composition and discharge must be consented to at a public meeting by a majority of all the insolvent's creditors, representing three-fourths of all claims sworn to and verified or admitted par provision. Secured or privileged creditors have no right to vote save on condition of forfeiting their security or privilege. The meeting is held in the presence of the juge commissaire, and if the requisite majorities are there present and consent, the deed is then and there signed; if but one of the requisite majorities is present and consents, the deliberation is put off for a week, and if on the day appointed the requisite double majority is not obtained, proceedings in insolvency are resumed, and the estate is wound up for the benefit of the creditors.*

The law of France differs from that of England on the subject of partnership in two very important particulars. In the former country an ordinary trading partnership is what is called an être moral, that is to say, a creation of the law distinct from the persons composing it, having rights and privileges, and partaking somewhat of the nature of an incorporated body under the provisions of the English law; in France the property of the partnership cannot be attached for the debts of one of the partners, nor can his share in any portion of the property of the partnership be levied upon or seized for such debt. Even after the insolvency or bankruptcy of the partnership, the être moral still, according to the best authorities, continues to exist, in fact, art. 531 specially provides for the case where a concordat is refused to the partnership for the granting of one to any of the partners, thereby admitting that the être moral exists, pending insolvency. In France, the individual members of the partnership are liable jointly and severally to the creditors of the partnership, and the separate creditors of the partners as a body have no privilege on their debtor's estates over the partnership creditors.

In England, on the other hand, at law the sheriff must take possession of the whole of the goods levied upon, and if there be two partners in a firm who have equal shares in the partnership property he must sell a moiety thereof undivided for the defen

* 2 Renouard, pp. 1–36.

Masse Droit Com. No. 2666; Rolland de Villargues Dict. de Droit, vbo. Societé No. 11; Pardessus, Droit Com. No. 975.

1 Renouard p. 307, 308, § 20, art. 443; 5 Bravard Veyrières by Delangle, pp. 676, 677.

dant partner's debt, and the vendee will be tenant in common with the other partner.*

The bankruptcy of one of the partners dissolves the partnership as to all the partners. The separate estate of each partner also is liable for the payment of the joint debts, subject, however, to the previous payment in full of the separate debts of such partner.‡

The foregoing are some of the points upon which differences in the law of partnership of England and France exist, and are cited for the purpose of exhibiting the difficulties which beset the settlement of the question of composition and discharge in this Province.

In England, under the law of 1861, in France and Canada, it is now admitted that when a firm is put into bankruptcy, or insolvency, each of the members of that firm becomes a bankrupt or an insolvent. In France alone the être moral of the partnership continues to exist.

In France, on the bankruptcy of a firm, the joint estate has its creditors, its syndicat, its juge commissaire, and its proper tribunal; and the separate estate of each partner has also its creditors, syndicat, juge commissaire, and tribunal. The different estates are kept perfectly separate; the same assignee may be appointed to all the estates, joint and separate; or others than the assignee of the joint estate may be appointed assignees of the estates of the different partners. Thus, where a firm is composed of two partners, A may be appointed assignee to the joint estate, B to the estate of one of the partners, C to the estate of the other. The creditors of the firm alone vote or act in the faillite of the firm, and they, together with his separate creditors, alone vote or act in the faillite of each of the partners. In questions of concordat (composition and discharge) where a firm is en faillite, in order to replace the members of the firm in possession of their joint and separate estates, a concordat must be entered into between the creditors of the firm and its members, and the creditors of each separate estate (therein included the joint creditors), with

Heydon vs. Heydon, 1 Salk. 392; Johnson v. Evans, 7 M. & Gr, 250; Jacky v. Butler 2 Ld. Raym. 871; Holmes v. Meutze, 4 Ad. & E, 131.

† Hague vs. Rolleston, 4 Burr, 2174; Fox v. Hanbury Cowp. 448; Ex pte. Smith, 5 Vesey, 295; Ex pte. Williams, 11 Ves. 5.

Griffith & Holmes Bankruptcy, p. 656.

the member of the partnership originally indebted to them, enter into the concordat. The compositions payable by each of the estates may be different. If the joint creditors refuse to enter into a concordat with the firm, concordats may be entered into by the partners individually with the creditors of their separate estates, by which they in consideration of certain conditions are released from their liabilities as individuals, but the joint estate in such case remains in bankruptcy, and is wound up for the benefit of the joint creditors. It will thus be seen that a certain harmony pervades the administration of the bankrupt law in France-a partnership remains an être moral distinct from the individuals comprising it. Only the creditors of a bankrupt vote in his estate, and they alone who are his creditors are entitled to grant him his discharge.*

In England, on the other hand, up to the passing of the Act of 1869, what confusion is apparent in the administration of the bankrupt laws. "From this principle," says Mr. Griffith,† "arose the practice formerly of taking out in cases of partnership failures, several commissions,-a joint commission against the partnership, and separate commissions against the partners; and this was for a long time the almost uniform course, in spite of the difficulties which were often urged against it, of which notice will presently be taken. Sometimes the two commissions were allowed to go on together, the joint assets being under the joint commission, distributed by the joint assignees among the joint creditors, and the surplus handed over, if any, to the assignees under the separate commissions, in the proportions of the interests of the several partners in the joint estate of the firm; and the separate estates being in like manner distributed among the separate creditors of the partners by the separate assignees, and the surplus, if any, handed over to the joint assignees of the firm, if the joint debts were still unpaid, for distribution under the joint commission.

The first difficulty was, that though a joint commission seems to have, in some respects, been founded on the analogy of a joint action, it had some results very far at variance from what would follow strictly from such an origin, at least by direct consequence.

1 Renouard, p. 410, 441; 2 Renouard, p. 134–139, 141; 2 Namur, p. 519.

† Griffith & Holmes, p. 654.

It seems past doubt that the assignment under a joint commission passed all the property of the bankrupts, not only joint but separate; and a certificate under a joint commission discharged all the debts of all the bankrupts, both joint and separate, as effectually as if each debtor had been bankrupt separately. It would, therefore, seem most inequitable that separate creditors should be excluded from all rights under a joint commission, and practically they were not so excluded, though not allowed in. general to prove as creditors under the joint commission. Their rights were at one time, as above remarked, commonly worked out by allowing the subsistence of separate commissions concurrently with the joint commission, though, where any conflict arose between the assignees under any of the commissions and those under another, the result was usually a bill fyled and the superseding of either the separate or the joint commission, with an order to the assignees of the subsisting commission to keep accounts separately of the joint estate and of the separate estates; and to distribute the joint estate first among joint creditors, and separate estates, first among separate creditors, and to transfer the surplus as before-mentioned, in the case of the several commissions subsisting together. At length, by a general order of Lord Loughborough, the course which was, up to that time, ordered in each case on bill fyled was ordered in every case, where a joint commission and separate commissions should be sued out. But even prior to this, separate creditors had often been let in indirectly under joint commissions, for the purpose of being heard, and obtaining dividends out of separate estate, though it does not seem they were ever formally recognized as having the rights of creditors under the commission. They seem to have been looked on more in the light of persons claiming liens on part of the assets than creditors; their presence was necessary to the proper taking of the accounts of the property, strictly speaking to be distributed under the commission; but neither they, nor any other person had, in respect of the joint estate merely, any rights personally under the commission. This was a necessary consequence of the introduction of the doctrine that joint assets were primarily to be applied in the payment of joint debts, separate assets in that of separate debts; for this principle once introduced it became necessary that an account of the separate debts should be taken, in order to see what surplus would remain, if any, of the separate assets applicable to the purpose of answer

ing joint debts, if the joint assets were insufficient, and, as the payment of the joint debts out of assets applicable for the purpose was the primary object of the joint commission, these accounts were necessarily incident to the working out of the joint commission. This view will, it is believed, explain, at least in part, the cases in which it is said that separate creditors were entitled to be let in under joint commissions. An exactly similar course of argument would seem sufficient to explain the letting in of joint creditors under a separate commission, and would leave the rights of each set of creditors under the other commission strictly analogous, one to the other; but it is seen that joint creditors were allowed to vote in the choice of assignees under a separate commission; an attempt has been made above to explain this anomaly on principle, if indeed it do not rest on mere arbitrary practice. It may here be remarked that the doctrine that joint debts should be paid out of joint assets in the first instance, and separate debts out of separate assets, is not confined to the administration of estates in the Court of Bank ruptcy. It extends to cases where one estate is administered in that Court and the other in Chancery, and would probably be the rule wherever insolvent estates came under administration in this country. . When Lord Thurlow held the Great Seal, strongly impressed with the complexity of the rule as beforementioned, which gives a priority out of joint assets to joint debts and out of separate assets to separate debts, as well as with the gross injustice worked by it in very many cases, he endea voured to supersede it; and we find, during his custody of the Seal, that in numerous cases the joint and separate estates were thrown into a common fund and proof allowed against the whole by joint and separate creditors pari passu. This practice had, at least, the merit of extreme simplicity, and was no more inequitable than that which it sought to supersede; it had also the advantage that it is the rule in many foreign countries, if not in all, and this is a great advantage where bankruptcies occur in the case of merchants trading abroad, as they rarely occur without some complications arising out of the foreign laws of insolvency, which would be much simplified if our own laws were the same as that of other countries in its essential features. But, as has been seen, the attempt made by Lord Thurlow to establish the new rule failed as soon as his assistance in maintaining it was withdrawn, and Lord Loughborough returned to the former rule,