and with the advice and consult of the senate, to appoint a successor for one member of the board at each session of the general assembly, said body convening in regular sessions on the first Wednesday in January of each alternate year.

In order to carry out this system of biennial appointments and successions, it was necessary in the first place, to provide for filling vacancies; and in the second place to limit the terms of such appointees to the unexpired terms of their predecessors.

If no provision had been made in the statute for filling vacancies, then the constitutional regulation would have been in force, and such appointees would hold only until the next meeting of the

senate.

This might operate to nullify the system of appointing one member of the board at each session of the general assembly, and require the appointment of two members at the same session.

Again, if incumbents appointed to fill vacancies were not limited to unexpired terms, the plan of biennial appointments provided by the statute might be defeated by the issuing of commissions to end at different intervals from those specified in the act, or if such appointees were restricted to the balance of a calendar term it would, as suggested by counsel for defendant in error, afford an opportunity to executives to defeat the will of the legislature, by withholding nominatives from the senate when in session, thus creating vacancies which they could afterwards fill without the advice and consent of the senate.

The evident intent of the legislature was to guard against such consequences.

The provisions extending the term of office until a successor shall be appointed and qualified is usual in constitutional and statutory enactments of this character. The object is to prevent any inconvenience that might otherwise arise from a vacancy in an office occurring after the expiration of a term and before the qualification of

a successor.

It is to be presumed that the usual object was sought to be attained in the present instance, and if this be so, precisely the same reason exists for extending the provision to unexpired terms as to full terms of service.

Viewing the subject in accordance with the principles announced, and in the light of the context, the clause: "and the appointee shall hold only for the unexpired term of the person whose place he is appointed to fill," means simply that an officer appointed to fill a vacancy shall not hold for a full term, but shall retain the office for the same time that his predecessor might have retained it, and no longer.

This view harmonizes the tenure of office with the system of appointments provided by the statute, and renders the whole consistent and effectual.

It follows that Osborne, upon his appointment and qualification as the successor of Emrigh, succeeded to all the duties, rights and

No. 49.-2.

privileges of his predecessor, and thereafter bore the same relation to the office as did his predecessor.

What, then, is the import of the term vacancy, employed in the statute? The supreme court of Indiana has said that this word has no technical or peculiar meaning as used in the statute of that state; that it means empty and unoccupied, as applied to an office without an incumbent: Stocking v. The State, 7 Ind., 326. We entertain the same opinion respecting the legal signification of the term as it is used in our statute. Section 2, of the act of 1881, only authorizes an appointment by the governor, without the consent or the senate, when necessary to fill a vacancy in the board of control, arising from resignation, death or otherwise. Whatever the contingency may be, it must occasion a vacancy in the office or the power of appointment by the governor alone does not exist.

It was decided in Tappan v. Gray, 9 Paige 506, that an office is not vacant while any person is authorized to act in it and does

so act.

In the case of The People ex rel. Parkinson v. Bissell, 49 Col., 407, the statute provided that appointments to the office of inspector of gas meters should be made by the governor with the consent of the senate, except when made to fill vacancies, and that incumbents in office should continue to discharge the duties thereof until their successors were qualified. Upon the theory that Bissell's term of office had expired, the governor, during the recess of the senate, appointed Parkinson to fill the vacancy, although Bissell still continued to discharge the duties thereof. The latter refused to surrender the office, and an information setting out the facts was filed in behalf of Parkinson, charging that Bissell was an usurper and intruder in the of "inspector of gas meters." The court held upon demurrer to the information, that if Bissell's term of office had in fact expired, so long as he continued to discharge the duties there was no vacancy, in any sense which would authorize the governor to fill the office without the consent of the senate. To the same effect is the case of The State ex rel. Clifford v. McMullen, 46 Ind., 307, when the auditor of a county, who was authorized by statute to fill vacancies in the office of township trustee, determined that a vacancy existed in that office by reason of the failure to elect a successor at the general election (the two candidates therefor getting each the same number of votes) and appointed a successor. The incumbent being authorized by statute to hold the office until his successor should be elected and qualified, refused to deliver up the books and papers, and continued to perform the duties of the office. The court held there was no vacancy, and that the appointment of the auditor was a nullity.

It is clear to our minds from the language of the statute, that no vacancy existed in the office of member of the board of control of the state industrial school, at the time of the appointment of the relator, and this conviction is confirmed by the reasons assigned and the authorities cited.

It is unnecessary to discuss the remaining proposition of the relator, that his appointment may be justified under the power of removal vested in the governor. No such fact is alleged in the information, and it cannot be supplied on demurrer charging that the complaint does not state facts sufficient to constitute a cause of action.

The judgment is affirmed.

BROOKS v. BATES, ET AL.

Filed October 31, 1884.

STATUTE OF LIMITATIONS--ANTICIPATION OF DEFENSE OF-STRIKING OUT ALLEGATIONS OF-Averments of a complaint, in anticipation of a defence of the statute of limitations, will be stricken out on motion, if the complaint, without such averments, states a cause of action which is not barred by any existing statute.

STATUTE OF LIMITATIONS-BANKRUPTCY LAW-PROVABLE CLAIM-WHEN ACTION MAY BE MAINTAINED IN STATE COURT-UNREASONABLE DELAY OF BANKRUPT. The plaintiff brought this action to collect a promissory note. The defendant pleaded the statute of limitations. The replication averred that the defendant had been adjudged a bankrupt by the United States district court for the northern district of Illinois, in proceedings under the the national bankruptcy act then in force; that the note sued on was a claim provable in said proceedings; that the defendant had never been discharged in bankruptcy, and that he had unreasonably delayed taking the necessary steps to procure such discharge. Held, that the replication stated facts sufficient to avoid the statute of limitations: that the plaintiff, not having proved his claim in the bankruptcy proceedings, within the meaning of section 5,105 of the revised statutes of the United States, was entitled to bring an action thereon without first obtaining the consent of the bankruptcy court, after the bankrupt had unreasonably delayed his application for a discharge; and that the state court, in which such action was brought, had jurisdiction to determine whether the brnkrupt had been guilty of unreasonable delay in applying for his discharge.

ERROR to the district court of Arapahoe county. The opinion

states the facts.

Stallcup & Shafroth, for the plaintiff in error.

M. B. Carpenter, for the defendant in error.

HELM, J. The motion to strike certain averments from the complaint was properly sustained. These averments related to the statute of limitations; their purpose was to show that no bar of the action had arisen thereunder. This was anticipating a defense of which advantage might not be taken. Without the rejected matter the complaint stated a cause of action; upon its face no bar was disclosed by virtue of any existing limitation statute. No new promise was relied on; hence by no possible construction would a special demurrer lie thereto under the rule stated in Buckingham v. Orr, 6 Colo., 387. The matters averred were wholly unnecessary, and were appropriately reached by the motion to strike.

The second assignment of error is not so easily disposed of. Defendant-W. L. Bates-in his answer for a second defense, pleads the statute of limitations; he invokes the benefit of the sixteenth section thereof as it existed prior to 1879; this section referred to causes of action upon contracts accruing without the state and operated to prevent a recovery when pleaded, in suits begun upon such causes of action one or two years after the same matured.

Plaintiff, by his amended replication, first pleaded facts which, if true, would have avoided the plea of the statute, viz: that defendant did not become a resident or citizen of Colorado; that he never was in the state even, until after the sixteenth section aforesaid had been repealed. Then, as a second ground of replication, he averred that defendant was duly adjudged a bankrupt by the United States district court for the northern district of Illinois, in proceedings under the national bankruptcy act then in force; that the note upon which plaintiff brought this suit was a claim provable in said proceedings; that defendant had never been discharged in bankruptcy; and that he had unreasonably delayed taking the necessary steps to procure such discharge.

The object of the latter plea was to show that before the unreasonable delay above mentioned, plaintiff could have brought no independent action in Colorado upon the note; and therefore that in any event, being prevented by a superior law from bringing suit, the statute of limitations aforesaid did not run against him; but that by defendant's delay under the bankruptcy law a right to maintain this suit finally, sprung into existence. See Greenwald v. Appell, 3 Colo. L. R., 552.

To the replication a demurrer was filed. The theory maintained in support of this demurrer is, that if plaintiff's claim was actually proved in the bankruptcy court, he was thereby estopped from maintaining another action therefor; that whether the claim were so proven or not, that court was the only forum which had jurisdiction to determine the question of unreasonable delay on the part of the bankrupt in procuring his discharge; and that its consent was an essential prerequisite to suit before any other tribunal upon the note here declared on.

Thus three questions are presented by this demurrer. First, was it necessary for plaintiff to aver in his replication an omission to prove his claim in the bankruptcy court and if necessary, did he sufficiently do so; Second, is that the only tribunal clothed with power to determine whether or not there has been the " unreasonable delay" mentioned by statute, in procuring a release in bankruptcy; and, Third, should the replication have contained an averment of consent first obtained from the court of bankruptcy, to bring this action?

We assume of course, that plaintiff was duly served with the usual creditors' notice of the bankruptcy proceeding.

The first of the foregoing questions arises under section 5,105, revised statutes of the United States, which was a part of section 21 of the bankruptcy act of 1867, and reads as follows: "No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against him."

This, like nearly every other provision of that statute, has received judicial construction, though its language is so plain that it hardly seems to admit of conflicting views. Without reviewing or com

paring cases, we shall simply adopt the conclusion reached in Dinges v. Becher, 9 B. Reg., 508, interpreting this provision in the light of the entire act. "If the bankrupt unreasonably delays his application for a discharge, or is guilty of laches in his efforts to bring it to a conclusion the, the creditor who has proved his debt, is still incapable of proceeding elsewhere without permission of the court of bunkruptcy."

The reason for this construction is that under the law, a creditor who proves his claim in the bankruptcy proceeding, thereby voluntarily submits to the jurisdiction of the bankrupt court, and waives any right he might have had to maintain, upon his own volition merely, a suit elsewhere.

It was in our judgment necessary for plaintiff to show in his replication that his claim had not been proved, or to aver consent to sue elsewhere, first obtained from the bankruptcy court. But we think the former fact was sufficiently pleaded.

Provable claims are practically divided by the bankruptcy act according to status before the bankruptcy court, into two classes, viz: those which have been proved, and those which have never been presented therein. The foregoing provision of the statute is confined to the former, the succeeding section applies to the latter. This succeeding section as we presently shall see, uses the term "provable" to distinguish from the class of claims alluded to in the proceeding section, as well as in contradistinction to claims that could not be proved in the court of bankruptcy, and when plaintiff in his replication declares that the note in suit is a provable claim, following such declaration with the averment of unreasonable delay, it is apparent that he intends to place himself within the purview of the latter section, we think the pleading sufficiently accomplishes this purpose; it was hardly necessary to add the negative averment, that the claim had not been proved in the bankruptcy proceedings.

The alleged fact is in issue, and upon the trial, if defendant offers evidence establishing the proof of the note in the court of bankruptcy, this action will be defeated.

The remaining points presented by the demurrer are closely connected, and can not be considered separately. The statutory provision last above mentioned is section 5,106, revised statutes of the United States, which is also the latter part of section 21 aforesaid. It declares that no creditor whose claim is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of discharge shall have been determined, and any such suit or proceeding shall, upon application of the bankrupt, be stayed to await his discharge, provided there be no unreasonable delay on the part of the bankrupt, in endeavoring to obtain his discharge.

Counsel differ as to the meaning of the words "to prosecute," cited in the foregoing section. Our view is that these words relate equally to suits brought before the bankruptcy proceeding, and those instituted while it is pending. It would be a narrow con