one of the partners, they must describe themselves as the assignees of the single partner with whom the contract was made, or to whom the separate property belonged, without noticing the others. (a) Therefore, where A., who was in partnership with B., committed an act of bankruptcy, and afterwards, but before the bankruptcy of B., the sheriff seized goods which had belonged to A. and B., under an execution against them; it was held that the assignees of *A. and B. under a joint commission

could not, suing as such, recover A.'s share of the [*372] property therein. (b) But where, in an action of trover by the assignee of bankrupt partners, the declaration consisted of one count only, in which the possession was stated to be in the partners, and it appeared in evidence, that the greater part of the goods in question belonged to one of the partners only, before the commencement of the partnership, and had never been brought into the partnership fund, but it was proved, that the residue of the goods was part of the joint estate, Lord Kenyon ruled that the plaintiff, under that declaration, was entitled to recover the value of such goods only as had been proved to have belonged to both the partners as partners; although had there been a count in the declaration stating the possession in the assignees, the whole might have been recovered, inasmuch as the commission was joint, and the assignment under it passed both separate and joint effects. (c) If there have been any promise to the assignees, or cause of action since the bankruptcy, a count adapted to such demand should be inserted in the declara

(a) Stonehouse v. De Silva, 3 Campb. 399. Harvey v. Morgan, 2 Stark. N. P. C. 17. S. P. Per Park, J., Hogg v. Bridges, 8 Taunt. 200.

(6) Hogg v. Bridges, 8 Taunt. 200. S. C. 2 B. Moore, 122. (c) Cock v. Tunno, cited 2 Selw. N. P. 1316.

tion; and where two partners became bankrupts, and the defendant, between the two acts of bankruptcy, received money jointly belonging to them from their clerk, and the assignees of the two partners, in their action to recover it, declared only for money had and received to the use of the two partners before they became bankrupts, and in another count to the use of the plaintiffs as assignees, it was decided that the plaintiffs could not recover, because they should have declared in one count for money had and received to their use as assignees of the partner who had committed an act of bankruptcy at the time the money was paid. (a)

Where a joint commission has not been [*373] awarded *against a bankrupt firm, but separate commissions have alone issued against each of its members, as the joint estate and consequent right of sustaining an action in respect of it, is centered in the assignees of all the bankrupts jointly, it follows that they must all join in an action to recover a joint demand. (b) In such a case it is only necessary, that the assignees who appear as plaintiffs on the record should represent all the persons interested, and should unite in themselves all the interest of those parties. Therefore, where there was a firm consisting of three partners, two of whom being engaged in partnership with two others, the four became bankrupts, and a joint commission being issued against them, a separate commission was afterwards awarded against the third partner in the firm of the three, under both which commissions the plaintiffs were elected assig nees, it was held that, inasmuch as the entire rights of the

(a) Smith v. Goddard, 3 Bos. & Pul. 465. It may be doubtful whether any form of Declaration would entitle the assignees to recover in such a case. See ante, p. 334.

(b) Hancock v. Hayward, 3 T. R. 433.

three vested in them, they might declare as their assignees. (a) [1] And even where the plaintiffs sued and declared as assignees of A. and B., and also as assignees of C., for a joint demand due to all the bankrupts, the declaration was holden good on a motion in arrest of judgment.(b) Where separate commissions issue against the several partners, and different persons are appointed as assignees under them, although they must all join in an action to recover a joint demand, yet they cannot sue as joint assignees, but must state their several and respective interests in the declaration. (c) And the assignees of A., a bankrupt, and also of B. a bankrupt, under separate commissions, cannot recover in the same action a joint debt due from the defendant to both the bankrupts, and also separate debts due to each, because the bankrupts themselves could not have joined in bringing one action for their separate debts, and therefore the joinder of the two causes of action by their assignees is improper; but if in such an action, the jury have assessed the damages severally on the separate counts, [374] the court will arrest the judgment on those

counts only which demand the debts due to each bankrupt separately. (d) The assignees of one of the partners cannot maintain trover against the executor of the solvent partner, for goods delivered to him during the life of the solvent partner, although after the act of bankruptcy upon which the commission issued, because the repre

(a) Scott v. Franklin, 15 East, 428.

(b) Streatfield v. Halliday, 3 T. R. 779. (c) Ray v. Davies, 2 B. Moore, 3.

See also

(d) Hancock v. Haywood, 3 T. R. 433, recognized by Lord Ellenborough in De Cosson v. Vaughan, 10 East, 65. Richardson v. Griffin, 5 Mau. & Selw. 297.

[1] Graham et al. v. Mulcaster, 4 Bingh. 115.

sentatives of the solvent partner and the assignees of the bankrupt are tenants in common. (a) [1] And, for the same reason, where joint effects are delivered by the solvent partner to a joint creditor, the assignees of the bankrupt cannot, after the death of the former partner sustain an action of trover against such a creditor, notwithstanding that the delivery be overreached by the act of bankruptcy.(b)

The Lord Chancellor exercises a discretionary power to supersede a commission of bankruptcy in the case of partners as well as others, if from the circumstances of the case he shall deem it necessary or proper. Therefore, if the petitioning creditor's debt be insufficient ; (c) or if he be an infant, and therefore incapable of giving the bond to the great seal ; (d) or if there is not sufficient evidence of the trading, or of the act of bankruptcy; or of the commission be not proceeded in for a length of time, and the delay be not being occasioned by the bankrupt himself against the will of the petitioning creditor ;(e) or if the bankrupts are not described in the commission according to their legal or known description; (f) or if the party against whom the commission is directed be a [*375] feme covert, and it be *founded upon a trading

(a) Smith v. Stokes, 1 East, 363. (b) Smith v. Oriell, Ibid. 368.

(c) But see the 6 Geo. 4. c. 16. s. 18. (d) Ex parte Barrow, 3 Ves. 554.

Buck, 44.

Ex parte Benjamin,

Ex parte Smith, 1

Harrison's case, 3

(e) Ex parte Puleston, 2 P. Wms. 545. Rose, 332. Ex parte Fletcher, Ibid. 454. Ves. & Bea. 174. Ex parte Luke, 1 Glyn & James. 361. (f) Ex parte Beckwith, 1 Glyn & James. 20.

[1] Murray v. Murray, 5 Johns. Cha. Rep. 60.

sup

prior to her marriage, (a) or be an infant, (b) or a lunatic, (c) or an uncertificated bankrupt, (d) or if one of the partners be dead at the time of issuing the commission against the firm ;(e) a writ of supersedeas under the Great Seal will, in all these cases, issue to set aside the commission. And formerly, where a joint commission could not be ported as to any one of the partners against whom it was sued out, it was supersedeable against all; but now such a commission may be superseded as to one or more of the partners, without prejudice to its validity against the rest.(f) A commission of bankruptcy against partners may also be superseded before it has been opened, or notice of the application being given to the bankrupts, (g) and with the consent of the petitioning creditor ;(h) or after it has been opened it may be superseded at any time after the second meeting, (i) with the consent of all the creditors who have proved their debts at the time the application for a supersedeas is made,(k) provided the bankrupts have duly surrendered,(/) and are not under commitment for not answering to the satisfaction of the commissioners. (m) Upon a petition by the bankrupts to supersede a commission, the

(a) Ex parte Mear, 2 Bro. C. C. 266.

(b) See ante, p. 283.

(e) Ante, p. 290.

(c) Ibid.

(d) Ibid.

(f) 6 Geo. 4. c. 16. s. 16.

(g) Anon, 1 Glyn & James. 23.

(h) Ex parte Trigwell, 1 Ves. & Bea. 348. And see Ex parte Law, 4 Madd. 273.

(i) See general order, 21st August, 1818, 3 Madd. 392.

(k) Ex parte Duckworth, 16 Ves. 416. And see Ex parte King, 2 Ves. jun. 40. Ex parte Jackson, 8 Ves. 533. Ex parte Crisp, 1 Atk. 134.

72.

(1) Ex parte Jones, 11 Ves. 409. Ex parte Roberts, 1 Madd. Ex parte Wilkinson, 1 Glyn & James. 387. But see Ex

parte Brown, 2 Swanst. 290.

(m) Ex parte Bean, 17 Ves. 47. Ex parte M'Gennis, 18

Ves. 289.