atkins case ex part henry Lanoy hunter Esq in the matter of james hunter and  loath specht bankrupt January the d and march the saint a lend a sum of money  to one partner on his own security he lend the same to the partnership trade a  joint commission be take out a shall not come in as a creditor upon the joint  estate of the bankrupt immediate and direct with the rest of the partnership  creditor but by way of circuity he be entitle as stand in the place of that  partner who have pay the money to the use of the partnership trade Mr James  hunter and Mr loath specht be partner in trade and the term of the article be  that the stock shall consist of pound and that this sum of money shall be put  in by hunter only and that he shall be entitle to twothirds of the profit of  the trade and specht to the remain onethird but as to the principal sum of  pound the article provide that it shall belong whole to hunter under these  restriction the partner enter upon trade and more money be want to carry it on  James hunter apply to his brother Mr Lanoy hunter tie petitioner who in the  year advance he at three different time upon his note of hand the sum of pound  pound at per cent and afterward give a bind for this money in which he be  single bind f r Mr specht be not then privy to any part of the transaction but  agree afterward that James hunter shall in his own name lend this sum to the  partnership and in the book entitle the private account of cash the  partnership stock be made debtor to Mr James hunter for the pound pound and  interest for the loan of this money at the rate of per cent to be allow he out  of the produce of the partnership trade Mr James hunter have in his possession  for safe custody twentyfive Southsea bind and eight eastindia bind which be  the petitioner property do without his knowledge upon the security of the  several bind borrow of the bank of England in November pound and afterward  lend that sum too at the like interest to the partnership trade and make a  entry in the same manner with the former make in the private cash book Mr  James hunter and Mr specht have become bankrupt in July last a joint  commission of bankruptcy issue against they as partner and they be declare  bankrupt and Samuel Nicholson choose assignee the petitioner apply to the  commissioner to be admit a creditor for the two sum of pound pound and pound  on the bankrupt joint estate who refuse to admit he to prove the same and  therefore pray that his lordship will order that the petitioner shall be admit  a creditor upon the joint estate for the several demand and in case the court  shall not think fit to admit the petitioner a creditor for the several debt  under the partnership estate that then he may be admit a creditor for the same  upon the respective separate estate of James hunter atkins to entitle the  petitioner to come upon the joint estate it be suggest that though the money  be borrow by one of the partner and security give by he only yet as it come to  the use of the partnership that he ought to be admit to come in as a creditor  upon the partnership Lord chancellor my opinion be that the petition ought to  be dismiss but without prejudice to the petitioner bring a bill if he shall  think proper to have the benefit of the same matter which he now insist on it  have be contend on the part of the petition that the money in question be  joint lend to the partner but that be express contradict by their own  affidavit for they admit particular the pound pound to be lend to James hunter  with a intention that he shall apply the same for the benefit of the  partnership the consequence of this be that here be plain two contract one as  between Henry Lanoy hunter and James hunter the other as between James and his  partner as this be the case there be no ground for the petitioner come in as a  immediate creditor for this money upon the partnership estate but then it have  be say that by a circuity the petitioner may have the same kind of relief for  if the money which be advance by Henry to James be lend by James to the  partnership estate then as James may have come in as a creditor for this sum  upon that estate the petitioner will be entitle to stand in the place of James  and to have the same remedy as he will have have but I do not know any  determination of the court which have go so far in a case atkins er p of this  nature Mr Murray have put this matter in another way he say that there be no  occasion for the petitioner to make use of a circuity in this case but that he  ought to be let in original upon the partnership estate because specht have no  interest in the capital for by the article if James shall happen to die during  the life of specht the whole principal of the pound be to go to the executor  of James but it will be go too far to say that any secret agreement which  partner enter into between themselves can hinder those that immediate trust  the partnership estate from have their complete satisfaction out of it the  only method therefore wherein the petitioner can have his satisfaction out of  the partnership estate be by way of circuity by stand in the place of James  consider what great inconvenience will follow in case this doctrine shall  prevail in the first place those that be plain creditor upon the partnership  estate must be at liberty to controvert whether the fact be as state by the  article that the whole pound be bring into the partnership estate by hunter  only in the next place suppose this be the fact yet in respect of stranger the  money must be consider as bring into the partnership estate by both see craven  v widow Charles can for these reason his lordship say he will not determine  this matter in favour of Mr Henry Lanoy hunter upon a petition but will have  he to bring a bill for this purpose if he shall be so advice atkins upon which  the attorney general who be counsel for the petitioner say that in Lavington v  Paul before Lord Talbot to the best of his remembrance it be determine that in  case of this nature the party may be allow to have his satisfaction out of the  partnership estate the petition upon this be order to stand over to search for  precedent upon the saint of march the petition come on again Mr attorney  general who be counsel for the petitioner consider he as stand in the place of  the bankrupt and as the partnership be increase by the money lend by Mr James  hunter he see no reason why one partner may not be a debtor to another and in  support of this argument he cite a case ex part drake December the that before  Lord Talbot where there be two partner and one have take out more money from  the partnership stock than his share amount to and therefore become a debtor  for so much and my Lord Talbot be of opinion that the partnership creditor  have a right to come upon the separate estate of the partner who be so indebt  vide ex part Batson Ves Jun craven v knight Charles Rep Charles can Mr Murray  cite a case ex part Gilbert brown the that of march there two partner agree to  borrow a sum of money for the use of the partnership but one of they only give  a bind for secure the payment and the other be a witness to it this money be  afterward enter in the cash book of the partnership a joint commission take  out against they and the obligee deny by the commissioner to be admit a  creditor but Lord king on his petition be of opinion that he ought to be admit  and direct accord so in the present case the partnership be in want of money  one of the partner borrow it and give a separate bind indeed for it but still  the money come to the use of the partnership then the question will be whether  the obligee shall be admit to come in as a creditor upon the joint commission  but suppose your lordship shall be of opinion that the obligee can come in  upon the joint estate I will submit it to you that he can clear come in as a  creditor upon the separate estate of James hunter for if there have be no  bankruptcy the partner can not have make a dividend of the joint stock till  this money which James hunter lend to the partnership have be first take out  of it joint creditor have no right to any thing but what be proper the joint  estate and if this money have not be lend the partnership fund will have be  pound less than it be now and it will be a extreme hard case where there have  be such a large increase of the fund by mean of a three person if he shall not  be allow to come in as a creditor the rule establish in this court in relation  to bankruptcy be not find upon the act of parliament mere but upon equitable  construction and to lie it down for a rule that nothing shall entitle a person  to come in as a creditor upon the joint estate but where partner be joint bind  notwithstanding the money have be apply to the use of the partnership be not a  very equitable one atkins er p atkins Mr brown e contra there be no foundation  for the petitioner to be admit a creditor on the partnership account as this  be a dispute between two set of contend creditor No doubt but payment of money  may raise a consideration and make it a debt and so v ice line it may not  raise a consideration but it be pretend that at that time this money be  advance Mr Henry Lanoy hunter know the partnership will be liable to answer it  to he it appear from his own evidence that he lend it mere upon the credit of  his brother Mr James hunter and if it shall extend further it will be attend  with great inconvenience the open and public book do not mention it as a loan  it be only a private cash account which they may have sink if they please as  it be intend for their private use only now creditor will never be safe if  near relation of bankrupt as in this case may set up a demand or not against  the partnership just as the event turn out videlicet whether the separate  estate or the joint estate of the oblige will answer best can Mr Lanoy hunter  who lend this money have bring a action against Mr specht the other partner  apprehend clear he can not the next consideration be whether the petitioner  have any right to stand in the place of James hunter and by that mean be  entitle to recover this money before the joint stock be divide I will not  dispute the petitioner right if the bankrupt have any and therefore consider  it mere as the bankrupt case and suppose there be no separate creditor then  the whole fund in the first place must go to satisfy the partnership creditor  and the bankrupt if there be any surplus be entitle to that only Lord  chancellor first question whether the petitioner be entitle to come in as a  creditor upon the joint estate of the bankrupt immediate and direct with the  rest of the partnership creditor d question suppose he be not immediate and  direct entitle whether he be not entitle to come in by a circuity which this  court allow as stand in the place of James hunter who have pay the money to  theuse of the partnership trade the first question ought to be consider in the  first place because if the petitioner be immediate entitle then there be no  occasion to have recourse to the circuity but I be of opinion that he be not  immediate and direct entitle and the evidence upon his own affidavit rather  turn against he for a man must be a creditor by force of some contract either  express or imply as where good be deliver though no express contract the law  imply one and a assumpsit atkins will lie but accord to the account Mr specht  the other partner give of this transaction Mr Lanoy hunter have neither a  express nor imply contract with the partnership Mr specht agree that James  hunter shall in his own name lend this money to the partnership explain in  what manner specht mean to borrow money for the use of the partnership and do  by no mean prove that he intend the partnership fund shall be a security to  the petitioner it be very true there may have be a loan to the partnership  notwithstanding the note be give by one of they only and if the contract have  be original between the petitioner and both the partner though the bind be  execute by one only yet it will be consider as a collateral security and both  of they will have be liable notwithstanding upon the whole of the question  James hunter only appear to have lend the pound pound to the partnership and  the petitioner do not seem so much as to have it in his think as to the pound  borrow of the bank upon the security of the south sea stock and east India  bind which be the property of the petitioner Mr James hunter by a  misapplication and abuse of his trust have procure this money and lend it upon  the same term and in the same manner as he do the pound pound to the  partnership trade as appear by the private cash account now in that book James  hunter be make debtor on one side and per contra creditor and therefore I can  call it the account of any other person so that upon the first point I be  clear of opinion that the petitioner can be direct and immediate entitle as to  the second question his come in by way of circuity I own former I be very  doubIful but now I be of opinion that Mr Henry Lanoy hunter be this way  entitle the principal obscurity in this case have arise from his counsel  insist that the atkins er p petitioner ought to stand in the place of James  hunter who be one of the bankrupt for by this mean they have confine it mere  to the several right in which he stand now it be certain James hunter himself  can have no satisfaction but out of the surplus which shall remain after the  joint creditor be pay but as between different sort of creditor it be  otherwise the truth of the thing be this Henry Lanoy hunter be a separate  creditor to James hunter be entitle to have his satisfaction out of every  thing which can be consider as the separate estate of James and therefore the  rule which the court go by with regard to the distribution of bankrupt effect  will be a material consideration in this case joint creditor where there be no  separate may exhaust both the joint and separate estate till their debt be pay  and the bankrupt will not be entitle to a shilling till the joint atkins  creditor be full satisfy but where there be separate as well as joint creditor  though as I say before in the case of the bankrupt the separate estate shall  be equal apply yet as between joint and separate creditor it be otherwise for  the joint estate shall be apply to the satisfaction of the joint and the  separate estate to the satisfaction of the separate creditor suppose a joint  commission against two partner and a separate commission likewise and the  assignee under the joint possess themselves of any specific part the bankrupt  themselves can not take away this specific part though they have a distinct  and a joint property in it yet it be every day experience that the assignee  under the separate commission may do it upon application to this court suppose  these partner have never become bankrupt to the end of the partnership and  they have settle account must not the demand Mr James hunter have upon the  partnership be take out before a division can be make of it this show clear  that Mr James hunter be a creditor upon the joint stock then it follow that  the creditor of his separate estate have a right to this in the first place  send vide ex part Burrell cook b law ex part pine ibidem indeed if there shall  be any surplus of the separate estate after this money be pay the joint  creditor will be entitle to it and this determination be accord to the rule of  the court in regard to the distri bittern of bankrupt effect upon a view of  the different right of creditor