1820.

29th February,

LANGLEY v. HAWK.

Executor and MR. HEALD moved for a Receiver, and that the Trustee becoming Defendant, an Executor and Trustee, who had become a Bankrupt, a Bankrupt, might pay into Court a Sum of Money `Receiver appoint- acknowledged to be in his hands.

ed, though the Testator knew, after he had

made his Will, that a Commission had been issued.

Mr. Rose, contra, stated, that Proceedings had been taken to supersede the Commission, which would probably be superseded, and that the Defendant had more than sufficient for the payment of his Debts; and that the Testator knew a Commission was issued against the Defendant.

Mr. Heald, in reply

The Will was made before the Commission issued.

The VICE-CHANCELLOR:

The question simply is, Whether it is fit the Court should now interfere for the protection of this Property? Its interference can prejudice no right. I must consider Bankruptcy, notwithstanding the Petition to supersede, as Evidence of Insolvency; and from the Will being made long before the Commission, though not altered afterwards, I cannot satisfactorily infer, that this Testator had a deliberate intention to entrust the management of his Estate to an insolvent Executor. I think it fit that a Receiver should be appointed.

NICKOLSON v. KNOWLES and others.

THE Plaintiff was employed as Broker to make In

surance of a Ship for one Gilpin. Gilpin became a Bankrupt, and his Assignees employed the Plaintiff to receive, as their Agent, a Sum due from the Underwriters for Salvage. Afterwards, the Defendant, Knowles, gave

1820.

1st March.

On a Bill of Interpleader, held, that an Agent to receive particular Monies, is bound to

pay the

same over to his

Notice to the Plaintiff that he was a secret Partner with
Gilpin, and required him not to pay the Salvage to Principal, not-
Gilpin's Assignees. The Plaintiff filed the present Bill, withstanding the
as a Bill of Interpleader, against the Assignees of Claims of third
Gilpin and Knowles.

Upon a Motion for an Injunction, the Vice-Chancellor held, that this was not a proper Bill of Interpleader. That the Plaintiff was an Agent authorized by the Assignees to demand and receive the Money for them; and having in that character demanded and received it, was bound to pay it to them, notwithstanding the Claims of a third person. That a mere Agent to receive for the use of another could not, by Notice, be converted into an implied Trustee. That his Possession, was the Possession of his Principal.

Persons.

1820.

2d March. Bill filed against Bankrupts and their Assignees, questioning the validity of the Commission, and praying an Ac

count; or if the

Commission was legal, for leave.

what

to prove should appear to be due under the Bankruptcy. On a general Demurrer by the Bankrupt for want of Equity, the same was allowed; the proper mode of questioning the validity of a Com

mission being by Petition.

BAILEY v. VINCENT and others.

THIS
was a Bill filed against Vincent, Fanner, Barnes
and Hancock, Bankers, and against their Assignees, and
one George Vincent, for an Account, stating, that the
Commission had been improperly issued, there being no
act of Bankruptcy or petitioning Creditors Debt, and
that the Commission and act of Bankruptcy were con-
certed; and also stating the particulars of such concert,
and that the Assignees had filed a Bill against the Plain-
tiff, charging him to be a Debtor to the Bankrupts
Estate, whereas he was a Creditor.

The Prayer of the Bill was, for an Account against the Firm of Vincent, Fanner & Co.; or if it should appear there was a valid Commission against them, that the Plaintiff might be at liberty to prove what should be

found due to him.

The Defendants, Vincent, Fanner & Co. who had been declared Bankrupts, demurred generally to the Bill, for want of Equity.

Mr. Hart, Mr. Bell, Mr. Heald, and Mr. Pepys, in support of the Bill:

The Bankrupts are bound to answer this Bill. After the Bankruptcy, a Bankrupt may be examined as a Witness, because he has no Interest. If an Action is brought against a Bankrupt, and he pleads his Bankruptcy, the Plaintiff may reply that he is not a Bankrupt; if he

pleads his Bankruptcy and Certificate, the Plaintiff may reply, that the Certificate is void.

If a Bankrupt has not obtained his Certificate, a Creditor may proceed against him here, or at Law. Bill of Discovery may certainly be filed against a Bankrupt. In Batson v. Lowndes (a), it was held, that Bankrupts sued at Law might file a Bill for a Discovery, and Relief. On appeal, that Decision was confirmed.

Mr. Horne, and Mr. Beames, in support of the
Demurrer, were stopped by

The VICE-CHANCELLOR:

This is a Bill filed by the Executor of a deceased Partner, against his three surviving Partners, for an Account and payment of the Balance due to the Estate of the deceased Partner; and a Commission of Bankrupt having issued against the three surviving Partners, the Assignees under that Commission, are joined as Parties Defendants; and it is alleged, that the Commission is concerted and void; but an alternative Prayer is introduced, that if the Commission is supported, then that the Plaintiff may prove under it for the Balance due to him.

To this Bill the Bankrupts have demurred generally; and the question is, Whether a Bill is the proper course for the Plaintiff to try the validity of the Commission?

This Plaintiff, like any other Creditor, may, if he pleases, present a Petition in Bankruptcy to supersede this Commission, and if he there establishes his case, the Commission will be removed, not only out (a) Ante, vol. i. p. 423.

1820.

BAILEY

0.

VINCENT

and others.

50

1820.

BAILEY

VINCENT

and others.

of his way, but out of the way of all other persons who have an interest in the Bankrupts Estate. If, instead of raising the question by such a Petition, he is to be permitted to proceed in this Bill, not only will the validity of the Commission be tried, at great increased delay and expense, but the decision, whatever it may be, will affect only the Parties to the Suit. I believe such a Bill as this is quite new in Practice, and every principle of convenience being against it, I must allow the Demurrer.

7th March.

BURTON v. HAWORTH.

Infant Tenant GENERAL BURTON was Tenant for life in Equity,

the benefit of the
Insolvent Act
(49 Geo. III.
c. 115), his Es-
tate Tail does not

in Tail, taking with Remainder to the Plaintiff in Tail, with Remainders over. The Plaintiff during his infancy took the benefit of the Insolvent Act, passed in 1809 (a); afterwards, when of age, he suffered a Recovery, with the concurrence of the Tenant for life, to the use of General Burton for pass to his Assig- life, with Remainder to the Plaintiff in Fee. The Denees, because he fendant purchased the Estate of the Tenant for life, and could not be then contracted with the Plaintiff for his Remainder in

legally in custody Fee. for Debt.

A Bill was filed by the Plaintiff for a specific performance of the Contract, and the Title was referred to Master Campbell, who reported, a good Title could be made. The Defendant excepted to his Report, and the Exceptions came on now to be heard.

(a) 49 Geo. III. c. 115. See sections 14 & 49.