The case stated does show that Tinstman was made one of the 'use plaintiffs' in Shaw's action, October 2, 1885, but there is no explanation of how that entry came to be made, and nothing to indicate notice thereof to the assignee, or to charge him with notice, assuming that he was ignorant of the claim.
On the other hand, the bankruptcy proceeding was involuntary, and it appears that the schedule of assets (the term 'schedule' being used in the case stated as the equivalent of 'inventory') was made by the assignee, the law providing that the order of adjudication should require the bankrupt to deliver a schedule of creditors and an inventory and valuation [161 U.S. 513, 518] of his estate; and, if the bankrupt were absent or could not be found, such schedule and inventory should 'be prepared by the messenger and the assignee from the best information they can obtain.' Rev. St. 5030, 5031. And this inventory, thus prepared by the assignee, the record affirmatively shows, did not embrace the bankrupt's interest in the telegraph line, as we must presume it would if the assignee had had, or been able to obtain, information in respect thereof. Nor can we find elsewhere in the record any evidence that the assignee knew or was informed of Tinstman's interest prior to August 10, 1888. Counsel for the assignee argues that the fact is that Tinstman's interest was the ownership of certain shares of stock in the telegraph company, which were included in the inventory, and delivered to the assignee, but the exact contrary appears from the case stated. Nor does the fact appear, which he likewise insists upon, that the assignee not only did not abandon, but actively asserted, his claim.
The question whether the assignee in bankruptcy was entitled to this claim was clearly a federal question. Williams v. Heard, 140 U.S. 529 , 11 Sup. Ct. 885. And if all the facts stated in the record before us do not, as matter of law, warrant the conclusion at which the highest court of the state arrived upon this question, it is the duty of this court so to declare, and to render judgment accordingly.
We must take the record as we find it, and are constrained to the conclusion that the assignee should not have been held to have exercised the right of choice between prosecuting the claim and abandoning it, in the absence of any evidence whatever to justify the conclusion that he hand knowledge, or sufficient means of knowledge, of its existence prior to August 10, 1888; and that, therefore, there was error in the judgment.
Judgment reversed, and the casue remanded, that the judgment of the court of common pleas may be reversed, and further proceedings had not inconsistent with this opinion.