(A) Concerning the Commiflon and Commiskoners,

A

March the 13th, 1737.

Twifs v. Maffey.

See Pref. Difc:

to Green's Spirit of the Bankrupt Laws. 4th edit. 2 Vez. 26.pl. 4. Id. 327.3 8. 389 407.pl.130.

Father and fon join in trade, and have a commiffion of Cafe 22. bankrupt awarded against them jointly; the bill was A commiffion of brought by a plaintiff, fuggefting that he was a feparate cre- bankrupt is an ditor for the fum demanded by the bill; the defendant pleaded action and exehis certificate, and that the debt accrued before he became inftance. Sepabankrupt.

The queftion is, How far feparate creditors are affected by, or can act under a joint commiffion of bankrupt? And Mr. Brown for the defendant cited, ex parte Crowder, 2 Vern. 706. where separate creditors were allowed to come in under a joint commiffion, but the joint effects are firft to be applied to pay the partnership debts, and then the feparate debts; and as to the separate effects, firft the separate creditors, and afterwards the partnership creditors are to be paid out of the same; and therefore the plaintiff might have proved his debt under the commiffion.

Objection, That it was not affirmed in the plea, that the certificate was figned by four-fifths in number and value.

Mr. Attorney General for the plea urged, that fuch a particular averment was not neceffary in this court, though it might be fo at law, for it is to be prefumed here, till the contrary is proved, as the plea fets forth, that the certificate had been allowed by Lord Chancellor.

cution in the firft

rate creditors

may come under

a joint commiffion, and prove

their debts.

Lord Chancellor: As to the objection of its being a joint com- See Green 151; miffion, that is no objection, for it affects joint and separate eftates, because it is never taken out but where both are bankrupts; a commiffion of bankrupt is an action and execution in the first instance. Suppofe an action against two partners, and judgment; feparate eftates are liable to fatisfy that judgment; fo in cafe of bankrupts, feparate creditors may come in under that commiffion, as well as joint creditors.

under a joint

As this court marfhals demands and fecurities, fo joint cre- If a bankrupt ditors, as they gave credit to the joint eftate, have firft their de- has a certificate mand on the joint eftate, and feparate creditors, as they gave commiffion, it credit to the feparate eftate, have first their demand on the fe- difcharges him parate eftate; the joint commiffion therefore difcharges them from ail debis, separate from all their debts exprefly by the act of parliament, which it, as well does not mention joint or feparate debts: But if the bankrupt has fince the certificate made a new promise, that deserves a confideration, and intitles the plaintiff to a discovery; and therefore his Lordship ordered, that the plea ftand for an answer,

as joint,

Cafe 24.
Commiffioners

are not to exa.

but to admit cre

A

March the 29th, 1743.

Ex parte Sandon.

Petition on behalf of creditors upon the feparate eftate of two partners, against whom a joint commiffion is now depending, to be admitted to prove their feparate debts under the joint commiffion. Lord Chancellor made an order accordingly, upon their bearing a proportion of the expence according to the value of the two eftates: Commiffioners, he said, have not a power of doing this without the fanction of the court.

August the 1ft, 1744.

Ex parte Simpson the elder, Thomas Simpson and John Simpson the younger In the matter of Jofeph Browning a bank

rupt.

Browning did in his own name contract with the commif

fioners of the navy, to furnish his majesty's ships with flop upon the day for cloths, but the fame was in truft for himfelf and the petitionchufing affignees, ers. On the 24th of Nov. 1742, articles of agreement were exemine critically cuted by him and the petitioners, whereby all the parties were into the debt, to have an equal part in the contract, and the accounts were to be ditors for what fettled, and figned every fix months: And in cafe any of the parthey fwear is due ties fhould die, or be rendered unable or incapable to carry it to them, as they on, in his or their own right, then the fhare of fuch party dyaccount after- ing, or becoming incapable, fhould be vefted in the furviving and capable parties, and the executor of such dying or incapable parties, fhould on request make a legal affignment to the furvivors or capable parties, and they fhould give bond for the value of his share at the time of the settlement of the last half yearly account, which was to be conclufive to the executors or adminiftrators.

are liable to an

wards.

Browning being indebted on the contract, and alfo largely indebted to the petitioners on their private account, made an affignment dated the 21st of January 1742, of his interest in the contract, to the petitioners, in the first place to satisfy such fums as he then 'owed or at any time after fhould owe to the petitioners on the contract or otherwife, and after fuch payment, to pay the overplus, if any, to Browning.

In November 1743, the contract ftanding in his name, the commiffioners of the navy, for the fafety of the publick, directed that the petitioners fhould be made parties to the contract, and that it should be carried on in all their names; and the fame was accordingly executed by the petitioners.

On the 6th of Jan. 1743, the laft half yearly account touching the contract was fettled, valued, balanced, and figned by Browning

Browning and the petitioners, when it appeared that the increase of stock arifing from profits, from the commencement to that day, amounted to 4642/. 35. 4d. and that the bankrupt had received on account of the contract 28,5261. 165. and had difburfed 28,1467. 10s. 5d. fo that he then remained debtor 3801. 5s. 7 d. to the contract.

On the 11th of January 1743, Browning fettled and figned the petitioner's private account, when there appeared to be due on that account to the petitioners 4615. 3s. 7 d. and by the 24th of April, the day of his bankruptcy, there was due to them on the feparate account 94807. and upwards.

After Browning's bankruptcy the Lords of the Treasury were pleafed to imprefs to the petitioners to enable them to proceed with the contract 20,000l. to prevent any diftrefs to the feamen, which was to be repaid to the Treasurer of the Navy by defalcation out of their wages from time to time as the fhips were paid off.

In April laft a commiffion of bankrupt iffued against Browning, and the petitioners attended at Guildhall and offered to prove their debt, but the commiffioners refused to admit them, infifting the 20,000l. was to be accounted for as to one fourth part to the bankrupt; which the petitioners informed them could not be done, for if credit was to be given for it on one fide of the account, it was a debt due to the Treasurer of the Navy on the other; fo that it made no variation therein: However the commiffioners thought proper to poftpone the choice of affignees, and therefore the application to the court is, that the petitioners may be admitted to prove a debt of 94801. and that the commiffioners may proceed to the choice of affignees.

Lord Chancellor: The act of the 5th of the present King fays, "The commiffioners fhall forthwith, after they have "declared the perfon against whom a commiffion fhall iffue "a bankrupt, appoint a time and place for the creditors to "meet, in order to chufe an affignee or affignees of the faid "bankrupt's eftate and effects."

The creditors present at such meeting are intitled to vote, unless fome materjal objection against them, and the majority in value to determine the choice, which makes it a confiderable question, whether creditors fhall be admitted or not.

The application here is, that I will direct the commiffioners to proceed to the choice of affignees : This is nothing more than what is their duty, and therefore fuperfluous.

The cross petition is, that I would poftpone the demands of the petitioners, and direct the commiffioners to chufe affignees, without admitting the petitioners to vote in fuch choice. The petitioners by their affidavit fwear to a balance.

But the great objection is, that this is not a complete account, and therefore the whole ought to be taken, before the petitioners are intitled to be admitted creditors under the commiffion.

A creditor by bond, and an open account Jikewife, fhall

Now as to this, the petitioners fwear that on the partnerThip the bankrupt was only a debtor for 3801. 5s. 7 d. Whether the account is ftrictly made up between them I cannot fay, but I rather believe not, for it is no more than refts, or like a computation between partners in the brewhoufe trade.

But then it is faid, here is a fum of 20,000l. paid by the government fince the making up of this account, and that this ought to be brought into the calculation.

But I look upon it to be a loan only from the government, for it is ftated in the memorial, that whatever fum fhall be advanced by the government, the treasurer of the navy has it in his power to retain this again by way of defalcation: So that this is only in the nature of an imprefs on the part of the government, and therefore may be laid out of the cafe; and if fo, here is a man ready to prove a debt a certain liquidated demand upon a ftated account,

But fay the petitioners in the crofs petition, There are other accounts not made up, and therefore they shall not be allowed to prove. Suppofe a debt due on bond, and an open account befides, the creditor finally is to be admitted a creditor only for the balance; and yet notwithstanding it is every day's experience that he is admitted to prove the bond debt, but ftill the comprove the bond, miffioners may take the account afterwards, and the creditor because the com- fhall be intitled on a dividend to no more than what appears miffioners may fill take the ac- to be really due to him on the balance.

be admitted to

count, and upon

a dividend he

As it would be extremely hard to exclude perfons who may hall be intitled perhaps be the greatest creditors, till the account is determinto no more than ed, which may be the work of feveral years; and as it may be is due to him on neceflary and convenient that affignees fhould immediately be

balance.

chofen, the commiffioners therefore are not critically to exa mine into the debt, but to admit creditors upon their oath for what they fwear is due to them, as they will ftill be liable to an account afterwards.

His Lordship therefore ordered that the commiffioners fhould permit the petitioners to make proof of their debts, and that they should at present admit them creditors for what they fhould fo prove, and that they should proceed to the choice of affignees.

December the 22d, 1744.

Cafe 25.

Ex parte Simpson and others.

counts ought not

N

the of Aug 17443

A creditor in all petitioners attended the commiffioners on the 24th of Aucafes of open ac- gut laft at Guildhall, and a depofition was prepared for the peto be excluded uded titioner Thomas Simpfon, who offered to fwear that the fum of till the account 8000l. and upwards was then actually due to him and his then the choice partners; but two of the commiffioners refufed to adminifter affignees might the oath, unless he would deliver up the affignment given by arife from a mi- the bankrupt, dated January 21, 1742 ; whereupon the choice of the creditors; of affignees was again poftponed by order of the commiffioners.

is taken, because

nor part in value

But still, if com

mishoners have juft grounds to doubt the debt, they do right to admit it only as a claim.

And

And on the 5th of December instant at a meeting under the commiffion against Browning, for the creditors to prove their debts and chufe affignees, the petitioners attended and fwore to a debt of 8000l. and upwards, due to them from the bankrupt upon balance of all accounts, and in their depofition waved the affignment, and all benefits thereof; but notwithftanding they had fworn to their debt, two of the commiffioners refused to allow it, or to permit the petitioners to vote for affignees.

And therefore they now pray that they may be admitted creditors for their debt of 8000l. and upwards, and to vote in the choice of affignees of the estate and effects of the faid bankrupt.

Lord Chancellor: The queftion is not now whether the petitioner is to be admitted a creditor at all events for 8000l. but whether he is to be admitted fo as to join in voting in the choice of affignees; for there are distinctions in the act of parliament, and after voting in the choice of affignees his debt is equally liable to be difputed before the commiffioners, or in this court, notwithstanding it has been fo admitted.

And this plainly appears from the claufe in the act relating to credit, "And be it further enacted by the authority afore"faid, that when it shall appear to the commiffioners, or the "major part of them, that there hath been mutual credit "given by the bankrupt, or any other perfon, or mutual "debts between the bankrupt and any other perfon, at any "time before fuch person became bankrupt, the commif"fioners, or the major part of them, or the affignees of fuch "bankrupt's eftate fhall ftate the account between them, and "one debt may be fet against another; and what shall appear "to be due on either fide, on the balance of fuch account, "and on setting fuch debts against one another, and no more, "fhall be claimed or paid on either fide refpectively."

How does the matter reft then? There may be in the cafe of merchants, or as this is, in a matter of contract with the government, an open account, and if there does not appear to the commiffioners any reasonable objection to the fairnefs of the debt, the petitioners ought to be admitted, for the affignees may afterwards fettle the account, or it may be done in an adverse way.

If it was to be taken that in all cafes of open accounts the creditor ought to be excluded till the account is taken, the choice of affignees might arife from a much minor part in value of the creditors, or the choice of affignees might be fufpended for fome years from the neceffity of a previous fuit in this court.

But notwithstanding this, if commiffioners (tho' the creditor has made a pofitive oath) have juft grounds to doubt the fairness of the debt, they do right to admit it only as a claim.

As to this particular cafe, I think the petitioners ought to be admitted to prove; the doubt arifes upon the examination before the commiffioners, and upon the affidavit of the bankrupt, and the great objection that there has been no account

F 4

taken