Page:Federal Reporter, 1st Series, Volume 3.djvu/462

Rh But it seems to me that a fair construction of the language of the composition, as quoted, gives Leathers a contract right to the proper pro rata dividend which the creditor would get on the debt partially paid by Leathers from the estate of the principal debtor. The suggestion that this provision of the composition simply means what the law would have given without it is not sustained by the language.

There is nothing in the language which indicates that Leathers was only to have his pro rata from the estate of the principal debtor, after the creditor had received his entire debt, and in that event only. The language is that "I am to have the right to collect and receive, towards helping me to meet and comply with the above proposition," etc. This would indicate that this right was an immediate and absolute one.

The cases In re Ellerhorst, etc., 5 B. R. 144; Ex parte Talcott, 9 B. R. 502; and In re Butler, 18 B. R. 497, referred to in the excellent brief of the counsel for Mrs. Fisher, are only to the point of deciding the law independent of any contract. I do not doubt the correctness of these decisions, but I conceive the parties themselves have made a contract which changes the rule. The effect of this contract is not to allow a double proof of the same debt, or any part of it.

The opinion of the register, so far as it sustains the exceptions to the debt paid the Northern Bank, is sustained; and also sustained in allowing the $48.56. But, the claim for $810.52, paid C. W. Miller, should have been allowed Leathers, and also his claim for $1,823.88, paid Mrs. Bettie Fisher; but these claims should be credited by the $557.88 as allowed in his proof of debt.

C. W. Miller's debt must be credited by $810.52, and Mrs. Bettie Fisher's debt by $1,823.88. As these sums are allowed to be proven by Leathers, a double dividend must not be paid.