Ex parte Lake

LOWELL, District Judge. I have no doubt that a former partner, or a joint covenantor with the bankrupts, who is liable for joint debts, and pays them, may prove the amount against the assets of his former partners or of his co-contractors. Ex parte Young, 2 Rose, 40; Ex parte Taylor, Id. 175; Ex parte Carpenter, Mont. & M. 1; Wood v. Dodgson, 2 Maule & S. 195; Aflalo v. Fourdrinier, 6 Bing. 306; Ex parte Ogilby, 3 Ves. & B. 133; Butcher v. Forman, 6 Hill, 583. The decision in Massachusetts, that a retired partner could not prove for debts which he had paid after the beginning of the bankruptcy, was put upon the ground that the insolvent law provided only for sureties in the strict sense (Morton v. Richards, 13 Gray, 15); a somewhat narrow construction, considering that such a partner is so far a surety that the creditor will discharge him by giving time to the remaining partners, with knowledge that they have assumed the debt (Oakeley v. Pasheller, 4 Clark & F. 207). Our statute does not raise so nice a point, because it follows the English law, in giving not only to sureties but to all “persons liable” for the bankrupt the right of proof; and this phrase undoubtedly includes retired partners. If the lessors in this ease have a claim for unliquidated damages which they do not choose to offer in proof, then, under rule 30 of the supreme court, the retired partners may offer it in the name of the lessees. After reflection and consideration, I regret to find that, in my opinion) the liability is not one which can be proved. If the contract were a little different, and provided merely that the lessees should pay any loss or damage consequent upon the diminished value of the premises, the amount would be capable of ascertainment with sufficient certainty. Ex parte Llynvi Coal & Iron Co., 7 Ch. App. 28. I intimated in Ex parte Houghton [Case No. 6,725] that our leases might provide by stipulation for a case of this kind, and I remain of that opinion, and think it would be wise to adopt such a prac 944 tice. But I am unable to reach the conclusion that the stipulation in this case is calculated to work out the result. It seems to provide that the lessees, after a breach, shall remain liable for the rent precisely as before, excepting that they are to be credited with any sums actually received for the use of the premises. This brings the case, unfortunately, within the numerous decisions concerning rent, which, not accruing at once, cannot be estimated beforehand. The original lessees, therefore, would not be liable for a gross sum at any time, nor could we ascertain, with any certainty, what sums they will be entitled to have credit for during the remainder of the term. Proof rejected.