isha,b1e at common law for corrupt conduct in: their judicial office, when so chal'geA by indictment,' is too well settled to need argument. The case of 'Jacobs v. The, Commonwealth, 2 Leigh, 709, is an instanoe in which the court& have recognized this liability in'the state of Virginia. Ris hardly worth while to -the pretension'that if this defendant is indictable at all it is only in a court of the state. In general, offences in violation 'of acts of congress are indictable only in courts 'of the United States. In some instances in the past a few offences of this class have been referred, by express provision of law, to state courts for trial; but such is not the policy' of congress, and the practice, always exceptional and may now be regarded as abandoned. ' So the only is whether stltte justices' ofthe peace are liable, under a.nact,of congress, to indictment in United States courts for a statutory'OfIence, charged have been' committed wilfu,lly and corruptly. , I think, after what has been said, that, this proposition is too plain for argument, and I will overrule the defendant's i!emurrer, deny his motion to quash, and sustain the prosecution's demurrer to the plea. '
THE MUTER, OF ;LITCHFIELD,.
(Di8trict Oourt, 8. D. New York.
MARSHALLING AsSETS-REV. ST. -NEGLECT TO RECOVER THEM.
December 22, 1880.)
.. 'The rule as to marshalling bankruptcy prescribed by Rev. St. '5121, requiring that firm as!iets:shail be first applied to the payment of firm debts, and individuaJ assets to the p/loymentof individual debts, and tha,rjJle of eqUlty, that where there are no firm assets the firm creditors shall share pari with the individual creditors in the individual assets, are not limited to the case where there 'has been an adjudication in bankruptcy of the .firm.. Both the rnleanli the exception apply where the partners have been adjudicated bankrupts on petitions ag,ainst them iu(hvidually. , ' ", The firm creditors have a right to shaWl pl1ll'i pa88u' with'indtvidual creditors in the individual estate, where- the,fit"lll aSsets arenotmor.
than sufficient to pay the costs and expenses properly chargea.bl. to the tlrm estate. In 1'6 mOlYUm Ii' 00. U. B. D. C. Vt. Oct. 4, 187P ; affirmed,Blatchjord,C. J., Dec. 13,1880. Where the bankrupt and his partner, being engaged as a tlrm in the business of constructing a railroad, failcd shortly before the petitions in bankruptcy againsttbe individual partners were. filed, an attempt to have the firm adjudicated having been abandoned !?f reason of the requisite number'of creditors failing to join in the petition, and assets of the firm; consisting of tailroad cars and horses used by them in work on the railroad,worth several thousand dollars, passed, with the property of the railroad ,company, into the hands of a receiver of its property, appointed in an action brought in a state court after the firm failed, and shortly before the filing of the petitions, and it was not shown that the receiver had any title or rightful claim to the property, nor what had become of it during the sElven year. that have elapsed since he took possession: Held, that the petitioners failed to establish the fact that there were no firm assets available for the payment of firm debts, and that the firm creditors were not entitled to share pari passu witll the individual creditors in the.estate of the bankrupt. That the test of available assets for such purpose is whether, at the time of the filing of the petition in bankruptcy, there was an available fund to pay firm creditors j and a neglect by the firm crediton. to avail themselves.of such fund .then existing, whereby it hll.S been dissipated or lost to them, does not enlarge their equity against the individual estate, although in fact they hava been paid nothing on their debts.
E. E. Anderson, for petitioners, cited In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re 4 N. B. R. 97; In re Goedde, 6 N. B. R. 295; In re Knight, 8 N. B. R. 436; In re McEwen, 12 N. B. R. 11; In re Collier, ld. 266. W. Howard Wait and N. J. Vande1poel, for assignee and individual creditors, cited Story on Partnership, §§ 376, 380; In re Byme, 1 N. B. R. 464;. In re Hartough, 3 N. B. R. 422; In re Jewett, 1 N. B. R. 491; In re Downing, 3 N. B. R. 748; In re Knight, 8 N. B. R. 436; In re Frear, 1 N. B. R. 660; In re McGuire, 8 Ben. 452; In re Noonan, 10 N. B. R. 300; Barclay v. Phelps, 4 Met. 397; Hudg.ins v. Lane, 11 N. B. R. 462; In re Plumb, 17 N. B.R. 76; Crompton v. Conklin, 15 N. B. R. 417; Gorey v. Ptrry, 17 N. B. R. 147; In re Lewis,. 1 N. B. R. 2,39; In re Little, 14. 341; In re Winkens, 2 N. B. R. 849; Foster v. 8 N. 13: R. 238; Bant v.b·on Co. 18
IN BE LITCHFIELD.
N. B. R. 279; In'l'e Grady, 3 N. B. R. 227; In'l'e ShepTtard. ld.172; Fors.lJth v. Merritt, ld. 48; Inre Hopkins, 18 N. B. R. 396; In re Abbe, 2 N. B. R. 75; Tucker v. Oxley, 5 Cr. 34; MerriU v. Neil, 8 How. 415; Flowe v. Lawrence, 9 Cush. 553 j Snmmerset, etc., Works v. Minot, 10 Cush. 502; Bobb v. Mudge, 14 Gray, 53,1,; Wild v. Dean, 3 Allen. 579; In re Johnson" 2 Lowell, 130; In re Long, 9 N. B. R. 227; In re Morse, 13 N. B. R. 376; In re 13errians, 6 Ben. 297. CHOATE, D. J. This is an application on the part of firm creditors to be allowed to share pari passu with individual creditors in the proceeds of the individual estate of the bank. rupt. The bankrupt, at and before his bankruptcy, was a. partner with his brother, Electus B. Litchfield, in the business of constructing a railroad, and the petitioners are the creditors of the firm. Both of the partners were separately adjudicated bankrupt, and no adjudication of the firm has ever been had. Soon after the adjudication of this bankrupt, and after his death, an attempt was made to adjuJicate the firm by the commencement of proceedings against Electus B. Litchfield as survivor of his copartner, this bankrupt, but the requisite proporlion of the creditors did not join in the petition, and the proceeding was abandoned'. The claim of the petitioners is that they are entitled to share pari passu with the individual creditors of the bank. ruptin his estate, because there were, as they claim, no firm assets available for paying any part of the firm debts, ana on the further ground that, where there is no adjudication of the firm, the provisions of section 36 the bankrupt law. (Rev. St. 5121,) which require the assets to be marshalled, and the firm assets to, be applied, in the first instance, to the payment of the firm debts, and the individual assets to the individual debts, do not apply, but that in each case joint and separate creditors all share alike. The counsel for the assignee has contended at great length. and up()n a review of the many conflicting decisions on this perplexing question, that there is no exception to the r,uleoI marshalling the firm and individual creditors.
as required by section 36; Rev. St. 5121, in case of there being no firm assets; that the provisions of that section are imperative, and admit of no such exception or qualification, although under other systems of law, upon alleged equitable considerations, such an exception has been ,established. It is, however, unnecessary to go into this question, ,because in a recent decision, which is conclusive on this court, the right of firm creditors to share pari passu with individul creditors in the individual estate has been recognized and enforced, where the firm, as well as the individual partners, had been adjudicated, and the firm assets were not more than sufficient to pay the costs and expenses properly chargeable to the firm In re Slocum fi Co. D. C. Dist. Vt. Oct. 4, 1879; S. C. affirmed, on review, by Blatchford, C. J., Dec. 13, 1880. That -question is not, therefore, open in this court, in a case where the firm has been adjudicated. It has boon doubted whether the rule of marshalling assets prescribed in section 36, Rev. St. 5121, has auy application where, as in the present case, there has been no adjudication ,of the firm. In re Downing, 3 N. B. R. 7513; In re Meliclc,4 N. B. R. 99; In re Long, 9 N. B. R. 240. After a careful examination of all the cases cited, however. I am of opinion ihat both the rule and the exception, in case of there beiug no firm assets, apply as well where there is not as where the.re is an adjudication of the firm; that both the rule 'and the exception are well-established rules of-equity in the liquidation of the assets of insolvent partnerships, of general appli. .cation, the principles of which are recognized as applicable to cases under the bankrupt law by the thirty:.sixthsection, and that there is no decisive expression of an intent in any -of the other provisions of the law to ignore them or prevent their application; that the rule and the exception to it, as determining the rights of the different, classes of creditors, resting as they do on well-known and long.recognizedequities between different classes of creditors, those equities are not in any sense altered by the accidental circumstance'that there was no adjudication of the firm; that the neglect of the CO"
partners themselves, or of the firm creditors, to procure such an adjudication, cannot alter the respective interests of the different classes of creditors in the assets; and especially that the voluntary failure of the copartners, or their firm creditors, to act in this respect, cannot have been intended by the framers of this law to diminish the interest of the individual creditors in the estate of their debtor, the individual bankrupt. Assuming, then, that the non-existence of firm assets available for the payment of some part of the firm debts will entitle the firm creditors to share pari passu in the. individual estate, and that the existence of such assets will exclude them from such right to share in those assets, it is necessary to determine whether, upon the evidence in this case, there were, within the'meaning of this rule, any such available assets. The non-existence of such assets is seriously contended for by the petitioners, but I think the proofs do not establish the 'fact. Shortly before their bankruptcy the firm purchased 10 cars, to be used by them in the construction of the railroad, and at the twe of their bankruptcy these cars, which cost them $10,000, were on the railroa.d, and were worth nearly what they cost. The firm is shown also to have owned a pair of horses, worth about $400, which were also used:by them in their work upon the railroad. After the firm failed, and. shortly before the petitions in bankruptcy against the individual partners were filed, a receiver of the property of the railroad company was appointed in a suit brought.in a state court, and he took into his possession these cars and horses, together with the property of the railroad company. There is no evidence which justifies the conclusion that the receiver acquired any title whatever to the cars or the horses. So far as appears he took possession of them because he found them on the railroad, a.nd' nobody ever made any claim on him for them. What .haabecome of them in the seven years that 'ha.ve sinceela.psed is'no,t sh0wn. It may, however, be now safely a.ssumed that they are virtually lost, both to . the firm andits creditors; but I see no reason to doubt that if a claim had been made at the time, in accordance with
what appears to have beenHhe tights of thepltrtiea, they would have been surrenrlerea by the receiver without litigation, or could have been obtainef from' him by a. suit of replevin brought· by an assignee in bankruptcy of the firm. It is indeed argued that because the receiver had a large claim against the firm fOr breach of contract he would have ither successfully resisted this claim, or made it so expensive to enforce that the claim for this property must be regarded as worthless. It cannot, however, be assu;ned that a receiver, the officer of a court, would, or would be allowed to, interpose vexatious obstacles to the' assertion of so clear a right of property; and I see no way in which he could make his claim against the firm for breach of: contract available to defeat the claim of an assignee· for creditors to .specific chattels belong. ing to the bankrupts, in which- the, receiver, asa creditor, would have no greater any other creditor,' and in which he certainly a6qui!l ed no new interest by an 81c.ci· dental possession, even though when he took that possession it may have been upon the on his part that he bad a right to the property,as receiver of the railroad oom· pany. The test of available assets is, I think',' whether,. at .thetime of the filing of the petition;in..bimkruptcy, there was available fund to pay nrm:'C1.1editors,:and if,hy the,ir; neg,lect to avail themselves of stieh fund,eiiherthrough ignorance <>f its existence or otherwise, the; fund then exiSting ho,sbeen (((lissipated or 1l1st, it does not seem to me that their equity against the individual estate is enlarged. Ordinarily,where an a'ssignee is appointed;, and administers the property under 'the law, and in fact he does 'npt realize anything above costs and expenses, it may be assumed that the property was worth nothing as a fund for payment of debts at the time of iiling the petition. The presumption certainly is that he has realized its entire value. But no such presumption can be indulged where the proof is that the property then had sub· stantial value, and the failure to realize upon it is owing to ihe fact that it was abandoned and never administered. It is unnecessary to examine the question as to any other alleged assets of the firm.
On the ground, therefore, of a. failure to prove the non· existence of n.rmassets,- the petitioners' application to share pari passu the individual estate must be denied. Petition dismissed.
and others, Bankrupts.
(District Oourt, 8. D. Nf!!U) York.
A petition for adjudication In bankruptcy is to be deemed as filed within the meaning of Rev. St. § 5024, from the timt' it is presented to the clerk for the action of the court. The time of filing does not date from the time when the clerk presents it to the judge for Ais action as to issuing an order to show cause. " A secured creditor, who joins in a creditors' petition, thereby repl'eI!ents himself as an unsecured creditor, and must be held to hi\>-e waived or aband<!ned his security; ,and his pe,tition for paymeJ,lt pf judgment from the proceeds of property sold by the assignee in bal).kruptcy, on the ground that he had made a levy of his execution 'prior to the filing of the creditors' Petition, must be denied. It is immaterial tl).at the creditor's signature was not' necessal'1 !to make up the number of creditors and amount required by tli-,e ute.
George Bell, for petitioner. F. W. Hendricks, for assignee. CHOATE, D. J. This is an application by a creditor, Holmes, Booth & Haydens,a, manufacturing corporation, for payment of a judgment recovered by it before the bankruptcy out of the proceeds of the property sold by the assignee. The property was sold under the order of the court, free from the claim of this creditor, and it is now insisted that at the time of the filing of the petition it had a lien by levy of execution on the property. The material facts are as follows: On the ninth day of March, 1878, a creditors' petition, in which this creditor joined, was presented by the attorney for the petitioning creditors to the clerk of this court. It was by the clerk on the same day laid ,before the judge, who made