Opinion of the Court.

sent to a boundary which has been defined under a mistaken apprehension that it is the true line, each claiming only the true line, wherever it may be found, and that in such case neither party is precluded or estopped from claiming his own rights under the true one, when it is discovered. Nor can such consent in an action of trespass quare clausum fregit, upon the theory of leave and license given, operate as an estoppel upon the claim of a plaintiff to recover damages to the extent of the value of the timber taken, any more than it can under the plea of liberum tenementum divest his title to land on which the alleged cutting and removal were committed.

There remain three other assignments of error not yet disposed of, which do not call for any extended notice. First, in relation to the refusal of the Circuit Court to remand this cause to the state court in which it originated. The reply to this is, the petition for removal into the Circuit Court was filed before the final hearing of the case, and therefore in time. Hess v. Reynolds, 113 U. S. 73. Second, as to the alleged refusal of the court to allow the defendant to plead the statute of limitations. The record shows no such order. The sixteenth and seventeenth assignments of error, relating to the time to which plaintiff was entitled to claim damages, are fully covered by the charge of the court that the plaintiff, if entitled to recover at all, was entitled to recover damages for all cutting and carrying away of timber from the disputed premises up to the time he actually sold, etc.

The judgment of the Circuit Court is

Affirmed.

APPENDIX.

AMENDMENT TO RULES.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1888.

ORDER.

It is now here ordered by the Court that Rule 59 of the Rules of Practice for the Courts of Equity of the United States be, and the same is hereby, amended by adding at the end thereof the words "or before any notary public."

(Promulgated March 5, 1889.)

Where the decree appealed from awarded a money decree against one
defendant, and the plaintiff appealed, and the obligees named in
the appeal bond included that defendant and other defendants, and
that defendant and some of the others moved to dismiss the appeal,
on the ground that that defendant should be the sole obligee, and
that the only matter for review was as to the amount awarded against
that defendant: Held, that the bond was in proper form, and that the
motion must be denied. Hill v. Chicago and Evanston Railroad Co.,
170.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
1. The Voluntary Assignment Act of the State of Illinois of 1877, which
went into effect July 1, 1877, was intended to secure equality of right
among all the creditors of the debtor making the assignment, and
was a remedial act, to be liberally construed. White v. Cotzhausen, 329.
2. Several written instruments executed by an insolvent debtor in Illinois,
all about the same time, to his mother, his sister and his brother, who
were creditors of his estate, whereby, in contemplation of insolvency,
he surrendered his entire estate for their benefit, to the exclusion of
all other creditors, constitute, under the Voluntary Assignment Act
of the State, but one instrument; operating as an assignment of the
debtor's property for the benefit of his creditors equally, the advan-
tage of which may be claimed by any creditor not so preferred, who

will tak appropriate steps in a court of equity to enforce the equality
contemplated by the statute. Ib.

3. A creditor in Illinois who attempts to secure to himself an illegal pref-
erence of his debt by means of a conveyance to him of the property
of his debtor when insolvent, to the exclusion of other creditors, is
not thereby debarred, under the operation of the Voluntary Assign-
ment Act, from participating in a distribution under that act of all
the debtor's property, including that thus illegally conveyed to him!
Ib.

BANKRUPTCY.

1. A for his own accommodation asked B to collect money for him, with-
out compensation, and to keep it until A called for it. B collected
the money, and, without actual fraud or fraudulent intent, deposited
the proceeds to his own credit with his own funds. By an unexpected
revulsion he was forced into bankruptcy before he had paid it over,
and made a composition with his creditors: Held, that the debt thus
incurred by B to A was not a debt created by fraud or embezzlement
of the bankrupt, or while he was acting in a fiduciary capacity within
the exception provided for in Rev. Stat. § 5117. Noble v. Hammond,

65.

2. The word "fraud” as used in Rev. Stat. § 5117 means positive fraud,
or fraud in fact, involving moral turpitude or intentional wrong, and
not merely implied fraud, or fraud in law. Ib.

3. A state court has jurisdiction of an action brought by an assignee in
bankruptcy to set aside, as made to defraud creditors, conveyances
made by the bankrupt before the bankruptcy. McKenna v. Simpson,
506.

See JURISDICTION, A, 12, 13.

BOND.

A guardian's bond executed by a surety upon condition that another
surety should be obtained is valid against third parties, in a collateral
proceeding, although no such surety was obtained. Arrowsmith v.
Gleason, 86.

See APPEAL BOND.

CASES AFFIRMED OR FOLLOWED.

1. Arrowsmith v. Harmening, 42 Ohio St. 259, followed. Arrowsmith v.
Gleason, 88.

2. Asher v. Texas, 128 U. S. 129, affirmed. Stoutenburgh v. Hennick, 141.
3. Barbier v. Connolly, 113 U. S. 703. Minneapolis and St. Louis Railway
v. Beckwith, 26.

4. Missouri Pacific Railway v. Humes, 115 U. S. 512. Minneapolis and St.
Louis Railway v. Beckwith, 26.

5. Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. Minneapolis and

St. Louis Railway v. Beckwith, 26.