Ex parte Smith: 1800

Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed a provisional assignment. Meanwhile Strickland, the solvent partner, had died. Richardson’s brother-in-law issued a second commission and Richardson was found a bankrupt under that commission. The petitioners under the first commission then petitioned that the second commission be superseded, ie. stayed. The Attorney General, seeking to uphold the second commission, argued that there having been no assignment before Strickland’s death the survivorship had taken place. He submitted that: ‘The date of the commission has no effect: but the relation to the act of bankruptcy is this: it avoids all acts to the prejudice of creditors; but has not the effect of preventing the bankrupt from acquiring property by survivorship.’ Counsel for the petitioners, arguing for a stay of the second commission, did not refer to the doctrine of relation back, submitting that the partnership was severed in Strickland’s lifetime by the issue of the commission: ‘The commission severs the partnership. When the commission issues, the property is out of the bankrupt and in the commissioners; and the assignees take from the commissioners.’
Held: Rejecting the argument of the petitioners, but it is not clear whether he accepted that of the Attorney General. ‘The issuing of the commission does nothing, unless he is found a bankrupt. The adjudication that he is a bankrupt is what severs the partnership. The first act is that declaring him a bankrupt, then all the property is out of him; and they make the assignment…I am satisfied that the first commission will do well enough. Let the first commission stand.’
Lord Loughborough LC
(1800) 5 Ves Jun 296
Cited by:

  • Disapproved – Re Dennis (A Bankrupt) CA 22-May-1995
    A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
    Ind Summary 22-May-95, [1995] 3 All ER 171, [1995] 3 WLR 367

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Updated: 09 December 2020; Ref: scu.186747