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1842.

observations apply only to the seven bills. As to the other part of the case, the Court will now call upon the respondents.

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Mr. Piggott, and Mr. Bigg, for the respondents. The creditor took this promissory note as the joint and several note of Manley and Newton, and the separate note of Samuel Newton, the surety. In Edis v. Bury (a), it was held, that where an instrument is made in terms so ambiguous, as to make it doubtful whether it be a bill of exchange or a promissory note, the holder may at his election, as against the maker of the instrument, treat it as either. So in the present case, we contend, that if there be any doubt whether this note is to be treated as the joint note of Manley and Newton, or the separate note of Manley, the bankers, who are the holders of it, may, as against Manley, who signed the note, treat it as joint, or several ; and they have accordingly elected to treat it as the separate note of Manley, only. If the bankers had brought an action against Manley and Newton, they might have pleaded in abatement that Samuel Newton was not joined. It is the party signing the note, who renders himself individually liable to the holder. Therefore, if a promissory note, beginning “I promise to pay,” is signed by one member of a firm for himself and his partner, it has been held, that the party signing is severally liable; Hall v. Smith (6). That case shows, that the party who signs the note pledges his separate liability, and may be sued separately. [The Chief Judge. Are Manley and Newton mentioned in the note as individuals, or are they not rather designated in their partnership capacity?] We submit, that if one (a) 6 B. & C. 433.

(6) 1 B. & C. 407.

1842.

Ex parte

of two partners die, the partnership creditors can, if the survivor becomes bankrupt, prove against his separate estate ; and that they are not bound to come only against the joint estate of the deceased and the surviving partner.

Wilson.

Mr. Anderdon, in reply. The proof against the separate estate, in the present instance, is entirely contrary to the Order of the Court of Review in this bankruptcy, as to the marshalling of the assets of the joint and separate estates.

Mr. F. Bayley, amicus Curiæ, referred to Ex parte Barned (a), where it was held that a joint creditor, who sues out a commission against A., "as surviving partner of B.," can claim only against the joint estate.

The Chief Judge asked Mr. Swanston, how it was as to the mode of proof allowed to be exercised by a joint creditor of two parties, where one dies, and the other becomes bankrupt.

Mr. Swanston said, that the practice of Lord Eldon in such a case, was invariably to order distinct accounts to be kept of the joint and separate estates, and he also referred to the above cited case of Er parte Barned (a).

The Chief Judge. The question is in this case, whether the deceased partner, Newton, was jointly liable on this note with Manley, or whether the note is to be treated as the separate note of Manley, and of Samuel Newton. With respect to the seven bills of exchange,

(a) 1 G. & J. 309.

1842.

it strikes me that the proof is right. As to the other point, I will consider of my judgment.

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VICE-CHANCELLOR Knight Bruce, C. J.-The question upon this petition, which was to expunge a proof against the separate estate, arises on a promissory note in these terms;

“We jointly and severally promise to pay to the bank of Bolton on demand, the sum of 20001. for value received.

Manley and Newton,

Samuel Newton. Two of the parties, whose note it is, are alive; the third, namely Philip Newton, one of the partnership firm of Manley and Newton, which was composed of himself and the bankrupt, died before the bankruptcy. The Commissioners were of opinion, that, by the effect of the words "joint and several," there was, in addition to the joint liability of the three, a several liability of each one of the three, but not a joint liability of the two partners, living the three. And, if this had been an ordinary case of a joint and several promissory note by three persons, I should readily have agreed with them. But here, the promissory note having been given to secure a debt due, or to become due, from the partnership of Manley and Newton, who were joined in the note by Samuel Newton, the other party to it, as their surety, and having been signed by the bankrupt and Philip Newton, or by one on behalf of both of them, not as individuals, but in the style merely of their firm, I think it is the true construction of the instrument to say, that it was not the several note of each one of the three, but was the several note of the surety, Samuel Newton, and the joint note of the bankrupt and Philip Newton. It may also have been the joint note of the three; but

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with that we at present have nothing to do. It follows, if I am right, that it is only as the surviving partner of his firm, that the bankrupt became severally indebted upon the note; and the proof therefore must rank, for the purposes of dividend, among the partnership debts, and not among those, which in the lifetime of his partner were merely the separate debts of Manley, or which were incurred by Manley after the death of Philip Newton.

Ex parte James DiLWORTH and John DILWORTH.-In the matter of EDWARD BARNARD HOLLAND.

Westminster,

November 21. THIS was the petition of creditors that a dividend Where a credi.

tor, through in already declared might be rescinded, and that they might advertence,

omits to prove be permitted to prove under the fiat. At the issuing of om

at the final divi. the fiat, on the 15th October 1841, the petitioners claimed the Court will to be creditors for 7611. 16s. 5d. for goods sold and allow him to

a delivered and money lent. On the 21st December 1841, meeting for that

purpose, at his they proved for only a part of their debt, namely, for the own costs, and

will rescind the sum of 350l.; and the reason they assigned for not proving former dividend,

so, however, as the remainder was, that they were not then in a situation not to disturb

any payments to do so, in consequence of a bill of exchange having made to the

creditors who been negotiated by them, and being then outstanding. have already The petitioners alleged, that they had afterwards taken received it. up this bill, since which there was no meeting for the proof of debts until the 19th September 1842, when final dividend of 1s. U1d. in the pound was declared; and that by some inadvertence no person appeared on behalf of the petitioners to prove for the remainder of their debt, amounting to the sum of 4111. 16s. 5d. On the day after the dividend was declared, the petitioners gave notice

a

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to the assignees of their claim for this further sum, and that, having omitted by mistake to attend the dividend meeting, it was their intention to apply for an order to prove; and they gave them notice not to pay the dividend, until the result of the application was known.

Mr. Bacon appeared in support of the petition.

Mr. Spence, contrà. The omission to prove proceeded from the laches of the petitioners, and afforded no ground for the prayer of this petition. In a case of this kind which occurred before Sir George Rose, he refused to disturb a former dividend.

VICE-CHANCELLOR KNIGHT BRUCE, C. J.-In Er parte Day (a), where a creditor through accident omitted to prove at the meeting for a final dividend, the Lord Chancellor held that he might be permitted to prove, without disturbing any payment made by the assignees, and placing the creditors not paid in the same situation as if he had originally proved. I think I ought to make the same order as in Ex parte Day. Let the final dividend therefore be rescinded, and the petitioners be at liberty to call a fresh meeting for the purpose of declaring another dividend; but the petitioners must pay all the costs of this application, and of the meeting; and the payment of the dividend to those creditors, who received it before notice of this application, is not to be disturbed. His Honour then directed the registrar, in drawing up the order, to keep close to that of Lord Lyndhurst in Ex parte Day, as inserted in the Registrar's Book.

(a) Mont. 212.

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