Page:Federal Reporter, 1st Series, Volume 5.djvu/723

 IN EE HYNDMAN. 711 �W. H. Carroll, for creditors. �W. D. Beard, for bankrupt. ' �Hammond, D. J. The firet question in importance is whether the bankrupt was so liable as principal debtor on the North- ern note that the whole of it must be counted against him; because, if this point be against hird, it is conceded he cannot be discharged. I have nô doubt that, in a controversy between him and the creditor, he would be held to be a prin- cipal debtor; for, as between them, no contract fôr surety- ship is shown to have been entered into. In foi^m it is clearly not a contract of suretyahip, but the opposite; and the cred- itor seems to bave had no knowledge of any agreement be- tween the bankrupt and his co-obligors changing the contract. Hence, if, as between Northern and the bankrupt, the ques- tion should arise whether he was principal or surety, I should have no difficulty in holding that he would be treated as principal. But I do not think the question is to be decided wholly on the technical relation existing between the creditor and the bankrupt, but rather on the facts of the transaction as they show whether he is primarily liable to pay this note as his own debt. Counsel for the bankrupt has well suggested the true test : Did lie receive the consideration, and is this a debt contracted by him which, as against ail the world, he is bound to pay? If he may call upon anybody else to relieve him of his obligation he is not, in the sense of this provision of the bankrupt law, a principal dehtor. If paying this debt he would have a remedy over against some one else, he is not a principal debtor. Bates v. Whitson, 2 Head, 155; Hall v. Hall, 34 Ind. 314; Smith v. Shelden, 35 Mich. 42; Crafts v. Mott, 4 N. Y. 604. TJndoubtedly, a partnership note is of such character that, as between the creditor and themselves, they are ail principals ; but, even if the original debt to North- ern was a partnership debt, the facts do not ehow that, when Hyndman came into the firtn, it was renewed as a firm debt. In form, it is not a partnership debt, but the joint obligation of the three persons signing it. The facts show conclusively that Hyndman, as between the old members of the firm and himself, only agreed to pay one-third of this debt, and, per- ����