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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
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
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.
I N D E X
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.
1, 2, and 3.
Hare, vol. 2, part 4, and vol. 3.
1, 2, 3, and 4,
parts 1, 2, and 3.
7, and vol. 8, part 1.
vol. 2, parts 3 and 4.
ACT OF BANKRUPTCY. 4. c. 16. s. 72, and, therefore, where
The possession taken under such to have assented, before their ap-
Act of Bankruptcy.
the assignees under the deed, in ana- customary time of entry on farms in
May; and that the rents on the
2. The following document held to were always reserved payable at
January. 7'. J. entered on the farm in
not to be executed unless other writs
1842 other writs against T. J, have
That the giving of the warrant
of attorney under the above cir.