George Rose, now came on to be heard before the Lord Chancellor.

Mr. Russell and Mr. W. T. S. Daniel, for the petitioner.-There is no case of suretyship here, and the ground of Sir

On the hearing of an appeal, upon a special case from the Court of Review, the Lord Chancellor may direct a case to be sent for the opinion of a court of law.

A note was issued by a bank, in this form : -“I promise to pay the bearer, on demand, 5l., for A, B, C, and D.-Signed A ;” A, B, C, and D, being the partners in the bank : -Held, that the holder of the note had not a right of separate action against A, and that, on the bankruptcy of the firm, he had not a right of proof against the separate estate of A.

Hall v. Smith (1 B. & C. 407) overruled.

This case is reported in 1 Phill. 562; s. c. 13 Law J. Rep. (N.s.) Bankr. 23, the question being, whether, on a note issued by a bank, in this form-"I promise to pay the bearer, on demand, 5l., for J. Clarke, R. Mitchell, J. Philips, and T. Smith, -Signed, R. Mitchell," the firm having become bankrupt, the holder of the note had the right to prove against the separate estate of R. Mitchell. A special case, by way of appeal from the decision of Sir * The cases decided by the Lord Chancellor are reported by Philip Twells, Esq.

ported. Failing that, on principle, and on the authority of Hall v. Smith (1), the petitioner is entitled to a decision in his favour. The decision in Hall v. Smith was grounded on the previous cases of

case.

Sayer v. Chaytor, 1 Lutw. 696.
Lord Galway v. Matthew, 1 Campb.

403.

Clerk v. Blackstock, Holt's N.P.C. 474. March v. Ward, Peake's N.P.C. 130, which were cited in the argument on that Hall v. Smith has never been disputed or questioned: its authority has been recognized in several books of high authority; among others, in Bayley on Bills, Byles on Bills, Collyer on Partnership, and Selwyn's Law of Nisi Prius; and it is cited as an authority in the cases of

Lee v. Nixon, 1 Ad. & El. 201, 204;

s. c. 3 Law J. Rep. (N.s.) K.B. 160. Shipton v. Thornton, 9 Ad. & El. 314, 321; s. c. 8 Law J. Rep. (N.s.) Q.B. 73.

Mr. M. D. Hill and Mr. Chapman, for the assignees, admitted, that, if the equitable ground on which Sir George Rose's judgment had been founded should not be supported, this case depended on the ques(1) 1 B. & C. 407; s. c. 1 Law J. Rep. K.B. 142.

tion, whether the decision of Hall v. Smith was to stand. They contended that that decision could not be supported. The cases of Sayer v. Chaytor, Clerk v. Blackstock, March v. Ward, and Lord Galway v. Matthew, might be admitted to the fullest extent. Such bearing as they had on the present case was in favour of the assignees. The question in such cases as the present was, as was put by the Lord Chief Baron, in Hall v. Ashurst (2), “Is it an undertaking, on behalf of another person, to do an act, or is it an undertaking to do an act on behalf of another person?" Now, in this case, considering that these notes were issued by a bank consisting of four partners, could there be any doubt that the intention of all parties was, that Mitchell, as the agent, and on behalf of the four partners, undertook to pay the sum mentioned in the note? The notes issued by the Bank of England were exactly in this form, yet could it be contended that the clerk that signed them was personally liable? The reasoning of Mr. Justice Bayley, in Hall v. Smith, was very unsatisfactory: his premises did not support his conclusion. The case of Hall v. Smith had not been altogether undisputed. Mr. Justice Story, speaking of the construction put upon a note in this form, that the signer was severally liable, and the partners jointly liable, said, "This construction of the instrument certainly goes to the very verge of the law, and, perhaps, may be thought to deserve further consideration"-Story on Partnership, 223. See also Doty v. Bates (3), an American

case.

When the case was first before the Court of Review, the Chief Judge expressed a very decided opinion that the note was a joint note only-In re Clarke (4).

The LORD CHANCELLOR said, he thought there was no case of surety: he was of the same opinion as the Chief Judge of the Court of Review. Had the case come before him, independently of Hall v. Smith, he should have thought the note was a joint note only. He thought he ought not, sitting in bankruptcy, to overrule a case, decided in the King's Bench twenty years ago, and

(2) 1 Cr. & M. 714; s. c. 2 Law J. Rep. (N.s.) Exch. 295.

(3) 11 Johnson, 544.

(4) 13 Law J. Rep. (N.s.) Bankr. 23.

which had never been questioned or overruled. He thought a case ought to be sent to a court of law, and he conceived that he had the power to direct such a case to be

sent.

In three of the notes, held by the petitioner, no place of payment was fixed; the form being: "Leicester and Leicestershire Bank. I promise to pay the bearer, on demand, 5l., value received." In the other notes, seven in number, held by the petitioner, the form was :-"Leicester and Leicestershire Bank. I promise to pay the bearer, on demand, 5l., here, or at Messrs. Williams, Deacon, Labouchere, Thornton & Co., bankers, London, value received." In the discussion as to the form of the case to be sent, a question was raised whether there was any difference between the two forms, as far as the liability of Mitchell was concerned.

A case was stated, for the opinion of the Barons of the Exchequer, and the two following questions submitted to them; first, whether, if an action at law had, previously to the said fiat, been brought against the said Richard Mitchell, separately, upon the three above-mentioned notes, by the said Robert Buckley, as the holder of the said notes, the said Richard Mitchell would, upon the form of the said notes, have had a valid defence; secondly, whether if an action at law had, previously to the said fiat, been brought against the said Richard Mitchell, separately, upon the seven above-mentioned notes by the said Robert Buckley, as the holder of the said notes, the said Richard Mitchell would, upon the form of the said notes, have had a valid defence.

The case was argued, on the 2nd of July 1845, before Parke, B., Alderson, B., and Platt, B. (5).

Their Lordships returned the following certificate:-" First, we are of opinion that, if an action at law had, previously to the fiat, been brought against Richard Mitchell, separately, upon the three first-mentioned notes, by the said Robert Buckley, as the holder of the said notes, the said Richard Mitchell would, upon the form of the said notes, have had a valid defence. Secondly, we are also of opinion, that, if an action at

(5) 14 Mee. & Wels. 469; s. c. 14 Law J. Rep. (N.S.) Exch. 341.

law had, previously to the said fiat, been brought against Richard Mitchell, separately, upon the seven above-mentioned notes, by the said Robert Buckley, as the holder of the said notes, the said Richard Mitchell would, upon the form of the said notes, have had a valid defence. In either case, we are of opinion that he might have pleaded the non-joinder of his partners in abatement of the action.

"J. Parke,

"E. H. Alderson, "T. J. Platt."

The case came on again before the Lord Chancellor on this certificate, and his Lordship dismissed the appeal: but as the application of the bankrupt's estate would be considerably affected by the determination of this question, the appellant's costs were to be paid out of the estate.

1845.

Ex parte GREENSTOCK, Nov. 26; Dec. 2. f in re GREENSTOCK. Fiat-Statute 5 & 6 Vict. c. 122. ss. 11, 13-Act of Bankruptcy-Waiver.

A creditor served a debtor with particulars of demand, under the 5 & 6 Vict. c. 122. s. 11, stating that the debt arose from returned bills. The creditor then made an affidavit, stating that the debt had been inThe curred for goods sold and delivered. debtor was summoned to appear before the commissioner, in pursuance of the act, but did not appear, and did not satisfy the creditor within fourteen days. A fiat issued against the debtor on the act of bankruptcy, alleged to have been committed by him under the above circumstances. On a petition to annul the fiat,-Held, first, that the creditor had not complied with the forms required by the act; and, secondly, that the debtor's nonappearance before the commissioner did not amount to a waiver by him of the irregularity.

This was the petition of the bankrupt, Mr. George Greenstock, praying that the fiat against him might be annulled, on the ground that the alleged act of bankruptcy, upon which the fiat had issued, was not in accordance with the 5 & 6 Vict. c. 122.(1).

(1) The sections of this act, material to the question before the Court, are as follows:-By the 11th section, it is enacted, "That if any creditor

of a trader shall file an affidavit in the court of the district in which such debtor shall reside, in the form specified in the schedule (A, No. 1), of the truth of his debt, of the debtor being a trader, and of the delivery to the trader personally of an account in writing of the particulars of his demand, with a notice thereunder, requiring immediate payment thereof, in the form specified in the schedule (A, No. 2), it shall be lawful for the Court, in which the affidavit shall be filed, to issue a summons in writing in the form specified in the schedule (A, No. 3), calling on the trader to appear before the Court, and stating in the summons the purpose for which he is to appear." The 12th section directs what is to be done in case of the trader's appearance. By the 13th section, it is enacted, "That if any such trader, so summoned as aforesaid, shall not come before such Court at the time appointed (having no lawful impediment made known to and proved to the satisfaction of the Court at the same time and allowed), then, if such trader shall not, within fourteen days after personal service of such summons, pay, secure, or compound for such demand to the satisfaction of such creditor, every such trader shall be deemed to have committed an act of bankruptcy on the 15th day after service of such summons."

come

for &c.

The forms given in the schedule, so far as material, are as follows:-No. 1. is the form of the affidavit for summoning a trader debtor. "A. B. and C. D. make oath and say; and first A. B. for himself saith, that E. F. is justly and truly indebted to this deponent in the sum of £ (stating the nature of the debt with certainty and precision), and that he believes E. F. to be a trader, &c., and that an account in writing of the particulars of the demand of the said A. B, amounting to the sum of £ with a notice requiring payment, &c., is hereto annexed; and this deponent C. D. saith he served E. F. with a copy," &c. No. 2. is the form of the particulars of demand and notice

The document concluded with the notice requiring payment (see form No. 2.) An affidavit was then made by William Peters, and John Miller clerk to the solicitor of Messrs. Peters, and filed in the district court of Bristol, (see form No. 1.) This was as follows:-"And first, the said William Peters for himself saith, that George Greenstock is justly and truly indebted to this deponent and to Joseph Peters, his co-partner, in the sum of 132l. 15s. 2d., for goods sold and delivered by this deponent and Joseph Peters, his copartner, to the said George Greenstock, between the 1st of February 1845 and 1st of September 1845, and at his request." Then followed the part as to trading and residence, and that an account in writing of the demand of the said William Peters and Joseph Peters, his partner, amounting to the sum of 1327. 15s. 2d., with a notice, &c.; and John Miller then testified as to service.

On the 6th of October, the bankrupt was served with a summons (No. 3.) to appear before the commissioner. On the 13th, Messrs. William and Joseph Peters and their solicitors, attended before the commissioner, and proof of the service of the summons on the bankrupt was given. The bankrupt did not appear. The fourteen days mentioned

requiring payment. "To E. F. The following are the particulars of the demand of the undersigned A. B. against you, the said E. F, amounting to the sum of £ (Here copy the account). Take notice that I require payment," &c. No. 3. is the form of the summons of the trader debtor calling on him to appear at a certain time and place.

The rules and orders in bankruptcy issued November 12th, 1842, numbered 20 to 40, both inclusive, relate to the three sections before mentioned, and to what is to be done under them. The 22nd rule requires that the account of such particulars of demand shall be expressed with reasonable and convenient certainty as to dates and other matters. The 23rd rule requires precision and certainty in the affidavit. The 33rd rule is as follows:-" Any want of compliance of the plaintiff (creditor) with these rules and orders in the particulars of demand and notice, and in the affidavit for summoning the defendant (debtor), and in the summons and service thereof, or in any or either of such matters, may be waived by the defendant, or, if made known to and proved to the satisfaction of the Court at the time required by the summons for the appearance of the defendant, shall be deemed and taken to be a good objection to requiring the defendant to state whether or not he admits the demand sworn to by the plaintiff, and, in such case, if such want of compliance be not waived, the defendant shall be entitled to his discharge."

in the act expired on the 20th of October; and, on the 23rd, a fiat issued on the act of bankruptcy, alleged to be constituted by the non-attendance of the bankrupt before the commissioner.

The assignees had not been served with the petition.

Mr. Russell and Mr. Bagshawe, for the petition, contended, that the provisions of the act had not been complied with, in consequence of the particulars of demand having stated the debt to arise from the bills, and the affidavit having stated that the debt arose from goods sold and delivered.

Mr. Swanston, for Messrs. Peters, the petitioning creditors, contended, that there had been no irregularity; and that, if there had been any irregularity, it had been waived by the non-appearance of the bankrupt before the commissioner.

SIR J. L. KNIGHT BRUCE.-The alleged bankruptcy in this case was constituted under the 5 & 6 Vict. c. 122, the 11th section of which enacts-[His Honour read the 11th section.]-It is observable, that this section does not require that the debt should be proved, or that the account in writing of the particulars of demand should be delivered, but that merely an affidavit should be filed, shewing that these things are so. I am not aware, however, that upon this occasion, anything turns upon that, except, I apprehend, that although that is the form of it, yet if the affidavit, which professes to comply with the terms of the account, should prove to be inaccurate, it is competent for the Court to say, that the foundation of the proceeding fails.

Then it is provided that, upon the appearance of such a trader so summoned, it shall be lawful to take proceedings; but it provides that [here His Honour read the 13th section.]-The only act of bankruptcy is the one created by the section which I have read, which the bankrupt could not have committed, unless he had been summoned as the act directs, because it only applies to a trader summoned as the act directs; and a trader cannot be summoned as the act directs, unless upon certain conditions and in a certain state of circumstances. The questions are, whether he was summoned as the act directs, and, if he was so summoned, in one sense, whether

the circumstances existed which authorized the summons.

Now, it is required that the creditor should file an affidavit in the Court of Bankruptcy of the truth of his debt, in the form specified in the schedule, and that he should deliver to the trader personally an account in writing of the particulars of his demand; which must mean the same demand as the debt, with notice requiring immediate payment thereof, in the form specified in the schedule. The first form is the deposition, that the proposed bankrupt is justly and truly indebted to the deponent, in the sum of £ for, &c. "stating the nature of the debt with certainty and precision." That is the language not merely of the rules made under the act, but it is the language of the legislature in this very act-[His Honour here read the form No. 2.]-So that, as far as we have come, there is no definition or description given by the act of what is an account in writing of the particulars of demand; and if there were nothing more, it would be the duty of a court of justice, having to consider this question, to come to a conclusion as to the meaning of the expression.

Now, it is observable, that it does not say, if made known to or proved to the satisfaction of the Court, by the person who is called the defendant, but it is, if made known to and proved to the satisfaction of the Court generally. It does not say, at the time of the appearance of the defendant, but at the time required by the summons; seeming, therefore, to include tacitly a statement, a provision that the non-appearance of the defendant was not to be sufficient to exempt his adversary from the necessity of satisfying the Court, that all which was alleged to have been rightly done, had been rightly done. My opinion is, that that provision applicable to the case of a defendant being present, does not exclude the conclusion derivable as well from the nature of the subject as from the preceding language of the section-namely, that the propriety of the proceeding was to be made. apparent to the commissioner, whether the proposed bankrupt did or did not appear. I am, therefore, of opinion, that the mere circumstance of the defendant not appearing was not a waiver, and did not exempt his adversary from the duty of shewing to the

Court that the proceeding was regular, and did not render it incumbent on the commissioner to assume that the proceeding was regular, or to assume that no objection was made by the party proposed to be made a bankrupt.

The particulars of the affidavit, in the present case, were these :-The first step is as to the particulars of demand-the account and particulars served upon the proposed bankrupt. They are these. It begins thus -[His Honour here read the notice served on Mr. Greenstock.]-Now, if the debt were otherwise than for goods sold and delivered, there is no affidavit-at least I must treat it so-for the only affidavit is for a debt for goods sold and delivered. It is in one sense perfectly consistent with the account of the particulars, with the exception of the 4s. 6d. interest on one of the bills.

With that exception, the bills of exchange may have been, and I assume they were, for goods sold and delivered. But, taking them as representing the amount of the goods sold and delivered, there is no description of the nature of the goods, nor is there any date or circumstance of ascertainment given to them; therefore, as an account of particulars of goods sold and delivered, it is wholly insufficient. I am of opinion, therefore, that these proceedings are irregular and insufficient, and that the course which should have been taken, when the matter was brought under the attention of the commissioner, was to bring the documents to his attention, in order that he might satisfy himself; and that the nonappearance was no waiver, because, in fact, if the provisions of the act had not been complied with, there was no jurisdiction against the bankrupt. There was nothing for him to appear upon, and he had a right to treat the whole proceeding as null; and he did so treat it. A man who does not appear on a vicious proceeding, as it seems to me, is not to be held to have waived that very objection which is a legitimate cause of his non-appearance.

Let the assignees be informed that this petition will be in the paper again, and that, unless they shew cause to the contrary, the fiat will be annulled. I am not sure that, independently of the waiver, if the rules had never been made, if it had depended on the act of parliament without the rules, I