bankrupts, is not altered by the form of the fiat (a). Whether the fiat be joint or separate, the estates must be subject to the same administration. But the form of the fiat in some degree affects the mode in which the creditors are permitted to reach the assets of the debtor; for in some cases the creditor may prove under a general order; in others, only under an order made upon petition.

Where the proceedings are joint, the creditors, whether separate or joint, may prove under Lord Loughborough's general order of the 8th March, 1794.

By that order, "the Commissioners in a joint commission against two or more bankrupts, shall be at liberty to admit the proof of any separate debt or separate debts of any one or more of such bankrupts under such joint commission;" and it has been holden, that the creditors of a firm of three partners may prove their debt under a commission against another firm consisting of these three partners and others, within the meaning of this order (b).

By the same order it is likewise directed, that "the Commissioners under such commission shall cause distinct accounts to be kept of the joint estate, and also of such separate estate or estates; and that what shall be found to belong to the separate estate or estates, shall be applied, in the first place, in or towards satisfaction of the debts of the respective separate creditors; and in case there shall be any overplus of the joint estate, after all the joint creditors shall be paid and satisfied their whole demands, that the share or shares, interest or interests of the bankrupt or bankrupts, whose separate estate or estates is or are to be applied in manner before directed, in such overplus, be carried to the account of his or their separate estate or estates, and be applied in or towards satisfaction of his or their separate debts; and in case there shall be any overplus of the separate estate or estates of such bankrupt or bankrupts, after all their separate creditors shall be paid and satisfied their whole demands, that the overplus of such separate estate or estates be carried to the account of the joint estate, and be applied in or towards satisfaction of the joint debts."

On the other hand, where separate proceedings are had against some or one of the partners, and the assignees get pos

(a) See ante, p. 623.

(b) Ex parte Worthington, 3 Madd. 26.

session of the joint property, there is no general order applicable to the case; but the Court, upon the petition of a joint creditor, will order the assignees to keep distinct accounts of the separate and joint estate, and apply them to the payment of the separate and joint debts respectively, in the same manner as where separate creditors prove under a joint commission (a).

However, a joint creditor may prove under a separate fiat, without any order, if there is not any joint estate or solvent partner (b). So also, a joint creditor suing out a separate fiat, may prove under that fiat against the separate estate, without any order (c).

II. 2. Where persons in trade have been connected in various partnerships, and a joint commission has been taken out against them all, an order may be made for keeping distinct accounts of the different partnerships, as well as the separate estates of each partner. Thus, A. was a trader; A. and B. became partners; then A., B., and C. became partners, and a joint commission issued against A., B., and C. It was ordered, that distinct accounts should be kept of the joint estate and effects of A., B., and C.; of the joint estate and effects of A. and B.; and of the separate estate and effects of each of the bankrupts; and that each of the respective estates should be applied in satisfaction of the creditors of each, &c. (d). It seems, moreover, that this description of accounts may now be taken under Lord Loughborough's general order, and that a petition to have the accounts so taken will be dismissed with costs (e).

But, when there have been various partnerships, and joint proceedings are had against one firm, in which some of the partners were not engaged, there can only be the common

(a) Ex parte Tate, Co. B. L. 253; Ex parte Aspinwall, Id. 256; Ex parte Mervey, Ex parte Hill, Ibid. Formerly, the application must have been made by bill, unless by consent. Ex parte Voguel, 1 Atk. 132; Hankey v. Garrat, 3 Bro. 457.

(b) Ex parte Tate, Mont. Part.

240.

(c) Mont. Partn. 240. And see Ex parte De Tastet, 17 Ves. 250;

1 Rose, 10. But where the joint creditor suing out a separate commission was himself the Commissioner, and such proof was made without order, the commission was superseded at his costs. Ex parte Story, Buck, 70.

(d) Ex parte Marlin, 2 Bro. 15; and see Co. B. L. 257.

(e) Ex parte Green, 1 D. & C.

382.

order for keeping the distinct accounts of the joint and separate estate (a).

Under a separate commission against a person who is a partner in two distinct firms, an order has been made for keeping distinct accounts of the two partnerships. And in a case where this occurred, and afterwards a separate commission issued against a person who was partner in one of the firms only, and an order for keeping distinct accounts was obtained in the latter bankruptcy, such order was held to be impertinent (¿).

Sometimes, the joint and separate creditors agree to consolidate the estates, and that all the creditors, joint as well as separate, may come in pari passu. But the Court has no authority to order this without the consent of all the creditors, and will never do so, except when it is impracticable to keep the accounts separate (c). And even where the creditors present at a meeting called for that purpose consent to it, the Court will not confirm it without first referring the matter to the Commissioners, to inquire if the proposed consolidation be for the benefit of the creditors generally (d). If the Commissioners certify in the affirmative, the creditors may petition to confirm their certificate (e).

An order for consolidation has no effect upon proofs already made; and therefore, if proofs be made on a joint and several bond against two separate estates, a subsequent consolidation. of the estates does not affect the double proof (f).

(a) Ex parte Parker, Co. B. L.

258.

(b) Ex parte Bolton, Buck, 11. (c) Ex parte Sheppard, Mont. & B. 414; 3 D. & C. 190.

(d) Ex parte Strutt, 2 Glyn & Jam. 29; Ex parte Part, 2 D. &

C. 1.

(e) Without serving the assignees with the petition. Ex parte Smith, 2 Mont. & A. 60.

(f) Ex parte Fuller, 1 Mont. & A. 222; 3 D. & C. 520.

SECTION III.

Of the Choice and Removal of Assignees.

ALL creditors who have proved debts under the commission, to the amount of £10 and upwards, shall be entitled to vote in the choice of assignees (a). The choice shall be made by the major part in value of the creditors so entitled to vote (b), and shall take place at the first of the two public meetings appointed for the surrender of the bankrupt (c). And one of the official assignees shall in all cases be an assignee of each bankrupt's estate and effects, together with the assignee or assignees to be chosen by the creditors (d).

Under a joint fiat, none but joint creditors can vote in the choice of assignees (e). And where the election has been made by separate creditors, the Chancellor will order a new choice (f).

It has even been holden, under a commission against three, that the joint creditors of two of them could not vote in the choice of assignees. In this case, the creditors of the two were creditors to a considerably larger amount than the creditors of the three; and the petitioning creditor had consented to their choice (g).

Formerly, joint creditors could not vote in the choice of assignees under a separate commission (h). But now, by the 6 Geo. 4, c. 16, s. 62, in all commissions against one or more partners of a firm, any joint creditor may prove his debt under such commission, for the purpose of voting in the choice of assignees under such commission.

Where creditors are, in respect of their interest, unrepresented under a commission, as in the case of separate creditors who have no right to vote in the choice of assignees under a joint commission, the Court, in a case requiring it, will appoint a person as an agent or inspector, with ample authority to take care of their interest, and will provide for his reimbursement

(a) 6 Geo. 4, c. 16, s. 61. (b) Ibid.

(c) 1 & 2 Will. 4, c. 56, s. 20. (d) Id. s. 22.

(e) Ex parte Parr, 18 Ves. 70;

Ex parte Hamer, 1 Rose, 321; Ex
parte Miles, 2 Rose, 73.

(f) Ex parte Parr, supra.
(g) Ex parte Jepson, 19 Ves. 224.
(h) Co. B. L. 269.

and indemnity, in point of expense, out of the estate, in as full a measure as if he were actually an assignee (a). Therefore, where it appeared that the assignee under a joint commission had no interest in the separate estates, the Court, upon application, ordered a meeting of the separate creditors, with liberty to them to appoint an inspector of the separate estates (b). And it may be stated generally, that where prima facie the interest of the joint creditors appears to be adverse to that of the separate creditors, and the separate creditors offer to pay the costs of the appointment of an inspector, the Court will sanction such appointment (c).

But an application that a trustee or inspector may be appointed to protect the interests of a class of creditors, is premature, until after the choice of the assignees (d).

The Commissioners have power to reject any person chosen assignee who shall appear to them unfit to be such assignee; and upon such rejection a new choice of another assignee or assignees shall be made as aforesaid (e). And, generally, if an assignee be elected through fraudulent means, or misconduct himself in the execution of his trust, the Court, upon the petition of any of the creditors, will order all the assignees to be removed (f).

(a) Per Lord Eldon, Ex parte Miles, 2 Rose, 70. Before the late act, this was done on behalf of joint creditors in the case of a separate commission. See Ex parte Basarro, 1 Rose, 266.

(b) Ex parte Batson, 1 Glyn & Jam. 269.

(c) Ex parte Dawson, 3 D. &

C. 12.

(d) Ex parte Simpson, 2 Rose, 337.

(e) 6 Geo. 4, c. 16, s. 61.

(f) See Ex parte Shaw, 1 Glyn & Jam. 155; Ex parte Halliday, 7 Vin. Abr. 77; Ex parte Townshend, 15 Ves. 400. An assignee may be removed for purchasing any part of the bankrupt's property, or permitting a co-assignee to do so. Er parte Reynolds, 5 Ves. 707. Also, in case an assignee shall become bankrupt, such bankrupt assignee shall be removed. Ord. Loughb. 8th March, 1794.