1811. MASTERMAN, Ex parte. The Lord CHANCELLOR. This seems to me precisely the State of Facts, to which Lord Thurlow's intended Order was to be applied. I will make no Order on Practice of strik- this Application. If you are entitled, under your Interpretation of that Order, to the Commission, you do not want my Leave: if you are not so entitled, I will not give you Leave: as I do not approve this Use of a Commission of Bankruptcy, to grind an unfortunate Man; and will give no Assistance to such a Purpose. ing a Docket, for the Purpose, not of a Commission of Bankruptcy, but of compelling a Com position, disapproved, and not aided. 1811. Nov. 9. LANGDALE, Ex parte. 18 Vesey, Page 300 to 301. Partnership by THE Bankrupt had kept a Canteen in the Neighbourhood of some Agreement, for a Partnership without Participation of Profit, by lending his Name, though contracting that he shall suffer no Loss. Barracks, and the Question upon the Petition of the Assignees was, whether the Brewers who supplied him with Beer were to be considered as Partners. According to their Representation, they were to pay half his Rent, supplying him with Beer at £4, 5s. per Barrel, the usual Price being £3. 8s. The Bankrupt's Account of Agreement was, that the Brewers were to have out of the Profits 17s. per Barrel for the Half of the Rent; the Bankrupt taking the Rest, of which 5s. was for drawing the Beer, and 1s. for collecting the Money. The Lord CHANCELLOR. A Man who is to have no Profit may be a Partner, if holding himself out as such, as by lending his Name. He may also be a Partner, when the Contract is that he shall suffer no Loss; and it is not the less a Partnership, because Part of the Contract is, that they are not to suffer by bad Debts, the personal Negligence of him who has the Custody of the Article, by Fire, &c. The true Criterion is, whether they are to participate in Profit. That has been the Question ever since the Case of Groves v. Smith. I cannot refuse to let this Case go to a Jury. The Agreement to sell their Beer to him at a higher Price than to others, would not make them Partners: but the Bankrupt's Representation is so different that it is impossible to determine without the Decision of a Jury upon the Question, whether this was an Agreement for a Divi sion of the Profits, or the Brewers stood only in the Relation of Venders of the Beer to this Retailer, at £4. 5s. per Barrel, in Consideration of paying half his Rent, selling to others at £3. 8s. If the actual Contract gave a Claim upon the Profits or the Application of them, that is Partnership: if there was no Claim upon the Profits, or the Application of the Profits, then it is no Partnership. An Issue was directed. 1811. LANGDALE, Jos WILKINSON v. WILKINSON. Cooper's Cases, 259, 261. ROLLS. June 6, 1815. Bankruptcy not a Forfeiture under a Clause in a Will, OSHUA Wilkinson by his Will, gave an Annuity of £500 to his Wife, and also gave Annuities of £50 a Year to each of his Daughters, and the remaining Rents and Profits of his leasehold against Alienation. Premises to his Son John Henry Wilkinson, and also a Provision to his other Son William Wilkinson: and then followed this Clause: " Pre"vided always that the Annuity of £500 before given to my said dear "Wife for her Life; and the Provision I have made for my said Daugh"ters for their respective Use; and the Estates given to my said Son, "for their Lives, is, and are upon this express Condition, that in Case "they my said Wife, Sons, and Daughters, shall respectively assign or "dispose of, or otherwise charge or incumber the Life Estates, "Annuities and Provisions so made to and for them, during their re"spective Lives as aforesaid, so as not to be entitled to the personal "Receipt, Use, and Enjoyment thereof, then and from thenceforth "the Annuity, or Life Estate or Interest of him, her, or them re"spectively so doing or attempting so to do, shall from thenceforth (6 cease, determine, and be void to all Intents and Purposes whatsoever, and shall immediately thereupon descend to and devolve 16 upon the Person or Persons who shall be next entitled thereto, by "Virtue of the Limitation aforesaid, in such Manner as the same "would have done, in Case he, she, or they, was or were then re"spectively actually dead, any Thing herein contained to the contrary notwithstanding." 66 The Master of the ROLLS. The Question is, whether the Testator has expressed an Intention of 1815. WILKINSON V. WILKINSON. of taking away the Life Estate which he had given to his Son, upon the Bankruptcy of that Son. Now Courts of Law have held (a), that an Assignment by Operation of Law, which Bankruptcy is, is not an Alienation, within the Meaning of a Restraint against Alienation. If so, the Testator's Son has not alienated, so as to forfeit his Estate under the Will. As to the Testator having intended a personal Enjoyment by his Son only of this Property, he probably did so; but he has not expressed himself in such a Manner upon that Subject, as that I am prepared to say his Interest ceased by what has taken Place. (a) Brandon v. Robinson, 1 Vol. 198. 57. Dommet v. Bedford, 66 T. R. 684. Doe on Demise of Nicholson v. Carter, 8 T. R. Shee v. Hale, 13 Ves. 404. No Authority in Bankruptcy, on ble Mortgagee, by to order Sale of the Estate, where there is a subsequent Mortgagee of the Equity of Redemption, who .objects, and has not proved under the Commission, the proper Remedy being by Bill, Ex parte TOPHAM. Maddock's Reports of Cases in the Vice-Chancellor's Court. Vol. 1. THIS Page 38. was a Petition for the usual Order for Sale, on Behalf of an equitable Mortgagce, and that he might come in under the Commission for the Deficiency. The Deposit was made in January, 1812. Afterwards the Bankrupt agreed to sell the Estate to a Mr. Ward; received the Purchase Money, and let Mr. Ward into Possession; but did not execute a Conveyance. Mr. Horne opposed it on Behalf of Ward, who refused to consent to a Sale, and had not proved under the Commission. The VICE-CHANCELLOR. This is a proper Case for a Bill. Even in the Case of a legal Mortgage, the Commissioners are not authorized to order a Sale, unless the Bankrupt has the Equity of Redemption. Vide ex parte Jackson, 5 Ves. 357. 2 Vol. Christian's Bankrupt Law, 323, 324 Ex parte 44 AN Ex parte BURT. 1 Maddock, 46, 48. N Order for an Inquiry before Commissioners to try whether a Debt proved was usurious, merely on a Deposition of the Bankrupt as to the Usury refused. Vide ex parte Campbell in the Matter of Bromer, ante 51. JA Ex parte ALDERSON and ANOTHER. 1 Maddock, 53. 55. ANE Row became indebted to the Petitioners in 5251.; and being a Creditor of the Estate of John Fish deceased, gave them a Draft on the Executor as follows: Please pay Messrs. G. and T. Alderson, or Order, four Hundred and seventeen Pounds, six Shillings, as Part of the Amount due to me for Plumbers' Work done for the late John Fish, Esq. Jane Row. The Petitioners presented the Draft to the Executor; but he, not being prepared with Assets, did not accept it, but retained it to be paid when there should be Funds. The VICE-CHANCELLOR. This is a good equitable Assignment: the Executor bound himself to pay when in Possession of Assets (a). (a) Yeate v. Groves, 1 Ves. jun. 280. 1815. 14th August. A Draft on the Executor of a Creditor, which the Executor promised to discharge on his receiving Assets, is in Bankruptcy. Ex parte 4417 1815. - 15th August. Where Ship sailed with Ballast from London to Jamaica, and was sold on her Voyage there, and afterwards sailed from Jamaica to London, with Goods shipped on a Contract with the Owners of the Ship, at the Time of the shipping, the Creditors of quondam Owners have no Lien on the Freight due, in Respect of the Voyage from Ja maica. IN Ex parte HILL. 1 Maddocks, 61 to 67. January 1811, Messrs. Oliver and Townsend, Mr. J. Jones, and Mr. R. Marks, were joint Owners of the Ship Louisa. It was agreed between them that the Ship should proceed to the West Indies, in Order to bring a Cargo or Freight back; and accordingly, the Ship sailed with Jones as Master. Previous to the sailing of the Ship, the Petitioners Hill and Sons repaired the same, and their Bill amounted to £327 15s. 5d. The Petitioner Thomas Carlens made several Insurances on the Ship for the Voyage, on the joint Account of the Owners, and several Persons furnished Stores and Provisions for the Outfit. During the Absence of the Ship on her Voyage, Oliver, Townsend, and Marks agreed with James Croft to sell to him twelve Sixteenths of the Ship; and a Bill of Sale was executed, dated 23d January, 1812, and the Transfer was completed on the Register on the 27th June, 1812. Oliver and Townsend were declared Bankrupts. The Ship arrived at Jamaica later than was expected; and the Cargo which was intended for her was delivered to another Ship; but the Persons to whom the Ship had been sent proposed to John Jones, that if he would go on a Voyage with the Ship to New Brunswick and back on Freight, they would provide a Cargo for the Ship, on Freight, from Jamaica to London. The Ship accordingly sailed to New Brunswick and back, and then the Ship, with the Cargo provided for it, returned to London in June 1812, and remained in the Hands of John Jones on Account of Freight earned, amounting to £1451 8s. 4d. John Jones had since become bankrupt. The Petitioners submitted they were entitled to have the said Sum of £1451 Ss. 4d. applied towards the Discharge of their Debts. Sir Samuel Romilly and Mr. Bell for the Petition. Oliver and Co. though they might sell the Ship whilst on its Voyage, could not transfer the Profits arising from the Freight which she was earning, so as to disappoint these Creditors. The present Owners not being Owners when the Ship was fitted out, the Creditors can have no Claim on them. There was certainly (a) no Lien on the Ship; but the Register Acts do not affect this Point. Mr. Hart and Mr. Cullen against the Petition. (a) Ex parte Harrison, ante 78. Ex parte Young, ibid, in Notes. The |