848
FEDERAL REPORTER.
decision in favor of the bankrupt. The petition sets forth, as grounds for avoiding the discharge, some of the same specifications only. It also alleges facts which, if true, tend to show that certain acts of the bankrupt since he obtained the discharge would, if the trial of the specifications were now had, be competent evidence in proof of the specifications. The petition does not allege that the petitioners had no knowledge of the acts alleged in the specifications as grounds for avoiding the discharge before the same was granted. The bankrupt has appeared and objects that the petition states no case against him, under section 5120, which he should be required to answer. I think it is clear that section 5120 does not authorize a rehearing or new trial upon specifications heard and determined before the discharge, even if the opposing creditor can adduce new facts, even the conduct of the bankrupt happening since the discharge, which would be competent evidence in case of a new trial, or a discovery since the discharge of new evidence, tending to support the specifications. The evident purpose of section 5120 was to give creditors who had failed to oppose the discharge, for the reason that they had no knowledge before the discharge that the grounds now alleged for opposing it existed, an opportunity within two years to make the necessary charges and to prove them. The privilege given is not so broad as the right to a new trial on newly discovered evidence, and I think it cannot be claimed that a creditor, who, before the discharge, filed specifications setting forth, by way of charge against the bankrupt, fraudulent acts, had no knowledge of those acts. He necessarily had such knowledge of them that he was able to allege them; and it mU8t be assumed as again..,t him that he alleged them in good faith, and upon such information as jus:ified him in .doing so. This section does not provide that the .creditor must have had no knowledge of all the evidence which may be produced to support the charges, but no knowl. edge of the fraudulent acts charged. It is based on the theory that if the creditor knows of the fraudulent acts, then, with the power given by the a.et to examine the bankrupt
ABENDROTH V. DURANT.
84:0
himself, and to produce other testimony, he hasll sufficient opportunity to prove them so &s to defeat a discharge. But, if he has no knowledge whatever of the acts, his failure to file specifications is excused, and he will be heard to make the charge afterwards within two years. This seems to me to be the reasonable construction of the section. Any construction, in effect, conferring a right to a new trial as between the same parties, upon the same case before tried, upon newly discovered evidence, would take from the discharge, as it seems to me, that finality which, except as to creditors really having no knowledge whatever of the existence of valid grounds for opposing the discharge, it was intended to have. Petition dismissed.
ABENDROTH
v.
DURANT.
(District Oourt, 8. D. New Yllrk. April 14, 1880.) BANKRUPTCy-REB
ADJUDICATA-EsTOPPEL.-An assignee in bankruptcy is not estopped by the record of a personal judgment.
Wm. H. Arnoux, for plaintiff. C. Norwood, for defendant. CHOATE, J. This is a suit brought by the assignee in bankruptcy of John Griffith and George W. Wundrum, who were adjudicated bankrupts as partners composing the firm of Griffith & Wundrum, against the defendant, to recover the Bum of $955.15, alleged be due for work, labor and material furnished by the firm to the defendant before the bank· ruptcy. The only defence attempted is that the firm of Griffith & Wundrum consisted of John Griffith, George W. Wundrum and William P. Abendroth, and not of John Griffith and George W. Wundrum alone, and that, therefore, the adjudication of these two bankrupts as composing the firm, and the appointment of the plaintiff as their assignee in hankruptcy, are wholly void, on the ground that the statute only authorizes, in case of cop'1.rtnerships, the adjudication of Vl,no.10-54
850
all the copartners; and to sustain this defence there has been produced in evidence the record of a suit in a state court, commenced by the present defendant, Durant, as plaintiff, against Griffith, Wundrum and Abendl'Oth, since the adjudication and appointment of the assignee in this matter, which record, it is claimed, estops the plaintiff in this action to deny that he, together with Griffith and Wundrum, constituted the firm. The suit was on promissory notes of the firm of Griffith &; Wundrum. The complaint alleged that Abendroth, Griffith & Wundrum constituted the firm. Abendroth alone appeared and defended the action. In his answer he denied that he was a general partner in the firm of Griffith & Wundrum, and alleged that said firm was a limited partnership, under the laws of New York, and that he was the special partner. It does not appear by the record that the defendants Griffith & Wundrum were served with process, but it is recited that they made default. The issue raised by the answer was tried and determined in favor of the plaintiff in that suit. The finding of the court was that Abendroth was a general part. ner, and the plaintiff had judgment, which was affirmed by the court of appeals. It is contended on the part of the defendant that this adjudication in the state court, being on the precise question as to whether Abendroth was a general partner, I1nd being later in time than the adjudication of the bankruptcy court that the firm was composed of Griffith & Wundrum alone, is conclusive against Abendroth, so that he cannot dispute or question the fact so found against hini. But it is a complete answer to this alleged estoppel that the present suit is not brought by Abendroth individually, but by him in his representative capacity, as assignee in bankruptcy. A judgment estops only the parties to the suit, nominal or real, and their privies; and the plaintiff in this suit is not the same person or party who was defendant in the suit in the state court. Abendroth sues here as representing the estate of the bankrupts. He is suing merely as trustee, or as an officer of the court, and his rights, as such trustee or officer, are the rights
