1815.

Ex parte HODGKINSON.-In

Execution of the Bond by one Partner, is not inconsistent with many of the ordinary Occurrences in Bankruptcy: one Partner is admitted to make the Affidavit of Debt as petitioning Creditor, and to prove the Debt for himthe Matter self and Partners, under the Commission; one Partner executes a Power of Attorney authorising a Person to KINSON and vote for himself and Partner in the Choice of Assignees; one Partner may vote in the Choice of Assignees, and may sign the Certificate (a).

of HODG

LEE.

(a) Ex parte Hall, 1 Vol. 2.

GUILDHALL,

10 December,

1814.

ROBERTS V. HARDIE. Trespass by the Bankrupt against the petitioning Creditor, the Attorney and Messenger, for seizing Plaintiff's Goods under a Commission which he alleged was illegal.

The only Evidence offered against the petitioning Creditor, was his having executed the Bond to the Great Seal, and thereby rendering himself the Origin and Foundation of the Commission.

Lord Ellenborough, C. J., rated this not to be sufficient. The Plaintiff might with equal Reason consider the Chancellor a Trespasser for having sealed the Commission.

Another Point relied on, was, that the Partner of the petitioning Creditor at the Time of issuing the Commission was adhering to the King's Enemies within Hec-⚫

tor v. M'Connel. As to which the Evidence was, that the Partner, not aware of the War with America, went thither in the Course of his Trade, and had since remained there; but it did not appear that he was voluntarily residing there, for any commercial Purpesés, or from any Motives inconsistent with his Allegiance as a British Subject.

Lord Ellenborough, C. J., thought it would be carrying Hector and M'Connel much too far to apply it to these Circumstances.

Another Objection was, that the Bond, although in Terms a joint Bond, was executed only by one of the Partners. This was stated to be merely a practical Regulation of the Bankrupt Office, not cognizable in a Court of Law, where the only Question was the Truth and Reality of the Debt.

A Verdict was taken for the Defendants, subject to a Case.

LINCOLN'S

Ex parte TAYLOR.-In the Matter of ELGAR.

THIS

INN HALL.

Aug. 1814.

HIS was an Application by Taylor, to prove a A solvent Debt upon the Balance of the Copartnership Ac- Partner is counts, against the Estate of his Bankrupt Copartner, entitled to Elgar. All the Partnership Creditors had been sa- prove against tisfied. the Estate

of a Bank

Mr. Cullen and Mr. Bell supported the Application rupt Coupon the Principle of ex parte Young in the Matter of partner Slaney (a).

Mr.

opposed it, distinguishing the Case cited from the present, as proceeding upon a Debt founded in Fraud (b).

The Lord CHANCELLOR.

the Amount of the Balance due to

him upon the Partnership Account, first satisfy

ing the Part

them.

If I rightly recollect the Case in the Matter of Slaney, nership the Discussion turned much upon the Point, whether the Debts, or Partners, being solvent, had a Right to prove a Sum of indemnify£22,000, which, if they had become insolvent, their As- ing the Banksignees would not have been permitted to prove, unless rupt's Estate the Debt had been fraudulently constituted (c). It was against contended that the Botfields had no such Right; first, as it would be in Competition with Creditors, to whom they were liable jointly with the Bankrupt: in Fact, with their own Creditors. Next, as it would prejudice the separate Creditors by an Interference with the Funds peculiarly applicable to them. I thought it hard that the Solvency of some of the Partners, should destroy the Equity which

(a) Ante, p. 41. (b) There was also an Objection upon the Ground of

Usury, which it is unneces

sary to detail.

(c) Ex parte Harris, 1 Vol. 437.

would

1814.

TAYLOR.

-In the

ELGAR.

would have existed, if all of them had become insolvent. And further, that exclusively of the Circumstances of Ex parte Fraud, which distinguished that Case from the present, it was impossible to say there was not at the BankMatter of ruptcy a State of Affairs which rendered the Botfields the Creditors of Slaney. They paid the joint Creditors. There was an End of the Objection that the Proof would be in Conflict with them. It is true, the Payment was made subsequently to the Bankruptcy: But it was in Effect an Annihilation of the joint Creditors, as before the Bankruptcy, of Claims which existed at the Dissolution of the Partnership by the Bankruptcy; and if the Botfields had in Fact paid this before the Bankruptcy, they would have had an equitable Right to Reimbursement, and the Propriety of the Proof would have been indisputable. Looking at it therefore independently of the Statute (a), and merely as a Claim which could have been established by a Bill in Equity, I thought the Botfields were entitled to the Relief which they prayed: it constituted an equitable Debt: and the Proof of equitable Debts are admissible in Bankruptcy.

Here all the Partnership Creditors being satisfied, the Petitioner is entitled to the Order.

(a) 49 Geo. III. c. 121. s. 8. within which it was argued that a Partner was to be con

See the next Case.

sidered, if not as "a Surety," yet as a " Person liable."

Ex parte OGILVY.-In the Matter of WILSON (a).

UP

LINCOLN'S

INN HALL.
August,

1814.

PON the Dissolution of the Partnership between Vide the Ogilvy and Wilson, in 1812, the Stock, &c. were marginal Abassigned to Wilson; he covenanting to pay the Debts, stract of the and to indemnify Ogilvy.

Wilson became bankrupt: the joint Creditors resorted to Ogilvy, who paid some of them; and the Claims of others were still depending. He prayed by the present Petition, to be at Liberty to prove what he had paid, or might pay.

Sir Samuel Romilly and Mr. Cooke in Support of the Petition.

Mr. Hart and Mr. Montagu, contra.

The Lord CHANCELLOR

Was of Opinion, that, upon indemnifying Wilson's Estate against the joint Debts, the Petitioner was entitled to prove and made the Order accordingly.

See the preceding Case.

(a) 3 Ves. & Beames, 133. s. c.

preceding Case.

VOL. II.

N

CARSTAIRS

1815.

Hilary
Term.

In an Issue,

and in an

Action directed by the Court, the Practice

varies.

In the first the Motion

for a new Trial must be made to the Court directing it;

in the se

UPON

CARSTAIRS v. STEIN.

PON a Petition presented in the Bankruptcy of Stein, the Lord Chancellor directed that an Action should be brought against Stein in the Court of King's Bench; he not to set up his Bankruptcy; the Plaintiff and Defendant to be examined; and Books and Papers to be produced. The Action was accordingly tried.

The Attorney General (a) appeared in Court to move for a new Trial: previously to opening the Circumstances of the Case, he stated a Difficulty which had occurred as to the Court in which the Application ought to be made. The Motion, it was true, was founded, not upon an Issue directed by his Lordship, but upon an Action; accompanied however by such particular Directions, as gave it in a very considerable Degree, the Character of an Issue. The Defendant, without such Directions, was incompetent to sue, or be sued: and a Mode of conNor is this ducting the Action, both as the Exclusion of a particular Defence, and the Admission of particular Evidence, was provided for.

cond, to that
in which it
is tried.

Rule affect

ed by any special Pro

visions by which the

Direction of

accompanied.

The Lord CHANCELLOR

Said, there was no such Distinction: the Line was the Action is clearly drawn between an Issue and an Action. In the first Case, the Application must be made to the Court by which it was directed: in the second, to that in which the Action is brought. The Court, in the Exercise of its Jurisdiction in Bankruptcy, for Convenience, and in Aid of Justice, provides by special Directions, for a satisfactory Result from the Action; and exacts that

(a) Sir William Garrow.

Information