Page:Federal Reporter, 1st Series, Volume 5.djvu/61

 m RE LITCHFIELD. 4i> �N. B. E. 279; In re Grady, 3 N. B. E, 227; In re Shephard, Id. 172; Forsyth v. Merritt, Id. 48; In re Hopkins, 18 N, B. E. 396; In re Abbe, 2 N. B. E. 75; Tucker v, Oxley, 5 Cr. 34; Merrill v. Neil, 8 IIow. 415; Howe v. Lawrence, 9 Cush. 553 ; Summerset, etc., Works v. Minot, 10 Cush. 592; I^ofee v. Mudge, 14 Gray, 534 ; Wild v. Z)eaw, 3 Allen. 579 ; In re Johnson, 2 Lowell, 130; In re Long, 9 N. B. E. 227; In re Morse, 13 N. B. E. 376 ; In re Berrians, 6 Ben. 297. �Choate, D. J. This is an application on the part of firm creditors to be allowed to share pari passu with individual creditors in the proceeds of the individual estate of the bank- rupt. The bankrupt, at and before his bankruptcy, was a partner with his brother, Electus B. Litchfield, in the businesa of constructing a railroad, and the petitioners are the credit- era of the firm. Both of the partners were separately adju- dicated bankrupt, and no adjudication of the firm bas ever been had. Soon after the adjudication of this bankrupt, and after his death, an attempt was made to adjuJicate the firm by the commencement of proceedings against Electus B, Litchfield as survivor of his copartner, this bankrupt, but the requisite proporLioa of the creditors did not join in the petition, and the proceeding was abandoned. �The claim of the petitioners is that they are entitled to share pari passu with the individual creditors of the bank- rupt in his estate, beoause there were, as they claim, no firm assets available for paying any part of the firm debts, and on the fnrther ground that, where there is no adjudication of the firm, the provisions of section 36 of the bankrupt law, (Eev. St. 5121,) which require the assets to be marshalled, and the firm assets to be applied, in the first instance, to the payment of the firm debts, and the individual assets to the individual debts, do not apply, but that in each case joint and separate creditors ail share alike. �The counsel for the assignee bas contended at great length, and upon a review of the many conflicting decisions on this perplexing question, that theire is no exception to the rule of marshalling the assets between firm and individual creditors^ �y.5,no.l — e ����