balance still due; but as the balance due to Reid & Co. is far beyond the sum now sought to be recovered, that point does not arise. Then, is the legal liability of the acceptor in any way affected by the bankruptcy of the parties? Sammon's estate being now solvent, his bankruptcy cannot affect the question. What is the effect of the bankruptcy of Laing and Co.? It prevents Reid & Co. from receiving a larger proportion from the bankrupt's estate than the rest of the creditors; but it presents no obstacle to their recovering from other parties upon the securities in their hands, although by so doing, they in fact receive altogether a larger portion of their debt than those creditors, who have no security to resort to. The most that could be gained by treating the bills in question as mere accommodation paper, would be to entitle the acceptors to stand in the same situation which the drawers would have occupied if it had been a bill for value. And even then a question might arise, whether this effect would be produced, without proving the holder's knowledge of that fact. But, assuming that it might, the acceptors could not be in a better position than the drawers. Would the assignees of Laing & Co. be entitled to consider the bills as fully paid, and require them to be delivered up to them; and could they insist upon the amount of the bills being expunged from the proof, and the payment of dividends only on the remainder of the original debt? If the bills had been fully paid by the acceptors, they might; or if they had been partly paid by the acceptors, and the assignees were to pay the unpaid balance specifically on the bills, they might, according to the case of Ex parte 1832. Ex parte SAMMON. 1832. Ex parte SAMMON. Burn (a). But the dividends here from Laing & Co.'s estate were not paid specifically on the bills, but upon the debt generally. Could they now treat that payment, as if made specifically on the bills? If they could, then would arise the question, which would give importance to the consideration for the acceptance, namely, would an accommodation acceptor have the same right so to treat that payment? If I had been left to consider the case upon general principle only, I should have had no doubt that Laing & Co, could not treat this as payment on the bills; because, having remitted them as a general security for the balance of the debt, and the dividend having been paid on the debt, and not specifically on the bills, the creditor would have a right to appropriate the securities to the balance left unpaid. But the decision of his Honor the Vice-Chancellor in the case of Er parte Rufford (b), which I mentioned in the course of the argument, induced me to pause, because I was unwilling, without due deliberation, to treat as erroneous the decision of a learned judge, for whose opinion I entertain the highest respect. Upon the best consideration, however, that I have been able to give that case, I am satisfied that it is at variance with the general principle and the authorities bearing on the subject, and cannot be supported. If the order had been right in restraining the payment of the dividends, it should have gone further, and ordered so much of the debt to be expunged. For the only principle upon which it could rest would be, that the payment of a dividend on the whole debt, was tantamount to the payment of that proportion on the bills; and if so, the (b) 1 G.& J. 41. (a) 2 Rose, 55. bills would have been fully paid. The case of Ex parte Burn would have warranted the reduction of the proof by expunging the amount of the bills. But it seems to me, that as Laing & Co., if solvent, would have had no right to appropriate a payment made upon the debt generally, to the redemption of the bills lodged by them with Reid & Co., as a security for the balance of that debt; so, neither could their assignees be entitled so to do, though the amount was calculated upon a pound rate. Still, in substance and effect, the dividend of 4s. 8d. in the pound was but the payment of 9337. 6s. 8d., leaving a balance far beyond the amount of the bills due to Reid & Co.; and if those bills are to be taken as a floating security for the balance, neither in law, nor in justice, can the holder's claim against the acceptor be diminished by the circumstance, that the instalment received from the drawer was calculated at a pound rate upon the whole debt, not with the view of appropriating any specific sum to the redemption of the bills, but merely for the purpose of regulating the proportion which each creditor should receive from the bankrupt's estate. And such being my opinion, I concur with the other judges who heard this case, in thinking that it will be unnecessary to institute any inquiry into the consideration for the acceptances. The order must be, therefore, for the payment of the 3081. to Reid & Co. and for the conveyance of the estate to Mrs. Sammon as arranged upon a former day, and the costs out of the estate. The rest of their Honors concurred. 1832. Ex parte 1832. MEMORANDA. DURING this interval his Honor Sir ALBERT PELL departed this life, at his residence in Harley Street, after a short illness. September 13. On this day his Honor the Chief Judge (the other Judges being absent from London for the vacation) sat in Southampton Buildings, for the purpose of hearing those petitions in which the parties consented to be bound by his judgment alone as effectually as if a full Court had been present (a). (a) By the terms of the 1 & 2 Will. 4. c. 56. s. 2. not less than three Judges are required to be present to form a Court. Sume day. Ex parte Fox, or BURNELL.-In the matter of BENNETT and ROBINS. Time of opening MR. MONTAGU applied that the time for opening a fiat enlarged, bankruptcy where witness in the fiat in this bankruptcy might be enlarged for a support of the month. He stated, that by reason of the witness to keeps out of the way and is sum- support the fiat refusing to attend, although her exmoned by the Commissioner to penses had been tendered, (she being the mother-inlaw of the bankrupt,) the petitioner was unable to proceed to adjudication, and in consequence the Commissioner, to whom the fiat was directed, issued his summons and warrant to the witness to enforce her attendance. He therefore trusted the time would be attend on a future day. enlarged till the result of the summons and warrant was ascertained. ERSKINE, C. J.-This being an ex parte application, and a matter not brought on by consent, all I can do, in the absence of the other Judges, is to notify that I think the application reasonable (a). (a) This application was renewed on the 27th September, before their Honors the CHIEF JUDGE, Sir J. CROSS, and Sir G. ROSE, and granted. 1832. Ex parte. Fox or BURNELL. Ex parte WRIGHT.-In the matter of CHAMBERLAIN. THIS was the case of an equitable mortgage. Mr. Montagu applied on this petition, that the assig nees might be declared to have abandoned all interest in the mortgaged premises. September 13. Though assig nees consent to abandon property under equitable mort Court requires gage, yet the an affidavit to show that such abandonment will be for the Mr. E. Chitty appeared to consent on behalf of the benefit of credi assignees. He stated that the premises in question were not worth the amount for which they were mortgaged, and therefore the creditors would be benefited by giving up all interest, since the creditor would otherwise have liberty to prove against the estate for the deficiency in value. ERSKINE, C. J.-I can only make this order on production of such an affidavit as should satisfactorily prove that the proceeding would be for the benefit of the creditors. tors. |