
    RUGELY & HARRISON vs. ROBINSON et al.
    
    llv&H. filed their bill in equity against E. T. R. and W. R., seekin*' to condemn to the satisfaction of a judgment at law, which they had' obtained agaiust the said E. T. R., (on which judgment an execution-liad been issued and-teturned “No property found,”) his interest, in certain lands and slaves which had been bequeathed by his father t-o W. R.,- “ to have and to hold the same ill trust for the benefit of E. T. R., but the same shall not be subject to the payment of any debt that he may owe. nor shall the rents and profits of the land or' the hire of the slaves be applied for the same object, but the samé' shall be held for the use and benefit of the said E. T. R. and his farm ily, during the term of his natural life, and from and after his death to the use of such persons as the same maybe devised and bequeathed by the said E. T. R. in his will: and in the event no will shall be made, then to the heirs at law of the said E. T. R.” The defendant insisted that he did nor have such an interest in the property bequeathed as could lie subjected to the payment of his debts, and.also relied on his discharge under the BanhruptAct, obtained subsequently to the rendition of the judgment against him. R. fe H. did not prove their claim in the Bankrupt Court against E. T. R., nor was his interest in the trust property surrendered in his schedule by E. T R. The Chancellor dismissed the hill, but the Appellate Court reversed his decree, and held that the interest of E. T. R. iu that portion of the property from the employment of which a revenue was to be derived was capable of separation by an account ascertaining Ills share in the nett product, and that such share, when so ascertained, was liable to lie subjected to the payment of his debts. The cause was remanded, that an account might he taken, and that other parties might be added. The hill was amended by making the wife and children of E. T. R., and also the assignee in bankruptcy, parties defendants. It was proved, inter alia, that after the testator had made his said will, he verbally requested VV. R. to give to said E- T. R. a certain warehouse and ten acres of land; that W. R afterwards refused to comply with this request, but permitted E. T. R. to rent out the property and receive the rent, for three or four years; that T., to whom the property was rented for one year, executed his note for the rent payable to W. R., together with a mortgage on two slaves, to secure its payment; that the slaves were sold under the mortgage, and purchased by W. R. in his own name, and were afterwards delivered by him to E. T. R.; that E- T. R. had purchased three negroes from W. R., which w.e;-e to be paid for out of the trust estate, but the purchase money had not been paid. W. R. claimed to have a mortgage on said three negroes for the payment of the purchase money, but in? proof was made relative to it. It was held—
    1. That the correctness of tlie former decision of the Appellate Court could not be questioned, either by the assignee in bankruptcy or by the wife and children of E- T. R., inasmuch as the former was not injured by said decision, and the interest of the latter was fully represented before the court at that time by the trustee, g. That the amendment only put in issue such facts as would avoid the discharge in bankruptcy, which the original defendants had set up, or show that it did not operate on the property sought to be condemned, and was therefore not obnoxious tq file objection of making .a new cuse difieren? from that presented by the original bill.
    
      3. 'That the legal title to the slaves purchased under the mortgage did not vest in E. T. R. until the' delivery to him, and until that time he did not have such a beneficial interest in them as could be stibjected by his creditors, at law or in’equity, to the satisfaction of'their demands.'’
    4. -That the omission of E. T. R. to include in his schedule his inter-'"' est in the trust property, thus bequeathed by his father, was hot. such a fraud or wilful concealment as would vacate in tolo his certificate of discharge as'a bankrupt.
    5." That a charge in the' bill that the failure of E. T. R. to surrender in his schedule his interest in the'trust property amounted in law to a fraud which should vacate-his discharge, was not equivalent to a charge of fraud or wilful concealment of his property.
    S.5 That although it is á general rule, that to enable the creditor of a bankrupt to maintain a suit in equity to subject to the satisfaction of his debt'‘property belonging to the bankrupt, he must allege in his bill some collusion between the assignee and the debtor;'or' that the assignee refuses to bring suit, yet when the assignee has neglected for more than five years to institute proceedings to obtain the condemnation of the’banknipt's interest in cerium trust property, and in the meantime a creditor lias’ ferreted out that iu-tefest, and after a protracted litigation, obtained a decree subjecting - it to the satisfaction of his debt, the assignee will be presume'd to have abandoned his claim, and he ca’miot assert'it against such " creditor.
    7."The'assignee having no claim to the property which he could as- " sert against the complainauts, none of the other defendants could take advantage of E. T. R/s discharge under the Bankrupt Act.
    8. That the State tíóurts have jurisdiction of the ca’se established by the bill, answers' and evidence.1 The rules of interpretation which 1 obtain in the Federal courts as to the construction of the Bankrupt Act will be applied by the State’ courts.
    9.1 That W. R. and E. T. R. having admitted in their answers the due issuance and return of the execution against El T. R.,an objection to' the sufficiency of the return' could not afterwards be raised, ’ either by them or any of the-other defendants.
    10: That a defendant cannot raise the objection that an execution ' was not sent to the'cóunty of his residence, unless he shows that he'-had visible property'in that county which was liable to its sat-''" isfaction.
    
      11‘: That the‘other creditors of E. 'T. R. were'not necessary parties: '’ -
    12! That it was-foot necessary or proper, in stating tlife account, that any allowance should be reported for the family of É. T. R.
    13: Thai'E^T. R. was hot entitled' to compensation fof his serviefed-*" in superintending the'trust estate, no such claim'having been set v up in his answer, and no proof made before the master of any*contract between him and trustee for such compensation.
    14-: That the three negroes which were'purchased from W. R. by E. T. R. were'properly taken into the estimate in stating the account. *
    ERROR to the Chanfeery Court of' Lowndes. Tried before the Hon. J. W. Lesesniri
    This caso waS'before: the Supreme Court at-the June Term 1846, and is reported in 10 Ala. 102. Rugely &:iIarrison, the complainants, had obtaiiied a judgment at law in 1836 against Eli T. Robinson and Edward Couch, on which aii execution had ' been regularly issued arid returned “No property found.” lit 1844 they filed their bill in equity‘against Eli Th Robinson arid" William Robins'on, seeking to condemn to the satisfaction of their-judgment Eli’s interest in ccrtaiirproperty, consisting of lands,> negroes and other personal property, which had'been bequeathed by his father, -Tod Robinson, to William in trust for Eli. The language of the clause is as follows, viz : u I'give and bequeath unto my son William Robinson, and his heirs, all that tract of ' land,”- &.C., (here follows a description of the property,) “ to ■" Lave-and to hold the samo in trust for the benefit of my son Eli ■ Robinson; but the same shall not be liable for the payment of ■ any debt that ho may owe, nor shall the rents and profits of the ' lands or the hire, of the slaves 'be applied for the sarnfe object; ~ but the same shall be bold for the use and benefit-of the said Eli - T. Robinson and his family during the term-of the said Eli’s riát- - urai life, and from and after his death to the use of such persons as the same may be devised and-bequeathed by the said Eli T. - Robinson in liis will; and-'in the event rio Will shall be made, then " to> the heirs at law of the said Eli.” Tire defendant in his an- - swer, among other thing-%.set up his discharge under 'the Bank- ■ rupt law, obtained in 1843-. The Chancellor dismissed the bill, » but liis decree was reversed by the Supreme Court, and the cause remanded, that an account might be taken to ascertain the share of Ell-in the riett product of the trust property from the employ- - mfent of which a revenue'was to he derived, and also to bring in ■ tlie assignee in-bankruptcy,'and tbe wife and children of Eli. • 'The account wits' taken "accordingly, and the necessary parties ■ added, and -the cause no-w-coiries back--to- the :Si!priéme- Court on 1 cross assignments oi' error by the complainants, and the several defendants. The errors assigned, and the points raised by each party, appear in the briefs, and in the opinion of the .court.
    Saffold for Hugely & Harrison :
    1. Is the former decision of this case by the Supreme Court binding on the wie and children of Eli T. Robinson and the as-signee in bankruptcy'? The amendment does not make a new .case. It is founded on the allegations of the answer, and the new defendants set up no new defence. The interest of the as-signee consists in havmg the property condemned, and the interest of the wife and children was fully represented and protected before the court. — 10 Ala. 702; 4S. & P. 62; 1 Por. 321; 1 Wheat. 304 ; 2 A. K. Marsh. 353; 7 Wheat. 58; 12 Pet. 488; 3 How. 413; see also Ram on Judgments, 53,127-28-29, 134, 137 ; 1 Wm. Black. 264; 3 Bing. 599; 8 Burn. & E. .503; 3 Barn. & Adol. 17; 1 Lord Raymond, 516; 0 Barn. & ■¡Ores. 666 ; 4 Barn. & Adol. 38 ; 3 Aik. 16..
    2. Conceding that the former opinion is not conclusivo on this court, still it should be supported because it correctly asserts the law. See 10 Ala. 702; and cases there cited on brief and in opinions.
    3. As to the assignment that the assignee should be allowed to come in and claim this interest of Eli’s. The interest sought to be condemned was never claimed by the assignee, except in his answer to the amended hill in this case. He was not bound to incur costs in such a case as this., by instituting legal pro ceedings to condemn this property; nor can he now come in, an wrest it from complainants, who have succeeded in obtaining it condemnation after an expensive litigation of six years. H ought to have asserted his claim in a proper way, and within ; reasonable time, two years at least. By not asserting it withi. that time he will be held to have waived it, — Eden on Bank ruptcy, 844, (32 Law. Lib. 263;) 1 Henry Black. 665; 2 ib 402; 4 Term R. 193 ; 3 Swansfc. 365 ; 3 Meriv. 279 ; 1 Brand 219; 1 U. S. (annual) Dig. 86, § 122; 18 Ala. 388; 6 Lav II. (Nov. 1843,) 313; 4 Johns. R. 556 ; 4 Johns. Ch. 691; l Sm. & Mar, 710; 9 ib. 27 ; 1 Sandford’s Ch. R. 135 ; 8 Ala. 194; 12 ib. 666,
    4. As to the jurisdiction of the State Courts. There is r.c proof that complainants bad any notice of tbe proceedings' in bankruptcy; they never proved their claim in the Federal Courts; the property sought to be condemned was never surrendered by the bankrupt; the assignee has not taken any proper step to subject it; the bill charges fraud in the omission to surrender it; there is no proof that there are any other creditors. — 8 -Ala. 198-200; 12 ib. 666; 6 Law Reporter, (Nov. -1848,) 313; 8 Smedes & M.,710 ; 9 ib. 27.
    5. As to the error ¡assigned by the wife and children of E. T. R., that as. to them there is no proof of complainants’ demand, this is founded on a mistake of fact, as the-recor'd shows.
    6. The negroes Andrew, sParmelia and George should have ■ been condemned absolutely to-¡the-satisfaction of complainants’ . debt. The answers of E. T. R. and W. R., and the proof establish conclusively, that there was a secret trust in these negroes for the benefit of E. T. R. W. R. had allowed him to receive the rents of the warehouse, &c., for several years, .and there .is no difference between the receipt of the rent in negroes, and the . receipt in money.
    Williams & Campbell, contra:
    
    The former decision of the court is not conclusive either on the -.assignee or the wife and children of E. T. R. The-court only :■ decided that they were necessary parties, and explicitly reserved the question of the sufficiency of-the bill and its allegations as to them. The interest of Eli vested in the assignee; Rugely and Harrison had no lion which was protected by the bankrupt act. Their judgment .did not bind the lands devised to W. Robinson in trust for Eli. There was mothiqg to intercept the 'operation of the bankrupt act.
    The bill is fatally defective for the want -of those avermén'ts which are necessary to give the court jurisdiction. Before the complainants could sue for this property^ they should have proved their demand, and applied to the bankrupt court to compel the .assignee to sue for its recovery. They cannot depart from the court of exclusive jurisdiction, and without a compliance with any of its rulos and orders, and seek to collect their debt out of property which was never surrendered by the bankrupt, nor-claimed by the assignee. There must be a special ground laid in the bill, to the effect, that the District Court had been applied to, aad had refused to act, or that the assignee had been applied to, and had refused to act, or there must be a charge of' collusion or fraud. The assignee could have recovered the interest! of the bankrupt by a summary application to the bankrupt court,., or by a direct suit, and he would have held it for those creditors ■ who proved their demands. — Story’s Eq. PI. 516-726-495; L Young & C. 172; 11 Con. Eng. Ch. R. 306 8 Sim. 28; T Johns. Ch. 305; 8 Ala. 694; 3 How.. 292; Calvert on Part. 199.
    The bill is equally defective in the averments and proofs necessary to give the court control of the cause- It must be shown. that the defendant was sued t-o judgment, and'an execution issued to the county of his. residence, and returned “ no property found.” The averment of residence is made,, but it is denied by the answer, and' is not supported by proof. The execution was returned “ nulla bona,” which is a nullity. — Reid v. Wheaton,-. 7 Paige, 663.; 1 Dana, 516; 1 Clarke’s Ch. R. 265-315; 1 Ala. 104 ; 7 ib. 318; 14 ib. 753; 10 ib. 433; 1 Barb. &. H-"Dig. 339; 3 Mylne & Craig, 407-
    Even if the averments were sufficient, the decree would be erroneous. It should have been in favor of all the creditors. — 1 Hill’s Ch. R. 338; 4 Johns. Ck-619.
    The interest of Eli in the trust property was not such as could be subjected by his creditors to the payment of his debts. He had no legal estate, but only a “ use or benefit” such as could not be reached by his creditors. The trustee would have violated his duty, if he had allowed any other interest. The general proposition laid down by the court, in their opinion condemning, this interest, is too absolute. No consideration is allowed to the will of the testator, which is sacrificed to what is termed “public-policy.” Public policy requires that a man shall not have - an estate provided for his separate enjoyment,, and yet. not liable to his debts. The manifest intention of the testator was that .Eli should only have such an interest as could not be subjected by his creditors. They had no claim upon the testator’s bounty, and cannot complain of any disposition that he may choose to make of his property. The proper inquiry would have been, not whether Eli’s interest could be separated, but whether the trustee could possibly apply the property for the benefit of Eli and his family as directed by the will, and yet give Eli a separate interest. The whole object of the trust was for they oint use and benefit, and common enjoyment of the famity.
   CHILTON, J.

This case has been twice argued, and we-proceed, with all possible brevity and simplicity, to decide the-questions raised by the eross assignments of error. When tho cause was in this court at a previous term, (see 10 Ala. R. 702} it was held by our predecessors, that as to- the property bequeathed by the will of Tod Robinson to William Robinson, for the use and benefit of Eli T. Robinson and his family, and from the employment of which a revenue was to be derived, the interest of Eli was capable of separation by an account ascertaining his share in the nett product, and that such share when so ascertained, was liable to be subjected to the payment of his debts.

The case ivas remanded to- the Chancery Court for a defect of parties, and after its return to that court, the wife and children of Eli Robinson, as- also Edward F. Comegys,. the assignee in bankruptcy, were added as parties defendants, by an- amend - ment to the original bill.

1. The counsel for the defendants insist that the former decision of this court should not be considered as conclusive upon the rights of these new defendants who were not then before the court; and they strenuously contend that the court in that opinion mistook tho law. Are we at liberty to disregard the former decision, were wo disposed to do so, or is it obligatory upon us as settling the law of this case! Ordinarily courts very properly refuse to determine questions affecting the merits of a cause, in. the absence of any person who is a necessary party,, and whose interest may be prejudiced by such decision, for the obvious reason that the rights of no one should be judicially determined, without affording him an opportunity of protecting them. Without, however, now deciding what would be the correct rule when, the decision affects tho rights of parties wholly unrepresented upon the former trial, it is quite sufficient in this case to observe, that Comegys has not been injuriously affected by the previous decision, since, if he has any interest in this fund, that interest consists in having: it declared subject to Eli’s debts, and this is the gist of the opinion sought to be avoided. And as to the wife and children of Eli, they wmre represented, or rather their interest was protected by the trustee, at whose instance the question ©f the liability of Eli’s interest was raised,, and ably argued before and. pressed upon tho court,, as the report of the case will shown We see nothing in this- case which would, justify us- in departing from the well established .jjjile, that .when a caséis .brought the second .time-before this ¿court, we .will not question ..the correctness of.the law undqr which it was first decided.—Meredith v. Nash, 4 S. & P. 62; Gee v. Williamson, 1 Por. 321; Goodwin v. McGehee, 15 Ala. R. 239.

2. But it is argued that the Amendment mates a new case, and that consequently it should have been disallowed. We do .not think so. -The object of the original bill ,was to subject the equitable estáte of Eli in the hands of William, to the satisfaction of the.complainants’ judgment, which remained unsatisfied after exhausting their legal remedy. The defendants seek to avail themsebvés .of -Eli’s bankruptcy, as a defence to the bill. To meet this defence, it became indispensable for the complainants to put jn issue such facts, as would either avoid the discharge entirely, or show that it did not operate upon the property sought to be condemned, and this office the amendment to *the bill in the case before us appropriately performs^ — See the opinion in this case, 10 Ala. 702.

3. Having disposed of these preliminary points respecting the former decision/and the case authorized to be made by it, we proceed to tho’.consideration of the alleged error assigned by "Rugely and Harrisqn,; namely, that the chancellor .should have condemned three slaves, Andrew, Parmelia .and George, to the satisfaction of their judgment, and should hate decreed them tq be sold, and the proceeds appropriated accordingly.

•We have examined this voluminous record with much care tq arrive at a correct knowledge of the situation of this property, and we think it very clear, that ho trust was created by the verbal request made by Tod Robipson of William,, tq give to Eli .the ware-house and ten acres of ground at Lochranza. It was a request which William had an election to comply with, or not, at his pleasure, and the court of equity could not have compelled him to comply w-i,th it. William, however, refused to comply with his father’s request, but allowed Eli to rent the property, and to receive the rents for three or four years. It appears that theproperty was rented to one Tully, who executed his .note for the same payable to William, together with a mortgage on two of these slaves to secure the payment .of the same. The slaves were sold under the mortgage, and purchased in William’s name by one Conly, on the 6th day of March, 1843, ’¡Nilliarq Refusing to allow any thing to be done in relation to this matter except in his own.name. He then put them'in possession of Eli, and they were worked in the crop with the other' hands. Assuming that the receipt of the rent by Eli,'mentioned in the answers of defendants, was in these slaves, the question arises, be- '' ihg a gift inter vivos, when ‘did it become complete so as to vest the beneficial property in'the doneeT To answer this question,1 we have but t6 suppose that ".William,"after, fie had purchased these slaves, hacTrefused to deliver them to Eh? could the latter have maintained’any action for their recovery V It is very cer-' tainhé could not.'' It is essential to a gift inter vivos, that'there be a delivery to the donee,’and that the property in'the thing" given immediately pass to him, and that it be irrevocable by the donor. An exception to this rule obtains when the gift is by deed, duly consuminated.—Banks v. Marksberry, 5 Lit. R. 278; Duncan’s Adm’r v. Duncans, ibid, 12; Hunley v. Himley, 15 Ala. 104, and cases cited. In such case the execution 'and delivery of the deed passes the property and réndérs the gift irrevocable. — lb. This gift, being by' parol, was incomplete before; the delivery of the property; and where it is incomplete, equity will not interfere tó 'complete it, .but will leavej the1 parties where the law finds them! — 2 "Story’s Eq. ‘J'ings. "§'706,;a, and cases there cited. Conceding,.'then, ‘that the délivery of these slaves by William to Eli perfected the gift, "we are of opinion that anterior to that period William' reserved' a' control over the rent and the notes given therefor, inconsistent' with the idea of absolute property in Eli.' It follows, therefore, ’aá these slaves were delivered to Eli after he was declared a bankrupt by the decree, of the District Court, ‘they ate not subject to the complainants’ demand, unless they can set aside his discharge for fraud or wil- ’ ful concealment of his effects, 'which should have been-rendered in' his schedule which accompanied his petition,.'

4. Let us then address ourselves to this inquiry, 'as the next' in order.- Conceding that Eli’s interest‘in the property be-" queathed by the will of his father' to William, intrust for the benefit of himself and family,.was such as should have been sur- ’ rendered by him on his petition, "and that he failed to embrace it in his schedule, it doe's ndt ^necessarily follow that the effect of such failure is to vacate in toto the certificate of discharge. It já hardlyto.be expected in any case, that an applicant for the benefit of the Bankrupt Act should be able to set forth every article of property and every interest which he may have. Some he omit through mistake; others he may, consistently with the utmost good faith, conclude do not pass to the assignee under the decree in bankruptcy, and therefore need not be mentioned by him. The interest above alluded to, we think, is of such a character as to forbid the inference of fraud as a legal conclusion from the bankrupt’s omission to set it forth in his schedule of effects. Its liability to the administration in bankruptcy was a • question of much difficulty — one upon which learned jurists have differed, and upon which this court was divided, when called upon after solemn argument judicially to determine it. — 10 Ala. *102. That the bankrupt, unskilled as rre presume he is in intricate legal questions, should have supposed it not subject, and have acted upon such supposition, certainly is no evidence of the want of purity of intention, which should overthrow his discharge and stamp his conduct as fraudulent.

To set aside the discharge, there must be fraud or wilful concealment of his property or rights of property on the part of the bankrupt. This is neither averred in the bill nor shown anywhere in the record before us. True, the amendment to the bill charges that Eli’s failure to render it in his schedule amounted to a fraud in law which should vacate the discharge. But this is but the assertion of an erroneous legal proposition by the pleader, unauthorized by the fact upon which he predicates it.—See Lond v. Pierce, 12 Shep. 233; Robison v. Wadsworth, 8 Met. 70; Burnside v. Brigham, ib. 75. It results from this view, that the Chancellor did not err in refusing to condemn these slaves, and that they are not liable, having been acquired after the discharge in bankruptcy, to the complainants’ demand.

5. Let us next proceed to examine the errors assigned by the .defendants below. ■ Their main objection is, that immediately upon the .decree in bankruptcy, the interest which Eli had in this property, (if he had such interest as was subject to his •debts) passed to the assignee, and that the creditors, who have no lieñ~which can override the decree in bankruptcy, cannot resort ,to a court of equity without alleging in the bill that the as-sigriee.refuses to sue for the property, or that he colludes with 'the other defendants, or some of them, with respect to the interest sought to bo condemned.

It is readily conceded, as a general rule, that -after a person has become bankrupt and assignees are appointed, neither the bankrupt nor any of .the creditors can ordinarily maintain any suit •against a debtor to his estate, or to reduce any of his property into ..possession; for the right belongs to the assignees, and to give the •creditor an equitable right of action, he must aver in his bill some collusion between the assignee and the other party, or that ‘the assignee refuses -to bring suit for the benefit of the banlc-•rupt and of his estate. — Story’s Eq. PI. § 516. These certainly constitute the ordinary grounds upon which the aid of the court of equity is invoked; but it by no means follows that they •are the only facts which give jurisdiction. Cases may and do ;<arise, the .peculiar circumstances of wThich call fully as loudly for equitable interposition, in order to .prevent a failure of justice. We think the case before us is one of them, -asa brief .sketch of it from the record may suffice to show.

The complainants having obtaineda judgment at law in'March, 1886, and a return of u nulla bona” by the sheriff of the county •in which the judgment was rendered, on the 18th September, 1844, filed their bill, alleging that they had exhausted their Ie-..gal remedy, and that the defendant had property bequeathed in ■trust for his benefit, and praying that his interest might be subjected to the satisfaction of their demand. In reply to this demand, the judgment debtor denies that the interest sought to be condemned is subject, and insists also as a defence, that on the 9th September, 1842,'he filed his petition in bankruptcy and obtained his certificate of discharge -on the 25th of May, 1848. A .protracted, and doubtless very expensive litigation ensued. The chancellor dismissed the bill, but this court reversed his decree and remanded the cause. In this proceeding it is ascertained that the assignee in bankruptcy is a necessary party.. He was brought in by an amendment filed-SOth October, 1846 ter a delay of some nine -months, the assignee answers and denies the right of the State court to entertain ju: of the cause. He insists upon his right to the propert; the bill seeks to condemn, and says that he has never ab it, -but claims -it for the benefit of the creditors of the estate, appears from his answer that Eli T. Robinson was decl; bankrupt on the 1th day of December, 1842. It thus that near five years intervened after the decree in bankruptcy, and about three years after the-original? bill was exhibited, be- - fore any claim was set up by the assignee, whereas, the bankrupt statute required that “ all the proceedings in bankruptcy ' in each case, shall, if practicable, be finally adjusted, settled 1 and brought to a close by the court, within two years after the • decree declaring the bankruptcyand that “no suit at law or in equity shall in any case be maintainable by or against such as- - signee, .or by or against any person claiming an adverse inter- - est, touching.'the property or rights of property of the bank- - rupt, in any court whatsoever, .unless the same shall be brought • within two years after the declaration and decreet of bankrupts - cy, or after the cause of suit shall have first accrued.” ’ Notwithstanding this provision for the speedy settlement of bank - •- rupts’ estates, .and although this litigation was in progress, and ' the bankrupt had control and possession of this property from 1843, deriving his interest from the will of his father, proved5 and admitted upon the public records of the county in 1838, we say, notwithstanding all this, no claim is set up on the part of ? the assignee to Eli’s interest, nor any'effort made to investigate the character of his title. No proceedings whatever were insti • tuted-inthe bankrupt court, or elsewhere, by him, -to subject this interest to the administration in bankruptcy. And now, that more than six years have elapsed since the original bill was filed, while the record exhibits the assignee as contesting the complainant’s right to subject this property, it fails to showthat he has taken, .or intends to take, any steps to subject it himself. - lie says he claims this property, and ought to be-allowed to assert such claim for the benefit of the bankrupt’s -creditors; but he does not show that any creditors proved their demands in the bankrupt -court. He claims it, but not until after the complainants • have, by a-- protracted suit, ferreted it out and obtained the opinion of this court subjecting it. He connects his claim with no - proposal to become the receiver of it for distribution by tbe appointment of the court,, nor does he tender any amends for the expense which the complainants have incurred- in condemning it. - Under such circumstances we feel fully justified, and indeed required, -by our view- of tbe law, to regard his claim as clamor et' 2)i'ceterea>.nihil..

We will not say that - under all the circumstances attending; this interest, the.assigpee in bankruptcy was bound to make any.--' effort to subject tbe property, oFseparatethe interest of Eli. It ’ Mas been held,-and We think correctly, that although all the prop- ' erty and rights of property of the bankrhpt are, by the decree,' * vbsted in the assignee, still he is not bound in all cases to take ' pbssession of'every part.-^6 Law’Rep.-313. There may be' rights of property of such doubtful character, and hedged about With so much of difficulty and embarrassment, as to require-' ntore expense to arrive at!-them thaii they would profit the estate ' When obtained.- In such case the a'Ssigifee should be allowed to ' exercise a ‘ sound discretion at his peril,.-and if he acts in good • faith, and uses due caution, a. couift-'bf equity would always protect him.

In Copeland v. Stephens, (1 B. & A. 573,) cited in the above case, it was held that under the English bankrupt la:W, -the as-signeo was not bound with regard to leasehold estates to take the lease and charge the estate with the payment of the' rent, because the rent may be more than the vahje of the lease, and thus a' burthen rather than a benefit would he derived to 'the estate. So in regard to this case, it may be that the interest of the creditors has been promoted by the failure of the assignee to take any steps to recover the interest of Eli. Having this election whether to proceed or not for its recovery, -he should have exercised it -within a reasonable time; at least, we think, within two years from the time of the decree, within - which period, the act contemplates the whole business shall be" brought tó a close. Failing to proceed, -the creditor had the right to regard his claim as abandoned, and to proceed, after the assignee had neglected to do so for an unreasonable length of time, td'-subject the interest, disregarding the assignee’s claim. - To turn the complainants out of court, -in order to give the assignee further time to elect, after what has transpired, -would, in: our opinion, be highly inequitable, and is required by no rule of daw.

6. -The claim of-the assignee‘aside, it is quite\clear that the defendants cannot'avail themseltés of the*-- discharge of Eli, to protect him in the enjoyment of-‘property which he never surrendered to the assignee in bankruptcy.'- To hold that the as-signee should hold as against a creditor who never proved his demand in the bankrupt court, all the property which the bank-nipt failed to render - in his schedule, -either throiigh fraud or mistake, would -be to tender, a premium for'fraud or- negligence,' and would contravene-the obvious spirit and meaning of the?act. ■But as the record presents this case, neither this property-nor these complainants have had any connection with the administration of the bankrupt’s estate. The interest, as we have said, was never surrendered or claimed. The complainants did not prove their demand in -that court, nor are we advised that they were ever, in any way, notified of -the proceedings there had. Assuming, then, what we have endeavored to show-, that the-as-signee has no claim which he can interpose to defeat the complainants’ right to a condemnation of the interest of Eli, this interest remains subject to be decreed in satisfaction of their demand as though no decree in bankruptcy had been obtained.

7. Neither is there any objection to the State court entertaining jurisdiction. The bankrupt court in a proper-case, and on a timely application by the assignee, in the exercise of the equity powers which were considered as conferred by the-act, in order to render its provisions effectual, might perhaps have controlled the parties so as to have drawn the litigation into that court; but nothing of this kind was attempted oris proposed to be- attempted. So long as the parties are left free to.proceed in the State Court, that court will administer justice between them, irrespective of what might have been done in .the Federal Courts, applying however the rules of inter.petration- of .the bankrupt act which obtain in that court, when they are applicable.—Russell v. Cheatham, 8 Sm. & Mar. 703, and cases cited.

8. It is objected that the complainants have not exhausted their legal (remedy, the return upon the execution by -the sheriff being in .Latin,M mdla bona.”

■Without instituting any inquiry as to the sufficiency df this return, it is a sufficient answer to say .that the bill charges that an-.cxecution issued and was returned “no property ..found,” and the answers of the only parties who are interested in the con- < demnation of the property admit the return as charged, so .that no.issue is.made by the pleadings, and no question was raised either by .Eli or William Robinson, .involving an inquiry as .to whether the complainants had exhausted their legal remedy.

■We think it is quite sufficient that the .parties against whom the decree is rendered, and the ¡only parties .to be. affected by it, distinctly admit the due .issue and return of the fi.fa.

Q. The objection .that ithe execution was.not .sent to the county ■t>f tbe defendant’s residence, cannot prevail, because it is not shown that the defendant had property in that county on which the writ could have been levied. If the defendant desired to ■avail himself of sueh -objection, and to turn the complainants round to pursue their legal remedy in the county of his residence, he must show that he has visible property which can be taken .in satisfaction in that county.—Brown & Dimmock v. Bates, 10 Ala. 440; Cassidy v. Meacham, 8 Paige 311.

10. The objection that the other creditors -of Eli Robinson were not brought before the court, cannot be allowed. It does not appear that there are other judgment creditors, -and ¡as we have shown the fund sought to bo subjected is unaffected by the proceedings in bankruptcy, the rights of the complainants are the same as in ordinary cases of judgment creditors obtaining a prior right of satisfaction by the use of superior diligence in first ■obtaining their judgment, and after exhausting their legal reme<dy being the first to file their bill, by which they acquire a prior lien upon the equitable assets. We think they may well file the •bill for themselves alone.—Hendricks v. Robinson, 2 Johns. C. R. 283; Eaton v. Patterson, 2 Stew. & Por. 9; Lucas v. Atwood, ib. 378.

11. The first three exceptions to the master’s report were .properly overruled by the -chancellor. The -will of Tod Robinson does not provide eo .nomine, for the support of Eli and his family; but the property is bequeathed to William, in trust, &c., for the use and benefit of Eli and hisfamily. The interest ■of Eli being capable of being separated from that of the other ces-luis que trust, in the profits arising from the employment of the property, -as was previously decided, it was not proper to make .-any allowance for the support of the family, that not being the declared object of the trust. This point, however., is substantially decided by the previous decision.—10 Ala. 702.

■12. As to the claim made, for the first time before the master, for the allowance of overseer’s wages to Eli, for his services in superintending the business of the trust estate, we think the views of the chancellor entirely -correct. Such demand is no -where put in issue by the pleadings. Eli, in the account fur-mished by him in his answer, sets up no claim of the land, and it does not appear that there was any understanding or agreement between him and-the trustee, that he should have compensation for his services, 'other than such as acferued from the pCs-' session and control of the propér-ty. He voluntarily assumed tú a'ct, and cannot make, by such voluntary services performed, without request, the trust estate his debtor nolens volens.

13. As to the four negroes, Jake, Abel, 'George and William',' which were purchased'and to b'é |>aidfor out of the trust estate, ‘ vie are of opinion that-the record-shows no reason why their ser-' vices may not be taken'into the estimate, as the other trust pro- ’ pterty. They are to W-regarded.'as property subject to the in- ' cidents which pertain to’ the other trust estate, notwithstanding they may not have been paid for, the trust property being bound.' for their payment.' And if the lien which William Robinson has upon them for the purchase money forbids, by its provisions,' that the product of their labor should be regarded as a part of' the trust estate, this should have been shotfn by the production ' of the mortgage.

14. We think it sufficiently appears from the report of the ' register, that the slaves Parmelia and Andrew wére taken into" the account as trust property, and the products of their labor, ’ so far as Eli’s interest wits concerned, subjected tó the complain-' ants’ demand,’ and this constituted one of the exceptions taken by the defendants below, and is here assigned for error, We have already showh that tliese slaves niiist be regarded as the prop-' erty of Eli, 'acquired since his discharge.' That William re-táined the control over the rents, taking the evidence of Tully’s" indebtedness for it in his oivn name, as also the mortgage, to pre- ’ vent its liability to Eli’s debts, is not máterial. ■ He was not' bound to give it 'to Eli, arid he could well refuse tó' 'perfect the/' gift as long as he pleased, ivith the avowed object nf preventing-'" Eli’s creditors from interfering with it. And so long as it re - ‘ nidined imperfect'for want of delivery, the creditor!? could ac- ‘ quire no right to subject’it.' When the delivery wad made, the" property in the tbiüg given would vest, and hot before, 'although." there was the previously declared intention "té give.' So that we think the argument that this was a seciet par'ol trust, design-' ed to defraud .creditors, is' not sustained sby the record. Haíd.' the request made by the 'testator of his son William created k/ trust in favor of Eli, theri'the argument would ap’ply with much ’ force; but as William had h 'right to do1'as he pléased with his ’ bwn, provided he injured ho' crie, it is ndt'for the creditor to coiri'-'' .plain that he would not so complete the gift as fo render the property liable to the debts of the donee. It is;clear we think that he did not complete it.until after Eli’s discharge. Hence the .property is not subject to the complainants’ demand. It follows that the court erred in charging the product of the labor of these .two slaves as trust property for. división. -They should not have been taken into the estimate.

We believe that ,we have now noticed the several errors assigned, and we are unable .to .perceive any error in the record .except that last abqve referred to. For this, the decree must be reversed, and the cause reipanded, that the report of the master may be corrected as to the,slaves Andrew .and Parmelia. In all other particulars, the decree is correct and must be a®rmed? ,JLet Rugely & Harrison pay .the•cost of this.cpp.rt.  