95 FEDEnAL
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. ·re MEHCUR (tw<;> eases). (District Court, E. D, PennsW'lvania. July 24, 1899.) !i
Nos. 90, 91.,
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1.
A creditor of a partnership is also' a creditor of each member of the firm; and is entitled,as such, to jeinin/a petitiOn in involuntary batikl'UPtCY, brought against one of the partners Individually. ' :.... .
CUEDITORS--CllEDIT()R OF PARTNERSHIP.
2.8AME7"PETI'J.'JON-AMIHWMENT.
.: ' ;WJ:!er,e, at the hearing on a petition in invoiuntary .bankruptcy, it is 'proved that the 'debtor;, within the statutory tiTne, has made an assignment :for the benefit of c1'lidltors, this act of bankruptcy, although' not originally alleged in the petition' as ground for an adjudicntion,may be added to the Petitipn bY amendment.
In . petitions in . bankruptcy were' filed agaihst Ulysses 1tfercur and James Watts Mercur, as individuals, and to thefact'that they were partners' under the Mm name of J, W. Mercur & Co.. Petitions having been filed by certain' creditors tmrtn,er:ship asking' for leave to joill lri):Jie petitions against the 11)dividu1l1 parth¢rs, the cases came for"heluiing on these applicatiqns arid on We quesrion .of adjudicationill bankruptcy." .' ',', ".' . ,' Todd, A-lbfJrt E., ,II. Hall, for petitioning, creQitors. , Jol:u;J.G,'Jqhnson, fOIl, the bankrl,lpts. Judge, .I!etitioll the :d, les!, tpan deAie<:l cases only.one. of the ill! number. '.. mmanswer in each case t1; fit
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a listcolltl\iuillg the nllmes lwd addl'esses W:lllore tha;n such persons. S,hortly ,afterwards; the ,Yulcanite QOplplj.ny !lAd the, F. H. li'airlamb Company filed separate pe. 1;h0Y Were ,creqitorsof the:firm of J.W. Mercur & Co.; cOnsililtingofJa3)1esWattsMercur and Ulysses Mercur, and asking to be permitted join in "fh original ·petitions.This :, request is resistedpy the';bal}krupts on the ground that the applicants are partnership creditors,. and, therefOJ:e cannot' be counted among the individual creditors offlaQh .partner. I a,munable to sustai:n this objection. The creditors ,of a .are also creditors of each individual member, and have a right to petition against him, as .,Well as against the firm, This has,: been . seveI'llI times decided, a:Q,d.is supported by principl{:tD;o less than by authority.. How far the pllrtnerlilpip,cveditQrs may be entitled to share in the distribution of the separate property Of each member question, which caJ,l. only be determined hereafter when the' assets come to be mar· shaled. That both bankrupts are. insolvent, and that both committed an act of bankruptcy within four months preceding the filing of the petitions, cannot be successfully It was proved at the hearing that on December 20, 1898, they executed a deed of volun-
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635
tary assignment for the benefit of creditors, not only as individuals, but also as members of the 'firr,n of J. W.t Mer,(mr & Co. This d ed has since been recorded, and nothing, more· is necessary to, require the court to enter an. adjudication. I should enter it without: ther delay if it were not for the fact that the petitions do nQt Silt forth the assignment a$ a ground for the court's .action. This .may be done by amendment,however, and permission is now given to the petitioners to add such averment on the 1st day of August,1899. ' The petitions of the Paving Company and;Qf the Fairlamb Company are also defective, because,they do not sufficiently describe the respective claims so that the courtmay know that both claims ar,e provable against the bankrupts. . This may also be amended on or before the date just named. If the amendments referred. to are .made,and the petitions are thus put into proper form, the clerk will enter anadjuuication in each CMe. ., In re FRANKS. .Ex parte. SHARp,E. (District Court, S: D. Alabama. July 15, 1899.) OF ATTACHMENT.
BANKRUPTCY-AsSETS OF
Where a petition in bankruptcy Is filed against an insolvent debtor within four months after the Jev1y of an attachment on his property, and he is bankrupt, ,andt;be.attachment is thereby' dissolved, but In the meantime the sheriff, under the attachment, has sold the property to a bona fide purchaser for value, and collected the proceeds, s,uch proceeds constitute a part of the estate in bankruptcy, and must be rec.'Overed, by the trustee when appointed. ' SAME-,J'ORISDlCTION-MoNEY IN Sn'ERIFF'S HANDS.
2.
,A court of bankruptcy has no jurisdiction, on a summary petition by a trustee in bankruptcy, to order a sheriff to pay over to such trustee mpney remaining in his hands as the proceeds of a sale on attachment against the bankrupt, made' prior to the filing of the petition in bankruptcy, although the attachment, being levied within four months before the institution of the bankruptcy proceedings, was dissolved by the adjudication therein. The tru.stel1 should apply for sueh an order to the state court from which the attachment issued, and, if Ilis remedy is to sue the sheriff for money had' and received.
In :Bankruptcy. T. Stevens, for petitioner. TOULMIN, District Judge. Under the prOVISIOns of the bankruptcy litw, all levies, attachments, or other liens, .obtained through legal proceedings, against Ii person who is insolvent, at any time within fQur months prior to the filing of a petition in bankruptcy against him, shall be .deemed null and void in cllse he is adjudged a bankrupt, and the property affected by the levy, attachment, or other lien, I'lhall be deerqed wholly discharged and released from the andshallpass to the trustee as a part of the estate of the bankrupt; but this provision Shall not have the effect to destroy or impair the title obtained by ,such levy, attachment,or other ,lien of a bona fide