The Northern Daily Times.
Liverpool, Merseyside, England, 1856-04-23 00:00:00

of Blackburn, 5,

ad, Jameson,

and Peter Blackburn, The petitioners were
creditors upon bills of exchange, drawn by
Isaac Blackburn upon Feter Blackburn. Isaac and Peter
Blackburn traded as shipbuilders at Plymouth, but in the
name of Isaac Blackburn only. Peter Blackburn carried
on a separate business as a merchant in London. At the
time the bills (which were negooiated for the use of the
partnership trade) were taken, the petitioners were
ignorant of the existence of the partnership, though they
were aware of it at the time of the bankruptcy when they
proved for a joint debt, and one of the petititioners was
chosen assignee. They afterwards applied to the com-
missioners for liberty to transfer their proof to the sepa-
tate, which being refused, they applied to the Vice
,ncellor that they might be declared entitled to prove
gainst the separate estates, as well as against the joint
estate, or that they might be at liberty to transfer their
proof from the joint estate to the separate estate. The
Vice-Chancellor having held that thEy were too late to
transfer their proof after dividend had been declared of
the joint estate, and after they had acted as joint credi-
tors, the case came b fore the Lord Chancellor on appeal,
allowing the petitioners to prove against the separate
directed the proof against the to be
He said : "In this cr

rate es

estates

rlt estate
the bills

expunged

accepted by the dormant partner of the partner-
ship of Isaac and Peter Blackburn, and are drawn
by Isaac Blackburn in his individual name, indeed ;
but as I must take it on the evidence in his name as
representing the firm of the two bankrupts, it does not
appear to me that this case ranges itself within that class
of cases in which, contrary to the ordinary rule u bank-
ruptcy, the holder has been allowed to ptirsiif; the con-
tract appearing on the face of the bills, and t, have
double proof." In ex parte moult., 1 Deacon and Chitt;
44, and 2 Deacon and Chitty 413. Messrs. Williams,
Deacon, and Co. had proved against the joint estate of
Thomas Barrow and George Geddes, and also against the
separate estate of Geddes, upon a bill of exchange.
Geddes was a partner with Thomas Barrow, under the
firm of Thomas Barrow and Co., commission agents. He
was also a separate trader as a cotton manufacturer under
the firm of Geddes and Co. He was also a member
of the firm of Thomas Johnston and Co., warehousemen,
and of the firm of Samuel Radcliffe, cotton spinner. The
subjects of proof were two bills drawn by Thomas Barrow
ar.d Co. upon Thomas Johnston and Co., and endorsed
Thomas Barrow and Co., Geddes and Co., and Samuel
Radcliffe. A joint stock commission issued against Barrow
and Geddes, and a separate commission against Thomas John-
ston, the creditor. Robert Williams, who alleged that
neither he nor his co-partners, before the issuing of the
commission against Barrow and Geddes, knew, believed,
or suspected that George Geddes was a partner in the
firm of 'l'. Barrow and Co., or that he was a partner
in the firm of T. Johnston and Co., but that they
believed that the firm of Thomas Barrow and Co.,
and the firm of Thomas Johnston and Co., and the firm
of Geddes and Co., were composed of different and dis-
tinct persons. Proof was made for the amount of the two
bills of Exchange against Thomas Johnston, and
before 25th March, 1830, two dividends, amounting to
2s. 84. in the pound, were declared under his Bankruptcy,
which might have been received by the creditors upon
I application before that day. A proof was made under the
commission against Thomas Barrow and Co., against the
separate estate of Geddes, for the balance of the two bills of
exchange, after deducting the amount of the dividend
declared in Johnston's bankruptcy, and on the same day
proof was made against the joint estate of Thomas Barrow
and Co, for the whole amount of the two bills of exchange. A
petition was presented to the Court of Review, praying
that the creditors might be ordered to elect whether they
would remain creditors under the proof against the joint
estate of Thos. Barrow and Co., or render their proof against
the separate estate of George Geddes, and in case they should
elect to remain creditors upon the joint estate of Thomas
Barrow and George Geddes, then that the amount of their
proof upon that estate might be reduced by the amount of
the two dividends declared on Thomas Johnston's estate,
and in case of their refusal to elect, then that both proofs
might be expunged. The Judges of the Court of Review
being divided in opinion on the main question, made an order
to this extent only, that the proof against the joint estate of
Barrow and Geddes should be reduced by the amount of
dividends received upon Johnston's estate: Sir G. Case,
who, with the Chief Judge, was of opinion that their creditors
must be put to their election, adverting to the argument
which had been used in favour of the double proof, that as to
Geddes, there was a separate express contract by indorse-
ment, said :—" It is needless to go through the cases, for not
one has been cited that effects the rule, that you cannot
prove against both the joint and separate estate of the
sameindividual. Or I would put it thus Wherever your
common law execution would give you both estates, then
under the equitable execution, in which

ou all come in

solvency

together under you must each take your own
estates, in the first instance ; not exclusively, but, in the
first instance, subject only to a right of election, which we
all know is in the petitioning creditor, as perhaps the first
execution creditor, and to a right of election, as in this
case, when there is express consent." The Lord Chancellor
(Lord Brougham) before whom the question of double
proof was brought on a special case (2 D and C, 449),
decided against the double proof upon the authority of the
case of ex parte Husbands, before mentioned, and
ordered that the creditors should elect against which estate
they would prove. Since the decision in this case a double
proof has been expunged in a case of ex parte Soper,
in the matter of Salter and Pearson. The reference
given by Mr. Lowndes, in his argument, was to
the 4th volume of Deacon and Chitty's Reports, but the
facts of the case are stated in the second volume of Mor-
taque and Ayrton's Reports, page 55. Salter and Pear-
son were in partnership as merchants; Pearson was also
in partnership with different persons as warehouskeeper,
and durning the five years preceding the fiat was in partner-
ship with Price. Salter and Co. drew bills on Pearson,
which he accepted, and a commission having issued against
Salter and Pearson, one of the bills was proved in 1824
against the joint estate, and another in 1825. In 1826 the
party representing the holders as a surviving partner, sought
to prove against the separate estate of Pearson the balance
then due upon the bills, after deducting the dividends paid
upon the joint estate, and his proof had been allowed by
the commissioner. The proof was expunged in 1834,
upon the authority of cx parte Moult. The court, how-
ever, did not order the dividends to be refunded, on
account of the length of time which had elapsed since the
receipt of them. That case of ex parts Moult was also the
ground of expunging a proof in ex parte Law, 3 Deacon, 541.
I come now to ex parte Hinton, in the matter of Acraman,
De Gex, 550. In that case there were two firms, Acramans,
Morgan, and Co., consisting of three Acramans and Thomas
Holroyd, William Morgan, and James Novroway Franklyn,
ship builders, boiler makers, and engineers, and the firm
of D., E., and A. Acraman (consisting of the three Acra-
mans only, trading as merchants. A promisary note
payable to one of the Acramens, or order, signed on
behalf of Acramans, Morgan, and Co., the firm of six
partners, was indorsed by the payee, and by the firm
of D. E. and A. Acraman, as well as by one William
Williams- The petitioner who had discounted the note
knew or believed that the three Acramans were partners
in the firm of six ; he had proved his debt under the fiat
issued against the firm of Acramans, Morgan and Co.'
and received a dividend. Before the receipt of the dividend.
but after proof made, he tendered a proof against D., E. and
A. Acramans, against whom a fiat had also issued, but the
commissioner rejected the proof, on the ground that, know-
ing the three Acramans to be partners in Acramans, Morgan
and Co., he had made his election. The chief judge of the
Court of Review, the present Lord Justice Knight Bruce,
after expressing a doubt whether the knowledge that
the three Acramans were members of the firm
of six was material to the decision in the case,
said, "I do not see any distinction between the case of
ex parte Moult and the present, unless it is a distinction
that Geddes and Co. had not a partner, whereas here the
minor firm comprises several persons. I think that it is not.
My opinion (subject to the question of knowledge or igno-
rance) is that by law there ought not to have been double
proof in the case before me." And he dismissed the peti-
tion, giving the assignees their costs out of the estate. This
case was decided in 1847, and my attention has been directed
by Mr. Shackleton to some observations upon it, in a judg-
ment of Mr. Sergeant Stephen, delivered in the year 1850,
in a case arising out of the bankruptcy of Acramans, Mor-
gan and Co. The learned commissioner says :—" I am
'aware that, in sx parte Hinton, the chief judge is reported
to have expressed himself as if he thought the double proof
must have been disallowed in that case, even though the
taker of the note had no knowledge of any connection
between the firms, and as if he admitted no distinction
between the case of double proof as against connected firms,
and of double proof as against the joint estate of a single
firm, and the separate estate of one of the partners ; in
which latter case the double proof must be disallowed,
according to ex parte Moult, whether the taker knew him
to be a partner or not. But I am not satisfied of the
accuracy of the report in this respect; for such a view was
not necessary to the chief judge's decision, nor is it the
view taken in ex parte Hoult, on which heis said, neverthe-
less, to have exclusively relied : for, in ex parte Moult, the
distinction just referred to is admitted. I conceive, therefore,
that ex rirte Hinton is not to be understood as applying
to the right of double proof against connected firms, except
in the precise case which then occurred,—in the case
where the taker of the bill was aware that all the partners
in one firm were partners, also, in the other firm."
, Beyond these doubts thrown out as to the report of
i the case in ex parte Hinton, the case just referred to
does not assist the advocates of the right of double proof,

INIIIMIMINMMINNWOMOMM

smuswimil

or for the proof offered in the case befall; Mr. Serpa
Stephen. was a proof against Acramans, Morgan, and Co. •
on some bills drawn by Alexander Young, jun. upon end
accepted by D.E. and A. Aeraman, and endorsed by the
other firm of Acramans, Morgan, and Co., after the proof
made and dividends recdred, under a fiat issued against D.
E. and A. Acraman. The learned commissioner rejected the
" ----g in the cm, that the "or knew
rms,

gh ho beli(

member of the firm o

,mane were Inc

Acraman was no longer a
mans, Morgan, and Co. Haring
. " ",,,66ti012

thorities upo
'notice

now gone through the various
raised before me, it appears to me that _ bud connee,•
tion of the firm of Deane and Youle, of Liverpool, with the
firms of Deane and Youle, of Pernambuco, and of loale,
Deane and Co., of Bahia, be necessary in cider to exclude
he right of double proof, sufficient notice was given to the
',lers of the bills, by the identity of the names, to put
,ry, and they have, in no instance, ventured
gnorance of the connection of the Liverpool
,rms with the foreign firms, while in one ease, that of Nr.
Hull's client, the knowledge of such connection with thd
_ is admitted. I am of opinion that the pre.
se must be governed by that of cx parts Hinton
*natter of Acraman. Here, however, there are but
' which the actual receipt of dividends at
' though in most of the cases
has actually
ice, so that
no.vn of the receipt
actually elected.

upon enqu
fhPir i

0 ulleg

inst
ambuco is

before r

t twenty per cet
sects in Pernatr

be held

the right Of double
suea of the cre-

e house of
Deane and
'd to prove

Trpool;
foreign