In re Luther Sheppard. following authorities: Rawls v. Am. Life Ins. Co. 36 Barbour, 357; McElmoyle v. Cohen, 13 Peters, 312; Townsend v. Jemison, 9 Howard, 407; Gans v. Frank, 36 Barbour, 320; Power v. Hathaway, 42 Barbour, 214; Ruggles v. Keeler, 3 Johnson Rep. 263; Bulger v. Roche, 11 Pickering, 39; Dwight v. Clark, 7 Mass. 515; Decouche v. Savier, 3 John. Ch. Rep. 190; Lincoln v. Battile, 6 Wendell, 472; Byrne v. Crowninshield, 17 Mass. 55; and Medbury v. Hopkins, 3 Conn. Rep. 472. See, also, Olcott v. Tioga R. R. Co. 29 N. Y. Rep. 210; 1 Kent Com. (10th ed.) 261, 262, and notes; and 2 Ib. 462, 463; Story Conflict of Laws, sections 576, 577, 5820, 5826. The debt, then, exists, and in most of the states of the Union an action can be sustained against the debtor if found within their jurisdiction. This right of the creditor, considering the migratory habits of our people and their known propensities to travel from state to state, is a valuable right, which would be barred by the discharge; and I shall concur in the opinion of my learned brother of the Southern District upon the question, and hold that the fact that the creditor's remedy for his debt, by suit in New York, is barred by the statute of limitations, does not prevent the proof of such debt or bar his right to oppose the discharge of the bankrupt. It must be conceded that the question is not free from embarrassment, and that it has been differently decided by the learned judge of the Massachusetts district, who relied, in part, at least, upon the English decisions. In that country it has been settled, after much conflict of judicial opinion, that a debt barred by the English statute of limitations is not provable in their bankruptcy courts (Ex parte Dewdney, 15 Vesey, 498; 1 Christian Bankruptcy, 221, and notes), but the circumstances under which the question was decided there are very different from those under which it is presented here. Their statute of limitations and their bankrupt act exist by the same legislative authority, and the operation of the statute is, territorially, coextensive with the proper force and operation of the bankrupt act; but in the United In re Luther Sheppard. States statutes of limitations have no effect beyond the territory of the single state which enacts them, while a discharge in bankruptcy under the laws of the United States, operates with equal force in every state of the Union. The English statute of limitation operating throughout the whole of England, and it being there held that a foreign creditor (one whose debt was contracted and to be paid elsewhere than in England, whether in the United States, France, Germany, or an English or foreign colony) would not, even when suit for its collection was brought in an English court, be barred by a discharge in bankruptcy granted in England, unless the foreign creditor voluntarily made himself a party to the proceeding (Eden on Bankruptcy, 422, 423; Smith v. Buchanan, 1 East, 6), there is much reason for the adoption of the English rule there which does not apply here. Our own courts hold that a bankrupt's discharge in a foreign country does not discharge a debt made in and with reference to the laws of this country (Green v. Sarmiento, Peters C. C. Rep. 84; Zarega's case, 1 N. Y. Legal Observer, 40, note), agreeing in this respect with the English doctrine. It may also be conceded that the propriety of allowing debts barred by the statute to be proved in bankruptcy may be opposed with much force of argument, by reason of the apparent injustice of allowing it in particular cases; but on the other hand, arguments of at least equal force may be urged against the opposite rule. In respect to questions arising under statutes of limitations, the lex fori prevails, and if the statutes of the state in which the bankruptcy proceedings are pending are to furnish the rule of limitation, the New England creditors, by simple contract of a bankrupt who has resided in this state for five years, or for only five months, may prove their debts of twelve years' standing when, if he had not changed his residence, they would not have been provable; and a bankrupt who resided and was largely indebted to relatives in New Jersey, where the statute of limitations would be a good bar, might carry on business for four months * In re Luther Sheppard. in the city of New York, and then present his petition in bankruptcy there, and allow all his New Jersey creditors, whose debts were barred by their statute of limitations, to prove their debts. Again, the states may at any time modify their statutes of limitations, and if the State of Wisconsin or Virginia should provide by statute that no action for any debt, or for any debt due to a resident of another state, should be maintained after six months from the time the cause of action accrued, would the act be binding upon the United States bankrupt courts? Or, if a state should pass 117 an act that no debt should be proved in bankruptcy proceedings in that state after the expiration of six months from the time the debt accrued, would the bankruptcy courts regard such an act? The adoption of the statutes of limitation of the particular state, in which the proceedings in bankruptcy are pending, would, in many cases, give the bankrupt the power to determine whether the statutes should, or should not, be a bar by remaining a resident of the state where he had long resided, and whose statute of limitation would be a good bar; or by removing to, and making his application in, another state, where the statute would be no bar. But it is unnecessary to pursue this line of argument. The real question is, whether a debt against which the statute of limitations of this state has run is still a debt, and that it is there can be no doubt. If it is still a debt there is no statute of the state, or of the United States, which provides that it shall not be proved or allowed in proceedings in bankruptcy; and until some statute of limitations shall be adopted by congress for the guidance of courts of bankruptcy no uniform or satisfactory rule of limitation can be applied by those courts. And even if they could devise a uniform and satisfactory rule, I can find no authority for those courts to provide, or adopt from the statutes of the state, any such rule of limitation. In respect to the claims of the other opposing creditor, it was shown that he had appeared before the register having this case in charge, and had made a deposition, drawn up by In re Luther Sheppard. the register himself, in the proper form for the proof of such creditor's debt, but that such deposition had been retained in the hands of the creditor, or his attorney, and had never been delivered or sent to the assignee. It also appeared that the creditor had afterwards commenced a suit against the bankrupt for the purpose of obtaining a judgment in a state court for the amount of his debt, and had retained possession of the deposition referred to until it was filed with the clerk, at the time of entering his appearance in opposition to the bankrupt's discharge. It was insisted, upon this state of facts, that the court ought not to allow the creditor to oppose the bankrupt's discharge. The 22d section of the bankrupt act, after prescribing the manner and form of making the proof of a debt by deposition, further provides as follows: "If the proof is satisfactory to the register, or commissioner, it shall be signed by the deponent, and delivered or sent by mail to the assignee, who shall examine and compare it with the books and accounts of the bankrupt, and shall register, in a book to be kept for that purpose, the names of creditors, who have proved their claims," &c: and it is evidently the intention of the act that the register or commissioner taking the proof shall decide, in the first instance, upon the sufficiency of the proof. If the proof is satisfactory, the officer is to deliver it to the assignee, or send it to him by mail; and this act of the officer is the only evidence, that the proof is satisfactory, which has been provided for, either by the statute or the general orders and forms prescribed by the justices of the supreme court. The return of the deposition to the creditor, when entirely unexplained, would seem to indicate that the proof was not satisfactory; or else that the creditor did not intend to complete his proof and become thereby a "creditor who had proved his debt;" and the subsequent act of the creditor in commencing a suit against his debtor (which, under the 21st section of the act, he had no right to do if he had proved his debt), is primâ facie evidence that the proof was not satisfactory to the register, or else that the creditor In re Luther Sheppard. did not intend, by making the deposition, to become a creditor who had proved his debt. Under the circumstances stated, I am of the opinion that the creditor, who has now filed the deposition with the clerk, cannot be considered as "a creditor who has proved his debt," within the technical meaning of those terms as used in the bankrupt act. If this conclusion is correct, the question arises whether a person who shows, by affidavit, or otherwise, that he is a creditor of the bankrupt, has a right to appear and oppose his discharge without being, in technical strictness," a creditor who has proved his debt?" This question is one of great importance, and in respect to which there is much difference of opinion. It was stated on the argument that the learned judge of the Southern District. of New York had decided against this right; and I am aware that others, whose opinions are entitled to great respect, have expressed similar opinions. It is probable that in making his decision Judge Blatchford relied upon the decision of his learned predecessor in King's case, to which I shall presently refer. I have carefully examined that case and other authorities, and after a careful consideration of the provisions of the present bankrupt act, I have reached a conclusion different from that announced by the learned judges of the Southern District. While I regret this difference of opinion, my own convictions are so strong that I feel bound to decide the question in accordance with such convictions, and to state my reasons therefor; and then to leave it to congress to settle the question by legislation, if such legislation shall be deemed expedient. In discussing the question thus presented, it is proper first to consider the nature and object of the proceeding which requires its determination. The question can only arise upon the application of a bankrupt for a judicial discharge from all his debts, and these applications are to be granted in most cases without even a partial performance of the legal obligations of the bankrupt. The |