Richard Baldwyn for the drafts for their respective dividends; and that it was the duty of the said Richard Baldwyn, as one of the assignees, to deliver the drafts to the said respective creditors, when applied for. The Master further found, that the said Richard Baldwyn, being such assignee, received payment of the sums of money mentioned in several of such drafts which had been so left in his hands, and applied the same to his own use, at the following dates, that is to say-On the 14th day of March 1800, the sum of 2121. 10s. 8d.; on the last day of June 1802, the sum of 1427. 10s. 3d.; on the last day of September 1803, the sum of 6571. 14s. 9d.; on the 10th day of March 1804, the sum of 921.; on the 14th day of January 1807, the sum of 5897. 15s.; and on the 16th day of January 1807, 2881. Os. 8d.; making together the sum of 1,982l. 11s. 4d.: and the said Master thought fit to allow the claim of the said plaintiffs, as creditors by specialty of the said Richard Baldwyn, for the amount of 1,982l. 11s. 4d.

By a decree made on the 17th day of July 1820, the Court did declare, among other things, that the sum of 1,982l. 11s. 4d. was a debt by specialty upon the estate of the testator, and payable as such out of the assets of the testator, by virtue of the covenants in the pleadings in the cause mentioned. Then, after providing for the payment of this sum, it was ordered, that all or any of the unpaid creditors of John Cox and Frederick Heisch, whose dividends were comprised in the said sum of 1,9821. 11s. 4d., or any other person who should be entitled to the same, should be at liberty to apply to this Court as they should be advised.

And it was ordered, that it be referred back to the said Master, to compute interest on the said sum of 1,9827. 11s. 4d., after the rate of 20 per cent. per annum, from the 29th day of June 1809, (the date of the passing of the statute of the 49 Geo. 3. c. 121, entitled "An Act to alter and amend the Laws relating to Bankrupts,") to the 12th day of June 1812, the day of the decease of the testator.

Some of the parties interested under the will of Baldwyn, appealed from so much of the decree as charged his estate with 20 per cent. on the balance retained by him in his hands.

The only question argued on the appeal, was, whether, under the circumstances of this case, the estate of the deceased assignee could be charged with interest at 20 per

cent.

Lord Chancellor.-Prior to the 49 Geo. 5. it was the habit of the Court to charge an assignee, who improperly kept monies belonging to the bankrupt's estate in his hands, with interest at five per cent but that could not be done by petition, when the assignee was dead. When the 5 Geo. 2. c. 30. was passed, it prescribed the mode in which dividends were to be made. It provided, (1)

"That every person or persons chosen, or who shall be chosen assignee or assignees of the estate and effects of such bankrupt, shall, at some time after the expiration of four months, and within twelve months from the time of issuing of such commission, cause at least twenty-one days public notice to be given in the London Gazette, of the time and place the commissioners and assignees intend to meet, to make a dividend or distribution of such bankrupt's estate and effects; at which time the creditors, who have not before proved their debts, shall then be at liberty to prove the same; which meeting for the city of London, and all places within the bills of mortality, shall be at the Guildhall of the said city; and upon every such meeting the assignee or assignees shall produce to the said commissioners and creditors then present, fair and just accounts of all his and their receipts and payments, touching the said bankrupt's estate and effects, and of what shall remain outstanding, and the particulars thereof; and shall, if the creditors then present, or the major part of them, require the same, be examined upon oath, or being of the people called Quakers, upon solemn affirmation, before the said commissioners, or the major part of them, touching the truth of such accounts; and in such accounts the said assignee or assignees shall be allowed and retain all such sum and sums of money, as they shall have paid and expended in suing out and prosecuting of such commission, and all other just allowances, on account of, and by reason or

(1) 5 Geo. 2. c. 30. s. 53.

means of their being assignee or assignees ; and the said commissioners, or the major part of them, shall order such part of the neat produce of the said bankrupt's estate, as by such accounts or otherwise shall appear to be in the hands of the said assignees, as they or the major part of them shall think fit, to be forthwith divided amongst such of the bankrupt's creditors, who have duly proved their debts under such commission, in proportion to their several and respective debts; and the commissioners, or the major part of them, shall make such their order for a dividend in writing under their hands, and shall cause one part of such order to be filed amongst the proceedings under the said commission, and shall deliver unto each of the assignee or assignees, under such commission, a duplicate of such their order, likewise under the hands of the said commissioners; which order of distribution shall contain an account of the time and place of making such order, and the sum total or quantum of all the debts proved under the said commission; and the sum total of the money remaining in the hands of the assignee or assignees to be divided, and how much in particular in the pound, is then ordered to be paid to every creditor under the said commission; and the said assignee or assignees, in pursuance of such order, and without any deed or deeds of distribution to be made for that purpose, shall forthwith make such dividend and distribution accordingly."

When with this clause we connect 'the covenant of the commissioners, that covenant must be understood as binding the assignees to account with the commissioners; and after it has been settled how much is to be paid to each creditor, to pay to each creditor his aliquot part. After the order for a dividend, the sums allotted to each creditor became, in the hands of the assignees, money so far received to the use of the creditor, that he might maintain an action for it. The 49 Geo. 3. (2) took away the remedy of the creditor against the assignees by action, and confined him to a proceeding by petition.

The 3d section of the 49 Geo. 3. c. 121,

(2) 49 Geo. 3. c. 121. s. 12.

after reciting the provisions of the act of Geo. 2, enacts

"That if in any case the major part of the creditors of any bankrupt shall not, before they shall proceed to the choice of assignees of the bankrupt's estate, direct in what manner, how and with whom, and where the monies arising from the bankrupt's estate shall be paid in and remain, in pursuance of the power given to them by the said recited act, it shall be lawful for the commissioners, or the major part of them, and they are hereby required immediately after the commissioners shall have proceeded to the choice of assignees, and at the same meeting, to direct in what manner, how and with whom, and where the monies. arising by and to be received from time to time out of the bankrupt's estate, shall be paid in, and remain until the same shall be divided amongst the creditors as by the said recited act is directed; to which rule and direction the assignee or assignees of the bankrupt's estate shall conform, as often as one hundred pounds shall be got in and received from such bankrupt's estate, and shall be and are hereby indemnified for what they shall do in pursuance of such directions of the said commissioners as aforesaid; provided that it shall not be lawful for the commissioners to direct such monies to be paid into the hands of the said commissioners, or any of them, or of the solicitor to the commissioners, or into any banking house, or other house of trade or business in which the commissioners or any of them, or the solicitor to the commission, are or is interested or concerned as a partner or partners, or otherwise."

The 4th section provides"That in all cases in which any assignee or assignees of any bankrupt's estate, shall wilfully retain in his or their hands, or otherwise employ for his or their own benefit, any sum or sums of money, part of the estates of such bankrupts, contrary to the aforesaid direction of the said recited act, passed in the fifth year of the reign of King George the Second, or of the aforesaid direction in this act contained, he or they shall be charged in his or their accounts with the estates of such bankrupts, with such sum or sums of money as shall be equal to the amount of interest computed

at the rate of twenty pounds per cent. per annum, on all such sums of money so retained or employed by him or them, for the time or times during which he or they shall have so retained or employed the same, contrary to the said direction of the said acts, or either of them; and the commissioners of bankrupts are hereby required to charge such assignee or assignees in their accounts with such sum or sums of money accordingly."

The 6th section provides for the case of an assignee becoming bankrupt; and it

enacts

"That in case any commission of bankrupt shall issue against any person who is or shall be an assignee of the estate and effects of any bankrupt, and who shall, at the time of such commission issuing against him, be indebted to the estate of the bankrupt of whose estate and effects he was an assignee, to the amount of one hundred pounds or upwards, in respect of money come to his hands as such assignee, and wilfully retained or employed by him for his own benefit, the certificate of conformity which may be obtained by such assignee so becoming bankrupt as aforesaid, shall only have the effect of freeing the person of such bankrupt from arrest and imprisonment, but the future estate and effects of every such person shall remain liable for so much of his debt to the estate of the bankrupt of whose estate and effects he was an assignee, as shall not be paid by dividends under the said commission, together with lawful interest for the whole debt, in like manner as if he had not obtained his certificate; the tools of trade, the necessary household goods and furniture, and necessary wearing apparel of such bankrupt and his wife and children, only excepted."

Here, it is to be observed, that the 4th section looks to the case in which an assignee does not become bankrupt; and it then charges him with 20 per cent. interest. The 6th section looks to the case in which the assignee does become bankrupt; and it does not give a better remedy against his estate, to the estate of which he was assignee, than is given to his other creditors; but it is satisfied with providing, that the future effects of such bankrupt assignee shall continue liable, but liable only for the

sum retained by him in his hands, and lawful interest upon it.

But though the statute provides expressly for the case of a continuing assignee, and also for the case of an assignee ceasing by bankruptcy to be so, it takes no notice of the case of an assignee ceasing to be so by reason of death.

Here, the monies retained by the assignee were monies directed, by several orders of dividend, to be paid to A, B, C, &c. creditors of the bankrupt. The assignee, therefore, was liable to the individual creditors respectively, for the amount of their dividends; and he was liable also to be charged with interest, in the shape of damages. But is he both liable to that extent to the particular creditors in whose behalf the order of dividend was made, and also liable to be charged with 20 per cent. by the commissioners? Where the order of dividend separates the particular aliquot parts to be paid to each creditor, and the assignee becomes a debtor to them, there is nothing in the acts which authorizes them to demand 20 per cent. interest: neither can I find that the Court has authority to direct such an account against the assets of a deceased assignee.

I must therefore reverse so much of the Vice Chancellor's decree, as directs interest to be computed on the balance at the rate of 20 per cent. and I must order interest to be computed at 5 per cent.

Green, a gentleman of the name of Merceron had been prosecuted for an alleged misappropriation of some of the funds of the parish. It was believed that he had been assisted in his misconduct by some other persons in the parish, and against those, too, it was proposed to institute proceedings. Accordingly, at a meeting of the parishioners, assembled in public vestry, holden on the 20th of August, 1818, they, by a majority of 169 to 41, passed the following resolution

"That this vestry would consider the ends of justice very imperfectly answered in the recent conviction of Joseph Merceron, esq., did they not authorize proceedings at law to be instituted against the leading persons who concurred with him in the fraudulent appropriation, of which he is now suffering the sentence of the law, and who, from the evidence given on the late trial, appeared to have been the principal agents in assisting to plan and execute the fraud upon the parish, of which he has been convicted. They therefore instruct and empower the churchwardens, overseers, and trustees of the poor-rate, to cause such proceedings to be adopted against the parties as they may deem advisable."

After this resolution, the churchwardens, overseers, and trustees of the poor-rate, proceeded to take steps against the obnoxious individuals; and with that view, deputed Mr. Bumford, who was one of the trustees of the poor-rate, to employ Messrs. Knight and Freeman as solicitors. On the 9th of March 1819, at a meeting of the churchwardens, overseers, and trustees of the poor-rate, a resolution was passed, which, after reciting the former resolution of the 20th of August 1818, proceeded as follows:

"We, whose names are hereunto subscribed, being the churchwardens, overseers, and trustees of the poor-rate of the above parish, having fully considered the important duty imposed upon us by the foregoing resolution of vestry, did and have determined, that prosecutions should be instituted against &c. (naming various individuals), the eight leading persons who concurred with Mr. Merceron in the accomplishment of the offence, of which he has been found guilty; and being well satisfied of the firmness, in

tegrity and ability, displayed by Mr. Edward Bumford, one of the committee appointed to superintend and conduct the late prosecution against Mr. Merceron, have requested, and do hereby authorize and empower the said Edward Bumford to take upon himself the entire management of the said prosecution against the aforenamed persons; and we take the present opportunity to express our entire approbation of the proceedings hitherto adopted in the prosecution of the said parties. Dated the 9th day of March 1819."

This memorandum was signed by Charles Stanley Masterman and John Brown, the churchwardens; Moses Rhodes, William Comber, and Wm. Soper, the then overseers of the poor, and by the plaintiff Wrightson and Matthew Talbot, two of the then trustees of the poor-rate within the said parish, the said trustees being altogether four in number.

The indictment came on to be tried at the sittings after Easter term in 1819; when, in consequence of the recommendation of the Lord Chief Justice, that measures of mutual conciliation should be adopted in the parish, no evidence was given, and the defendants were acquitted.

In 1820, Messrs. Knight and Freeman delivered their bill of costs, amounting to 4831. 15s. 1d., to Bumford, and requested payment from him. He having become embarrassed in his circumstances, they in 1820 delivered another bill to Wrightson, and demanded payment from him; and, upon his refusal, they brought an action against him, and recovered the amount of their demand. The other persons who signed the memorandum, approved of Wrightson's defending the action, on the ground that they and he had incurred no individual responsibility.

The bill was filed by Wrightson against the other persons who had signed the memorandum, stating these circumstances, and praying, that it might be referred to the Master to settle the proportion of the debt and costs which ought to be borne by the plaintiff, and each of the defendants, and and that they might be decreed respectively to pay the proportion of the sum which should be found due from them.

It appeared from the answers of some of the defendants, that there was an act of

parliament for the regulation of the parish, which provided, that the vestrymen, trustees, and governors of the poor of the parish, should sue and be sued in the name of their clerk for the time being, who was to be reimbursed out of the parish funds, all the costs he should be put to, by being so made a plaintiff or defendant.

One of the defendants had paid a sum, which the plaintiff had consented to receive as his quota of the costs.

Mr. Hart appeared for the plaintiff; Mr. Horne was for some of the defendants;

Mr. Heald and Mr. Collinson, for other defendants.

The plaintiff insisted that his case was one of simple contribution: he had been compelled to pay a sum of money in respect of a responsibility which he had incurred jointly with the defendants; and they must therefore contribute their shares.

For the defendants it was contended, that they had acted in the matters stated in the bill, not as individuals, but as churchwardens, overseers, and trustees of the poor, and therefore, that they ought not to be made personally liable to the demand. Further, they had only acted under the order of the vestry: the vestry therefore were the persons properly, or at least ultimately, liable; and no decree could be made while they were not before the Court. Besides, these defendants ought not to be bound by the result of the action between the solicitors and the defendant. If the action had been brought against them personally, they might have made a good defence.

The Vice Chancellor.-It appears, by this bill, that at a meeting of vestry, held on the 20th of August 1818, a resolution was proposed and seconded, that the churchwardens, overseers, and trustees of the poor-rate, should cause certain proceedings to be instituted against certain persons. That vote was carried by 169 to 41; and, in consequence of this resolution, the churchwardens, overseers, and two of the trustees, signed a paper, authorizing Bumford to institute the proceedings recommended by the vestry. Bumford instituted those proceedings, and

man.

employed, as attornies, Knight and FreeAt the trial, the Lord Chief Justice recommended, with a view to prevent further litigation, that the trial should be abandoned; and, in consequence of his recommendation, no evidence was given, and the defendants were acquitted. Knight and Freeman were entitled to be paid. Bumford might have so conducted himself in the employment of them, as to render himself personally liable; for if he did not represent that he was a mere agent under the above-mentioned authority, he must himself have been personally liable, as their employer. Bumford was not selected as the person from whom they were to demand payment. They considered themselves entitled to demand payment from the several persons who had signed the paper, and not from them all jointly, but from any one of them. They brought, therefore, an action against Wrightson: a verdict was given for their demand; and he was compelled to pay the amount of the debt and costs.

Being compelled to pay, in respect of being one of the persons who had signed that paper, it necessarily followed, that he was entitled to call for contribution from every person who had rendered himself equally liable; and this is a suit instituted for the purpose of calling on every person who had signed that paper to contribute.

Where several persons render themselves liable to the payment of a demand,-if one is called on to pay, he has a right to demand contribution from all who stand in an equal situation with himself; and, generally speaking, no objection could have been made to such a claim.

It is said, each of the persons signed, not in their individual characters, but in their parochial characters, of churchwardens, overseers, and trustees of the poor-rate. Now, it is indifferent to those whom they employ, in what capacity they undertake to employ them. They employ them, and must therefore pay them for that employment; and it is no answer to say, that they employed them in their official characters. Official employment means only employment belonging to the office; and this is an employment having no connexion with their official duties. Their holding, at the time, certain official characters, does not discharge their liability.