Page:Federal Reporter, 1st Series, Volume 1.djvu/813

 IN RE HAMILTON. 805 �Hamîlton & Co., and one-fourth to Swearingen & Biggs, and not to the individual members of either. �Fourth. The parties in this case bave evidently treated the conjoint firm as composed of two partners, by proving their debt in the name of Swearingen & Biggs. �Neither of the members composing this firm claîms that he bas paid anything individually, but their claim is for a joint debt against Hamilton. But, conceding that Hamilton, in- dividually, was to be considered the partner, and not the firm of Andersen, Hamilton & Co., I am unable to see how tho case is taken out of the general rule, that a firm cannot prove against a partner in competition mth the individual creditors of such partner; neither can a partner prove against a part- ner, unless they be engaged in separate and distinct trades. Ex parte St. Barhe,ll\ea. 413; Pars, on Partnership, 493; Lindley on Partnership, 1007; Story on Partnership, § 391. �But there is another reason why this proof of debt should be expunged, While the creditors of the conjoint firm have acknowledged themselves satisfied, and have released and dis- charged their liabilities against both members of that firm, they bave not been fuUy paid ofif, but have retained their right to prove against Hamilton, individually. �Certainly, in making this arrangement they could never bave contemplated or intended that Swearingen & Biggs should corne into competition with them. In releasing them upon payment of $66,000, when in fact they were liable to these creditors for the f uU amount of their claims, they undoubtedly took into consideration the amount that would probably be realized from the individual estate of the bankrupt. �Although the letter of the agreement is silent upon this point, it would be clearly at war with its scope and purpose . now to permit Swearingen & Biggs to corne into competition with these creditors, who are evidently doing them a favor by releasing them upon the payment of a less amount than that for which they were legally liable. The proof of this claim amounts, in effect, to an endeavor to retake a portion of the price paid by them for their release and immunity from further ��� �