The Sun.
London, England, 1827-08-14 00:00:00

BANKRUPT.

Mr. MONTAGU applied in this matter for leave to prove
a debt against a surety's estate, who had become bankrupt.
Mr. Badnall, senior, was the debtor of Mr. Doxatt. Mr.
Doxatt held a, mortgage from Mr. Badnall for the amount,
and also Mr. Badnall, junior, became surety to Mr.
Doxatt for the payment of his father's debt: The surety
became bankrupt ; subsequently, though that did not ap-
pear on the petition, the principal debtor became bankrupt,
and the present application was, that the creditor might he
at liberty to avail himself of the amount of his security.
Mr. MONTAG U could not conjecture what difficulty the
other side meant to raise. He cited exliarte Parr, in Rose's
Reports, page 76, and ex-parte Peacock, in Glynn and
,famiegon, page 27.

Mr. WILY contended, that the creditor could not prove
against the surety's estate, until he had made the mortgage
available against the principal debtor's estate, and that then
he could only come for the deficiency. Any other proportion
was contrary to principle, and calculated to occasion circuity
of actions, inasmuch as that if the creditor was in the first
place to be allowed to go against the surety's estate for the
whole amount, still holding.the mortgage from the princi-
pal creditdr, the assignees of the'surety would have to bring
an action for the recovery of the amount of the mort-
gage from the representatives of the principal debtor. He
submitted that the creditor ought to sell the mortgage be-
fore he could prove in competition with the rest of the
surety's creditors, and that the proof could then only he
made for the balance still due to the creditor. •He cited
ex-parte Reid, in the matter of Ritchie, in Buck's reports.
Mr. MONTAGU, in reply, considered the settled law to
he, that until the surety had paid the creditor. 20s. in the
pound, lie had no• right th object to his proof, or demand
tliat his inortgageJmn the principal debtor should he made
available' beforc.,lte attempted to prove.
His Lo#nstttr was of the same opinion. The surety
had become 'responsible for the whole amount due to the
creditor,' and the creditor had a right to go against his
estate for the whole amount due to him.

RE-PARTE ELMS, 1141- THE MATTER OF BADNALT., A

BANKRUPT.

Mr. BICKERSTISTES stated, that this was a petition pre-
sented in the same matter. In 1825, Measrs. Ellis, Bad-
nall, sen., Badnall, jun, Spilsbury, and Crusoe, entered
into partnership, to carry on a banking concern at Leek.
Shortly afterwards Mr. Ellis wished to retire, and the other
partners assenting to this, his interest was ascertained to
be 7,0001. and of !Action, and a bond was executed to secure
the payment of this hum to him at a future period with
interest. In August, 1826, the partnership was entirely
dissolved, and Mr. B. sen. intended afterwards to carry on
the concern on his own account; hut with the consent of
Mr. Ellis the new firm was gazetted under the name of
Badnall and Ellis, consequently Mr. Ellis became respon-
sible for a share of the debts afterwards contracted. Those
who went out of the concern in August, very soon after-
wards because bankrupts, and in December last, Mr. B.
sen. was swept away with the general current of
commercial distress. The application now was, that
Mr. E. might be -allowed to proceed against the separate
estate for the amount of his bond, and also for the amount
of any sum he might pay in discharge of the debts due from
Badnall and Ellis, is which firm lie had only a nominal
interest.

Mr. Rost,: and Mr. MONTact] appeared to oppose the
petition, which occupied the morning, and was not con-
cluded when we left the Court.

VICE-CHANCELLOR'S COURT.
EX-PARTE COLES IN RE BLAGC.

This was an appeal from the decision of the Commis-
siimers of Bankrupts, and the question, which was of con-
siderable importance, arose out of the following circum-
stances :—lt appeared that a person named Pigot applied
to the firm of Gardiner and Co. for goods on credit, which
he was himself afterwards to trade with. In order to
secure the due payment for any advances so to be made by
Gardiner and Co. to Pigot, Blagg joined him i❑ a bond,
the effect of which was, that Blagg should be liable for
such sums of money as should from time to time be due
by Pigot to Gardiner and Co., on account of goods
sold, money lent, or - otherwise, to the extent of
500/. Upon a settlement of accounts there appeared
a balance againt Pigot. Gardiner and Co.'did not press
the immediate payment of the money due to them from
Pigot, but gave him an extension of time, and the question
now was, whether this forbearance on their part did not
release Blagg, the surety, front all liability in respect of
the bond ?—The Commissioners decided in the affirmative.

The VICE-CHANCELLOR, in giving judgment, said, .that
it had been laid down by Lord Eldon, that if a creditor
has a claim on a principal and surety of such a nature as
that he can proceed for the recovery of it, eo instanti, and
if he gives an extension of time to the principal, without
specifically reserving his right to proceed when he pleased
against the surety, he (the creditor) by the mere fact of giv-
jug that promise of forbearance to the principal, releases the
surety altogether, and reduces the claim to a transaction
between the principal and himself. His Lordship also.de-
cided that the creditor, in reserving his right to proceed
instanter against the surety, notwithstanding his indulgence
to the principal, need not communicate' his intentions to
the surety himself—it would be quite sufficient for hint to
say to the principal, " I shall not sue you for this debt be-
fore sir_:h a period, but I reserve to myself the right of pro-
ceeding against your surety whenever I shall think fit."__
This decision of Lord Eldon was founded upon so very re_
fined a principle, as at a first view to appear almost unin-
telligible; but after mature consideration its intricacy seemed
to his Honour to :be in some measure removed. That
principle did not, however, apply in the present instance,
for here the bond was given as a guarantee for the general
solvency of Pigot, and was to secure the re-payment of ad-
vances made to bin in order that he might carry on his
trade. The very nature of such dealings presumed that
Pigot tfas to receive forbearance from Gardiner and Co.,
otherwise he might be exposed to the cruelty of being
called on, without a moment's notice, to repay money
which he had but the day before embarked in trade. His
Honour therefore thought that the decision of the Commis-
sioners ought to be reversed. •

WINDSOR) AUG. 13.—Yesterday the KING,
on leaving the Royal Lodge in his pony phaeton, and after
enjoying some recreation in the 'Great Park, drove to Frog-
more Lodge, and paid a visit to the Queen of WURTEM-
BERG and her Royal Highness the Princess AUGUSTA, and
returned to the Royal Lodge. I❑ addition to the com-
pany mentioned in our last, as dining yesterday at the
Royal Lodge with his MAJESTY, are the folkuying per-
sonages :—their Royal Highnesses the Duke and Duchess
of CLARENCE, the Duke and Duchess of GLOUCESTER,
Princess SoeutA MATILDA of GLOUCESTER, Prince Es-
TEatrAzY, Duke of DEVONSHIRE, Earl of FIFE, and Lord
ST. HELENS. The King's private band were, in attend-
ance, and played during the evening. After his MAJESTY
retired, the Duke and Duchess of Gi.oucesTEß and Prin-
cess SOPHIA. MATILDA left the Royal Lodge, and returned
to Bagehot Lodge. Prince ESTERIIA ZY also left the Royal
Lodge, and retired to Salt Hill, where the Princess and
part of his family were, waiting his return. Their Royal
Highne;ses the Duke and Duchess of CLARENCE passed the
night at the Royal Lodge, as did also the remaining part of
the company, except the Queen of WURTEMBERG and
Princess ALIGHISTA, with their attendants, who returned
to Frogmore Lodge. This day their Royal Highnesses
the Duke and Duchess of CLARENCE took leave of his
MAJESTY, and left the Royal Lodge, for their seat, Bushy
Park.

Viscount GODEBicti arrived at Pie Roya,
Lodge, in Windsor Park, about one o'clock yesterday after•
noon, on a visit to the KING.

A Privy Council is expected to be held before,
or on Friday next, for the purpose of proroguing Parlia-
ment, &c., as Friday will be the last day on which notice of
the prorogation can appear in the Gazette previous to meet-
ing of Parliament on Tuesday next, that being the day
to which Parliament stands prorogued. On the same day
the Recorder of London will make his report.
The Duke of GLOUCESTER left town on Sa-
turday afternoon for his seat.at Bagshot. The Duchess of
GLOUCESTER also arrived at Bagshot Park on Saturday,
from the seat of the Princess AUGUSTA at Frogmore,
where the Royal Duchess-has been staying some weeks on
a visit to her sisters the Queen of Wu RTSMBERG and the
Princess AUGUSTA.

Lord MANNERS, the late Lod Chancellor of
Ireland, arrived in town on Friday from Ireland : his Lord-
ship dined with the Earl of WES7`/1102ELAND yesterday at
his residence in Grosvenor-square. The Earl of ELDON
and a select party met the Noble Lord at dinner.

The Marquis of LA NSDOWNE transacted busi
ness yesterday at the Foreign Office.