the interposition of their own government. Compensation for those losses was demanded by the United States from Great Britain as a matter of right, and as such was awarded by the decision of the Tribunal of Arbitration created by the treaty be tween the two governments. The act of Congress for the adjudication and disposition of the moneys received from Great Britain, pursuant to that decision, provided for their application to the payment of claims directly resulting from the damage caused by those insurgent cruisers; and the sum awarded to this defendant by the commissioners appointed under that act of Congress was upon such a claim. It must therefore be treated as awarded and paid to him by reason of his interest in property so destroyed, and of his right to compensation for its destruction, and as capable of passing by an assignment from him, in any form recognized by law, though made after the destruction of the property and before the award of indemnity.

In the case at bar, as in those in the Supreme Court of the United States and in the English Court of Chancery, already quoted, the duties required of the commissioners, and the powers conferred upon them, are confined to ascertaining the validity and amount of the claims for damages incurred by the destruction of vessels and cargoes; and the investigation and determination of conflicting rights, under assignments or otherwise, in the sums awarded by the commissioners, are left to the ordinary course of judicial proceedings. The object of § 12 is to define and limit the claims which may be recovered against the United States under this act. Whether and how far its provisions may affect suits between underwriters and assured, to enforce rights arising out of the contracts between them, is not before us. It is quite clear that it does not affect interests of assignees claiming under an assignment, whether voluntary or by operation of law, as to which Congress has made no regulation.

The question then remains, whether the right to the money received by the defendant was included in the previous assignment of his estate in bankruptcy.

The decision upon this point in Comegys v. Vasse was based mainly upon §§ 5 and 6 of the bankrupt act of 1800, which provided that the commissioners in bankruptcy should take into their possession "all the estate, real and personal, of every nature

and description, to which the said bankrupt may be entitled, either in law or equity, in any manner whatsoever," and "all deeds and books of account, papers and writings, belonging to such bankrupt;" and should assign to the assignees in bankruptcy "all and singular the said bankrupt's estate and effects aforesaid, with all muniments and evidences thereof." 2 U. S. Sts. at Large, 23. Mr. Justice Story, in delivering judgment, said: "These words are certainly very general and comprehensive. All the estate, real and personal, of every nature and description, in law or equity,' are broad enough to cover every description of vested right and interest, attached to and growing out of property. Under such words, the whole property of a testator would pass to his devisee. Whatever the administrator would take, in case of intestacy, would seem capable of passing by such words. It will not admit of question, that the right devolved upon Vasse, by the abandonment, would, in case of his death, have passed to his personal representative, and, when the money was received, be distributable as assets. Why then should it not be assets in the hands of the assignees? Considering it in the light in which Lord Hardwicke viewed it, as an equitable trust in the money; it is still an interest, or, at all events, a possibility coupled with an interest." 1 Pet. 218, 219.

Although the learned judge also referred to the provisions of § 18, respecting the surrender by and the examination of the bankrupt with regard to effects and papers in which he was in any way interested or entitled, or had or might "have or expect any profit, possibility of profit, benefit or advantage whatsoever," as very material, yet his observation, "If there were any doubt upon the meaning of the language of the fifth section, we think it is cleared up and illustrated by that of the present," as well as his previous commentary on § 5, and the subsequent decisions in United States v. Hunter, 5 Mason, 62, and 5 Pet. 173, and in Milnor v. Metz, 16 Pet. 221, giving the like effect to assignments under state insolvent laws, clearly show that an assignment, in general terms, of all a debtor's property and estate, for the benefit of his creditors, must be considered as including the right in question.

The words of the recent bankrupt act are more full and parSicular in this respect than those of the act of 1800. It provides

that the judge or register shall assign and convey to the assignee in bankruptcy "all the estate, real or personal, of the bankrupt, with all his deeds, books and papers relating thereto," "and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee,” excepting only furniture and other necessary articles, not exceed ing in all $500 in value, wearing apparel, military uniform, arms and equipments, and property "exempted from attachment, or seizure, or levy on execution," by the laws of the United States, or of the state of the bankrupt's domicil. This last exception clearly has regard to such property as, if not specifically exempted, would be capable of being seized or taken on attachment or execution, and has no application to rights or interests which from their nature are incapable of being so seized or taken. The act then goes on to provide that "all rights in equity, choses in action, patents and patent-rights and copyrights; all debts due him or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person, arising from contract, or from the unlawful taking or detention of or injury to the property of the bankrupt, and all his rights of redeeming such property or estate; with the like right, title, power and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might or could have had if no assignment had been made; shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee." U. S. St. March 2, 1867, § 14. U. S. Rev. Sts. §§ 5044, 5045, 5046.

In the light of the decisions under former bankrupt and insolvent laws, we cannot doubt that these words were intended to include every kind of vested interest, legal or equitable, in, and all claims, whether founded in contract or in tort, relating to or growing out of property-which the debtor himself, if not adjudged a bankrupt, could in any way assign, or could prosecute in any form, either in the ordinary courts of justice, or otherwise.

The act of Congress of February 26, 1853, requiring assign ments of any claim upon the United States to be executed in the

presence of two witnesses, and after the allowance of the claim, the ascertainment of the amount due and the issue of a warrant for its payment, manifestly applies only to voluntary assignments in pais, and not to assignments by operation of law and in the course of judicial proceedings.

It is equally clear that the interest of the bankrupt in the property destroyed by the insurgent cruiser, and his claim against any individual or government for compensation for such destruction, were not included in the "choses in action, consisting of certain bills, notes and accounts, nominally of the value of about one thousand dollars, but in reality nearly worthless," which the assignee in bankruptcy has sold under an order of the District Court of the United States.

No reference was made at the argument, under the leave reserved in the bill of exceptions, to the publications of the De partment of State or the debates in Congress, relating to the Geneva Arbitration and Award.

The result is, that the money paid by the United States to the defendant may be recovered in this action as money had and received to the plaintiff's use. Law v. Thorndike, 20 Pick. 317. Exceptions overruled.

Lee v. Thorndike, 2 Met. 313.

EBENEZER JONES vs. JAMES W. DEXTER & others.

Bristol. Oct. 23, 1877. - Oct. 21, 1878. LORD & SOULE, JJ., absent.

A partner may maintain a bill in equity against his copartner and a third person, to recover his proportion of moneys paid to the defendants by the United States in accordance with a decision of the Court of Commissioners of Alabama Claims, under the U. S. St. of June 23, 1874, for property of the partnership destroyed by an insurgent cruiser, although, after the destruction of the property and before the making of the Treaty of Washington of 1871, the plaintiff was adjudged an insolvent debtor under the laws of this Commonwealth, and all his property was duly assigned to his assignee, if all the debts proved against the plaintiff's estate in insolvency, or existing at the time of the assignment, have been paid, satisfied and discharged, and the assignee has signified his assent in writing to the maintenance of the bill in the name of the debtor.

BILL IN EQUITY by one partner, Jones, against his copartner, Dexter, and two other persons, to settle the affairs of a partaership.

The bill alleged that the partnership, at the time of its dis solution in 1861, owned a share in the whaling barque Ocean Rover, then at sea, and in her outfits and catchings, and that in 1862, upon the voyage, the vessel and her cargo were destroyed by the insurgent cruiser Alabama, and this share was not insured, and that pursuant to a decision of the Court of Commis sioners of Alabama Claims, the sum of $1564 had been paid to Dexter in respect of his and the plaintiff's share in the vessel and outfits, and the sum of $55,068 to the other two defendants in respect of her total earnings and catchings, to be by them distributed among her owners, and praying for an injunction, an account and further relief.

To this bill Dexter filed a plea, stating that in 1864, under the insolvent laws of the Commonwealth then in force, the plaintiff, upon his own application, was adjudged an insolvent debtor, William S. Taber was appointed his assignee, and all the debtor's property was duly assigned and transferred to him, whereby Taber was and still is, to the exclusion of the plaintiff, entitled to any property or money which, in the settlement of the affairs of the partnership, might be found due or owing to the plaintiff.

The plaintiff then, with the assent of the defendants and by leave of court, amended his bill by alleging the adjudication of insolvency and the appointment of the assignee, and that the plaintiff in 1865 obtained a certificate of discharge, and that all debts proved against him in insolvency had been long since satissed, paid and discharged, and no liabilities, existing or inchoate against him at the time of his insolvency, had any validity or existence; that the assignee had long since terminated the duties of his trust and ceased to be interested in the property or affairs of the plaintiff, and was in no way entitled to the amount to be found due or owing to the plaintiff upon a settlement of the affairs of the partnership, and had never elected to take or accept the ownership of the claim set out in the bill; and that any claim or title to redress, relief or indemnity, for loss suffered by destruction of the vessel, was not in its nature such as would pass to an assignee in insolvency, and that such assignee had no rights under the decision of the Court of Commissioners of Alabama Claims. The amendment also alleged that Taber joined in the bill to confirm the statement with respect to the proceed.