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as to part of it by the joint security of the firm as sureties, the creditor may prove so much of the debt as is joint against the joint estate, and the residue against the separate estate of the debtor. As where A., on his marriage, covenanted to pay £4000 to the trustees of the settlement, of which £3000 was guaranteed by A.'s firm, and entered in the books accordingly, on the bankruptcy of the firm, it was held, that the trustees might prove for £3000 against the joint estate, and £1000 against the separate estate of A. (a).
Where a joint and separate creditor elects to go against the joint estate, he has no preference over the other joint creditors, upon the surplus of the separate estate (6).
Of the Time of Election, and Waiver of Proof.
In Ex parte Bond (c), Lord Hardwicke ordered, that the petitioners, who were joint and several bond creditors of the bankrupts, should have time to look into the accounts of the bankrupts' joint and separate estates, and see which would be most beneficial for them to come upon in the first place. And it has been determined that the party is entitled to defer his election until a dividend has been declared (d); or at least until the assignees are possessed of a fund to make a dividend (e). Lord Thurlow observed—“It is said to be the constant course,
for joint and separate creditor to prove against both estates, and to elect at the dividend (S)."
In two early cases a creditor, who had received a dividend under the joint estate, was allowed to refund and claim under the separate estate; but when these cases were decided, the
(a) Ex parte Hill, 3 Mont. & A. 175; 2 Dea. 249.
See Ex parte
(6) Ex parte Bevan, 10 Ves. 107.
261; Ex parte Husband, 2 Glyn & Jam. 4.
(e) Ex parte Butlin, Co. B. L. 259.
(f) Ex parte Bentley, 2 Cox, 218.
law as to election of proof was scarcely settled (a). Under particular circumstances, however, a waiver of proof will be allowed at this time of day (6); and that, although the party wishing to waive his proof, has received dividends under it. Thus, if the party has not had the means of knowing the state of the funds as between which he is allowed an election of proof, under such circumstances, even though he may have received dividends from one fund, he will sometimes upon refunding be permitted to prove against the other. No person, said Lord Alvanley, can be put to elect without a clear knowledge of both funds (c).
In Ex parte Bolton (d), joint creditors of A. and B., partners, sued out a separate commission against each. Under the commission against A., they proved against the joint estate, and received a dividend. Afterwards, under the commission against B., they proved their debt, and claimed to receive dividends against B.'s separate estate, offering to refund the dividend already received, with interest; with an affidavit, that when they received that dividend they were ignorant of their right to prove, if they thought fit, as the separate creditors of B. Lord Eldon allowed their claim. “No determination,” said his Lordship, "approaches a case like the present. Here are two separate commissions at the instance of the same creditor. If it were the case of one separate commission thus awarded, the creditor might say, I will take my debt out of either the joint or the separate estate; but, to get at the joint estate, there must be a special order of the Chancellor. The joint property is, therefore, reached but by circuity; and being thus looked at, if the creditor says, I will rank under the commission as against the joint estate, and so ranking receives a dividend, say to the extent of fifteen shillings in the pound, he still remains the creditor of the solvent partner as to the five, and for that he may bring his action, or he may take out a commission; and taking out a commission, until he completely knows, and which until then he only indirectly knows, the state of the joint accounts under that commission, he cannot be said deliberately
(a) Er parte Rowlandson, 2 P. W. 405; Ex parte Bond, 1 Atk. 98.
(6) Ex parte Masson, 1 Rose, 159.
(c) Whistler v. Webster, 2 Ves.
371. See Wake v. Wake, 1 Ves. 335.
(d) 2 Rose, 389; Ex parte Swanzy, Buck, 7.
to have elected. I think, therefore, he is entitled to reconsider his mode of proof: and, refunding the joint dividend with the interest, let the proof stand against the separate estate.”
The case of Ex parte Bolton has been recently followed in Ex parte Law (a), in which it was held, that the receipt of a dividend from the separate estate of one of the bankrupts did not exclude the creditor from receiving a dividend from the joint estate, he being ignorant at the time of proof that he had no right to prove against both estates.
But waiver of proof is not to be allowed, where it will disarrange the proceedings which have already taken place in the bankruptcy. On a petition for this purpose, by persons who had proved as joint creditors, and wished to prove against the separate estates of the bankrupts, Lord Erskine made the order, but with the reservation that he would not allow any dividend of the separate estate already made, to be disturbed (6).
Similarly—where a creditor, seeking waiver of his proof, has signed the certificate of the bankrupt whose estate he declines, if the waiver would affect the certificate by reason of the great amount of the creditor's debt, or otherwise—then waiver will be refused. In Ex parte Borrodailes (c), the partnership of A., B., & C. had been dissolved by the retirement of A.; upon which event it was agreed that B. and C. should take upon themselves and pay the debts, and thenceforth be entitled to the stock and effects of the old partnership. After the dissolution, the business was continued by B. and C., who took possession of all the effects, and paid most of the debts of the old partnership ; and the petitioners continued to deal with them. Upon the bankruptcy of A., B., & C., the petitioners were advised to prove, and did prove, a debt of £6927 against the joint estate of A., B., & C., but they were not at that time aware that they could elect between the estate of A., B., & C., and the estate of B. & C. They signed the certificate of A., B., & C. The petitioners applied to withdraw their proof of £6927 made against the joint estate of A., B., & C., and that they might prove the same against the estate of B. & C. But Lord Eldon dismissed the petition with costs.
On the other hand, where the creditor had signed the certifi
(a) 3 Dea. 541. (6) Ex parte Beilby, 13 Ves. 70.
(c) 1 Mont. Partn. 129, App.
cate of the bankrupt from whose estate he wished to withdraw proof, but it appeared that he had a separate debt to a small amount, for which he was entitled to sign the certificate, and that the certificate was signed by creditors sufficient in value without his signature-under these circumstances, Lord Eldon permitted the creditor to alter his proof (a).
In the case just cited it was objected to the waiver of the proof, that the very next signature on the certificate after that of the petitioner was by the Bank of England for £16,000; and that as it was a general rule of the Bank not to sign unless the assignee signed, and the petitioner was an assignee, his signature must have influenced that of the Bank. Lord Eldon, however, seems not to have regarded this objection.
Nevertheless, the signature of a bankrupt’s certificate by an influential person must of necessity have considerable weight with other creditors. If, therefore, such person, after having signed the certificate, and having, by his example, induced others to sign, be permitted to waive his proof, it seems difficult to say that such a permission might not, in many cases, materially affect the interest of third persons. Now, it has been laid down by Sir John Leach, that where a creditor has done acts by virtue of his proof which may affect the interest of others, he cannot retract his proof. In the same case, his Honour held, that the petitioner's having signed the certificate, might, under the circumstances, have influenced others to sign, and was therefore an act affecting the interest of others; and, accordingly, he refused to allow waiver (6). It seems clear, therefore, that when a creditor has signed the bankrupt's certificate, and the fair presumption is that his signature has influenced that of others, he will not be permitted to waive his proof.
In one case, the being a party to a petition in the character of a joint creditor, was held to be an objection to waiver of proof. But Lord Eldon, on appeal, held the contrary (c).
(a) Ex parte Atkinson, 1 Mont. Partn. 207.
(6) Ex parte Solomon, 1 Glyn
& Jam. 25.
(c) Er parte Husband, 5 Madd. 421; 2 Glyn & Jam. 4.
of Double Remedy.
Althougu, generally, where a creditor holds the security of the firm, and likewise that of individuals composing the firm, he must, upon the bankruptcy of some of them, elect whether he will consider them his joint or his separate debtors, and proceed accordingly; yet this rule is not without exceptions. For, where a creditor holds the security of a firm, and also of some of its members, and the latter likewise form a distinct partnership inter se, there are cases where the creditor may have a double remedy. Thus, where A., B., C., and D. trade under the firm of A., B., & Co., and C. and D. are in a distinct partnership, and the firm of A., B., & Co. draw bills upon C. and D., who accept them, the holder of such bills may prove them under the bankruptcy of C. and D., and afterwards bring his action on the bills against A., B., & Co. (a). So, if a creditor of A. and B. take out a commission against A., and receive a dividend under that commission out of the joint estate, it has been ruled that he may bring an action against the other partner for the residue (6).
We have seen, also, that the mortgagee of a partnership, if he elects to prove under the bankruptcy, must give up his security, and prove the whole debt, or have the security sold, and prove for the amount of the difference (c). But, as the rule is, that the deduction of a security is never made in bankruptcy, except when it is the property of the bankrupt, it has been held as a consequence of this rule, that, in the case of a separate mortgage made for a joint debt, the security may be retained, though the whole debt be proved under the commission. In Ex parte Parr (d), the petitioners were holders of
(a) Ex parte Parr, 1 Rose, 76.
(6) Heath v. Hall, 4 Taunt. 326; Young v. Hunter, 16 East, 258.
(c) Ante, p. 633.
(a) 1 Rose, 76. Generally speaking, in the administration of the bankrupt laws, A., a trader, and A.
and B. joint traders, are considered as much distinct as A. and X. This appears not only from the cases mentioned in the present section, but from Ex parte Chuck, ante, p. 600, from which it seems clear, that A. may be reputed owner of pro