1833. Ex parte ROBINSON. In the matter of HOUGHTON and another. an antecedent liability of the firm contracted before the act of bankruptcy. The observations of Bayley, J., that if the power of the solvent partner ceased on the bankruptcy of another the house must close at once, and that the rights of the bankrupt passing to his assignee does not prevent the remaining partner from applying partnership property in satisfaction of partnership debts; and the observations of Best, J., that, if it did, the solvent partner might be ruined in the midst of plenty, are clearly applicable to the present question. Those observations, going beyond what it is necessary to go, are not quite reconcileable with some of the other cases; but on the decision of the case itself it cannot be doubted that the Court held the acts of the solvent partner binding on the firm, for he was permitted to transfer by indorsement the chose in action and partnership credit, and to bind, not merely his own undivided moiety, but also the moiety belonging to the bankrupt partner, that is, belonging to that partner's assignees. Had he indorsed the name of the firm, and had the bill not been paid by the drawer and acceptor, could the same Court which decided in favour of his right to transfer the security have denied that the holder of the bill had a right to go against the firm? Yet that would have been precisely this case. Then what is the difference between holding that a solvent partner can pay a partnership debt by transferring the credit of the firm, and holding that he can pay the same debt by giving a security which entitles the creditor or his transferee to go against that property, and it may be the credits of the firm? It must however be observed, that if, as is generally supposed, and as the argument of the learned Judges, particularly of Bayley, J., entitles us to believe, Harvey v. Crickett, 5 M. & Sel. 342, went the length I have been assuming, it goes a great deal further 1833. Ex parte ROBINSON. In the matter of and another. than is necessary to support the view I take of the present question; for although the solvent partner had only the power of binding his own share of the partnership property, yet he might still, on the principle of that case, and on the general ground already stated, have HOUGHTON the power of binding the firm by acceptances, for partnership liabilities given to a holder without notice of the bankruptcy. Harvey v. Crickett, in the full extent to which it goes, is not perhaps quite reconcileable with some earlier cases, particularly those at Nisi Prius to which I have referred, Abel v. Sutton, and Ramsbottom v. Lewis, but its principles have not been since shaken; and I do not see how, on these principles, the decision in Lacy v. Woolcott could stand, if the judgment of the Court of Review in this case be right. On the whole, whether I regard the general principles which regulate partnership, or those of the bankrupt law, or the authority of the decided cases when narrowly examined, I have no more doubt how the law on this question stands than I should have, upon principle of the highest expediency, how the law ought to be, if we were now at liberty to enter upon such an enquiry. The decision is, that the petitioner has a right to prove; and the Court of Review ought not to have expunged his proof. This only determines that the solvent partner can bind the firm by his acceptance passing to a holder ignorant of his co-partner's bankruptcy, and has no bearing on the power of that bankrupt to transfer the partnership property. The Court is not called on to deal with that question, in deciding that a bond fide holder, ignorant of the bankruptcy, has a right to prove against the estate of the bankrupts. As this is a question of very great importance, and as there is some conflict even in the language of some of the 1833. Ex parte ROBINSON, In the matter learned Judges, and as the question appears not to have been so fully considered by the Court below as its importance appears to me to demand, I thought it right to consult some of the learned Judges of the highest HOUGHTON authority, and particularly those who sat on the decision of some of the former cases at law, and they entertain just as little doubt on the question as I do. of and another. Reversed. (a) C. R. May 30, 1833. If an order, upon a petition by assignees to supersede an invalid commis Ex parte BURNELL and others. In the matter of PETITION was presented by the assignees, soon after their appointment, stating that the petitioning creditor's debt was invalid and fabricated, and that the commission was fraudulent, and issued by Malachy, the petitioning creditor, not for the benefit of the creditors, but in collusion with the bankrupt, in order to compel the bonâ fide creditors to consent to a composition; and that various examinations had been had before the commissioners, with respect to the circumstances, by which the assignees had incurred considerable expences. And it the petitioning prayed, that the commission might be superseded, and sion, does not, through mistake, include the assignees' expences of pro.. secuting the commission, the error cannot be rectified by a petition of rehearing. Qy. Whether creditor is liable. (a) Since this decision, the case of Woodbridge v. Swann, 4 B. & Ad. 633, has been reported, in which it was decided, that if, after a commission of bankruptcy has issued against one partner, the solvent partner, thinking the firm solvent, continue the business, and bona fide, without contemplation of bankruptcy, pay partnership money into the bankers of the firm, to be discharged of running bills of the firm payable at the bank, and it is so applied, and the solvent partner afterwards become bankrupt, the payment to the bankers is valid at law, and the assignee of the two cannot recover the amount in an action against the bankers. that the costs of and occasioned by the issuing and prosecution of the commission, together with the costs of that petition, and incident thereto, might be paid by the petitioning creditor. The petition was heard on the 12th of May 1832, when it was ordered that it should be referred to the commissioners to inquire and certify whether, at the date and suing forth of the commission, there was due and owing to Malachy a valid and sufficient debt, as petitioning creditor, to support the commission; and, if the commissioners found that the debt of Malachy was not sufficient to support such commission, then it was further ordered that the commission should be superseded, and that the petitioners should be at liberty to take out a new fiat upon their own petition, unless within one calendar month, to be computed from the date of the said certificate of the commissioners, another debt was substituted in support of such commission in lieu of the debt of Malachy; in which latter case it was ordered, that Malachy should pay the costs of the examinations referred to in the petition, and also the costs of all parties of and occasioned by the said application; and, upon the supersedeas of the commission, under the circumstances therein-before mentioned, then it was further ordered, that Malachy should pay the costs of such supersedeas and incidental thereto, together with the costs of the examinations, and also of all parties of and occasioned by the application; it was lastly ordered, that if the commissioners should certify that the debt of Malachy was a valid and sufficient debt to support the commission, then and in such case the parties were to be at liberty to apply to the Court. This was a petition by the assignees, stating, that the commission had been superseded, and a new fiat issued by them; that the petitioners were aggrieved by so 1833. Ex parte BURNELL and others. In the matter of BENNETT and another. 1833. Ex parte BURNELL and others. In the matter of BENNETT much of the order as directs that, upon the " superseIdeas of the commission under the circumstances hereinbefore mentioned, Malachy do pay the costs of such supersedeas and incidental thereto, together with the costs of the said examinations, and also the costs of all and another. parties of and occasioned by that application;" and that the petitioners were advised, that by such order it should have been directed that, upon the supersedeas of the commission under the circumstances herein-before mentioned, Malachy should pay the costs of the supersedeas and incidental thereto, and all the costs of and occasioned by the issuing and prosecution of the commission, and also the costs of all parties of and occasioned by the said application. The petition prayed, that the original petition might be reheard, and the order varied, by ordering Malachy to pay the costs of such supersedeas and incidental thereto, together with the petitioners' costs, charges, and expences of and occasioned by the issuing and prosecution of the commission, and the costs of all parties of and occasioned by the said application. Mr. Bethell, for the respondent Malachy, objected to the petition being heard, on the ground that it was a rehearing for costs. Mr. Montagu and Mr. Teed for the petition: There is no doubt as to the law, that a rehearing does not lie for costs only. (a) But that rule is only applicable to a case of rehearing as to costs of the particular proceeding upon which judgment has been given. This petition does not ask for a rehearing as to the costs of the original petition, but as to a substantive part of the prayer of the former petition, which the present order (a) Ex parte Arrowsmith, 14 les. 209. |