admitted. It is clear these Petitioners have no lien, as it is called, on the ship, and if no freight had been earned, their only relief could have been against the original owners who employed them. If there had been no sale, the creditors would have had no lien on the ship, because that was not joint property; but the earnings of the ship would have been joint property, and liable to the joint creditors; not from any doctrine peculiar to the earnings of a ship, but on the general principle applicable to the joint property of every partnership, its liability to the joint creditors. Is then this freight the joint property of Oliver & Co. ? All the question turns upon the point, whose property this freight is. It arose out of a contract by the owners of the goods shipped at Jamaica with the then owners of the ship, Croft and Jones. The money due from the owners of the goods was payable to the owners of the ship, who were such when the goods were shipped, and took upon them the responsibilities of the voyage. Those owners might have refused to have taken the goods, or might have agreed to take them to any other country. They had an entire and exclusive dominion over the ship. The sum paid for freight was in respect of the homeward voyage only, and no money was paid in respect of the voyage from England to Jamaica. [67] If there had been any earnings by the ship in the outward as well as in the homeward voyage, there might have been an apportionment of freight; but in this case no part of the freight belonged to the original owners. It wholly, and solely, and originally belonged to Croft and Jones. Having determined in whom is the property of the freight the question is decided. The fallacy of the Petitioners consists in considering the voyage from Jamaica as a continuity of the voyage to Jamaica.

Petition dismissed.

[67] Ex parte GALLIMORE. August 16, 1815.

On petition by bankrupt to supersede his commission, the Court, in a plain case, will order a supersedeas, though the petitioning creditor desires an issue or an action.

In this case a petition was presented by a bankrupt, to supersede his commission, supported by an affidavit, which clearly shewed that the commission was invalid.

An objection was made that the commission could not in the first instance be superseded upon the affidavit of the bankrupt only, where, as in the present case, the petitioning creditor was desirous of an issue, or an action, to try the validity of the commission.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. It would be vexatious to direct an issue, or an action, where the Court are clear the commission ought to be superseded. In a case, a note of which has been given me Ex parte Emery, in 1812, the same objection by [68] the petitioning creditor was made before the Lord Chancellor, and overruled; the Court, therefore, has power to refuse an issue, or an action, in a plain case; and thinking this to be one of that description, the commission must be superseded, and with costs.

[68] Ex parte POWELL. August 16, 1815.

Bankrupt under a joint commission not entitled to an allowance, though joint estate pays 10s. in the pound, unless both joint and separate creditors who have proved are paid 10s. in the pound. If one partner only has obtained his certificate, no allowance given to the partner who has obtained his certificate, the allowance being only jointly claimable.

In 1804 a commission issued against Samuel Castell and Walter Powell, and they were declared bankrupts. Distinct accounts were kept of their joint and separate The joint estate paid a dividend of 11s. 6d. in the pound, (1) and Powell's

estates.

(1) It was said at the Bar, and admitted that 12s. 6d. in the pound had been paid by the joint estate.

separate estate paid 4s. in the pound, and he obtained his certificate. Castell's separate estate paid a dividend of 1s. 9d. in the pound; and he died, without having obtained his certificate, and letters of administration were granted to R. C. John Castell. Walter Powell, the bankrupt, by his petition, stated these facts; and that the surviving assignees were about to declare, and pay a final dividend of the joint and separate estates, without paying to, or reserving for, the Petitioner any allowance in respect thereof; and prayed that the assignees might be directed to pay to the Petitioner the whole of the allowance in respect of the dividends paid, and to be paid, out of the joint estate; and that the assignees might be directed not to make or pay any further dividend out of such joint estate, without paying, or reserving for the Petitioner, the amount of such allowance.

[69] Mr. Cooke, for the petition.

Sir S. Romilly, contrà. (1)

THE VICE-CHANCELLOR [Sir Thomas Plumer]. This is a new case. Twelve shillings and 6d. in the pound has been paid under the joint estate of Castell and Powell, but their separate estates have only paid the one, 4s. in the pound, and the other 1s. 9d. Castell died without obtaining his certificate, but Powell has obtained his. Under these circumstances, two questions arise: 1. Is an allowance claimable under the Act of Parliament (5 Geo. 2, c. 30, s. 7), where the separate creditors proving under the joint commission are not paid 10s. in the pound? 2. Where, under a joint commission, 10s. in the pound has been paid, and one of the bankrupts has obtained his certificate, and the other has not, the bankrupt who has obtained his certificate can claim any and what allowance; the whole, or a part? There are no authorities in point. Farlow's case (2 Ves. & Bea. 209, and S. C. 1 Rose's cases in bankruptcy, 421) has been cited as decisive of the present. It was a decision after consideration by Lord Eldon; but that was the case of a separate commission, under which joint debts were proved, and where the separate creditors received only 2s. in the pound and the joint creditors 18s. in the pound. In Ex parte Styles and Pickart (1 Atk. 208), a point was made similar to the present, but it was not decided. In that case, the Petitioners, having paid 10s. in the pound under a joint commission, prayed an allowance under the Act. A separate creditor, who, by an order, [70] had proved under the commission, opposed the petition, on the ground that the separate estate had only paid 2s. 6d. in the pound, and that the bankrupts were not entitled to the allowance till they had paid all their creditors, separate as well as joint, 20s. in the pound. It is a mistake of the reporter to say 20s. in the pound. Lord Hardwicke did not, however, decide the case on this point, but considered the application as premature, no final dividend having been made; before which time, any creditor, whether joint or separate, would be admitted to prove. The only other case which has been cited is Ex parte Bate (1 Bro. C. C. 452), and from that decision, which is binding on me, I conclude that in determining the question of allowance, the joint and separate estate are not to be considered as distinct, and as if two commissions had issued; but only one allowance is made. You blend the two estates, to consider, whether one allowance is to be made. It further determines that though the estate of one partner contributed much more than the other in making up the 10s. in the pound, paid under the joint estate, yet that the allowance is jointly claimable by both; such allowance to be afterwards divided between them, according to the proportions their estates have contributed. The Act of Parliament (5 Geo. 2, c. 30, s. 7) makes the criterion of the allowance to be, not an honest disclosure, but the quantum of the estate, and the quantum of the debts. The statute says, there must be so much paid, "to all the creditors that have proved." Ex parte Bates shews that for the purpose of the allowance, both the separate and joint estate are to be considered, and that both contribute to the payment of it. All the bankrupts' [71] estate, both joint and several, passes to the assignees under a joint commission. The order to keep separate accounts is a matter of equitable regulation, as under a decree, for all the estate is, by law, in the assignees. According to the statute, therefore, all persons who have proved debts, whether joint or separate, must be paid 10s. in the pound before the bankrupts are entitled to claim an allowance. Here, the separate creditors

(1) The reporter was not present at the argument.

have not been paid 10s. in the pound; and if all the joint and separate estate be put together, and all the joint and separate debts, 10s. in the pound would not be paid to the joint and separate creditors.

The whole of the £5 per cent. allowance must be given, or none. One of two partners cannot claim the allowance: if both are not entitled to it, one cannot. Though the joint and separate creditors are paid 10s. in the pound, yet if one of the bankrupts has not obtained his certificate, he who has cannot claim an allowance, or separate himself for that purpose, from his partner. The allowance is joint-it must be claimable by both-they must take together, or not at all.

It is said, it is hard that one partner should be affected by the misconduct or accident of the other. It is so; it may happen in other instances: It is an evil incident to partnerships; and it is sufficient for me to say, in answer to such objections, that such is the law. In some cases one partner is benefited, as is Bate's case; for there Henckel, by conforming, was held entitled to a proportion of the allowance, though it was Bate's separate estate, after payment of his separate creditors, that enabled them to pay the joint creditors 10s. in the pound. That case has decided that the [72] allowance is entire. Both partners therefore must be entitled, or none. I feel for this Petitioner; but, for the reasons given, I must decide that he is not entitled to the whole, or any part, of the allowance.

Petition dismissed.

[72] Ex parte ROBERTS. Ex parte WELLS. August 17, 1815.

A bankrupt who has not surrendered cannot petition to supersede the commission. A separate commission will not be superseded at the instance of the creditors under a joint commission, if the joint commission cannot be sustained.

Sugar sold, payable for, by the custom of the trade, two months after the sale, does not create a debt to support a commission, until the time of credit has elapsed.

These petitions came on together. In Ex parte Roberts, the Petitioner prayed to have a joint commission, which had been issued against him and his partners, superseded; but it appearing that he had not surrendered, the Vice-Chancellor, upon the authorities (Ex parte Stokes, 7 Ves. 405; Ex parte Jones, 8 Ves. 328; Ex parte Jones, 11 Ves. 409; Ex parte Bean, 17 Ves. 48), held that he could not be heard; but, adverting to what was done in Ex parte Jones, he expressed his consent to let the petition stand over, till the bankrupt had surrendered; but on the bankrupt's counsel saying it was very improbable he would appear to the commission, the Vice-Chancellor dismissed the petition; and observed, this case shewed the wisdom of the rule that a party must surrender before he can petition to supersede his commission.

The petition Ex parte Wells was presented by the joint creditors of Roberts & Co. to supersede a [73] separate commission against Roberts, and was resisted on the ground that the joint commission was invalid.

On the 23d March 1815 a joint docket was struck against Roberts & Co., and was followed up by a joint commission, which issued on the 28th March 1815, under which Roberts & Co. were declared bankrupts. The debt of the petitioning creditor arose from a sale on the 26th January 1815, at two months' credit, of raw sugars, to the bankrupts, who were refiners; which credit would have expired on the 26th of March, but that day being Sunday, it expired, according to the custom of the trade, on the ensuing Saturday, the 1st of April.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. This separate commission, the validity of which is not impeached, is sought to be superseded, as it will be more convenient to take all the accounts under the joint commission and be a saving of expense; and, certainly, this is an ordinary application. But before a separate commission is superseded the Court must see that there is a valid joint commission for if the joint commission is bad, it would be improper to supersede a good separate commission.

;

The Act (5 Geo. 2, c. 30, s. 23) requires an oath "of the truth and validity" of the

debt, to entitle the creditor to a commission. Here, the period for which credit was given had not elapsed; and the creditor could not with propriety swear that on the 23d of March the bankrupt was then indebted to him, but only that he would be, on the first [74] of April. No debt was due when the docket was struck.(1) Another objection is, that no act of bankruptcy appears to have been committed subsequent to the accruing of the debt; which is another circumstance fatal to the commission. On both points the joint commission cannot be supported. This petition, therefore, must be dismissed, and with costs; for the invalidity of the joint commission appears on the affidavits filed in support of the petition.

[74] Ex parte IRVINE. August 17, 1815.

Petition to supersede a second commission must be served on the assignees under the first.

This was a petition to supersede a second commission against an uncertificated bankrupt, but the petition had not been served on the assignees under the 1st commission.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. When creditors apply to supersede a second commission against a bankrupt, notice must be given to the assignees under the first commission. Such appears to be the course of the Court. It was so held in Ex parte Rhodes (15 Ves. 542), and very lately, I understand, the Chancellor has adhered to this rule. The petition must stand [75] over till the assignees under the former commission are served with this petition.

Mr. Wetherell, for the petition.

Mr. Cullen, against it.

[75] Ex parte WESTON. August 18, 1815.

Bankrupt petition, witnessed by the agent of the attorney who presented the petition, not a sufficient compliance with the General Order requiring the attestation of the attorney who presents the petition.

The bankrupt petition in this case was not signed by the solicitor, as directed by the General Order of the 12th August 1809, but by a person who was agent of the solicitor. (2) The hearing of the petition was objected to on this ground, and the Vice-Chancellor thought the objection well founded; and that the petition must stand over till properly signed; but the attorney and the Petitioner being in Court, they were permitted to sign the petition, and the objection was then considered as obviated.

[76] Ex parte CLUNES. August 19, 1815.

Order upon assignees under 49 Geo. 3, c. 121, s. 19, to deliver up possession, and execute an assignment, or surrender of the bankrupt's benefit in a lease, where the lease itself had been deposited in the hands of a third person as a security.

This was a petition by a landlord, under the late Act (49 Geo. 3, c. 121, s. 19), praying, that the assignees might be ordered to accept a lease to the bankrupt from

(1) See Hoskins v. Duperoy, 9 East, 498; Dutton v. Solomonson, 3 Bos. & Pul. 582. The statute, 5 Geo. 2, c. 30, s. 22, applies only to debts due on bills, bonds, promissory notes, and other personal written securities of the like sort, payable at a future day.

(2) The General Order directs, "That the signature of each person signing as a Petitioner shall be attested by the solicitor actually presenting the petition, or by some person, who shall state himself in his attestation to be attorney, solicitor, or agent of the party signing in the matter of the petition."

the Petitioner, or to deliver up the same, and the possession of the premises, to the Petitioner, and the rent accrued due and in arrear to the time when they should deliver up the same. The affidavits in support of the petition stated facts to shew that the assignees had declined to take the benefit of the lease; but affidavits on the part of the assignees were adduced to prove that they did not mean to take the benefit of the lease. Before the bankruptcy the lease had been deposited by the bankrupt, with a Mr. Fry, as security for a debt.

Mr. Parker, for the petition.

Mr. Cullen, against it.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. Before this Act passed great inconvenience arose. A lessor could not compel assignees to determine, whether they would hold to a lease made to the bankrupt; and the bankrupt, though dispossessed of all his property, was held liable for rent accruing due subsequent to his bankruptcy. (See Mills v. Auriol, 1 H. Bl. 433, and confirmed by K. B. on a writ of error, 4 T. R. 94.) The Act provides, that where the assignees accept the lease, the bankrupt shall not be liable for rent accrued due after such acceptance, or [77] for any breach of covenants; and if the assignees, on application to them, decline to determine whether they will, or will not accept the lease, the lessor, his heirs, executors, administrators, or assigns, may apply to the person or persons holding the Great Seal, praying, that they may either so accept the same, or deliver up the lease or agreement for the lease, and the possession of the premises, demised or intended to be demised, who shall thereupon make such order as in all the circumstances of the case shall seem meet and just, and which shall be binding on all parties. The case now before me does not appear to have been contemplated by the framers of this Act. The lease being in the hands of Fry, by way of deposit as a security, the assignees have no power over it, and cannot be ordered to deliver it up. Fry is no party to this proceeding. But though the Act does not in words extend to cases where the lease is in the hands of a third person; yet, I think, by an equitable construction of this Act, which was intended for the benefit of landlords, I have jurisdiction.

His Honor then went into the facts of the case, in respect to the adoption of the lease, and observed upon the decisions, saying it was a very nice point whether the lease was to be considered as adopted by the assignees. If the assignees have accepted the lease, or have declined it, I have no jurisdiction under this Act; it is only when assignees will not decide on the subject that a jurisdiction is given.

[The landlord, who was in Court, expressed a desire to do what the Vice-Chancellor might think proper; and his disinclination to proceed at law; and readiness to give up his claim as to the rent, to prevent further litigation.]

[78] THE VICE-CHANCELLOR. I think you do right. It is a nice question, whether the assignees are to be considered as having made their election to take the lease. Considering this then as a case, where the assignees have suspended their decision as to the lease, I shall direct that the assignees deliver up the possession of the house to the Petitioner, and execute an assignment, or surrender to the Petitioner, of the bankrupt's benefit in the lease.

[78] Ex parte CUTHBERT. August 21, 1815.

Attorney, under the circumstances, ordered to pay the costs of an improper petition in bankruptcy.

The petition in this case prayed that a charter-party might be delivered up, and that the commission might be superseded as fraudulently obtained. No grounds appearing in support of the petition, the question was, who should pay the costs.

THE VICE-CHANCELLOR [Sir Thomas Plumer]. This petition has two objects. 1. The delivery of the charter-party. 2. The superseding of the commission. It is clear the first object of the petition is not within the jurisdiction of the Court; the parties must resort to an action or a bill.

With regard to superseding the commission, the only ground laid for it is, that the petitioning creditor is a near relation to the bankrupt; and is the sole assignee ;