Page:Federal Reporter, 1st Series, Volume 6.djvu/481

 BILL V. BOLBBBa. .469 �S. U. Pinney, in support of demurrer �C. W. Bunn, contra. �Dybr, D. J. This is a demurrer to a bill in equity brought by the complainant as assignee of Wilson & Kiene, bankrupts. The bill sets eut the following state of facts : On and prier to the twenty-ninth day of August, 1878, Wilson & Kiene, as eopartners under that firm name, were and had been doing business in L,a Crosse as retail dealers in pork, haras, lard, etc. On that day they were adjudicated bank- rupts, and the complainant was subsequently appointed as- signee. On the twenty-eighth day of August, 1878, the bank- rupts were indebted to the La Crosse National Bank in the sum of $5,000, as the makers of a promissory note, dated May 30, 1878, payable to the order of the bank, and due August 31, 1878, and on which the defendant, Solberg, waa indorser. The bankrupts were also at that time largely in- debted to varions other persons, and had not sufficient prop- erty to pay their indebtedness, nor did tbey have bankable aBSets with which to pay their note held by the bank, of which fact the defendant had knowledge. This being their condi- tion on the day last mentioned, August 28th, Wilson, acting for the firm, but without the knowledge or consent of his partner, sold and delivered to the defendant their entire stock in trade, alleged to b'e then 'worth $3,000, and in payment therefor took the defendant's note for $2,4:64.14. The defendant waa ai the same time indebted to the bankrupts in the sum of $1,333.16 on open account, and for this amount he then gave to the firm his note. On that day the bankrupts had in hand $494.30 in cash, and also held notes against varions persons, amounting in ail to $792.81, ail of which he indorsed except one note, which, without indorsement, was bankable paper. The bankrupts, or one of them, at the request of the defend- ant, then took the two notes bo made by him, also the notes against third parties which he had indorsed, and the cash which they had in hand, to the bank, and took up their $5,000 note, upon which the defendant was contingently liable as indorser. �It is alleged that this payment was made for the'purpose ��� �