48 F. 816 | U.S. Circuit Court for the Southern District of Illnois | 1881
Moritz J. Dobschutz and Joseph Abend were partners in business, and became indebted to the plaintiff on their own note, as makers, for $4,500, upon which some payments were made, leaving about $3,000 due, and’ on two notes given by Jackson & Browson of $3,000 each, and indorsed by Dobschutz & Abend. The latter became bankrupts as partners and as individuals, a decree in bankruptcy was rendered against them,.and an assignee appointed; and the plaintiff claims the indebtedness on the two notes which the bankrupts had indorsed was provable against the separate estate of Dobschutz. The district court decided that it was a partnership debt, and was'provable, not against tlie separate,’but against the partnership (estate. From this de-
It will be seen that the agreement to convey the laud was not for the purpose of payment, and if conveyed it would not have operated as such, but only as security for the payment of the indebtedness, so that the effect of the failure of the bankrupts was simply that they did not give the security which they agreed to give. The result was that the plaintiff thus gave time to the bankrupts, and the character of the dcjbt remained unchanged. It was still a partnership debt due from the bankrupts to bim. It becomes, therefore, a question of importance in this ease, in view of the partnership and separate assets 'of the bankrupts and of the rights of their creditors, to determine whether it is equitable for the plaintiff, as against other individual creditors of Dob-sehutz, to prove his claim against him. We have to look at the case upon general principles of equity, and not as to the mere technical right of the plaintiff. It is true that this agreement between the parties was signed by Dobsehutz and Abend individually, and there might be a
Looking at this case in its general scope and bearing, as it appears by the facts set forth in the declaration, and considering the various equities of the individual creditors of Dobscliutz, and the character of the debt due to the plaintiff, I think that the decision of the district court was right;- and that the plaintiff ought not to be permitted to prove the claim set forth in the declaration against the individual estate of Dob-sehutz, and therefore that the demurrer to the declaration must be sustained.