The Sun.
London, England, 1806-07-26 00:00:00

This Bill was filed'by three creditors of Messrs
Ross and Sinclair, one for 2901. another for 1841.
and theithird for 82S1. Messrs. Anderson were
stated to be creditors of the same hdese to the ex-
tent of upwards of 17;0001. RoSs visas resident at
Ilerbicer and Sinclair remained in London ; the lat-
ter dying, Mr. John Anderson was at first appoint-
ed Adininistrator; and afterwards became,Executc.r,
in consequence of .a will being discovered, in which
_he 'Was nominated to that situation by the deceased.
Under these circumstances, there being no repre7
sentative of the house of Ross and Sinclair in this
country, on -the occasion of the consignment of 132
bags ofeotton wool to Sinclair, an injunaion had been
'applied for and granted under the Chancellorship of
Lord ELDON, to put this' property -under the hands
of a Receiver of the Court ;''but the ship in which
it was"conveyed being captured, itiwas of 'no avail.
Mr. 3. Anderson, in his charadeirof Executor, had
received 14021. 17s. ed. and also 28731. 16s, 7d.
which the Executor admitted was received from the
joint property of Ross and Sinclair. It was now
sought by till's Bill, that. the effeCts in the hands of
Mr. J. Anderson should be paid to a Receiver of
the Court, and that. all the future receipts on ac-
count 'of that partnership should devolve into the
same handsovith the exception of the first item of
14021. 17s. Od• which the .said Defendant retained
as Executor under the Will of Sinclair.
'The SOLICITOR-GENERAL and. Mr. NVETHERALL,
in support of this application, said, that the same
motives which induced Lord ELDON lO'grant the
injunaion in the first instance, would operate on
his Lordship to interpose, at this time, since there.
ewes 00 variation in a single fa&, excepting that
5. Anderson was before AdMinistrator,•whereas
'now he stood in the relation of Executor. The only
• cl;:i,n Mr. 3.. Anderson had .was an equitable ' inter-
ere which did not commence until all the creditors
were paid. :While this suit was depending, We took
advantage of his situation, and acquired possession
of the property. The. Defendants said, that they
were not only- entitled as EXecutors, but as Cre-
ditors, and that they had a right to give themselveS
the'preference: This, however, was not a corrc&
view. 'The doctrine of retainer might be thus- ex-
plained-An. Executor cannot sue 'himself, and
therc:,fore he might retainehis own claim pa/ipassu
but there was no power of retainer where he 'could
sue ; and in this particular case Messrs. Andersons.
Might sue in their situation as Creditors. That law
was not founded upon any superior right of theExet
tutor, 'but from the impossibility that an 'Executor
could proceed in a suit against himself. Where an
Executor had merely an equitable demand; he cotilti
not retain out of the assets.; for it was an acknow-
ledged maxim in equity, that no 'such-claim could
'be enfOrCed, unless he came in part passe with ere--
diters of equal rank.
a'he LORD CHANCELLOR--" How can a Court
administer the property of a trader unless he become
bankrupt ? The application is to appoint- a Re-
ceiver, and to pay into Court the money received by
Anderson as' Executor. What is to become of the
fund when in Court ? Suppose Mr. Anderson should
.sue the surviving partner, Mr. Ross, at common
law, and obtain a, verdict,: must he conic here to
pay
.himself ? The Court might have the whole per-
: ,sonal estate of this country in its hands, if it were to
- :interfere with a trader's property prior to his insol-
. vency."-
„TheSoeiceroa-GENERAL—" The case of Muil-
man and Names, of which Mr. Cooke has this mo-
ment reminded me, is an authority for this-applica-
tion -; and Ido assure your Lordship, that I would
riot persist, in the support of it, if conceding to it
were not the acknowledged praElice of the Court."
Mr. HAwr, for the Defendant--" If such an ars.
guinent as the last were to be used, I may as fitly
employ it as the Solicitor-General ; and -I do assure
your 'Lordship, in the like terms, that I would not
persist in the opposition of it, if conceding to it were
the acknowledged praClice of the 'Coda:. The in-
junClinn granted by Lord ELDON was wholly ex
parte upon filing the Bill, and therefore afforded no
precedent. Ross was the surviving partner, and he
had committed no,a6t of bartir.tuptey to place him in
the hands of the Court. Not the sinallesi title had
been shown by the Plaintiffs, and no party can re-
cover by the weakness of the. Defendant's title : he
can succeed only, by the strength of his own. The
parties for whom I
_appear areetiot only Executors,
but also equitable Creditors, and in this double elle-
Teeter they may retain the property. Mr. Sinclair
was not 'only'a partner, bdt he was in the situation
of consignee of the effeeti, and to 'nth the bills of
lading were assigned. Mr. Jelin Anderson, there--
-fore; who stands in the shoes of Sinclair, 'acquires
'tile rights Which would have devolved upon the de-
ceased
as Assignee and Consignee."
The Lola CIIINCELLpIi entered at some length
into thefaof the case, and the eqdity. corlueaed
with those faas,;commenting upon both as he pro-
- ceeded. - He said he did not see
;what jurisdiction
the Court had 'to take: the property out of the hands
of Anderson, or the surviving- partner;' but he
thought he should do well to let one sun at least go
down before he decided between the parties.