i. sueetv on motion for judgmentby: bankruptcy o£ surety ; Rations”lim" — I. The appellants insist that Hamilton cannot recover because, at the time the judgment in question was satisfied by the sale of real estate, the real estate was vested in Kirkham as the assignee of ° Hamilton, and that whatever right accrued for ■ 5 ° judgment against Riggs and Shepherd, accrued, not to Hamilton, but to his assignee in bankruptcy. It must be conceded that the right to recover on account of this payment accrued primarily to the assignee, and not to Hamilton. The allegation made by Hamilton in the reply, that the assignee sold and assigned to him the claim for judgment against Riggs and - Shepherd, on account of the payment of the judgment against them, is not sustained by the evidence.

The evidence does show, however, that the assignee closed up the affairs of the estate, and made a final distribution of the assets, and that he made a report of this claim in his final report, but did not list it at the sale, and made no disposition of it, and did not consider it as any part of the resources, because he regarded it as worthless.

It appears, then, that the assignee knew of the existence of this claim, and neglected to enforce it, or make any disposition of it, because he considered it of no value. In this respect, the case differs from Buckingham v. Buckingham, 36 Ohio St., 68, in which the evidence failed to show that the assignee elected not to take the property in question. Nor *546is it necessary for us to determine whether the property in question is of such character that the assignee could elect not to take it, under the doctrine of Berry v. Gillis, 17 N. H., 9, and Glenny v. Langdon, 98 U. S., 20.

The fact ajipears that the assignee did omit to make any disposition of this property. If the creditors regarded the property as of any value to them, they might have applied to the bankruptcy court for an order to compel him to appropriate and dispose of the property. This was not done. The estate has been settled, and the assets have been distributed. The right of the assignee to maintain an action was barred by section 5057.of theUnited States Revised Statutes at the time this motion was made. Under the facts of the case, the right to maintain an action upon this claim, we think, has become revested in Hamilton. Although the evidence does not show a formal discharge of the assignee, it does show a settlement of the estate and a discharge of the bankrupt. See Dewey v. Mayer, 9 Hun., 473. It is clear from the evidence that the property of Hamilton has paid the debt of defendants; Riggs and Shepherd, and they have never reimbursed him or his estate. They are not now liable to an action by the assignee. If they can escape payment to Hamilton, they avoid the payment of a just demand. Their position is inequitable, and it ought not to be allowed to prevail, unless well established principles of law stand in the way of any recovery against them. We think, inasmuch as the claim has been abandoned by the assignee, and the debtor has obtained his discharge, that he may now enforce this claim. The case differs from Berry v. Gillis, 17 N. H., 9, in that it does not appear in that case that the estate of the bankrupt had been settled.

: • II. It is insisted that this action is barred under the proof section 5057 of the United States Revised Statutes. That section applies to actions by the.assignee. The section does not affect the rights of the bankrupt. Buckingham v. Buckingham, 36 Ohio St., 68.

*547s_____: damages. ° III. It is claimed that the value of the property of Hamilton, and not the amount realized upon it, is the measure of damages sustained by Hamilton. But Hamilton has paid the defendant’s debt, and he is entitled to recover the amount he paid thereon. The judgment is

Affirmed.