Page:Federal Reporter, 1st Series, Volume 5.djvu/70

 58 FEDERAL REPORTER. �have maintaîned a bill in equity against him for repayment. He could have no action at law, because there was no eontract binding at law, but only an implied trust. �When J. G. Càrr orally agreed to sell four-fifths of the land to this bankrupt and others, if the agreement was bind- ing in equity, without writing, which is very doubtful, under the law of Massachusetts he could in equity require them to bear four-afthsof the loss orof theexpense. It byno means followB that Brown could:have maintained any suit against them. It appears af&rmatively here, though not in the dis- trict court, that Brown had no eontract or promise of any sort, or any conversation looking towards a promise, with the bankrupt, and there is no evidence that he had with any of the four who were to buy of J. C. Carr. I am at a loss, therefore, to see how an action of assumpsit or a bill could have been maintained by him against this bankrupt before his bankruptcy. �The payment which Brown made to the bank by giving them his note, was made long after the bankruptcy, and for the purpose of enabling him to make the proof. It is an indirect mode of drawing a dividend for the bank, when they have withdrawn their own offer of proof. There is no objec- tion to this if there was a liability by the bankrupt to indem- nify Brown, which has beoome absolute and been liquidated since the bankruptcy began. But I cannot discover that lia- bility. �Besides, this debt has once been proved against the joint estate of Hill & Carr, and it can now be proved again against their separate estate only upon evidence that their copart- nership guaranty was given as security for their separate liability; but the evidence before me, though not entirely satisfactory, is ail one way — that Hill & Carr were to own this land as partners, and not as mere tenants in common. In the unsatisfactory state of the oral evidence, the very fact that they gave their eopartnership guaranty is almost decisivo of this question. ����