1837. Ex parte HARRISON and another. the said sum of 1355l. 6s. 3d., had been retained in the Bank of England, subject to the order of the Court. The petition prayed that this sum of 2481. 9s. 7d., all future dividends, might be paid to the petitioners. Mr. Anderdon appeared in support of the petition. and Mr. Deacon, on behalf of the assignees, submitted to any order of the Court. The Bankrupt appeared in person to oppose the petition. ERSKINE, C. J.-There is every probability, that Hannah Curtis became absolutely entitled to the sum of 15001. 31. per cent. reduced annuities. There ought, perhaps, to be a reference to the Registrar, to ascertain whether any other persons besides the petitioners are interested in the fund; but as the fund is too small to bear that expense, the petitioners may take an order for payment to them of the dividends, without prejudice to the rights of any other person. The other Judges concurring, it was Ordered accordingly. Ex parte ISAAC PARKES.-In the matter of ISAAC PARKES. THIS was the petition of the bankrupt to annul the fiat at the costs of the petitioning creditor, on the ground that it had been issued for an illegitimate purpose. a a 1837. Westminster, Nov. 14, 1837. To induce the Court to annul fiat, on the bankrupt's suggestion that the petitioning cre ditor in issuing it was to dis solve a partnership subsisting between the bankrupt and other persons, the Court must be quite satis fied that that was the sole object of the petitioning cre ditor. It appeared, from the statement of the bankrupt, that object of the in January 1837 he had entered into a treaty with William Ball and Joseph Walker to embark with them as copartners in the business of steel-pen makers, and that he was to bring into the concern the value of 2007.— for 901. of which he was to be credited, in respect of large stock of tools which he agreed to bring into the business, and in respect of the remaining 1107. he was to be allowed for the time, labour, and skill that he should devote to the benefit of the projected partnership, until it should actually commence; and if after making such allowance, the 1107. should not be satisfied, Ball agreed to lend the petitioner a sum sufficient to make up the deficiency. In pursuance of this agreement, premises in the neighbourhood of Birmingham were purchased for the purposes of the manufactory for the sum of 20007., which sum was afterwards raised by a mortgage on the premises. At the time of entering into this treaty for a partnership with Ball & Walker, the petitioner was in the employ of a Mr. Mitchell at Birmingham, under articles to him, in the same line of business; which engagement was known to Ball & Walker; but, for seven months after his agreement with them, he devoted all the time he was not actually engaged in the service of Mr. Mitchell to the benefit of the partnership. In July 1837, Ball & Walker called on the petitioner to advance the sum of 2007., denying 1837. Ex parte that they had agreed to make him any allowance for his stock of tools and for his labour and skill employed in establishing the manufactory. This sum not being paid by the petitioner, Ball & Walker formed the design of excluding the petitioner from the benefit of the partnership, and gave directions to the workmen not to admit the petitioner into the premises. They shortly afterwards filed a bill in Chancery against the petitioner, for the purpose of having the partnership dissolved, and obtained an interlocutory injunction to restrain him from interfering in the concerns of the partnership. They also instigated the mortgagees of the property to issue a writ of capias against the petitioner for non-payment of the mortgage-money, on which a warrant was taken out against the petitioner only. On the 12th August 1837 a fiat in bankruptcy was issued against the petitioner by one of the executors of the mortgagee, which, the petitioner alleged, was sued out at the instigation of Ball & Walker, for the purpose of procuring a dissoluton of the partnership, and not for the bonâ fide purpose of making a division of his property amongst his creditors. The petitioner stated, that he was not aware that any money was due from the partnership, which the partnership funds were not equal to discharge; and that he believed the mortgaged property was also fully equal to pay the money due on the mortgage; and that he himself owed no private debts. That the solicitor to the fiat was the solicitor of Ball & Walker, and the same who filed the bill in Chancery and issued the writ of capias against the petitioner; and that the petitioner verily believed that the whole of the proceedings adopted against him were merely instituted, for the purpose of getting rid of him as a partner. The solicitor to the fiat, and the petitioning creditor, had made affidavits denying the allegations in the petition. Mr. Swanston, and Mr. Anderdon, in support of the petition. It is in evidence, that Ball & Walker had formed a design to deprive the bankrupt of all benefit of the partnership, and were very active in the prosecution of this design by the proceedings, which they not only adopted themselves against the bankrupt, but which they also instigated the mortgagees to adopt against him. In Ex parte Christie (a), this Court directed a commission to be superseded, which had been issued by one partner against another, not for the purpose of distributing the bankrupt's effects among his creditors, but for the sole purpose of dissolving the partnership; and that decision was confirmed on appeal by Lord Chancellor Brougham. It is true, that in that case there had been the verdict of a jury, finding that the dissolution of the partnership was the sole object of the petitioning creditor in suing out the commission. But although we have not here the verdict of a jury, yet the members of this Court are judges of fact, as well as law, and are quite competent to decide upon the facts of this case. The facts are not denied. And as to the law, it is quite sufficient if the improper motive for issuing a fiat is predominant in the mind of the petitioning creditor; it need not be an exclusive motive. Mr. Bethell, and Mr. Bird, who appeared for the petitioning creditor and the partners of the bankrupt, were stopped by the Court. 1837. Ex parte 1837. Ex parte ERSKINE, C. J.-To justify the Court in ordering this fiat to be annulled, we must be satisfied that the fiat was issued for the sole purpose of dissolving the partnership, and not for the purpose of distributing the effects of the bankrupt. There may be circumstances of suspicion in the case; but I own the evidence does not quite satisfy me, that the only object of the petitioning creditor in issuing the fiat was to dissolve the partnership between the bankrupt and Ball & Walker, without any regard to the distribution of the bankrupt's effects towards the satisfaction of the mortgage-deed. Sir JOHN CROSs.-It appears to me somewhat extraordinary, that the petitioning creditor, who is one of two trustees, should of his own mere motion sue out a fiat against Parkes for the amount of the mortgage debt, without previously demanding the payment of the debt from the two other partners. The solicitor, who issued the fiat, was employed both by the lender and the borrowers of the mortgage-money; and he might have advised the trustee to sue out a fiat in bankruptcy against the petitioner, to promote the object of some of those who employed him. The bankrupt swears, that directions were given by the two other partners to exclude him from the premises, on the ground that he was not a partner. It seems to me not necessary to come to the conclusion, that the affidavit of the petitioning creditor is false; but it is sufficient that his main object was, on the suggestion of the solicitor, to dissolve the partnership between the bankrupt and Ball & Walker. Still, I should be unwilling to come to that conclusion; because the solicitor swears to the contrary. But the effect of his actions is the best criterion we have for judging of |