was paid upon the joint estate, and the separate estate of the partner applying, he was entitled to his allowance. The point now in dispute could not arise in that case; for it appears by the report, 1 Dea. & Ch. 526, that the net produce of the joint estate was 45,620., and of the petitioner's separate estate 9287. 12s. 9d. Adding therefore one third of the joint estate to the separate estate, the petitioner's estate would be 16,000l. and upwards, the per-centage on which would more than cover the 5001. claimed for his allowance. Neither the language of the statute, therefore, nor any of the authorities, are at variance with the opinion of the commissioner; and I have the greater pleasure in confirming his decision, because it appears to me to be the only view which gives a just and reasonable effect to the obvious purpose of the legislature. To illustrate this, take the extreme case put by Lord Lyndhurst in ex parte Gibbs, Mont. 105, of forty members of a bankrupt firm, equally interested in the joint stock, and all of whom were entitled to an allowance. Suppose the joint assets to be 36,000l., and the joint debts 40,000l., and that dividends to the amount of 10s. in the pound had been paid, there would then be 16,0007. left in the hands of the assignees, which would be just sufficient to pay each bankrupt the full statutable allowance of 4007., to which each would be entitled if the petitioner's claim be tenable. In that case the creditors would get 20,000l.; the bankrupt 16,000l.: the creditors would receive one half of their debt; the bankrupt would get back ten twelfths of his estate, instead of one twentieth. On the other hand, if only one allowance were to be made to all, the creditors would get 178. 6d. in the pound, and each bankrupt only an allowance of 157., that is, one sixteenth instead of one tenth of his own estate. Whereas, by 1834. Ex parte the line adopted by the commissioner in this case, each creditor would have 16s. in the pound, and each bankrupt would receive 907., that is, one tenth of his own estate, according to the obvious intention of the In the matter statute. But this might be more strikingly illustrated by taking a case in which the dividend upon the joint estate had been principally paid by the surplus of the separate estate of some of the partners, or while the separate estates of the others might, as in the case before us, be trifling in amount, though sufficient to entitle the bankrupt to an allowance. If each bankrupt were to be entitled to a per-centage on the whole estate out of which the dividend was paid, then those who had contributed little or nothing would not only receive as much as those who had paid all, but would receive back, not a proportion of their own estates, but a portion of the separate estates of their partners, to which neither in law nor in conscience they ever had any claim. I entirely concur, therefore, in the view taken by Mr. Commissioner Fane, as equally consistent with the language of the statute, the intention of the legislature, the decisions on the subject, and sound practical good sense. LOMAS. of LOMAS and another. Sir John Cross: The only question is, whether the petitioner's allowance ought to be computed on the whole of the joint estate, or on his share of the joint estate. The latter appears to me manifestly the more just and equitable mode of computation. This, however, is not a question of equity, but a pure question of law, depending on the construction of an act of parliament; and I did not at first see how that view of the case could be reconciled with the terms of 1834. Ex parte In the matter of LOMAS and another. the statute. Upon further consideration, however, I think the law and the equity of the case are clearly reconcilable. The 128th section is adapted to cases of single bankruptcy, and the 129th to joint bankruptcies; the former gives in detail all the data for the calculation both of the dividends and of the allowance dependent thereon in single bankruptcies; the latter clause, in more general terms, enacts, that in all joint commissions, before any one of several partners shall be entitled to an allowance, a sufficient dividend must be paid upon the joint estate, and also upon his separate estate, but without furnishing any data for calculation, or any word of reference to the preceding clause; nevertheless, it appears to me it must be understood to mean, in the several proportions before mentioned. We find, then, that the dividend for this purpose is in express terms required to be computed on the joint estate, that is, upon the entire joint estate; but the allowance is tacitly left to be computed for each partner according to the mode before prescribed in the case of single bankruptcy, and that is, "on the net produce of his estate," which, in the case of a joint commission, consists of the whole of his separate estate, together with his share of the joint estate. This appears to be the true construction of the act; and I am therefore of opinion, that the allowance already made to the petitioner has been correctly calculated. I think the cases cited in argument do not touch this question, which does not appear to have been ever before brought under the consideration of the Court. Sir George Rose: -I have already expressed my opinion at the close of the argument. I concur in the judgment pronounced. Per Curiam:-The petition must be dismissed, and with costs, for the bankrupt, having obtained his certificate, no longer retains any privilege as to costs. 1834. Ex parte In the matter of LOMAS Petition dismissed, with costs; the assignees to Ex parte SIMPSON and others, assignees. - In the matter of SUDELL. C. of R. June 5, 1834. Ex parte Myers, 229, confirmed. THIS was the petition of the assignees of Henry Sudell, praying for a rehearing of a petition heard the 15th of Mont. & Bli. January 1833, and reported Mont. & Bli. 229, when an order for a proof was made, which the present petition Lyne and Co. sought to have expunged. were the agents of Henry Sudell. A party accepted bills under the following document, given by Henry Sudell: "In conse quence of your allowing Messrs. Lyne to draw on you to the ex tent of 12,000l., I hereby gua rantee to you that amount, it being under The petition set forth the presentation of the original petition (by Ewart, Myers, and Co.), on the 30th of December 1831, which original petition stated as follows: That prior to and since October 1823 the petitioners had carried on, in co-partnership, the business of brokers at Liverpool, under the firm of Ewart, Myers, and Co., and in London under the firm of Ewart, Taylor, and Co.: That, since October 1823, the petitioners had extensive dealings with Henry Sudell, formerly of Woodford Park near Blackburn, Lancaster, merchant, against whom a commission issued the 7th of August 1827; which dealings consisted partly of money lent and advanced by the petitioners said Liverpool firm, at the request and for the use and on account of the said Henry Sudell, on the balance whereof a sum of fall due," &c. 7,8451. was due by Henry Sudell to the petitioners, and Messrs. Lyne stood that payment of these drafts is to be provided for by myself, or Messrs. Lyne, in direct disfourteen days at countable bills, least before they accordingly ac cepted bills; Henry Sudell became bankrupt before some of the bills became due. Hell, there was a debt proveable, the document being, not a guarantee, but an original under. taking. Semble, it would have been proveable if a mere guarantee. partly of monies lent and advanced, &c. by the petitioners said London firm, at the request of and under the following written guarantee by Henry Sudell, given to the petitioners in November 1823: "Woodford Park, 8th Nov. 1823. "Messrs. Ewart, Myers, and Co. "Gentlemen, "In consequence of your allowing Messrs. William Lyne and Thomas Sudell to draw upon you to the extent of 12,000l., and your accepting three drafts accordingly, but so as for them not to have more than that sum running at one period, I hereby guarantee to you that amount, it being distinctly understood that payment of these drafts is to be provided for either by myself or Messrs. William Lyne and Thomas Sudell, in direct discountable bills, fourteen days at the least before they fall due, and I also guarantee the due payment of all remittances made to you by Messrs. William Lyne and Thomas Sudell. I cannot conclude this letter without expressing my thanks for your confidence, and with the hope that the arrangement will be mutually advantageous. "I remain, gentlemen, very respectfully, That Lyne and Sudell, who were merchants and partners at Liverpool, did, from the date of such guarantee, (commencing with drafts dated 11th of November 1823, and ending with drafts dated the 4th of July 1827,) from time to time, draw bills of exchange on the petitioners London firm, at three months date, all of which bills the petitioners had paid on the faith of the guarantee, and that on the balance of such guarantee account a further sum of 6,1617. had, through the default of the said Lyne and Sudell in reimbursing the petitioners, become due to the petitioners by Henry Sudell: That on the 15th of July 1831 the petitioners tendered their |