Page:Federal Reporter, 1st Series, Volume 9.djvu/509

 494 FEDEBAIi EBPOBTEE. �The assignee in bankruptcy was chosen on Mardi 25, 1875. On the nineteenth day of April, 1875, he applied to this court for an order upon the sheriff to show cause why the balance of $611.39 should not be paid to him as assignee. ihe order was refused by Judge Blatchford, who indorsed upon the papers that the relief mnst be obtained by plenary suit. The money in the sheriff's hands stands in the place of goods which were already subject to the lien of the judgment at the time of the commencement of the proceedings in bankruptcy. If the judgment was collusive, and designed to give a fraudulent preference, as alleged, it was voidable at the suit of the assignee. Such a suit by him to displace the apparent legal lien of the judgment, and to recover the property for the use of the general creditors, would be within section 5057 of the Revised Statutes, because against a person claiming an adverse interest touching rights of, property transferable to or vested in the assignee. Had the assignee possessed himself of the goods or the proceeds, notwithstand- ing this lien, the judgment creditor must have been limited to two years in which to assert his right to the goods; and the assignee must be held limited to a like period from the time of his discovery of the fraud or illegality. Bailey v. Olover, 21 Wall. 342. �The papers on file, referred to on this motion, show that in April, 1876, the assignee, in his original application for the balance of the money, waa apprised of the alleged collusion and fraudulent charac- ter of the judgment. The affidavit of Clark, the attorney of the peti- tioning creditors, not only stated the fact, but gave some evidence of it. No suit, however, bas ever been commenced to assaii the legal lien of this judgment. More than six years have elapsed since the charge of its fraudulent cbaracter was made by the assignee, and since he was apprised by the court that it could be assailed only by ple- nary suit. The assignee bas appeared in opposition to this motion, but there is no evidence that he is any better prepared to commence such a suit now than he was six years ago, or is even proposing to recover this money. No reason appears why such suit should not have been commenced long ago, if it was desired or intended to contest the lien of this judgment, except, possibly, the assignee's want of the necessary funds to do so, which it must be assumed the creditors were not willing to advance. This cannot extend the statute of limitations. The object of the statute was to secure the speedy liquidation of bank- rupts' estates; The ; injunction of December 8, 1874, was not an injunction upon the assignee's proceedings, but was for the benefit of the assignee to be thereafter chosen. He bas not availed himself of ��� �