107 F. 249 | U.S. Circuit Court for the District of Indiana | 1901
This is a suit brought by the plaintiff against the defendant upon three promissory notes alleged to have been executed by the firm of J. B. McElwaine & Co., which firm was composed of J. B. McElwaine and Montgomery M. McElwaine, now deceased. The complaint, in each paragraph, alleges that J. B. McElwaine died long prior to the bringing of this suit, but where, or whether testate or intestate, the plaintiff does not know, and alleges that there is no known administration upon his estate. The defendant, in the third paragraph of answer, alleges that on the 16th day of February, 1899, Montgomery M. McElwaine, of whose estate thé defendant is administrator, filed in the district court of the United States for the district of Indiana his voluntary petition in bankruptcy, and on the same day was adjudged by said court a bankrupt; that thereafter, on, to wit, the-of-, 1899, he filed in said court and said proceeding in bankruptcy his petition to be discharged, and such proceedings were had in said cause in bankruptcy that on the 31st day of May, 1899, he received from said court and the judge thereof a discharge from all his debts and claims which were provable against his estate, and which existed on the 16th day of February, 1899, and at the same time he received a certificate of discharge in bankruptcy in the ordinary form, a copy of which is filed with the answer. The defendant further alleges that the debts sued upon in this action were provable against the estate in bankruptcy of the decedent, Montgomery M. McElwaine, and that the same have been fully discharged by said bankruptcy proceeding. To this paragraph of answer the plaintiff has demurred, alleging that the same does not state facts sufficient to constitute a cause of defense.
In the determination of this demurrer the court must assume that every step in the bankruptcy proceeding prior to and at the time of the adjudication of discharge wras in ali respects regular and in compliance with every requirement of the bankrupt act. It must therefore assume that notice was given to the individual and partnership creditors of the bankrupt, and that an inventory of all the bankrupt’s individual property and of all his beneficial interest, if any, in the firm of J. B. McElwaine & Co., were fully scheduled. There is some disagreement in the authorities as to whether a discharge of an individual partner releases him from liability ujjon partnership debts. The great weight of authority is in favor of the
It is not necessary to determine whether, as intimated in a number of cases cited by counsel for the plaintiff, if objection had been made pending the bankruptcy proceeding on the ground that the other partner had not been made a party, the court would have ordered that to be done, and, upon a failure to comply with such order, would have dismissed 'the proceeding or refused a discharge. The demurrer to the answer is overruled, to which the plaintiff excepts.