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Vol. IV.)


[No. 1.

Rev. Stats. $$ 5110, 5120. So that if the theory under consideration is correct where a bankrupt inadvertently omits property from his schedule and gets his discharge fairly, newly discovered assets can never be reached by the assignee, because the discharge can never be set aside. An interpretation of the law which leads to such results must surely be unsound.

The fact is, that the adjudication of bankruptcy vests in the assignee the title to all property of the bankrupt not exempt, whether the same is placed on the schedules or not; and without reference to the discharge of the bankrupt it is the duty of the assignee to collect the assets, and apply them to the payment of the debts, and a discharge of the bankrupt interposes no obstacle to the performance of this duty.

Third. It is claimed that if the assignee acquired any right to the claim of Maybin against the United States, he is barred of that right because he did not prosecute it within two years; that is to say, because he did not have himself substituted for Maybin as plaintiff in the suit pending in the court of claims until after the expiration of two years from his appointment as assignee. Rev. Stat. § 5057.

If it be conceded that under the circumstances the assignee was barred, it seems clear that Maybin cannot now avail himself of that fact. The limitation is for the benefit of defendants in the actions prosecuted by the assignee. If the limitation of the statute was effectual to bar the assignee, the United States might have set up the bar. But that was not done ; after the suit of the assignee has been allowed to progress to judgment, and the money has been collected by him, it seems to be too late for the bankrupt to intervene and set up the bar of the statute.

I am of opinion, therefore, that none of the grounds relied on by counsel for Maybin, to show that the district court had no jurisdiction to make the decree complained of, are well taken.

This brings up the merits of the revisory petition filed by Maybin. The petition claims that the allowance by the district court to Adam & Speed and Jenner of $17,552.50 was not justified, and I think the objection to this allowance is sustained by the facts of the case. It is made perfectly clear by the record that the court when it authorized Raymond, the assignee, to employ an attorney to prosecute the claim of the bankrupt against the United States, for the compensation of one half the amount recovered, did so in ignorance of the facts of the case; and that this ignorance resulted from the suppression by the assignee of facts which must have been known to him, and the fact of such suppression was known to the attorneys with whom he subsequently contracted. It is not to be supposed that if the court had been advised that the claim of Maybin was already in course of prosecution in the court of claims, and almost ready for judgment, and that the attorneys prosecuting the claim had a contract with Maybin for one half the amount to be recovered for their compensation, that under these circumstances the court would have authorized the employment of other counsel for the assignee, who was to receive the other half of the money for their services. The petition filed by the assignee for authority to employ counsel left the court in the dark as to the real state of the case ; and the order of the court allowing the assignee to employ counsel who were to receive one half the recovery for their services was not binding upon the court or the parties.

[No. 1.

Vol. IV.]


But aside from this, the services which Adam & Speed contracted to render, and for which they were to receive one half the amount recovered by them, were never rendered.

What were the services they agreed to perform ? The petition of the assignee for authority to employ counsel represented that among the assets of the bankrupt there was a claim against the United States for cotton taken from bankrupt's plantation; that in the prosecution of said claim it would be necessary to employ counsel ; that it was customary in such cases for the claimant to enter into contract with the attorney to pay him for his services in the collection of the same fifty per centum of the amount recovered, the claimant to be at no further expense in making said collection; and the petition prayed that petitioner be authorized to employ counsel to prosecute the claim on the said terms, and the court authorized the contract to be made as prayed for in the petition.

In pursuance of this authority the assignee, on the same day the authority was given, entered into a contract in writing with Adam & Speed and Jenner, by which they agreed “to prosecute and recover a certain claim or debt due and owing to the estate of said bankrupt by and from the United States, for and on account of cotton taken from bankrupt’s plantation during the rebellion.” And the assignee agreed to pay them one half the amount recovered for their services.

From all this it appears that what Adam & Speed and Jenner were employed to do, and what they agreed to do, and for the doing of which they were to receive one half the amount recovered, was to prosecute and recover the claim against the United States. This they did not do, nor did they assist in doing. The record shows that the suit against the United States was prosecuted solely by Harris & Harris and their associates, and it fails to show any service performed by Adam & Speed and Jenner, or either of them, towards the recovery of the judgment against the United States.

Adam & Speed and Jenner did perform services for the assignee about the claim, but they were not the services contemplated by the order of the court or by the contract between the assignee and them. These services were the procuring the substitution of the assignee as plaintiff in the court of claims in place of the bankrupt, and the having Jenner substituted as attorney of record for plaintiff in place of Bartley & Casey Doubtless these services were valuable to the estate of the bankrupt. They prevented the fund when recovered from going into the hands of Maybin, the bankrupt, and secured the possession of it to Raymond, the assignee. But the prosecution of the claim and the recovery of the money from the United States, by the final judgment of the supreme court, was done by Harris & Harris and their associates, and not by Adam & Speed and Jenner. It never entered into the contemplation of the court that Adam & Speed and Jenner were to be paid fifty per cent. of the recovery for preventing the fund from going into the possession of the bankrupt, and that the other fifty per cent. was to be paid to the attorneys of the bankrupt for their services in recovering the fund as against the United States.

In my opinion Adam & Speed and Jenner cannot claim under said contract:

(1.) Because the authority to make it was conferred by the court without a knowledge of the facts which the assignee must have known, and was

eive one he United States that the sun their asso

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supremam & Sperat Adam.

Vol. IV.]


(No. 1.

bound to communicate ; and (2.) Because none of the services contemplated by the order of the court and the contract between Adam & Speed and Jenner were performed. The services actually rendered were not those for which the assignee was authorized by the court to pay fifty per cent. of the recovery.

But nevertheless Adam & Speed and Jenner have performed a valuable service to the bankrupt's estate, and they should be paid for such services what they are reasonably worth.

The result of my views is, that the petition of review filed by John B. Raymond, assignee, must be dismissed at the costs of the bankrupt estate, and that so much of the decree as directs the payment to Harris & Harris and Bartley & Casey of $34,525.54 must be affirmed.

That so much of the revisory petition filed by J. W. Maybin, as complains of the order directing the payment to Adam & Speed and Jenner of $17,552.50 by said assignee be sustained, and so much of said decree as directs the payment to said attorneys of said sum be reversed; and that the district court be required to ascertain in such manner as shall seem to it most proper what sum of money is due to Adam & Speed and Jenner for their services in the premises, and to direct the payment to them of such sum out of the fund.

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(To appear in 29 P. F. Smith.)




1. In a suit against a refiner and vendor of petroleum, for the death of plaintiff's husband,

alleged to have been caused by the explosion of the oil, the allegation and evidence of plaintiff were that the oil exploded in a lamp in his hand whilst he was walking quietly; the defendant's allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court said, “ Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever." Held to be error; whether

the death was caused by the explosion as alleged by the plaintiff was for the jury. 2. The declaration averred that the defendants wilfully sold the oil for lighting purposes,

“knowing that it was highly inflammable, explosive, and unsafe,” &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character: Held to be error to submit the case to the

jury. 3. Statements as to the cause of the accident made by the deceased at and about the

time of its occurrence, whilst he was covered with fire, were competent evidence as

part of res gestae. 4. The fact that the oil had passed through a number of intervening vendors before it

was procured by the deceased would not prevent a recovery against the defendants,

if their guilty knowledge and the identity of the oil were established. 5. The responsibility of the manufacturers would attach from their putting the oil on the

market and holding out that it might be safely used as illuminating oil.

Vol. IV.]

Elkins v. McKean.

[No. 1.

This was an action on the case to April term, 1873, of the court below, brought by Elizabeth McKean against George W. Elkins and others, trading as Elkins, Bly & Co.

There were three counts in the declaration :

1. That defendants were manufacturers and vendors of carbon oil for illuminating purposes; that James A. McKean, the husband of plaintiff, purchased a quantity of oil to be used in a lamp; that defendants, knowingly, wilfully, and of their mere negligence, manufactured and sold, for illuminating purposes, oil that was highly inflammable, explosive, unsafe, and dangerous, knowing it to be such ; that James A. McKean purchased the same, and whilst using it in a lamp in a proper and prudent manner, the oil exploded and caught fire, the burning oil was scattered over McKean, and so burned him that he died.

2. That the defendants being such manufacturers and vendors of oil, did knowingly, fraudulently, and maliciously put upon the market, &c., certain carbon oil, representing it to be of a safe and reliable quality of the fire test of 110°, well knowing that the oil so sold by them for illuminating purposes was in fact highly inflammable, explosive, and dangerous; that McKean, relying upon these representations, purchased from vendors of the defendants a quantity of the oil, and whilst using it in a lamp, the oil took fire and exploded the lamp, and he was burned, and died from the burns.

3. That the defendants, being manufacturers of such carbon oil, put upon the market oil, and sold a certain carbon oil marked as 110° fire test; that it was the duty of the defendants, their agents, and servants, to take reasonable and proper care that the oil should be safe and not inflammable or explosive, or give notice that it was thus dangerous, yet they knowingly, carelessly, and negligently sold the oil, knowing it to be unsafe and dangerous ; that McKean, in the course of trade, purchased the oil from those to whom the defendants sold it, not knowing that it was dangerous, and in using it he was burned, and died.

The plea was, “ Not guilty.”
The case was tried December 1st, 1874, before Kirkpatrick, J.

The plaintiff testified that her husband, on Tuesday, the 11th of February, 1873, went into his cellar to turn off the water, having a lighted lamp in his hand ; it was an opaque white glass lamp with a blue rim ; after he had been in the cellar about ten minutes, witness heard cries for help and went to the cellar; she saw him on fire, his clothes burned ; he was in the cellar about midway between where the water was to be turned off and the stairs; the lamp was still burning; he died the next day. The oil had been purchased by McKean on the preceding Saturday.

It was proposed to ask the witness what her husband said as to the cause of the accident at or within a few moments of the time when she found him covered with flames in the cellar and apparently dying, as a part of the res gestã and with a view to show that the burning and death were caused by the explosion of the oil in the lamp carried by the de ceased, and to establish its defective and dangerous character.

Defendants objected to the offer as irrelevant and incompetent for the purpose set forth in the offer. The evidence was admitted and a bill of exceptions sealed for the defendants.

Vol. IV.]

Elkins v. McKean.

[No. 1.

can fonly can thple from me, w

Witness proceeded : “ I asked him how it happened ; I asked him if he had tripped on anything. This was in the cellar, when I went down. He said he had not, that he was walking along the cellar calmly and peaceably and he heard a noise, and before he could realize what it was, the whole top flew off the lamp and the oil came down all over him.

The coroner of Alleghany County testified that he was present at a test made of illuminating oil, which he procured for the purpose, after the accident occurred, at the store of Steele & Hart; it was furnished by Mr. Steele himself from a tin can; it was put into a “ pop-bottle ; " there was a boy in the store at the time. He testified also that the lamp was at the coroner's inquest proved to be that which McKean had, and in which the oil exploded ; that it was a white lamp with a blue streak around it. .

The fire marshal of Pittsburg accompanied the coroner to procure the oil for the test; he testified ds the coroner had done.

Robert Fedder, the boy spoken of by the coroner as being in Steele & Hart's store, testified that in February, 1873, McKean bought oil at that store; the witness sold it to him ; he filled a lamp, such as is described above, and such an one as he also saw at the coroner's inquest; he got it from a can in the store used for holding oil; Steele & Hart had bought the store from Caskey, and the oil that was in the can was bought from them with the rest of the store ; when the coroner and the fire marshal got the oil for a sample from Mr. Steele, it was taken from the can which was the only can they had in the store; there had been no oil put into the can from the time he had filled McKean's lamp up to the time the oil had been given to the coroner; it was the same oil that was in the can when Steele & Hart took the store; there was one oil barrel in the store, but it had no oil in it; the barrel came from Caskey's; the brand “Elkins Bly & Co.,” and “110° fire test,” was on the barrel; the oil that was in that barrel was put into the can, and no other oil had been put into the can for about two or three weeks before he filled the lamp. Steele & Hart had no oil in the store but what they bought from Caskey ; they bought Caskey out about the 16th of January.

Samuel Steele, of the firm of Steele & Hart, testified that the firm purchased W. J. Caskey's store on the 16th of January, 1873, and amongst other things about thirty gallons of oil in a large tin can; they had purchased from Caskey no oil in barrels, - none except that in the can; shortly after McKean's death, witness gave to the coroner oil out of the tin can; there was but one tin can ; he gave him a “pop bottle” full ; witness had purchased a barrel of oil from Arbuckle & Co., on Monday, the 10th of February, the day before McKean was burned; the oil he gave to the coroner was from this barrel, and not from that which he had got from Caskey ; that which was got from Arbuckle & Co. was put into the tin can ; witness knew nothing of the oil the firm got from Caskey, except that it was in the tin can; the can was empty when Arbuckle's oil was put into it; witness put the oil they got from Arbuckle & Co. into the empty barrel, and returned to Elkins, Bly & Co.; the oil given to the coroner was Elkins, Bly & Co.'s Riverside oil; witness did not know anything of the oil that had been in the can previously to that which he put in from the barrel bought from Arbuckle & Co. Neither this witness nor his partner, Hart, who was examined, could tell the brand on the oil

har & Co.," and in it; the be store ; #

except that it witness knew nothis got from Arb

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