PREFACE.

THESE HESE Reports will for the future be continued without any delay. The second Number, containing all the Cases decided between the 1st of January and the last day of Easter Term, will very shortly be published; and the Numbers will, for the future, be published as soon as possible after the conclusion of each term.

In a debate on the Bankruptcy Court Bill (a), 12th October 1831 (b), the Solicitor General said, "What would the house think when he told them, that in all the reports there was not one report of a cause decided before the commissioners-no report of any argument held before them. In short, they were never considered to form a court for the purposes of law, all matters of law in bankruptcy going directly or indirectly to the other courts."

(a) 1 & 2 W. 4. c. 56.

VOL. I.

(b) See Debates.

A

FROM the present constitution of the Subdivision Courts-from the great and patient attention devoted to every argument submitted to their consideration-from every case being fully heard, deeply considered, and speedily decided I am satisfied that, before much time passes away, it will be discovered that they are the most efficacious tribunals in Europe for the administration of the bankrupt laws. This is one of the advantages attendant on the division of labour.

THIS Number contains a report (a) of one of the decisions of a Subdivision Court; and, when any case of importance occurs, these reports will be continued.

It is my intention that each Number of the reports shall contain one or two queries on the improvement either of the bankrupt laws or of the courts for its administration, with the conviction, that if my inquiries may not be productive of good, they cannot be attended with evil.

TAUGHT in early life by Lord Bacon, "that every man is a debtor to his profession, from the which, as men do of course seek to receive

(a) Ex parte Marshall, 1 Mont. & Ayr. 118.

"If

countenance and profit, so ought they of duty to endeavour themselves by way of amends to be a help thereunto;" and remembering that Sir Edward Coke, differing as he did from Lord Bacon upon all subjects, except the advancement of their noble profession, expresses the same sentiment, almost in the same words. this," he says, "or any other of my works, may in any sort, by the goodness of Almighty God, who hath enabled me hereunto, tend to some discharge of that great obligation of duty wherein I am bound to my profession, I shall reap some fruits from the tree of life, and I shall receive sufficient compensation for all my labours." I have, under the influence of these opinions, endeavoured, to the best of my ability, to make such poor return as I have been enabled, for the many blessings which I enjoy from my profession. I have, when sharing the fruits, endeavoured to strengthen the root and foundation of the science itself.

FROM this motive, I venture, after thirty years labour upon the bankrupt laws, to submit these enquiries to the consideration of my profession.

Quare 1. OUGHT a partner in all cases to be permitted to prove against the separate estate of

his partner. By the cases he cannot prove until the joint creditors be paid. Ex parte Moore, 1826, 2 Gl. & J. 166; ex parte Gibson, 1827, 2 Gl. & J. 233; ex parte Carter, 1827, 2 Gl. & J. 233; ex parte Ellis, 1827, 2 Gl. & J. 312; ex parte Grazebrooke, 1832, 2 Dea. & Ch. 186.

SUCH are the cases; and to such an extent have the decisions been carried, that the partner cannot claim upon indemnity against the joint

estate.

THE principle of this rule appears to be, that the partner may by possibility stop in transitu, or diminish the surplus which would be carried over to the joint estate, and ought to be applied in payment of the joint debts for which he is liable. Ex parte Moore, 2 Gl. & J. 169, in which case it is said in argument, "This is a very remote contingency for the foundation of such a rule, and which, even if well founded, is rather a question for the reservation of the dividend than of the right of proof.

SUPPOSING the principle to be well founded, will not the justice of the case be attained by retaining the dividend until the right is established?

Is it right that the separate creditors should benefit from the possibility of injury being sustained by the joint creditors?

Is it right that the creditor should be barred by the certificate when he cannot prove his debt? In ex parte Executors of Godwin, cited 2 Gl. & J. 235, Sir John Leach thought that the debt should be proved, and the dividend reserved; but this decision was reversed in ex parte Carter, 2 Gl. & J. 240. And quære, whether the decision in ex parte Grazebrooke, 2 Dea. & Ch. 190, be not in concurrence with the judgment of Sir John Leach.

Quære as to the Court.

UPON a commitment by one commissioner to a messenger, is it preferable to refer to the Subdivision Court of which the commissioner is a member, or to that of which he is not a member? See ex parte Bardwell, 1 Mont. & Ayr. 193.

B. M.