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was the firm's possession. There would be State v. Palmer, supra. Those two cases are much force to that contention if the checks therefore clearly distinguishable from the in question had been made payable to Boyd, case at ban and from the other cases cited De Vine & Eccles, or to their order, instead by the state. All the other cases cited inof the creditors of Rosenthal, or if the debt volve the embezzlement of public funds and or claim had in law and fact belonged to are based upon statutes which denounce that that firm. Under the undisputed facts, how- offense. It is quite true that in several of ever, the firm of Boyd, De Vine & Eccles was those cases it is directly held that if A. obnot the owner of the money as alleged in the tains a check or other evidence of debt, such information, and hence the court erred in re- as a warrant, a certificate of indebtedness, fusing to charge as requested.
or bill of exchange, from B. which is payable In view that we have reached the conclu- to the order of C. and is the latter's propsion that, as matter of law, the firm of Boyd, erty, and B, nevertheless, indorses the same De Vine & Eccles was not the owner of the and receives payment from the bank or has money in question, it becomes wholly imma- ! the proceeds transferred to his credit and terial what the real relation was between appropriates them to his own use, B. may be said firm and the defendant in so far as the | found guilty of having embezzled money. collections were concerned. We therefore ex- What is said in those cases is, however, said press no opinion upon the first proposition in connection with the facts there shown and urged by the defendant.
with regard to the statute upon which the  The defendant, however, insists upon charges were based. another assignment which, in view that we If, in the case at bar, the checks in quesare required to reverse the judgment and re
tion had been made payable to the firm of mand the case, is material. Defendant's Boyd, De Vine & Eccles, and the money repcounsel contends that, under the undisputed resented by them was that firm's money, facts. the defendant was not guilty of em. there would be more force to the state's arbezzlement of money, as charged in the infor- gument. It is, however, quite apparent that mation, but that if he was guilty of any of the charge in this case was for the embezzlefense it was for the embezzlement of the ment of money and was made because the checks introduced in evidence. Whether, un- state could not have proved that the checks der the undisputed facts in this case, the were the property of the firm of Boyd, De transaction disclosed by the evidence consti-Vine & Eccles. The mere production of the tuted the embezzlement of money or the em- checks would clearly have shown that they bezzlement of negotiable instruments or mere did not belong to that firm. The state thereevidences of debt the authorities, are some-fore charged that the defendant had emwhat in conflict. The defendant has cited bezzled the money, instead of the checks. Carr v. State, 104 Ala. 43, 16 South. 155; But even that charge, for the reasons stated, State v. Mispagel, 207 Mo. 557, 106 S. W. was not proved. It is true that the prosecut513, State v. Castleton, 255 Mo. 201, 164 S. | ing officers may sometimes be in doubt W. 492, and People v. Meseros, 16 Cal. App. whether, under a certain state of facts, a 277, 116 Pac. 679, in all of which it was particular transaction constitutes the emsquarely held that transactions like those in bezzlement of money or checks or other evithis case do not support a charge of the em- dences of indebtedness, or what facts ultibezzlement of money, but constitute the em- mately may be disclosed by the evidence. In bezzlement of checks or evidence of debt all such cases, however, the state can sufmerely. In all of the foregoing cases, judg- fer no injustice, since it may always charge ments of conviction were reversed for the the transaction in different counts and canreason that the proof did not support the not be required to elect upon which count it charge made in the language of the infor- will ask a conviction until the evidence is bemation in this case, namely, the embezzle-fore the court and jury, from which the nament of money. Upon the other hand, the ture or character of the transaction may be state cites Bartley v. State, 53 Neb. 310, 73 determined. There may also be circumstances N. W. 744; Territory v. Hale, 13 N. M. 181, under which the ultimate facts are in doubt 81 Pac. 583, 13 Ann. Cas. 551; State v. so that the whole question regarding the Palmer, 40 Kan. 474, 20 Pac. 270; State v. character of the transaction, under proper Krug, 12 Wash. 288, 41 Pac. 126; People v. instructions, may be submitted to the jury, McKinney, 10 Mich. 54; and People v. Leav- and they may find the facts, and, upon the ens, 12 Cal. App. 178, 106 Pac. 1103. The facts when found, base their verdict in aclast case, like People v. Meseros, supra, cordance with the instructions from the which is cited by the defendant, emanates court. Cases falling within the latter class, from the same court, namely, the California in the very nature of things, must be rare Court of Appeals. There is, however, no indeed. The state therefore may easily preconflict between the two cases, since in the vent a variance by stating the transaction in last case, the one cited by the state, the ques-different counts and electing upon which tion of obtaining money by false pretenses count it will stand in accordance with the was involved. The same is true with respect evidence produced. If that course had been been the property of the firm of Boyd, De, and again in People v. Heath, 51 Colo. 183, Vine & Eccles, the state could have elected 117 Pac. 139, decided in 1911, it was ruled to stand upon the charge of embezzling that where a party is tried, convicted, and checks instead of money.
sentenced for a criminal offense without The state has also cited section 54 of arraignment and plea, the verdict on motion Morse on Banks & Banking. The only thing must be set aside and a new trial granted. that is stated in that section is that the pres. On the authority of these cases, the ruling of entation of a check to the bank upon which the district court must be approved; and it it is drawn and the transfer of the proceeds is so ordered. As stated, in substance, in to the credit of the person presenting the People v. Heath, supra, the doctrine of the check constitues payment of the check. cases cited has been in force so long in this Surely no one will dispute that proposition. state that before a different one is announce Neither will any one seriously contend that ed by the courts a statute should confer the that proposition has any bearing upon the authority. transaction involved in this case.
Ruling approved.  The cases cited by the defendant, and to which we have referred, in which it is
in which it is! GARRIGUES, J. (dissenting). On three held that transactions like those in question
former occasions where the accused was tried constitute the embezzlement of cheries are and convicted without being arraigned, we all well considered, and it is deliberately held
held that the verdict was without effect, that under statutes like section 4380, supra.
and the judgment pronounced thereon void. a conviction of the embezzlement of money
Ray v. People, 6 Colo. 231; Wright v. People, cannot be sustained. For the reasons stated,
22 Colo. 143, 43 Pac. 1021; People v. Heath, we feel constrained to follow those cases.
51 Colo, 182, 117 Pac. 139. I would ordinariThe judgment is reversed, and the case is
ly vote to reaffirm the doctrine announced in remanded to the district court of Weber
those cases without further inquiry. But the county, with directions to grant a new trial.
numerous authorities called to our attention
appealed to me with such force that after STRAUP, C: J., and MCCARTY, J., concur.
an exhaustive investigation I have reached the conclusion that the former cases should
be overruled. The Ray Case is based upon (61 Colo. 566)
and follows an Illinois decision, The Wright PEOPLE v. LAWTON et al. (No. 8584.) Case follows the Ray Case. The Heath Case
(Supreme Court of Colorado. July 3, 1916.) follows both and construes a late statute, CBIMINAL LAW 261(1)-TRIAL-NECESSITY
S. L. 1907, p. 353, which it holds has no OF ARRAIGNMENT AND PLEA.
bearing upon the question. That act reads in Where a defendant is tried, convicted, and
part as follows: sentenced for a criminal offense without ar. raignment and plea, the verdict on motion must
"No indictment or information shall be deembe set aside and a new trial granted.
ed insufficient, nor shall the trial, judgment or
other proceedings thereon be reversed or af(Ed. Note.-For other cases, see Criminal
fected by any defect which does not tend to Law, Cent. Dig. $ 612; Dec. Dig. 261(1).]
prejudice the substantial rights of the defendGarrigues and Scott, JJ., dissenting.
ant on the merits.” En Banc. Error to District Court, Arapa An analysis of the section shows that it hoe County; H. S. Class, Judge.
relates to two distinct and separate matters, Prosecution for criminal conspiracy one referring to the indictment or informaagainst Charles Lawton and F. A. Dotson. tion, and the other relating to the trial, judgFrom an order setting aside a verdict of
ment, or other proceedings. The Heath Case guilty, the People of the State of Colorado
says the insufficiency and defects spoken of bring error. Affirmed.
relate to the indictment or information only, The defendants in error were indicted for
and not to errors committed by the court dur
ing the progress of the case. This is too criminal conspiracy. The case was tried,
narrow an interpretation of the statute. If and the jury returned a verdict of guilty,
the Legislature had intended the act to apupon which judgment was pronounced. A
ply only to the indictment or information, it motion to set aside the verdict was made and
could easily have said so. Why does the act sustained upon the ground, it does not ap
refer at all to the trial, judgment, and othpear from the record, that defendants were
er proceedings. If it was meant that it arraigned or required to plead, nor did they
should relate to the indictment or informaever enter any plea. The district attorney
tion only, it seems to me the section would brings the ruling here for review on error.
have read: No indictment or information Samuel W. Johnson, Dist. Atty., Charles shall be deemed insufficient, nor shall any E. Friend, and Luke J. Kavanaugh, all of judgment based thereon be reversed for any Denver, for the People.
defect appearing therein which does not af.
fect or tend to prejudice the substantial GABBERT, C. J. In Ray V. People, 6 rights of the defendant. It says the judge Colo. 231, decided in 1882, Wright v. People, ment shall not be reversed on account of 22 Colo. 143, 43 Pac. 1021, decided in 1896, I any defect on the trial which does not tend
@mFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
to prejudice the substantial rights of the de- , would be in any manner changed or affected. fendant on the merits. If the statute is con- In Garland v. State, 232 U. S. 642, 34 Sup. strued so as to give all of its parts a mean-Ct. 456, 58 L. Ed. 772, Mr. Justice Day, ing, I think it should be held, not only that speaking for the court, said, among other no case shall be reversed on account of de things: fects in the indictment or information which "It is apparent that the accused was tried do not tend to prejudice the substantial and convicted upon an information charging an
offense against the law; that he had a jury rights of the defendant on the merits; but
trial, with full opportunity to be heard, and also that no cause shall be reversed by rea that he was in fact deprived of no right or privson of any defect growing out of the trial ilege in the making of his defense, unless such which does not so operate. But disregarding
deprivation arises from the fact that he was not
arraigned and required to plead to the second the statute and coming to the exact question
information before trial.” presented: Can a defendant in a criminal
That case holds that the want of an arprosecution, who has been regularly indicted or informed against; who appears in court
raignment deprived the defendant of no subin person and by counsel and consents that
stantial right or in any wise changed the the case may be set down for trial at a fu
| course of the trial to his disadvantage, and ture day, at which time he appears; who in
follows and adopts the dissenting opinion of forms the court that he is ready for trial,
Mr. Justice Peckham in Crain v. U. S., 162 assists in the selection of a jury, cross-exam
U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, ines the people's witnesses, introduces evi
of which it overruled. In Illinois, whose decidence in his own behalf, presents instruc
sions we followed in the Ray Case, we find tions and argues the case to the jury; who
in Spicer v. People, 11 Ill. App. 298, the folhas had the advantage of every rule to which
lowing language: he is entitled in all respects as though a
"But if this were the only point in the case.
we should be inclined to hold, upon the fact formal arraignment had been had and a plea as shown by this record, that defendant anof not guilty entered-stand silently by with nounced himself ready for trial, he in effect a full knowledge of the omission of this for- entered a plea, and that the failure of the rec
ord to contain a formal statement on that point mality and then, when the issues have gone
would be a mere irregularity for which, no against him, claim as a matter of right and other reasons appearing, the judgment would be granted a new trial for this reason only? not be set aside.' I answer most emphatically, no, and am In my opinion while arraignment and plea sustained by the overwhelming weight of | are necessary and should not be omitted in modern authority. Garland v. State, 232 U. I criminal cases, still, where the defendant anS. 642, 34 Sup. Ct. 456, 58 L. Ed. 772, over- | nounces himself ready, voluntarily goes to ruling Crain v. U. S., 162 U, S. 625, 16 Sup. I trial and participates therein without obiec Ct. 952, 40 L. Ed. 1097; Hack v. State, 141 |
1087; Hack V. State, 141 |tion or calling the court's attention to the Wis. 346, 124 N. W. 492, 45 L. R. A. (N. S.) | fact that he has not been arraigned, that the 664, overruling three former decisions; Peo- | failure of the record to contain a formal . ple v. Weeks, 165 Mich. 362, 130 N. W. 697, | statement that he was arraigned, or if as a overruling Grigg v. People, 31 Mich. 471;
fact he was not arraigned, is a mere irregHayden v. State, 55 Ark. 342, 18 S. W. 239;
ularity for which the case should not be reBrewer v. State, 72 Ark, 151, 78 S. W. 773,
versed or the judgment set aside, in the aboverruling two former decisions; State v.
sence of a satisfactory showing that the subGarland, 65 Wash. 670, 118 Pac. 907; State stantial rights of the defendant were prejv. Forner, 75 Kan, 423, 89 Pac. 674, 12 Ann. I udiced thereby. Cas. 703, overruling former cases; Spicer v. Feeling as I do, that the adoption of the People, 11 Ill. App. 298; Wood v. State, 4
modern rule as above announced would viOkl. Cr. 440, 112 Pac. 11, 45 L. R. A. (N. S.) | olate no right of defendants in criminal 673; Hast v. Territory, 5 Okl. Cr. 167, 114
cases, and that it would often prevent an Pac. 261; State v. Klasner, 19 N. M. 484, 145 injustice to the people, I have no hesitancy, Pac. 679, overruling two former decisions;
much as I respect precedent, in expressing Allyn v. State, 21 Neb. 593, 33 N. W. 212; the view that our former decisions upon this State v. Greene, 66 Iowa, 12, 23 N. W. 154; subject should be overruled. State v. Corwin, 151 Iowa, 422, 131 N. W. 659; I am authorized to state that SCOTT, J., Bryans v. State, 34 Ga. 324; Hudson v. State, concurs in the views herein expressed. 117 Ga. 704, 45 S. E. 66; Molihan v. State, 30 Ind. 267; People v. Osterhout, 34 Hun,
(62 Colo. 51) 260; People v. Bradner, 107 N. Y. 1, 13 N.
CROUSE et al. v. WHEELER. E. 87; State v. Reddington, 7 S. D. 368, 64
(No. 8608.) N. W. 170; State v. Brock, 61 S. C. 141, 39 S. E. 359. The Supreme Court of the Unit-! (Supreme Court of Colorado. July 3, 1916.) ed States and many of the state courts have 1. DIVORCE 320—RIGHT TO MARRY. overruled their former decisions in this re- A marriage in the state of New Mexico by
la person divorced in Colorado, within a month gard, and we should not hesitate to do like- of the divorce was valid under the laws of New wise, as no rule relating to a property right | Mexico and lawful in the state of Colorado,
though it would have been unlawful if executed,
(61 Colo. 534) in such latter state.
PETERS et al. v. BOWERS. (No. 8363.) [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 818, 819, 844; Dec. Dig. Om (Supreme Court of Colorado. July 3, 1916.) 320.)
1. BANKRUPTCY 288(1)–CLAIM TO PROP2. DIVORCE 320 - MARRIAGE AFTER DI- ERTY-PLENARY Suit. VORCE-CONTEMPT.
One claiming title to and right of possession A marriage in New Mexico by a person di- l of land also claimed by trustee in bankruptcy vorced in Colorado, where such marriage would as part of the estate is entitled to a trial by be unlawful, does not render such person guilty independent suit, at law or in equity, as disof contempt of the court granting the divorce in tinguished from a summary proceeding in bankColorado, and subject to punishment on return / ruptcy. thereto.
[Ed. Note.--For other cases, see Bankruptcy, [Ed. Note. For other cases, see Divorce, Cent. Dig. $ 447; Dec. Dig. 288(1).) Cent Dig. 88 818, 819, 844; Dec. Dig. Om 3. BANKRUPTCY W 295-CLAIM TO PROPERTY 320; Marriage, Cent. Dig. & 29.)
-SUIT IN STATE COURT.
In the absence of federal statute to the Error to Elbert County Court; Frank S. I contrary, one has a right to have his claim Turner, Judge.
of title to and right of possession of land. also Contempt proceedings instituted by Roy C. claimed by trustees in bankruptcy as part of Wheeler against Bertha Wheeler Crouse and
bankrupt estate, tried in the state court.
(Ed. Note.-For other cases, see Bankruptcy, husband. Judgment finding defendants guil-cente. Die
Emil Cent. Dig. 88 414, 417; Dec. Dig. 295.) ty of contempt, and they bring error. Re
3. BANKRUPTCY Oma 295_CLAIM TO PROPERTY versed and remanded, with directions to dis
-SUIT IN STATE COURT. miss.
The provision of Bankruptcy Law (Act July
1, 1898, c. 541, $ 23, 30 Stat. 552), as amendHilliard, Lilyard & Finnicum, of Denver, ed in 1903 (Act Feb. 5, 1903, c. 487, § 8, 32 for plaintiffs in error. J. W. Mullahey, of Stat. 798 (U. S. Comp. St. 1913, § 9607]), alKiowa, for defendant in error.
lowing trustee in bankruptcy to bring suits for recovery of property, as distinguished from
summary proceedings. in the bankruptcy court. SCOTT, J. On the 8th day of October, as well as the state court, does not prevent a 1914, the defendant in error, Roy C. Wheel- third person bringing suit in the state court for
property claimed by him and the trustee; no er, in an action pending in the county court
suit therefor being brought by the trustee. of Elbert county, was granted a decree of Ed. Note. For other cases, see Bankruptcy. absolute divorce from his wife, Bertha Cent. Dig. 88 414, 417; Dec. Dig. 295.) Wheeler, one of the plaintiffs in error here. 4. BANKRUPTCY 295—CLAIM TO PROPERAfterward, and on the 28th day of October, TY-SUIT IN STATE COURT-POSSESSION BY 1914, the said Bertha Wheeler was married
That trustee in bankruptcy claims to be to Harry Crouse, one of the plaintiffs in er
s in er- in possession of land as an asset of bankrupt's ror, within the state of New Mexico. Upon estate does not prevent a third person bringing the application of Roy C. Wheeler, both of action therefor against the trustee in the state the plaintiffs in error were cited before the
[Ed. Note,-For other cases, see Bankruptcy, said county court for contempt of court, the
Cent. Dig. 88 414, 417; Dec. Dig. Omw295.) charge being their marriage as aforesaid-alleged as constituting the contempt charged.
Error to District Court, Crowley County; Upon the 15th day of February, 1915, and
J. E. Rizer, Judge. upon hearing the court found both plain
Action by E. N. Bowers against Margarettics in error guilty of contempt, and assess
ha Peters and others. Judgment for plained a fine against each in the sum of $25 and
tiff, and defendant 1. H. Stanley, trustee in costs, but suspended the fine in each case
bankruptcy, brings error. Affirmed. upon the payment of costs. This proceed. The action below was in ejectment under ing is to review such judgment.
the Code to recover possession of real prop It was admitted that the marriage inerty, and the subject-matter was 70 acres of New Mexico was lawful under the laws of agricultural college land in Crowley county that state, and it has been held by this court and a beet crop growing thereon during the that the marriage in such a case being law- season of 1913. ful in the state where it was performed is For a number of years prior to November lawful in Colorado. Griswold v. Griswold, 2, 1910, one Hans Peters leased the land 23 Colo. App. 365, 129 Pac. 560; Loth v. from the state and lived upon it with his Loth's Estate, 54 Colo. 200, 129 Pac. 827. I wife Margaretha and family. On the above
 It is not contempt of court to do that date he purchased the tract from the state which is expressly permitted as lawful act, for $2,463.65, which sum, to be entitled to a and not in the presence, nor disobedience, patent, he was to pay in 14 annual installof any order of court.
ments, the first to be made November 2, The judgment is reversed, and cause re-1911, and the last November 2, 1924, with inmanded, with directions to dismiss the con- terest on the unpaid balance at 7 per cent. tempt proceedings.
per annum, and there was issued to him
the usual certificate of purchase, being No. GABBERT, C. J., and GARRIGUES, J., 2141, stating that he would be entitled to a concur.
| patent upon making the payments. In Octo
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
ber, 1912, before the second payment was, ing March 24, 1913. April 7, 1913, Peters made in November, Peters assigned and de- ousted Arnold from the premises. livered the certificate to E. N. Bowers, de Stanley claims constructive possession of fendant in error, who surrendered it to the the premises from the time Peters filed his state land board for cancellation in order petition in bankruptcy, and also claims that to obtain a new certificate of purchase in he took actual possession April 30, 1913, by her own name, and May 7, 1913, the board walking over a portion of the land, looking canceled certificate No. 2141, and issued to it over, and causing it to be appraised as an her in lieu thereof certificate No. 2716. At asset of the bankrupt's estate. The apthis time the first two payments on certifi- praisers valued Peters' interest in the land cate No. 2141 had been made, and the Bow- at $630, and in the improvements at $430. ars certificate recites they were paid Novem- Stanley claims that at this time be orally ber 18, 1911, and November 19, 1912, and fur- leased the premises to Mrs. Peters for the ther recites that, whereas Bowers had paid season of 1913, with the understanding that the sum of $492.72, leaving a balance due the if the bankruptcy court sustained the homestate of $1,970.92, evidenced by the remain- stead entry, which he had recognized, she ing 12 annual installments, which are set was to own the land and crops, and the trusout in certificate No. 2716, she would be tee would have no claim or interest therein; entitled to a patent upon making the re- but if the bankruptcy court did not sustain maining 12 payments. This certificate of pur- her homestead claim, that she would then chase, owned by Bowers, is the only muni- be considered his tenant and pay him, as ment of title to the land, and under it she trustee, a certain share of the crops as rent. claims to own the title and right of posses
After they ousted Arnold, the Peters farmsion. After acquiring the Peters certificate,
|ed the land and raised a beet crop that seaBowers arranged with Peters to surrender
son. During the summer of 1913, Stanley as
trustee brought an action against Bowers in the possession of the premises to one Arnold,
the federal District Court, stating among who intended to farm the land the next year
other things, that the land had been set as Bowers' tenant, and Peters was going to a part by him as the homestead of the bankKansas as soon as he could pack his effects rupt; that because of the marginal entry and move away. January 27, 1913, Arnold, I made by the bankrupt's wife under the home. pursuant to this arrangement, moved with
stead provisions of the laws of Colorado, his family onto the land, took possession of there had
there had been set apart from the real propthe farm, and commenced the spring work,
erty a homestead claim of the value of $2,intending to farm it during the season of 000. That case, on motion of Bowers, was 1913 for Bowers. Peters still occupied the dismissed out of court October 9, 1913, withdwelling, but was preparing to move. Arnold
out prejudice, however, to the right of Stanbuilt half a mile of fence, hauled out 300 ley to again institute his suit under the same loads of manure, pruned the orchard, did
cause of action, as he shall be advised, in spring plowing, cleaned the ditches, and con
any court of competent jurisdiction. .Stanley tracted with the sugar company to raise a l also set up the Peters' claim to a homestead crop of beets. Bowers' title, right of pos
exemption before the referee in bankruptcy. session, and possession were unquestioned at
August 22, 1914, the finding of the referee this time, and it was amicably arranged that was against the Peters' homestead exemption Arnold and his family would occupy the claim, from which finding no petition for granary until Peters, who was residing in the review was filed. September 14, 1914, Standwelling, could vacate the premises. Accord
ley began a summary proceeding by filing being to this arrangement, Peters packed, pre-| fore the referee in bankruptcy a petition for paratory to leaving, and ordered a car in a motion to show cause why the land should which to ship his effects to Kansas. This not be sold as an asset of the bankrupt's was about the middle of February. There- estate, a copy of which was served upon after he told Arnold he was not going away, Bowers. This was tried before the referee and remained on the premises, still occupying November 17, 1914, who held that he was the residence, while Arnold and his family without jurisdiction to try Bowers' claim lived in the shack. February 19, 1913, the in a summary proceeding, Bowers being in affidavit of his brother Henry Peters was possession of the muniment of title from the filed for record, purporting to be based upon state and claiming the title and right of posthe homestead Act (Laws of 1911, page 452), session, which claim he held she was entitled stating that Hans Peters owned the land, and to have adjudicated in the ordinary way in a at the same time one I. H. Stanley, plain- plenary suit, and dismissed the petition. tiff in error, as trustee, assisted Mrs. Peters, Thereupon the trustee filed a petition for a as her attorney, in making a homestead mar review of the decision by the federal District ginal entry on the record of this affidavit. Court sitting in bankruptcy, which was heard The following day Hans Peters filed a volun- December 3, 1914, and an order entered there. tary petition in bankruptcy, February 24th, in holding the matter in abeyance pending the was adjudged a bankrupt, and Stanley was result of the writ of error in the case here. appointed his trustee in bankruptcy, qualify | September 29, 1913, Bowers, as plaintiff, fil