be due upon a Settlement from Brumell and Heyliger. The Bills in the Petition mentioned arose out of the said Partnership Transactions; and were drawn and accepted, while the Deponents and Brumell and Heyliger were so in Partnership; and the Mortgage was obtained as a farther Security for the Bills.

Mr. Leach, and Mr. Agar, in support of the Petition.

Two Objections are made by this Petition: first, that the Commissioners acted erroneously in refusing the Proof, until the Security had been made available: secondly, that under a joint Commission a Choice of Assignees by separate Creditors cannot be supported. The Reason for refusing the Proof upon these Bills was, that the Petitioners held another Security from the Drawers. Upon what Principle can that stand? It would be correct, if they held a Security on the Bankrupt's Estate; which is prima facie a Satisfaction: but with regard to distinct Security from another Person, the Creditor has a Right to avail himself of all his Securities (a). The Acceptor, if an Action was brought against him, could not object, that the Holder had other Security from the Drawer. It is tue, Leigh and Armstrong, the Bankrupts, were Partners in the House at Demarara; and admitting that House to have been Debtor to the House in London, the Objection would be, that the Creditor, giving Time to the Principal, discharges the Surety but the Creditor had no Knowledge, that the Acceptor was, not the principal Debtor, but in Truth a Surety; having accepted without Consideration.

With regard to the Choice of Assignees, admitting the Rule of Convenience, that your Lordship will not interfere, unless some Creditor has been excluded for the very Purpose of obtaining that Choice, this Case has

(a) Ex parte Bloxham, Ante, Vol. VI. 449. 600.

1811.

PARR, Ex parte.

1811.

PARR, Ez parte.

sufficient Grounds for setting aside the Choice. If the Choice of Assignees is with the joint Creditors, Thomas Parr was duly chosen: only one joint Creditor voting against him. The Question therefore is, whether the separate Creditors had any Right to vote; depending, not on Usage, but positive Law. They are not Creditors within the Sense of the Act of Parliament (a); which directs the Choice of Assignees to be by those Creditors, who could prove under the Act. The separate Creditors are not entitled to prove by the Authority of the Act; but are admitted to prove their Debts under the general Order (b); that they may have the separate Property administered for their Benefit. The Effect of such an Ar rangement, whether by a general or special Order is the same. They are adınitted, not under the Statute, but by. the special equitable Jurisdiction of the Lord Chancellor, by Analogy to the Case of joint Creditors applying to prove under a separate Commission; which, for the Purpose of voting in the Choice of Assignees, or receiving Dividends, is constantly refused, unless in the excepted Cases; as, where the separate Creditors are paid 20s. in the Pound (c).

Sir Samuel Romilly, and Mr. Bell, for the Assignees.

These Petitioners holding Bills, drawn by the House at Demarara upon, and accepted, by the House at Liverpool, the Members of which House were also Partners in the House at Demarara, cannot be admitted to prove, until they have made available another Security, which they hold.

(a) Stat. 5 Geo. 2. c. 30. 5. 26.

(b) General Order, 8th March, 1794, 4 Bro. C. C. 543.

(c) Ex parte Datastet, Ante, Vol. XVII. 247. Ex parte Taitt, Ante, Vol. XVI. 193. Ex parte Ackerman, Ante, Vol. XIV. 604.

The

The Rule as to the Choice of Assignees is, that your Lordship will not interfere merely on the Ground, that some Creditor has voted, who strictly had not a Right to vote: but something more must be shewa; as in a late Instance, that a Creditor was prevented from proving for the mere Purpose of preventing his voting in. the Choice of Assignees; and was permitted to prove after the Assignees were chosen (a). The Practice is to permit the separate Creditors to vote; and it would be most unjust, that an Arrangement for the Purpose of general Convenience, and to prevent Expence, should affect the Rights of any Class of Creditors.

The Lord CHANCELLOR.

As to the Right of the Petitioners to prove without bringing to Market their Security, if it stood simply upon this State of Circumstances, a House in Demarara drawing upon another House in London, and that House accepting, and the Drawers, having, when they drew, given another Security, the Acceptor is liable primą facie; and, unless he has been discharged by some Dealing, the Circumstance of a Security taken will not authorize the Commissioners to refuse the Proof. It is said however, that the House at Liverpool was Partner with the other House: but it has been established above Thirty Years, that the same Persons may be both Drawers and Acceptors, as constituting different Firms. The Petitioners have therefore a Right to prove without deducting the Value of the Security; and the Question between the Two Houses will arise after the Proof of the whole Debt; and will affect the Dealing with this Property, after they have paid 20s. in the Pound, and not be fore (b).

(a) Ex parte De Tastet, 1 Ves. & Bea. 280.

(b) Ante, Vol. VIII. 546, Ex parte Bonbonus:

1811.

PARR, Ex parte.

1811.

PARR,

Ex purte.

The Rule is correctly stated at the Bar, that it is not the Habit to interfere with the Choice of Assignees merely on account of a Mistake of the Commissioners, excluding one Creditor; if it occurred in the fair Exercise of their Discretion: but this is not a Case of that Sort: the Objection being, that this is a Choice of Assignees by Persons, who had no Right whatsoever to choose them. In the Case of a separate Conmission it has been frequently determined, that though an Arrangement will be Joint Cre- made here for the joint Creditors, they cannot vote in the ditors cannot Choice of Assignees; which before Lord Thurlow went vote in the this Length, that the Creditor, who took out the CommisChoice of Assion, if there was no other separate Creditor, might choose signees under a himself; and in one Instance Lord Thurlow appointed, at separate Commission, even if the Expence of the joint Estate Persons to deal with that there is only one Estate adverse to the separate Creditors; as a Sort separate Credi- of Trustees; refusing to make them Assignees. Thẹ tor: but an Ar- Converse of that Rule must be equally true; that separate rangement will Creditors cannot vote in the Choice of Assignees under a be made for the joint Commission: the Choice being with those Creditors, joint Creditors who go in, not by the particular Order made here, but by The Choice of their Right under the Act of Parliament; and those CreAssignees is ditors, who now go in under that General Order, made by Lord Rosslyn, before could not have gone in without a particular Order under the Lord Chancellor's general Jurisdicto prove under tion to dispose of the Bankrupt's Property; and generally, before they could obtain that Order by Application here, the Assignees were chosen.

by Order.

with the Creditors, entitled

the Act of Parliament; excluding Persons, who could not be admitted without an

Order; as separate Creditors under a joint Commis

sion; now ad

The Order declared the Petitioners entitled to prove their Debt without deducting the Value of the Security they held; and directed, that another Meeting should be held for the Choice of Assignees (a).

(a) See Er parte Longman, the next Case. mitted under the General Order (8th March, 1794).

1811,

Ex parte LONGMAN.

May 15.

DER a separate Commission of Bankruptcy this Joint Cre

UNDE

under a sepa

Petition was presented by joint Creditors of the ditors not entiBankrupt and his Partner, John Drake, who was in Por- tled to vote in tugal; stating, that by an Order, reciting, that the As- the Choice of signees under the separate Commission had possessed Assignees joint Property, it was ordered, that the Petitioners and the other joint Creditors should be admitted to prove under the separate Commission. The Petition prayed, that the Assignees may be removed; and that a Meeting may be directed for the Choice of new Assignees.

1

Sir Samuel Romilly, and Mr. Cullen, in support of

the Petition.

Under the Circumstances a new Choice was ordered: but the joint Creditors were not permitted to vote in the Choice.

rate Commission: the

Choice being in the Creditors, who be fore went in by their Right under the Act of Parliament, not under an Order.

General Order

The Lord CHANCELLOR said, he thought the Practice of letting joint Creditors vote in the Choice of Assignees under a separate Commission wrong: he did not conceive Lord Rosslyn's General Order was by any Means intended to alter the Rights of joint and separate Creditors in Bankruptcy with regard to each other; and the Choice of Assignees (8th March, was to be by the Creditors, who before went in by 1794) not intheir Right under the Act of Parliament, not under the tended to alter Effect of a particular Order made here (a).

(a) Ex parte Parr, the preceding Case.

F4

SAXTON

the Rights of joint and separate Creditors with regard to cach other.