Page:Federal Reporter, 1st Series, Volume 5.djvu/63

IN BB LITCHFIELD. 61 �partners themselves, or of the firm creditors, to procure such an adjudication, cannot alter the respective interests of the different classes of creditors in the assets; and especially that the voluntary failure of the copartners, or their firm creditors, to act in this respect, cannot have been intended by the framers of this law to diminish the interest of the indi- vidual creditors in the estate of their debtor, the individual bankrupt. �Assuming, then, that the non-existence of firm assets avail- able for the payment of some part of the firm debts will entitle the firm creditors to share pari passu in the individual estate, and that the existence of such assets will exelude them from Buch right to share in those assets, it is necessary to determine whether, upon the evidence in this case, there were, within the meaning of this rule, any such available assets. The non-existence of such assets is seriously contended for by the petitioners, but I think the proofa do not establish the fact. Shortly before their bahkruptcy the firm purchased 10 cars, to be used by them in the construction of the railroad, and at the tinie of their bankruptcy these cars, which cost them $10,000, were on the railroad, and were worth nearly what they cost. The firm is shown also to have owned a pair of horses, worth about $400, which were also used by them in their work upon the railroad. After the firm failed, and shortly before the petitions in bankruptcy against the individual partners were filed, a receiver of the property of the railroad company was appointed in a suit brought in a state court, and he took into his possession these cars and horses, together with the property of the railroad company. There is no evidence which justifies the conclusion that the receiver acquired any title whatever to the cars or the horses. So far as appears he took possession of them because he found them on the railroad, and' nobody ever made any olaim on him for them, What ha» become of them in the seven years that bave since elapsed isnot shown. It may, however, be now sàfely assumed that they are virtually lost, both to the firm and its creditors; but I see no reason to doubt that if a claim had been made at the time, in accorcbnce with ����