Page:Federal Reporter, 1st Series, Volume 3.djvu/461

 451 FEDBBAL BEFOBTEB. �If Mrs. Fisher proves her entire debt, and Leathers is al- lowed to prove for the same debt to the extent of his pay- ment, there -would be, to that extent, double proof of the same debt. If Mrs. Fisher is not allowed to prove for her entire debt until she is satisfied, she would lose the benefit of her double security. The language of section 5070 settles this question. I think the case of Downing v. Traders' Bank, 2 Dillon, 136, also reported in 11 B. E. 372, is not an Buthority sustaining a contrary view. The district court had only allowed the Traders' Bank to prove for the balance after deducting the amount which had been paid by Saunders Bros, for their release, and, upon appeal to the circuit court, this was reversed, and the whole debt allowed to be proven. Saunders Bros, were not parties, and the intimation of the court that they might be entitled to the dividend upon the amount they had paid for a release was undoubtedly baaed upon the idea that the execution of the notes might be a sat- isfaction as of their date, which was before the bankruptcy of Downing. We know of no case which sustains the view taken by Leathers* counsel as to the meaning of section 5070. �It is, however, contended that Leathers is entitled to his dividend on partial payments by reason of the terms of the composition which was accepted by his creditors. �At the time of the acceptance of Leathers' composition both he and HoUister were in bankruptcy. The agreement for a composition contained this provision, viz. : "And upon any debts or claims against me upon which I (Leathers) pay as aforesaidjbut upon which I p,m in fact merely a surety, I am to have the right to collect and receive, towards helping me to meet and comply with the above proposition, from my principal or his estate, for remuneration therefor, or a proper pro rata therefrom, for what may be paid as aforesaid on such debt or claim, whenever I am really only a surety." �We have seen that, without this provision, Leathers could not have proven for the amount of composition, and that be would not be entitled to anything until the creditor, who held both parties — bankrupts — for his debt, was fully paid. ����