Opinion of the court.

necessary to correct errors in the action which he in that way

secured for his own benefit.

I conclude, therefore, that the defence of the statute of limitations cannot be sustained, and that the case was properly in the District Court for adjudication, as a suit in equity, when the decree was rendered.

One further suggestion only, made by the defendants against an affirmance of the decree, remains to be considered. It is claimed that before there can be a recovery against the defendants, the amount of debts owing by the bankrupt must be ascertained. This I do not consider necessary. The schedules which are filed as evidence show an indebtedness far in excess of the value of the goods. This certainly makes a prima facie case for recovery. The presumption is that all debts will be proved if there are assets for distribution. But, be that as it may, as the sale is void under the Bankrupt Law, and some debts have been proven, the assignee is entitled to his decree, leaving the defendant to make good his claim, if any he has, to any surplus that may remain after the debts are satisfied. It follows that the decree must be affirmed under the appeal of Lisberger.

The complainant has, however, appealed, and insists that the value of the goods was greater than was found by the District Court.

The evidence upon this branch of the case is quite unsatisfactory. It consists almost exclusively of the estimates of witnesses which are to my mind very unreliable. If the case had not been so long pending I would send it to a master, but it is very doubtful whether at this late day any more satisfactory testimony could be obtained than that which is now here. There is nothing to show what the general character of the stock was, whether new or shopworn; but when the order for its restoration to Lisberger was made, the goods were in the possession of the marshal, and subject to the inspection of all parties interested. At that time a bond with a penalty of eight thousand dollars was considered sufficient to protect the creditors against loss. Under these circumstances I am inclined to concur in the opinion of the district judge, and to adopt the valuation fixed for the purpose of the sale as the amount of the recovery.

Opinion of the court.

As it seems to be conceded that the goods cannot be restored to the assignee, let a decree be prepared finding the sale to Lisberger void under the Bankrupt Law, and ordering him to pay the assignee $561814, with interest from May 16th, 1870, as the value of the goods in lieu of their delivery; and, in default, that execution issue as at law. As to the other defendants, the bill is dismissed without prejudice to the right of the complainant to proceed against them at law upon the bond in case it shall become necessary. Lisberger to pay all costs below and here.

INDEX TO SUBJECTS.

AGENT.

1. An agent, who for years has had a running account with his principal,
and who has in the course of his business paid notes of the principal
and has charged him with them on account, will not be allowed to
claim the benefit of a mortgage given to secure the notes when they
were executed, 172.

2. When an agent who is largely in advance to his principal, and who has
been authorized to sell negotiable notes for the principal, for the pur-
pose of providing funds for meeting obligations of the principal,
passes some of these notes off bona fide to satisfy his own debts before
the maturity of the notes; held, that the holder of the notes has valid
title and may claim the benefit of mortgages executed to secure the
notes, 172.

3. Insurance companies, though stipulating that a provision in their policy
is only waived by an express agreement, are yet held to waive it
by implications arising from the acts of their agents, the insurance
brokers, 290.

4. When employer is responsible for injury to employé, 337.
5. A clerk directed by law to receive from a sheriff money collected on
execution, receives it as agent of the law, and not as agent of the par-
ties, and hence his commission is part of the costs of the suit, 340.

AUTHORITY TO PUNISH ON SHIPBOARD.

1. Authority to punish on board of a merchant ship is vested primarily in
the master, 526.

2. This authority is of a summary character, but not of a military charac-

BALTIMORE AND OHIO RAILROAD COMPANY.

1. An increase of stock in the form of stock dividends, did not entitle the
city of Baltimore to a greater number of directors than was limited by
the charter of this railroad company, 90.

2. A deed from the Secretary of War to this company, ceding to it author-
ity to construct a railroad along and over its property, was authorized
and validated by the acts of March 7th, 1819, and April 28th, 1828,
authorizing the President to sell and convey lands useless for military
purposes, 138.

BILL IN EQUITY.

1. A bill will lie to set aside the satisfaction of a docketed judgment, where
the creditor marked the judgment satisfied under a mistake, 169.
2. Where bill is brought to set aside a preference in bankruptcy, it must
charge that the person benefited knew that the preference was given
"in fraud of the provisions of the Bankruptcy Act," 183.

3. A bill will lie where an action of indebitatus assumpsit might have been
brought against one who received a preference in bankruptcy, though
the fraud charged be only constructive fraud, and not actual, 188.
4. But such a bill must pray that the preference be set aside, and must
make all parties to the preference parties to the bill, and must de-
mand either the property transferred or its value, 188.

5. A petition against a bankrupt, and against his sureties in a bond for
goods seized, who were not otherwise parties to the bankruptcy pro-
ceeding, if in substance a bill, may be remanded to rules, considered
as a bill, and proceeded on as a bill on the equity side of a United
States district court, 620.

CHECKS ON A BANK.

Instance of what are not, 189.

CIVIL RIGHTS BILL OR ACT.

1. It was unnecessary in North Carolina, 541.

2. Not intended to establish social equality, but only to secure equal legal
and political rights, 541.

3. Perhaps unconstitutional in any of its legislation affecting rights as
citizens of States, 541.

CLERK'S FEES.

Due the clerk as officer of the court, and not as agent of the successful
party, 340. See Agent, 4.

COMPLAINANTS IN A BILL.

Where the controversy is between different classes of shareholders in a
corporation, the company may elect not to sue; and then individual
shareholders may sue other shareholders, 90.

COMPLAINANTS IN SUIT.

1. Not estopped by the principle of res judicata unless all the requisites of
that principle are present, 373.

2. When not parties to the record, not barred by a judgment which held
that the purchaser at a tax sale acquired a clear title, from contesting
in another suit or forum the validity of that sale, 373.

COMPTROLLER OF THE CURRENCY.

His letter to a receiver of a bank, stating the necessity for enforcing the
entire liability of the stockholders is not sufficient evidence in an
action at law to justify a verdict for the plaintiff, without some other
proof of liability, and its extent, 378.

CONFESSIONS.

Confessions extorted by one in authority not admissible in evidence against
the accused, 412.

CONSPIRATORS.

Each member responsible for the acts of the remainder done in furthering
the objects of the conspiracy, 439, 458.

Constitutionality of the 4th section of the Enforcement Act of 1870, 493.
CORPORATIONS.

1. Compellable by mandamus to make special levies necessary to pay their
debts, 282, 568.

2. Suit may be brought against a single shareholder who owns nearly all
the shares of a bank, where the charter makes the shareholders liable
for double the amount of their shares, if it does not appear that there
are any other creditors than the plaintiff, 288.

3. Shares in a corporation confiscated by the United States and sold under
an irregular judicial sale, do not pass to the purchaser by the sale, 408.
4. Coupon bonds of a corporation transferable by delivery, though stolen,
pass by sale made before falling due to a bona fide purchaser, 410.

5. Have no powers other than those granted by their charter or necessary
to the exercise of such powers, 90.

COURT-MARTIAL.

Acquittal under a court-martial not a bar to a subsequent indictment at
law, 552.

CREDITOR'S BILL IN STATE COURT.

Does not bar proceedings of a creditor not a party to the bill, who brings
suit in United States court, 280.

DEBT.

1. Ante-Revolutionary debts to British subjects were recoverable after the
Revolution, by virtue of treaty of 1783, though confiscated mean-
while by the State, 249.

2. Debts due the United States by one of their officers and paid under
compulsion to the Confederate States, cannot be enforced against that
officer, 397.

DECLARATION IN A SUIT BASED ON A FRAUDULENT PREF-
ERENCE IN BANKRUPTCY.

May allege that a payment against the provisions of the Bankruptcy Act
was made within four months and not within two, of bankruptcy,
when preference was anterior to the amended act of 1874, 365.

DECREE.

1. A decree taken by default through neglect of counsel for the defendant,
will not be opened after the term has expired, 163.

2. United States Circuit Court has no power to set aside decrees in equity,
on motion, after the terms at which they were rendered, 163.

3. Rule 88th in equity is imperative and must be enforced, 163.

4. What is a final decree? 167.

DEED OF PREFERENCE.

A deed of preference which has been duly executed for a longer period
than the time prescribed in Section 5128 of the Revised Statutes of
the United States, but not put on record until within that time, is not
rendered invalid by its late registration, 37.