페이지 이미지
PDF
ePub

whose names appear upon it to be all members of one joint firm (a).

Upon the whole, it seems still open to contend, that where a bill is drawn by some of the partners upon the others, or upon the whole firm, or vice versa, and the bill purports, and the fact is, that the drawers and acceptors likewise constitute distinct firms respectively, in such case, the holder, whether ig, norant or not of the aggregate connexion of the parties, is entitled to pursue the contract appearing on the face of the bill, and to prove against both the estate of the drawers and that of the acceptors.

II. But a creditor cannot be permitted to avail himself of double proof, to the extent of proving against the joint and separate estate of the same individual. Thus, A., carrying on business on his separate account, and also in partnership with B., gave a bill of exchange drawn by himself, payable to the order of A. and B., and indorsed by them. A separate commission issued against A.; B. died. The holder of the bills, having proved them against the separate estate of A., and having afterwards learnt that distinct accounts were to be kept of the estates of A. and B., applied to be at liberty to prove against the joint estate of A. and B., in addition to his proof against the separate estate of A. But Lord Eldon only gave him the election either to retain his present proof, or to withdraw it, and prove against the joint estate (b).

So, in Ex parte Liddel (c), A., B., and C. carried on business in partnership, under the firm of A. & Co. K., in ignorance that C. was in the firm, took from them a bill of A. & Co., drawn upon and accepted by C. A. & Co. having become bankrupts, and B. being a minor, separate commissions issued against A. and C. Under each of these commissions, K. proved as a joint creditor, and received a dividend out of the joint effects. He was then permitted by the Commissioners to prove against C.'s separate estate, in respect of the acceptance. But upon a petition by the assignees of C. praying that this proof might be expunged, Lord Eldon ordered according to the prayer, observing, that the creditor had made a conclusive election;

(a) 2 Deac. 261.

(6) Ex parte Masson, 1 Rose, 159. (c) 2 Rose, 34.

رو

that, having adopted the aggregate liability of all his debtors, he was excluded from resorting to them individually.

Again, in a case (a) where A., B., and C., partners, indorsed a bill over to C., who was also a distinct trader; upon their bankruptcy, Lord Eldon refused to allow the Bank of England, who had discounted the bill, to prove against both estates. His Lordship said, that unless this case could stand upon the circumstance of C. being a distinct trader, it could not stand at all; and that circumstance resolved itself into nothing more than a resort to his separate estate, which, resorting at the same time to the joint estate, a creditor was not entitled to do in bankruptcy. The petitioners therefore must elect.

The more modern case of Ex parte Husband (6) appears to have been decided on the same principles. There A. and B. being partners, the latter a dormant partner, A., on the partnership account, drew bills in his own name on B,, who accepted them. A. and B. having become bankrupts, Lord Eldon held, that the holder of these bills, who was ignorant of the partnership, was not entitled to prove them againt the joint estate of A. and B., and the separate estate of B., but that he might elect to prove them against the joint estate of A. and B., or the separate estates of A. and B. “It is clear,” said Lord Eldon, " that where a party takes a bill, drawn by some members of a firm, carrying on a distinct trade, on the firm, in ignorance that the drawers constitute part of the firm of the acceptors, proof is admitted against both the drawers and acceptors; and it is equally clear, that a person holding a joint and separate security for the same debt, is in bankruptcy bound to elect. In this case, however, the bills are accepted by the dormant partner of the partnership of A. and B., carrying on business under the name of A., and are drawn by A. in his individual name indeed, but, as I take it on the evidence, in his name as representing the firm of the two bankrupts. It does not appear to me that this case ranges itself within that class of cases in which, contrary to the ordinary rule in bankruptcy, the holder has been allowed to pursue the contract appearing on the face of the bills, and to have double proof (c).”

[ocr errors]

(a) Er parte Bank of England, 2 Rose, 82; In Ex parte Kirby, Buck, 511, this mode of proof was allowed by the Commissioners, and disal

lowed by the Chancellor, but appa-
rently on other grounds.

(6) 2 Glyn & Jam. 4.
(c) It is to be observed, however,

The preceding observations were written before the case of Ex parte Moult (a) was argued before the Court of Review. There, Williams, Deacon, & Co. were holders and indorsees for value of two bills of exchange at three months. The bills were drawn by Barrow & Co. upon, and accepted by Johnston & Co. They were indorsed by the drawers to Geddes & Co., and by them to Radcliffe & Co. Barrow & Co. were commission-agents at Manchester, and that business was carried on by Barrow and Geddes. The firm of Johnston & Co. carried on business as warehousemen in London, and that business was conducted by Johnston and Geddes. The firm of Geddes & Co. carried on business as cotton manufacturers at Stockport, and that business was conducted by Geddes alone. The firm of Radcliffe & Co. carried on business as cotton-spinners at Chester, and that business was carried on by Geddes and Radcliffe. Williams & Co., at the time of taking the bills, were ignorant that Geddes was a partner with Barrow & Co. In September, 1828, a joint commission of bankrupt issued against Barrow & Geddes, and in October following, a commission was sued out against Johnston & Co. In November of the same year, Williams & Co. being the holders of the two bills, proved them under Johnston & Co.'s commission, under which dividends had been declared to the amount of 2s. 8d, in the pound. In 1830, Williams & Co. proved the same bills under the commission against Barrow & Geddes; first, against the joint estate of Barrow & Geddes for the whole amount; and, secondly, against the separate estate of Geddes for the amount minus the dividends declared under Johnston's commission. This proof being allowed by the Commissioners, the assignees of Barrow & Geddes appealed from that decision, and prayed

that a case of this nature could scarcely arise again. For, in pursuance of the doctrine laid down in Smith v. Watson, the estate of A. would comprehend the joint chattels of A. and B., B, being a dormant partner.

(a) Mont. 337; 1 D. & C. 44. On appeal, Mont. & Bl. 28; 2 Dea. & C. 419. Before the decision in Ex parte Moult had settled the law on this

subject, dividends had sometimes been received upon principles at variance with that decision. In a case where seven years had elapsed since a dividend, inconsistent with Er parte Moult, had been received, the Court of Review refused to order the party to refund, but made a prospective order. Er parte Soper, 1 Mont. & A. 55; 4 D. & C. 569.

[ocr errors]

that Messrs. Williams & Co. might be ordered to elect before the Commissioners whether they would remain creditors of the joint estate of Barrow & Geddes, or of the separate estate of the latter. The Judges of the Court of Review were divided in opinion upon this important question; Erskine, C. J., and Rose, J., being of opinion, that the double proof was inadmissible, and that the creditor must elect; the other Judges, on the contrary, being in favour of the double proof. On appeal to Lord Brougham, C., his Lordship, on the authority of Ex parte Husband, affirmed the judgment of the two Judges who were against the double proof.

It is difficult not to think that the question agitated in Ex parte Moult, was long ago virtually concluded, if not by many dicta and some few decisions, at least by the leading principle which guides the administration of the bankrupt laws. But, however that may be, the case of Ex parte Moult may now be considered as a decisive authority on this subject.

The principles of that case and Ex parte Husband, have been carried still further, if possible, in a case Ex parte Chevalier (a). There V. & Co., who carried on business in partnership, as merchants in the Brazils, drew a bill upon V., one of the partners, who traded on his own account in England.

The bills were made payable to the agent of the government of the Brazils, and were accepted by V. They were not paid. Process of insolvency afterwards issued against the foreign firm, and a commission issued against the English partner. It was held, that the agent, though he might prove under the commission, yet must be restrained from receiving dividends, unless he elected not to prove under the insolvency abroad (6).

(a) 1 Mont. & A. 345.
(b) See as to the remedy in these

cases, following the law of England,
ante, p. 460, n.

SECTION IX.

Of Proof between Partners.

A DEBT due from one partner to another on the partnership account, is provable under a commission against the debtor .partner; for, in this case, the creditor stands in the situation of "a surety, or person liable for the debt of the bankrupt, and who has paid the debt (a).” The debt so provable will bar the bankrupt partner's certificate; but the solvent partner can only prove under certain restrictions.

Thus, first, it is a settled rule that a solvent partner cannot prove under a commission against his copartner, so as to come in competition with the creditors of the partnership, that is, he has no right to receive any portion of his debt, until all the creditors of the partnership are paid 20s. in the pound, as well as all interest due upon their respective debts subsequent to the date of the commission. The above rule is founded on this plain principle of reason and justice, viz. that a partner who is himself liable to all the creditors of the partnership, ought not to take away any of the funds, before all the creditors (to whom he is so liable) are duly paid (6).

Again, a solvent partner cannot prove against his copartner, in competition with the separate creditors, unless the joint creditors are first paid. For, if a dividend were reserved to him on such proof, the joint creditors might be injured by the partner stopping in transitu (c) the surplus of the separate estate, which would otherwise be carried over to the joint estate; or the separate creditors might be injured by their funds being

(a) 6 Geo. 4, c. 16, s. 52 ; Ex parte Watson, 4 Madd. 477; Wood v. Dodgson, 2 Mau. & Selw. 195 ; Afflalo v. Fourdrinier, 6 Bing. 309.

(6) Deac. B. L. 664; Ex parte Reeve, 9 Ves. 558; Ex parte Ogle, Mont. 351; Ex parte Burrell, Co. B. L. 505; Ex parte Broome, 1 Rose, 69; Ex parte Rawson, Jac. 277 ; Ex parte Robinson, 4 D. & C. 499 ;

M'Owen v. Hunter, Drury & Walsh, 3-17 (Irish).

(c) But where the solvent partner has possession of the goods, he cannot be sued by the assignees of the bankrupt partner for the bankrupt's share of the goods, until they first satisfy all that is due from him to the partnership. 8 Barn. & Cres. 618.

« 이전계속 »