133 F. 912 | 2d Cir. | 1904
(after stating the facts). The bankrupts were adjudicated such on February 13, 1904, and a trustee appointed, who proceeded to sell all the assets of the copartnership and individual estates. The individual estate of H. S. Janes produced $15.50, the individual estate of Ezra S. Janes produced $6,-155.06, and the firm assets sold for $10. Whether the last-named sum was ever collected is not clear, but the referee finds that the firm assets are “none.” Both partners are insolvent. Creditors of the partnership and creditors of Ezra S. Janes proved their claims, and it has been held that all shall share alike in the estate of Ezra — a decision which the petitioner here, a creditor of Ezra, seeks to review.
It will be noted that such a marshaling of the assets is not as provided in the sections above quoted, but it is insisted that when there are no firm assets and no solvent partner an “exception” is created, to which the rule of the statute does not apply. It seems unnecessary to add anything to the extended discussion of this question already published in the Reports. Reference may be had to the careful and exhaustive historical review of the authorities which is contained in Judge Lowell’s opinion in Re Wilcox (D. C.) 94 Fed. 84, and to the later decisions which sustain the construction adopted by the district court in case at bar. In re Conrader (D. C.) 118 Fed. 676, affirmed 121 Fed. 801, 58 C. C. A. 249; In re Green (D. C.) 116 Fed. 118.
We are of the opinion that the rule to be applied is the rule laid down in the sections above quoted from the bankrupt act. It was within the discretion of Congress to leave this subject of the marshaling of assets to the courts, to be disposed of in accordance with equity principles and practice, or to provide that the general rule should be modified in particular cases. It has done neither. On the contrary, it has itself directed how the assets shall be marshaled, and it has done so in language broadly covering this case as well as all the others. The language is plain, explicit, and unambiguous; it names no “exception”; its phraseology conveys no intimation that any “exception” is contemplated. To inject into the act an excepting clause where none has been enacted would seem to be judicial legislation. For this reason, we have reached the conclusion above expressed.
The order under review is reversed, and the cause remanded, vrith instructions to marshal the assets in accordance with the directions of the bankrupt act.