BANK 
lignee cannot be diftinguifhed from any other truftee, who, 
if his agent deceive him, mull anfwer over to the cejiui 
<jne trujis. For the chief confideration of the creditors in 
the choice of alhgnees is certainly the ability of the per- 
fens, that they may be refponfible for the Aims they re¬ 
ceive from the bankrupt’s eftate. i Atk. 88. Butthe neg¬ 
ligence of one aflignee (hall not hurt another joint aflignee, 
where he is not at all privy to any private and perfcnal 
agreement entered into by his brother aflignee. If an af- 
fignee becomes a bankrupt, and has applied any of the 
money received by him in that capacity to his own ufe, the 
commiflioners are to be confidered as f'pecialty creditors; 
becaufe the afTignees executed a counterpart of the argu¬ 
ment to them, and the agreement, being under hand and 
leal, makes it in the nature of a fpecialty debt, and there¬ 
fore they may come upon his real eftate. i Atk. 89. 
If there is a joint commiffion againft two partners, they 
mull be each found bankrupts; and, though one of them 
fhould die, the commiffion may (till go on ; but, if one of 
the joint traders be dead at the time of the taking out 
the commiffion, it abates, and is abfolutely void. Cooke’s 
B. L. It was formerly the practice, where there were fe¬ 
veral partners, to take out feparate commiffions againft 
each, as well as a joint commiffion ; but this has been fince 
dif'countenapced, it being the common courfe of the court, 
upon petition, to make an order for the feparate creditors 
to come in and prove their debts under the joint commif¬ 
fion ; and that the alTignees fhould keep diftinft accounts 
of the feveral eftates; and this may be done, becaufe the 
affignment in the cafe of a joint commiffion is of the whole 
eftate. But, on the other hand, where feparate commif¬ 
fions are taken out againft joint traders, it feems to have 
been the opinion that joint creditors could not prove their 
debts under the feparate commiffion, except for the pur- 
pofe of alfenting to, or diffenting from, the certificate ; 
but that they muft proceed to take out a joint commiffion. 
Cooke's B. L. 1 Atk. 183. But it feems now to be confider¬ 
ed, that a joint commiffion cannot legally be fupported 
while there is a feparate one fubfifting ; becaufe, a trader 
having been declared a bankrupt, the whole of his pro¬ 
perty is afligned under the firft commiffion, and till he ob¬ 
tains his certificate he is incapable of trading or contract¬ 
ing for his own benefit. However it is certain, that in 
practice joint commiffions are taken out after the parties 
have been declared bankrupts under feparate commiffions, 
by which means great expence is faved, and the joint ef¬ 
fects difpof'ed to better advantage ; and therefore, in a fair 
cafe, and where it can be made appear that the bankrupt’s 
eftate will be benefitted by profecutinga joint commiffion, 
the lord chancellor, to make it valid, will fuperfede the 
prior feparate one. Cowp.%i\. 1 Atk. 252. Cooke’sB.L. c. 1. 
Joint creditors are entitled to a diftribution of the joint 
or partnerfhip eftate, without the feparate creditors being 
permitted to participate with them ; but, notwithftanding 
feparate creditors are not entitled to fliare the dividend of 
the joint property until the joint creditors have received 
20s. in the pound, yet they are, upon petition, let in to 
prove their refpecftive feparate debts under the joint com- 
miffion, paying contribution to the charge of it; and, as 
the joint or partnerfhip eftate is in the firft place to be ap¬ 
plied to pay the joint or partnerfhip debts, fo in like man¬ 
ner the feparate eftate ftiall be in the firft place applied to 
pay all the feparate debts. This is fettled as a rule of 
convenience; and it is refolved, that if there be a furplus 
of the joint eftate beftdes what will pay the joint creditors, 
the fame (hall be allotted in due proportions to the fepa¬ 
rate eftate of each partner, and applied to pay the fe¬ 
parate creditors. And, on the other hand, if there be a 
furplus of the feparate eftate beyond what will fatisfy the 
feparate creditors, it ftiall.go to fupply any deficiency that 
may remain as to the joint creditors. iAtk.6%. 2 Fern. 
506. D & v . 373* z P . Wms . 501. 
Where perfons in trade, as A, B, and C, have been con- 
nefted together in various partnerfhips, and a joint com- 
miflion taken out againft them all, an order has been made 
R U P T. 691 
for keeping diftindl accounts of the different partners, as 
well as of the feparate eftates of each partner. But, when 
there have been various partnerfhips, as A and B, and A 
and C, and a joint commiffion is taken out againft one firm, 
in which feme of the parties were not engaged, there can 
be only the common order for keeping the diftinct accounts 
of the joint and feparate eftate. Cooke's B. I.. c. 6. 
On a joint debt, if feparate commiffions are taken out 
againft the joint debtors, the creditor may prove his whole 
debt under each commiffion, and receive a dividend, fo as 
he does not obtain more than 20s. in the whole. Where 
there is a joint and feveral creditor, he muft, according to 
the rule of the court now firmly eftabliflied, make his e- 
ledtion whether he will come in upon the joint or the fe¬ 
parate eftate; that is, which he will come in upon in.pre¬ 
ference; for, Whichever he may eledt, he will be entitled 
to come in upon the furplus of the other, if there fhould 
be any. And, in order to make his eleftion, he muft have 
a reafenable time to inquire into the ftate of the different 
funds ; but he is not entitled to defer fuch election until a 
dividend be declared. Cooke's B. L. c. 6. 
An aft of bankruptcy by one partner, is to many pur. 
pofes a diffelutiori of the partnerfhip, by virtue of the re¬ 
lation in the ftatutes, which avoids all the afts of a bank¬ 
rupt from the day of the bankruptcy; and, from the ne- 
ceflity of the tiling, 'all his property being veiled in the 
aflignees who cannot carry on a trade. But after a diffe- 
lution of partnerfhip by agreement, by an execution, or 
by a bankruptcy, the partner out of pofleffionof the part¬ 
nerfhip effects has the fame lien on any new goods brought 
in which he had upon the old. One partner has nor, af¬ 
ter a diflbhltion, a right to change the poffeffion, or to 
make an aftual divilion.of the fpecific effects; for, one 
partner may be a creditor of the partnerfhip to ten times 
the value of all the effefts. The other partner in that 
cafe can only have a right to an account of the partner- 
fliip, and to the balance due to him, if any, on that ac¬ 
count; and no perfen deriving under the partner can be in 
a better condition than hiiftfelf; his executor ftands in the 
very fame light. So the affignees under a commiffion of 
bankruptcy againft one partner muft be in the fame ftate. 
They can only be tenants in common of an undivided moie¬ 
ty, fubj'eft to all the rights of the other partner. 4 Burr. 
2176. Cozop. 448. I 2 Mod. 446. 
If a partner is a creditor on the partnerfhip account, he 
can have no fatisfaftion but out of the furplus, which 
(hall remain after the joint creditors are paid ; fertile joint 
creditors rely upon the oftenfible ftate of the fund, and 
give credit to it accordingly. But lord Hardwicke faid, 
that where there are joint and feparate creditors, if one 
party lends a fum of money to the partnerfhip, the credi¬ 
tors of his feparate eftate have a right to this in the firft 
place. 1 Atk. 287. Vez.jun. 167. But this has fince been 
determined contrary, as where there was a joint commif¬ 
fion againft two partners, and a feparate one againft one of 
them. The petitioners, affignees under the feparate com¬ 
miffion, petitioned to be admitted creditors under the joint 
commiffion, fora fum of money brought by their bank¬ 
rupt into the partnerfhip, beyond his fliare, and as being 
therefore a creditor on the partnerfhip for that fum; buC 
refufed, on the principle that he cannot be a creditor on 
the partnerfhip in competition with the joint creditors. 
So, where one partner has taken more than his (hare out 
of the joint fund, the joint creditors, as the rule feems to 
be now fettled, cannot be admitted to prove againft the 
feparate eftate of the partner who drew' out the money, 
until his feparate creditors are fatisfied, unlefs it can be 
ftiewn that the partner afted fraudulently, with a view to 
benefit his feparate creditors, at the expence of the joinc 
creditors. Cooke's B. L. c. 13. See Partnership. 
One partner may be a creditor of another, and may, if 
he continues felvent, prove his debt under a feparate com¬ 
miffion. 1 Atk. 223. 2C.R. 226. If there be two partners, 
and one of them becomes bankrupt, and, on a feparate 
commiffion being fued out againft him, his certificate is 
allowed j 
