Page:Federal Reporter, 1st Series, Volume 2.djvu/164

 IN BE LISSBUBOEB. 157 �Beems to have become well established in England, that where two bankrupt parties have each given cross accommodation bills or notes to the other prior to their bankruptcy, which bills or notes have been indorsed, and are outstanding and unpaid at the time of the bankruptcy of such estate, and which have been proven against such estate by the holders, and a cash balance was also due from one estate to the other at the time of the bankruptcy, such cash balance only is provable, and that the outstanding bills or notes, or any dividends ■which may be paid thereon, cannot be proved by one estate against the other, unless the creditors of one estate have been paid in fuU and such estate has a surplus. This doctrine waa» after argument, in which the hardships of the rule were fully set forth by counsel, declared in Ex parte Laforest, Mont. & Bligh, 363, to be the existing English doctrine. The judges based their decision upon Ex parte Walker, 4 Ves. 373, which case was substantially affirmed in Ex parte Earle, 5 Ves. 833, and in Ex parte Rawson, 1 Jacob, 274. The case of Ex parte Metcalf, 11 Ves. 40e, in which a different principle is recog- nized or asserted by Lord Edon, does not seem to have shaken the opinion of the court in Exparte Laforest. �In Ex parte Walker, Lord Loughborough places his decision upon the ground that if the estate of the accommodation maker should be permitted to prove against the other estate the dividend which had been paid by the estate of the maker, when the note had also been proved by the holder against both estates, the same debt, or a part thereof, would be proved twice, which would operate as a hardship upon the creditors of the estate then paying an additional dividend. In Exparte Rawson Lord Eldon says : "If so much of the account as con- Bists of bills, consists of bills that may be proved against both estates, how is it possible, till the creditors proving them are satisfied, that one estate can make any proof against the other with reference to these bills ? How can they be allowed to corne into competition with their own creditors?" �The theory of the rule is that the holder of each indorsed note, who presents it as a claim for its full amount against Buch estate, draws from such estate the full share of the ����