to come to a more special and particular Issue upon Matters which he is entitled to give in Evidence, under that general Plea; and also for that the Replication is pleaded, and concludes in Maintenance of this Action generally; whereas, if the Matters alleged be true, the Plaintiffs are not upon the Pleadings herein entitled to Judgment against the Defendant, except in Respect of his Estate and Effects, according to the Form of the Statute, &c. Joinder. And the Court, without hearing any Argument in Support of the Demurrer, were of Opinion that upon both Causes assigned, the Replication was ill; 1st, because it prayed Judgment generally, instead of being confined to the future Estate and Effects of the Bankrupt; 2dly, because a Replication, concluding with a Verification, could not be pleaded in Reply to a Plea concluding to the Country. And in Answer to Campbell, who said that, in Thornton v. Dallas (a), precisely the same Replication was pleaded, Dampier, J. observed that it had been otherwise decided many Times, although in Thornton v. Dallas no Objection was made upon that Ground. (a) Doug. 46. 1814. WILSON and Another against KEMP. MILLS, Assignee of E. CHAMBERS, H. C. GRANGER, and R. T 2 Maule and Selwyn, 556 to 558. HE Plaintiff sued as Assignee under a joint Commission against the three. No Notice having been given that the Defendant intended to dispute the Proceedings under the Commission, the Deposition made before the Commissioners was put in and read, which stated that the three Bankrupts carried on a Banking Concern, under the Firm of Chambers, Granger and Chambers, at Collumpton; that on or about the 29th May 1812, they absented themselves from the Banking-house in Collumpton, shut up the same, and stopped Payment, for the Purpose of avoiding and delaying their Creditors. It was proved however, that E. Chambers was the only Partner who resided at Collumpton, and transacted Wednesday, May 18, 1814. Where one of three Partners in a Banking Concern, who resided at the Place where the Banking-house was, and was the only Partner who siness, the other two residing at a Distance from it, absented himself transacted the Bu from the Bankinghouse, shut it up, and stopped Pay ment: Held that this was not Evidence of a joint Act of Bankruptcy by all three. the 1814. - MILLS, Assignee of E. CHAMBERS, H. C. GRANGER, and R. CHAM BERS, Jun. (Bank rupts) against BENNETT. the Business there; the other two residing, one in London, and the other at a considerable Distance from Collumpton. The learned Judge (a) doubted upon this Evidence, whether it amounted to Proof of an Act of Bankruptcy by all the three: but he permitted the Plaintiff to take a Verdict, with Liberty to the Defendant to move for a Nonsuit. Accordingly a Rule Nisi was obtained in this Term for that Purpose. Gifford (with Lens, Serjt.) now shewed Cause, and submitted that where no Notice is given, the Proceedings must be taken as conclusive against the Party of the Act of Bankruptcy therein alleged. But, 2dly, the Evidence here did not disprove its being a joint Act of Bankruptcy by all the three Partners. The Stat. 1 Jac. 1. c. 15. does not require that the Party should absent himself from his Dwelling-house; it says "otherwise absent himself:" and, therefore, if Partners, having a known Place of Trade for carrying on their Concerns, shut it up for the Purpose of delaying their Creditors, it is within the Meaning of this Clause, though they do not depart from their Dwellings—Judine v. Da Cossen (b). Gaselee contra, denied that the shutting up of the Counting-house, by one of the several Partners, was an Act of Bankruptcy by all. The Court agreed that there was not sufficient Evidence of a joint Act of Bankruptcy, by all the three Partners. Upon the other Point Lord Ellenborough, C. J. said it had been decided that the Proceedings were not conclusive (c); and Bayley, J. observed that the 49 Geo. III. c. 121. s. 10. only enacts that the Proceedings under the Commission shall be Evidence to be received of the Trading and Bankruptcy, but, like all other Evidence, it is liable to be controverted; and Dampier, J. added, that at first he had been inclined to think that the Act meant to make the Proceedings conclusive; but, on looking into the Act, he found it was otherwise. Rule absolute. (a) Bazley, J. (b) 1 N. R. 234. (c) See Ellis v. Shirley, 3 Camp. N. P. C. 424. HEATH THIS HEATH and OTHERS v. HALL and PORTER. 4 Taunton's Reports in C. B. 326. 329. HIS was an Action brought by the Plaintiffs to recover Money which they had `paid to the Defendant Porter, to be employed in his Trade; and for which they contended that both the Defendants were liable, because there had been a secret Partnership between them. Porter pleaded Bankruptcy and Certificate; whereupon the Plaintiffs entered a nolle prosequi against him, and proceeded against the Defendant Hall, who pleaded the general Issue. Verdict for the Plaintiffs. Vaughan, Serjeant, moved to set it aside, upon the Ground that the Chief Justice (a) had received the Evidence of Spriggins, an Agent of the Plaintiff's, through whose Hands the Money was advanced to the Defendants; and the Objection to his Competency was, that he was a Creditor of the Defendants, and the Effect of the Evidence would be to make Hall liable to all the Debts of Porter, and thereby to increase the Fund for Payment of his own Debt. The Answer given to this Objection was, that the Plaintiffs had purchased of Spriggins the Debt due to him from the Defendants, for 10s. in the Pound: but no Assignment had been executed by Spriggins; it had only passed by Parol: but the Plaintiffs had given Spriggins Credit for that Amount, in the Account which he kept with them. It was urged, for the Defendants, that this did not divest the Witness of his Interest, for that this Agreement was not binding. The second Ground was, that the Plaintiffs had proved their Debt under the Commission against Porter: that, in the Affidavit they made on that Occasion, they must necessarily have sworn, with a Knowledge of the Partnership, that the Debt was due to them from the Defendant Porter alone, and not from Porter and Heath; for they could not prove a joint Debt against the Effects of Porter only. They had therefore made their Election to proceed under the Bankruptcy for this, as a separate, and not as a joint Debt; the Defendants being protected by the Statute 49 Geo. III. c. 121. s. 14.; and that they were estopped from now proving it to be otherwise. MANSFIELD, C. J.-If two Men agree for the Sale of a Debt, and one of them gives the other Credit in his Books for the Price, that may be (a) Mansfield, C. J. a very 1812. HEATH and and PORTER. a very good Assignment in Equity; its resting in Parol is no Objection: even a Deed could not assign it at Law. If there had been an Others v. HALL Assignment by Deed, the Assignor must sue at Law; but he would, notwithstanding, be a good Witness in this Suit. Could it be said that a mere naked legal Trustee for the Plaintiffs, without an Interest, was not a competent Witness? As to the other Point, the Plaintiffs are entitled to prove their joint Debt against Porter's Estate, although they cannot receive a Dividend until Porter's separate Debts are fully paid. Is it meant to be insisted that any Act has passed, so monstrously unjust and absurd, that, where a joint Debt is due from two Partners, and a Commission issues against one of them, the Creditor cannot prove his Debt under the Commission, and also sue the other Partner? The Practice of the Court of Chancery has varied much within my Memory: it used to be that a joint Creditor might, under a separate Commission, prove and receive a Dividend: but now he cannot proceed to receive a Dividend: unless there is a Surplus he can only prove his Debt. A Rule was granted on the first Point alone, which was afterwards by the Court discharged without Argument. May 31, 1813. To enable the Holder of a Bank rupt's Acceptances to avail himself of them, in an Action by the Assignees OUGHTERLONY and OTHERS, Assignees of GAIRDNERS, THE 4 Taunton, 888. 893. THE Plaintiffs declared on a Bill, dated the 2d June 1810, drawn by the Defendants at Newcastle-upon-Tyne, upon Messrs. Puller, London, at seventy Days' Date, for £336: 7s. : 10d., payable to the Defendants' Order, accepted by the Drawees, and indorsed. The Defendants gave Notice of a Set-off for £406 : 7s. upon a Bill of that against himself, on Amount, dated 14th May 1810, drawn by À. Gairdner and Co. (the Style of Bankrupts' House at Edinburgh) in their own Favour, at four Months after Date, accepted by the Bankrupts, and indorsed by the Drawers to the Defendants: and upon another Bill for £299 : 10s: Sd., dated 29th July 1810, drawn by A. Gairdner and Co. upon and accepted by the Bankrupts, payable three Months after to the Drawers' Order, and by them indorsed to the Defendants: and also for Interest, Money lent, &c., being Monies and Effects which the his own Accept ance, by Way either of Set-off or mutual Credit, he must most distinctly prove ei ther that the Obli gation on himself Defendants 1813. - and Others, Assignees of GAIRD. NERS, Bankrupts, v. EASTERLY and Others. Defendants had delivered to the Holders of those two Bills for the Purpose of taking them up, with Interest and Costs, in Consequence OUGHTERLONY of the Bills being dishonoured by the Bankrupts: also in respect of a Bill of 12th June, 1810, for £406 : 12s., drawn by the Defendants on, and accepted by C. and R. Puller, at three Months after Date, payable to the Defendants' Order, and by them indorsed and delivered to Atkinson and Co., and by them to the Bankrupts, and by them to the British Linen Company, in whose Hands the Defendants paid the same, with Interest and Costs thereon; which last-mentioned Bill was given by the Defendants, or by Atkinson and Co., for them, in Exchange for the above first-mentioned Bill of £406: 7s.: and also in respect of another Bill for £300, dated 24th July, 1810, drawn by the Defendants upon, and accepted by C. and R. Puller, payable three Months after Date to the Defendants' Order, and by them indorsed and delivered to Atkinson and Co., and by Atkinson and Co. to the Bankrupts, and by them to Powell, in whose Hands the Defendants paid the same: which Bill for £300 was given by the Defendants, or by Atkinson and Co., for them, in Exchange for the above-mentioned Bill of £299: 10: 8. Upon the Trial it was proved that the Plaintiffs and Defendants had been in the Practice of assisting each other by mutual Acceptances that the Defendants had accepted the Bill, upon which this Action was brought, for the Accommodation of the Bankrupts, who had accepted a Bill at the same Time, of the like Amount, for the Accommodation of the Defendants, each Party engaging to provide for the Payment of their own respective Acceptances. When the Bills became due, the Defendants failing to pay their Acceptance, the Bankrupts paid both, so that nothing was due from the Bankrupts to the Defendants on this Transaction The Defendants offered in Evidence under the Set-off, the Bills upon which they had given Notice of Set-off, accepted by the Bankrupts, and overdue, and unpaid by the Acceptors; but they did not know upon what Consideration the Bankrupts accepted them, nor at what Time or upon what Consideration those Bills had come to the Defendants' Hands, nor that the Defendants' Names were on them, nor that there was any original Connection between the Defendants and these Bills; and it was clear that the Bills were, in their original Concoction, in no wise connected with the Bill on which the Action was brought, and that the Bills were not in the Defendants' Hands at the Time of the Bankruptcy of Gairdners. Lens Serjeant, for the Defendants, abandoned his Claim of Set-off; but contended that these Bills constituted a mutual Credit, under Stat. 5 G. II. c. 30. s. 38. The Jury, however, under the Direction of Mansfield, C. J. found a Verdict for the Plaintiffs. VOL. II. T Lens, |