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of the property. Loveland on Bankruptcy (3d ed.), § 152; Hewit v. Berlin Machine Works, 194 U. S. 296; York Manufacturing Co. v. Cassell, 201 U. S. 344.
We will next consider the claim of Harris Filson.
Filson claims a lien on the fund as the owner of two certificates for ten shares each of preferred stock of the Atchison, Topeka and Santa Fé Railroad Company.
Filson identified the certificates by their numbers and produced Berry & Company's receipts therefor. The bankrupts, Berry & Company, had hypothecated them with the Hanover Bank, which sold them for $2,072.50, which the claimant seeks to recover.
The master finds that Filson had a speculative account with Berry & Company, and “was trading on both sides of the market.” On the morning of November 25, his account showed that he had bought on margin, 70 shares of stock, including 40 shares of Pennsylvania Railroad, and that he had sold "short” 50 shares of stock, including 20 shares of "Atchison preferred,” and 10 shares of "Erie, first preferred." The account also showed a cash credit of $3,105.97. The claimant testified that he called at the office of Berry & Company on November 25, to arrange to take out of the account the 40 shares of Pennsylvania, which he had previously bought on margin on November 17. He took with him one of the ten share certificates of Atchison, Topeka and Santa Fé, and asked the cashier to figure up the account and let him know if the deposit of the Atchison certificate would leave sufficient margin to withdraw the Pennsylvania stock. He was told that it was not sufficient, as the withdrawal of the Pennsylvania stock would leave a credit balance of only $300 or $400. Filson then went to his safe deposit box and took out two additional certificates for 10 shares of Atchison and 10 shares of Erie, and delivered them, together with other certificates, to Berry & Company on their usual receipt, which was, in form, the same as the receipt given to Mrs. Taggart, above quoted.
The next day Berry & Company failed, Filson never re
ceived his Pennsylvania stock, and on November 26 no certificate of Pennsylvania stock came into the hands of the receiver in bankruptcy, nor was deposited in any bank as collateral.
Upon the principles stated, we are clearly of the opinion that Filson had a valid claim for the value of his shares of Atchison stock in controversy.
As to two shares of New York, New Haven and Hartford stock, claimed by William C. Bowers, the facts require no additional discussion. These shares were pledged and the same receipt given as above described. The shares were pledged to the Hanover Bank and returned unsold to the trustees. As Bowers was not indebted on the account for which they were held as security, the shares belonged to him.
George E. Hall seeks to recover a certificate for ten shares of common stock of the United States Steel Corporation, returned to the trustees by the Hanover Bank, unsold. : On November 1, 1904, Hall deposited certain securities, including the steel stock, with the New Haven manager of Berry & Company, and took a receipt, specifying that they were held “as collateral.” Berry & Company hypothecated them with the Hanover Bank. Hall had a speculative account with Berry & Company at the time, and the securities were deposited in lieu of cash margin for the account. By a prior order in the bankruptcy proceeding the claimant has recovered from the trustees certain stocks found to be his property, but which had not been hypothecated with Berry & Company.
No lien or claim on the stock in question is asserted by the trustees, and Hall was not indebted to Berry & Company on November 25, 1904. Hall filed a claim in bankruptcy on December 19, 1904, for $1,850, which included the value of all his stocks in the hands of Berry & Company, valued at $1,600, and a cash balance of $250 due him. In the proof of his claim, Hall sets forth the following statement relative thereto:
"Said deponent hereby.stipulates that by filing notice of this claim he does ņot waive any right of action that he now
has to recover possession of said certificates or the value thereof against either of the bankrupts or any person in whose possession they may be found, or any right of action that he has against either or both of said bankrupts for the conversion of said certificates to their own use, when said bankrupts knew that said certificates were not their property, and never had been; and that the said deponent does not waive any right whatsoever of any kind, nature or description against said bankrupts, or either of them, for or on account of the failure of the bankrupts or either of them to return said certificates to said deponent, and for the unlawful hypothecation and conversion of the same by said bankrupts, or either of them.”
In this claim the essential question is as to the effect of Hall's proof of his claim in bankruptcy as a waiver of his right to recover the shares of stock covered by the receipt. We are of the opinion that, in view of the reservation just made, there was nothing in Hall's conduct amounting to an election to pursue his claim as a creditor in bankruptcy, which now prevents his recovery of the certificates of stock in question. It is true that he voted at the first meeting of the creditors on December 19, 1904, upon an informal ballot for trustee in bankruptcy, and at the formal election of trustees on December 21, 1904, Mr. Hall did not vote, though the referee finds that he participated actively at the meetings held for the election of trustee. We are of the opinion that the reservation of Hall evidenced his intention to hold on to whatever rights he had in his shares of stock, and there is nothing in his conduct which should preclude him, after he had discovered that the shares had been returned to the assignee in bankruptcy, from reclaiming them as his own property.
We find no error in the judgment of the Circuit Court of Appeals for the Second Circuit, and the same is
Argument for Appellant.
BEADLES v. SMYSER, MAYOR OF THE CITY OF
ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE
TERRITORY OF OKLAHOMA.
No. 150. Argued March 4, 1908.-Decided April 6, 1908.
While this court cannot review judgments of the Supreme Court of the
Territory of Oklahoma unless the amount involved exceeds $5,000, where the judgment also directly involves the validity of other judgments the amount in controversy may be measured by the aggregate of such judg
ments. The principles of right and justice upon which the doctrine of estoppel in
pais rests, are applicable to municipal corporations. Where public property of a municipality cannot be seized on execution
and the municipality enters into a valid agreement with judgment creditors to apply the judgment fund to judgments in order of entry and complies therewith, it cannot, after the expiration of the statutory period when a judgment becomes dormant for failure to issue execution, plead the statute of limitations as a bar to those judgments not yet reached for payment under the agreement. The municipality is estopped both on the contract and on the ground of equitable estoppel, and so held as
to judgments against a city in Oklahoma. 17 Oklahoma, 162, reversed.
The facts are stated in the opinion.
Mr. A. G. C. Bierer, with whom Mr. S. H. Harris and Mr. Frank Dale were on the briefs, for plaintiff in error and appellant:
The action being in mandamus to compel a city to recognize the validity of plaintiff's judgments and to pay out the moneys already accrued in the judgment fund upon these judgments, and to continue to make levies to enforce the same, the statutory period of limitation fixed by law for civil actions does not run against the relief asked. Duke, Mayor, et al. v. Turner et al., 204 U. S. 623.
Argument for Appellant.
The section of the Oklahoma statute permitting the enforcement of a judgment by execution and providing for the dormancy of such judgment if execution is not issued within five years, has no application to judgments against municipalities in this Territory which are collectible only by the levy of taxes which are required by the law to be made to create a judgment fund out of which to pay such judgments.
The cases of Hart v. City of New Orleans, 12 Fed. Rep. 292; State ex rel. Courter v. Buckles, 35 N. E. Rep. 846; Laredo v. Benavides, 25 S. W. Rep. 482, cited by Supreme Court of Oklahoma, reviewed and distinguished from the case at bar.
Oklahoma law provides for collecting judgments by tax instead of execution.
That it is and has been throughout the life of all these judgments the duty of the city of Perry to make a levy of five mills on the dollar to provide a fund with which to pay these judgments is clearly declared by our statute. Sec. 1, art. 5, p. 83, Statutes of 1897; Session Laws of 1899, $1, c. 8, p. 103; Wilson's Stat. of 1903, § 466.
The cases cited by the Oklahoma Supreme Court in the cases of Beadles v. Fry, 15 Oklahoma, 423, are inapplicable to the facts in the case at bar. Newton v. Arthur, 55 Pac. Rep. 446; Israel v. Nichols, 14 Pac. Rep. 438; Brockway v. Oswego Township, 4 Pac. Rep. 79; and Baker v. Hummer, 2 Pac. Rep. 808, discussed and distinguished.
Statutes of liinitation do not run against municipal obligations of the character of judgments in Oklahoma. Barnes v. Turner, 14 Oklahoma, 284; Freehill v. Porter, 4 Pac. Rep. 646; Lincoln Co. v. Luning, 133 U. S. 529.
The placing of the obligations in question into judgments which are to be paid out of the judgment fund of the city, does not in any way affect the principles applied in the Barnes or Duke v. Turner case. United States v. County of Macon, 99 U. S. 582; A., T. & S. F. Ry. Co. v. Territory of New Mexico, 72 Pac. Rep. 14; Darcy v. Mumpford, 58 Georgia, 119; United States ex rel. Field v. Township of Oswego, 28 Fed. Rep. 55.