20 F. Cas. 1012 | W.D. Pa. | 1879
It was agreed- bv counsel at the trial that the jury should find the specification of the suspension of the payment of commercial paper as true, and that the defendant should be adjudged bankrupt thereon, subject to the question reserved by the court, whether the original petition filed in the case is valid; the petitioners, the Farmers’ Bank, being a partnership, and the defendant a member thereof at the time of filing the petition. At common law, no action could be sustained by a partnership firm against one of its members, and no legislation has authorized it, for the reason that the defendant would stand in the attitude of suing himself, being both plaintiff and defendant — a legal absurdity. And further, the triál would necessitate the settlement of account between the firm and the defendant, only properly done in account render, or by bill in equity. In bankruptcy there is no provision for a firm to put one of its number into bankruptcy, and probably for the same reasons. In an adjudication in involuntary bankruptcy, questions similar to those in actions at common law arise, and are decided upon the same principle. The first thing to be made out by the petitioning creditor before the jury is his claim against the defendant, and in the case of a firm pursuing one of its members, the defendant would become plaintiff and defendant, with the same consequence as in an action at law. In this case the original petition is signed exclusively by the partners constituting the firm, including the defendant, by John Markle, acting for the firm. It was filed March 13, 1878. At a subsequent period
The judgment of the court is in favor of the defendant, non obstante veredicto, and that the petition be dismissed for want of jurisdiction.
