HUNTER. [24] tained before the bankruptcy; unless where by the ftat. 7 Geo. 1. 1800. 31. liquidated debts payable at a future day certain are made proveable under the commiffion; that is, where the demand is de- WRIGHT bitum in præfenti, folvendum in futuro. Now here there was no againft liquidated debt due before the bankruptcy for which the plaintiff could have fued the defendant. The defendant was the principal contracting party with the fhip's creditors, and refponfible to them for the whole; the plaintiff's fhare of the debts was properly paid into the defendant's hands; nor was there any period before the bankruptcy at which the plaintiff had a right to resume the money which he had fo paid. The plaintiff sustained no injury till he was afterwards called upon to repay part of the money again to the creditors. In Snaith and others affignees of Parke v. Gale (a), the case was that Parke had lent his acceptances to Gale before the bankruptcy of the latter, but which were not paid till afterwards; and it was decided that Gale was liable for the amount notwithstanding his certificate, as for money paid to his ufe; and though he had given his receipt before his bankruptcy as for fo much money as the acceptances amounted to: for, faid the Court, there was no debt due at law from the defendant to Parke at the time of the bankruptcy but it arose altogether afterwards by the payment of the acceptances. Nor could any action have been maintained upon the acknowledgment. So here no action could have been maintained by the plaintiff before the defendant's bankruptcy for the money which had been depofited with him as his fhare of the fhip's debts, until the plaintiff was called upon to pay the fame again to the creditors after the defendant's bankruptcy, when and not before the fum originally depofited with the defendant became money had and received to the plaintiff's ufe. The cafe of the King v. Egginton (b) is in point. There it was holden that a specific fum of money received by an overfeer of the poor was not fuch [25] a debt as could be proved under a commiffion of bankrupt against him before his accounts were delivered in. For, faid Lord Mansfield, the debt only arose upon the defendant's converfion of the money to his own ufe, which was not till after the bankruptcy. And by Buller J. the parishioners had no cause of action against the defendant, nor could have sued him, before the bankruptcy. So here till the defendant's accounts were made up after the bankruptcy, it could not be told whether he had mifapplied at all or to what extent the money he had received from the plaintiff for the ship's creditors; and confequently there was no liquidated debt at the time of the bankruptcy which the plaintiff could have proved under the commission. 2. The other fum of 168/. 13s. 4d. arifes wholly after the bankruptcy, being money paid to the ufe of the bankrupt after that period, as one of several co-partners, all of whom were liable for the debt. But until one partner has actually paid the fhare of the others he has, no right of action against them; and this it must be admitted was not till after the bankruptcy. This is like the common cafe of principal and furety, where it has been frequently ruled that if the furety be called upon to pay the principal's debt after his bankruptcy, he cannot come in under the (a) 7 Term Rep. 364. (b) 1 Term Rep. 369. com 25 1800. commiffion, and confequently is not barred by the principal's cer tificate. Now co-partners are in the nature of fureties for each WRIGHT other. In each cafe there is a pre-exifting liability before the bankagainst ruptcy, but no cause of action arifes till the furety in the one cafe, HUNTER. or the co-partner in the other, is damnified by the payment of the money. Taylor v. Mills, Cowp. 525. Paul v. Jones, 1 Term Rep. 599. [ 26 ] [27] W. Walton for the defendant. First, as to the sum of 409/. 125. 2d., that was the plaintiff's fhare of the fhip debts, adjufted and paid by him to the defendant before his bankruptcy: It was therefore a fpecific liquidated fum for which the latter was accountable at that period; and confequently was capable of being proved as a debt under the commiffion if it were not applied purfuant to the authority. The plaintiff's ignorance of its mifapplication before the bankruptcy cannot alter the cafe: the amount of the fum which had been mifapplied at the time of bankruptcy was always afcertainable, and that constituted a debt from the defendant to the plaintiff it was fo much money had and received by the one to the ufe of the other, for which he had not accounted according to the truft repofed in him. This is not therefore like a cafe of fpecial damage which cannot be liquidated till after the bankruptcy. Nor does the plaintiff declare for fpecial damage, but for fo much money had and received by the defendant to his ufe; the demand being commenfurate with the particular fum which had been placed in the defendant's hands before the bankruptcy. Neither is it true that the money fo paid could not have been recalled by the plaintiff before that period; for a principal may always recall money out of the hands of his agent by giving him notice before he has applied it. Here the bankruptcy itself was a revocation of the authority, because the money could not be afterwards applied by the defendant. Secondly, in refpect of the other fum of 168/. 135. 4d. claimed by the plaintiff for the defendant's share of the fhip's debts paid for him after the bankruptcy; as between the fhip's creditors and each of thefe parties, the whole was due from the plaintiff before the bankruptcy, though as between the feveral partners themfelves, each was only liable to contribute his proportion; therefore this fum also exifted as a debt at that time, for which the plaintiff was liable, and as fuch he might have proved it under the commillion. The ftat. 5 Geo. 2. c. 30. f. 41. makes no diftinction between partnership and other debts; but all which were "contracted due or demandable" before the bankruptcy are barred by the certificate. In the flat. 10 Ann. c. 15. /. 3. it was even thought neceffary to gu. rd the conftruction of fimilar words from being extended fo far as to do away the liability of the partners of a bankrupt to anfwer for the joint debts of the partnership, there being no doubt but that the bankrupt partner himself, obtaining his certificate, was thereby discharged. Indeed without this, much of the beneficial effect of a bankrupt partner's certificate would be done away; for in vain would he be liberated in the first inftance from the demands of the original creditors, if upon the payment of fuch debts by his folvent partners afterwards he would become liable to them to the fame amount. In the case of a furety, to which this has been likened, he HUNTER. he is not the real debtor; the law therefore implies a promise of 1800. indemnity to him from his principal in cafe he fhall be called upon to pay the debt. His liability therefore is contingent before the WRIGHT bankruptcy, and therefore cannot be proved as a debt under the against commiffion, if he be not actually damnified till afterwards. It is otherwife in the cafe of partners, each of whom is jointly and feverally liable for the whole debt in refpect of thofe with whom they deal. In Craven and others v. Knight and others (a) it is faid that one partner paying more than his moiety of a partnership debt on account of the bankruptcy of the other partner may come in under [28] the commiflion for the furplus beyond his proportion. It is true it does not appear by that cafe whether the money were fo paid before or after the bankruptcy. It follows from the nature of every partnership that there must be mutual debts and credits between the partners; these therefore may be fet off against each other, and the balance is a debt proveable under the commiffion. Befides it may be a queftion here, whether the plaintiff be not premature in his action; for this being a partnership debt, the partnership fund is in the first inftance liable before refort can be had to the separate eftate of each partner; and non conftat but that the partnership fund is fufficient to answer the demand; or if not the whole at least a part of it, and then the action could only be maintained for the overplus. Till that be afcertained no promise to pay can atife in law, and none is stated to have been made in fact. This then is a new experiment to make one partner liable in an action to another, which cannot be, unless upon a balance ftruck. Smith v. Barrow, 2 T. Rep. 478. [Lord Kenyon C. J. obferved that the bankruptcy had put an end to the partnership (b), and therefore no queftion of that fort could arife]. At any rate, fuppofing the action to be maintainable at all, the plaintiff can only recover one third of his demand against the present defendant; for it appears that there were two other partners concerned in this adventure who were all equally refponfible with the defendant; and the law will not imply a promise by the latter to pay more than his juft proportion. Efpinaffe in reply. The defendant was one of three partners, all of whom were liable for this demand: if therefore he would have [29] availed himself of the latter objection, he ought to have pleaded in abatement; and not having fo done the whole may be recovered from him, and he will have his remedy over against his co-partners for their proportions. As to the principal queftion; the first sum remained unliquidated till after the bankruptcy; for till then the plaintiff could not know whether, all or what proportion had been. applied by the defendant; nor was the plaintiff aggrieved till he was called upon after the bankruptcy to pay the money again. As to the fecond fum; the plaintiff's demand had no existence before the bankruptcy, nor was the defendant accountable for it to him till after that period when the money was for the firft time paid by the plaintiff for his use. Lord KENYON C. J. I fee no hardship in this demand. The plaintiff has been cheated, and endeavours by this action to recover (a) 2 Chan. Rep. 226. (b) Vi. Hague v. Rollefion, 4 Burr. 2176. and Fox v. Hanlury, Cowp. 448. back 1800. back his money: If the law will give it to him, there is nothing in confcience to prevent his receiving it. The cafe is fhortly this; WRIGHT the plaintiff together with feveral others were partners in a fhip, the against plaintiff having a certain fhare to himself, and the defendant and HUNTER. the other partners holding the remaining fhares in conjunction; debts were incurred on the partnership account, a balance was ftruck, and the plaintiff paid his adjusted proportion of fuch debts into the hands of the defendant and the other partners, who were the managing owners, in order that it might be by them paid over to the ship's creditors; they have not done so; and the plaintiff has been obliged to pay the money over again to thofe creditors. It is plain therefore on which fide the confcience of the cafe lies: But unfortunately the money was depofited by the plaintiff in the de[30] fendant's hands before the bankruptcy of the latter; and he having fince obtained his certificate, I do not fee how this action can be maintained for that part of the demand amounting to 409/. 125. 2d. This is like the common cafe where an agent receives money from his principal to pay over, which he mifapplies, and afterwards becomes bankrupt: there can be no doubt but that the amount would be proveable as a debt under the commiffion; for in default of the due application of it, it becomes money had and received to the ufe of the principal. As to the other fum in demand of 168/. 135. 4d. the plaintiff is clearly entitled to recover it. The objection laft started, as to the defendant's being only liable for a proportion of this fum, was not thought of before, and there is no foundation for As between a creditor and the partners all are liable for the whole debt, though as between the partners themselves each is only answerable for his refpective share. The plaintiff here stands in the relation of a creditor to the other three partners. He has been called upon to pay a certain fum after the bankruptcy on account of their delinquency. The defendant and the two other partners formed a distinct partnership with whom the plaintiff contracted, and for whom he paid the money; he might fue all or one of them; and as the defendant has not pleaded in abatement, I think the whole money may be recovered from him. Upon the principal queftion as to this part of the demand, I cannot diftinguish this from the cafe of a furety, who is called upon to pay money for his principal after a bankruptcy; in which cafe there is no doubt but that the money may be recovered back from the principal, notwithftanding his certificate. [31] it. GROSE J. With refpect to the larger fum I at first entertained fome doubt, which is now entirely removed. It was argued that before the bankruptcy it could not be told whether any or what part of it had been mifapplied, and confequently it was uncertain to what amount the plaintiff could prove a debt under the commission: but in truth the plaintiff was entitled to prove the whole amount of his depofit, fubject to be reduced by the bankrupt's fhewing the application of any part of it, and thereby ascertaining the real balance of the account. Then it was urged that this was no debt exifting at the time of the bankruptcy, because the plaintiff could not have maintained an action against the defendant for the amount at that time, nor till he had been called upon to repay the amount as HUNTER. at that time, nor till he had been called upon to repay the amount 1800. to the creditors, which was after the bankruptcy. That however would depend upon circumftances. For if the defendant before WRIGHT his bankruptcy had been called upon to pay over the money fo re- againft ceived by him from the plaintiff, and he had refused to do so, I think he would have been liable as for money had and received to the ufe of the plaintiff. Now here he could not pay it after the bankruptcy, and therefore it became a debt due to the plaintiff, and as fuch might have been proved under the commiffion. As to the leffer fum, I cannot diftinguifh this cafe from that of a co-obligor and furety, where money is paid by the furety for the principal after his bankruptcy. There is more difficulty perhaps as to the proportion for which the defendant fhall be holden liable in this action; but confidering him as one of feveral partners for whom money has been paid, I think he is liable to the plaintiff for the whole fum of 168/. 135. 4d. LAWRENCE J. I think the larger fum was a debt proveable [32] under the commiffion and confequently is barred by the defendant's certificate. For when the bankruptcy happened, and the money could not be applied to the purpose for which it was depofited by the plaintiff, it became fo much money had and received for his ufe by the defendant. The leffer fum must be governed by the case of co-obligor and furety, to which it has been justly likened; and therefore I have no doubt that the plaintiff is entitled to recover fomething; the only question is as to the proportion. If this can be confidered as a joint debt there will be a joint implied promife to pay it by the defendant in conjunction with the other two partners; and then the defendant not having pleaded in abatement, the whole may be recovered in this action against him alone. But on this part of the cafe I have fome doubt remaining; and if on re-confideration I fhould think otherwife in the course of the term I shall mention the matter again. LE BLANC J. I agree with my brethren on the principal queftions. The only point on which I entertain any doubt is as to the proportion of the leffer fum which the plaintiff is entitled to recover. It occurred to me at first that the defendant was only liable for one third; but what I have heard has altered my opinion; for confidering him jointly liable with the reft of his partners for the whole, he ought to have pleaded in abatement if he wished to avail himself of this objection. On the following day Lord Kenyon C. J. faid that the Court had taken under confideration the doubt which had been thrown out [33] the day before, whether the plaintiff fhould have judgment for the whole or only for a third part of the fum of 168%. 135. 4d., and that they were all of opinion that he was entitled to recover the whole; confidering that the three Hunters, who were partners together in the tranfaction, conftituted but one debtor with refpect to the plaintiff. Poftea to the plaintiff (a). (0) Vi. Smith and another affignees of Hague v. De Silva and others. Cowp. 469. C VOL. I. DOE |