipleand complete %5eMef 
 can,»ife rendere^/hei^e than at la'w, this^ourt wMi afford it. 
 
 If I am right in the view ojSthe nature ,«f the claim, as- 
 s'fgiied by Oakey to domplain^pt it is at once evident that 
 there was never a remedy existing a't law, but whether in 
 the hands of Backner & Sta^j|^;or*-lheir assignee5lior''of 
 Oakey, the purchaser, or his assignee, a Court of Equity 
 had and has the sole aad exclusive jurisdiction o,v6r it 
 
 Butih another point of vie-^'the question of jurisdiction . 
 •is a. clear onp. Joseph Sill, the assignee in bankruptcy, is , 
 dead, and no other has ever been appointed, and if hving 
 the. 8 s^c. of the bankrupt lavsT forbids any suit by or s^aittSt 
 him, after ^he laspe>of ;lwo years. Then, if thii^ suit eoulda 
 ever have been prosecuted ia his name (which I doubt) 
 thtt,fehtis; gone and gone by nQ%fefes of complainant vT' 
 his a^^nbr. There is then no one in essee in whose name 
 this 'suit eoiild be prosecuted at law. Tif the party, there- 
 fore, had no original right to^irelief in equity; the special! 
 facts of the case would entitle hi rti to it. The law on this , 
 su}}|fe,pt ■jvas greatly discifSsed in our Stateiiapont^ieassign- 
 naenf'of the Planter's. Ban^ to the United States Bank,, and ' 
 af it exists in Mississippi', will be foun,d in thie case of. 
 Bacon, et'^i:,';^. Coked, I'l Smedes ^ Mi R. The former ; 
 assigned to the latter a large amount of b^lls receivable.— r; 
 After asSigjament, and before suit brought, the charter of 
 the Planter's Bank wate forfeited. / Afterwards suits were- 
 conimencigd in equity by the assignees of the United States 
 Bank insisting that an equitable interest was vested in them 
 fa;y*^fee assignment, that their legal remedy was gone, and , 
 asliiag -naked money decrees with execution. -The bills i 
 were, filed asking no account, averring no trust or accident, 
 and charging no fraud. Indejedj but for the averment that.v 
 the' transfer had vested in the assignees an equitable inte- 
 rest in the clvqses in action, the biJls were simply 'declafa- 
 tiorii at law. i, The cases were severely contested in all the 
 courts, yet the Court of Appeals asserted ,ther jurisdiction 
 of Eqijity, there being-no ~party in' whose naniie the right' 
 cotaldlfc enforced at law. It, was strongly urged that suit 
 could be brought at law in the name .of the statutory trus- 
 tree of the extinct"!,Bank, for the use of complainants, blit 
 tlhis was overruled, it being answered, that their powers 
 ■vyeijei, limited by the term^ of the Jaw linder 'which they 
 A^fserig appointed. St).;ieTe it may. be said that the powers 
 of the assignee, ujidejiithe bankrupt law, are limilifd';!* ex-. 
 press terms to two years, and afterwiferds his assignees pos- j 
 sess but an equitable iMerest.' I will' here rematrk that F, 
 caanot ?ig*ee that this assigneehad no power^p sell or as- 
 
16 
 
 sign thisclaip< The •'speed;^se^tlemeinl,''.intejitl]ed by;;the, 
 law would se«m, clearly to indicate that he could' sell in a 
 case like this,, and the power becomes manifest^- when He, 
 is* required hiy the law " to collect the assets; and reduce the 
 same to money, as soon as the rights of creditors would 
 admit," attd.,|when, in thefS sec, he is limited to twe years, 
 within which to bring any suit at, law or jn equity. 
 
 It was also ^irgued in^ the case laSt cited that an equity 
 was a mere incident to a le^al right, and the incident wasf 
 involved in thedestraction of the principal. The answer^ 
 was: "T^'is argariient is not Weil founded in its applica- 
 tion, to mere rights, or intangible things, such as chases in ac- 
 tion. Such rights are often eguitable merely. Even- the, 
 payee of a lost note, «ot negotiable, had not,; according to- 
 the English decisions) a remedy at law; his repiedywas 
 e-xclusi)r^ly in Equity," ,,, , , ..i,,. '.• 
 
 ,Jfeaifl| the Couf't say: 'JThe transfer of a nots'by mere, 
 ^livery,,' v?,hic;h is not. payable to bearer, vests an equity .or 
 beneficial interest in the hold'er. If, by any casualty, he 
 shotil^ be deprived of his remedy at law, the nature of his 
 right entitle'-s him to redres,"! in a Court o'f, "Equity. ,- His 
 equity is not destroyed because his payee may happen to 
 die. His is precisely such a right' as a Cour| of Equity 
 m^y talse .pogni^aitGe of, because he has taken but an im- 
 perifect poWeyance of the tijing trapsferred,"' quoting 2 
 Wheatov, 373, where C. J. Marshall, in a similar :,case, 
 said, a Qourt-jpf Equity was the proper and only court in 
 .j,;5«hich such a rig-ht can be asserted.,;;, ,* 
 
 The natural and inevitable deductions from the princi- 
 ples of thifi case, and the reasoning in 2 Wheaton amply 
 suppqrt the jurisdiction of equity in a case in the condition 
 of the one. at bar. I agree with the senior counsel in-his 
 position as fo the manner of charging fraud,so as to give a 
 Court of Equity jurisdictioni« But I will here say that the 
 charge? of fraud in, the bill have no controlling weight with 
 the Court in setUing its jurisdiction, it is exercised be- 
 cause Iho' claim of Oak ey, in its inception aritj \jx all ita 
 stages, has. been one -purely of equitable cogjaizanee, and if 
 suit 'could, ever have been maintained at law on either 
 claim, in ;.the name of the assignee, he is., both "functius 
 officio" and physically dead,and complainant's is precisely 
 sOch'-aright as Courts of Equity; ;inay take cognizance of, 
 bafi'ausehe has taken an imperfect conifeyance of thething 
 transferred. ■',,.. 
 
 I miglbt assign other reasojB? for the conclusion. arrived' 
 at ;, such- ^s, the rule that the^assignee of aichose in action, 
 unless negotiable, obtftirs but an eqai table 'JEtereat which 
 
it|'Uity'?a^l,bii05«hfdTc'es ; that 'iri^tnally.'dt; cotti'mon law, as- 
 si^hciiieiits of dhoses ia: action were void, as -co'ntended by 
 coii^^ for defencIantS; anli eqaiity exercised: 6Xc!;usi^<e'J'u- 
 r^^ibri'in the premises, whicS^ is not liaiken away beeau^te 
 steules have conferred the like; ort- law courts, or becatise 
 they' have seeti proper to assutn^ it. See generally, 1 How. 
 (Miss) 562-3 ; IjStory Eq. P. sec. 91,. &6 ;, Bacon vs. Co- 
 hea, l2Smedes & M. 51,6; 2 Storj^Eq. sec. 1057; 4 MaSon 
 R. 16; 3 Paige R. 466; 2 Paige R. 2-9; 5 Paige R. 53Sf; 
 
 1 Storv Eiq. sec. 80; 1 Cu^bmaii, 90; 4 Cowen, 717. 
 
 ■ « * * * * , # 
 
 I Ganiiot perceive Jhe force of the remark that this pro- 
 ceeding is to inipeach the judgment of a court of exclusive 
 jdia^ffi^g^jsor tO enjoin a decree of the District Court of 
 tnfpff|^d States. Much was here said, the application of 
 ■which/nfcannot see.' I admit the rule that parties and pri- 
 vies can only impeach a judghient in the Sourt whe*r% it was 
 rendered. General rules are of little use unless the case 
 admits of a practical ■*applitfatioh.' I do'not understand this 
 bill to iftipeach any Judgment of to enjoih any decree. It 
 sets out a defence to the claim, wiich the patties may int&r^ 
 posSj and says Ihi^ defence is founded oti a certificate of 
 dis'Cbarge aSbankrupts, whidh is fraudulent, null and void. 
 This is adtfiiited to be true. It is properly sai^* by ^coup-'; 
 sel of complainants that virherej as here, the. pleadings in 
 Chancery are simply by bill and answer', it iis regular^in 
 coriiplainatit to set but in- his bill the' pretences of defei-' ' 
 dants» as here, the pretence of a fraudulent discharge. — 
 Sfcry'Eq. PI. sec. 31 & 677 '& 6'78.' '^ 
 
 Counsel say they do not refy on ftieir discharge ; that 
 they do ncit plead their discharge; thatthey plead and rely 
 on the bankrupt law. If so, it may be jiaturally enquired 
 how they can rely on the law, unless they show a dis- 
 charge under it ; for If they have or plead nb discharge, the 
 law is no protection to them; tl^e'jlaw only protects arid 
 can bnly be rfelied on by those who'%old st'discharge under 
 it, atid a valid discharge at that^and if they admit their dis- 
 charge nulttand void, neither it, nor the law which provides 
 for it, will avail them. ~ 
 
 But is it correct to' say a judgment is impeached or enjoin- 
 ed"when a party alleges there is no such judgment; that it 
 is' a fraiid, a nullity? This certificate of 'discharge, or, if 
 you please, this' judgment of disji'harge, does not- of itself 
 ^nd in itself bar ar^jd defeat this. action. The party entitled 
 ib it milst pleatd it-."-' If the party does riot do so, of course 
 it is not "iii question. Bbt complainailt apprehends he will 
 pl§ad"it, ai*'herrftl%t'io to avail shimself of it, artd ptib^ii 
 
""17 
 
 ' td'aiicoid it as ariy otheM§fence: Can he not ihen impeach 
 it for fraud? Thtj banfeupt [aw itself gives'' iiim a ri^ht 
 (if a6t! for otfiei" reasons debai'red) to "impeach it for ./Vaud." 
 Does Aetactjttet tlie fraiid grows out of a judicial proceijd- 
 ing, (orVathera'qiiEvsi j^iciaJi protending,) take away this 
 right? Mere terfifi^ sometirties mislead, and t^e mode of 
 puttiiig a pofnt changes its natui-e practically. Is it not a 
 universal principal that fraud vitiatfrs everything iiito 
 which it enters. In Niies vs'. Anderson, 3 How- Miss., C* 
 J. Sharkey says, p. 386, " Any act however solemn, even 
 though it be a judgment of a court of competent jurisdic- 
 tion, may be set aside if procured by fraud," and' the cases 
 cited by Clayton Counsel, p. ;376, abundantly nriake 'good 
 the remark. Contracts, solepiQ assurances, judgments of 
 Cijurts, and even the statutes;'; of [he land, have been im- 
 peached ^r fraud. 
 
 To say that 4 juflgment is a nullity cannot well be said 
 technically to impeach it, for it denies that it ever had;a 
 legal existence. But is thi^ right of impeaching a dis- 
 charge for fraud, confined to the couft wfere it was. ob- 
 tained ? This would scarce be reasonable, when the bank- 
 rupt law s%ys the discharge,' " may be pleaded in any court 
 of judicature whatever." ' It also says that the discharge 
 shall be a ^ar "in all courts ofjustice, unlesa impeached 
 for some fraud," &c." Thensif itmay be pleaded in any 
 court whatever, and is a bar, Unless impeached, is it not 
 manifest that it may be impeached " everywhere." 
 
 Chancellor, Desassure, in 3 E^^s. 269-70, speaking of a 
 fraudulent insolvent discharge, says, "that in case there 
 was any fraud or concealment in obtaining this discharge, 
 this court'isnot bound to^ give effect to the discharge 'ob- 
 tained in any other Court. ' That it is essential to the juris- 
 diction of this Court to detect fraud, and prevent its^having 
 its intended effect, and even formal judgments at law can- 
 not resist its all-searching power, and when the frauds on 
 which they have, been obtained are exposed, such ju3g- 
 ments are . decreed to be nullities. * * * If the dis- 
 charge was obtained by fraud or concealment it was a mere 
 nullity, like every other jodgnsent or sentence of a Court 
 obtawd hy fraud or surfeptitio^uslx." 
 
 These views are fultyiSlustadtoed by C. J. Ruffin, of North 
 Carc»lina, in 8 Iredell, L. R., ^N.^ C. 142. Among other 
 things, he says, "the remedy of the creditor is' not an ap- 
 pHbati^ti/to the Court of Bankruptcy, upon the ground of 
 friiiidfHftwly discovered; but it^s by replying the fraud of 
 the bankrupt to his pba of the bertificate, so as thereby to 
 aypid;the bar. As the certjlfiaate may be-pleaded in all 
 
. 18 
 
 courts, it follows that it may h§, implied ia' amy Gioxitt ia 
 which it may be set up as a ba^ ?" ^ '"' '■■ 
 
 These positions meet my u^iialified^assent, and 4he mere 
 forms of pleading or technic^'N^e cannot avail to avoid 
 substantial right. See genel&Hy, 3 !Des. R. 269, 270 ; 8 
 Ire, L. N. C. R. 180-1-S-3 ; Jl Uenio 75; 1 Gushing, 564-, 
 SMetcalf, 75; 9 Metcalf, 434-8; 2 Story R. 349;^l1|ar. 
 Ch. R. 352; 18 Ohio R., 412,413; 9 Georgia 9, 14. 
 
 IV. It is next insistfed that Oakey and Montgomery and 
 Boyd, the assignors of complainant, by coming in and proving 
 their claims under the proceedings in bankruptcy, notwith- 
 standing the alleged fraud therein, waived all right of action 
 against these detend^nts, and that the certificate of dis- 
 charge was final and conclusive upon said assignors, they 
 being parties to said bankrupt proceedings!- 
 
 The decision of the point thus presented will regukean 
 examination of the provisions of the bankrupt%ct0ifni84I, 
 to which the Court is so earnestly and so properly in¥i|ed 
 by the counsel. With the proceedings in cases of ibvolun- 
 tary bankruptcy, we hate here nothing to do. It is the 
 true extent and meaning of the law touching volunts^y 
 bankrupts which > we m^lst look to. It is now generally 
 concededi, though at one time doubted by some, that Con- 
 gress possesses the power to discharge insolvents from 
 their debts at their own instance; yet, as Remarked by 
 Chief justice Ruffin, it was a new principle in the: law. of 
 bankruptcy. Previously creditors possessed the power . to 
 compel their debtors, littdfer certain circnnistances, to go 
 into bankruptcy ; it was a privilege of credifbrs, and thpugh 
 the act of '41 may secure Some rights to the creditors in 
 «ases of voluntary bankruptcies, yet it would seem to have 
 been done ex gratia, and it must be fairly admitted the pro- 
 vision was niade for the benefit of debtors. I might say 
 that the history of the law so proves, but I will onlyre- 
 mark thatiithe nature of the provision itself demonstrates 
 it ; for it was a principle unknown to bankrupt laws, and it 
 was a privilege the debtor could, at his own option, exer- 
 cise, and by twhich he could compel his creditors to come 
 into bankruptcy with him. ■ , 
 
 Counsel have said to me that the bankrupt law was de- 
 signed to establish a system, and I agree with them. [And 
 to my mind, on examining its entire provisions, ther§. is pne 
 liiain feature, prominent and paramount over all others in 
 the act. By it we may judge the true meaning of minor 
 provisions, for 'they must allbeheld and construed ;to sub- 
 serve this greaVobject; and- any interpretation which tends 
 to defeaj or iinp^r this giaitt priildijple of the law cannot be 
 countenimced. 
 
 \ 
 
Id 
 
 Then Iet4is,«unt ttie law. > The great purp<Mie'(^ th^aet 
 y^s, that where a man made a fqll, fair and honest surren- 
 der of all his property of every kind and nature, he should 
 be forever discharged from all his debts and , liabilities ex- 
 cept such as were specially saved, and this too, without re- 
 gard to the proportion of his debts to his assets. Though 
 th6y paid but one centin an hundred, he was clothed for- 
 ever with a legislative Exemption from his existing con- 
 tracts. And his certificate oi discharge was made in all 
 Coarls of Justice a full and complete bar to the recovery 
 of ajl bis debts, contracts and engagements, pleadable to all 
 suits in "any Court of .judicature what^v-er," and is made 
 conclusive evidence in favor of such bankrupt. The bene- 
 . fit of the law is extended to a^persons who shall, by peiti- 
 tion, set forth all their creditors and " an accurate inventoi^y 
 of their property, rights and credits, of every name, kind 
 and description, and the location and situation of. each and 
 every parcel >and portion thereof, verified by oath." It is. 
 further provided that all transl^rs, agreements, preferenceSj. 
 &c. j and all payments, securities, conveyances and conceal- 
 ments made in contemplation of bankruptcy, (with notice, 
 &c.,) st&ll be deemed "utterly void and a fraud on the act,"^ 
 and the person, making such, f^ shall receive no discharge" 
 under the act; and the effect of the discharge as a protec- 
 ■tion to the bankrupt, is without limit, *f unless impeached 
 foe some fraud or wilful concealment of property or rights 
 of property conteary to the provisions of the law." 
 V, ; When we Tcflect maturely upon the whole scope of this 
 1 legislation ,, ii becomes manifest that good faith on the part 
 of tbft bankrupt, who initiates the proceedings, is the grand 
 essential of the law. The nature of the proceedings, the 
 relations of the pai-ties thereto, the unusual and extraor- 
 dinary results flo"«(/ing therefrom, and the;* express terms of 
 the act, all make it a prime necessity. This leading 
 purpose stamps the true character updn allminpr matters , of 
 the law J in interpreting other provisions and assig-ning each 
 its due weight and its function, we bear this in mindso as 
 to preserve, secure and effectuate this. cardinal And>,cotttroll- 
 ing intentions of the Legislative. The act was designed to 
 relieve"' honest but unfortunate men from the thraldom of 
 debt — but to extend no aid or.couriieriance, for the present 
 or in the future, to the unprinc^plediarty who saught a dis- 
 charge while he secreted his.^ropfertyi or defrauded his 
 creditors under the form and wnH the fi|t of the la^.' • 
 r iUnder this law Buckner & ^tanton are discharged bank- 
 ; rupts. Did,t^ey make a fufl and fai? sijf render of all4heir 
 property^ Didf they deal ho.n^tly wtl^iheir cjeditprs, and 
 
;, sriUj Xhe GouTi .m*. oijiairsi'rig.ijtteir dji^ejjaft'ges'?' Tti^ bjU 
 ;chi^^ges aiid the dpajUTi-er a(imitSj j;ti>ft'i'ftferS'^dbnyeyan^^s, 
 ipjeferencif^ .aad SHcretibfts, to'a. ^ast amount, by tifem m&e 
 J'Jn coritejnplatiqp of <.bankrifp«cy" and-irt'frau'i' of Ihe'Tfiw, 
 
 ..j^Bd sach the Jaw' denounces?' " as utterly 'void>'" and fftat a 
 
 .ipersofi thu| actirtg, shall ;••' receire ffo discha^g'6'; uftdei-' Sts 
 pi-oyisiojos.'',, , ■ ■ , / ,,: '.•.X- ■ ■■■' '■■*.- 
 
 ,■ And the'fact fisnher is tt^af of these proceedings, the cdm- 
 
 ■ plfiiaacit or his assignors had no'klowledge wntil, withm 
 
 , eighteen rnonths..past., :. ../i* .-i i • ■ ' 
 
 With such premises, the defemee is rested on £lrfs''^,diri- 
 sion in ;ti-ie 5th -seGtion, of the law : • " That nb credit&i: or 
 other person coming in or proving his debt oi- clairti shjftl 
 |)e,.a!lovii'led'.taihaintain any suits at ife^s'br in equity #ierefdr, 
 
 J)u| shall be deemed thereby to have waivyd all rightof ac- 
 tion arid suit agairist such bankrupt."'- : ,; '- * 
 
 ,. The'trueigjent, of this section, ,\iriien- ,we b^ar in ttsiiid 
 what h^ gwtetbefore, is verjrjobvious. A certain class of 
 creditofs are exempted from , the operation of the law, as 
 well as peculiar rights; and thefe areothf'ra whoare tiot 
 bound by it, such as fiduciary* creditors, those holding hens, 
 &«?,, and foreigti Gredito«&.. It was the wish pf C^ft^i-ess^'to 
 induce a conjplete settlement of a bankrupt's esiafe?fey 
 one a^id 51 joint proceedipg of , all credrfcors of every ^lass. 
 
 ,,X,heref#re it simply; provides, that though not boa ad ito 
 ep|ne in, yet if a. piarlyi will voluntarily so'do^ he shall be 
 held to the natural consequence of his own' actibn; If the 
 fiduciary creditor comeS;in he is forever barred froiii fsuit 
 
 , wijep the bankrupt has acted in good faith, and so with the 
 holderSf of leins, &c., and so with the foreign creditors: The 
 genera! credit*^, whether he comeS in or stays but, is barred 
 fro,m!fl|e recoveScy of his claim where there has been bona 
 
 fides on the part of th& bankrupts - Every person who v&l- 
 watarily participates in the banicrupt proceedings is held to 
 yield his assent thereto, and the law will shield'the debtat by 
 its own decree of discharge ; but never ^ except upon the as- 
 sumption that he has acted in good faith and fairly and open- 
 ly jKfith, the law itself. .Thig assumption is the very gist and 
 essence of the whole system, the life-blood of the law 
 which lends a healthful vigo? to all its provisions, both 
 great and small, and without it the. law itself becomes a de- 
 , lusion and a fraud. 
 
 Guided by the" dictates of sound justice and a correct in- 
 terpret^tioi](, I " ani clearly of opinion that no creditor •£ 
 any cfass, whether he has proved or not proved his claim, 
 wheth^ he, has come in or s|giid out,>is barrel from suit and 
 ipcpvery, wh,9ij|.e.caj> show .that th^ ■|i§ciia^ge was friudu 
 
leipitty obtained, and that the bar'is a nullity ; P'rmided, he 
 was ignorant of the fraud and there were no circumstances 
 'which ^ould jristly put him upon efiquiry, and he has not 
 ddajjieff action too gi-eat a length of time after he came to a 
 knowledge of the fraud. To my njind, to hold otherwireis 
 to involve a monstrous assumption, which is, thai the 5th 
 section was not only intended to; hold parties to the jijst and 
 natural eonsequences of their coitiiiig in and proving theiif' 
 demands, and to protect fair and, honest bankrupts from 
 haragsjfti^nt and litigation, but that the legislature, while in- 
 viting all, as if for purposes of entrapment, further intended 
 to I protect -alike, .good faith and fraud, honesty and dis- 
 hcHoesi^. Such is the practical result of the arguments ad- 
 dressed to me,i. to which I cto never assent. I adniit that 
 Co ng'tess* designed to free the land from a load of debt which 
 crippled the* resources and crushed the energies of our 
 people. I adaiit its design was to secure a prompt and com- 
 plete settlement of •a'bankrupt's!#stnte,;and't'o put an end to 
 litig^fn.. But this relief is ha'| and settlement secivred,'' 
 aU(|tliti%ation ceased only where^ good faith and fnir dealing 
 ar$ observed. Sdch, and' only such, as act on these rules 
 arejiniended to be benefited by the law of;can*be protected ; 
 by the Cburts' acting updies, it. •.■^''- , .■,' ' * '^^'' ' 
 
 The law itself pronounces su|h condtict, as these defen- 
 dants stand confessing, "utterly void- and a fraud Hptttithe 
 act,"' and such person. shall receive "no discharge under'the 
 provision of the act." It further empov/ers the bankrupt to 
 use his 'discbarge at any tin;e and everywhere, '-in all Courts 
 of Justice and in any Court of judi<;atu?-e whatever" ''xtij- 
 less impeached for some fraud or wilful, concealment con; 
 trary to the law.", Isi it not manifest that this recognizes 
 the right of any party lo impeach la disf.harge. for'fra'ud to 
 the same broad extertt at which the party holding it is au- 
 thorized to use il ? But by the rule asserted, the 5th section 
 will annihilate the plea of fraud or rather the fraud itself, on 
 the day ol the creditor's coming-in, while the 4th sectioit ~ 
 leaves- standing the discha^e iii full vigor'ever afterwards. 
 Yet by the same law this discharge can -rind may be at any 
 time " impeached for fraud !j' If this be so, are not the two 
 sections in conflict? ,Do they not practically contradict 
 and refute each other? if it is possible both should operate. 
 Tl^ig can only be by giving sucfei weight to the coming in 
 of a creditor as naturally belongs"to it ;. to bar his suit where 
 thfe debtor has acted in good faith ; to make it an estoppel of 
 litigation and 'a Waiver of rights-^not affi estoppel of jus- 
 tiee,and a .sonctification of fraud, for wMich the dischaTge' 
 ; msty be iiiipeaiched whenever it fejBterposed bet*ween Mn» 
 
23 i 
 aipithe right of whose exercise tie has been fratidtrletttly 
 
 Ih a bankrupt proceeding; in one sense, the petitiifeS* iicts 
 as,''the ti-ustee of his creditors* He bHngs them itito Court. ■ 
 He maktes his own showing. Qmo dd /toe, 'the proceedingsare 
 exparte. The creditors do not represent or protect ea;ch 
 other. The petitioner oh oath represents each and is bound 
 tok protect all. If he is guilty of fraud or concealment, it is 
 not probable they can or will be apprised of it. The pre-' ' 
 sunaption is, in fact as well as;in law, that he is acting fairly, 
 and this presumption is^ the Ptimal warrant for the extraor- 
 dinary relief he'seeks. Viev^gthen, the.pracfeal as.well' 
 as legal nature of these proceedings, is it consonant with 
 reason to say that "the creditor has had his day in Court, 
 was a party to the proceedings, was invited to litigate the 
 discharge arid is therefore bound in the face of concealed 
 ■fraud?'' He was invited in, but he was invited to partici- 
 pate in a^' fair and not a fraudulent proceeding. He caihe 
 into Court where presuniptions both of law and fact favor- 
 ed fairness— whece the solemn oath of the party besi)oke 
 fairness — and he knew of, no fraud and had no right to sus- 
 pect fraud. But there was fraud^fraud on hirn-^fraud on 
 all creditors, fraud on the Court and on the law. Can tlie 
 bankrupt,say : true, but fiixi are estopped by the law — the 
 5th section is a waiver and a bar. Can he pleacl the protec- 
 tion of a law whose spirit he has wronged and whose letter 
 he has defrauded?. No orie can say such a position is sound , 
 in rtjprals, and ta my mind it is equally U&tenable in law, 
 and especially in a Court, of conscience.. 
 
 - 1 would here remark, that iven adnvisting there is foice in 
 the pp|ition assumed in regard to those creditors wh® are 
 not included in the law, and who are not bound by profeeed- ' 
 ings under it, unless "ex niefo motu" thej' become parties 
 thereto, it 'loses any su«h force; anfl for a palpable reaso^, 
 when applied ,to those creditors whose claims are barred, 
 Vliether they come in or not;^ Their action does not alter 
 th^ir condition. The law conflscales their debt in any event. ■ 
 I might trace the consequence^ of such a rulfif as to them by ' 
 striking illustrations, bu% more rjhinkis not needed. 
 
 ■ I have carefully examined the authorities relied on by 
 .counselj,but;find nothing to shake my conclusion. 
 
 /The majority siilnply decide that fiduciary and foreign 
 creditors, and' those havitfg liens, ^&ic., who are hb't wttMn* 
 the.-!aw,>ma;y yet come in unde? iti and if so, they are "held 
 to therMection thus made and .' barred of remedies thus 
 yielded;) 5 Law Rep. 225, so much'-relied oh, was a pro- 
 ceeding *§y creditors agaSiost theip dfebtdr. Iflf such a "case ' 
 
th^ willbe held bffund by all the legal resiiits, flowing 
 from and growingl out of a prbfeeeding of their own instit'd- 
 tidn. None of them are cases of fraud in this bankrupt. 
 
 31 Maine, 19.4, Hiimphreys vs.Swett, is the' only case in 
 which fraud was charged on the bankrupt, and the creditors 
 who had proved against him, were hi? Id to be barred.! But 
 the Court in it? opinion evidently speaks upon the assuhip- 
 tion that the ci-editors were cognizant of the fraud at the 
 time and failed to litigate it. It says: " If the creditor was 
 one who canae io and his claiijj was allowed agalinst the es- 
 tate of the bankrupt, he was entitled to object, for all legiti- 
 mate causes enibracing fraud acid wilfiii concealment, and 
 the fullest opportunity was affordled by the law for him to 
 do it. If he omitted to make the objection, or having made 
 it without success, he was debarred from instituting suit 
 upon his debt or other claim, which had been allowed." 
 
 It is true that if the creditor ^&s aware of the fraud at 
 the time he is barred, for he then acts knowingly, but can 
 it be said that the law afforde(|him an opportunity to object, 
 or that he o«}{/fefi? to object matter of which he had :ho 
 knowledge. This would not sstvor of reason. The bill 
 states that neither Oakey or Montgomery &; Boyd, or the 
 edmplainant had knowledge of the fraud charged wtithin 
 eighteen months of the filing of the bill nor had they know- 
 ledge of any facts which would properly put them on en- 
 quiry. Therefore, though I may not question the law as 
 laid.down in 31 Maine, it does not apply to the case made 
 by the pleadings. 
 
 On the other hand several Courts of high authority give 
 their sanction to a different rule. ^: 
 
 In 8 Iredell 242, Chief Justice Ruffin, an eipinent jurist, 
 speaks this manly language. ' . 
 
 '^Though it niay be in the power of Congress to dis- 
 charge insolvents from their debts at their own instance, it 
 was, we believe, a new principle in the law of > bankruptcy, 
 aqd so strongly tends to encourage men dishonestly to, con- 
 tract debts which they do not intend or mean to pay as to make 
 it highly proper, as far as possible,' to guard the Courts froin 
 imposition and to protect creditors from fraud in obtaining 
 discharges. It is enough to put it in the power of a man 
 after running in debt to spend all his property, and then, on 
 his own motion and upon hi^ own. oath, -free himself and 
 his future acquisitions from liability tq^ his own creditors. 
 * * * * * jje says^" where they have 
 acted fraqdulently, the discharge shoulcl be refused, and in 
 the ngxt place to hold ^ discl^arge obtained by such means, 
 ineffectual and void, whenevlr the fraud shall appear.;^' 
 
• 24 
 
 'yije.,!Supr,eirie Court of Tenn«asee,4oj»^j«asc, ^kjO^.r^-- 
 CK^Hoi unsuccessfufly resistfid a discharge, &\l6w&i,hm 
 afterwards to impeach it and say,, ^,' if th^fraud apptia^ peiia- 
 ing his suit against his credit^j. no decree of .discharge 
 coilfd he made. If it appear afte'rwai'4i5,;its effect is to an- 
 nul and destroy the discharge and certiifieate as though they 
 had never been obtain'ed." ll Humphreys, 289. 
 
 And in S^arb. Ch. R. Haxtunvs. Corse, 50S-533, CJjian- 
 celloj Walworth, in a masterly opinion, has explained the 
 decisions under the' English bankrupt laws, (our laws as, to 
 excepted creditors,) and the difference between those laws 
 and the act, of 184.1i as regards the' rights of general oredii- 
 tors. The doctrine of electiori' of funds and proceedings 
 "in rem," ice, belong to the one while they have no bearing 
 oti the other. Creditors in England, aha here a certain 
 Glass, can go against the after aCjC^ftfred .agselts of the bank- 
 rupt. Bui general creditoTS can only reach the fund sur-' 
 rendered. The one elects uilder the law and is bound — thjs 
 other isbpund«with or without anelection and confined toth,e 
 fu&d surrendered; ' The Chancellor concludes by, saying : 
 
 ''Therefore, notwithstanding the,, general language coBr 
 tained in the 5ih section of the act-^thfe law makers did o^t 
 ^ intend that the proving of debts by creditors should be an 
 *ab%lute abandonment of all claim against the future atqui- 
 sitions of their debtor if his di^c})a|U§ i§ refused" (for th^ 
 argument is as good where the discharge is refused/as 
 where it is granted,) " pr if it was void for any of the frauds 
 specified in thte act; but nie rely' that the proving of dejbts 
 under jthe decree sjiquld.be- considered as a waiver of the 
 right of the Creditdisvat law or in equally, which were in any 
 way inconsistent with the election of such creditors to ob- 
 tain satisfaction oi'Aheir debts out of property' of the bank- 
 rupt under the decje'e, and as a consent to be barred.by the 
 discharge in %ase' the bankrupt should obtain one whic^ 
 was not impeachable for fraud or wilful, concealmerlt of his 
 property." .^ 
 
 In eoncludih^the ppint, I caiinot help remarking that if 
 the creditor is stripped of th^ power of impeaching his, 
 debtors discharge under such' facts as are here presented, 
 yovi strip him of the only material privilege reserved to him. 
 by the law. i^Sounse| have characterized this law as a statute 
 juoi|gipEient;^ith «xecu|Jon in favor of creditors'. 1 rather re- 
 gard? jt as a legi^ative confiscationof existing- rights for the, 
 benefit of the debtor, with the privilege to creditors to avoid 
 it ifor fraud when known to him ; and this right the Caprt 
 sljbuld Sedulously guard and preserve for him. S^egene^ 
 rajlf 2 HpwarcfciUiJ., 202; ^ LawRep.gBQ^' l.Casbman, 
 
■85., 
 
 •v. T^e next .«(5^ Umb ll»9t ^^fepce .jjr;]^ichlsb^l notice ^ ., 
 of the statute'of limitations. \ , ;" ;:;, '' ', / , 
 
 dn behalf of coniplainant 'i^'is said ,that he ari:d.his^as- 
 signoris hsive been prevented from recovering the^e . claims. , 
 bf^'the frauds of the defendaijts, tfiat these frauds were un- ' 
 known to them and were concealed from them by the defen- , 
 datits, and that a Court of equity will not extend tp tVm' 
 thie benefit of the statute on, account of their fraudulent- 
 conduct. 
 
 On tHe part of d^lendantsjit is answered that a Coutt of 
 Chancery is'boiifid by the stat^Jte and c^n create no excep^' 
 tibns'to it — that the defendants have never concealed, the 
 frauds or' the cause " of acliori'pf complainanti and that it 
 ■would be productive of conffcion arid litigation to'mainta^ ' 
 this suit. ■', " ,.,'• 'i.. .■■.''. ■ ' ' r' 
 
 On the issue thus joined it'ijs said there is some conflict 
 of authority.* For this reason"! will first present my own., 
 view of the'law 'upon principles of reason and justice be- 
 fore looking to adjudged Case's?.; , v, , . .., 
 
 i premisej then, that Courti 0f' Equity are not bound by 
 statutes oh this subject. They are npt within the statute. 
 Tjhey look to the true merits of each case ^nd decide it oa 
 its 6Vn equity. As is, aptly^ said by a learned judge, Ihey,..^ 
 use the statutes as aids to their conscientious -discretion. 
 .Where there is no conlrqlling circumstance to prevent; 
 they act in obedience to the stafiite, but the statute is never 
 permitted to be used \^hen conscience would be violated. 
 
 A Court of Equity, I apprehend, never says thatit will ' 
 dfepirive a party of the fight:: to the benefit of the statute of 
 limitation ; because a party has no absolute right to it in that , 
 fotum ; the right is a qualified one, qualified by the prin- 
 ciples of the forum in whichit is-sued fbr^ and by the char- 
 acter and conduct of the party seeking it. It is an equitable 
 plea, addressed to the sound discretion of the Coutt, whicli 
 is always exercised in analogy to the rules of law unless 
 their adoption would violate, those privileges which stamp 
 the jurisdiction of the Court. It must then depeiid on the 
 attitude of the pai-ties before it whether the Court will exerr 
 cise'its discretion so as to extend the benefit of the statute or 
 refuse it. ,- ' ' " ; 
 
 ' Upon the highest principles of justice, a.Cpurt of Equity 
 will never enable a party' to .avail himself of the statutes for 
 purpose? of fraud orinjusticij or where iiyfi\\ protfect him 
 inihe conifiiission of fraud. Nor iviHiti^permJt liim'thusto 
 secure to himself the consequences oi^fruits of; His fraud. 
 When the party whose rights are injdred is ignorant of the 
 fraud, or 4he,frajid is (^ncfealib4 Jfrotn Wi^>' Jajise of Ijm.? j«^ 
 
26' 
 
 n*f j^dliaftted'to destrpiy Ihe'oiie o?*t(5^ad^lifif' ihl!%u^., 
 If apprised of th§*frau(i, his acquie^'fet\{?e"ii*pil:'^sum,dd; but' 
 "coliiceailin-eiit of- fraiid; however pt'slongi'd, #hte;th'er ditectl^ 
 pi^tHl^ed or as an eaSeptlal 'cohsHf^ent "of its perp^tratitin^ , 
 aviails nothing, aiid.wheti brought tb ligiit^ leaves the jjarties' 
 as'^Hey stopd -yvh^n it was first cf^Kiriiiit^d*'' ' - " ,.; 
 
 'Guidpd' by these views, I have 'no (^iffijialtjr in conaing to ^'' 
 'a.1i!?kt!lixSion iii ti&is case, The defeMahts 'obtained a dis- 
 charge by a ^-aud on thei, bankrupt law, apd by a fralud on 
 the rights of their creditbfs. T^ey" have" defeated the re- 
 cOV^^ry of these, clajms by fraud, and they conft^s the fact. 
 In**th;s'; simple sentence (Sdnsiststh^s whole case. They ap- 
 peal to this Court to lend thern its aid in availing themselves 
 of a defence which has grown oilt of tKeir own unjUst cpii- 
 duct., Can or will it do. so? I answer no. 
 
 To d^ so, it w*ould,n6 longer be a court of consieiice. It, , 
 Votild no lon^gerpuiii^h fraud) I' would ijo longer admin- 
 ister jsqkity. It* pure and enlightened system would be re- 
 solved into mere technioal anjd arbitrary rules, to be invoked 
 for the protection and sustenance of fraud and covin, and 
 not for the aid and furtherance of jt^tice and equity. 
 
 That the defendants are guilty of the frauds charged, and 
 that these frauds have prevented the recovery of the com- 
 plainiant's demand, .is hot denied. 
 
 But it is said that defendants did .riot conceal the alleged 
 frauds, and that, therefore, complainants^ are in. default for 
 not assailing them, To this I cannot assent... 
 
 poEcealmentis an ingrpdient of all fraud, for it isqssen- 
 tial to its commission. It is an element ipi, the tliing itself, 
 betjaiise fraud cannot exist without it. In.nine cases out of 
 ten >the fraud of a transaction consists in its cq^ncealment 
 from the party whose rights are to be injured. 
 
 _But here the fratid was directly concealed. As before 
 s^d} a petition!|r in bankruptcy occupied a peculiar relatiot 
 to his creditors. He was bound jin conscience, and by his 
 0|i^|i,;^o make a fjull and fair disclosure of his assetts, as re- 
 quired by layv. They look to him forlnfQxmation,.and.liaYe 
 aright to look to Mm. They have a right tp^rely on him. 
 If |Jb, fails to make a full disclosure it is a fraud. To, Jhe. 
 Extent of his ^i lure it is. a concealment,, for it withdraws 
 frorfi) the eye of, the (^editor a; knowledge of transactions 
 w:hich coiiliituteff aud,'which wo61d deny him his discharge, 
 and which would vitiate and anniil it whpn obtained. If A 
 Qccupiea.such relatioii t^ E> as a,uthorizes himto go to B for 
 itjiljjrmatipn on a glren subj?ct, to enalj|p him ^o act, and 
 B^affords him partita in forihation only,' and A is induced to 
 aet tKereupioB, thou|fh -the inforn^ation given may be triie, 
 
2^' 
 
 yet B istoone the lessguiltf of afraud.'arid the'dohcfeatirtfent' 
 oP< a .fraud' upon A. U is a^ fr'aud tb withhold thjs inf^fti'd-' 
 tion, and it is a concealment of a friud; because'A f^'1§JiOv 
 TEtnt of the suppression. It is at .once a iuppressio iJe'ri ApdV 
 and a suggestio falsirr-^& supipression bf truth in the inforffiiii-'' 
 tiofi withheld, and a sugge^tidri of falsehood, thatthbfacti^ 
 furnished comprise the whole case. Defendants cdrnmiite^' 
 the frauds ; they suggested falsehood in their proceedings,'^ 
 and by representing them; as full and fair, they contsestled 
 their commission of these frauds from thfeir creditors. * 
 
 It is unnecessary to say anything of a concealment of the'' 
 cause of a,ction. If defendaiits did not conceal the pla:intiff 's 
 cause of action, as is armjed, it does not alter the-^case. 
 Thei authority cited froiri m0uskiTtg is not in point. It iijtets 
 decided upon a special stattite of Massachusetts, and is only 
 laW under the special legislatipn of that State. 
 
 In my judgment, the adjMged cases amply sustain this 
 view. I will first notice^' cases relief' on by defendants. 
 The cases of Cocke ns. MeGinnis, Mar. ^ Yer., 351, and 
 Hamilton vs. Shepperd, 3 Mur., JV. 0. 115, were both cases 
 at law t and in the case oi Walker vs. Smith, S Terser, 238, 
 n6 fraud is alleged. Courts of Ia%are bound by-ttte letter 
 of the statU'te, and courts dfeqoityiln cases free from fraud 
 or pure trust, also regard it. So tnndh is actually decided 
 in these cases, and so faf they are not disputed. The case 
 cited from 5 j^Iason has not been furnished ftie. 
 
 Courts have sometimes forgotten the^ difference between 
 courts of law and equity on th%. subject. It is i&p'oastble 
 to read Judge Catron's opitaron, fii Cocke vs. McCrinms, and 
 then turn to the cases cited* by him, without perceiving that 
 h6' has not borne this distinction in tnind in exan^^ing' the 
 authorities. In the leaditig case relied on by him,,' Troiip 
 vs. Smith, Chief Justice Spencer sayasf ^' 
 
 "Tljere is a marked distinction between a plea of the 
 statute of limitations in'a ciburt of law add a court of equi- 
 ty ;" and the Chief Justice sums^ up by saying the plea must ■ 
 prevail at law, and >vil! noi prevail in eqjaity, on the prin- 
 ciples stated by me. Anc^yet Mr. Justice Catron haskised, 
 Mr. Chief Justice Spencer's reasoning in Showing' that a 
 court of kw is bound by the statute to stippprt his owh^ po- 
 sition, that a ciourt of e^iuity is also, boun^, when' Judge^ 
 Spencer unequivocally says it is nof bbiind.- ,'^ 
 
 Our own court has settled'Jhe qaaestion for us. In the 
 case of Livermore vs. Johrtson, M^S. Op., Chief Justice 
 Sniith saysiji 
 
 ^'It has Jong been the seltted rule in EnMand, that wherfe' 
 a^iarty-hias been kept in ignorance of his rightsi 'by5-^^' 
 
periUf^-iSOjUzht to be chiargcd^ the statute sliall not begi^'to, 
 ruB untiljafter the fraud has been discovered. /The reason 
 assigned why the statute bar wiJJ not be applied in a court; 
 of equity in a. case of that character, is that it would be a 
 ,vicfl?itipn' of'the principJes of natural justice to permit" a 
 party to avail hirnself ,of the lapse of ;lifne as a bar to the 
 suit \vhere the party has by fraud kept concealed the rights 
 o£ the^ complainant, and Jias thereby delayed him in the 
 a^^fe^|ro|i';of those rights. Hooeden vi. Ld. Annesbj, 2 8.,. 
 oM Ltfroy, 634. , Such- is withom doubt the doctrine Af 
 courts of equity/ in this country. Storij Eg. 738. And 
 syc^ is ;Bnquestio.n%bJly the la.w in this country. Angell on 
 Lim. ],S8, and cases cited."' • ■ , > ' 
 
 ..Lord Redesdaie, in the case cited, expriesses the whole 
 
 tae -in' one. admirable seetence : •' That -the statute 
 iiot in cbnscience lo rORj the conscience of the party 
 so-a^Tected that he ought jnot to be allowed to avail 
 nim'Sfilif of the Ipng.thpaf .time." 
 ,In'Nettr York, Chief Justice Spencer says, 20 Johnson, 
 'j^siipvs. Smith.: .'■,,',, , .■.,*■.■,'■ 
 
 "Courts 'of <^quity not being bound by the statute any, 
 furtlier than t}|ey have seen fit' tp adopt its pro,visions,, as a 
 re^sonajble rules, and then only in. analogy. to/the doctrine of 
 aij'CQWit ,oiF law, are perfectly right in saying that a party 
 cannot in good Conscience ayail humself of .i^h^ siatutp, 
 when by his own frauti he has" prevented, the otbpr party, 
 from coming to a. knowledge of his rights, until within six 
 years prior to the conijij^^Gement of the suit." 
 
 The same principles*"wil:l be found- acted upon by the 
 Siiprgme Court of the United Elates, in a rojBent case in, 
 which th(|court has gone even further thanj^ is deman,ded 
 here. l(ni<m>ard, S. C. R., 174. And the' same will be 
 found in many decisiitos of tlje Stite courts, as well- as ele-j 
 mentary w'orks,;|f first authority. See, generally : Angelli 
 ■ on Lim-, 2Q„28,T88, etseq.; Livermore vs. Johnson, M^. 
 Op, Ct. ofrAppls.; 2 iSchoale,;'^ Lefroy, 634; 2 Story,! Eq.. 
 Ju., sec. !'621-2; 20 Johnson, 45; 19 Connecticut, 435; 
 3. Leigh,: 732-5-8; 6 Yerger, 90; 3 Murph., N. C. 593 ; 
 e "Vif^aton, 497, ' " , ' , . . 
 
 Holding then) that the defendants, as applicants for 
 the benefit of tj^e banikrupt law, were bound to ob- 
 sserve good ^th tqwands their creditors, believing that 
 tbgir discbarge' is frludulent 'as. this] case now stands, and" 
 tfiat,the com^ainaiit has been preveiit^iijfrom a recovery; 
 of ^ftis demafcis by'tjiie frauds and wilful concealments of 
 the defendants, sx^hy i^e concealme|i|S. of these, frauds by 
 - defendants, an5" ti^at 4o..a kid»^^ed|]^of- his Ti|bts cjonse- 
 
39 
 
 qupnt, the|[©up(jB, complaiijant liath only come within eigh- 
 teeo, months, I must further hold with the Supreme iCoiiit 
 of th^; tJnited States, irj 6 Wheaton, "that length of time 
 ought not, upon {)rinciples of eternal justice, to be admitted 
 to repel relief. On the contrary, it would. Seem thafr the 
 length of time during which .$be fraud has been' successfully 
 concealed ana,,p;i^cticed, is, rather an aggravation of ifee 
 offence, and calls more loudly upon a Coiirt pf Equity to 
 grant ample and decisive relief." ' 
 
 I have given due weight to the warning of the Senior 
 Counsel of the defendants, that suits and litigation may 
 grow out of the result I have reached. I can only say, if 
 so, the innocent are in no danger, while the offending, party 
 will; meet but a just reward. 
 
 In conclusion, it may be noted as a significant 'fact, that 
 the case stands upon the bill and a simple demurrer, unac- 
 companied by' an answer-deinying the frauds. 
 
 Let the Demurrer be overruled, vnth leave to the pmjrties 
 to answer, S^c, -; '