Greenleaf v. The Dubuque & Sioux City R. R. Co. knew the dangerous condition of the spout. While it is a circumstance to be taken into consideration by you, it is not necessarily a decisive one. If the service to be performed by Macy was of a character to require that his exclusive attention should be fixed upon it, and that he should act with rapidity and promptness, it could hardly be expected that he should always bear in mind the exist ence of the defect, or be prepared, at all times, to avoid it. Taking all the facts into account, it is for you to determine whether Macy was guilty of such negligence as contributed directly to his death. If you find that he was not guilty of such negligence, and that the accident was caused by the neglect of the defendant, then your verdict should be for plaintiff." Substantially the same principle is involved in the second paragraph. These instructions are in accord with our views. They are in substance and effect, though not in language, the opposite of those asked by defendant, and which, we have held, were rightly refused. They present a wise and humane view of the law, and, if they were altogether without precedent, their justness and reasonableness would commend them to our favorable consideration. They are, however, not without support from adjudged cases. See Snow v. Housatonic R. R., 8 Allen, 441. IV. It is claimed by appellant that the seventh paragraph of the charge of the court is incomplete and that it misled the jury. It is as follows: "If you find from the evidence that defendant was guilty of negligence contributing to the accident, you will inquire whether the deceased was, also, guilty of negligence or a want of ordinary care under the circumstances. In considering the question of negligence, on the part of Macy, you will have regard to all the circumstances of the case, whether or not he knew the condition of the spout mentioned by the witnesses, and, if so, whether he could have avoided the spout by stooping, or change of position, and if he knew the condi Stuart v. Hines & Eames. tion of the spout, whether Macy was guilty of negligence 1. In that case the court refused, when specifically requested by the defendant, to instruct the jury, that to entitle the plaintiff to recover she must prove that her intestate was not guilty of negligence which contributed to the injury. No such specific request appears to have been made in this case. 2. In this case the court instructed the jury that to entitle the plaintiff to recover, the jury must be satisfied, by a preponderance of evidence, that Sidney S. Macy was, at the time of the accident, exercising ordinary care and prudence to save himself from injury. No such instruction was given in that case. An instruction the same in effect, and almost identical in language, with the one refused in that case, was given in this. The case, therefore, is no authority for the position assumed. We have thus examined all the errors insisted upon in appellant's argument, and find nothing in the record demanding a reversal of the cause. Affirmed. 33 60 82 708 33 60 113 614 STUART, Assignee, v. HINES & EAMES et al. 1. Bankruptcy proceedings: JURISDICTION OF STATE COURTS. After the filing of a petition in bankruptcy, which is followed by an adjudication of bankruptcy of the debtor, no valid lien can be acquired Stuart v. Hines & Eames. against the property of the bankrupt, by proceedings instituted in the State courts, subsequently to the filing of such petition. The authorities, bearing upon this question, collated by DAY, Ch. J. 2. Pleading: REPLICATION. Under our practice a replication is not necessary to an answer in which no affirmative relief is sought, but which pleads matters merely in defense of the plaintiff's claim. 3. Bankruptcy proceedings: FAILURE OF ASSIGNEE TO DEFEND IN STATE COURT. The assignee in bankruptcy is not estopped from asserting his claim to the property of the bankrupt, by the fact that he failed to appear and defend, in place of the bankrupt, in an action instituted in the State court subsequently to the filing of the petition in bankruptcy. No such duty is required of the assignee. 4. 5. 6. SERVICE OF ORDER. An order upon the debtor, in a bankruptcy proceeding, to show cause why the prayer of the petition should not be granted, may be personally served, as well as by publication, outside of the district in which the petition is filed. BY WHOM SERVED. It is not necessary that such order should be served by the United States marshal, or by a messenger appointed by the court for that purpose. JURISDICTION: PLEADING. In a proceeding, by a portion of the members of a firm, to have the firm and its members adjudged bankrupt, an averment in the petition that petitioners, for six months next preceding the application, have been residents of the district in which the petition is filed, and that they and the other members, within said time, were partners in trade in said district, will, in a collateral proceeding, be regarded as sufficient to confer jurisdiction. Appeal from Muscatine District Court. MONDAY, DECEMBER 18. On the 28th day of September, 1870, the plaintiff filed in the Muscatine district court his petition, claiming that, as the assignee of the estate and effects of Thomas M. Isett, a bankrupt, he is the absolute owner for the uses and purposes set forth in "An act to establish a uniform system of bankruptcy throughout the United States," of certain real estate in the petition particularly described, and that the defendants, George R. Hines and David W. Eames, and Jacob Butler, as their trustee, make some claim to said premises, adverse to the estate and title of the Stuart v. Hines & Eames. plaintiff. Plaintiff prays that his title and estate, in and to said premises, be established and quieted, and that the defendants be barred and estopped from claiming or asserting any right, title or interest therein. A like petition was filed in each of the other cases, claiming distinct parcels of real estate. The defendants, Hines & Eames and Jacob Butler, filed their answer, denying that plaintiff is the owner of the premises described, and averring that Jacob Butler, as trustee, is the owner thereof, in fee. For further answer they allege that all the proceedings in bankruptcy, against Isett, were without jurisdiction, and are void, and that the assignment to plaintiff is void. Each of the defendants in the other cases filed a like answer. Subsequently the defendants, Hines & Eames and Jacob Butler, filed a further answer, alleging: "That the said defendant, Jacob Butler, as trustee for defendants, Hines & Eames, purchased said premises at sheriff's sale, made under an execution issued from the office of the clerk of this court, upon a judgment regularly obtained at the June term of this court in the year 1869, as will more fully appear from an inspection of the records and papers of the case entitled Hines & Eames v. Isett, Kerr & Co., in which a writ of attachment was issued against the defendants, Thos. M. Isett, John Kerr and Watson B. Farr; and the said premises were, on the 13th day of February, 1869, attached as the property of defendants. That this court, before any other legal proceedings were had, obtained full and exclusive jurisdiction of the parties and the subjectmatter of the action. That neither of the said defendants, nor the said John M. Stuart, appeared or made defense in said action; and defendants aver that said defendants, Isett, Kerr & Co., and the said plaintiff in this action, are estopped from asserting any claim or title to said premises, so long as said judgment remains unreversed and is not canceled or set aside." Stuart v. Hines & Eames. The defendants in each of the other causes filed like answers, differing only as to the dates of levying the attachments, save that the defendants, Powers and Newman, aver that their suit is still pending in the circuit court of Muscatine county. The causes were tried by the court, and in each of them judgment was rendered for the plaintiff. The defendants appeal. Cloud & Broomhall for the appellants: I. That the State courts had jurisdiction, and that the proceedings in those courts were regular, is not disputed; nor will it be claimed that the judgments and subsequent proceedings in the State courts would not be final, in the absence of the proceedings in bankruptcy. The judgment and subsequent proceedings in the State courts would conclude all the parties in interest, and could not be questioned in any collateral proceedings, unless the bankruptcy proceedings render them absolutely void. The defendants have pleaded these judgments and proceedings in estoppel of plaintiff's claims. If they are not absolutely void, but only voidable, then they could not be disregarded, but must have been set aside before plaintiff could bring his suits. And here we claim that from the state of the pleadings, the validity of the judgments and proceedings in the State courts cannot be questioned. The plaintiff claims in his petition under the assignment in bankruptcy. Defendants deny the validity of his claims, and say that the court in bankruptcy acted without jurisdiction, and that said assignment is void. Defendants then file their claims of title under the proceedings in the State courts; they set out those proceedings, and allege that by virtue of said proceedings they are the owners of the premises in dispute, and that they have title in fee. Under the statute (Revision, § 2880, subdiv. 4 and 6, |