vi PREFACE-Continued. QUERE. Ought a joint creditor to be deprived of his right to prove under a separate commission or fiat, because there is a solvent partner against whom he may proceed? By the present law, he cannot prove if there be a solvent partner. IN ex parte Pinkerton, April 1801, 6 Ves. 814, there was a solvent partner abroad, and not likely to return; the proof was ordered to be admitted against the separate estate, there being no joint estate. Ex parte Kensington, ex parte Taylor, Jan. 1808, ex parte Kendall, April 1808, 14 Ves. 447, 449; in these cases it was determined that a joint creditor could not prove to receive dividends under a separate commission, without resorting to the solvent partner, and Lord Eldon said that he was influenced in ex parte Pinkerton by the solvent partner being abroad. Ex parte Janson, 1818, Buck, 227, a commission issued against one of two partners, the other partner was admitted to be insolvent, but no commission had issued against him; it was determined that such insolvent partner was a solvent partner within the meaning of this rule, and the creditor was not permitted to prove till he had proceeded against the insolvent partner called solvent the reason assigned for this decision is as follows: the inability of the debtor to pay all his debts does not take it out of the general rule, because it does not follow that a diligent creditor may not get the whole of his debt paid. Ex parte Morris, 1831, Mont. 21: the partner against whom a commission had not issued had applied to take the benefit of the insolvent act, and in his schedule had stated that he had not a farthing of assets to be applied in payment; the Court held that this insolvent partner was solvent within the meaning of the rule. SUCH are the cases, from which it appears that a creditor must proceed at law even against an insolvent debtor, at the certain peril of costs, not proveable under the commission. The principle is said to be, that the creditor ought to resort to the solvent partner, because, as between him and the bankrupt there may be no right of proof, and that this can be established only by a bill in equity. Qu. 1. Why is a creditor to be deprived of his legal rights for the benefit of any person? Qu. 2. Supposing he ought to be deprived, ought not a claim to be entered for the debt, and the assignees undertake for the costs which may be incurred for the benefit of the assignees? Qu. 3. Ought not the proceeding at law to be by the assignees using the name of the creditor? Qu. 4. Supposing the principle to be well founded, can it apply where the partner is not solvent but insolvent ? Qu. 5. Supposing it to be just to compel the creditor to resort to the partner who is not a bankrupt, when he is, in fact, indebted to the bankrupt, is it just that the creditor should be so compelled, when the person against whom A 5 |