In re Souther
District Court, D. Massachusetts
This was a question upon evidence certified by the register, concerning the debt offered for proof by Frederic Talcott, and called for a decision whether the amount paid by an indorser of a note, after the bankruptcy of the maker, and after an affidavit in due form had been made by Talcott for proving the debt, but before the first meeting of the creditors, and therefore before the debt could be admitted to proof, should be deducted from the debt as a payment pro tanto.
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This was a question upon evidence certified by the register, concerning the debt offered for proof by Frederic Talcott, and called for a decision whether the amount paid by an indorser of a note, after the bankruptcy of the maker, and after an affidavit in due form had been made by Talcott for proving the debt, but before the first meeting of the creditors, and therefore before the debt could be admitted to proof, should be deducted from the debt as a payment pro tanto. The case was not argued.
1Opinion of the Court
LOAVELL, District Judge.
The general rule undoubtedly is, that the holder of a note may prove against all the parties for the full amount, and receive dividends from all until he has obtained the whole of his debt with interest. It is likewise the general rule, that what he has received from one party, or from dividends in bankruptcy of one party, to the note, are payments which he must give credit for if he afterwards proves against others. Sohier v. Loring, 6 Cush. 537; Ex parte AVildman. 1 Atk. 109; Ex parte Royal Bank of Scotland, 2 Rose, 197; Ex parte Tayler. 1 De Gex & J. 302. I am of…
2Cited by8 opinions
- Swarts v. Fourth National BankCourt of Appeals for the Eighth Circuit · 1902
- Board of Com'rs v. HurleyCourt of Appeals for the Eighth Circuit · 1909
- National Mount Wollaston Bank v. PorterMassachusetts Supreme Judicial Court · 1877
- Jewell v. ShermanWisconsin Supreme Court · 1891
- Ex parte NasonSupreme Judicial Court of Maine · 1880
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