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firmed by that of March 2d, 1821, which was executed

1832. after Whiteside came of age, Whiteside did become a partner with the two Starkies, both as between them- CHUCK, in the selves, and also with regard to third persons; that Matter of

STARKIES and by the express terms of the deed of July 20th, 1820, WHITESIDE. there was a partnership stock created, in which they had a joint property; that, although Whiteside had not any definite aliquot proportion of the profits, yet that he was entitled to an account of the profits as between themselves, so as to get his 2000l. or 24001. a year, as the case might be, out of the clear profits; that he was, to all intents and purposes, a partner, though his name did not appear to the world; and that a joint commission against all the three, as such joint partners, might be well supported. Whiteside, then, being thus a partner, but unknown as such to the world, any creditor of the three might, at his election, have maintained an action either against the two Starkies, the known partners, or against them and Whiteside jointly, as appears by the case of De Mautort v. Saunders (a), Exparte Hamper (b), and Exparte Norfolk (c); and if an action had been brought against the three partners, it is clear that the joint effects of the partnership might have been taken in execution. So also, generally speaking, the joint effects of the partnership would be distributable amongst the joint creditors, under a joint commission of bankruptcy against the three. And unless there be something particular in this case to vary it from such general principle, we should be of opinion that the joint creditors of the three are entitled to have the partnership effects divided amongst them. Thus then stands the claim of the joint creditors of the three partners.

The claim of the creditors of the two Starkies under the old partnership, must next be considered. It is

(a) 1 B. & Adol. 398. (c) 19 Ves. 455.
(6) 17 Ves. 403.
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1832. contended, on the part of those creditors, that after the

partnership with Whiteside, who was a secret partner, Ex parte CHUCK, in the the two Starkies, with the consent and permission of

Matter of Whiteside, who had a share of the joint property, had STARKIES and WHITESIDE.

his interest in such joint property in their possession, order, and disposition, and were reputed owners thereof, and took upon them the sale, alteration, and disposition as owners; and that, under the 6 G. 4. c. 16. s. 72., which follows 21 Jac. 1. c. 19. s. 11., they are entitled to have the benefit of that interest of Whiteside under the commission. And for that doctrine they rely on the case Ex parte Enderby (a), which, they contend, must be taken now to be the law on the subject, and to have settled all the former conflicting cases. To the authority of that case we certainly subscribe. In that case, indeed, the partnership had expired by effluxion of time before the commission issued; in the present case it continues up to the date of the commission; but we cannot think that circumstance makes any difference in principle between the two cases; and in the present instance, if Whiteside had been solvent and able to pay all the creditors of the three, and a commission of bankrupt had issued againt the two Starkies, we do not think that he could have claimed to be entitled to his share of the joint effects any more than Enderby could in his case. It may be argued, however, that the rule of law laid down in that case may well apply against the solvent partner himself, who is in default, by suffering his share to remain in the possession and order of the bankrupt, and who, therefore, is excluded by the policy of the law from claiming any thing to the prejudice of creditors whom he may have been, in part, the means of misleading, but that it forms a very different question whether the same rule should be allowed to hold where the

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interest

VAITESIDE

nterest of the creditors of Whiteside is affected by its 1832. application, and where, as in the present case, the credi

Ex parte tors of the three have trusted the firm when Whiteside's CHUCK, in the 24,0001. formed part of the capital. However, upon the Matter of

STARKIES and best consideration we can give to the subject, we think the Wan principle of the case Ex parte Enderbey may and ought to be extended to a case circumstanced like the present.

The question, then, arises, whether, if the old creditors are entitled to treat this as a case within the seventysecond section of 6 G. 4., they may not exclude all other persons, on the ground, that if the funds of Whiteside have, under the circumstances, been placed in the hands of the two Starkies contrary to the policy of the law, no persons but the old creditors can prove. But we think they are not to have that privilege. In fact, the new creditors have a better right, upon principle, than the old creditors; because the new creditors trusted the firm on the faith of their apparent funds, including Whiteside's capital; whereas the old creditors never did trust them upon the faith of these funds, but only forbore to sue them upon the faith of their apparent stability. And unless there be some principle which forbids different classes of creditors claiming upon the same funds, we think both sets of creditors ought to be permitted to prove; that is, the new creditors, on the ground of the funds belonging to persons whom they certainly trusted; and the old creditors, on the ground of the two Starkies being the apparent owners of the whole. Still further, if the creditors of the old firm claim to exclude the creditors of the new firm, another answer may be given, to which, indeed, we have already referred, viz. that as Whiteside was a secret partner, the creditors of the new firm might have brought actions, or sued out a commission of bankrupt against the two Starkies, (according to the cases of De Mautort v. Saunders and Executors, Ex parte Hamper, and Ex parte Ii 3

Norfolk,

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1832. Norfolk, before referred to), and then, as Whiteside was

a dormant partner, and the two Slarkies were the ap-
Ex parte
Chuck, in the parent owners, the new creditors might have insisted

Matter of upon Whiteside's share being distributable under such a
STARKIES and
WHITESIDE.

commission, and, consequently, would have the same
right to insist upon the apparent ownership as the old
creditors have. We are therefore of opinion, upon the
whole of this case, that both the creditors of the two
Starkics by themselves, and also the creditors of the two
Starkies and Whiteside jointly, should be admitted to
prove pari passu upon the joint estate of the three.
Then, supposing the old creditors are entitled to prove
upon the joint estate, it is to be considered whether
those who had notice of Whiteside becoming a partner,
can be admitted to the benefit of the proof? And upon
that point, inasmuch as the proof is upon the ground of
apparent ownership in the two Starkies, we think it can
make no legal difference whether the old creditors knew
of the change or not, inasmuch as none of the old cre-
ditors trusted the firm while Whiteside's property was in
it; and, therefore, the knowing or not knowing of the
change seems to us to make no difference. We see,
therefore, no objection to those particular creditors being
allowed to prove, as well as the rest.

1832.

IN THE HOUSE OF LORDS.

May 25.

Doe dem. F. HEARLE and A. M. HEARLE, his

Wife, v. Hicks.

BY a special verdict in this case, it was found that J. H. devised in April 1821 John Hicks devised his copyhold

premises called messuage, &c. called Plomer Hill House, to the use of P., &c. to the

trustees. use of trustees,

in trust for his wife, during her life or widowhood, or so long as she should reside upon the premises ; remainder to the uses declared of his residue: he devised to the same trustees a free. hold estate, charged with an annuity, in trust for his daughter for life, remainder to the use of her children in tail, and in default of issue, upon the trusts declared as to his residue ; he further devised to the same trustees certain freehold premises, and all the residue of his real estates, in trust for his son H. for life, charged with an annuity to testator's wife, remainder in tail male to the issue of his son ; on failure of such issue, a further annuity being thereupon payable to testator's wife, to the use of his grandson G. for life, remainder to the sons of his grandson in tail male ; and on failure of such issue, to the use of the sons of his daughter in tail male, remainder to his own right heirs. He bequeathed all his ready money to his wife absolutely; the dividends of all his money in the funds to his wife for life ; and all the personal property in and upon the copyhold premises, in trust for his wife, during such time as she should be entitled to the copyhold premises, and on the determination of her estale therein, for his son, the devisee of the residuary real esta e. The testator, by his first codicil, referring to his will, and reciting the death of his son, devised to the husband of his daughter, after her death, the freehold estate devised by his will to her; charged his residuary estate with a further annuity to his wife, over and above those already limited thereout for her benefit ; bequeathed two further annuities to his daughter and to her husband, and revoked the bequest of his personal property in and about his copyhold premises, giving the same and the residue of his personal property absolutely to his wife, and in the event of her death before him, to his nephew. By a second codicil the testator appointed his wife sole executrix and residuary legatee of his personal property; and by a third codicil directed the proceeds of certain shares in the County Fire Office, to be enjoyed by his wife for life; after her death, by his daughter and her husband for life; and after their decease by his heir in possession. By a fourth codicil, revoking and 'making void several of the dispositions theretofore made by his will and codicils, of all his freehold, copyhold, and personal estate and effects of every kind and description, instead and in place of such devise, disposition, and bequest thereof, gave, devised, and bequeathed all and every his freehold, copyhold, and personal estate and effects

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