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1844.

Ex parte CHRISTIE.

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 whole 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 his 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 important 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

estate.

1844.

Ex parte CHRISTIE.

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.

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INDEX

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.

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.

Clarke and Finnelly, vol. 9 and vol. 10, parts Moody and Robinson, vol. 2, part 4.

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746 Act of Bankruptcy.

INDEX.

the assignees under the deed, in ana-
logy to the principle of Er parte
Thomas and Fox v. Fisher. Ex parte
Zwilchenbart, 3 M. D. & D. 671.

2. The following document held to
be a mere agreement for a future
tenancy, not an actual demise, and
therefore properly stamped with a
one pound stamp: "Memorandum of
an agreement entered into this 31st
Jan. 1840, between R. B. of the
one part, and T. J. of the other part.
The said T. J. hereby agrees to be-
come the tenant of G. farm, at the
customary time of entry, under the
following conditions, viz. that the
sum of 2601. annual rent shall be
paid at the usual time for the house,
premises, and lands, as agreed upon;
and the said R. B. agrees to lay
out in the improvement and altera-
tions of the farm-house and new
sheds a sum not exceeding 2007.,
with the understanding that spars
for rafters shall be found from the
estate; cartage of all materials, ex-
cept stones for walls, to be done or
found by T. J. (Signed) R. B., T.

J."

Held, also, that this agreement did
not necessarily import, in point of
law, that the year's rent was to be
payable at the end of the year from
the time of the entry; but that it
might be shown from the contempo-
raneous or subsequent dealings of
the parties that their understanding
was that the rent should become pay-
able at an earlier period.

It appeared in evidence that the

Act of Bankruptcy.

customary time of entry on farms in
the neighbourhood was the 12th of
May; and that the rents on the
estate of which G. farm was a part,
were always reserved payable at
Michaelmas, the audit day being in
January. T'. J. entered on the farm in
the spring of 1840, and continued in
possession until 1842. In May 1842
he owed an arrear of rent amounting
to 160., and on the pressing appli-
cation of his landlord executed a
warrant of attorney for 4201., the
amount of that arrear and of the
current year's rent, upon the under-
standing that judgment was to be
entered up thereon, and a fi. fa. de-
livered to the sheriff, but that it was
not to be executed unless other writs
against T. J. came to the sheriff's
hands. In October 1842 application
was again made to T. J. for payment
of rent, he being expressly informed
that another year's rent had then be-
come due; and on that occasion he
paid a sum on account, and under-
took to pay the remainder before the
Christmas following. In November
1842 other writs against T. J. hav-
ing come to the sheriff's hands the
fi. fa. issued upon the judgment on
the warrant of attorney was exe-
cuted :

Held, that under these circum-
stances there was sufficient evidence
to warrant a finding that the year's
rent became payable at Michael-

mas.

That the giving of the warrant
of attorney under the above cir-

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