1811, May 8. T SAXTON v. DAVIS (a). Bill by a Bank-THE Bill, filed by Daniel Saxton and Robert Jones, rupt, and the stated, that the Plaintiff Jones, a Carpenter and Assignce under Builder at Bristol, was in 1793 possessed of considerable an Insolvent Act, of which Property; and, having engaged to assist Persons, to whom he afterwards he had made building Leases, in 1792 he employed the took the Bene- Defendant Henry Davis, as his Attorney, and to act gefit against Re- nerally as his Agent; who undertook to procure him Mopresentatives of ney; that various Transactions accordingly passed between the deceased them; and in the Result the Property, received by Davis, Assignees, and far exceeds what was justly due to him; and upon a fair others, for an Account a considerable Sum is due from him to the Account of his Estate and vaPlaintiff. rious Transac tions before and The Bill farther represented, that, the Plaintiff Jones, since the Bank- having deposited all his Title-deeds with Davis, and placruptcy: no As- ing the most unbounded Confidence in him, he obtained signee in the the absolute Controul of all the Plaintiff's Affairs; and Bankruptcy being a Party, stated various Transactions, Mortgages, and Sales, frauand Collusion dulent Conveyances to himself under Pretence of Mortwith Persons gage, refusing to let Jones read the Deeds, before he accountable to executed, Securities obtained by Threats, without Conthe Estate sideration, &c. that by these Transactions Jones became charged against embarrassed; and on the 22d of March, 1793, was aronly some of rested, and committed to Prison for Want of Bail; where the Represen he remained until November, 1795: but on the 17th of tatives of the Assignces. April, 1793, a Commission of Bankruptcy issued against Demurrer allowed, generally for Want of Equity, and as Relief might be had by Petition in Bankruptcy; and ore tenus, the Suit being multifarious; as uniting Parties, though in some Respect connected, having distinct Interests. (a) 1 Rose's Bankrupt Cases, 70. him; under which he was declared a Bankrupt, Davis himself sued out and prosecuted that Commission; and had the sole and exclusive Management and Direction of it; and he caused Richard George and Richard Farman, his particular Friends, to be chosen Assignees, Farman died; having accounted with George for his Acts as Assignee. George afterwards died; having appointed the Defendant Bence one of his Executors: after the Death of Farman no other Assignee was appointed for a considerable Tine: but some Time afterwards the Defendant Henry Pater was by the Instigation and Influence of Davis chosen Assignee: but no regular Assignment has been made to him; and he was only chosen as a Colour, and to countenance the Bankruptcy. The Bill farther stated, that Jones, having been thus defrauded by Davis of the whole of his Property, and having been in Confinement nearly Three Years took the Benefit of the Insolvent Act, 34th and S5th Gea. 3.; under which his Estate and Effects were conveyed and assigned to the Defendant John Long in Trust for himself and all the other Creditors of Jones; and that Long, instead of bringing Davis to account, abetted him, and was an active Party in many of his Acts; and in consequence Long was by an Order of the Court of King's Bench removed from being the Assignee under the Insolvent Act; and the Plaintiff Saxton was appointed Assignee in his Room; and is now the Assignee under the Insolvent Act; that no Part of the Estate of Jones was fairly sold under the Commission of Bankruptcy: but Davis has possessed himself of the whole under some pretended Right or assumed Trust; and has never accounted. The Bill, then stating Applications by the Plaintiffs to Davis, to account, and restore the Property, to Bence, the surviving Executor of George, to account for George's Acts, 1811. SAXTON v. DAVIS. 1811. SAXTON υ. DAVIS. Acts, Receipts, &c. under the Commission, and assign to Saxton, Applications to Long, for the same Purpose, and to Pater to assign to Saxton all Right and Interest under the Commission, charged all the Allegations before stated, and particularly that Davis has in some Manner satisfied all or the most Part of Jones's Creditors, and obtained from them Discharges for their respective Claims: but he did not pay to them the whole Amount of their respective Demands, but some small Sum in lieu thereof; and there has never been any Dividend declared under the Commission; that at the Death of George he was indebted to Jones's Estate on Account of his Assigneeship; and Bence refuses to account to Saxton; that Long, while he was Assignee under the Insolvent Act, possessed divers Parts of the Estate; and has never accounted for the same; and he also conveyed and assigned to or in Trust for Davis divers Parts of Jones's real and Leasehold Property and Effects without any valuable Consideration, and at the Instigation and under the Directions of Davis; and the Defendants Ashton and Evans were stated to claim some Interest as Trustees under Jones's Marriage Settlement. The Bill prayed, that Davis may account for his Receipts and Payments, and pay to Saxton what shall be found due; and that he may account for the real and Leasehold Estates and other Property, &c.; that his Purchases may be declared fraudulent, and be set aside against the Plaintiffs and the Creditors; that he may be declared a Trustee for the Plaintiff as to all Mortgages and Incumbrances paid off, bought up, or otherwise discharged, &c.; and Accounts were prayed against Bence of George's Receipts and Payments, and of his personal Estate, if necessary; and against Long, and Pater, vespectively; and that they may respectively pay and assign to the Plaintiff Saxton. To To this Bill a joint Demurrer was put in by the Defendants Davis, Bence, Pater, and Evans, on Two Grounds: first, that the Plaintiffs have not by their Bill made such a Case as entitles them to Discovery and Relief: secondly, that it appears by the Plaintiff's own shewing, that, if entitled, they might have full and compleat Relief under the Jurisdiction of the Lord Chancellor in the Bankruptcy. Sir Samuel Romilly, and Mr. Bell, in support of the Demurrer. The first Question is, whether a Bankrupt can file a Bill against the Assignees under the Commission, merely alledging Misconduct by them; particularly a Bill of this Description; the Office Copy of which must be very expensive; Eighteen Years after the Bankruptcy, producing no Effects: the Bill stating, that no Dividend was ever made. If Proceedings so vexatious are added to the Difficulties, incident to the Office of Assignee, who can be expected to undertake it? Upon the Statement of the Bill neither Plaintiff has any Interest whatever. All the Interest of a Bankrupt in his Property is devested, and vests in his Assignees, so compleatly, that, while uncertificated, he cannot maintain an Action for any Property; nor, having obtained his Certificate, for any Thing, that belonged to him before his Bankruptcy. This is established by several Decisions; particularly in Benfield v. Solomons (a); different only as it was under Circumstances much more favorable to the Bankrupt: yet the Demurrer to his Bill by the Mortgagees was allowed. On similar Grounds the Assignees may demur; and also, as the Bankrupt may have compleat Relief by Petition in (a) Ante, Vol. IX. 77. 1811. SAXTON Το DAVIS. the 1811. SAXTON v. DAVIS. the Bankruptcy, he ought not take the more dilatory and expensive Proceeding by Bill; admitting, that in many Cases a Bill may be the more proper Course on account of the Appeal: but, if no peculiar Circumstances call for it, and compleat Relief may be had by Petition, the Bankrupt has no Option. In Clarke v. Capron (a) Lord Rosslyn decided expressly on that Ground. The mischievous Consequences of such a Bill are pointed out by Lord Alvanley in Spragg v. Binkes (b). It is now clearly established, that a Creditor unless he shews Collusion with the Executor, cannot maintain a Suit against a Debtor to Estate: Elmslie v. Macaulay (c). Utterson v. Mair (d). Troughton v. Binkes (e). This Bill is filed against a Person, who can be reached only through the Assignee, the responsible Officer of the Great Seal; and there is no specific Charge of Collusion, requiring the Interposition of this Court instead of the summary Proceeding, prescribed by the Legislature: a Remedy, which cannot be had in the Case of the Executor. These are the Grounds of the Demurrer upon the Record: but there are others, which may be alledged ore tenus. The Bill is multifarious; calling for an Account against the Assignee, under the Act of Insolvency, and under the previous Commission of Bankruptcy, having no Connection. The Suggestion of Collusion between Davis and Long, the Assignee under the Insolvent Act, the Transac tions being perfectly distinct, and relating to different Subjects, affords no Reason for involving them in the same Bill. It is not suggested, that the other Parties had any Concern with Long's Conduct. Another Objection is, (a) Ante, Vol. II. 666. ferences in the Note (a), Ante, Vol. VI. 749, to Alsager v. Rowley. Burroughs v. Elton, Ante, Vol. XI. 29. (e) Ante, Vol. VI. 573. that |