1815.

28th July.

The Com

mission and

THIS

WHITWORTH v. GRAHAM.

HIS was a Bill filed against the Defendants, as Assignees of Davis a Bankrupt. The Defendants Proceedings admitted the Bankruptcy; but disputed the Validity of a are inadmis- Conveyance under which the Plaintiffs claimed, upon the Ground that it had been executed subsequently to the Act of Bankruptcy. As Evidence of this, they tendered the Proceedings. The Question was, whether within the 49 Geo. III. c. 121. s. 10. the Proceedings were admisthe Purpose sible Evidence to sustain this Objection.

sible Evidence of an

Act of Bank

ruptcy, for

of defeating

a Convey

ance.

Mr. Meggison for the Plaintiff.

Mr. Owen for the Defendant (a).

The Vice-CHANCELLOR.

Before the 49 Geo. III. the Validity of the Commission must have been established by Proof of the requisite Circumstances, although there was no Intention to dispute them, and the Party was not unfrequently defeated upon the formal Defect of his Evidence. To remove this Mischief, by dispensing with the Necessity of the Proof when the Commission was not in issue, was the Object of the Legislature. The Bankruptcy-that is, the Matter of the Bankruptcy, not the particular Act of Bankruptcy, is that alone which the Commission and the Proceedings under it, are to establish. To admit them not to sustain the Title under the Commission, but incidentally to invalidate the Rights of Strangers, would produce the grossest

(a) Simmonds v. Knight, 1 Vol. 358. Ellis v. Shirley,

ante, 143. Humphries v. Coggan, 1 Vol. 226.

Injustice,

Injustice, in affecting the Interest of a Party by Evidence, of which, till the Moment it is produced, he is in ignorance, and which has been taken without any Opportunity of its being met either by direct or by cross Exa

mination.

1815.

WHIT

WORTH

GRAHAM.

THE

LOWNDES v. TAYLOR.

1816. March 22d.

HE Bill alleged, that Taylor had commenced, and A Bankrupt was prosecuting an Action against Lowndes, to may file a recover a Sum of Money; although, if the Accounts Bill for an arising out of certain joint Dealings and Transactions Account and were taken between them, a Balance of £136 would be an Injuncfound to be due to the latter. The Bill prayed a Discovery, an Account, and Payment of the Balance with the usual Submission, an Injunction, and general Relief.

Plea-the Bankruptcy of Lowndes.

Mr. Bell, in Support of the Bill, contended, that although a Plea for Want of the Assignees as Parties might have been admissible, yet that this of Bankruptcy, as a Plea in Bar, went further than the Case made by the Bill authorized.

Mr. Horne. This is not a Bill for Discovery merely, but for Relief: and Relief by Suit, the Plaintiff, as Bankrupt, is incompetent to seek. The Accounts, if taken in this Suit, will not bind the Assignees. They may at any Time file their Bill to have the same Ac

counts

tion, without making his Assignees Parties

to the Suit,

counts taken again. The Plea is good as to the Relief, and, as such, is good as to the Discovery.

The Vice-CHANCELLOR.

It is admitted, that if this were merely a Bill for Discovery, the Plea would be untenable. The only Question therefore is, whether a Bankrupt is entitled to Relief of this Nature, in a Suit to which his Assignees have not been made Parties. In the Course of the Argument, I intimated an Opinion that he might: and the Perusal of the Bill, and the further Consideration of the Subject, confirms that Intimation. A Court of Equity is the proper Jurisdiction for taking these Accounts: nor is it by any Means clear, that these Demands, arising out of partnership Transactions, could be adjusted in the Action at Law as a Set-off. Ought then the Plaintiff in the mean Time to be harassed with Proceedings at Law, in which the Merits of the Dispute between the Parties cannot be adequately adjusted? Although perhaps the Bill goes too far in praying that the Balance of the Account may be paid to the Plaintiff, yet in Substance the Equity ought to be sustained; and therefore let the Plea be over-ruled.

1516. 22d July.

Assignees ordered to apply the

Proceeds of one Bill of

Exchange,

Ex parte PEYRON.-In the Matter of RAMSAY and FOSTER.

EYRON was employed as the Agent of Ramsay and Foster, to purchase Hemp at St. Petersburgh on their Account. The Purchases, which in the Course of this Agency he had from Time to Time occasion to make, were more or less advantageous to his Employers,

in Satisfaction of another, upon Circumstances of specific Appropriation, or Substitution.

according

according to the Rate of Exchange between London and St. Petersburgh.

In May 1815, the Exchange happened to be more favourable to this Country than it had previously been, or was expected to continue. Peyron, to avail himself of it, but without any specific Directions to that Effect, drew a Bill of Exchange on Ramsay and Foster, dated the 28th of May, 1815, for the Sum of £1000, payable at Three Months, to the Order of Gustaf Sterkey. Sterkey cashed this Bill, and retained the Funds in his Hands to the Credit of Peyron, as a Fund applicable to the Purposes of purchasing Hemp for Ramsay and Foster, when an Opportunity should offer.

No Opportunity offered, and Peyron determined to withdraw the £1000 from Sterkey, aud remit it to Ramsay and Foster, to meet his Draft on them; and he áccordingly transferred £1000 from Sterkey to Messrs. Severins, of St. Petersburgh, who were the general Correspondents of Messrs. Ramsay and Foster there. And, on the 25th of July, Messrs. Severins remitted a Bill of Exchange, at Three Months, drawn by Messrs. Platzman and Gopler, of St. Petersburgh, on Messrs. Busk and Co., of London, for £1000 (a), payable to the Order of Messrs. Ramsay and Foster."

Ramsay and Foster became Bankrupts before the Bills reached this Country. The Bill on Busk, Ord, and Co., came to the Hands of their Assignees, and they received the Amount of it. The Bill drawn by Peyron on Ramsay and Foster was dishonoured.

(a) It did not appear in was arranged in these Transwhat Manner the Difference actions.

of Exchange and of Discount

1816.

Ex parte

PEYRON.

-In the Matter of RAMSAY

and FOSTER.

The

1816.

The Petition prayed that the Assignees might be ordered to apply the Proceeds of the Bill on Busk, Ord, Ex parte and Co., in Satisfaction of the Bill drawn by Peyron on Ramsay and Foster.

PEYRON.

-In the

Matter of RAMSAY and

FOSTER.

1816.

2d March. Petition amended,

paying the Costs of the

Day.

The Case for the Petitioner was put on the Ground of the Bill on Busk, Ord, and Co., being in Substance and Effect the Bill on Ramsay and Foster: as a specific Substitution for it :-upon the Fact that the Petitioner had acted merely for the Accommodation and Convenience of Ramsay and Foster:-upon the Hardship and Injustice of his being obliged to pay, and the Bankrupt's Estate being allowed to receive £1000 without any Consideration whatever:-upon the Analogy to short Bills, and upon the Cases of Hassel v. Smithers, 12 Ves. 119. and Taylor v. Plumer, in the Appendix.

Upon the other Hand it was urged, that the 1000 had become Part of the general Estate of the Bankrupt: that this was not a Case of specific Appropriation: that if the Money might possibly be recovered in an Action at Law, yet the Petitioner was a Stranger to the Commission, and was not entitled to make an Application in the Bankruptcy.

The last Objection was answered by the established Practice in Cases of short Bills. That the Petitioner, by presenting the Petition, brought himself within the Jurisdiction, and the Assignees were always amenable.

The Vice-CHANCELLOR

Made the Order. The Assignees to have their Costs from the Petitioner.

The Petition was originally presented in the Name of Rew, who was the constituted Agent of Peyron, in Lon

don, the latter being resident in St. Petersburgh. It was

objected