In re McGuire

16 F. Cas. 132, 8 Ben. 452

Opinion

BLATCHFORD, District Judge.

As Koehler does not claim to share with the other creditors who have proved their debts, in the bankrupt’s estate, but asks only that, after the other debts are paid in full, he may have the surplus of the assets applied on his debt, it is manifest that the other creditors, and the assignee as representing them, have no interest or concern in the question as to wheth er the proof of debt made by Koehler, should be allowed to stand or not. Whether It stands or not, the amount to be received by the other creditors will be the same. There is enough to pay them in full, if Koehler’s claim is not to share in so much as will be required to pay them in full. Therefore, as against any objection which those creditors, or the assignee as representing them, have a right to make, the proof of debt ought to stand. As against the surplus which will be left after paying the other creditors in full, and as against the bankrupt, or his representatives, as otherwise entitled to such surplus, the proof of debt ought to be allowed to stand. The effect of the recovery by the as-signee against Koehler, and of the payment thereunder by Koehler to the assignee, was to reinstate the judgment in favor of Koehler against the bankrupt, as between Koehler and the bankrupt, and this court ought not to pay over the surplus in its hands to the bankrupt or his representatives, provided the said judgment is still unsatisfied, but it ought to pay such surplus to Koehler. In the suit brought by the assignee against Koehler, the assignee had no right to recover from Koehler more than the amount necessary to pay- in full the creditors other than Koehler. The surplus, as between the bankrupt and Koehler, belonged to Koehler, and ought now to be refunded to him.