Page:Federal Reporter, 1st Series, Volume 8.djvu/433

ADAMS V. HTiM8. 419 �bankruptcy. Malthri v. Hotchkiss, 38 Conn. 80; In re Beisenthal, le Blatchf. 146; Mayer v. Hellman, 91 0. S. 496. The title of Pamberger had corne to an end, and it was his duty, certainly, after he had ascertained that fact by a judicial decree, to transfer the assets to the assignee in bankruptcy, in whom the title had become vested. For his default in not paying to the plaintiffs the balance of the trust funds in his hands after deducting his fees and expanses, the eureties were responsible, provided the amount which was due had been found by the proper court. It seems to be clear that, as between the plaintiffs and Bamberger, the district court had jurisdic- tion. Whether under the statute the sureties had a right to insist that the accounting should have been had by a county judge, remains to be considered. �The question -whether the fifth section of the act of 1860 made an accounting before the county judge a prerequisite to an action against a surety, is one of difficulty. But this suit was commenced after the repeal of the act of 1860 by chapter 466 of the Session Laws of 1877. Section 9 of this chapter provides simply that — "Any action brought upon an assignee's bond may be prosecuted by a party in interest by leave of the court; and all moneys realized thereon sJiall be applied, by directions of the county judge, in satisfaction of the debts of tho assigner, in the same manner as the same ought to have been applied by such assignee." �Another section provides that all proceedings commenced under the statute of 1860 might be continued under this act. �Whatever construction may be given to the fifth section of the act of 1860, I do not think that an accounting before any specified court was made by the act of 1877 a prerequisite to an action against a surety. If the dicttim of Chief Justice Church is referred to, the meaning of the fifth section was covered ; and if the statute may be said to have been a part of the contract of the sureties, it was not an unalterable part of the contract that an accounting must be had by the county judge before the commencement of a suit upon the bond. The details ot the statute may certainly be changed without making the obligation of the surety void, provided no substantial right is impaired. By the supposed change no substantial right of the surety was changed or impaired. �The conclusion is that the plaintiffs, as assignees, are entitled to recover of the defendants the sura of $10,000, with oosts. ��� �