Page:Federal Reporter, 1st Series, Volume 5.djvu/62

 ■50 FEDEIiiL REPORTEE. �«S required by section 36, Eev. St. 5121, in case of there being no firm assets ; that the proyisious of that section are imperative, and admit of no such exception or qualification, although under other Systems of law, upon alleged equitable considerations, such an exception bas been .establisbed. It is, however, unnecessary to go into this question, because in a recent decision, which is conclusive on this court, the right of firm creditors to share pari passu with individul creditera in the individual estate has been recognized and enforced, where the firm, as well as the individual partners, had been adjudicated, and the firm assets were not more than sufficient to pay the costs and expanses properly chargeable to the firm -estate. In re Slocum d Co. D. C. Dist. Vt. Oct. 4, 1879 ; S. G. affirmed, on review, by Blatchford, G. J., Dec. 13, 1880. That ^juestion is not, therefore, open in this court, in a case where the firm has been adjudicated. �It has been doubted whether the rule of marshalling asseta prescribed in section 36, Eev. St. 5121, has any application where, as in the present case, there has been no adjudication ■of the firm. In re Downing, 3 N. B. E. 753; In re Melick,4L N. B. E. 99; Ira re Long, 9 N. B. E. 240. After a careful examination of ail the cases cited, however, I am of opinion ■that both the rule and the exception, in case of there being no firm assets, apply as well where there is not as where there is an adjudication of the firm; that both the rule and the exception are weU-established rules of equity in the liquida- tion of the assets of insolvent partnerships, of general appli- cation, the principles of which are recognized as applicable to cases under the bankrupt law by the thirty-sixth section, and that there is no decisive expression of an inteht in any of the other provisions of the law to ignore them or prevent their application; that the rule and the exception to it, as determining the rights of the different! classes of creditors, resting as they do on well-known and long-recognized equitiea between different classes of creditors, those equities are not in any sense altered by the accidentai circumstanoe-that there was no adjudication of the firm; that the neglect of the co- ����