1836. Ex parte CROSFIELD. made to prove against Samuel Cooper's estate, Charles Cooper became a bankrupt. Mr. Swanston, and Mr. Dixon, appeared in support of the petition. Mr. J. Russell, contrà. The notes in this case, being the joint notes of Charles and Samuel Cooper, cannot be proved against the separate estate of Samuel Cooper; for, a joint note cannot be treated as a several one. The petitioner now swears, that there is no joint estate; but he did not allege that fact, when he applied to prove before the Commissioners. If he had no right to prove then, he has acquired no greater right by the subsequent bankruptcy of Charles Cooper. In Ex parte Pinkerton (a), where a party applied to prove under a separate commission, upon a bill of exchange drawn by two persons, one of whom was solvent, but abroad, and not likely to return, and the other was the bankrupt, and they were merely connected in this transaction,— although Lord Eldon allowed the petitioner to prove on the bill, the Order expressly recited, that it was admitted there was no joint property. So, in Ex parte Kensington (b), a joint creditor was not admitted to prove under a separate commission, for the purpose of receiving dividends with the separate creditors, although there was no joint property; there being a solvent partner. And in Ex parte Sadler (c), joint creditors were only admitted to prove under a separate commission, on the ground that there was no joint estate, nor any solvent partner. The payee of a joint note has, therefore, no right to prove the amount against the separate estate of (c) 15 Ves. 52. (a) 6 Ves. 814, note (a). (b) 14 Ves. 447. one of the makers, unless he can show that both the makers are insolvent, and that there is no joint estate. [Sir G. Rose. I think you cannot find that that rule is laid down in any case, except in the case of partners.] In Ex parte Pinkerton, the application to prove was on a mere promissory note, independently of any partnership. In Rawstone v. Parr (a), where a promissory note, signed "J. and J. Ewing, James Parr, surety," was given to a creditor of the firm of J. and J. Ewing, and James Parr died, and J. and J. Ewing became insolvent: it was held by Lord Eldon, reversing the previous decision of the Master of the Rolls, that the note must be considered as the joint note of the parties who had signed it, and that the holders of it had no claim against the separate estate of James Parr. The Commissioners decided right, when the matter was before them; and if the petitioner has now any better right to prove, he ought to have gone before them again, without coming to this Court. Mr. Swanston was stopped, in reply. ERSKINE, C. J.-When the case came before the Commissioners, the other maker of the note, who, it appears, was the principal debtor, had not become a bankrupt; and therefore the Commissioners might deem it right, before the creditor was admitted to prove against the estate of the surety, that he should first go against the principal. The notes, however, are the joint notes of Charles and Samuel Cooper, without any partnership subsisting between those persons, and were intended to be a joint security to the petitioner for the payment of (a) 3 Russ. 539. 1836. Ex parte CROSFIELD. 1836. Ex parte CROSFIELD. the sums for which they were given. The present case is quite different from that of a joint creditor applying to prove against the separate estate of one partner, where the other is solvent. Sir J. CROSS. The law is, that in an action against two defendants, on a joint security, the plaintiff may levy the amount of the debt on the effects of either party; and the same principle appears to me to govern this case. Sir G. ROSE.-Whenever a party has a right to a separate commission, he has a right to a separate proof; this consequence is inevitable. The rule that has been so much dwelt upon in the argument, only applies to the case of a partnership. ORDER made, as prayed, each party paying their own costs. Westminster, A creditor of a with his books of account, and has never sur Ex parte VALENTINE KNIGHT.-In the matter of THIS was the petition of the holder of three bills of rendered to the fiat, applies to prove on two bills, one for 2001., and the other for 1234, the consideration for which the creditor alleges to be goods sold by him to the bankrupt; but no entry appears in the creditor's books of the sale of those goods, nor does he adduce any evidence of the fact, beyond his own statement: Semble, that the Commissioner was, under the circumstances, justified in rejecting the proof. Quare, whether the Commissioner is justified in rejecting a proof, merely on the ground of the non-compliance of the creditor with a general rule, which the Commissioner has adopted for his own practice, namely, not to permit the proof of a debt, unless the books of the party applying to prove contain satisfactory evidence of the debt. another for 1231., and the third for 95l. 5s. 9d.; and the consideration, which the petitioner stated he gave for these acceptances of the bankrupt, was a quantity of gold watches, gold dials, cameos, and emeralds, alleged by the petitioner to have been sold by him to the bankrupt at various times between September 1834 and March 1835; the petitioner being a gold watch-dial maker in Clerkenwell, and the bankrupt having carried on the business of a merchant at Liverpool. When the petitioner applied to prove before the Commissioner, the Commissioner desired to know, whether there was any account in the petitioner's books of these transactions between him and the bankrupt; upon which the petitioner stated, that the bills were entered in his bill-book, but that there were no entries of the gold watches, cameos, and emeralds, inasmuch as those articles were not manufactured by the petitioner, or immediately connected with his trade of a gold dial maker, and that it was not his practice to enter any account of such like matters; but that there was an account entered of the gold dials, which were manufactured by the petitioner, and which formed the consideration for the last-mentioned bill of 951. 5s. 9d. Under these circumstances, the Commissioner refused to permit the petitioner to prove any part of his demand, except the bill for 951. 5s. 9d., saying, that he had made it a rule never to permit the proof of a debt before him, unless the books of the party seeking to prove contained satisfac- ́ tory evidence of the debt. It appeared from the affidavits in answer to the petition, that previous to the issuing of the fiat, the bankrupt had absconded from England, with all his books and papers, and had never surrendered to the fiat; and that when the petitioner applied to prove, the Commis 1836. Ex parte 1836. Ex parte sioner alluded to this circumstance as a reason for requesting the petitioner to produce his books, the assig nees having no books to guide them in the admission of claims on the bankrupt's estate; and at the same time told the petitioner, that he would wait until the petitioner could return home, and bring his books, or any other evidence, to satisfy him that consideration had been. given for the bills. The petitioner went and brought his books; upon inspecting which the Commissioner said, as no entries whatever appeared in the petitioner's books as to the consideration alleged to have been given by him for the two bills for 2007. and 1237., he should require further evidence, before he could admit the petitioner to prove on those bills; but that the petitioner might prove on the bill for 951. 5s. 9d. The petitioner replied, that he would prove for all or none. Mr. Swanston, and Mr. Bacon, in support of the petition, contended, that the Commissioner had rejected the proof for an insufficient reason; for that he had no right to make such a rule, as that of refusing the proof of a debt, unless the books of the party applying to prove contained satisfactory evidence of it; and that as the petitioner could recover in an action at law on the bills, without producing his books to prove the consideration for them, so he had a right to prove the amount of them under a fiat, although no entry of the consideration might appear in his books. Mr. Deacon, and Mr. Keene, contrà, urged, that the circumstances of the case were altogether so suspicious, that the Commissioner was fully justified in rejecting the proof on the two bills for 2001. and 1237.; that the rea |