140 Ga. 585 | Ga. | 1913
1. The defendant below, who became the plaintiff in error in the Supreme Court, contends that under the statute of limitations of this State (Civil Code, §§ 4362, 4368), more than four years having intervened between the date of the transfer of the goods and date of the commencement of the action by the trustee for the recovery of their value, the action was barred. The plain-, tiff below, who became the defendant in error, insisted that on account of the provision of section 11 (d:) of the bankrupt act of 1898, “Suits shall not be brought by or against a trustee'of a bankrupt estate subsequent to two years after the estate has been closed,” the trustee was not barred. In the brief of counsel for plaintiff in error it was stated that the question for decision is whether the suit instituted by the trustee is barred under the four-year limitation act of the State statute, or whether the trustee has two years after the closing of the estate in which to bring suit, regardless of the running of the State statute of limitations, and regardless of the length of time that may ensue before the estate is closed. This was conceded, in the brief of the plaintiff in error, to be the only question involved, and no other was discussed. Civil
2. It was declared in section 60 (5) of the bankruptcy act of 1898, “If a bankrupt shall have given a preference within four months before the filing of a petition, or after filing the petition or. before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.” 30 Stat. 562 (1 Fed. Stat. Ann. 674, U. S. Comp. Stat. 1901, p. 3445). This was amended in 1903 (32 Stat. part 1, p. 800, 10 Fed. Stat. Ann. 47, U. S. Comp. Stat. Supp. 1911, p. 1511) by adding thereto the following: “And for the purpose of' such recovery, any court of bankruptcy, as hereinbefore defined, and any State court which would have
Counsel for plaintiff in error concede that if the terms of the statute are to be construed as conflicting with the State law on the subject of limitations of actions, it will prevail over the State law. IRelative to conflicting laws of this character, see, Mitchell v. Clark, 110 U. S. 633 (4 Sup. Ct. 170, 312, 28 L. ed. 279); Arnson v. Murphy, 109 U. S. 238 (3 Sup. Ct. 184, 27 L. ed. 920); State v. Gatzweiler, 49 Mo. 17; Ogden v. Saunders, 12 Wheat. 213 (6 L. ed. 606). But counsel insist that under a proper construction there is no conflict, and that section 11 (d) of the bankrupt act does not affect the statute of limitations adopted by the State. The burden of argument of counsel is upon'the construction of this statute. Attention is called to the policy of the law to have the
Judgment affirmed.