Page:Federal Reporter, 1st Series, Volume 6.djvu/27

Rh then done so, and had the liability of Edward Dodge beeri then established, a right on the part of Edward Bodge to become a crediter of the new firm in the bankruptcy proceed- ings would have arisen. This was a substantial right lost to Edward Dodge by unexcused delay on the part of the plain- tiff. Still more, if, instead of dealing with this debt as an existing liability of the new firm alone, the liability of Edward Dodge had been asserted and maintained before the estate of Jay Cooke & Co. was wound up, those sheres of stock which the plaintiff received for this debt would have passed to Ed- ward Dodge or his representative, with, of course, the election to sell or to hold them. It is obvious that the distribution of those stocks was not made for the purpose of enablihg the creditors to turn them at once intomoney. That could have been done by the assignee in bankruptcy. The object of the distribution was to give the creditora an election to sell or to hold these stocks. This, too, was a substantial benefit. Its value in this case appears by the fact that the stocks distrib- uted to the plaintiff as creditor of the new urm are now equal in value to the debt proved against the ne^' flirm by the plain- tiff. The plaintiff has seen fit, without aily cause assigried, to adopt a course by which the right to vote as a creditor in the bankruptcy proceeding was lost to Edward Dodge, and his representative deprived of the power to secure his estate against loss.

Having without cause delayed asserting the liability of the outgoing partners during a period of some five years, whereby the party was deprived of an opportunity. to, take pact in the bankruptcy proceeding of Jay Cooke & Co., and to re-imburse himself from the estate of that firm, the plaintiff cannot now ask a court of equity to exercise its power in his behalf. The right here claimed is an equitable right only, and it may therefore be met by equitable circumstances. Ex parte Kendall, 17 Ves. 522.

I have not overlooked the fact that the defendant did at one time make demand on the representative &{ Edward Dodge for the payment of the debt now sued on. But this demand was not made until 1878, when the distribution of