In re Penn

19 F. Cas. 155, 5 Ben. 500

Opinion

BLATCHFORD, District Judge.

I do not deem it a discreet exercise of the power of the court in this case, to direct the assignee in bankruptcy to refrain from prosecuting, and to discontinue, the suit he has brought in the state court of . Pennsylvania. The grounds urged for doing so — that the allegations made in the bill of complaint in such suit are the same in substance as those stated in the specifications filed in this court, but not by such assignee, against the discharge of one of the bankrupts, which specifications were held by this court not to be proved, as matter of fact, and that the as-signee in bankruptcy is bound by such decision of this court [Case No. 10,929], and that such suit was not commenced within the period of two years after the appointment and qualification of such assignee — raise grave questions, which, in my judgment, it is not seemly to dispose of in such a summary way. It is more proper that they should be determined in the plenary suit brought, if raised therein, and by the tribunal in which the suit is brought, with the provisions for review which obtain in a suit between party and party. As to the merits of the suit, if they shall be reached, it may very well be that the assignee in bankruptcy may produce evidence in his favor which was not before this court, or that, on such evidence as was before this court, the de-fences of a former adjudication and or the statutory limitation being overruled, the state court may regard the assignee as entitled to the relief he seeks. I cannot regard the case as one where the assignee ought to be restrained, as clearly exceeding his power or using it unreasonably. The application is, therefore, refused.