cases, that the only way for a woman to secure her property, who is going to marry a trader, is to have it conveyed to trustees for her separate use, or if it is necessary that the husband should have the command of the interest till his failure, that the trustees should pay him the rents, profits, and interest till his insolvency or bankruptcy, and afterwards to the wife for her separate use. That is good according to the judgment in Lockyer v. Savage, ante, p. 518.

In every other case of settlement under these decisions the wife can only have a dividend; and it is very uncertain and unsettled whether she shall have the benefit of any dividend, or to what extent.

If a woman marries without any settlement, then, in wife's procase of her husband's bankruptcy, the assignees must re-perty. ceive the rents of her real property during his life, but no longer. All her property standing in her name, in the funds, or upon mortgage, or debts due to her before marriage, pass to the assignees by the general assignment. Sir William Grant has. decided that these survive to the wife if the assignees do not recover them before the death of the husband. Mitford v. Mitford, 9 Ves. 87. See my observations upon that case, vol. 1, p. 265. The husband's interest in the wife's real estate ought to be conveyed by a bargain and sale to the assignees, or they could not recover the rents, or make a title to a purchaser.

THE PROOF OF DEBTS UNDER COMMISSIONS
AGAINST PARTNERS.

The law of bankruptcy, in the cases of partners, has been very fully considered in a former part of this volume.

It remains only for me to state and explain a few cases of proof of debts, which are peculiar to joint or separate commissions against partners.

He, who has a joint and several bond, or a joint and several note, from two or more partners, and they are all bankrupts, may elect whether he will prove against the joint estate, or against each of the several estates; but he cannot prove against all, both joint and several. Exparte Rowlandson, 3 P. Wms. 405. 1735.

See ante, 251 et seq. the cases collected upon that subject.

And where a debt is so secured by different instru ments, that the whole are bound, and each individual is bound, then the case is in effect the same in bankruptcy, as if they had been jointly and separately bound by the same instrument.

But if two, three, or more are bound jointly, and one or some only are bound separately, then, I think, the creditor may not only have the benefit of the joint security, but of each separate security he possesses.

The law upon this subject is far from being settled in so satisfactory a manner as could be wished; I shall therefore examine the cases according to their dates.

Where a creditor, Rice Vaughan, had a joint bond from three partners, Stainer, Jones, and Prestland, and also a separate bond for the same debt from Stainer, Lord King permitted Vaughan to prove his debt, and receive a dividend both from the joint estate, and from the separate estate of Stainer. Rice Vaughan's case, 1732. cited in Exparte Rowlandson, 3 P. Wms. 406. 1735.

Where this was cited in the case of a joint and separate bond, Lord Talbot observed this difference between the cases: "in that which had been cited, there was a single bond given as a collateral security by one of the partners only; but in the principal case, the bond was not only for the same debt, but given by both the parties; and

the plea in abatement would have been proper, had the bond been sued at the same time both as a joint and se veral bond, which cannot be, where there is only a separate bond." Ibid.

This great and fundamental distinction I have never seen taken notice of afterwards; see my observations upon it, ante, p. 253.

adopted by the

The next case is Exparte Clowes, 2 Bro. 595, and dif- Separate debts ferently stated in Coke 265; but the difference is not ma- firm. terial.

Liverey, Hargrave, Anstie, Smith, and Hall, were part

ners.

Liverey and Hargrave were indebted to Clowes in three several bonds, by which they were jointly and severally bound to him.

The partners having come to some arrangement in their dealings, came at the same time to an agreement, that the debts then due on the bonds and notes of Liverey and Hargrave should be transferred to, and from thenceforth be considered to be, the debts of the five partners jointly; and their joint fund were in fact benefited by such junction of funds.

Clowes petitioned that he might prove at his election, either under the joint estate of the five, or under the separate estates of Livesey and Hargrave.

Lord Thurlow is made to say in Browne, (no reason is given in Cooke) that as the money was admitted by all the partners to have come to the use of the joint fund, it would entitle the creditors to consider themselves as joint or several creditors, and therefore to prove against the joint or separate estates: it being a joint debt, in respect to its having come to the joint use, and separate from the nature of the security. 2 Bro. 595. Cooke, 265. 1789.

The reason here is very delusive and erroneous,

It being applied to the use of the partnership is not sufficient to make it a joint debt

But it must be adopted by the partnership as a joint debt; and then the adoption of it, one would think, ought also to be communicated to the separate creditors, and ought to be assented to by them. Until it was so assented to, the joint creditors would have a right to say, that though the partners had designed to make you joint creditors with us, yet it was only a design or intention resting in their breasts, and until it had amounted to a contract you can only avail yourselves of your original securities. Lord Eldon has explained this by saying that when this was adopted as a debt, it was upon the implied con• dition that the minor securities should be given up.

In the next case, a single trader having given his bond to a creditor, took in two partners; they brought no property into the trade. Jackson, the creditor by the bond, petitioned to prove it under the joint estate.

Lord Thurlow then said, "If I can come at it in any manner, I will. For that reason I asked,if any interest had been paid upon that bond by both: for if so I should have considered it as adopting the debt, and making the partnership liable to it. Then I could do it consistently with the principle. If they have in any way considered the debt as a joint debt, I will understand it so-as it ought to be; for if one man, having debts, takes another into partnership with him, a very little matter respecting those debts I will make both liable.-Let it stand over, to see if you can fasten it in any way upon both, which I should be glad to do." Expurte Jackson, 1 Ves. Jun. 131. 1809.

Lord Thurlow says, that a very little matter will make both liable; but surely that little matter must be so much. as would have made them jointly liable to have paid the

whole in an action at law or in a suit in equity: upon no other principle ought there to be a proof in bankruptcy.

one or some,

Curson and Gordon were in partnership as apothecaries, A bill drawn by they afterwards entered in partnership with Whincup and and accepted Griffin, as turpentine manufacturers. They drew a bill by all. upon Whincup and Griffin payable to their own order, and indorsed it to La Forest, the petitioner, who discounted it and gave cash for it. The bill was accepted by Whincup and Co.

A commission was taken out against the four partners. La Forest petitioned to prove against the joint estate of the drawers, and also against the joint estate of the acceptors.

Lord Rosslyn ordered that the commissioners should enquire whether the petitioner knew, at the time he received the bill, that the drawers were partners with the acceptors if he knew of such partnership, then he was to be at liberty to apply to the court, as he should be advised for further directions; but if he did not know it at the time, he should then prove and receive dividends from each joint estate. Exparte La Forest, Cooke 266. 1797.

Marsh was partner with Willium and John Hoghton as grocers. The petitioner, Benson, sold them goods, for which he received a bill in payment, drawn by Marsh, payable to Hoghton and Co. and indorsed by them; it was drawn upon and accepted by Addis. They all became bankrupts. Benson,the petitioner,did not know that Marsh was a partner with Hoghton. Lord Rosslyn ordered that he should prove and receive dividends, both from the separate estate of Marsh and from the partnership estate, they being liable respectively as drawers and indorsers. Exparte Benson, Cooke 268. 1798.

These two cases are pregnant with the conclusion, that the judgment would have been different, if the bill-holder