A. and B. under a joint commission could not, suing as such, recover A.'s share of the property therein (a). 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 assignee, the whole might have been recovered, inasmuch as the commission was joint, and the assignment under it passed both separate and joint effects (b). 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 declaration; 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 (c). Where a joint commission has not been awarded (a) Hogg v. Bridges, 8 Taunt. 200. S. C. 2 B. Moore, 122. Tunno, cited 2 Selw. N. P. 1316. (b) Cock v. (c) Smith v. Goddard, 3 Bɔs, and Pul. 465. It may be doubtful whether any form of Declaration would entitle the assignees to recover in such a case. See unte, p. 334. 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 centred in the assignees of all the bankrupts jointly, it follows that they must all join in an action to recover a joint demand (a). 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 assignees, it was held that, inasmuch as the entire rights of the three vested in them, they might declare as their assignees (b). And even where the plaintiffs sued and declared as assignees f 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 (c). 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 (d). 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 (a) Hancock v. Haywood, 3 T. R. 433. (b) Scott v. Franklin, 15 East, 428. (d) Ray v. Davies, 2 B. Moore, 3. an action, the jury have assessed the damages severally on the separate counts, the court will arrest the judgment on those counts only which demand the debts due to each bankrupt separately (a). 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 representatives of the solvent partner and the assignees of the bankrupt are tenants in common (b). 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 creditor, notwithstanding that the delivery be overreached by the act of bankruptcy (c). 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 (d); or if he be an infant, and therefore incapable of giving the bond to the great seal (e); or if there is not sufficient evidence of the trading, or of the act of bankruptcy; or if the commission be not proceeded in for a length of time, and the delay be not occasioned by the bankrupt himself against the will of the petitioning creditor(f); or if the bankrupts are not described in the commission according to their legal or known description (g); or if the party against whom the commission is directed be a feme covert, and it be 297. (a) Hancock v. Haywood, 3 T. R. 433. recognized by Lord Ellenborough in De Cosson v. Vaughan, 10 East, 65. See also Richardson v. Griffin, 5 Mau. and Selw. (b) Smith v. Stokes, 1 East, 363. (c) Smith v. Oriell, Ibid. 368. (d) But see the 6 Geo. 4. c. 16. s. 18. (e) Ex parte Barrow, 3 Ves. 554. Ex parte Benjamin, Buck, 44. (f) Ex parte Puleston, 2 P. Wms. 545. Er parte Smith, 1 Rose, 332. Ex parte Fletcher, Ibid. 454. Harrison's case, 3 Ves. and Bea. 174. Ex parte Luke, 1 Glyn and James, 361. with, 1 Glyn and James, 20. (g) Ex parte Beck founded upon a trading 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 supported 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, on 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 (1), 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 Lord Chancellor generally directs an issue to try the bankruptcy (n). But where the commission plainly appears to be taken out fraudulently or vexatiously (0), or it is manifestly invalid, the court will order it to be superseded upon a petition by the bankrupt for that purpose, without directing an issue or an action, notwithstanding the petitioning creditor (d) Ibid. (e) Ante, p. 290. (b) See ante, p. 283.' (a) Ex parte Mear, 2 Bro. C. C. 266. (c) Ibid. (g) Anon. 1 Glyn and James, 23. (h) Ex parte Trigwell, 1 Ves. and 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. is desirous to try its validity (a). A commission being superseded, it is as if it had never existed, and the persons against whom it was directed are restored to all the rights they antecedently enjoyed. Although there is nothing express to be found upon the subject in the books, there can be little doubt that the partnership, suspended by the commission, will be re-established upon its original footing, and that the partners will continue to possess the partnership effects, and to carry on the partnership trade, according to their previous agreement, and subject to the rules of law we have formerly investigated (b). SECTION IV. The Consequences of a Dissolution by Death. We will now endeavour to explain the consequences which ensue the dissolution of a partnership firm by the death of one of its members, and these may be arranged under several heads. They may be considered, first, as they relate to survivorship; secondly, as they affect suits between the surviving partner and the representative of the deceased; thirdly, as they apply to suits either by the survivor against third persons, or by third persons against him; and lastly, as they regard proceedings against the assets of the deceased partner. We have stated in a former part of this work (c), that stock used in a joint undertaking by way of partnership in trade, is always considered as common, and not as joint property, and consequently that there is no survivorship therein. Jus accrescendi inter mercatores pro beneficio commercii locum (a) Ex parte Gallimore, 1 Madd. 67. (c) See ante, p. 46. (b) See Wats. on Partn. 357. |