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let us stop here to inquire whether this rule is consistent with law? Unquestionably it is not. Is it consistent with justice? It is almost admitted that it is not. I should, therefore, in this case require the most absolute and positive authority for the existence of this rule, before I can consider myself bound by it. Let it not be supposed, that placed as I am in this new situation I wish to run counter to those opinions of sage and learned men, which have been cited in the course of this argument, and are to be met with in the books. That is far from my intention. Still I hold it to be the duty of an English Judge upon all occasions openly but decently, and I may say reverently when it affects any decision of Lord Eldon, to declare his honest and sincere opinion. The rule is admitted to be an arbitrary one; and all Judges say they cannot understand on what principle it rests. In the case of Ex parte Bevan (a), Lord Eldon says, "In bankruptcy, for some reason, not very intelligible, it has been said, the creditor shall not have the benefit of the caution he has used. I never could see why a creditor having both a joint and a several security should not go against both estates." In other cases, too, Lord Eldon has expressed himself to the same effect. And in the very case which His Honor the Chief Judge has laid such stress upon, I mean the case of Ex parte Husbands (b), Lord Eldon lays down the exception to the rule, which would seem to have led to a decision contrary to the judgment in that case pronounced by him; though the judgment in that case turned upon a point other than the one now before the Court. For he says, "It is clear, that where a party takes a bill, drawn by some mem(a) 10 Ves. 106. (b) 2 G. & J. 4.

ber or members of a firm carrying on a distinct trade, in the firm, in ignorance that the drawers constitute part of the firm of the acceptors, proof is admitted against both the drawers and acceptors."

But the rule contended for being so arbitrary, and as it appears to me so unreasonable, I thought it right to refer to the first case upon the subject, Ex parte Rowlandson (a), which was decided by Lord Talbot so long ago as the year 1733, nearly a century back. That was a case upon a bond, by which the bankrupts, John Crosfield and James Birket, who were partners, were bound jointly and severally to Rowlandson; and Lord Talbot held, that Rowlandson might choose against which estate he would come, but that he should not come against both. But let any man ask himself, whether a joint and several bond is like the case of a bill or note. On a joint and several bond you must make your election in proceeding at law against the obligors; you must either sue them jointly, or separately. So, you cannot proceed against two of three joint obligors, but you must either go against all, or each separately. But in the case of a bill of exchange you may proceed against all the parties to it, until you have got full satisfaction for your debt. And even in the case of a bond, if the obligee sues the obligors jointly, and recovers judgment, the plaintiff in such case is at liberty to take the joint, as well as the separate, effects of each of the obligors in execution. The arbitrary rule, therefore, which is so strenuously contended for in this case, appears to me to stand upon a very sandy footing.

I come now to the second branch of the argument, namely, whether this case falls within the line of distinc(a) 3 P. Wms. 405.

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tion which is laid down by Mr. Cooke (a), and recognized

by Lord Eldon. The distinction taken is this: where bills are drawn by all the partners upon a distinct firm constituted of some of them, a party may prove against both estates if he was ignorant of the connection of the parties, but not when he was aware of their identity. I may observe here, that this Court is one both of law and equity; and the point of law and equity in this case seems to me as clear as the sun at noon-day. We have here one firm composed of various persons trading under different firms, and it is not known to the holder taking the bill, that those different firms belonged to one partnership. I think it would be a species of doctrine prejudicial to the interests of the public, to say, that in such case the holder cannot prove against all the parties to the bill; and, therefore, if I can find any cases that will assist me in the view I take of this subject, I shall avail myself of them to decide according to common law, reason, and justice. The cases of Ex

parte Laforest and Ex parte Benson, in the 1st volume of Mr. Cooke's Bankrupt Laws (b), are so strong upon this point, that I can hardly draw any distinction between those cases and this. The facts there are nearly similar to those of the present case. So, the more recent case of Ex parte Adam (c) is confirmatory of the same doctrine. Indeed, where paper is negotiated in this country to such an extent, it would be most fatal to the interests of commerce, to prevent a bill-holder from availing himself of his security to its fullest extent. In the case of Ex parte Bonbonus (d) Lord Eldon says, "There have been many cases, particularly in the bankruptcy of Burton, Forbes, and Gregory, where

(a) 1 C. B. L. 261. (b) Page 251. (c) 2 Rose, 36. (d) 3 Ves. 546.

three or more partners being also concerned in other trades, the paper of one firm was given to the creditors of another, and they were permitted to take dividends from both estates. That therefore takes it out of the general doctrine."

In this case, the paper negotiated by the bankrupts was accommodation paper. Williams and Co., the holders of the two bills of exchange, gave a full and valuable consideration for them, amounting to 6417. 9s. There are names of four or five different firms appearing on these bills, which are in truth one and the same firm, though each of those firms is apparently carrying on a distinct trade at a distinct place. The holder, in ignorance of these facts, trusts to the deceitful appearance of the bills, and finds that he has taken nothing but trash. Is he to be told then, because the parties. become bankrupt, that there is an arbitrary rule which deprives him of the remedy he is entitled to at law, and that he can only prove the amount of the bill against one of these firms? As such a decision would, I think, be contrary to law and justice, and contrary also to the principle of those cases which define the exception to the arbitrary rule contended for, upon these grounds I must say, in my judgment, that Williams and Co. are entitled to double proof.

As to the deduction of the dividends, I concur in opinion with his Honor the Chief Judge.

His Honor Sir J. CROSS, after referring to the facts of the case, thus proceeded:-It has been stated on all hands as a general rule, that when a party holds a joint and separate security, he must in bankruptcy make his election, whether he will go against

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the joint or separate estate. The reason of the rule it is difficult to discover; but it will not be necessary in this case to disturb that rule. In Ex parte Adam (a), however, where there were five partners, two of whom carried on a distinct trade, Lord Eldon permitted the creditor to prove against both estates. It is not denied, therefore, that there is this exception to the rule,—namely, where there are distinct firms, and distinct trades, and the creditor did not know they were all the same as the partners in the larger firm. This was clearly settled by Ex parte Adam.

If

But there is another rule, it is contended, which prevents the exception extending to the case of an individual partner carrying on a separate trade. there be such a rule, of course, we are bound to submit to its authority. But I have read every case on the subject, and I cannot discover any such rule. Let us see, therefore, whether there is any foundation in reason to support it. In Ex parte Bigg (b), it is true, that double proof was not admitted; but not on the ground that the drawer of the bill was merely an individual partner, but because he was not a distinct trader. And though in Ex parte The Bank of England (c) one of the parties to the bill was merely an individual trader, yet Lord Eldon's judgment against the right of double proof did not proceed on that ground, but because the bill-holder knew of the partnership of the parties when he took the bill. No allusion whatever is made to any distinction, that the exception to the rule does not apply to an individual partner, as well as to several. And in the case of Ex parte Sillitoe, 1 G. & J. 383, Lord Eldon says, "Another relaxation of the rule was ad

(a) 2 Rose, 36.

(b) 2 Rose, 37.

(c) 2 Rose, 82.