Page:Federal Reporter, 1st Series, Volume 9.djvu/834

 m BE GRA.VE8. 819 �The theory on which the limitation acts are based is the preven- tion of the collection of stale claims, and this is founded on the reasonable presumption that a man, if he had a valid claim, ■would proceed to recover it by suit; but on the legal principle of causa ces- sante lex ipsa cessat that rule cannot have application, where, by the provisions of the bankrupt act, the assignee cannot be sued by the creditors. The distribution of the bankrupt's estate is committed to him without vexatious interference by suits of creditors. No time is fixed by law within which they must present their claims for proof. We thinkjthe resuit of the authoritiea is that if the bar of the statute is not complete before the adjudication of bankruptcy, it does not run afterwards ; and as that was the case here, we are led to conclude that the statute of limitations of the state of Delaware does not present a bar to the proof of these claims. The most serions objection to the proof of these claims is based on the allegation that these creditors have held security for their payment, which they have not sur- rendered for the benefit of the general creditors. Now, it is undoubt- edly true, to enable a secured creditor to prove bis claim he must surrender bis security, and all benefit and advantage arising there- from, before he can prove his claim thus secured; and it is also true that if he contests his right to his security in the courts, and chooses to rely on it for the ultimate payment of .his claim, and fails, he loses his right to prove his claim as an unsecured one, unless he does it before the entry of the judgment or decree of the court against him. I do not consider it necessary to repeat what bas been said on another occasion on this subject, as the view I take of the law and the facts of this case make it unnecessary to do so. �This is an objection to the proof of this claim which appears to me to be insuperable : Swan, Clark & Go. did, without a doubt, hold a security for their claims, which they now wish to prove within the meaning of the bankrupt law. They held the paper or instrument which secured them. It was of such a character that it could have been assigned or transferred to the assignee of the bankrupt prior to the decree, but not after it. It is true that the right to the loan stock was coupled with conditions, but they did not impair the right in the owner to transfer the stock subject to such conditions, or its value in the hands of the assignee after it should have been transferred. �The act of congress makes it imperative on any creditor thus secured to give up his security to the assignee before he shall be per- mitted to prove his claim. He can elect to stand on one or the other, — ��� �