Savage v Union Bank of Australia Limited [1906] HCA 37

H.C. oF A. 1906. od

MELBOURNE,

June M1, 12, 13, 14, 18.

Griffith C.J., Barton and

O'Connor JJ.

HIGH COURT

{HIGH COURT OF AUSTRALIA.)

SAVAGE . E F d 5 4 : é APPELLANT; RESPONDENT,

THE UNION BANK OF AUSTRALIA LIMITED PETITIONERS,

} RESPONDENTS.

WHITELAW... ; ; _ 7 : ' APPELLANT ;

RESPONDENT, AND

THE UNION BANK OF AUSTRALIA LIMITED PETITIONERS,

} RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Insolvency—Partners—Sequestration of estate of one—Security over joint estate— Petition—Offer to give up or valuation of security—Partnership—Lxecutors carrying on business under terms of will—Right to indemnity out of assets—Lien over asseta—Insolvency Act 1890 (Vict.) (No. 1102), secs. 37, 41—Insolvency Act 1897 (Viet.) (No. 1513), sec. 109—Registration of Firms Act 1892 ( Vict.) (No. 1256), sec. 4-Partnership Act 1891 (Vict.) (No. 1222), sec. 5.

A creditor petitioning for the sequestration of the estate of one of several partners must, under sec. 37 of the Insolvency Act 1890, in his petition offer to give up or value any security held by him (the creditor) upon the joint estate; the rule that a creditor need not give up his security over the joint estate only applying after sequestration in the administration of the joint and separate estates,

In re Stevenson, 19 V.U.R., 660; 15 ALT, 119, over-ruled.

° AS CLR.) OF AUSTRALIA.

Several executors carrying on the business of their testator pursuant to the terms of the will in the firm name used by him are not necessarily partners, notwithstanding sec. 5* of the Partnership Act 1891 (Vict.), even although the executors have registered themselves as a firm under the Registration of

Firms Act 1892.

Each of several executors carrying on business as above mentioned has a right of indemnity against the assets of the testator, including a lien over those 'assets, for liabilities properly incurred, and any security held by a creditor which interferes with that right is a security the giving up of which will go to augment the estate of each executor, and therefore the creditor must offer to give up or value that security when petitioning to sequestrate the estate of one of the executors.