The Statesman.
London, England, 1813-08-18 00:00:00

SYIO

, • .
Brickwood and CO 's assignees to account with and
pay to the assignees of Bracken and Co. such surplus
as may remain from the proceeds received or to be
received by theui on Recreant of the said short bills,
after payment of the dividends tlue to the• Several
'holders of the bills drawieby Bracken and Co: upon
Brickwood and Co. might be varied;
and that the
assignees of Brick w nod aled.,Co.. might be directed to
pay to the Petitioners and the other holders of the
oitstanding acceptances• of Brickwood' and• Co.
amountieg to 23,4001, the sum of • 3351. ,17s. 6d.
the amount of . the balance of, cash belonging be
Brackett'and Co. in the hands of Brickwood and
Co. at the time of the bankruptcy, after deducting
the dividend of '2s. I ldoie the pound, already paid
from Brickwood and Co.'s estate; the proceeds aris-
ing from the short bills to the amount of 21,6461.;
the sum of 2[,611. being the net proceeds arising
front the sale of the premises sold ; and that the
1
assignees might also deliver over to the Petitioners
Ilia& of the said bills and securities as had not been
I,
converted into money, to the Petiticeg”-s and the
other holders of the said acceptances, towards pay-
,
went and satisfaction of the money remaining due on
such acceptances, ai far as the same would extend.—
; The Petitioners, who were the holders of - those ac-
-1 aiptauces of Brickwood. and Co. to *Bracken and
ce. the Learned Counsel contended, wereentitled now
. to ask the same equity as Brickwood and Co. would
have had a right to demand had they not been
bankrupts. Surely BrickvvOod and Co. had a right
Ito apply the short bills in satisfaction of the ac-
leeptances for Which they were deposited as an in-
; delenity ; and, if so, he submitted, the creditors
by whom those acceptances were held, and which re-
-1 mained unsatiified only in consequence of Brickwood
and Co.'s bankruptcy, were entitled to .the same
equitable right. If a man conveyed an estate to A.
Ito pay a debt to a creditor B. that creditor B. was as
j much entitled to the security given him over the
lestate as if A. were a trustee for the purpose of pay.
ling that debt, 'with the privity of B. A.• can nests
re-convey the estate until he had executed the trust,
for the discharge of which the estate was made over
to him: The Leaded Counsel applied the same ilea-
' soiling to personal as to real property. The trust in
the one case was as irredeemable as in the other; and if
the person with Whom property of either description
`was deposited for a particular purpose, re-conveyed
I it, or restored it, before the purpose for which it
1 was deposited, was satisfied, such person wasguilty
of a breach of trust. A chattle might be so depo-
sited as well as a real estate. lf, therefore, A. re-
Ceives a chattle on which money. may be raised, to
be applied to satisfy a debt due to B. he cannot re-
turn the money; the proceeds of that chattle, to the
party from whom -he received it. If he does so, it
is a breach of -trust ; he is bound toapply the pro-
ceeds of it to satisfy the debt of B. -Suppose, how-
' ever, that besides being trustee, A: is also surety for
the person owing the debt to B. can that be less a
trust for B. than B. has the additional advantage of
the surety of A. ?—Wherever : such a deposit was
once made, it *as, the Learned Counsel contended, an
obligation to pay, and was irredeemable. lie would
ask, was not the putting of those short bills inte the
lime& of Brick wood and Co'. a trust to pay the ac-
ceptances of Brickwood and Co. to Bracken and Co.
to the 11-)lders of such acceptances ? if those short
bilis had not been handed over to MA wood and
Co. specifically for that purpose, would they not
have been- a part of the general estate of Brickwood
1 and Co. ? They certainly would; yet his Lordship
had decided that the creditors of Brickwood and Co.
had no property in them; thus recognizing the spe•
eial purpose for which they were put into Brickwood
and Co.'s hands,—itamely, that of answering-the ac-
' eeptances of Brickwood and Cu. for Bracken and
Co. of which acceptances the preseut Petitioners are
the holders. Brickwood and Co..eould only apply
'those short bids in payment of the acceptances in
lquestion ; and the question was, if this did not im-
pose on him the equitable obligation so to apply
them ?.Although the creditors,—the holders of the
.acceptances;—did not know of the fact, still the
very fact of the • deposit, the Learned Counsel said,
was, and became a trust, for the purpose of provid-
ing for the payment of those acceptances. 'rite dis-
tinction- between a trust and an indemnity was very
nice ; bat he should state it thus :—A trust was
where a particular property deposited wns to be ap-
plied in payment of a debt due to a creditor. Ad
indemnity was, not where the money or fund was to
be paid to as creditor; 'but where it was to remain
with -the person. in whose hands; it was deposited, iu
case lie should be called mute) make a-payment, in
which case he was to 'resort -to it for indemnifying
himself for that sum which he bad been obliged to
pay cut of his own fonds. The short bills, he sub-''
mitted, were in the •aalswe of a,: trust, and not of an ,
indemnity. • • '-.0.t••••:. t. % :' •. - •
• The Lone' Cytatecietha olesireed„ the petition.'
il
carried this doctrine' the length of the application of '
the Cash balance. 1 I
Mr. LEACH said, be had avoided .saying any thing
on that point. lie 'could not sufficiently 'ear-Mrk '
that part of the security,' and was afraid that could
only be-regarded- as* debt. The general principle,.
itawever,' he submitte4 . would oppli as -much to the.
mortgaged estate as to; the 'shoiehills. It was an.
acknowledged principle, that a surety paying a cre-
ditor was entitled to stand in the creditor's shoes 0
against the principal debtor ; and, if the creditor TO-..
fused:to the surety that right, a Court of Equity
would give to the surety relief. A creditor might,
if he did so bona fide, release or reconvey the mort-
gaged estate to the principal debtor: -he might say.
that he was satisfied-with the security of the debts,
himself, and his surety, without looking to ,the.
estate. Suppose, however, that a principal debtor;
becomes bankrupt, having left- certain securities IA
the hands of his creditor, could that .creditot be se-.
titled to return to the assignees of the .principal
debtor the pledge of property deposited, With him?'
Could he do that bonaple .1 No. The Court would'
say to him, " la so -doing, you are guilty of a fraud
against the surety. You have uo right to benefitt ,
estate of the principal debtor, at the expence _of
ctil
surety. If you had called on.the surety to pay, i
could have called on you to give up the property di-.
posited in your hands ; and which
.must„ ,in .coae
science, be supposedly) have been deposited la oilier
to secure the payment of this debt." In puck a ease,
a Court of Rquity would say he had committed -a
fraiid) and would make plat Ackswatabla to the

amount of the.setaritiesli it Iwortesykin such a
base, be a fraud in the .Critifir..to part with pearl-
ties.se.deposited with Mm. y`.the principal debtor,
it would, .the Learettd-COansetcantended, be eqeal-,
ly a fraud in the aisignies to attept.i4 th(!ni• gay.
big thotir..frisidered what would be' the effect of
the acre Obe Creditor' as they affected the auretY,
he sitiiidditoiv proceed to consider *tat weAdd be
the Joe' or the acts of the surety as they affebted
the creditor.
The Lena CHANCELT.OR here interrupted the
Learned Counsel. This was indeed a mnst important
question, And he was afraid might ge in its principle;
to affect every great bankruptcy which had taken.
plabe for the last 40 year's. If this order was. mrongl:
he thought the question would much better be gone,
into in the shape of a .bill in equity. He confessed'
his present impression was against thee prayer of the
petition. He thought it would be difficult to make
this Any thing More than an indemnity. As between
13rickwood and Co. and Brackett and Co. the latter'
ought to take up the acceptances, and the short bilk
were given to secure Brickwood and CO. that they
should, be so taken 'op, or to inderrinify them in a
Contitife.ent. His Lordship unquestionably should
notdecide question of -so great and general im-
, portance as the present was, in bankruptcy, uniesi
I all parties consented td it ; nor should he'do it then,
but upon as solemn a hearing, and to as great an ex-
tent, as the Court was accustomed to have in any
l cause. He said this, because the present bearing of
his opinion was against the Petitioners. At present
there was not time to. hear. with that deliberation
which the nature,of the case would require, all that
! might beeffered on such a subject, coming Ou iu a
shape which did not admit of appeal.
Mr, COOK, Mr. MONTAGU, and Mr. RICHARDS,
all agreed that the case should be argued in its pre-
sent shape.
Mr. RICHARDS stated, that there could little pre-
judice arise from any. short delay, as the sums Were
securedip India Fiends and Exchequer Bina.. •
• The YARD CliAncect.oAthen ordered that the pre-
iet;t petition, tcigetber with that, of et-parts Clarke,
and of ox-prate Inglis, which are of a similar na-
ture, should come on to ha. argued as Sie cause, on
the first cause dry in Term.