#### Frederick Bausman, Trustee, Appellee, v. John A. Mead et al. On Appeal of Carl B. Hinsman, Appellant.

Gen. No. 18,425.

(Not to be reported in full.)

Abstract of the Decision.

1. Bankruptcy, § 38 * —when judgment on bond given trustee cannot be sustained. Where the condition in a bond given to a trustee in bankruptcy provides for the payment to legal creditors of “whatever pro rata sum may he adjudged to be due them,” there is no basis for a judgment permitting a recovery for breach thereof, when no rate of distribution was fixed by the bankruptcy court.

2. Bankruptcy, § 29*—what essential to rate of distribution. Rate of the dividend to he distributed among creditors depends upon the amount of proved claims, the amount of assets and the fixing of the rate of distribution by the bankruptcy court.

3. Bankruptcy, § 38*—evidence of trustee’s discharge. Evidence held insufficient to show an admission by plaintiff that he was discharged as trustee in bankruptcy before commencing suit.

Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Reversed and remanded.

Opinion filed October 9, 1913.

Statement of the Case.

Action "by Frederick Bausman, trustee in bankruptcy of the Alaska Smelting Company, against John A. Mead and others to recover in an action of debt on a penal bond given plaintiff by the defendants. From a judgment in favor of plaintiff, Carl B. Hinsman, one of the defendants, appeals.

Bayley & Webster, for appellant.

Cratty Bros, and Charles Hudson, for appellee.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Presiding Justice McSurely

delivered the opinion of the court.