160 Mass. 171 | Mass. | 1893
The question in this case is whether the holder of a partnership note made payable to one partner and indorsed by him to the holder can prove it in insolvency against the estates both of the firm and of the indorsing partner before any dividend is declared on either. The statute is silent. Intimations in favor of the right of double proof are to be found in Borden v. Cuyler, 10 Cush. 476, 477, and in Mead v. National Bank of Fayetteville, 6 Blatchf. C. C. 180, and in the decisions in In re Farnum, 6 Law Rep. 21 (by Judge Sprague), and Ex parte Nason, 70 Maine, 363. The United States Bankrupt Act of March 2, 1867, § 21, U. S. Rev. Sts. § 5074, is construed to allow the right in terms. Emery v. Canal National Bank, 3 Cliff. 507, collecting the cases, and repeating some of the general arguments at length. Formerly an arbitrary rule was worked out by degrees in England that the creditor must elect. Ex parte Rowlandson, 3 P. Wms. 405. Ex parte Moult, Mont. 321; Mont. & Bligh, 28; 1 Deac. & Ch. 44; 2 Deac. & Ch. 419. Goldsmid v. Cazenove, 7 H. L. Cas. 785, 805. But this rule, after being disapproved by the most eminent judges, (Ex parte Bevan, 9 Ves. 223, 225 ; 10 Ves. 107, 109; Story, Part. (7th ed.) §§ 384-386; Eden, Bankruptcy, (2d ed.) 181,) has been done away with by statute in cases like the present. Ex parte Honey, L. R. 7 Ch. 178. In view of the modern decisions and the general agreement of opinion, we think it unnecessary to argue elaborately for the right of a creditor who has required two contracts binding two distinct estates to insist upon both.