Page:Federal Reporter, 1st Series, Volume 5.djvu/69

 BBOWN V. HOWARD. 67 �was presented to the district court, judging by the opinion of that court, which I have seen. These cases are oalled "ap- peals," but they are considered like original actions, and ail the proof is, or may be, gone into de novo. �The plaintiff, Brown, bought a piece of land, in Chelsea, Massachusetts, at auction, at the request of Jeremiah C. Carr, who made the cash payment, and the plaintiff gave Ms notes and" a mortgage of the land for the remainder of the purchase money, amounting to somefthing over $5,000. Pricea bave since fallen so much that the land has been taken by the present holder of the mortgage at an agreed valuation of $1,200. No writing was passed between J. C. Carr and the plaintiff. �Soon after the sale, though whether some few weeks or a month or more it is not certain, four other persons, to-wit, James M. Carr and his partner, Hill, and one Cheever and one Dearborn, orally agreed with J. C. Carr to take four-fiftha of the purchase, and thereafter the interest and taxes were paid in these proportions; but whether the bankrupts, Hill & Carr, were to take aa partners or not is one of the disputed questions. �After a time the mortgage and notes secured by it were transferred to the First National Bank of Newburyport, the present holders, and Hill & Carr, as partners, guarantied their payment. Still later, Hill & Carr and ail the othet parties failed, and one of them has died. The bank proved upon their guaranty against the joint estate of Hill & Carr for the amounts of the notes, after deducting the agreed value of the land, and 'offered proof for a like amount against the separate estate of Carr, but after argument they withdrew this claim and made a settlement with Brown, the plaintiff, taking his note for the amount of $5,544.26, and giving him an agree- ment that he should not be called upon to pay the note, but only what he might obtain in dividends from this or other bankrupts' estates. Thereupon Brown offered to prove this sum of $5,544.26 against the bankrupt's estate, and the point to be decided is whether he can do so. Brown was a trustee for J. C. Carr, (not the bankrupt,) and might, I suppose, ����