Page:Federal Reporter, 1st Series, Volume 5.djvu/68

 56 FEDBBAIi REPORTER. �good faith requires that it should be held to it. If, for any BiifËcîeiit reason, it was entitled to be relieved from that po- sition, it should have asked leave of the court to withdra-v» its name. As it did not do so then, it is uow too laie. Petition dismissed, with costs. ���Beown V. Howard, Assignee, etc. {Circuit Court, D. New Eampshire. , 1880.) �1. Bankbttptct— Implied Trust — Vendee op Cestui Que Trust— Part- NERSHiP GuARAîTTY— Individual Liability. — Brown bought a piece of land in Chelsea, Massachusetts, at the request of J. C. Carr, -who made the cash payment. Brown gave his notes and a mortgage of the land for the remainder of the purchase money. No writing passed between J. C. Carr and Brown. James M. Carr and his partner, Hill, together with one Cheever and one Dearborn, subsequently entered into an oral agreement with J. 0. Carr to take four-fifths of the purchase, and thereafter the interest and taxes were paid in these proportions. The mortgage and notes were, after a time, transferred to a bank, and Hill & Carr, as partners, guarantied their payment. Upon failure of ail the parties concerned, the bank proved upon their guaranty against the joint estate of Hill & Carr for the amount of the notes, legs the agreed value of the land, and offered proof for the like amount against the separate estate of James M. Carr. The bank sub- sequently withdrew this claim against the separate estate upon a set- tlement made with Brown, taking his note for $5,544.26, and giving him an agreement that he should not be called upon to pay the note, but only what he might obtain in dividends frora the bankrupt's estate. Held, under these circumstances, that Brown could not provefor the amount of the note against the bankrupt's estate. — [Ed. �Assumpsit. �H. S. Clark, for Brown. �Mr. Frink, for Howard, appellant. �LowELL, C. J. This is an action of assumpsit to ascertain whether the separate estate of James M. Carr, a bankrupt, is indobted to C. W. Brown in the sum of $5,544.26, or any part of it. It bas been submitted to this court without a �jury. �The case appears to be a very different one from that which ����