Joseph McKenna

“ In the cited case it was held that the third proviso was directory only, and the conclusion has reason to sustain it. There can be no sacrifice of rights in it, neither of surety companies nor of creditors. Every creditor has the same rights and may institute the action provided for in the first proviso. If he does not choose to do so it is his own affair; and he may guard against surprise or deception. He knows the time limit of suit and of intervention. He knows that the suit must be brought in the district court of the United States in the distract where the contract was performed. ”

“ The Surety Company sees the difficulty and seizes it to press its contention that the year's time for bringing suit is not an authorization of such time, but a permission, and must be availed of so as to permit of the notice to creditors provided for; in other words, that the time in which to bring suit or file a claim, which is explicitly given, is cut down by the provision for notice ”

“ It is urged that it is a consequence of our construction that an action may be commenced on the last day of the year, and that all opportunity for intervention may be precluded; for, counsel say, 'intervention cannot be conducted in a day,' and it would seem as if the act intended 'to afford creditors an interval of three months within which to secure an intervention.' Even if this be the consequence, some of the provisions of the act, as we have intimated, must give way. We can only select those which we consider the fittest to prevail to accomplish the purposes of the statute ”