Page:Federal Reporter, 1st Series, Volume 5.djvu/60

 48 FEDKBAIi BEPOBTEB. �than suffloient to pay the costs and expeases properiy chargeablt to the flrm estate. In re Sflocum <e Oo. U. 8. D. C. Vt. Oct. 4, 1879 ; aSàimcA, Blatchford, 0. J., Dec. 13, 1880. �Where the bankrupt and his partner, being engagad as a flrm in the business of constructing a railroad, failed shortly before the peti- tions in bankruptcy against the individual partners were. filed, an «ttempt to have the flrjji adjudieated having been abandoned by rea- son of the requisite numberof creditors faillng to join in the petition, and assets of the flrm, conaisting 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 re- ceiver of its property, appointed in an action brought in a state court after the flrm failed, and shortly before the flling of the petitions, and it was not shown that the receiver had any title or rightful daim to the property, nor what had become of it during the seven yearg that have elapsed since he took possession : �Held, that the petitioners failed to establish the fact that there were no flrm assets available for the payment of flrm debts, and that the flrm creditors were not entitled to ahare pari passu with 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 flling of the petition In bankruptcy, there Was an availa- ble fund to pay flrm creditors ; and a neglect by the flrm creditors to avail themselves of such fund then existing, whereby it has been dis- sipated 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. E. 491; In re Doicnirig, 3 N. B. E. 748; In re Melick, e N. B. E. 97; In re Goedde, G N. B. E. 296; In re Knight, 8 N. B. E. 436; In re McEwen, 12 N. B. E. 11; In re Collier, là. 266. �W. Howard Watt and N. J. Vanderpoel, for assignee and individual creditors, cited Story on Partnership, §§ 376j 380; In re Byrne, 1 N. B. E. 464;. In re Hartough, 3 N. B. E. 422; In re Jewett, 1 N. B. E. 491; In re Downing, 3 N. B. E. 748; In re Knight, 8 N. B. E. 436 ; In re Frear, 1 N, B. E. 660 ; In re McGuire, 8 Ben. 452 ; In re Noonan, 10 N. B. E. 300 ; Barclay v. Phelps, 4 Met. 397; Hudgins v. Lane, 11 N. B. E. 462; In re Plamb, 17 N. B. E. 76; Crompton v. Conklin, 15 N. B. E. 417; Corey v. Perry, 17 N. B. E. 147; In re Lewis, 1 N. B. E. 239; In re Little, id. 341 ; In re Wink'ens, 2 N. B. E. 349; Foster v. Pratt, 3 N. B. E. 238 ; Bant v.Iron Co. 18 ����