the burden of making the transfer of the record upon the pay availing himself of the right given; and it was only to secure this end that he is mentioned in the Act in this connection, and means provided for securing his action within a reasonable time. As no duty was imposed upon the other party, there was no necessity for naming him in connection with these provisions. I think, however, the Act should be amended authorizing her party, at any time, to file the record upon giving notice to the adverse party, and expressly authorizing the Circuit Court to thereupon proceed with the case, as otherwise great delay may often result from a removal. Mr. Circuit Judge Dillon, also, seems to be of the opinion that the Circuit Court may take jurisdiction upon due notice for the purpose of administering the provisional remedies (Dillon's Removal of Causes, p. 71). Let leave to file a copy of the record be granted.

WM. M. STEWART, for motion.

WM. H. SHARP, contra:

NOTE. The record having been filed, and the defendant not being ready to respond to the motion for an injunction, the court, upon ex-parte application at chambers, upon security being given, granted restraining order till the application could be heard.

August 20th, 1877.

Recent Decisions.

U. S. CIRCUIT COURT, WESTERN DISTRICT OF MISSOURI.

April Term, 1877.

1. LIMITATIONS OF SUITS BY ASSIGNEE-R. S. SEC. 5057 CONSTRUED.-A suit by an assignee in
bankruptcy to collect debts or claims due to the estate must be brought within two years
from the time when the cause of action accrued to the assignee.

2. SAME COMMENCEMENT OF SUIT.-Where an assignee filed his petition or declaration in a suit
to recover such a debt within two years from the time when his right of action accrued,
but gave directions to the clerk not to issue the summons, and such summons was accord-
ingly not issued or served until more than two years from the time the cause of action
accrued: HELD, that the action was barred.

This is an action brought to recover $3,500, as the balance due by defend-
ant upon a subscription by him to the capital stock of the North Missouri
Insurance Co., of which the plaintiff is the assignee in bankruptcy. The
petition in this case was filed March 20, 1876; but the summons was not
issued (by direction of plaintiff's attorney, as stated in the plea of the statute
of limitations below mentioned) until November 1, 1876, and was not served
until November 2, 1876. The petition alleges that the company was adjudi-
cated a bankrupt November 8, 1873; that the plaintiff was appointed assignee
on March 21, 1874, and that on July 3, 1874, the District Court, on a petition
presented by the assignee, found "that it is necessary, for the purpose of pay-
ing the indebtedness of the said company, to collect the whole of its assets
including the unpaid stock," and thereupon "ordered that the said assignee

H

proceed forthwith to collect from the stockholders of said company the full amount due and unpaid on the shares of stock by them respectively held in said company."

The defendant answered. The second and third special defenses set up the statute of limitations prescribed in the Bankrupt Act. It is alleged in said defenses that the deed of assignment from the register in bankruptcy to the plaintiff as assignee was dated March 23, 1874; that the order of the Bankruptcy Court, assessing all stockholders, etc., was made July 3, 1874; that plaintiff's petition in this action was filed herein March 20, 1876; the writ issued November 1, 1876, and service had on defendant November 2, 1876. It is also alleged that service of process was countermanded by plaintiff for an indefinite time, and that plaintiff, of his own accord and without the fault of defendant, forbore to issue process or to prosecute said suit until said issue of process, November 1, 1876.

To this plea of the statute of limitations the plaintiff demurred, and it was on this demurrer that the case was submitted to the court.

N. MYERS, for the plaintiff.

ALBERT BLAIR, for the defendant.

DILLON, Circuit Judge:

The plaintiff's petition to recover in this case was filed within two years from the date of the order of the District Court to the assignee, to collect the unpaid stock, but by direction of the plaintiff's counsel to the clerk the writ of summons was not issued until more than two years from the date of said order had elapsed. The effect of this is conceded to be the same as if the petition had not been filed until November 1, 1876, which is more than two years from the time when the assessment or order to collect by the Bankruptcy Court was made. If, under the second section the Bankrupt Act as found in the Revised Statutes, section 5057, any suit for the collection of assets hy an assignee in bankruptcy is barred by the two years' limitation therein prescribed. then the present action is barred, if the facts set forth in the plea

are true.

This is an important question, and it has been thoroughly argued by counsel. Since this case was submitted the same question came before Mr. Justice Miller, in the Kansas circuit, at the June term, 1877, in the case of Payson, assignee, etc., vs. Coffin.

The learned justice, after argument and consideration, there held that the two years' limitation in the Bankrupt Act applies to suits by assignees to collect the debts and assets of the estate, as well as to suits relating to specific property. The opinion was orally pronounced, but this conclusion was regarded as the almost necessary result of the language of section 2 of the Bankrupt Act of 1867, particularly the words "but no suit at law or in equity shall in any case be maintainable by or against such assignee,

* *

*

un

less the same be brought within two years from the time the cause of action accrued for or against such assignee," which was not intended to be changed, in substance, by the Revised Statutes, sections 4979, 5057; and this conclusion was considered to be strongly supported by the views of the Supreme Court in Lathrop vs. Drake, 1 Otto, 566; Claflin vs. Houseman, 3 Otto, 130.

and Bailey vs. Glover, 21 Wall. 342, and by the obvious policy of the Bankrupt Act in requiring speedy settlement of estates in bankruptcy. In Baily vs. Glover, supra, Mr. Justice Miller, arguendo, observed: "To prevent this [protracted litigation and delays in closing the estate], as much as possible, Congress has said to the assignee, 'You shall commence no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years against you. Within that time the estate ought to be nearly settled up, and your functions discharged, and we close the door to all litigation not commenced before it has elapsed."

The decision in Payson, assignee, vs. Coffin, supra, has authoritative force in this circuit, and it is needless to enforce the argnments by which it may be sustained as a sound exposition of the limitation provisions of the Bankrupt Act. It is true that views have been expressed by judges which might lead to a different conclusion, as in Sedgwick vs. Casey, 4 Bank. Reg. 496; Smith vs. Crawford, 9 Ib. 38; Re Krogman, 5 Пb. 116; Buchman vs. Packard, 7 lb. 353 ; Stevens vs. Hanser, 39 N, Y. 302; Union Canal Co. vs. Wooksiae, 11 Pa. St. 175; Re Conant, 5 Blatchf. 54; but the weight of judicial opinion is with the judgment of Mr. Justice Miller, in Payson, assignee, vs. Cofin; Mitchell vs. Great Works Milling Co., 2 Story, 648, 660; Pritchard vs. Chandler, 2 Curtis, 448; McLean vs. Lafayette Bank, 3 McLean, 185, 188; Norton vs. De la Villebeuve, 1 Woods, 168; Miltenberger vs. Phillips, 2 Woods, 115; Comegys vs. McCord, 11 Ala. 932: Harris vs. Collins & Cartwright, 13 Ala. 388; Paulding vs. Lee, 20 Ala. 753; Pike vs. Lowell, 32 Me. 245; Archer vs. Duvall, 1 Fla. 219; Lathrop vs. Drake, 1 Otto, 566; Claflin vs. Houseman, 3 Otto, 130; Bailey vs. Glover, 21 Wall. 342.

Whether any cause of action accrued prior to the order of July 3, 1874, it is not necessary to determine. Judgment will be entered overruling the demurrer to the plea of the statute of limitations.

Judgment accordingly.

Walker, assignee, etc., vs. Towner.

SUPREME COURT OF MISSOURI.

April Term, 1877.

1. UTTERING FORGED PAPER-INDICTMENT UNDER MISSOURI STATUTE.-An indictment under section 21, p. 471, 1 Wag. Stat., which fails to use any of the words pass, utter, or publish, but uses the words "sell, exchange, and deliver," is good if the acts charged constitute a passing of a forged instrument; and where the indictment charges that the defendant did "sell, exchange, aud deliver," the forged paper, and the acts charged show affirmatively that he did not do so, yet he may be convicted of passing it, although the indictment does not charge that he did so.

2. SAME. It is not necessary to charge the crime in the descriptive words of the statute, nor in equivalent, nor in interchangeable or convertible terms, but it is sufficient if words be used which, in connection with the acts charged, in common parlance constitute the crime imputed by the words used in the statute to define the offense. Defendant's counsel made the following points, and cited numerous authorities: 1. The offense attempted to be charged in the indictment was, at com

mon law, a cheat, and is not felony except by statute. An indictment for a statutory offense must substantially follow the statute, and defining or descriptive words in the statute must be used. This indictment must be drawn under section 9, p. 468, or under section 21, p. 471, 1 Wag. Stat. It is fatally defective under section 9, because it fails to charge that defendant did sell, exchange, or deliver the forged paper "with intent to have the same altered or passed," which intent is the very gist of the offense. Section 9 is a statute against dealing in counterfeit paper, and the formulas, "with intent to defraud," and, "as true," are purposely omitted from that section; because, under that section the crime is one of which all parties to the transfer are equally guilty. 2. The indictment is fatally defective under section 21, because it fails to allege that defendant "passed," "uttered," or "published" as true the forged paper, and there can be no crime under that section without a passing, uttering, or publishing as true. If the charge in the indictment, that defendant did sell, exchange, and deliver the forged paper, is true, then it is legally impossible that there could be any passing, uttering, or publishing, within the meaning of sec. 21. An indictment which charges a sale, exchange and delivery, for any consideration, in the defining words of section 9, and also charges that it was done "as true," and "with intent to defraud” the receiver of the forged paper, in the defining words of section 21, cuts its own throat, and is legally felo de se, because it is legally impossible that the same transfer of a forged instrument can constitute both of the crimes denounced by sections 9 and 21. 3. The indictment utterly fails to charge any offense known to the laws of Missouri, and the defendant is now imprisoned for some supposed crime for which he never was indicted at all.

HENRY, J., delivered the opinion of the Court:

In the Iron Circuit Court, an indictment was found against defendant, of which the following is a copy; "The grand jurors, etc., present, that one D. A. Watson, late, etc., on the 16th day of February, A. D. 1876, at the county, etc., did falsely, fraudulently, and feloniously sell, exchange, and deliver, for the consideration of $550, to the "Ironton Manufacturing Company," as true, a certain falsely made and forged draft, purporting to be made and issued by the First National Bank of Macomb, in the State of Illinois, a bank duly incorporated under the laws of the United States, and purporting to be drawn on the American Exchange National Bank of New York, which said last-mentioned falsely made and forged draft is as follows (copying the draft), with the intent to defraud the said "Ironton Manufacturing Company," and that the said D. A. Watson, at the said time he so sold, exchanged, and delivered the said last-mentioned falsely made and forged draft as aforesaid, then and there, to-wit on the 16th day of February, A. D. 1876, well knowing the same to be falsely made and forged, contrary, etc.

Defendant was tried, convicted, and sentenced to the penitentiary for a term of eight years, and the cause is here on writ of error, and the only question is as to the sufficiency of the indictment.

Section 20, 471 Wagner's Statutes, provides that "every person who, with intent to defraud, shall pass, utter, or publish, or offer or attempt to pass, utter, or publish as true, any forged, counterfeited or falsely-uttered instrument

of writing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is herein before declared to be an offense, knowing such instrument, writing or coin to be altered, forged, or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree as hereinbefore declared for the forging, altering, or counterfeiting the instrument, writing, or coin, so passed, uttered, or published, or offered or attempted to be passed, uttered, or published.”

By the 8th section, 468, the counterfeiting, forging, or altering such an instrument as that described in the foregoing indictment is made forgery in the second degree, the punishment for which, by section 29, 472, is imprisonment in the penitentiary not less than five nor more than ten years. If the indictment is good under section 21, it is unnecessary to notice the other points made in the brief of defendant's counsel.

It will be observed that it contains every material allegation required by that section, but, instead of the words "pass," "utter," and "publish," substitutes the words "sell," "exchange," and "deliver.' Do these words, in connection with the acts charged, sufficiently describe the offense? Or, is the pleader confined to the words in the section? It is generally-not, however, invariably-sufficient to describe the offense in the words of the statute, but it does not follow that other words may not be substituted. Selling, exchanging, or delivering a bank-bill or piece of money is, in common parlance, passing the bill or money; "the plain, or ordinary and usual sense" of the word "pass," as applied to coin or bank-notes, is to deliver in exchange for something else, and is equally well expressed by the word "sell," "exchange," or "deliver."

The judgment will be affirmed. The other judges concur.

On motion for a rehearing :

Henry, J., delivered the opinion of the Court:

Section 9, Wagner's Statutes, 498, provides for a case in which both the buyer and seller of counterfeit bank-notes or coin known that they are counterfeit, and are equally guilty, and the words used descriptive of the offense are "sell," "exchange," or "deliver," and "receive," upon a sale, exchange, or delivery. Section 21, page 471, contemplates a case where one party only is guilty, and the other is victimized by him. The words descriptive of this offense are "pass," "utter," or "publish."

The defendaut's counsel contends that the indictment under the latter section must use one of the words, "pass," utter," or "publish," and that the offense can not be charged in any other language. In the case at bar, every averment required by that section is made, and the specific acts charged, when proven, unquestionably make out a case under that section, for they clearly constitute a passing, publishing, and uttering. Is that sufficient?

The counsel confidently relies upon Van Valkenburg vs. The State of Ohio, 11 Ohio, 404; Sherman Hatchins vs. The State of Ohio, 13 Ohio, 198, and The United States vs. Nelson, 1 Abb. U. S. Rep. 135. The case in 11 Ohio decides that proof of uttering and publishing counterfeit bank-notes as true and genuine will not sustain an indictment for selling or bartering such notes. In the criminal code of Ohio there were two sections similar, almost identical with our sections 9 and 21, and, undoubtedly, the court properly decided the case of