168, F. C. 17,089, action by assignee for debts due estate; Phelan v. O'Brien, 4 McCrary, 467, 13 Fed. 657, controversy respecting property acquired by assignee after bankruptcy, not conveyed by original assignment; Miltenberger v. Phillips, 2 Woods, 116, F. C. 9,621, suit by assignee to recover counsel fees paid by unauthorized commissioners in liquidation; Scovill v. Shaw, 4 Cliff. 567, F. C. 12,552, suit by assignee of insolvent corporation for assessments due from defendant's testator; In re Staib, 3 Fed. 211, controversy between assignee and another as to possession of stock; In re Churchman, 5 Fed. 187, suit to ascertain and establish lien on vessel for supplies furnished by creditor of bankrupt; Taylor v. Irwin, 20 Fed. 618, action by assignee for property fraudulently withheld from him; Phelps v. Elliott, 35 Fed. 462, 463, action by assignee to recover money collected for bankrupt's use; S. C., 35 Fed. 463, holding demurrer on ground of statute properly raises defense thereunder; Geisreiter v. Levier, 33 Ark. 532, action by assignee's assignee on note due bankrupt; International Bank v. Jenkins, 104 Ill. 153, action by assignee to reverse decree of foreclosure; Ross v. Wilcox, 134 Mass. 22, action by assignee to collect debt due estate; Rock v. Dennett, 155 Mass. 502, 503, 30 N. E. 172, writ of entry to recover land conveyed by assignee, brought more than two years after assignee has been disseised; Cobbs v. Gilchrist, 80 Va. 510, action by assignee for surplus due bankrupt after sale of lands. generally in Foreman v. Bigelow, 4 Cliff. 548, F. C. 4,934. Cited, but not applied, in Wisner v. Brown, 50 Mich. 559, 15 N. W. 904, and Buckingham v. Buckingham, 36 Ohio St. 78, both holding rights of bankrupt remain same whether assignee's right is barred or not.

Cited

Distinguished in the following citing cases, holding rule inapplicable to actions specified: Gildersleeve v. Gaynor, 4 Woods, 544, 15 Fed. 103, foreclosure suit against bankrupt and assignee; Wilt v. Stickney, 30 Fed. Cas. 257, proceeding to review decree of quity declaring mortgage invalid; Berry v. Sawyer, 19 Fed. 288, action by assignee against trustee for accounting; Chicago, etc., R. R. v. Jenkins, 103 Ill. 596, actions begun before assignment in which assignee is substituted during pendency; Bowen v. Delaware, etc., R. R., 153 N. Y. 485, 60 Am. St. Rep. 673, 47 N. E. 910, action by assignee to recover land owned by bankrupt, against trespasser, although begun over two years after wrongful entry. Explained in Upton v. McLaughlin, 105 U. S. 642, 644, 26 L. 1198. 1199, statute imposes no absolute limitation, and if not urged below is too late on appeal.

Bankruptcy. Speedy disposition of bankrupt's assets is purpose of bankrupt act, second in importance only to equality of distribution, p. 346.

Cited in Wood v. Bailey, 21 Wall. 642, 22 L. 690, holding failure to give notice of appeal within ten days fatal to appeal in bankruptcy;

Wiswall v. Campbell, 93 U. S. 350, 23 L. 924, holding judgment of Circuit Court on appeal from District Court order, rejecting claim, final; Ex parte Woollen, 104 U. S. 301, 26 L. 769, authorizing dismissal of appeal not entered within ten days after taking same; Phelan v. O'Brien, 4 McCrary, 469, 13 Fed. 658, construing revised statutes, section 5057; M'Can v. Conery, 12 Fed. 319, holding pendency of chancery suit between same parties on same cause does not suspend statute; Leech v. Dawson, 23 Fed. 657, applying two-year limitation to suit by assignee against bankrupt to recover land fraudulently claimed as homestead; In re Carrier, 39 Fed. 194, holding where proper case is made for surcharging accountant, such action must be taken promptly; Haven v. Place, 28 Minn. 555, 11 N. W. 119, holding action in trover, against assignee, barred by limitation; Lindsey v. Corkery, 29 Gratt. 658, holding partnership assets, not mentioned in inventories of bankrupt partners, may be subjected to payment of partnership debts by State court where Federal court has delayed action.

Limitation of actions.- Where object of suit at law or equity is to obtain relief against fraud, statute does not begin to run until discovery thereof by party injured, p. 349.

The following citing cases follow the principal case, upholding actions begun more than two years after right accrued, but within two years of discovery of fraud: Rosenthal v. Walker, 111 U. S. 190, 191, 28 L. 397, 4 S. Ct. 384, 385, Traer v. Clews, 115 U. S. 537, 538, 29 L. 470, 6 S. Ct. 158, 159, and Kirby v. Lake Shore R. R., 120 U. S. 136, 30 L. 572, 7 S. Ct. 433, action to set aside accounts; Harris v. Exchange Bank, 4 Dill. 135, F. C. 6,119, action to set aside trust deed, begun four months after recordation thereof; Cook v. Sherman, 4 McCrary, 28, 30, 20 Fed. 171, 172, holding no affirmative acts of concealment need be shown where nature of fraud is to conceal itself; Tyler v. Angevine, 15 Blatchf. 540, F. C. 14,306, suit to set aside fraudulently-concealed transfer; Nicholas v. Murray, 5 Sawy. 324, F. C. 10,223, suit to set aside fraudulent conveyance by bankrupt after discharge of property concealed prior thereto; Van Bokkelen v. Cook, 5 Sawy. 593, F. C. 16,831, suit for accounting of fraudulently-conveyed stock; Martin v. Fullings, 8 Fed. 208, F. C. 5,151a, but awarding no costs, defendants not having been shown cognizant of fraud; Duff v. Bank, 13 Fed. 67, holding averment of ignorance of fraud, of nature to conceal itself, sufficient to avoid statute; Bartles v. Gibson, 17 Fed. 299, where plaintiff sued to set aside conveyance on discovery of fraud; Fairbanks v. Amoskeag Bank, 38 Fed. 633, where assignee sued to recover property conveyed on fraudulent composition; Shainwald v. Davids, 69 Fed. 699, holding allegation that cause of action had been fraudulently concealed removed bar; Lant v. Manley, 75 Fed. 635, 43 U. S. App. 623, action by judgment creditor to reach property fraudulently conveyed. Cited and principle applied also in Green

wald v. Appell, 5 McCrary, 341, 17 Fed. 141, holding statute does not run in bankrupt's favor during pendency of banruptcy proceed. ings; M'Kneely v. Terry, 61 Ark. 544, 33 S. W. 957, holding action to recover land not barred by sixteen years' delay, where deed had been secreted and plaintiff was ignorant thereof; Moore v. Boyd, 74 Cal. 171, 15 Pac. 672, holding principle applies both in law and equity; Anderson v. Northrop, 30 Fla. 643, 12 So. 326, holding there can be no constructive discovery of fraud; Dorsey Machine Co. ▼. McCaffrey, 139 Ind. 558, 47 Am. St. Rep. 300, 38 N. E. 212, holding statute does not begin to run until discovery of concealed fraud; Jackson v. Jackson, 149 Ind. 245, 47 N. E. 965, holding acts constituting fraudulent concealment may precede, coincide with or follow accrual of cause of action; Clews v. Traer, 57 Iowa, 466, 10 N. W. 841, holding plaintiff need not show diligent efforts to fasten fraud on one of whose connection with matter he was ignorant; Deake, appellant, 80 Me. 56, 12 Atl. 792, statute does not run until discovery of fraudulently-concealed will, collecting cases; Wear v. Skinner, 46 Md. 265, 24 Am. Rep. 518, holding right of action accrues when fraud is, or with reasonable diligence might have been, discovered; Quimby v. Blackey, 63 N. H. 78, holding concealing fraud need not be other than that which caused original injury; State v. Stone Cattle Co., 66 Tex. 367, 17 S. W. 736, sustaining action for recovery of land fraudulently obtained from State; O'Dell v. Burnham, 61 Wis. 571, 21 N. W. 639, holding statute runs only from discovery of fraud or facts putting party on inquiry. See 8 Am. Dec. 128, note, 6 Biss. 106, note, F. C. 8,974, and 60 Am. Dec. 513, extended note on this point.

Cited and approved but application denied in Avery v. Cleary, 132 U. S. 609, 610, 611, 33 L. 472, 10 S. Ct. 222, 223, holding assignee guilty of laches in discovering fraud; Foster v. Mansfield, etc., R. R., 146 U. S. 100, 36 L. 903, 13 S. Ct. 33, affirming S. C., 36 Fed. 638, holding ten years' delay in suing to set aside sale for fraud, raises presumption of laches; Pearsall v. Smith, 149 U. S. 236, 37 L 717, 13 S. Ct. 835, holding bare allegation that assignee was not informed of conveyance insufficient to place case within rule; Board of Commissioners v. Chicago, etc., R. R., 5 McCrary, 511, 18 Fed. 211, holding bill disclosed laches of complainant; West Portland Assn. v. Lownsdale, 9 Sawy. 110, 111, 17 Fed. 207, 208, S. C., 9 Sawy. 120, 17 Fed. 620, where suit was not brought within two years after discovery; Hoyt v. Sprague, 12 Fed. Cas. 769, there being no evidence of concealment; In re Jackson, 9 Fed. 494, and in In re Pitts, 9 Fed. 544, where assignees having knowledge failed to act within limitation; Simmons v. Baynard, 30 Fed. 537, where deed of fraudulent transfer was on record; Yancy v. Cothran, 32 Fed. 689, where assignee could have discovered fraud by exercise of due diligence; Woodfolk v. Marley, 98 Tenn. 473, 40 S. W. 480, dismissing bill for rescission of fraudulent sale, brought three years after discovery. Cited but not applied in Vetterlein v. Barnes, 6 Fed. 703, holding complainant barred by laches; Smith v Cincinnati, etc., R. R., 11

Fed. 290, holding equitable action, brought after two years, barred where legal action on same facts had been brought in time and dismissed; Phelps v. Elliott, 29 Fed. 54, holding averment of lack of knowledge and means of knowledge insufficient to prevent bar; Murray v. Chicago, etc., R. R., 62 Fed. 45, questioning whether in action at law to recover excessive charges from carrier, bar of statute can be avoided by showing fraudulent concealment that less rates were charged others on like shipments. Distinguished in Matthews v. Westphal, 1 McCrary, 451, 48 Fed. 667, holding four months' limitation (R. S., § 5128) runs from time preference is given, not from creditor's notice thereof; In re Brown, 4 Fed. Cas. 339, holding limitation in revised statutes, section 5120, absolute, running from discharge, not from discovery of fraud; Pickett v. McGavick, 19 Fed. Cas. 588, bolding suit to set aside bankrupt's discharge must be brought within two years, irrespective of discovery of fraud; M'Can v. Conery, 12 Fed. 318, and Sterling v. Barnwell, 12 Fed. 323, holding pendency of chancery suit between same parties on same cause of action does not suspend limitation; Despeaux v. Pennsylvania R. R., 87 Fed. 795, holding defendant at law cannot be deprived of benefit of statute on ground of fraudulent concealment upon mere proof of his silence; Dee v. Hyland, 3 Utah, 313, 3 Pac. 389, holding statute begins to run against claim and delivery action from time of deprivation of possession, not from discovery thereof. Departed from in Freeholders v. Veghte, 44 N. J. L. 521, holding fraudulent concealment of cause of action at law on contract, does not avoid bar of statute. Qualified in Geisreiter v. Sevier, 33 Ark. 534, holding fraud must be by debtor, not creditor, to prevent running of statute. Miscellaneous.- Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072, and Webb v. Crawford, 77 Ala. 442, no application.

21 Wall. 350-353, 22 L. 584, MITCHELL v. UNITED STATES.
War.- Contracts between inhabitants of rebel States, during
Civil War, not in aid of Rebellion, were valid, p. 352.
Affirmed in Desmare v. United States, 93 U. S. 609, 612, 23 L.
960, an identical case; Macaulay v. Palmer, 125 N. Y. 743, 26 N. E.
912, upholding contract of partnership to sell cotton.

Domicile is residence at a particular place with intention to remain there indefinitely, p. 352.

Affirmed in Desmare v. United States, 93 U. S. 609, 612, 23 L. 960, an identical case. Extended in Marks v. Marks, 75 Fed. 324, holding intention to permanently reside in State sufficient without adoption of fixed local residence therein. Cited and applied in Holmes v. Oregon, etc., Ry., 6 Sawy. 277, 5 Fed. 527, distinguishing terms "inhabitant" and domicile; " United States v. Chong Sam, 47 Fed. 885, holding Chinese deported under exclusion act must be returned to country of domicile, not of birth; Blair v. Silver Peak Mines, 93 Fed. 336, holding allegation of citizenship established by

66

22 W

proof of seventy years' residence; Mowry v. Latham, 17 R. I. 481, 23 Atl. 13, holding place of party's residence presumptively his domicile; Long v. Ryan, 30 Gratt. 720, holding domicile a more comprehensive term than residence.

Domicile, once acquired, is presumed to continue until shown to have been changed, p. 353.

Affirmed in Desmare v. United States, 93 U. S. 609, 612, 23 L. 960, an identical case; Anderson v. Watt, 138 U. S. 706, 34 L. 1082, 11 S. Ct. 452, holding domicile of husband that of wife; Chambers v. Prince, 75 Fed. 180, holding year's residence in Virginia, with intention to return to Missouri, not evidence of change of domicile; Gardner v. Board of Education, 5 Dak. 263, 38 N. W. 434, holding residence in city during winter not to entitle party to city school privileges; Rockingham v. Springfield, 59 Vt. 526, 9 Atl. 244, holding absence, without fixed abode elsewhere, does not destroy domicile; Pilson v. Bushong, 29 Gratt. 240, holding burden of proof on party alleging change of domicile.

Distinguished in Stoughton v. Hill, 3 Woods, 406, F. C. 13,501. holding presumption does not prevail when effect would be to impose character of enemy upon party; Southerland v. Norris, 74 Md. 331, 28 Am. St. Rep. 258, 22 Atl. 138, holding under Maryland registration act (1890) removal presumed permanent.

Domicile. To constitute new domicile, residence in new locality and intention to remain there are both indispensable, p. 353. Affirmed in Desmare v. United States, 93 U. S. 609, 612, 23 L. 960, an identical case; Chambers v. Prince, 75 Fed. 180, holding intention to remain in new locality not proved; Succession of Steers 47 La. Ann. 1558, 18 So. 506, holding intention to remain in new locality not proved.

Domicile. Circumstances usually relied on to establish animus manendi are declarations of party; exercise of political rights, payment of personal taxes; house of residence and place of business, p. 353.

Affirmed in Desmare v. United States, 93 U. S. 609, 612, 23 L. 960, an identical case; Chambers v. Prince, 75 Fed. 180, holding payment of taxes not evidence against repeated declarations of intention to return; Marks v. Marks, 75 Fed. 325, but holding said facts evidence tending to establish citizenship, not conditions thereof; Fulham v. Howe, 60 Vt. 359, 361, 14 Atl. 657, 658, holding evidence of voting and taxation in another State admissible to show domicile.

War.- Resident of loyal State, who went into rebel States after outbreak of Civil War, and remained there, transacting business for three years, did not thereby lose his original domicile, and was guilty of trading with enemy, p. 353.