1834. Ex parte In the matter of LOMAS and another. have proved under the commission 10s. in the pound, shall be allowed five per cent. out of such produce," &c. This latter speaks of "his estate." Of what does "his estate" consist under a joint and separate commission? Undoubtedly of his separate estate, and his share of the joint estate. [Sir John Cross: - If so, a bankrupt partner is not entitled to have any allowance on a joint commission till each moiety of the joint estate have paid 10s. in the pound, that is 20s. altogether; so that in ex parte Gibbs, though the joint creditors were paid 20s. in the pound, if there had been more than two partners, then, as neither would have contributed 10s. in the pound, they would not have been entitled to any allowance.] In ex parte Bate, 1 Bro. 453, Lord Thurlow decided, that but one allowance was payable, and this decision the Vice-Chancellor held binding in ex parte Powell, 1 Mad. 70. (a) The right to allowance depends on section 128, to which it is necessary to refer back from section 129. Suppose section 128 were expunged, what right to allowance would exist under section 129 alone? That section neither extends nor contracts the allowance, it merely refers to the case of one partner procuring his certificate, while another does not. The consequences of allowing each partner a full allowance, calculated on the collective shares of his own and partner's proportions would be monstrous. Suppose a capitalist, one of a firm of twenty, and his estate to constitute all the assets, and to pay 10s. in the pound, and leave 5,000l., is every farthing of that to be swept away by persons who did not contribute any thing to the estate? (a) But, as was observed by the Vice-Chancellor in ex parte Minchin, Mont. & Mac. 141, the words of 6 Geo. 4, c. 16, differ materially from those of 5 Geo. 2, c. 30, s. 7, on which Lord Thurlow's decision in ex parte Bale was founded. Mr. Ching in reply: 1834. Ex parte the matter of LOMAS and another. The cases cited are endeavoured to be avoided, by saying, that in ex parte Gibbs, Mont. 105, the estates were so large as to render it immaterial how the calcu- In lation was made; but Lord Lyndhurst said, "I think each party entitled to his allowance. The consequence is, that were there a partnership of forty persons the amount of allowance would be enormous. But the words are so strong I cannot get over them." This was said after deliberation, and the prayer of this petition cannot be refused without over-ruling that opinion. Lord Lyndhurst says, each is entitled to his allowance, but the construction contended for would only give to each bankrupt half his allowance. What is the estate? That out of which the dividend is paid, and out of which the allowance is to come. As the creditors are not paid half dividends, why then is the bankrupt to be paid half allowance? The consequences of granting the prayer of this petition may be monstrous, as has been argued; but Lord Lyndhurst saw these "monstrous " consequences, and said he could not avoid them. If the construction contended for be correct, an account must be taken between partners, in order to ascertain the proportions in which they are interested. It at present appears to me that Mr. Commissioner Fane is correct in his interpretation of the statute, and that his decision does not impugn that in ex parte Gibbs, Mont. 105. But, as the matter is one of general importance, the Court will take time to consider before delivering final judgment. At present, however, my view is as follows:- Considering section 128 alone, it appears to contemplate the trader either as sole or with a partner. If alone, VOL. I. M M 1834. Ex parte In the matter of LOMAS estate. no question can arise; if with a partner, I do not see that any doubt could exist, because "his estate" would consist of his own separate funds, and any surplus coming over to him after payment of the joint creditors. But then the act contemplates the existence of the joint and another. commission, and interfered in section 129; so that though the separate estate may pay, yet if the joint do not, the surplus must first be carried over to the joint For this purpose, and also to provide for the case of the certificate, the 129th section was framed. The questions are: 1st, Is this a joint commission? It is. 2d, Has the petitioner his certificate? He has. 3d, Has a sufficient dividend been paid on the joint estate? Here arises the question, What is a sufficient dividend? The answer is, that mentioned in section 128. The petitioner contends his allowance is to be 10l. per cent., calculated on the whole joint and separate estate, provided it do not exceed 600l. It appears to me that such was not the intent of the legislature: the fair construction of the act is, that the bankrupt's allowance should be calculated on the amount of his separate estate, and on his proportion of the joint estate, which latter he would not be entitled to but for section 129. Ex parte Gibbs, Mont. 105, only decides that the maximum of 6001. means the maximum which each shall receive, and not one aggregate of 600l. to be afterwards divided between the partners. The dictum of Lord Lyndhurst, "that were there a partnership of forty persons the amount of allowance would be enormous," has not the weight which has been attributed to it, because the supposed case of forty bankrupt partners may be met by supposing an estate proportionately larger. Sir John Cross-I am desirous of suspending my judgment for a short time. The course pursued by the commissioner is entirely new. Sir George Rose: --- Subject to the opinion of my learned colleague, and unless his opinion should differ from and turn mine, I do not think this is a question which should be left in doubt. I am at present of opinion that the decision of the commissioner is right, and must stand. Looking through the 6 Geo. 4. c. 16. no mention is to be found of a joint estate. (a) The orders of the Court touching the administration of joint estates were founded on an equitable power, possessed or assumed by the Court. Thus, when a joint partner proves by leave of the Court against the separate estate, he is restrained from receiving dividends till all the sepa rate creditors are paid. Section 128 refers to separate estate alone; and though a commission may be joint, yet under that section the bankrupt would only be entitled to an allowance out of his separate estate. Then comes section 129, providing for a particular case, viz. that if there be two partners, and one do not obtain his certificate, that shall not be any bar to prevent the other obtaining an allowance, and that is all the section does. But as in that clause the words are used, "if a sufficient dividend shall have been paid upon the joint estate, and upon the separate estate of such partner,” an idea has thence arisen, that he is to have an allowance calculated on the whole joint estate. Then arises the question, is a bankrupt to have in effect two allowances? It is said ex parte Minchin, Mont. & Mac. 138, decides that he is. I should hesitate long before I said or did (a) See 2 Christian, B. L. page 17, edit. 2d. 1834. Ex parte In the matter of LOMAS and another. 1834. Ex parte In the matter of LOMAS any thing in opposition to a judgment of Lord Lyndhurst; but neither the decision in ex parte Minchin, the words of Lord Lyndhurst, nor the equity of the act, lead to the conclusion that each partner is entitled to the full allowance as asked in the case now before the and another. Court. No doubt a bankrupt is entitled to allowance out of the separate estate and out of the joint estate; but the question is, whether the allowance out of the joint estate is to be regulated by the amount of the estate itself, or by the amount of the bankrupt's share thereof? and I am at present of opinion that the latter is the proper construction to put on the words of the Cur. ad. vult. 12th June. act. The CHIEF JUDGE: In this case there had been a joint commission against the petitioner Lomas and his partner Cooke, under which they were both declared bankrupts. The net produce of the joint estate amounted to 7311. 7s. 4d., and the net produce of the separate estate of Lomas to 137. 9s., which latter sum, there being no debt proved against the separate estate of Lomas, had been carried over to the joint estate, making an aggregate of 7447. 16s. 4d., and of which dividends to the amount of 14s. 6d. in the pound had been paid to all the joint creditors, leaving in the hands of the assignees the sum of 2157. Upon the application of Lomas a reference was made to the commissioners to ascertain his statutable allowance under the commission; and the commissioner thereupon certified, that it appearing to him that not more than one moiety of the joint estate could be deemed to have been the estate of the petitioner within the meaning of the expression "his estate," contained in section 128 of 6 Geo. 4. c. 16. he had given the |