1817. Ex parte -In the the said Partnership stock. And it was also agreed by and between the said Parties thereto, that the said Joint WILLIAMS. Trade should Trade should pay and advance from Time to Time such Sums of Money as might be required for the Purpose of JOSEPH paying and satisfying the Debts and Demands due and and owing from the said William Hughes, as mentioned in HUGHES. the said Schedule. Matter of Hughes and Joseph entered into Partnership upon the Terms mentioned in the Agreement, and in pursuance thereof, many of the Creditors of Hughes, whose Debts. were scheduled, were paid by the Partnership. On the 5th of December, 1816, a Joint Commission issued against Hughes and Joseph, under which they were declared Bankrupts. The Petitioner was one of the scheduled Creditors of Hughes, whose Debt had not been paid. The Petition prayed a Declaration, that the scheduled Creditors were Joint Creditors of Hughes and Joseph, and that as such they might be permitted to prove their Debts, and receive a Dividend out of the Joint Estate. Mr. Leach and Mr. Cullen for the Petition contended, that by virtue of the Partnership Deed, the Creditors of Hughes, named in the Schedule, acquired a Right to prove against the Joint Eatate on the Ground of Contract; and that it was not necessary to shew an Assent on the Part of a Creditor to the Arrangement made by the Bankrupts. Ex parte Clowes, 1 Cooke, B. L. 264. That Lord Thurlow held the slightest Acts done by a Partnership would operate as the adoption of the Debt of one of the Partners. Er parte Jackson, 1 Ves. j. 181. Mr. Wilson for Hughes the Bankrupt and his Separate Creditor, argued that the scheduled Creditors had a specific Demand against the Funds of Hughes taken into the Partnership; and as these Funds were to be distributed under the Joint Commission, they ought to prove against the Joint Estate. 1817. Fx parte WILLIAMS. -In the Matter of JOSEPH and Sir Samuel Romilly and Mr. Hart on the other Side contended, that unless a scheduled Creditor of Hughes HUGHES. made it appear to the Court, that he had, in some Way or other, been a Party to the Agreement between Hughes and Joseph, he ought not to be permitted to prove against the Joint Estate; for such Proof could only be admitted on the Ground that the Creditor could have called upon the Partnership for Payment of his Debt before the Bankruptcy; but neither at Law, nor in Equity, could such a Demand have been enforced without the Creditor first shewing an Assent to the Agreement. The LORD CHANCELLOR. If it is meant to be said on the Part of the Petitioner, that a Joint Action might have been maintained by the Creditors named in the Schedule against Hughes and Joseph immediately upon the Execution of the Deed, and by force of that Deed only, independent of any Accession to the Agreement on the Part of the Creditors. named in the Schedule-I cannot assent to that Doctrine. There are some old Cases upon this Subject, and in one of them (reported I think by Levinz, or by some of the Reporters of his Time) where A. by Deed covenanted with B. a Party to it, that he, A., would pay a Sum of Money to C., a Stranger to the Deed, C. attempted to maintain an Action on the Covenant against A. (a). Whatever might then have been the (a) The case alluded to by the Lord Chancellor seems to be Gilby . Copley, 3 Lev. 138, where Le vinz, J. differed in Opinion from the 1817. Law, such an Action certainly could not now be supported. But I agree to the Proposition, that a very Ex parte WILLIAMS. little will do to make out an Assent to the Agreement. If any of the Creditors named in the Schedule think they can make out such a Case, they may apply on that Ground to prove their Debts against the Joint Estate. -In the Matter of JOSEPH and HUGHES. partes, and one beginning in the first ties, a Stranger cannot sue a Party As to Contracts not under Seal, determined that the Child may maintain an Action on the Promise made to the Parent. Dutton v. Poole, 2 Lev. 210. T. Raym. 302. Bull. L. N. P. 134. Rockwood v. Rockwood, 1 Leon. 192. But these were Cases in which the Party might have been called upon to account in a Court of Equity, either on the Ground of Trust or Fraud. Chamberlaine v. Chamberlaine, 2 Freem. 34. Reech v. Kennegal, 1 Ves. 123. Amb. 67. Harris. Her well, Gilb. Rep. 11. Leister v. Foxcroft, there cited. And Eyre, Ch. J. commenting upon the Case of Marchington v.Vernon, says, "As to the Case put at the Bar of a "Promise to A. for the Benefit of "B., and an Action brought by B., "there the Promise must be laid as being made to B., and the Pro"mise actually made to 4. may be given in evidence to support the "Declaration." 1 Bos. & Pull, 102. Ex parte HARRISON.-In the Matter of HIL. TERM, 1817. er, though he may not have acted, cannot become a purchaser of the bankrupt's es tate without THIS petition, which was presented by the assignees, A commissionprayed that they might be at liberty to complete the sale of the bankrupt's estate that had been sold by auction to a gentleman, who was one of the Commissioners named in the commission, but who had not acted. The terms of the sale were stated to be very beneficial for the estate, and the application was made with the consent and at the desire of the creditors; but it did not appear how such alleged consent had been obtained. Mr. Horne for the petition. The LORD CHANCELLOR. I cannot make an order of this nature, unless a general meeting of the creditors has been called for the of their assenting to the sale to this gentleman. purpose the consent of the creditors at a general meeting. Ex parte TREACHER.-In the Matter of. MR. Cooke moved, that the Chancellor would be LINCOLN'S INN HALL, Feb. 19, 1817. A person hav ing a deed in his possession, that in effect amounted to an pleased to answer a petition for an early day; also suggesting that probably the Chancellor would make the order at once. The order prayed was, that a person act of bankwho had a deed in his possession, which, in effect, amounted to an act of bankruptcy by one of the parties thereto, might attend with it before the Commissioners, or otherwise, that the commission might be opened ruptcy by one of the parties. attend the was ordered to with it, without prejudice to any objection being taken before them as to disclosure of confidential communica Commissioners tions. 1817. Fx parte -In the Matter of The LORD CHANCELLOR Expressed his unwillingness to conclude the person TREACHER. from taking any objection he might have to disclose any circumstances relating to the deed, or to any confidential communication, but ordered that he should attend the Commissioners, carrying with him the deed, without prejudice to any objection he might make before them. MIC. TERM, 1816. Mortgagee of sold under the general order, permitted to bid at the sale. Ex parte DU CANE.-In the Matter of THIS was a petition by a mortgagee, who had come in under the general order, 8th March, 1794, that he might be permitted to bid at the sale for the purchase of the mortgaged premises. It was contended on behalf of the petition, by Mr. Hart, that orders of the nature prayed were made every day, as they were manifestly for the benefit of the bankrupt's estate, and prevented the property from being sold at an under value. Mr. Roots opposed the petition, upon the ground that the Court would not suffer a party who was, in fact, the vendor of the property to become the purchaser, because, as such, he would have an interest in depreciating its value. The VICE CHANCELLOR. In all these cases, where it is necessary to apply to the Court for leave to become a purchaser, there must be the possibility of some conflicting interest, otherwise the application would be unnecessary. The Order was made. |