FAILLITE.—DROITS DE L'ASSOCIE CREANCIER.—SYNDIC

Court OF QUEEN'S BENCH, APPEAL SIDE, December term, 1872.

Present : DUvVAL, Ch. J., CARON, J., BADGLEY, J,, Drum- MOND, .J., and MOXK, J.

Tue Ciry oF GLASGOW BANK, appellant, «nd THOMSON, respondent.

Held : That an insolvent debtor, partner in a commercial firm, composed of himself and another person, may vote on the appointment of an assignee to the estate of his firm, such estate being in insolveney, under a writ of attachment directed against both partners ; h18 only claim being advances made by him, as à partner, to his own firm.

On the 26th october, 1868, the City of Glasgow Bank, being the only ereditor of the firm of Arbuckle & Bruce, composed of James Arbuckle & James Brute, trading at

Montreal, sued out a writ of attachment against their insolvent estate. This proceeding was contested by Robert Watson, styling himself assignee of the estate of James Bruce, upon various grounds which it is not necessary here to specify, since they were ail rejected by the judge in insolvency, by the Court of Review and by this Court. Those proceedings being at an end, Kerry Brothers & Crathern creditors of James Bruce, presented à petition to set aside the attachment, but were equally unsuccessful. They prudently ‘retired, after trying whether the fortunes of the Court of Review might not turn in their favor. After two years and four months had thus been consumed, in à matter usually considered to be summary and which certainly ought to be so, à meeting of creditors took place, before TORRANCE, J., on the 3rd day of february lust. At this meeting there appeared : The City of Glasgow Bank, creditor for £1493.15 sterling; certain Montreal creditors of James Bruce (one of the insolvents) to the amount of £1450.00, and James Thomson (representing James Arbuckle) not à creditor at all, but holding claims of Arbuckle upon the partnership estate, in which he was one of the partners, to the amount of £6739.16 sterling. The votes of ull these parties were taken subject to objection and, on the 4th day of february last, TORRANCE, J., gave judgment, and one of the considérants, in that adjudication, disposed of Thomson's pretensions in the following terms :

“ Considering, further, that the claim of James Thomson is “# the claim of one of the co-partners, against the partnership ‘“ of Arbuckle & Bruce, and that the same cannot be allowed “ to count in the election of an assignee.”

The case was then taken into the Court of Review and the three judges there reversed the ruling of TORRANCE, J. In this latter iudgment is to be found the following considérant.

“ Considering that there is error in the said judgment, to “ wit: in excluding the claim of James Thomson, at the meet- “ ing of the insolvent’s creditors, held in february last, and “in not admitting his vote for Robert Watson to be assignee “of the estate of bankrupts, in this cause, and in declaring “ James Court the duly appointed assignee of the said insol- ‘ vents : doth, revising the said judgment, reverse the same, “by the present judgment, and, proceeding to render the ‘judgment that ought to have been rendered in the pre- “ mises; considering that James Thomson had a right to “ prove a claim, as in fact he did, at the meeting referred to, “to wit: of the third day of february last, against the “ separate estate of James Bruce, onc of the firm of Arbuckle

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:& Bruce, insolvents, and that Thomson had a right to vote “for assiwnee to the insolvent estates at the meeting re- “ ferred to.”

This decision was contfirmed by the Court of Appeals, after a vehearing. The Chief Justice and BADGLEY, J., however, dissented from the judgment of the Court, (3 R. C., 47).