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 the commission has not issued, instead of being a debtor is a creditor of the bankrupt's? Qu. 6. Ought there not to be some regulation as to the ex parte declarations of bankruptcy? See ex parte Nokes, post, page 461. B. M. CASES IN BANKRUPTCY. ROBINSON and GREENWOOD, assignees of At the Rolls. April 29, May 1, 1833. A conveyance of part of a bank rupt's property in trust to sell and dispose of he shall direct, ON 26th March 1827 a commission of bankrupt issued against Samuel Churchill, under which the plaintiffs were the assignees. The bill stated that Samuel Churchill had been for many years in extensive practice as an attorney, the proceeds as and had become largely indebted to various persons; is not an act of that early in 1826 he consulted James on the embar- bankruptey. rassed state of his affairs; that by indentures, dated the 17th and 18th of July 1826, it is witnessed, that (for a nominal consideration) Churchill appointed, granted, sold, and released and assigned all his messuages, lands, tenements, and hereditaments in the county of Oxford, unto and to the use of Benjamin Churchill and James James, their heirs, executors, administrators, and assigns, upon trust and to the intent that the said Benjamin Churchill and James James, &c. should, without any further directions from the said Samuel Churchill, 1833. ROBINSON and another บ. CARRINGTON and others. &c., sell and dispose of the same, at such time or times, and for such sum and sums, as the said trustees or trustee should in their discretion think proper; and the said Samuel Churchill declared, that the trustees should and might, till the sale of the said estates, receive the rents and profits thereof, and raise any sum by mortgage thereon, and renew the leases thereof, and that the receipts of the trustees should be good discharges, &c.; "and that the said trustees or trustee should stand possessed of the monies which should arise from any sale or mortgage of the said hereditaments and premises, in trust for such purposes as he the said Samuel Churchill should by deed or any writing under his hand direct; and in default of and until such direction, in trust for the said Samuel Churchill, his heirs, executors, administrators, and assigns; and that, as between his devisees on the one hand, and his executors and administrators on the other hand, the money to arise by sale of the said freehold hereditaments, or any part thereof, which should not have been made, or contracted to be made in his lifetime, should be considered as real estate, unless he should direct the contrary;" that the estates so conveyed constituted the great bulk of his property; that at the date of the indentures of the 17th and 18th July 1826 an officer of the sheriff of Oxford was in the house of Samuel Churchill in possession, and that the officer held warrants upon six writs of execution, of which one was on two notes for such small sums as 271. each; that a writ of elegit to levy a sum of 3,0007. and upwards had been and was then in force against the lands of Samuel Churchill, and there were eight actions at law and two suits in equity then depending against him, and that he was insolvent; that the indentures were not executed in July 1826, the time at which they bore date, and not until late in January or early in |