:J:N BB BLUMER.
623
the guaranty, and disallowed the claim. Exceptions were filed to this ruling. W. H. Sowden, for exceptant. John Rupp. for other creditors. BUTLER. D. J. This exception must be dismissed. Mr. Line's indorsement on the certificate was without any legal effect. It was in terms a guaranty of his own debt. As a member of the firm which issued the certificate, he was liable to be called upon individually to pay it, and his guaranty was therefore unmeaning. The creditor obtained no additional obligation whatever, and has no right to participate in the distribution of the debtor's individual estate at this time.
In re WH. H.
BLUMER
& Co.· Bankrupts.-
(Vi'trice Oourt, E. D. Penn'1llfJania. September 8. 1882.) BA1UtRtJPTCY-PnU{CIPAL AND SURETY-ACCEPTANCE Oil' BONDFROK BtmBTTRETENTION Oll' CLAIH AGAINST Co-SURETms. · .. ,"
The treasurer of a city defaulted, and the city council passed a resolution that the sureties might give their individual bonds, payable in 18 months, for their pro rata of the balance due, but that the old bond should be retained and remain in full force. Five of the seven sureties gave individual bonds in ACcordance with this resolution, each for one-fifth of the debt. The otber two sureties were insolvent, proceedings in bankruptcy having been commenced against them. Held, that their: estates were not released by the acceptance of the bonds of their co-sureties, and that the city might prove against their estates for the whole debt
Exception to report of register allowing a. claim of the city of Allentown against the separate estates of Jesse M. Line and William Kern, members of the firm of William H. Blumer & Co., bankrupts. From the report of the register (Edwin T. Chase. Esq.) it appeared that Jesse M. Line and William Kern, with five others, had beoome sureties to the city of Allentown upon the official bond of one Jacob A. Blumer, treasurer, who afterwards defaulted, leaving il. deficiency of $9,357.30 to be paid by his sureties. Afterwards the city councils passed a resolution reciting the concurrencaof the city in a proposition of the bondsmen of said Jacob A. Blumer, and directin3 that said bondsmen should give their individual bonds for their pro'rata of the balance due by said defaulting treasurer. with such bonds1llen "'Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
624
FEDERAL REPORTER.
as should be approved by the finance board, payable in 18 months, and "that the old bonds should be retained and remain in full force and virtue." Seven days before the passage of this resolution proceedings in bankruptcy had been commenced against the firm of William H. Blumer & Co., of which Jesse M. Line and William Kern were memberS', and they did not give bond in accordance with the resolution. The remaining five sureties, however, each gave their individual bond to the city for one-fifth of the debt. Subsequently, the firm of William H.Blumer & Co. being adjudicated bankrupts, the city presented a claim against the separate estates of Jesse M. Line and William Kern upon the original debt. Ifappeared that the city had collected $1,114.68 from the estate of the defaulting treasurer, and that one of the sureties, who had given his individual bond, had since paid $871.46 thereon. The register allowed the claim of the city for the $9,357.30, less the $1,114.6& received from the estate ofthe treasurer. Exceptions wete filed to this report. P. K. Erdman and Edward Harvey, for exceptants. R. E. Wright, Jr., contra.
D. J. The question raised is one of construction. If the transaction with the five co-sureties was intended to be a discharge of the· original obligation, no recovery can now be sustained against the estates of Line and Kern i or if it was intended as a discharge of the five co-sureties from the obligation, Line's and Kern's estates can only be looked to for two-sevenths of the deficiency. If, on the other hand, the transaction was intended as a conditional discharge only, -the obligation to remain in force until Blumer's default was made good,-it had no effect whatever upon the city's rights against Line and Kern. The rule of law applicable is plain, and no authorities need be cited. In my judgment, the latter view of the tl'ansaction is the only one ,justified by the evidence. The city was careful to reserve its rights nnder the original bond-stipulating in plain terms that the obligation continue in force. Of course, if the new bonds had been paid, q,nd the claim of the city had been thus satisfied, the original obligationwould have been discharged. But until this should be done the original obligation 'Was to continue in force. Nothing has occurred to interfere with Messrs. Line's and Kern's right to contribution for what they may pay beyond their just proportions. The exception must therefore be dismissed. BUTLER,
BUSH
V.
UNITED STATES.
62'>
BUSH 'V. UNITED STATES.
(Circuit Court, D. Oregon. 1. BILL OF REVIEW.
October 2, 1882.)
A bill of review is a proceeding in the nature of a writ of error, and it may be hrought to' modify or reverse a decree given in a suit in equity in favor of the United State for errors apparent upon the face thereof. 2.
Upon a bill of review to correct a decree given in favor of the United States, the subpcena to appear and answer may be served on the district attorney. 3. QUI TAM ACTION UNDER SECTIONS 3490-3493 OF THE REVISED STATUTES. In an action brought by an ,informer upon sections 3490-3493 of the Hevised Statutes, to recover damages and forfeitures for collecting false claims from the treasury, the person who sues represents the United States therein, and also in all suits and proceedings brought or taken in aid of an execution, or to enforce the judgment therein, and is entitled to control the same.
SAME-SEltVICE OF SUBPCENA IN.
Bill of Review. George H. Williams, for plaintiffs. James F. Watson, for defendant. DEADY, D. J. On August 1, 1882, the plaintiffs filed in this court a bill of review, to procure, as to them, the modification of a final decree of this court, given in the case No. 356 of the United Staten. William C. Griswold and others, including said plaintiffs, and signed and enrolled on August 12, 1881, for error apparent upon the face thereof. The bill of review states that on January 29, 1880, the amended bill was filed by the United States in the original suit, and sets it forth in full. From this, among other things, it appears that on May 27, 1877, the United States, by B. F. Dowell, informant, brought an action against W. C. Griswold, under sections 34-90 and 5438 of the Revised Statutes, to recover certain damages and forfeitures for knowingly collecting from the treasury of the United States, on January 11, 1879, false claims to the amount of $17,000, in which, on July 30, 1879, the plaintiff obtained judgment for $35,228, and costs and disbursements amounting to $2,821.60; that said Gris. wold, at the date of such judgment, was the owner of certain real property situated in Salem, Oregon, including the west half of lots 1, 2, 3, and 4, of block 73, and lot 8, in block 10, which had been ille. gaIly sold and purchased by the plaintiffs herein, upon certain judgments held by them against said Griswold, contrary to the priority of the United States, and asked to have said proceedings set asido v.13,no.12-4l'