#### Keiser’s Appeal.

Fisher assigned for *the*benefit of creditors. Afterwards, having entered into negotiation -with his creditors to have a reconveyance of his property, one of his creditors to assist in the arrangement gave up a bond she held against him before the assignment, and took his note for the amount, on condition that the bond should be returned if the negotiation failed. The bond was delivered to assignee. The negotiation failed. *Held,*that the creditor was entitled to distribution from the assigned estate.

March 9th, 1878.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Appeal from the Court of Common Pleas of *Berks*County, of January Term, 1876, No. 233. In the estates of Edward’ G. Fisher and Samuel Keiser, trading as Fisher & Keiser, and Edward G. Fisher, assigned for the benefit of creditors.

On the -1th of February, 1871, the firm of Fisher & Keisermade an assignment of the firm estate for the benefit of their creditors, to Michael Keiser and John A. Doneges. On the same day Fisher & Keiser made assignment of their estates for the benefit of their individual creditors, to the same persons. Michael Keiser afterwards died.

On the 2d of May, 1874, Doneges, as surviving assignee, filed an account of the estates of Fisher & Keiser and also of the estate of Fisher. Exceptions were filed to the accounts, and G. B. Stevens, Esq., was appointed auditor on the exceptions, and to make distribution of the balance which might be found' in the hands of the assignee.

The auditor found that the balance of the estate of Fisher in the hands of the assignee was $1856.28.

Emma C. Fisher, a sister of Fisher, claimed to be paid a bond from him to her, dated April 1st, 1861, for $610, with interest. Sarah Boyer claimed to be paid a note from Fisher to herself, dated April 5 th, 1865, for $300, with interest.

Samuel Keiser, the partner of Fisher, objected to these claims, on the ground that after the assignment these credi*376tors had given up the bond and note and released the assigned estate, in consideration of receiving respectively notes from Fisher for the amounts of the claims.

On the part of Reiser, the assignee testified that Reiser had delivered the bond and note to him, saying that Fisher had fixed it with Miss Boyer and his sister, fie took them under the impression that they were paid, or that Fisher had made some arrangement with his sister, as Reiser & Fisher had been endeavoring to arrange with their creditors, to save their individual property and get it back. It was in contemplation of this that the bond and note came into the hands of the witness. He was willing to re-assign the property if they could make an arrangement with their creditors. They never effected the arrangement.

Reiser testified, that he proposed to Fisher that each should take up as many of his individual debts as he could. Fisher then brought the note and bond, said he would go into the arrangement; that the parties were satisfied, and would take his new notes to help him. The real object was to keep the individual property of the partners. Nothing was then said about a reconveyance. They were treated by the assignee, Fisher, and witness, as paid, because there were new notes given by Fisher.

Miss Fisher testified, that her brother told her that Reiser and he wanted to keep their-individual property; that if they could get enough of the creditors to look to them individually for payment, the firm property would pay the firm debts, and he could keep his property from being sold. He wanted her bond, and said she should have it back if the arrangement could not be made. Sarah Boyer was present. Both let Fisher have their papers, and were to have them back if he could uot make the arrangement. Witness and Miss Boyer did not give up their securities absolutely, but •on condition that the arrangement which he wanted should be made. Witness and Miss Boyer still held the notes which he then gave them. All the property was sold by the assignee.

Fisher testified that it was distinctly understood by Reiser and him that Miss Boyer and Miss Fisher at the time they gave up their papers waived no right under the oi’iginal securities to distribution; if the arrangement could be made the new notes were to be against witness instead of the old, but uot unless he could save his property; witness passed them to Reiser with this understanding.

The auditor reported: . . . .

“ It was contended on the part of Mr. Reiser, one of the assignors, that the parties had relinquished their claims to E. *377G. Fisher, and had agreed to permit the estate of E. G. Fisher to be distributed among the general creditors, released of any demand by them. A large amount of testimony was taken, which is hereto attached, from which the auditor finds that the claimants only conditionally released the estate in the hands of the assignee, the consideration being the success of an effort making to obtain a compromise with the general creditors, by which E. G. Fisher might retain his individual real estate, a house and lot; but the negotiation failed, the property was sold by the assignee, and the proceeds are held for distribution ; there is no dispute but the claims are just and legal debts, and that the money is really owing the claimants by E. G. Fisher. .

" The claimants are not precluded by their release, made through feelings of affection; the condition on which it was to be good never happened, and in the opinion of the auditor, as made up from the testimony herewith submitted, the claimants are not estopped from claiming against the fund in the hands of the assignee, and are entitled to a distributive share .of the estate of E. G. Fisher.” ....

Exceptions were filed to the report; they were dismissed by the Court, Yak Peed, J., and a decree made that the assignee pay the fund in his hands in accordance with the report.

Samuel Keiser appealed from, this decree, and assigned it-for error.

*J. W. Try on,*for appellant.

The claimants had the means-of satisfaction in their own hands, and having released them by taking new notes hey cannot resort to the original security : Bank *v.*Klingensmith, 7 Watts, 524; Richabaugh *v.*Dugan, 7 Barr, 394; Seltzer *v,*Coleman, 8 Casey, 493.

*C. Gf. Derr,*for appellees.

There must be an intention-that the old security should be satisfied by the new: Mason *v.*Wickersham, 4 W. & S., 100; Seltzer *v.*Coleman, *supra,*2. Parsons on Bills, 205.

Judgment was entered in the Supreme Court, March 20th, 1876.

Per. Curiam:

The auditor found the fact that the claimants only conditionally released the estate in the hands off the assignee, dependent on the success of an arrangement of compromise with the general creditors, and that the negotiation failed; This finding not being disproved, as unsupported by the evidence, the release alleged cannot be- used. *378contrary to the condition on which it depended, and in violation of the intention of the parties. There is.no dispute, says the auditor, that the'claims are just and legal debts, and that the money is really owing to the claimants by E. G-. Fisher. The decree was therefore proper.

Decree affirmed, with costs, to be paid by the appellant, and the appeal dismissed.