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. "If 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.

Quære 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.

vi

PREFACE-Continued.

QUÆRE. 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.