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FROM MICHAELMAS TERM, 1823; TO TRINITY TERM, 1824,
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FROM MICHAELMAS TERM, 1823, TO EASTER TERM, 1824,
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CASES ARGUED AND DETERMINED
COURT OF CHANCERY:
COMMENCING IN THE
MICHAELMAS TERM, 1823.
1823. ? Nov. 3. So
GEDGE V. TRAILL. Demurrer to a bill filed by a creditor, against A. the exccutor, and his partners B., C., &c., alleging, that assets of the testator had conie into the hands of the partnership, and that all the partners claimed to retain these assets, in satisfaction of a dest duc from the testator to their firm, but not alleging in terms cole lusion between A. and the other defendants: the demurrer is overruled.
The bill was filed by the administratrix of a creditor of Napier, for payment of the debt out of Napier's assets. It stated, that Napier died in India, having appointed certain cxecutors there, and other executors here; that the executors in India had proved the will there, and had remitted considerable sums to the defendant Traill, who was the sole personal representative of the testator in England. Traill was originally the only defendant, but, by amendment, it was alleged, that the assets had been remitted either to Traill, or to the house of Paxton and Co., in which he was a partner, and that they (meaning all the defendants) pretended that the testator
was indebted to Paxton and Co., and that Paxton and Co. were entitled to retain the assets in their possession in satisfaction of their own claim. All the partners in the house of Paxton and Co. were made defendants to the amended bill. There was no express specific allegation of collusion between Traill and his co-partners, except the common charge of confederacy.
All the partners of the house of Paxton and Co., cxcept Traill, put in a general demurrer to the amended bill. The ground of demurrer was, thnt the creditor was entitled to proceed only against the executor, unless he made a special case, by charging collusion between the executor and the person having assets in his possession; and that the bill here contained no such charge.
Mr. Cockerell was for the demurrer:
Vice Chancellor.--I am inclined to think, that this bill, though it does not charge collusion in terms, states on the face of it circumstances which amount to collusion. It charges, that the assets have been remitted either to Traill, or to the house of Paxton and Co., and that all the partners of that house claim to retain them in satis