Page:Federal Reporter, 1st Series, Volume 3.djvu/217

 210 FEDERAL REPORTER. �of Mary Eogers, whioh was filedDecember 16, 1876. A sec- ond meeting of the creditors for the distribution of this fund ■was called for January 23, 1877. Four days before that meet- ing, to-wit, on January 19, 1877, Samuel Eea, administrator cum testamento annexa of William A. Eogers, deceased, filed his petition in this case, alleging that said stocks were needed to pay debts of the decadent, and which were not known to him when he transferred them to Mary Eogers, and praying for an order upon the assignees to pay to him, as such admin- istrator, the fûnd realized from the sale of said stocks. �In my judgment the case is not one for a summary pro- ceeding like the present, but f alla clearly within section 4979 of the Eevised Statutes, of a controversy determinable by a suit at law or in equity. This distinction between a sum- mary prooeeding and a plenary suit is quite important to the parties here, because the amount in dispute exceeds $5,000, and is within the appellate jurisdiction of the supreme court, but the parties would be deprived of an appeal or writ of error to the supreme court if their rights were determined in a summary way. �I am of opinion, therefore, that the objection set up by the assignees in their demurrer and answer, that the petition here involves a question of title to property, which cannot be determined in such a summary proceeding as the present, is well taken and must be sustained. �But if this record were amendable, so as to couvert the pro- ceeding into a suit in equity (as was suggested at the argu- ment by the petitioner's oounsel) and the amendment allowed, an insuperable obstacle to the relief sought would remain in the statute of limitations. �Section 5057 of the Eevised Statutes enacts as follows : �"No suit, either at law or in equity, shaU be maintainable in any court between an assignee in bankruptcy and a person •claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee." �How is it possible for the petitioner to avoid the bar of the ����