In the matter of Charles Sumner, a Bankrupt. conveyance, as to render the transaction one consistent with an honest purpose towards his creditors. If he is to be believed, he was possessed of means to pay the obligations on which he was primarily liable, and have an ample surplus. But he had assumed liabilities for a large amount, as the surety of others; his property, which was mainly in real estate, bought upon speculation, was considerably encumbered, and the value of his interests was mainly represented by the general rise in the value of real estate since his purchases, which were all of recent date. His homestead, which he proposed to settle on his wife, and which he estimated as worth from $25,000 to $30,000, at the time of the conveyance, was mortgaged for $12,000, being within $2,000 of what it had cost him; and this circumstance affords a fair and significant exhibit of his financial status generally. The transfer of other real estate to his son, without any substantial consideration; the delay intervening between the time when he divested himself of title to the real estate and the transfer to his wife, and the delay in recording the conveyance; and the intimate business relations between Brewer, for whom he was surety, and who soon failed, and himself, all tend to throw some light on his intent in the transaction, which was, in my view, to provide for his wife and son against contingencies which he perhaps did not regard as serious, but which he foresaw as possible in the near future. A discharge is denied. For the bankrupt, M. W. Cooke. In the matter of People's Safe Deposit and Savings Institution. JUNE, 1878. IN THE MATTER OF THE PEOPLE'S SAFE DEPOSIT AND SAVINGS INSTITUTION OF THE STATE OF NEW YORK. FORMER SUIT.-ESTOPPEL. B. proved a claim against a bankrupt. Before the bankruptcy proceedings were commenced, the bankrupt had sued B. for a debt, and B. had set up said claim in defence, as a distinct cause of action against the bankrupt. The suit was tried after the adjudication of bankruptcy, and, on the trial, B. offered no evidence in support of such defence, and the bankrupt had judgment against B. The assignee in bankruptcy was not a party to the suit. He set up the judgment as an estoppel against the proving of the claim by B.: Held, That it was not an estoppel. WALLACE, J. Except as regards the seventh item of the claim of Buchanan, I agree with the register in his conclusions. As to the seventh item, the register holds that it should be allowed, were it not that, having set it up as a defence to the action brought by the bankrupt against him, and judgment having been recovered against him in that action, Buchanan is precluded from proving it now, upon the doctrine of res adjudicata. It is not disputed that Buchanan might have litigated the claim now presented in that action, but it is contended in his behalf that, as proceedings in bankruptcy were instituted, and the plaintiff adjudged a bankrupt prior to the trial of that action, the judgment does not estop the assignee, and, therefore, does not estop Buchanan; and it is also contended, that the recovery in that action is not a bar now, because In the matter of People's Safe Deposit and Savings Institution. Buchanan offered no evidence upon the trial in support of his defence, and, therefore, there was no adjudication upon the merits of his claim. It is settled, that the commencement of proceedings in bankruptcy does not, per se, stay the prosecution of pending suits begun against the bankrupt. (Eyster v. Gaff, 91 U. S. 521.) Proceedings upon such suits may be stayed upon the application of the bankrupt, but, if they are not, the suits proceed to judgment with the same effect as though there had been no proceedings in bankruptcy. If the cause of action involved is of the character of a provable debt, the assignee in bankruptcy, if he desires to contest it, may do so at the charge of his estate. When the suit has been brought by the bankrupt, the assignee may move to be substituted in the action, and, if he does not elect to exercise this privilege, if the case proceeds, he cannot be heard to complain of the result. So, in the present case, if the judgment had been rendered in favor of Buchanan against the bankrupt, that judgment would have been conclusive as against the assignee in bankruptcy, as an adjudication of the validity and amount of Buchanan's claim, and, as it would have been conclusive as against the assignee, it is equally conclusive in his favor, against Buchanan, as to all questions therein determined in favor of the bankrupt. It remains, then, to inquire if the effect of the judgment is qualified or rendered nugatory because no evidence was in fact offered by Buchanan relative to the issues set up by him by way of defence. The record, upon its face, purports to be a decision in favor of the plaintiff upon an issue between the parties, wherein the plaintiff alleges that the defendant is indebted to him, and defendant alleges that plaintiff is indebted to him--a result which apparently involves the conclusion that the claim of the defendant was unfounded; so In the matter of People's Safe Deposit and Savings Institution. that the claim of Buchanan seems to have been decided adversely to him, upon the face of the record. It does not. follow, however, that he is precluded from showing that his claim was not actually the subject of judicial inquiry and determination. The general rule is, that the judgment or decree of a court of competent jurisdiction is final as to matters thereby determined, and as to such other matters as the parties might have litigated under the issues, and which might have been determined. This is the rule, however, which prevails in cases where the former judgment is invoked ás an absolute bar to a second action upon the same cause of action, and does not apply to the present case, where the judgment is not set up as a technical bar, but is sought to be enforced as an adjudication adverse to the claimant upon an issue which might have been litigated in the former action. In its application to such a case, the rule is well stated by Mr. Justice Field (Cromwell v. County of Sac, 94 U. S. 352): "In all cases where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the former action, not what might have been thus litigated and determined." While it is true that the claim of Buchanan might have been litigated in the former action, and while the presumption that it was actually litigated arises from the record, yet this is only a presumption, and it may be controverted and overthrown by proof dehors the record. A great variety of cases illustrate the extent to which the presumption arising from the record may be repelled; as, where the trial went off on a technical defect, or because the debt was not due, or because the plaintiff was under a temporary disability. Thus, it is competent to show that a nolle prosequi was entered as In the matter of People's Safe Deposit and Savings Institution. to a claim embraced in the pleadings, or that a part of the controversy was specifically withdrawn from the consideration of the Court (Brockway v. Kinney, 2 Johns. 210; Snider v. Croy, 2 Johns. 227; Louw v. Davis, 13 Johns. 226; Foster v. Milliner, 50 Barb. 395), in which case the judgment in the former suit is not, as to the claim withdrawn, a bar. It is not necessary to show that the cause of action was affirmatively withdrawn from the consideration of the Court. It is only necessary that it appear that the real merits of the second action have not been decided in the first; and this follows, if it is shown that the second suit has not in fact been litigated in the first. (Sedden v. Intap, 6 Term R. 607.) If the cause of action has been litigated, however slightly or ineffectually, it cannot be said that it might not have been determined. The case of Sedden v. Intap was one where the plaintiff in a former action declared on a promissory note and for goods sold, but, upon executing a writ of inquiry, after judgment by default, gave no evidence on the count for goods sold, and it was held that the judgment was not a bar to his recovering for the goods in another action. This case has been recognized and approved by many authorities, and is directly in point here, where, as in Sedden v. Intap, the proof is that no evidence was given concerning the issue now pending between the parties. Another case directly in point is Burnwell v. Knight. (51 Burb. 267.) The effect of the judgment, as to the defence interposed by Buchanan, is analogous to that of a judgment by default upon failure of the party to appear. He was in Court, but was silent. If the plaintiff could not have recovered without disproving expressly or by necessary implication, the existence of the facts set up by way of defence, the judgment would be an estoppel, because the estoppel is not confined to the judgment, but extends to all facts involved in it as neces |