West v Skip
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 1750 |
| Date | 16 May 1750 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1006
HIGH COURT OF CHANCERY
west v. skip, [May 5th], 1749. Partnership-Bankruptcy-Representatives of partner entitled to set ofi debts, and have all allowances before the separate creditors of the other can take his share ; and they have a lien for such demands.-See also post, 456. (Vide Supplement, p. 130.) A partnership was entered into in a brewery between Skip, and Ralph and James Harwood, and particular terms then agreed on between them, that Skip should have such a proportion of the outstanding debts, and a lien and security on the partnership stock, to make that share of those debts good to him according to the value set on them, with penalty in case of a breach. After this some differences arose between them on a suggestion, that Balph Harwood drew more than he ought out of the stock, and received debts without the privity of Skip, with [240] several other breaches of covenant and misbehaviour ; which produced an action by Skip for the penalty of the articles ; in which a judgment was 1 VES. SEN. 241. WEST V. SKIP 1007 recovered. But before execution thereon Ralph Harwood confessed a judgment to his sisters ; who took out execution by elegit, and laid hold of the partnership stock, which was assigned by the sheriff. Skip, insisting that this was a fraudulent act to cover the effects, took out a commission of bankruptcy against Ralph Harwood : upon whose application to supersede it, issues were directed to try whether he was a bankrupt or not at the time of the commission. But instead of trying it, the partners came into a rule by consent by order of Nisi prius, which was afterward made a rule of C. ., and which order was, that Ralph Harwood should execute a bond with penalty to Skip, and procure two other bonds with penalty conditioned to pay to Skip what should be due to him on the day of the date of the order, with the interest; and ordered with like consent, that the partnership should cease as on that day, and the account of the partnership trade should be carried on to that day, and no farther : and that upon Ralph Harwood's giving such security as before mentioned, the commission should be superseded, the officers discharged, and the effects delivered. Under this order nothing effectual was done; the whole thereof depending upon Ralph Harwood's giving the security therein mentioned; which he not performing, motions were made in C. B. for attachments against him for contempt in breaking this rule ; which, being found to be only a personal remedy with no effect, produced an application to Chancery under the commission of bankruptcy : and by consent of the parties it was ordered, that the rule of C. B. should be discharged, except so much as related to the dissolution of the partnership ; and ordered to restrain Harwood from disposing of any of the effects except in the way of trade; and that it should be tried again. On the trial a verdict was found, that at the time of issuing the commission Harwood was no bankrupt: and ordered, that the commission should be superseded. Skip filed a new bill in this court, setting forth all this : praying an account and satisfaction for the breaches of covenant, and to be paid what was due to him out of the goods and effects taken in execution; and that the defendant might be restrained from getting in the partnership effects to his prejudice. The cause was put off several times, that Harwood might find security, to prevent the appointing a receiver. But upon his not doing it a decree was made and a receiver appointed. It appeared afterward, that Harwood had endeavoured to secrete the effects in a very extraordinary manner during the hearing of the cause, after [241] *ne propositions made to him, and time given him to comply therewith ; getting in the debts, and giving receipts where nothing was paid; which produced a commission of bankruptcy by other creditors eight days after making the decree : and these acts of Harwood, done really to elude the decree and appointment of the receiver, were now set up as acts of bankruptcy. This occasioned new contests, and a new bill by the assignees, insisting that Skip had no property either legal or equitable against them : but that his debt ought to be levelled with all the other debts of Harwood ; and he be considered barely as a creditor. And Skip brought a bill to...
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