Star.
London, England, 1812-11-13 00:00:00

COURT OF NINO'S MINCH, NMI!.

BURGH OP PLYSIOUTH--.-QUO WARRANTCI6
Mr. Seijeant LENS applied for a rule to shew cause
why an intormation, in the nature of a quo warrant°,
should not be directed to George Bellamy, Doctor
of Physic, tilling on him to state, on what authority
he claimed the right of exercising the office of one of
the Common Councilmen of the Burgh of Plymouth?
By a statute of the 18th of Henry VI. three places
therein named were erected into a burgh, called the
Burgh of Plymouth. To the
,Mayor and Common-
-alty was given the power of making Burgesses; and
•the Mayor and 12 Chief Burgesses, or Aldermen,
were to call in to them 24 free inhabitants, who were
in fact to be the Common Council of the Burgh.—
The question teas, if Dr. Bellamy was one of those
24 Common Councilmen, known sornetimes by the
appellation of " the twenty-four," sometimes by that
of " the 24 Common' Councilmen," and sometimes
by that of " the Common Councilmen ?" The affi-
davits in support of the present applications made by
three of the chief Burgesses, Mr. Kneider, Mr. Dun-
stanville, and an,,ther, stated, that when a vacancy
at any time occurred in the Common Council, it had
always been the practice to fill it up by the Mayor
and the 12 Chief Burgesses, from out of the flee in-
habitants, 66 calling to them," as the words bore,
66 21 of the flee tnhabitants." Since the year 18011,
there had no doubt been Some few instances in which
the Cornaionalty had elected along with the Mayor
and Chief Burgesses ; but, up to that date the affida-
vits bore, that the exercise of the right of electing
had always been confined to the Mayor mid Chief
Burgesses. Whenever at any time the Commonalty
interfered in the election of the 24 free inhabitants,
the persons on whose behalf the present application
was made uniformly protested against such right of
election. In the present year there were two vacan-
cies to supply in the number of the 24 Common
Councilmen of the Burgh; there were only Eve of
the Chief Burgesses present, beside the Mayor and
the Commonalty, insisting on their right to elect
along with the Mayor and Chief Burgesses, elected
Dr. Bellamy said Dr. Loom to the two vacancies.

-

The three gentlenten fa. present ap.
4ffication was trade Ofoiesfetraiainiethe right of too,
Commonalty to elect Common Councilmen. They
had made it a rule never to join in any'elecUon where
the Commonalty had interfered, they the-efore en y
protested on this occasion against the Commonalty's
right to elect; but in spite of their protests the elec.
tions of Dr. Bellamy and of Dr. Lockyer took place.
Lord ELLENisonotton asked, had the turgh of
Plymouth a prescriptive Corporate rightt- •
Mr. Serjeant Lana sail he rather behoved tsot. It
was an ancient Corporation.
Lord ELLENisonouou asked, WAS airs no mode ok
election prescribed in the charter ?
, Mr. Serjeant LENS said thete was not. -
Mr. Justice LE BLANC asked, was Dr. Lockyer
comprehended in the present rule along with Dr.
Bellamy ?
Mr. La .s sarcl, he was not moved against at pri..
sent.—Rule granted.

ROBERTSON, YOUNG, RTC. v. GLASS&
Mr. MARRYATT chewed cause against a Rule ola•
tamed by Mr. Campbell for having the defendant,
who had been arrested for a debt to the Amount of-
/00,000, discharged out of custody on 61ing com-
mon bail. The present defendant, Mr. Glasse, was
a partner of Hunters, Rennie, and Co. who were
ebtors to the plaintiffs to the amount of 440,000.
ne of the partners of this Company resided in Scot-
land, and of course was 'beyond the jut isdietion of
the law of this country. • Against the other three in-
dividual partners commissions of bankrupt had been
talcsa ow. The plaintiffs had proved their debt un.
des Rennie's commission, and in consequence of
having done so, the present application on the part
4.11 Mr. Glasse, another of the partners, and under
whose separate commission the plaintiffs had not pro.
ved, wai made, on the ground, that having proved
their debt under the commission against one of their
debtors, they must thereby be held- to have
- .•,,

mid*
*Or option, and be precluded from taking the Am%
soli of any of the other co-obligants in this debt.—
This, Mr. Marryatt contended, was not, and could
Inot be the fair construction or intention of the Act
of Parliament. Supposing that the -plaintiffs were
'holders of a bill of exchange having the names of
twenty different indorsers upon it, could it he conten-
ded, because they had claimed for the amount on
the estates of nineteen of them, that they were there-
by prevented frcrn taking the person of the twen-
tieth ? The point seemed to the Learned Counsetto
be so plain, that he did not think he had occasion to-
argue it farther.
Mr. CAMPBELL had no doubt he should be able to
satisfy their Lordships that he was entitled to have
the present rule made absolute. The firma of Hun-
ters, Rennie, and Co. of which the defendant was a
partner, consisted of four co partners, Alexander
Hunter, whoresideti in Send and,. Duncan Hunter,
Robert Rennie, and J. W. Glasse, all of whom resi-
ded in this country: From the circurhstance of Alex-
ander Hunter residing out of the jurisdiction of the
Court of Chancery, and not having committed an
tact of-bankruptcy, a joint commission could not be
'sued out against the whole four co-partners as a comi.
pany, but separate commissions were sued out against
the three,,as partners of H unfits, Rennie, and Co. From
the great expence and trouble attendant on the work-
ing, as it is called, of three severalcommissions,fordis-
tributing the effects of one estate, a petition*as pre-
sented to the Lord Chancellor, praying that the joint
creditors might be allowed to prove under the sepa-
rate commission against Mr. Rennie, and that the
joint funds should be distributed among the joint
creditors Under that commission. The forfhet part
of the prayer of this petition the Lord Chancellor
had granted, by allowing the plot creditors to prove
their debts under Mr. Rennie's cotrirdission ; but as
co the remaining part of the prayer of the petition,
his Lordship postponed it till after the choice of ae.
signees of the other estates. The debt due to the plain-
tiff was a Joint debt, and as such, the plaintiff; Mr.
Robertson, who was assignee on the estate of the de-
fendant, had proved it under Mr. Rennie's commission.
This being the case, and the whole joint estate bein;
to oe distributed under the Commission taken oit
against Mr. Rennie individually, Mr. Cartiphell Tuba
mated, that a proof under Mr. Rerloies commission
was, in such circumstances, tantamount to a proof
under the commission against the Defendant himself.
It this was not so, the greatest injustice *auk be
done to the Defendant in this cdse, and the obi.ct of
the Act of Piul'ament would be completely disap:
I pointed, which provided that a creditor should only
have an option of proving undet the commission of
Bankrupt, or of taking the person of his debtor. If
he once embraced the option of the former, then all
right to avail himself of the latter was totally lost to
him: Here,' however; if the Plaintiff was to be al-
' lowed is keep the person of the Defendant, while, at
the same time, having proved his joint debt under
Mr. Rennie's commission, under which the joint estate
of the Defendant, and of his oche partners, was to
be distributed ; not only would he, in effect, havil
claimed under the Defendant's commission, and
might even receive dividends from 'the Defendant's
joint property, while at the same time he availed
himself of-the inconsistent and contradictory right of
keeping ,his person in custody. •
. Lord ELLENBoROUGH said the plknent,application
aid not fall under the words of the Act. There
was here no proof under the commission against the
Defendant, and the Court could not et tend the word*
of the Acts

. Mr. CAMPBELL said, the object of the Act of Par-
liament evidently was, that the creditor should net
have the property of the bankrupt under his sornmis‘
sion, and his per*on at .the same time.
Lord EL•LIiNIoROVOM said,. the meaning of the
Act, so far as he could collect it from the words,
was, that the' creditor should not prove under the •
commission against the Bankrupt, and h'at'e his pet-
son at the same time.
Mr. CAMPBZLL again submitted that then was a
(very hard case, and a case of great importance.
Hese all the property of the present Defendant was
to be distributed under a COMmissiem under Ili&
the Plaintiff had proved this very debt against that
Defendant, and yet sought to keep his person also:
' Mr. Justice Ls BLANC said, the Lord Cbitnceller
had not yet decided that the joint funds wllre to fta
distributed under the separate coMMimicni against
Mr. Rennie. When his Lordship should seeeekt, the
, _
Defendant's .ease would be materially amps IS"
the better.—ltale diatbarged. ••••• • t). ' • •

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