8 Barb. 519 | N.Y. Sup. Ct. | 1850
At the time that Pomeroy filed his petition in bankruptcy, the defendants had no set-off to the claim of the partnership firm of Preston & Pomeroy. This claim formed a part of the assets which were set out by Pomeroy in the schedule annexed to his petition, and which were to be applied pro rata for the payment of creditors. After this petition had been filed, and with a full knowledge of the insolvency of Preston & Pomeroy, the defendants purchased a note of the firm, which they now propose to offset against their indebtedness.
But in this case the circumstances are very different. The defendants here had no claim against Preston <fc Pomeroy at the time of the filing of the petition by Pomeroy, and they adopted no coercive measures afterwards. Instead of having a claim, they owed a debt, to which' there was no offset—a debt in which all the creditors of Preston & Pomeroy had acquired an interest immediately upon the commencement of proceedings in bankruptcy—a debt which the parties proceeding in bankruptcy had no right to release; and the defendants now propose to deprive the creditors of the benefit of this debt, by
It is said, however, that in this case the note which the defendants claim to offset, was purchased before Preston filed his
We think that the referee was correct in his conclusion that the defendants had no greater rights than their assignor, that is, a right to a ratable proportion of the assets of the bankrupt, on proof of their debt in the manner prescribed by the statute.
The motion to set aside the report of the referee must be denied with costs.