Wharton v. Clements

Citations

• 3 Del. Ch. 209

Syllabus

<p>A partner, with the knowledge of his co-partner, converted, to the use of the firm,money, received by him, as a United States deputy collector of internal revenue ; Held,‘CasX. a bond of the firm given to indemnify the sureties of the deputy collector, was valid as a partnership obligation.</p> <p>Such bond, valid as an indemnity although executed before the sureties had made good the defalcation, and although in form it was a bond for the payment of money.</p> <p>The statute of insolvency, Revised Code, ch. 121 sec. 4, applies only to cases in which an assignment for the benefit of creditors is made, and does not forbid the preference by a debtor of certain creditors otherwise, even though given in contemplation of insolvency.</p> <p>An answer responsive to the bill is evidence where fraud is charged as in other cases, and may, if not overcome by counter proof, establish the defense, without other evidence.</p> <p>Quere. What remedy a court of equity would afford, to compel sureties, holding a money-bond as indemnity,to pay the debt before realizing the proceeds of the bond, or to refund them if they should have received them and should prove, ultimately, not to be damnified.</p>