and writs of error may be allowed to the said Circuit Courts from said District Courts, in cases at law under the jurisdiction. created by the Bankrupt Act, when the debt or damages claimed amount to more than $500; and any supposed creditor whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal. Now, according to the decision of Chief Justice CHASE, just quoted, unless this case falls under one of the classes provided for in this section, it is a proper case for the supervisory jurisdiction of the court.

1. It is not the case of an assignee who is dissatisfied with the allowance of a claim.

2. It is not the case of a supposed creditor, whose claim has been wholly or in part rejected. The claims of these petitioning creditors, so far as the record shows, have all been allowed in full. It is true, the court has decided that their claims are not entitled to priority, and that other creditors are, but this is not a rejection of their claims. A creditor's claim is the debt due from the bankrupt to him, and the question of priority of payment is one totally distinct from the claim or debt. We think this is clear from the 1st section of the act which extends the jurisdiction of the court a. to all cases and controversies between the bankrupt and any creditor who shall claim any debt or demand under the bankruptcy; b. the collection of the assets; c. the ascertainment and liquidation of liens, &c.; d. the adjustment of the various priorities and conflicting interests of all parties. Here is an evident distinction made between the claim of a debt or demand against the bankrupt and priority as to other creditors. A claim of priority is not a claim asserted against the bankrupt, but a right asserted against other creditors.

3. That the matter decided by the District Court on March 31st is not a case at law in which a writ of error would lie; this is clear and is not disputed.

4. It remains then to consider whether it was a case in equity in which an appeal might be taken. The phrase case in equity, in the 8th section, in our view, means a suit in equity.

It would seem hardly necessary to cite authority to show what a case or suit in equity is. Blackstone says: "The first commencement of a suit in chancery is by preferring a bill to the Lord Chancellor, in the style of a petition, humbly complaining, showeth to your lordship, your orator," &c. This is in the nature

of a declaration at common law, or a libel and allegation in the spiritual courts, setting forth the circumstances of the case at length, and for that your orator is wholly without remedy at the common law; relief is therefore prayed at the chancellor's hands, and also process of subpoena against the defendant to compel him to answer, under oath, all the matter charged in the bill. The bill must call all the necessary parties, however remotely concerned in interest, before the court-must be signed by counsel.

The 7th Equity Rule, as prescribed by the Supreme Court of the United States, provides that the process by subpoena shall constitute the proper mesne process in all suits in equity to require the defendant to appear and answer the exigency of the bill. Rule 12 provides that whenever a bill is filed the clerk shall issue process of subpoena thereon, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one at the election of the plaintiff, occurring after twenty days from the issuing thereof.

It is further provided in the equity rules that the appearanceday shall be the rule-day to which the subpoena is made returnable, provided the defendant has been served with process twenty days before that day; otherwise his appearance-day shall be the next rule-day succeeding the rule-day when the process is returnable. And it is made the duty of defendant to file his plea, answer, or demurrer to the bill on the rule-day next succeeding his appearance. From what has preceded, it will be seen what is a case in equity, how it is instituted, and how the parties are brought into court, and when they are required to answer.

If we decide that the case before the court is not one for its revisory jurisdiction, we in effect decide that the matter which was passed on by the District Court on March 31st, was a case in equity. In other words, that a mere motion entered on the minutes of the court, not verified by affidavit, without a prayer for relief, without a prayer for process, is a bill in equity; that a notice published three times in a newspaper is service of process, and brings parties into court as if served with a subpoena in chancery, and that a decree rendered upon such rule, where only a portion of the parties referred to in the rule make any appearance whatever, where only a part of them file any response to the motion, and that in the way of an exception and not sworn to, where no decrees pro confesso are taken against those who do not

appear, is a final decree in a case in equity, from which, under the Judiciary Act, an appeal lies to the Circuit Court; the mere statement of the proposition is its own refutation. Nor do we think the case made by the petition of Slocomb, even if it was held to give character to the proceeding and decision which petitioning creditors seek to review, is any more of a case in equity than the motion of the assignee Norton by his solicitor Stone. There is scarcely anything in the petition which assimilates it to a bill in equity. It is in fact nothing more than a motion in writing. It simply prays that said Ober, the said assignee, and said Girardy & Co., show cause on a certain day why the said sales should not be set aside as void, and until the hearing, that the parties named be enjoined from taking any steps towards perfecting said sales. Only three or four of the persons. interested in the question are named in the petition-the great mass of them are left out entirely: no prayer of process, no demand for answers under oath, no service of process, and in fact scarcely any of the common incidents of a bill in equity are to be found in the petition. To call it a bill in equity, or the proceeding a case in equity, it seems to us, is an entire misapprehension of the meaning of the term.

But it is insisted that the setting aside a sale for fraud, and determining the priorities of liens, are matters of purely equitable cognisance, and, therefore, the proceeding sought to be reviewed is a case in equity from which appeal lies.

Courts of law frequently pass upon questions purely equitable, on motion or rule, but the nature of the question has never been held to make such motion or rule a case in equity. It is a very common practice for courts, on motion, to set aside sales made by a sheriff on execution, on account of some fraud or unfairness on the part of the sheriff or purchaser; yet, he would be a bold man who would insist that such a motion was a case in equity. When money is brought into court, the proceeds of a sale on execution, courts of law do not hesitate, on motion, to direct how the money shall be distributed, assuming to pass upon the priorities of claimants to the fund; yet it has never been supposed that by so doing they were rendering a decree in chancery, or that the motion to distribute the fund according to the rights of the parties made a case in equity. These two things-passing upon the validity of a sale, and directing the distribution of the fund arising therefrom,

on motion or rule to show cause-are precisely what the District Court did, and we do not think the motion was a case in equity, or the ruling of the court a decree in equity. It was the simple exercise of a power incident to courts of law, as well as of equity, to regulate the proceedings in a case pending before them, to regulate their own process and to distribute funds brought into

court.

Our general view of the whole subject is this: The proceeding in bankruptcy, from the filing of the petition to the discharge of the bankrupt, and the final dividend, is a single statutory case or proceeding. In the conduct of the case a large number of questions may arise. Before the assets of the bankrupt can be collected and distributed, it will frequently occur that the assignee or the creditor is driven to a regular bill in equity, or an action at law. In these cases, the Circuit Court has no supervisory jurisdiction. Nor has it where the claim of a supposed creditor has been rejected in whole or in part, or where the assignee is dissatisfied with the allowance of a claim. These classes of cases may be taken up on writ of error or appeal. But all other cases and questions arising in the progress of a case of bankruptcy through the Bankrupt Court, whether the matter is of legal or equitable cognisance, and where the matter is not the subject of a regular suit at equity or at law, or is not the allowance or disallowance of a claim, fall within the supervising jurisdiction of the court, and may, upon bill, petition, or other proper process of any party aggrieved, be heard and determined in the Circuit Court as a court of equity.

We think the exceptions to the petition of review in this case not well taken; they are therefore overruled.

The appeal, we think, is not well taken, both because not taken in time and because the matter decided was not the subject of appeal. The appeal is therefore dismissed.

BRADLEY, J., concurred.

The decision appealed from in the foregoing case was rendered in open court, and was entered on the minutes on the 26th April, and it was copied into the opinion and judgment docket, and signed by the judge, on the 27th April. The appeal was taken on the 9th of May,

and the motion to dismiss was on the ground that the Circuit Court had no jurisdiction of an appeal not taken within ten days after the entry of the decision appealed from.

The appellant contended that the delay for an appeal must be counted from