The United States v. Guthrie.

objection. But, may not the objection apply to the removal. *314] of the judge? If such a power were within the exercise of the discretion of the President, it would be conclusive. But if the act be without authority and against law, it is void; and such was the act complained of. The President could exercise no discretion on the subject; the removal was beyond his power, and the act being void, it cannot be considered as the exercise of an executive discretion. The judgment and discretion which may not be interfered with, by mandamus, must be in the discharge of executive duties. These do not come within the judicial power. But an unlawful, and consequently void act, by the President, by which an injury is done to an individual, cannot be covered by executive discretion. And in this case the question is incidental to the object of the mandamus, which is to require the secretary to perform a ministerial duty. The removal of the judge is set up by the secretary as a reason why the relator has not been paid; and if the act of removal be void, it fails to justify the refusal to pay.

The case of Decatur v. Paulding, 14 Pet., 513, is altogether different from the one under consideration. In the opinion of the court in that case, the chief justice showed that it was materially distinguishable from Kendall's case.

It would be difficult to imagine a clearer case for mandamus than the one before us, in my judgment; and I think it should be issued. If the salary has been paid to the new judge, it has been illegally paid, and that is no reason why it should not be paid to the rightful claimant.

We have nothing to do with the conduct of the judge, nor had the President. The judge was liable to be impeached and removed from office, in that form.

Order.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judg ment of the said circuit court in this cause be and the same is hereby affirmed, with costs.

330

Clark v. Clark et al.

*FERDINAND CLARK, APPELLANT, v. BenJAMIN C. CLARK AND WILLIAM H. Y. HACKETT.

Where a person took the benefit of the bankrupt law of the United States; omitted in first schedule of property, to take any notice of a claim which he had against the Mexican Republic, for the unlawful seizure of the cargo of a vessel; filed an amended schedule, in which he mentioned the claim so indistinctly as to give no information of its value, although he was then prosecuting it before the board of commissioners; concealed the evidence of the property, so that the assignee in bankruptcy reported that it was of no value, and sold the whole, for a nominal consideration, to the sister of the bankrupt, who afterwards transferred it to him; the purchase was fraudulent, under the 4th section of the bankrupt law, and also by the general principles of equity.

Where a creditor of the bankrupt filed his bill, and gave his bond within thirty days after the award of the board of commissioners, this was sufficient within the 8th section of the act of March 3, 1849, to carry into effect our treaty with Mexico.

The creditor was a cestui que trust of the fund, and had a right to intervene, as the assignee in bankruptcy was dead. This was sufficient to give jurisdiction to the court. His not having proved his debt did not debar him of this right. Another assignee was appointed, and filed his claim without loss of time.1

The 8th section of the bankrupt law, limiting actions to two years after the bankruptcy, relates only to suits brought against persons who have claims to property, or rights of property surrendered by the bankrupt. And, moreover, no right of action accrued until the fund existed.

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.2

Ferdinand Clark, the appellant, prosecuted a claim before the commissioners who acted under the treaty between the United States and Mexico, which claim was for the unlawful seizure of the cargo of a vessel called The Louisiana. The commissioners awarded to him $86,786.29; out of which there was deducted, by agreement, a sum of money, as compensation to the agents employed in its recovery, leaving $69,429.04.

The award was made on the 15th of April, 1851, and, on the 15th of May following, Benjamin C. Clark, of Boston, filed a creditor's bill in the circuit court of the United States for the District of Columbia, claiming the fund, for himself and other creditors of Ferdinand Clark, who had taken the benefit of the bankrupt law of the United States, on the 22d March, 1843, in the state of New Hampshire. Soon after this bill was filed, namely, on the 30th May, Hackett, the

1 DISTINGUISHED. Phelps v. Mc- 2 Further decision, Booth v. Clark, Donald, 9 Otto, 306–308. RECON- post *322.

CILED. Glenny v. Langdon, 8 Otto, 23.

Clark v. Clark et al.

then assignee in bankruptcy of Ferdinand Clark, filed his bill, also claiming the entire fund, for the purpose of distribution amongst the creditors; Palmer, the original assignee in bankruptcy, had died, and Hackett was appointed in his place. The substance of Hackett's bill was as follows:

In this bill, Hackett sets forth his appointment as assignee, in place of Palmer, deceased, and prays for leave to *316] come in, under the prayer of the original bill of B. C. Clark, and to be made complainant in said cause. He then avers that Ferdinand Clark was duly and regularly declared a bankrupt, in 1843, and that all his property and effects passed out of the bankrupt, and vested in the assignee, Palmer, who was regularly appointed, and is since dead, leaving the proceeding in bankruptcy still pending; that the bankrupt had, among his assets, a claim on the Republic of Mexico, which is the claim in satisfaction of which the award in controversy was made; that the said claim was not described in any manner to make the same available to his creditors, and that no such evidences as would enable him to recover said claim were put into the hands of the assignee; and that the assignee was ignorant of the true value of the assets, and that he, therefore, reported them to the court as of no value; that no right, title, or interest in said claim, ever passed out of said assignee, or became revested in said bankrupt; that said bankrupt had since prosecuted said claim, in his own right, falsely and fraudulently claiming that his debts in bankruptcy had been satisfied, and that said claim had revested in him; that the amount of said award legally belongs to complainant, as assignee. The complainant then submits, that the said Benjamin C. Clark and others, the creditors of said Ferdinand at the date of his bankruptcy, being in the condition of cestuis que trust whose trustee is dead, have complied with the true intent and meaning of the act of congress. Prayer for an injunction and general relief.

The answer to this bill, amongst other things,

Admits that defendant had among his assets a claim against Mexico, and that the claim on which the award was made is the same; admits that said claim was set down in the schedule, but denies that it was not described so as to make the same available to his creditors; and he expressly and particularly denies that such evidences and information as would have enabled said assignee to recover said claim were fraudulently withheld by this defendant, and denies that his assets and effects generally were so described in his schedules that the assignee was in ignorance of their true value; avers that this Mexican claim was expressly mentioned in said schedule,

Clark v. Clark et al.

in the manner demanded by the rules and practice of the district court of New Hampshire; that said claim was mentioned as subject to a mortgage; that such mortgage did exist, in fact; that he did not know the amount thereof, but verily believed it to be more than the value of the claim; that no value was set to said claim, because he believed, and had reason to believe, that said claim was wholly without value; that defendant communicated to Palmer, the assignee, the situation of all the claims mentioned in his schedules; [*317 that all the papers and evidences in support of said Mexican claim were not in his possession, but had been, in the year 1842 or earlier, filed publicly before the commissioners appointed under the convention of April 11, 1839, and were afterwards placed, and, at the time of the commencement of the proceedings in bankruptcy, were in the public archives of the government of the United States, and there remained till the time of said award.

The defendant then sets forth more particularly the bankrupt proceedings up to his discharge, on the 17th December, 1844, from all debts then owing by him. He states that notice of the proceedings in bankruptcy was published in the leading papers in the district, and that notice, personally and by letter, was also served on all creditors, whose residence was known ; that, notwithstanding this, no creditor ever filed in the district court any proof of debt, or any objections to the proceedings in bankruptcy, or to the doings of the assignee, until after the award was made.

The answer then avers, that on the 14th day of March, 1845, the assignee filed a petition for an order to sell the estate of the defendant, and on the 14th it was so ordered; that, in pursuance of said order, Palmer did, on the 9th day of April, 1845, after posting up advertisements, &c., sell at public auction all the estate and demands of the bankrupt, mentioned in the schedules attached to the petition of Ferdinand Clark to be declared bankrupt, to R. M. Clark, and that, by sale, said Mexican claim passed to said R. M. Clark. And the answer denies all artifice or fraud to depress the value of said demands, or this Mexican claim particularly; that on the 9th of April, 1845, said Palmer executed a formal bill of sale, with schedules attached to it, in which schedules this Mexican claim was included; that on the 10th April, 1845, defendant purchased, for valuable consideration, all the said property from R. M. Clark, including said claim; that he has prosecuted said claim in his own name, and at his own risk and expense; that com‐ plainant has not filed his notice with the secretary, according to the provisions of the 8th section of the act of March 3, 1849.

Clark v. Clark et al.

On the 2d of June, 1851, the circuit court issued an injunction, restraining the secretary of the treasury from paying, and Ferdinand Clark from receiving, the amount of the award, until the further order of the court.

The 8th section of the act of March 3, 1849, (9 Stats. at L., 394,) authorized any person, who claimed any part of an award, to file a bill; and directed the fund to remain in the treasury, to await the decision of the courts.

*The case went on in the circuit court, and much

*318] testimony was taken. A part of it related to the pro

ceedings in the bankrupt court of New Hampshire, which are summarily referred to in the opinion of the court, and need not be further noticed here.

On the 30th of May, 1853, the circuit court decreed that the fund should be paid over to Hackett, for distribution in the bankrupt court of New Hampshire, amongst the creditors of Ferdinand Clark.

From this decree, Clark appealed to this court.

It was argued by Mr. Lawrence and Mr. Nelson, for the appellant, and by Mr. Carlisle and Mr. Johnson, for the appellee.

The arguments consisted chiefly in the examination of, and comments upon, the facts in the case.

The following points of law were made by Mr. Lawrence :1. That B. C. Clark, the complainant in the original bill, had no standing in court at all, he being a mere general creditor at the time of bankruptcy of appellant, and his debt having been discharged by the bankruptcy and proceedings thereon.

2. That there was no privity between B. C. Clark (who had never made himself a party to the bankrupt proceedings at all) and the assignee in bankruptcy; but that Hackett, the assignee, must stand upon his own compliance with the 8th section of the act of 3d March, 1849, or else fall.

3. That the circuit court of the District of Columbia had no jurisdiction in this case, except that conferred by said 8th section. The fund was in the treasury of the United States, and the parties were non-residents. Inasmuch as Hackett, the assignee, had not given the bond nor filed the notice specified in said 8th section, upon which the jurisdiction of the court was to attach, the bill should have been dismissed.

Mr. Justice CATRON delivered the opinion of the court.