Page:Federal Reporter, 1st Series, Volume 1.djvu/814

iaOG FEDERAL REPORTER. �liabilitj. The exceptions to this claim must be sustained and the proof expunged. �2. As to the claim of the Bank of Kcntucky. This bank is a holder of pa,per drawn by Swearingen & Biggs upon Ander- sen, Hamilton & Co., and indorsed by William B. Hamilton, tothe amount of over |80,000, and has proved for the whole of its claim. �The trustee, prior to the filing of his petition by Hamilton, realized fr'om the assets turned over to him by Swearingen & Biggs a sum sufScient to pay the creditors.50 per cent, on their debts, declared a dividend of that amount, and notified the creditors to call for it. The Bank of Kentueky declined to receive its dividend until after Hamilton filed his petition, but it has stood to the credit of the bank ever since the dividend was declared. I am clearly of the opinion, and so held upon the argument, that this 50 per cent, should have been cred- ited by the bank before proving its claim. �The fact that it was not actually received is of no conse- ç[uence. The dividend had been declared in their favor. They had been notified of it, and, as against other parties to the notes, must be deemed to have received it. They can- not thus take advantage of their own wrong to prove up the whole of their debt to the prejudice of other creditors. Sohier V. Loring, 6 Cush. 537; In re Hicks, 19 N. B. E. 299. �But it is insisted in this case that Hamilton had no right to waive his release of liabilityin favor of the creditors of the conjoint firm. Aside from the special provisions of the bank- rupt act, there would be no difficulty in sustaining the valid- ity of this waiver. It was a part of the contract under which the creditors agreed to release their claim against the con- joint firm, and was therefore not without consideration. Such reservations of a claim against indorsers have been repeatedly held valid. Potter v. Greene, 6 Ail. 442 ; Toby v. Ellis, 114 Mass. 120. �But it is insisted that this liability was released at a time when Hamilton was insolvent, and within four months prior to his filing of his petition in bankruptcy, and it must be held to have been a preference, and therefore invalid. I am una. ��� �