Com' Craven & al' contra Knight & al' 34 Car. 2. fo. 732.

THe Bill is that the Defendant Geo:* Wid∣dows being indebted to the Plaintiffs, became bound to them in several Bonds, and the said Widdows and the Defendant Berman, for several years past were Co∣partners, and Widdows by Articles of Co∣partnership, was intituled to two thirds of the whole Stock, and the Defendant Berman to one third: That the said Wid∣dows and Berman the 25 of August last be∣came Bankrupts, and a Commission of Bankrupsy awarded against them, the Commissioners of Bankrupts assigned all the Estate of the said Bankrupts, to the Defendant Wright and others, and refuse to let the Plaintiffs Creditors of Bank∣rupts to come in, and intend to divide the said Estate amongst the Joynt Credi∣tors of Bankrupts, by reason whereof the Plaintiffs debts will be utterly lost.

The Defendants insist,* it was agreed by Indenture of Copartnership, that all such debts as should be owing on the joynt account, should be paid out of the Joynt Page  227Stocks, and at the end of the Partnership each Copartner take and receive to his own use, his share of Joynt Stock, and the Joynt Stock and Trade should not be charged with the private or particular debts of either of the said Partners; but that each should pay their private debts out of their particular Estate, not inclu∣ded in the said Joynt Stock, that if both the said Partners should be living at the end of the first three years of the six years, that the said Berman should come in Joynt-Partner accordingly, and during the Joynt Trade, the said Copartners became Joynt∣ly indebted to the other Defendants Wright, &c. in 6000 l. and that Widdows became indebted to the Plaintiff as afore∣said, without the consent of Berman, and the Moneys due on the said Bonds was not brought into the account of that Joynt Stock, and the said Widdows was only a Surety, and received none of the Moneys; and the Defendants insist, that the Joynt Creditors ought to be first paid out of the Estate in Partnership, and that the Commissioners have no power to grant the Joynt Estate to pay the Plaintiffs, they being separate Creditors of Widdows, and if a Surplus of the Joynt Estate after the Joynt Creditors be paid, then the Plain∣tiffs can have but a Joynt Moiety of such Surplus towards their Satisfaction, the said Page  228Bermans Moiety being not liable to pay the said Widdows separate debts, and the debts then claimed, were the proper debts of the said Widdows, and that after all the Joynt debts are paid, there will be an Overplus, so that thereby the said Berman will be discharged, and have Money paid to him; but if the Plaintiffs and other se∣parate Creditors of Widdows be admitted to the Joynt Estate, there will not be suf∣ficient to pay the Joynt Creditors, so thereby not only Bermans Estate will be applyed to pay Widdows debts,* but will be liable to the Joynt Creditors; That there can be no division of the Joynt Estate, whereby to charge any part thereof with the private debts of either party, and till the Joynt debts are paid, and till division be made of the Surplus, both parties are alike interessed, and every part of the said Joynt Estate; that the Commissioners have no power by the Commission, to Admini∣ster an Oath to the Plaintiffs, for proof of their debts, they claiming debts from the said Widdows only, and the Commission is against Widdows and Berman Joyntly, and not severally, and therefore cannot admit of the Plaintiffs Creditors.

This Court declared, That the Estate belonging to the Joynt Trade, as also the debts due from the same, ought to be divi∣ded into Moieties, and that each Moiety Page  229of the Estate ought to be charged in the first place, with a Moiety of the said Joint debts, and if there be enough to pay all the debts belonging to the Joynt Trade, with an Overplus, then such Overplus ought to be applied to pay particular debts of each Partner; but if sufficient shall not appear to pay all the Joynt debts, and if either of the Partners shall pay more than a Moiety of the Joynt debts, then such Partner is to come in before the said Commissioners, and be admitted as a Creditor for what he shall so pay over and above his Moiety, and decreed accordingly.