You are, then; to consider, in the light of the evidence and' of these instructions: First, whether the company authorized McGrath to use the push car for the purpose named, and his authority may be shown by proof that such use was in accordance. with an established custom of the company, as above explained, but is not shown in this case unless you find such custom has been proved; if you find that such authority is proved, you will proceed to inquire whether the order given by McGrath to plaintiff in pursuance of such authority required the latter to incur unusual danger, resulting in his injury; and, f"i,rd, whether plaintiff was guilty of contributory negligence, or was l11jured by reason of the negligence of a fellow-servant, within the rule I have laid down. If you find for the plaintiff upon these questions, you will then coine to the que'stion of his damages, in considering which you will take into account the nature and extent of his injuries, whether they are permanent or not, to what extent he is deprived of earning a living by the pursuit of his usual occupation or otherwise, as well as his pain and suffering, loss of time, and expenses of medical treatment and nursing. From all the facts and circumstances as developed before you in the evidence, you will, if your verdict is for plaintiff, assess his damages at such reasonable sum as in your judgment will compensate him for his injuries. If you find for the defendant, you w111 slmply say so by your vel'. diet. '
tDi3triet Court, D. New Jersey.
June 30, 1883.)
BUXRUPT'S DISCIIAIC GE-PARTNERSIIIP-CREDITORS.
'Where, deducting from the list of creditors assenting to the discharge of a bankrupt partner those whose claims are against the partnership alone, it appears that one-third in value have not assented to the it must be refused. ,
In Bankruptcy. On application for discharge. John Linn, for bankrupt. Charles T. Glen, for creditors opposing discharge. · NIXON, J. Various specifications are filed against the banY,rupt's discharge. In my view of the case it is only necessary to consider the one charging that not one-fourth of the creditors in number and one-third in value have assented to the discharge. It appears by the achedules of the bankrupt, by the proofs of claim, and by the evidence on the reference, that the said bankrupt, at the time he filed h1S mdiyidnal petition for the benefit of the act, was also liable for the debts of a partnership of which he had been a member, and which bad been dissolved a few years before. The partnership has not been
brought into bankruptcy, but a. number of the claims put in against the individual estate are these partnership debts, and two or three of the creditors assenting to the discharge are only creditors of the partnership, and have no individual claim against the bankrupt. In the schedules the bankrupt estimates his interest in the real and personal estate of the late firm of W. L. & G. W. Johnston, after the settlement of the debts of the partnership, at about $8,000. We therefore, assume that there were no assets of the firm to be administered, and that the case will fall within that class of cuses where, in the absence of all partnership assets, the discharge of the bankrupt on his personal petition operates upon his partnership as well as his individual debts. It only discharges his individual obligations. See III re Little, 1 N. Do n. 341; In re Bidwell, 2 N. B. R. 229; Hudgins v. Lane, 11 N. B. n. 462 j C1'olllpton v. Conkling, 15 N. B. R. 417; III re Noonan, 10 N. B. R. 33l. It was, doubtless, la wful for the partnership creditors to prove their claims against the individual estate of one of the partners, for they would be entitled to come in and participate in any dividend of the assets, if any should happen to remain after the payment of the individual debts in full. But consenting to the discharge is quite a. different matter. The law clearly contemplates that only those creditors should be allowed to assent whose claims will be discharged by the discharge of the bankrupt. Eliminating from the proofs the claim of Elias A. Wilkinson, trustee, for $47,999.26, on which the bankrupt is not liable as principal debtor, and allowing the other proofs to stand, their aggregate amount is $22,116.18-one·third of which is $7,372.06. Deducting from the list of creditors assenting to the discharge those whose claims are against the partnership alone, it is clear that one-third in value have ati::ltmtcd to the discharge, and the same is therefore refused.
UNITED STATES V. OWENS.
(District Court. E. D. Missouri. July 3. 1883.)
LETrER TJIROUGU TIJE lIuIL TO CnEDITOR WJTJJ TO Ub:FRAUn-HEV. ST. § 548u.
An attempt to defraud a creditor by inclosing with a letter to llim worthless slips of paper in p'ace of money. slaled by sueh lctter to be inclosed therewith, alltl sending such Icttcr and inclosed slips to Buell creditor througll tile mail, iJ not an indictable ollense under section 5480 of the Hcvised ::ltatutes.
'Motion to Quash Indictment on the ground that it does not set any offense Guder the statute.
Rex, Esq., of the St. Loub 1::1.1'.