Page images
PDF
EPUB
[blocks in formation]

be received by the firm,-it is I think at least difficult to say that it also raises a separate demand against each of the partners, or against any one of them severally other than Mitchell.

If it could be so put, then would it be the common case of election between the joint and all the several estates, where though at law, by action and execution, the creditor might have got both the joint and separate estates, here he would be put to his election. It is not however ventured to be put as a case in which the creditor may elect between the joint estate of all, or the separate estates of all, but it is put upon this,—that there is a proof against Mitchell's separate estate, and his separate estate exclusive of the other separate estates, by the force of his separate signature, thus throwing the wliole burthen upon his separate estate only. Hall v. Smith has said that Mitchell could not have pleaded in abatement-be it so--but does that embrace all the question ? Mitchell says, “I promise to pay bearer value received for self and partners, on demand,” if he is to be taken as so contracting exclusively, and upon his own assumpsit, as a surety for his firm, and for bis other partners as included in the firm, they not also individually contracting for any separate right of action against them, surely the demand is an importa.t ingredient in such his Mitchell's undertaking-and the reason is obvious,-because the demand being previously made upon him would give him the opportunity of setting himself right with his partners both jointly and respectively, is he not by the force of his exclusive contract a surety, and entitled to the protection which the demand is to be presumed as giving him ? If this be so at law, from the nature of the contract, a fortiori, it should be so

[blocks in formation]

in bankruptcy, for the insolvency having taken place before any such demand, it is now too late to arrange the equities between either the joint estate or the several estates of the partners, otherwise than by letting the burthen fall upon that, which having received the consideration, and, being bound by the contract, and having been intended so to be, ought in equity to bear it.

I have looked at the deposition upon the proceedings, and it states no consideration for the note, it merely sets out the instrument, it states no demand upon Mitchell, and it therefore appears to me, as well from the legal effect of this instrument, and a fortiori from the proper direction of the proof, against the proper parties, and the proper estate, the liability attaches upon the joint estate of the four, and that as against Mitchell's separate estate it ought to be expunged.

Ordered accordingly. Assignees' costs out of the

estate.

An appeal from this decision has been heard before the Lord Chancellor and stands over for a case to be sent to a court of law.

VOL. III.

3 Е

I N D E X

TO THE

CASES IN THIS VOLUME

AND TO THOSE

CONTAINED IN THE FOLLOWING CONTEMPORANEOUS REPORTS.

Adolphus and Ellis, New Series, vols. 1,2,3,

and vol. 4, part 1.
Beavan, vols. 5 and 6.
Carrington and Kirwan, vol. 1, parts 1, 2,

and 3.
Clarke and Finnelly, vol. 9 and vol. 10, parts

1, 2, and 3.
Collyer, vol. 1, part 1.
Connor and Lawson, vol. 2, parts 3 and 6.
Curteis, vol. 3, parts 2 and 3.
Davison and Merivale, vol. I, part 1.
Dowling, New Series, vol. 3, parts 1 and 2.
Dowling and Lowndes, vol. 1 a vol.2, part 1.
Drury and Warren, vol. 3, part 2.
Gale and Davison, vol. 3.

Hare, vol. 2, part 4, and vol. 3.
Manning and Granger, vol. 4 and vol. 5, parts

1, 2, 3, and 4,
Meeson and Welsby, vol. 11 and vol. 12,

parts 1, 2, and 3.
Moody and Robinson, vol. 2, part 4.
Moore, vol. 3.
Phillips, vol. 1, part 2.
Robinson's Admiralty Reports, vol. 2, part 1.
Scott's New Reports, vol. 5, part 5, vols. 6,

7, and vol. 8, part 1.
Simons' Reports, vol. 12, parts 2, 3, and 4.
Younge and Collyer's Reports in Chancery,

vol. 2, parts 3 and 4.

ACT OF BANKRUPTCY. 4. c. 16. s. 72, and, therefore, where
1. An assignment of all the property both assignors and assignees became
of traders, in consideration of the bankrupts, and the fiat against the as-
assignees giving promissory notes to signees was issued first, held, that
the traders' creditors, held not to be a the question did not arise whether
sale within the principle of Baxter v. the assignees in bankruptcy of the
Pritchard, but an act of bankruptcy. assignors could be held, by relation,

The possession taken under such to have assented, before their ap-
a deed held to be incapable of creat pointment, to the assigned property
ing reputed ownership within 6 Geo. being in the order and disposition of
746 Act of Bankruptcy.

INDEX.

Act of Bankruptcy.

Ex parte

the assignees under the deed, in ana- customary time of entry on farms in
logy to the principle of Ex parte the neighbourhood was the 12th of
Thomas and For v. Fisher.

May; and that the rents on the
Zwilchenbart, 3 M. D. & D. 671. estate of which G. farm was a part,

2. The following document held to were always reserved payable at
be a mere agreement for a future Michaelmas, the audit day being in
tenancy, not an actual demise, and

January. 7'. J. entered on the farm in
therefore properly stamped with a the spring of 1840, and continued in
one pound stamp: “Memorandum of possession until 1842. In May 1842
an agreement entered into this 31st he owed an arrear of rent amounting
Jan. 1840, between R. B. of the to 1601., and on the pressing appli-
one part, and T. J. of the other part. cation of his landlord executed a
The said T. J. hereby agrees to be- warrant of attorney for 4201., the
come the tenant of G. farm, at the amount of that arrear and of the
customary time of entry, under the current year's rent, upon

the under-
following conditions, viz. that the standing that judgment was to be
sum of 2601. annual rent shall be entered up thereon, and a fi, fa. de-
paid at the usual time for the house, livered to the sheriff, but that it was
premises, and lands, as agreed upon;

not to be executed unless other writs
and the said R. B. agrees to lay against T. J. came to the sheriff's
out in the improvement and altera- hands. In October 1842 application
tions of the farm-house and new was again made to T. J. for payment
sheds a sum not exceeding 2001., of rent, he being expressly informed
with the understanding that spars that another year's rent had then be-
for rafters shall be found from the come due ; and on that occasion he
estate; cartage of all materials, ex- paid a sum on account, and under-
cept stones for walls, to be done or took to pay the remainder before the
found by T.J. (Signed) R. B., T. Christmas following. In November
J."

1842 other writs against T. J, have
Held, also, that this agreement did ing come to the sheriff's hands the
not necessarily import, in point of fi. fa. issued upon the judgment on
law, that the year's rent was to be the warrant of attorney was exe-
payable at the end of the year from

cuted :
the time of the entry; but that it Held, that under these circum-
might be shown from the contempo- stances there was sufficient evidence
raneous or subsequent dealings of to warrant a finding that the year's
the parties that their understanding rent became payable at Michael-
was that the rent should become pay-
able at an earlier period.

That the giving of the warrant
It appeared in evidence that the

of attorney under the above cir.

mas.

« PreviousContinue »